Afghans and their attorneys brace for wave of parole denials—12-10-21

Immigration news, in context

This is the 105th 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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This week’s edition:

• In The Big Picture, we look at the possibility of blanket denials for Afghan would-be refugees’ humanitarian parole applications.

• In Under the Radar, we discuss an internal DHS assessment that recommended Haitians not be expelled or deported to Haiti.

• In Next Destination, we examine the confirmation of Chris Magnus as the CBP commissioner.

The Big Picture

The news: After the United States received some 30,000 parole applications from Afghans stuck inside and outside Afghanistan, immigration attorneys have begun sounding the alarm about a wave of denials based on unreasonable evidentiary standards, signaling that the vast majority will ultimately be denied even for the limited and discretionary parole program.

What’s happening?

Following the abject failure to properly prepare an evacuation program for hundreds of thousands of Afghans, including wartime allies, Biden administration officials decided to use the blunt tool of humanitarian parole to continue getting people out of harm’s way. Special Immigrant Visas (SIVs) for those directly involved in assisting the U.S. military were being processed glacially as chaos reigned at the Kabul airport, following the Taliban’s lightning-fast toppling of the coalition-backed government, and the special refugee program for nonprofit and media workers, among others, never really got off the ground as the consular staff that would process the applications fled. So humanitarian parole, a discretionary designation primarily designed either for short-term visits or a stopgap tool in the event of compelling circumstances, emerged as a solution.

Officials turned to parole for some of those lucky enough to make it through the gauntlet of getting into the airport, including a devastating suicide bombing in the waning days of the evacuation. Ultimately, around 70,000 Afghans were paroled into the United States, most of them hoping to subsequently receive SIV or other permanent designations. U.S. officials also encouraged Afghans who did not make it into the country to file parole applications from abroad, either from inside or outside Afghanistan, with those in third countries receiving expedited processing given the likelihood that they’d actually be able to reach a U.S. embassy or consular office. Even expedited processing has been taking a few months, so results are just starting to come in larger numbers, and they are alarming.

In mid-November, it was reported that only about 100 applications had been approved of the over 28,000 parole applications from abroad submitted. Now, lawyers are warning of denials hinting at unreachable criteria, as exemplified by one parole denial letter from Nov. 24 which was obtained and published by Axios. The denial includes the standard language that “parole is not generally intended to be used in place of the international refugee protection regime or resettlement through the U.S. Refugee Admissions Program (USRAP),” which is true but a bit jarring when it was specifically indicated by the government as a tool to overcome a failure to plan for refugee admissions, particularly given that the U.S. missed its international refugee cap by over 50,000 people, despite it already being a very low cap in historical terms.

The denial letter lays out the evidentiary criteria as needing to establish that the applicant is “at risk of severe targeted or individualized harm,” which can be proven by, for example, “documentation from a credible third-party source specifically naming the beneficiary and outlining the serious harm they face and the imminence of the harm” where they’re located, or face the imminent prospect of being sent back to a country where they’ll be harmed.

This standard of evidence is especially bizarre for a few reasons: one, it is very difficult to imagine that an Afghan refugee would have concrete evidence that they are specifically at risk of harm from the Taliban government, versus generally in jeopardy due to being, for example, a journalist or a woman who wants to attend school. Second, the U.S. has been encouraging Afghans to seek refuge in third countries and file applications from there, yet this criteria appears to require that they either be in Afghanistan or face some sort of impending return to Afghanistan. In tandem, denial letters like these have attorneys and advocates worried that these parole applications, which the government encouraged and from which it collected over $17 million from desperate families (each individual application costs $575), will be essentially blanket denied.

Let’s take a step back here and look at the parole designation itself. Parole is authorized by 8 USC § 1182(d)(5)(A), which states that the government “parole into the United States temporarily under such conditions as [it] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States,” with some very specific exceptions such as for crewmembers of vessels who are involved in a labor dispute (yeah, that seems like one of those exceptions derived from a real-life situation). The language is paradoxically both very narrow and very broad: the provision can only be utilized in these humanitarian situations, but such situations aren’t defined, leaving the executive enormous discretion to decide what qualifies and what doesn’t. In theory, the government has the authority to parole almost anyone.

