In a Minnesota hotel last week, the hallways are full of recently arrived people from Afghanistan. Some of the doors lead to rooms where families now live. One room holds a free legal clinic. The room is packed with diapers, dish soap, and donated toys. Eight people crowd the hotel room: three attorneys and the new legal clinic coordinator, an interpreter, two case managers, and one Afghan evacuee.
Minnesotans have stepped up with a coordinated response, leveraging federal and state agencies, nonprofits, community-based agencies, and the vibrant refugee resettlement network that has welcomed refugees for more than 40 years. But this time, that response also includes immigration legal help.
In theory, people arriving from Afghanistan should have a straightforward path to rebuilding their lives in the United States. In practice, the path is far from clear.
As tens of thousands of people fled Afghanistan ahead of the Taliban, the Biden administration has scrambled to respond. U.S. and international law recognize that people who have fled their countries because of a “well-founded fear” of persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group are “refugees.” But the precipitous speed of the evacuation left no time to process each of the individual cases. This means that, while the people arriving meet the definition of a refugee, they don’t hold “refugee” immigration status.
This legal technicality makes an enormous difference. Under the United States’ byzantine immigration laws, people cannot just enter the country and apply for green cards. Only a few narrow paths lead to lawful permanent residence. Most evacuees must first be recognized as refugees by filing individual claims for “asylum.” If granted, they may later apply for permanent residence.
Most people arriving on U.S. military bases from “lily pad” sites scattered around the globe hold only temporary permission to stay in the United States. Virtually all have “humanitarian parole,” a temporary designation that has no clear path to permanent residence and long-term stability.
Congress’s continuing resolution, passed at the end of September to avoid a government shutdown, includes some desperately needed help for people arriving from Afghanistan. But a key provision that would have allowed people to apply directly for permanent immigration status failed to survive the political negotiations. The resulting measures fall far short of what’s needed to make sure people arriving today will not face deportation back to Afghanistan in the future.
Without special legislation, tens of thousands of people will need to file applications for asylum that detail their fear of returning to a Taliban-controlled Afghanistan.
Like all people asking for asylum, they will have to submit lengthy forms and piles of evidence to prove not only that they will be targeted, but why. Each will need to appear for an interview, where they will need to recount in painstaking detail what they and those they know have endured. As an asylum lawyer, I have seen the toll this process takes on people who have survived human rights violations.
Meanwhile, Afghans who fear they will be targeted by the Taliban are on the clock. Twenty-five years ago, Congress sought to deter people from seeking asylum by decreeing that people must file their asylum claims within one year of arriving in the United States. The timeline is even tighter for those Afghans who were already here — they need to file for protection right away.
The Afghan evacuation is shining a light on the strengths and failings of our refugee protection system. On the plus side, we have seen the speed with which we can mobilize protection and leverage our tradition of welcome.
But the minus column is long:
Today, U.S. immigration laws are designed to exclude and expel, not to ensure that people can get and stay in status. Minnesota’s senators have the chance to lead, but Congress must act swiftly before asylum filing deadlines kick in. The Afghan Adjustment Act would give a clear path to permanent status for evacuees so that the people we’re welcoming today can stabilize and thrive.
Michele Garnett McKenzie is deputy director of The Advocates for Human Rights and has practiced asylum law for more than 20 years. The Advocates for Human Rights provides free legal assistance throughout the Upper Midwest to people seeking asylum, unaccompanied children, victims of trafficking, and people detained by federal immigration authorities. The Advocates’ legal advice clinics for Afghan evacuees are now operating.