Administration phasing out parole for Afghans as tens of thousands of applications remain pending—09-09-22
Immigration news, in context
This is the 136th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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Some scheduling conflicts led to a Friday publication this week, then we’re back to Mondays
This week’s edition:
In The Big Picture, we examine the evolution of the administration’s approach towards Afghan refugees.
In Under the Radar, we discuss the continuing pattern of deaths among migrants at the U.S.-Mexico border.
In Next Destination, we look at the continuing litigation over the DACA program.
The Big Picture
The news: The federal government will end its adoption of humanitarian parole for Afghan refugees at the end of the month, instead ostensibly pivoting to bringing Afghans into the country through more durable statuses like SIV or the standard refugee process. Meanwhile, the administration is also expected to massively miss this fiscal year’s refugee resettlement target.
What’s happening?
We have written several times about the fiasco that has been the U.S. effort to evacuate Afghan refugees since the U.S. troop withdrawal last year. This series of missteps was driven by short-sightedness and incompetence starting with the period prior to the withdrawal itself, during which there was little preparation for the predictable scenario of hundreds of thousands of Afghans wanting to simultaneously leave the country.
U.S. officials were processing Special Immigrant Visas—the sort set aside exclusively for people who in some formal way assisted the war effort—at a glacial pace. They had no contingencies in place to quickly set up additional refugee processing as the Taliban surged into power all around Afghanistan. Despite contemporaneous intelligence assessments and a general understanding that the nominal democratic government that the U.S. was leaving behind would not have the resources to stave off a Taliban takeover for long, officials were still caught off guard by the speed with which the Afghan government collapsed, and seem to have been expecting more of a runway period to prepare for evacuations.
The U.S. quickly announced that, in addition to SIVs, it would be processing refugee applications under a category known as P-2, for which others, like those who had worked for U.S.-based media organizations, could qualify. Unfortunately, the State Department realized it couldn’t actually process any of these applications (or SIV for that matter) from Kabul given the fact that it had evacuated the bulk of its consular staff. It tried to maintain limited consular capacity at the Kabul airport, which became the last U.S. stronghold as the rest of the city was taken over, but it quickly became clear that only a small number of SIV-eligible Afghans had been or would be processed, let along any other category of evacuee.
Without other options available, the government went with the emergency measure of humanitarian parole. As we’ve described before, parole grants are entirely based around executive discretion, and fundamentally allow an administration to let almost anyone into the country without having to go through a burdensome visa process. The catch is that the status is renewable but pretty thin, revocable at any time, and offers no path to permanent residency. Ultimately, in the famous images of giant planes filled with Afghan refugees headed for the U.S. in the latter days of the withdrawal, the vast majority would be coming through humanitarian parole, with around 90 percent of the total 86,000 so far resettled having used the designation.
That initial wave of parole resettlements was supposed to be supplemented by a subsequent program that would allow Afghans who didn’t make it onto the evacuation flights to apply for parole from abroad, typically a third country like the United Arab Emirates. As we noted late last year, an initial wave of denials with what seemed to be nearly impossible standards led advocates and attorneys to worry that the government was preparing to functionally deny all of the thousands of parole applications it had been collecting, at a cost to refugees and refugee organizations of $575 apiece.
Those fears now seem to have been well-founded, as documents obtained by Reveal earlier this summer showed that, of about 66,000 applications filed since the program opened in a year ago, the government had processed a grand total of 8,000; of those, it granted 123 applications, a success rate of about 1.5 percent of applications processed, and 0.2 percent of total applications. There’s no indication that this trend will shift. In fact, Homeland Security Inspector General Joseph Cuffari—a Trump holdover who is most notable for trying to bury, rather than air, DHS abuses—recently put out a report chiding the administration for accepting too many Afghans via parole in the initial phase, claiming that many hadn’t been properly vetted.
Against this backdrop of mass denials and a huge backlog, DHS has now announced that it is closing off the humanitarian parole route altogether as of the end of this month, and instead focusing on resettling additional Afghans through more traditional routes like SIV and the refugee program (an effort somewhat comically dubbed “Operation Enduring Welcome”). According to an administration official who spoke to CBS News, this initiative will focus on “immediate family members of U.S. citizens, permanent residents and evacuees resettled over the past year; those who qualify for a Special Immigrant Visa because of their assistance to the U.S. war effort; and the ‘most vulnerable’ refugee program applicants.” Officials will keep adjudicating current parole applications, but again, these are most likely to be denied.
The new approach will in theory avoid the main pitfall of leaning on the parole program, which is that it is fundamentally nonpermanent and there is no straightforward way to guarantee that those who use it are able to actually stay in the country. That said, if the inspector general felt that vetting for parole was not stringent enough, it is far more stringent with SIV and refugee status, and these are further limited to only particular categories of people. Also, given the unlikelihood that the U.S. will reestablish anything remotely resembling normal consular presence in Afghanistan in the near future, all of these processes will have to take place in third countries that would-be refugees will first have to reach.
