HUMANITARIAN PAROLE: A TEMPORARY SOLUTION FOR A PERMANENT PROBLEM

In April 2021, after nearly twenty years in the country, the US announced its withdrawal from Afghanistan. To protect Afghans who assisted the US, as well as others who may be at risk of persecution by the Taliban, the US government launched Operation Allies Welcome and over 70,000 Afghans were resettled in the US. However, given the rapid nature of the evacuation, approximately 36,000 of those who were allowed into the US were only granted temporary admission through a procedure known as humanitarian parole. 

Humanitarian parole is a discretionary power that the US Department of Homeland Security (DHS) uses to temporarily allow individuals to enter the country for several reasons, one of which is based on urgent humanitarian grounds. It is usually granted for a maximum of one or two years. 

Parole is not the same as entering the US as a refugee. Whilst refugee status provides a pathway to staying in the US permanently, parolees are only allowed to live and work in the country, but they have no dedicated pathway to remaining in the country on a long-term basis. That means when humanitarian parole expires, individuals need to figure out how to adjust their immigration status to avoid deportation. 

For those who have stood with Western allies or against the Taliban, returning to Afghanistan would be catastrophic. The Taliban show no signs of deviating from their past practices. 

By way of example, despite promises to allow girls to resume education, girls are still not allowed to attend school. The Ministry of Women’s Affairs has been disbanded and the building it once occupied now houses the resurrected Ministry of Propagation of Virtue and Prevention of Vice, which brutally enforced restrictions on Afghan men and women in the past. Also, in March 2022, the Taliban suggested women should not travel domestically or internationally without a male chaperone. 

Equally, the Taliban killing 13 Hazara Afghans indicates that ethnic minorities are once again under threat. In recent months, the Taliban conducted door-to-door searches to identify “criminals” but it appears some searches may be a tactic to target those with connections to the former government. 

NO CLEAR PATHWAY FOR AFGHANS TO STAY IN THE US

With only temporary protection from the Taliban, many Afghans fear that, unless they can find some way to remain in the US, they may be forced to return to Afghanistan. The difficulty that Afghans will face is that there are only a handful of available options to do so. Some, for example, may have immediate family members who are US citizens or permanent residents that could sponsor them.  However, for the vast majority, that may not be an option. Generally, that leaves two pathways: a Special Interest Visa (SIV) or applying for asylum. Each option presents its difficulties. 

Obtaining an SIV is a complicated and time-consuming 14-step process, and there are only a limited number of visas available for a few individuals who worked for the US government for at least one year. Compounding the difficulty even further, the Biden administration inherited a significant backlog of SIV cases, caused in part due to the Trump administration slowing down visa processing. It is estimated that SIVs could be backlogged by nearly 20,000 cases, which will likely take years to process. 

Yet, those who worked directly for the US government are not the only individuals that face a risk of persecution. Ethnic minorities without US ties, women’s rights advocates, and even members of the former Afghan government, judiciary, and military may all be ineligible for an SIV. That means seeking asylum is the only realistic option that many Afghans may have. 

Unfortunately, the US asylum system is at a breaking point. Whilst not all affirmative asylum cases end up before a judge, as of December 2021, the backlog of asylum cases in immigration court was just under 1.6 million. Applying for asylum involves having to demonstrate in detail that the applicant has experienced persecution or has a well-founded fear of persecution in their home country. 

Given the chaotic circumstances under which Afghans fled, for many individuals the evidence needed to demonstrate this might be lost, out of reach in Afghanistan, or destroyed to avoid detection by the Taliban. If those seeking asylum cannot prove their case then they cannot succeed, which may eventually lead to their removal from US soil. 

THE AFGHAN ADJUSTMENT ACT AS A SOLUTION

The current pathways available to Afghans make escaping persecution difficult to accomplish. In August 2022, the US Congress introduced bipartisan legislation, the Afghan Adjustment Act, as a potential solution to assist individuals at risk. 

The proposal would be for Afghans who have arrived in the US to have the ability to apply for permanent residency (a green card) after spending one year in the US, thereby potentially avoiding the need to apply for asylum or an SIV. The bill would also extend SIV eligibility to previously excluded groups, such as the Afghan National Army Special Operations Command (ANASOC) and the Female Tactical Teams of Afghanistan. Organisations such as Amnesty International, Human Rights First, and the International Refugee Assistance Project as well as religious groups, veterans, and even the Biden administration itself have all supported the idea. 

For US lawmakers, providing a group of individuals with their immigration pathway is nothing new. In the past, Congress passed the Cuban Adjustment Act 1966 for Cubans fleeing the communist regime. The US passed similar legislation again for individuals from Southeast Asia after its withdrawal from Vietnam in the 1970s, and once again, after US military action in Iraq. 

So far, previous efforts to push for this have not been successful. In May 2022, Congress rejected a request from President Biden to include a pathway for Afghans in a bill providing support for Ukraine. Instead, the DHS recently announced that it would extend “temporary protected status” to Afghans in the US, shielding them from deportation for 18 months. 

In his announcement, DHS Secretary Alejandro Mayorkas identifies the armed conflict between the Taliban and ISIS-K; a collapsing public sector; drought, food, and water insecurity; lack of access to healthcare; human rights abuses by the Taliban; and destruction of infrastructure as reasons to justify granting temporary relief from deportation.

Whilst this is a welcome move by the US government, it does not go far enough. These issues are unlikely to subside within the next year and a half: left unchecked, time may only make them worse. 

LOOKING AHEAD

In a speech just hours after the US finished its withdrawal from Afghanistan, US Secretary of State Antony Blinken reiterated that the commitment to those who have stood with the United States in Afghanistan has no deadline. Yet, for parolees, a deadline is looming. The efforts of the US so far could end up meaning very little if at-risk Afghans are sent back to a country rife with human rights violations. The decision to temporarily shield individuals from deportation to Afghanistan because it is currently too dangerous suggests that the US is well aware of this. 

After enduring an upheaval that has cost them their homes, careers, possessions, and loved ones, those who have made it to safety will be looking to put their shattered lives back together. Yet, current immigration laws make it difficult for at-risk Afghans to have the kind of stability needed to resettle. The type of relief that Afghans need can only come from Congress. However, until US lawmakers decide whether they want to truly protect Afghans, the future appears bleak for those who have made it to safety in the US. 

Keshav Masani is an attorney licensed in New York. Keshav is a volunteer lawyer with Project ANAR (Afghan Network for Advocacy and Resources) located in California, where he assists individuals to apply for humanitarian parole.