We Need an Afghan Adjustment Act

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This article originally appeared in the New York Daily News on Apr 9, 2022.

Since the fall of the Afghan government in August 2021, the United States’ treatment of our Afghan allies has fallen short of anything humane. Now, while the world’s attention justifiably turns to the devastation in Ukraine, the recent more favorable treatment of Ukrainian refugees highlights how the United States has unacceptably failed our Afghan allies.

During the U.S. military’s withdrawal from Afghanistan and the Taliban takeover, the U.S. military evacuated around 123,000 people from Afghanistan. The U.S. military brought 83,000 of these Afghans into the United States. Others were taken to third countries.

These evacuated individuals were our allies in Afghanistan. They supported and joined the U.S. military’s work in the country and worked for American NGOs. They stood with us against the Taliban, putting their lives at risk. Before evacuating these allies, the U.S. vetted them and identified them as being at risk of harm from the Taliban.

While those evacuated from Afghanistan were lucky to make it out of the country alive, this sudden departure from their homeland was nonetheless a traumatic experience. Many fled without getting to say goodbye to their loved ones, without time to pack their belongings, forced to leave family and friends behind in an area still fraught with danger.

While the U.S. military should be commended for evacuating so many Afghans from impending Taliban harm, this is not enough. Our Afghan allies will not be able to safely return to Afghanistan for the foreseeable future. After enlisting their support in Afghanistan, causing them danger from the Taliban, and evacuating them to the United States, we should provide these brave individuals with permanent resettlement options.

Many of these allies entered the United States on a temporary immigration status that will expire without an option to adjust to a permanent status. While some do have viable pathways to long-term legal residency—a small portion can get work visas or adjust their status through a family member and others may qualify for asylum—an estimated 36,000 people do not have a clear path to permanent residency.

Biden recently added Afghanistan to the list of countries the United States has designated to be too dangerous to deport people back to, making people from Afghanistan eligible for Temporary Protected Status (“TPS”). While this is a step in the right direction, this falls short of the permanent resettlement options that we owe our allies. TPS is by name temporary; beneficiaries are allowed to stay in the United States for 18 months. TPS leaves recipients in legal limbo, wondering whether they will be allowed to stay permanently. This would be unsettling for anyone, let alone someone whose world just turned upside down.

Many Afghans in the United States will likely apply for asylum given the lack of alternative paths to permanent residency. However, asylum is not a viable option for many.  First, many potential applicants do not meet the strict qualifications needed for asylum eligibility. Second, even those who appear eligible for asylum may struggle to prove that they in fact qualify, as many people destroyed the documents needed to prove eligibility while fleeing Afghanistan to avoid the Taliban finding the documents and then killing them. Third, not everyone will be able to navigate the complex asylum application process, which is tedious, long, and difficult to get through successfully without an attorney. There are not enough pro bono asylum attorneys to help everyone.

Forcing all of these Afghans to individually apply for asylum would also unnecessarily strain our already overwhelmed asylum system. There are currently about 1.6 million pending asylum cases and the asylum system has been backed up for years. Creating an influx of tens of thousands of additional Afghan asylum applications would not be a good use of already stretched-thin government resources.

More importantly, the asylum process is traumatic. Applicants must recount in detail their past persecution and fear of future persecution in a grueling interrogation. It would be cruel to unnecessarily inflict more trauma on our allies who have already been through so much. If applicants are denied asylum, would we really deport them back to Afghanistan, after we evacuated them from the threat of Taliban harm, while they are still at risk from the Taliban? If not, why make them go through the asylum process in the first place?

Instead, we should provide these evacuees with a path to permanent status that does not require each person to individually navigate the U.S. immigration system. Congress could provide a humane and efficient solution by enacting legislation to categorically allow Afghans in the United States to apply for lawful permanent resident status—also known as a green card. This would help our allies assimilate better by alleviating the uncertainty of temporary immigration status that undoubtedly leaves them wondering whether we will send them back to danger in Afghanistan.

Congress has previously provided similar paths to permanent residency for people fleeing other crises. For example, the 1966 Cuban Adjustment Act allowed parolees to adjust status in the United States after fleeing Castro’s regime. And in the 1990s, Congress passed a similar law for Iraqis following Operation Desert Freedom.

We need a humane and efficient solution for providing our Afghan allies with long-term legal immigration status in the United States. Our immigration system cannot handle a massive influx of individual applications. More importantly, our Afghan allies deserve it. Congress should provide this solution.

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About the Author: Amy Godshall is a second-year law student at Cornell Law School. She has worked on various Afghan immigration cases under the supervision of Cornell Law School professor Stephen Yale-Loehr.

Suggested Citation: Amy Godshall, We Need an Afghan Adjustment Act, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (April 19, 2022), https://live-journal-of-law-and-public-policy.pantheonsite.io/we-need-an-afghan-adjustment-act%ef%bf%bc/.