How we got here
Biden started his presidency by making big promises about expanding and strengthening the refugee resettlement program. In February 2021, he signed an executive order designed to reevaluate the existing refugee resettlement scheme, which included hiring more staff to process refugee applications and looking at ways to expand the categories of people considered refugees. That said, the order was pretty symbolic, and despite that early action, Biden waited until the last possible minute to raise the refugee ceiling for the 2021 fiscal year, which Trump had set at an all-time low of 15,000.
The Biden administration initially claimed that raising the ceiling was too logistically complicated because of the number of migrants arriving at the border, even though different federal agencies address refugees and migrants. Biden raised the 2021 cap to 62,500 in May of that year, but by that point it was too late—the fiscal year ends in October, and resettlement is a months- or years-long process even after applicants have been vetted and approved. In the interim, there were reports of refugees being pulled off planes or having their flights canceled by the State Department. In the end, just 11,411 refugees were admitted into the U.S. in fiscal 2021.
That figure didn’t include Afghans who were evacuated after the fall of Kabul last August. The first evacuees were people who had applied for Special Immigrant Visas, a categorization that only applies to those who assisted the U.S. war effort, as well as to their relatives. The Biden administration initially pledged to parole 22,000 SIV applicants into the United States by the end of August, but the evacuation and resettlement process was incredibly disorganized. The U.S. eventually started admitting Afghans who didn’t have SIV status or pending applications and implemented a disastrous humanitarian parole process.
By December, there were more than 30,000 parole applications filed by both Afghans who had made it to the U.S. and those who had evacuated Afghanistan but were stuck elsewhere, and some people had begun to receive denial letters. These denials claimed that applicants failed to prove they were “at risk of severe targeted or individualized harm,” even though the entire point of the process was to evacuate people who faced the general harm of living under Taliban rule. In total, there were 76,000 Afghan refugees in the U.S. by December. Just over 6,000 of them had legal status; about half of those remaining likely qualified for SIVs, but that left 36,000 people with no path to permanent residency.
Ukrainian war refugees received a much warmer welcome and a much friendlier process. DHS secretary Alejandro Mayorkas designated Ukraine for Temporary Protected Status the week after Russia invaded Ukraine, meaning certain Ukrainians in the U.S. would not be deported even if they lacked legal status. DHS also halted deportations to Ukraine, Russia, Belarus, Georgia, Hungary, Moldova, Poland, Romania, and Slovakia. Early on in the war, some Ukrainians who attempted to ask for asylum at the U.S.-Mexico border were expelled under Title 42—then, the outcry prompted Mayorkas to remind CBP officials that they could make exceptions to the expulsion process on a case-by-case basis, even though they had never been explicitly instructed to do so for people from other countries.
In March, the administration pledged to take in 100,000 Ukrainian refugees and in April announced the creation of a program called Uniting for Ukraine that would allow private individuals and organizations to sponsor Ukrainian war refugees, though again only for parole. No such program exists for people fleeing generalized violence from other countries, such as Guatemala, Haiti, or El Salvador. In fact, while the Biden administration was creating new systems to admit Ukrainian refugees, it was doubling down on expelling Central American and Caribbean migrants.
This asymmetrical treatment is reflective of the way U.S. refugee and asylum policy has operated for the past seventy years. Since its inception, the refugee resettlement program was a way for the U.S. to demonstrate its political commitment to certain groups. For example, Soviet defectors and Cuban refugees were welcomed with open arms, while people fleeing U.S.-backed regimes in Latin America and elsewhere were often derided as economic migrants even when they were clearly fleeing instability or political repression. For example, 3 percent of asylum applications filed by Guatemalans and Salvadorans in 1984 were approved, compared to 100 percent of Cuban asylum applications.
The asylum and refugee systems are both designed to grant protections to a narrow subset of people. Generally speaking, it’s not enough to flee dangerous circumstances. To qualify for asylum or refugee status, someone needs to be able to prove that they’ve faced or are at risk of persecution or harm due to their race, religion, nationality, political opinion, or membership in a particular social group. While the latter category sometimes allows attorneys and applicants to get creative, many asylum applications are denied not because people haven’t faced significant harm, but because they haven’t faced the right kind of harm. There are some exceptions to this. As of 1989, people who belong to religious minority groups can qualify for refugee status without having to prove they’ve faced persecution due to their religious affiliation—so long as they’re from former Soviet countries or from a handful of other select countries, including Iran. In short, unequal treatment of people based on their nationality, race, and the United States’s relationship with their country of origin is a feature—not a bug—of the asylum and refugee systems.
What’s next?