The implementing regulations drive this point home: 8 CFR § 212.5(c) notes that a number of government officials including CBP field personnel can “parole into the United States temporarily in accordance with section 212(d)(5)(A) of the Act, any alien applicant for admission, under such terms and conditions, including those set forth in paragraph (d) of this section, as he or she may deem appropriate,” using the Immigration and Nationality Act cite for 8 USC. This mostly deals with parole decisions made on the spot, not advance applications, but it illustrates the extent to which individual executive officers can issue parole based on their own discretion. The U.S. Citizenship and Immigration Services, the agency processing these applications, has noted in internal materials that parole can be granted for those fleeing generalized violence, for example.

This all basically means that the administration has the full authority to parole practically all of these Afghans into the U.S. without much additional process. A cynical observer might note that the administration was recently the subject of a bad-faith right-wing freakout over the supposed lack of vetting of Afghan refugees, spawned at least in part from the ridiculous argument that their having gone through a process other than the standard, years-long refugee system is equivalent to no vetting. It certainly wouldn’t be the first time it caved to a desire to appear tough on immigration, its public comments notwithstanding.

How we got here

The clearest historical analogue to the largely botched Afghan evacuation is the evacuation of Americans and some Vietnamese citizens after the U.S.’s defeat in the Vietnam war. According to the Vietnam Center & Sam Johnson Vietnam Archive at Texas Tech University, American forces began reviewing their evacuation plan around December 1974, months before evacuations actually began. By the spring of 1975, the U.S. was evacuating Vietnamese civilians and U.S. citizens out of Tan Son Nhat airport in what is now Ho Chi Minh City. The U.S. military attaché in Vietnam processed visas and other paperwork for the soon-to-be refugees, but this process was complicated by bureaucratic requirements. There were other mistakes: for example, on April 4 the attaché used a military plane to evacuate 250 Vietnamese orphans and 50 U.S. government employees, but the plane’s rear doors flew off, causing it to crash into a rice paddy. Nearly half the passengers died. 

American forces in Vietnam had far more time to successfully execute an evacuation effort than those in Afghanistan—largely because they began planning for it ahead of time, and because they began evacuating people before Saigon fell to the North Vietnamese. Around 5,000 people were evacuated from Vietnam from April 1 to 19, according to the Texas Tech archive. After the U.S. and South Vietnamese governments reached an agreement on expedited visas that allowed U.S. citizens to sponsor Vietnamese refugees directly, that figure reached a minimum of 5,000 people each day. 

The plane evacuations continued until the North Vietnamese bombed Tan Son Nhat Airport on April 28. The following day, American forces airlifted a final group out of Saigon via helicopter. Dubbed Operation Frequent Wind, it was the largest helicopter airlift in history, with more than 7,000 people being airlifted in just one day.

In May 1975, Congress passed the Indochina Migration and Refugee Assistance Act. As our Felipe De La Hoz wrote for Slate, it was a massive bipartisan effort that resulted in the resettlement of hundreds of thousands of Vietnamese, Cambodian, and Laotian refugees to the U.S. The first wave of refugees were those who had direct ties to the U.S. war effort and were at risk of retaliation. Later, anyone under threat of persecution was eligible, and eventually eligibility expanded to include those who weren’t in immediate danger. The U.S. admitted tens of thousands of people under humanitarian parole; all refugees had to prove is that they were Vietnamese (or Cambodian or Laotian) and had been forced out by the North Vietnamese victory. 

Still, people went to great lengths—and often put themselves at risk—to flee Vietnam, and it wasn’t an easy process for everyone. One of the most enduring images of the immediate postwar period is that of the so-called “boat people,” Vietnamese refugees who left their country by sea. The refugee crisis began in earnest in 1978, after the U.S. had passed legislation aimed at evacuating Vietnamese refugees, and peaked in 1979. In response, the U.S. established the Orderly Departure Program, which was meant to streamline processing for Vietnamese refugees and other immigrants.

The Afghan evacuation process has been far more fraught. Part of the problem is that no one in the Biden administration seemed prepared for the Taliban’s swift takeover of Kabul—even though classified intelligence reports published over the summer predicted that the Taliban could rapidly take over Kabul, the New York Times reported. But the Biden administration did not heed those warnings, and instead stuck to an evacuation plan that had been decided on months before, based on an intelligence assessment predicting that it would take at least 18 months for the Taliban to seize Kabul. 

