In August 2021, the United States evacuated more than 76,000 Afghans who had aided the U.S. and the international community in their Afghanistan mission. The U.S. planes eventually brought those supporters who faced retribution by the Taliban to military bases around the U.S. in a mission called Operation Allies Welcome. It was an incredible effort by many U.S. government agencies, organized in almost no time. Within weeks the bases were responsible for feeding, housing, educating, caring for, and finding a new home for these displaced people.
One may assume the legal immigration status of these evacuees would have been an area over which the U.S. government could have the most control. But the Immigration and Nationality Act is a beastly long and complicated statute that does not give the president authority to simply bestow citizenship, permanent resident status (green card), or even refugee status on such short notice to so many people. The best the government could do was admit the Afghans in parole status, which is simply the authorization to come to the U.S. in an emergency but does not provide for any long-term stay. Normally, the executive branch has authority to grant refugee status to displaced people outside the U.S. who fear persecution at home, but that process normally takes years and many steps. There simply was not time.
Many of us heard through the news that the U.S. was offering Special Immigrant Visas – basically, a green card, or the authorization to permanently live and work in the U.S. – to the evacuees since most had directly worked for or helped the U.S. effort in Afghanistan. I was one of those who believed this was the long-term solution when I began making visits to Ft. McCoy, one of the bases, located in rural Wisconsin. I have been an immigration lawyer for more than 25 years but the legal options for those who I visited were not immediately clear. Parole status for this group expires two years after arrival, which legally meant that without obtaining another immigration status they could be deported back to Afghanistan, a completely irrational and horrifying result, considering the effects and the effort put in to saving them.
The Department of State had contracted out the legal orientation of these evacuees across the country. At Ft. McCoy, there were 13,000 residents who needed to understand their options and deadlines. But with only four full-time lawyers, who dropped their other jobs and plans to come work there, there was no way to even meet with 13,000 people in several months, working around the clock. Lawyers, law students, law professors and retired lawyers streamed through the legal orientation office at Ft. McCoy to offer assistance. Most had no immigration training, just the desire to help.
It became clear that no more than approximately 30-40% of the evacuees would qualify for the Special Immigrant Visas with the required period of service to a U.S. government agency or international agency, despite the fact that the period was reduced from the normal two years to one year for Afghans. That left more than half of the people with only one long-term legal option: applying for asylum.
Normally, representing an applicant in preparing an asylum application can take anywhere from 20 to 100 hours of work. If even half of the 76,000 Afghans needed asylum representation, there was no way the existing network of legal support organizations could possibly do the job. These organizations were already beyond capacity with the urgent need for support to asylum-seekers already in the U.S., primarily from Central America.
Our story in Wisconsin is an example of what lawyers had to do across the country to avoid the unthinkable outcome of these Afghan families getting sent back to Afghanistan at the end of their two-year parole period.
After learning of the need, in early 2022 several community immigration support organizations — Catholic Charities of Milwaukee, Green Bay, and La Crosse, and the Community Immigration Law Center of Madison — began planning for the deluge of need to help apply for asylum. It was estimated that around 800 Afghans would eventually be resettled in Wisconsin, which meant something like 200 to 300 asylum applications would need to be prepared before the normal one-year filing deadline (August 2022). At that time, there were only a handful of lawyers in the entire state who regularly prepared asylum applications on a pro bono basis – all of whom were already inundated with cases.
With the deck stacked against us, we decided to try an effort implemented in some large cities around the country, where attorneys who do not normally practice immigration law are recruited, trained and supported by those who do. We put out a call to sole practitioners and small rural firms through a Wisconsin State Bar pro bono office email blast, and to big-firm lawyers through their existing pro bono programs.
We were amazed at the response. More than 160 lawyers volunteered. More than 50 lawyers from my own law firm, Quarles & Brady, stepped forward. Other firms, like Foley & Lardner, and Godfrey & Kahn, provided significant contingents as well. As an example, at Quarles, it was not just lawyers. Paralegals and administrative assistants answered the call and provided many levels of support. We even had lawyers in offices outside the state providing remote support to Afghans in Wisconsin.
For the past several months lawyers who have never worked on an immigration case – or maybe even taken a pro bono case – have been meeting with their new clients and discovering the hurdles asylum applicants face. To say there are not many competent Pashto and Dari speakers in Wisconsin is an understatement, which made finding evidence of the client’s previous life and likely persecution by the Taliban extremely difficult. This kind of initiative takes courage – courage to not only navigate the complex immigration system for the first time, but also taking on the type of work that means everything to the client.
Now, the U.S. Citizenship and Immigration Services is expediting treatment of these Afghan asylum applications, granting interviews in as little as 45 days and adjudication within 150. While that might not seem short, most other asylum applicants have been waiting years for their interviews. While advocates remain hopeful, some initial asylum applications have been denied for lack of proof that the Afghans would be singled out by the Taliban for persecution. Fortunately, the system provides another bite at the apple with a de novo hearing in front of an Immigration Judge if the affirmative asylum application is denied. But this process requires significantly more resources and time.
There are at least two ways to look at this incredible effort by lawyers, community organizations, and law firms. Personally, I am impressed and encouraged that lawyers without previous experience have chosen, in great numbers, to accept the admonition by state bar associations and supreme courts to use our training and skills to help those who need it most. The resources and commitments required for this Afghan effort appeared out of nowhere, with no warning, and yet lawyers recognized that their work could make an enormous difference, not only to a family facing Taliban persecution, but also to a country keeping faith with those who supported it.
The other side of this incredible effort is that it could have been avoided. Congress had the authority to create a special immigration path for these Afghan evacuees. In fact, finally, just in August 2022, both the Senate and House of Representatives introduced the Afghan Adjustment Act. If passed by Congress and signed by the president it would, among other things, provide a path to green cards for this group, in the same way that Cubans, Vietnamese (and other Southeast Asians), and Iraqis benefitted from similar legislation.
These vulnerable allies have experienced harrowing journeys and continued future threats. Their families face persecution back in Afghanistan. The cumbersome and highly politically sensitive U.S. immigration system, while providing immediate physical safety for a great number of people, has been difficult to follow and keeps changing under our feet. Therefore, it has fallen to compassionate, clever and committed lawyers to be essential guides to relief for tens of thousands of people. Every legal community in the U.S. had to face this challenge due to the wide resettlement of Afghans. There is still time to find how you can help in yours or to make sure your Congressional delegation appreciates the difference the Afghan Adjustment Act would make.