Legal Limbo for Afghan Evacuees

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Scholars examine the legal uncertainty facing Afghan nationals granted humanitarian parole.

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Two years ago, the Taliban seized Kabul and ousted the U.S.-backed Afghan government. Amid the United States’ chaotic withdrawal from the city, the U.S. government airlifted more than 76,000 Afghan nationals out of the country. The evacuation operation was the U.S. government’s largest since the resettlement of 125,000 Vietnamese refugees following the fall of Saigon in 1975.

The Department of Homeland Security (DHS) granted most evacuees humanitarian parole—a temporary immigration status to live and work in the United States—for two years. Last year, Congress failed to create a path to permanent residency for Afghan parolees. The bipartisan Afghan Adjustment Act (AAA) floundered without sufficient support from congressional Republicans.

Unlike other forms of humanitarian protection, such as refugee or asylee status, parole is discretionary and does not confer pathways to lawful permanent residency or citizenship. Yet immigrants’ rights advocates emphasize that parole can be a lifesaving resource during acute crises, such as the Taliban takeover of Afghanistan. Entering the United States through other immigration channels may take years and require significant documentation.

After two years of living in the United States, many Afghan parolees report living in “legal limbo.” Immigration experts observe that parolees are often anxious about their legal status, especially during presidential administrations that tighten immigration restrictions. Labor and welfare scholars note that Afghan parolees fear losing their jobs because their work permits are tied to their parole status.

For its part, the U.S. government has encouraged Afghan parolees to apply for immigration statuses for which they might qualify, including statuses with prescribed paths to permanent residency. Congress passed a law requiring U.S. Citizenship and Immigration Services to schedule initial asylum interviews for Afghan evacuees within 45 days of their asylum application filing and to provide decisions within 150 days of filing.

Despite new obligations placed on U.S. Citizenship and Immigration Services, Afghan parolees report challenges navigating complicated application processes without legal support, as many Afghans struggle to find or afford legal assistance. Among Afghans who submitted asylum applications, some experienced lengthy wait times that violated Congress’s mandate.

DHS recently created a process for qualifying Afghans to renew their parole and work permits for another two years. Some Afghans criticized parole renewal as a “temporary stopgap” that failed to provide much-needed legal stability. Parolees and their supporters, including former military leaders, urged Congress to pass status adjustment legislation to protect paroled Afghans from deportation.

In response, U.S. Senator Amy Klobuchar (D-Minn.) reintroduced the AAA, as the bill’s supporters pointed to the United States’ long history of following large-scale usages of humanitarian parole with status adjustment legislation.

In this week’s Saturday Seminar, scholars examine how legal uncertainties impact Afghan parolees’ day-to-day lives and how past status adjustment acts from Congress can inform future legislation to help Afghan nationals.

  • The National Immigration Forum argues that Congress should pass the reintroduced AAA to provide paroled Afghans a path to permanent legal status. In a brief, the Forum highlights the United States’ history of creating expedited pathways to citizenship for foreign nationals who aid the U.S. military. The Forum cites the Cuban Adjustment Act of 1966, amendments to the Indochina Migration and Refugee Assistance Act of 1975, and the Omnibus Consolidated and Emergency Appropriations Act of FY 1999 as examples—the last of which created a path to permanent residency for some Iraqi asylum seekers. The Forum argues that withholding a similar adjustment for paroled Afghans will worsen asylum backlogs and exacerbate legal uncertainty for parolees.
  • Alexandria J. Nylen of the Center for Human Rights and Humanitarian Studies at Brown University and several coauthors argue that domestic laws and international treaty obligations require the United States to evacuate foreigners who worked for the U.S. government in times of crisis. Nylen and her coauthors interviewed Afghan evacuees in Rhode Island, including those eligible for the Special Immigrant Visa (SIV) program because of their work for the U.S. military. In their report, Nylen and her coauthors contend that confusion over SIV eligibility contributed to the failure to evacuate over 70,000 Afghans who applied for SIVs before September 2021. The Nylen team recommends expanding SIV eligibility and revising qualification criteria to align with the diverse work done by Afghans who assisted the U.S. government.
  • In an article for Migration Information Source, Muzaffar Chishti and Kathleen Bush-Joseph of the Migration Policy Institute argue that, without permanent status, Afghan parolees and similarly situated groups risk being deported to conflict zones or staying in the United States as unauthorized immigrants. Chishti and Bush-Joseph detail the Biden Administration’s “unprecedented” reliance on executive discretionary grants of temporary relief—dubbed “twilight statuses”—to assist nearly 2 million Although twilight statuses such as humanitarian parole can help the government respond quickly to crises, Chishti and Bush-Joseph argue that they leave Afghan parolees and others with temporary statuses vulnerable to sudden changes in their legal protections.
  • In a forthcoming Howard Law Journal article, Lindsay Muir Harris of the University of San Francisco School of Law contrasts the United States’ response to Afghan evacuees after the fall of Kabul with its response to Ukrainian refugees after Russia’s invasion. Harris argues that refugee resettlement agencies struggled to handle the sudden arrival of Afghan parolees. Citing an American Civil Liberties Union lawsuit, Harris also notes that DHS adopted stricter standards for humanitarian parole processing for Afghans, leading to increased application denials. She claims that financial and paperwork burdens on Afghans seeking parole contrast sharply with a “wide-open doors policy” for Ukrainians, who received parole at higher rates and navigated a streamlined and cost-free application process.
  • In an article for the Michigan Law Review, Charles Shane Ellison of Duke Law School and Anjum Gupta of Rutgers Law School argue that the arrival of Afghan evacuees in the United States coincided with an asylum system in crisis. Ellison and Gupta contend that the Trump Administration built an “administrative wall” to prevent the entry of refugees by lowering annual refugee admissions caps and intensifying vetting processes. Ellison and Gupta recommend curbing the high degree of judicial deference given to immigration agency decision-making because these deference doctrines permit agencies to exclude migrants under the guise of “agency expertise,” thus violating the United States’ international treaty obligations.
  • Following the collapse of the Afghan government in August 2021, Abigail F. Kolker, an immigration policy analyst at the Congressional Research Service, observes that members of Congress became interested in potential immigration categories and public benefits for Afghan nationals in the United States. In a report for the Congressional Research Service, Kolker notes that Afghan nationals admitted as refugees, asylees, or SIV holders may be eligible for work authorization, a prescribed path to legal permanent residency, and food, medical, and cash assistance. By contrast, Kolker finds that Afghans with Temporary Protected Status or Deferred Enforced Departure status are ineligible for most public benefits, except for some emergency services.

The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.