But a lack of planning is only part of the problem. As we noted above, the evacuation process in Vietnam was a decade-long endeavor, and most refugees left the country after Saigon had fallen to the North Vietnamese. The two things standing in the way of a similar effort in Afghanistan are bureaucracy and political will. Before the U.S. started admitting Afghan refugees via humanitarian parole, it was largely relying on Special Immigrant Visas (SIVs). SIVs have existed since 2008, and the Afghan Allies Protection Act of 2009 dictates the criteria for eligibility. In order to qualify, an applicant must prove that they are an Afghan national who worked by or on behalf of the U.S. government (or for the International Security Assistance Force) during the war. They have to provide a recommendation letter proving their employment, and must also show that helping the American war effort has caused them to experience a serious, ongoing threat. 

Humanitarian parole came later, but by that point, it was already too late for many people. Many of the flights out of Afghanistan have been funded by private groups rather than the U.S. government—and those groups are running out of money because of the logistical complications of getting people out of the country after the Taliban takeover.

What’s next?

It’s perhaps a bit early to freak out completely, though the signs aren’t good. Given what we’ve seen so far, it seems unlikely that the approach will suddenly shift and parole applicants will start being accepted where previously they were getting denied. If the pattern holds, it’s safe to say that the majority one of the outstanding 30,000 or so applications will be denied, at which point it’s the end of the road for those applicants. There’s no appeals process for a parole denial.

It doesn’t necessarily close the door on humanitarian migration to the United States, as those denied parole might still be in the pipeline for SIVs, for example, or can enter the standard refugee system (for which, though, they would need a referral by a body such as the UN) Still, these are processes that can take years, and are much more difficult to navigate than a relatively simple parole application. It’s unclear how Afghans still in Afghanistan  would even access this process; more likely, they would have to first find a way out of the country.

More generally, a good number of the applicants and their attorneys feel that the process was not undertaken in good faith. One attorney referred to the whole ordeal as a “bait and switch,” with the U.S. government actively pushing Afghans to utilize parole, largely due to its own failure to adequately prepare, and now turning its back. This story is just beginning to take shape, so it’s unclear yet exactly what the response will be from pro-refugee and pro-Afghan resettlement policymakers. At this point, there’s precious little they could actively do except pressure the administration, which has the ultimate authority to make parole determinations.

One thing we haven’t mentioned yet is that, even for those Afghans who have already been paroled into the U.S., the road ahead is uncertain. As we’ve mentioned, parole is not a permanent status, and in fact is designed to be temporary and purpose-driven, whether that purpose is to receive medical treatment or escape harm. Some Afghans are in the SIV pipeline, but the uncomfortable question remains about what exactly will happen to those who aren’t. The obvious answer is an asylum claim, but, as we hope is clear to anyone who’s a regular reader of this newsletter, the asylum system is far from a well-oiled machine. Congress could ultimately provide some specific path to residency for them, but Cthulhu could also come and drag them into an alternate dimension, if we’re talking about things that are not going to happen.

Under the Radar

DHS officials warned Haitian expulsions could violate human rights obligations, report shows

An internal government report published this summer warned that sending Haitian nationals back to their country of origin could have severe human rights consequences, BuzzFeed News reports. The report said that deportations and expulsions of Haitians, which were on hold at the time it was published, should not resume. Its authors cited the violence and political instability in the country, as well as the recent earthquake, as indicators that removals “create a risk of danger to deportees due to perceived political opinion and/or individual demographic characteristics.”

Despite these warnings, the Biden administration decided to resume deportations of Haitian immigrants who had lived in the U.S. for years. It also used Title 42 to rapidly expel thousands Haitian migrants back to their country of origin without a hearing. It at least took action to protect those Haitians already in the United States by extended Temporary Protected Status.

Next Destination

Chris Magnus confirmed as head of Customs and Border Protection

The Senate approved Chris Magnus, the Biden administration’s nominee for director of Customs and Border Protection, this week. Magnus is the first Senate-confirmed CBP head since 2019. The former Tucson, Arizona police chief is among Biden’s more progressive choices for the agencies within the Department of Homeland Security: he is an advocate of community policing and has spoken out in favor of sanctuary cities. Now he will be tasked with overseeing the agency that oversees some of the Biden administration’s most restrictive policies along the border, such as the ongoing expulsion of migrants under Title 42 and the recently revamped Remain in Mexico program.

It’s possible that Magnus could become an avatar of the Biden administration’s approach to the border: a self-proclaimed progressive asked to oversee policies that actively harm migrants. Until and unless the Biden administration decides to lift Title 42 and end MPP, Magnus will likely face criticism from the left while fending off baseless accusations of overseeing “open borders” policies from the right.