The odds aren’t looking great for the tens of thousands of parole applications that remain pending. The U.S. Citizenship and Immigration Services, as we’ve noted before, is crushed under ballooning backlogs of applications of every type and struggling to fulfill its basic functions, so the applications will probably be pending for months or years, only to be denied. As for the SIV and the refugee program, those are processes that typically take months or years even in ideal conditions, and these are not ideal conditions.
Officials have said that they will be working to expedite these processes, but with the IG already complaining of insufficient vetting and GOP lawmakers watching like hawks, it’s unlikely that the process will be sped up to the extent that thousands of additional Afghans, especially those not already far along in the process, will be arriving with full refugee status in the near term. The official who spoke to CBS News said that some people are being processed in thirty days, but that’s likely those for whom the evidence was ironclad, i.e. they were SIV applicants with a clear and obvious record of having worked for the U.S. military and had already undergone some forms of background checks.
This also basically means that, going forward, Afghans who want to leave the country and don’t fit into the narrow bands the U.S. has opened up will be left to their own devices or will have to figure out a way to go through the more general refugee process, likely through a referral by the United Nations. Despite the clear line between the U.S. occupation and the current instability, the administration is essentially washing its hands of long-term responsibility for the safety of those Afghans who may have availed themselves of the opportunities afforded by a non-Taliban government and who now have targets on their backs.
More broadly, it’s not clear that the U.S. refugee infrastructure writ large is well-developed enough to accommodate a growth in applications and refugee flows. According to a recent Axios report, officials expect to have resettled about 25,000 refugees this fiscal year by the time it ends at the end of this month. That’s a fifth of the 125,000 that was set as this year’s refugee cap (after considerable pressure on Biden), extending a recent trend of pathetically tiny annual resettlements. Whild during the Trump administration the caps were low, now the eviscerated capacity is what’s preventing additional resettlements. It’s not clear exactly how the administration plans to reverse this trend, or how it can make promises about additional resettlements when it is so wildly undershooting existing targets.
Then there’s the question of what will happen to the many thousands of refugees admitted via parole. As we note, there are now tens of thousands from the initial Afghan evacuation and the specialized program for Ukrainians, which means we have close to 200,000 ostensible refugees with no obvious path to permanent status (if that predicament is ringing some bells for you, we have spent months talking about how this is a ticking time bomb). Congress has introduced a couple bills to regularize both populations of refugees, but so far nothing has stuck.
Under the Radar
Migrant deaths at U.S.-Mexico border reach record high
At least 748 migrants have died at the U.S.-Mexico border during this fiscal year, CNN reports. This year’s deaths surpass last year’s figure of 557 deaths, which at the time was the highest on record. It’s also likely to be an undercount: CNN’s numbers are based on data from the Department of Homeland Security, and not all bodies found in the desert are logged by DHS. In some cases, deaths aren’t logged at all.
Most recently, at least eight people drowned while trying to cross the Rio Grande; earlier this year, the bodies of more than 50 migrants were recovered from the back of an overheated tractor-trailer in Texas. The increase in deaths is likely related to the persistence of the Title 42 expulsion policy, under which migrants apprehended at the border (as well as those who ask for asylum at ports of entry) are turned away on public health grounds. However, deaths at the border are not a new phenomenon. As our Gaby Del Valle reported for The Verge, the rise of border surveillance technology is also contributing to a rise in deaths, as migrants and their smugglers go to greater lengths to avoid detection, often by taking remote, dangerous routes through the desert. The underlying policy, called “prevention through deterrence,” has been in place since the 1990s and persists to this day despite deaths increasing steadily since its implementation.
Next Destination
Fifth Circuit reviews new rule as it prepares to rule on DACA
After the administration’s implementation of a new rule making the DACA framework a formal federal regulation, the Fifth Circuit Court of Appeals had both sides in the ongoing legal dispute to weigh in on how this development affected the case. The matter is before the circuit because a district court judge had earlier ruled that DACA as a whole was unlawful and illegally implemented, though had stayed his decision as it related to current enrollees.
As we explained in that edition, the purpose of going through the full federal rule-making process was to neutralize the argument that the initial DACA process had violated the Administrative Procedure Act, which was the main argument put forth by the plaintiffs—which include Texas and other states—and the primary reason that the judge found it unlawful. In its filings, the Justice Department said as much, noting that the new rule was identical to the initial grant but had been through extensive notice and comment, which the administration duly responded to.
In its response, the plaintiffs didn’t dispute that the government this time went through a proper process, but instead redoubled its other arguments, which include that the power to implement a policy like DACA is itself not given to the executive. They are also positing a constitutional argument, that the Take Care Clause forces the federal government to essentially take enforcement action against anyone who is present unlawfully. The panel is expected to rule very soon in a case that could have enormous implications for the roughly 700,000 people who currently rely on the program.