Over two years ago, the United States retrieved American soldiers from Afghanistan.[i] Within days, the Taliban invaded the capital of Afghanistan as the internationally recognized president fled the country.[ii] Fearful, hundreds of thousands of Afghans escaped the country and found a new life in the United States through a humanitarian parole program.[iii] The parole “allows the president to admit individuals on a case-by-case basis for two years, with work authorization, under urgent humanitarian grounds or for significant public benefit to the U.S.”[iv] The President’s power to grant parole comes from 8 U.S.C. § 1182 and section 212 of the Immigration and Nationality Act (“INA”).[v] Congress specifically authorized that “[t]he Attorney General may . . . parole into the United States temporarily under such conditions as he 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.”[vi] The parole, however, does not offer a path for Afghan immigrants to permanently stay in the country. Notably, Congress is reconsidering The Afghan Adjustment Act (“the Act”), leaving many Afghans in legal limbo.
The Act was before Congress in August 2022 but failed to pass; now, the Act has been revived, and Congress is reconsidering it.[vii] In 2022, the Act failed to pass the Senate by a short of ten needed votes.[viii] The congressman who opposed it did so for security reasons since, according to the Inspector General of the Department of Homeland Security, “the U.S. may have admitted Afghan nationals who were not sufficiently screened.”[ix] The Act would provide Afghan parolees an avenue to permanent resident status in the country.[x] In addition, the Act would expand the Special Immigration Visa––available to those who assisted the United States government and military––eligibility criteria.[xi] Without the Act, Afghan refugees are limited to the asylum process or the Special Immigration Visa route; however, both processes are incredibly lengthy, and thousands of Afghan refugees are still waiting.[xii] Statistics show that of approximately 78,000 Afghan evacuees, only around 2,500 were granted asylum, and 5,800 were approved for permanent residency.[xiii] Furthermore, the asylum process retraumatizes the Afghan refugees, as they have to relive their experiences in Afghanistan.[xiv] As a result, Congress should pass the Act to provide an opportunity for permanent residency. In fact, it would not be the first time Congress exercised its power under Article I, section 8, clause 4 of the Constitution, and provided this type of relief.[xv]
In 1956, President Eisenhower admitted around 40,000 Hungarians escaping the Soviet Union into the United States on humanitarian parole.[xvi] Soon after, the Hungarian Adjustment Act passed, allowing Hungarians to become permanent residents of the United States.[xvii] Similarly, in the 1960s, the Cuban Adjustment Act was enacted, creating an unquestionable road for Cubans to obtain their green card.[xviii] Considering how backlogged the asylum and Special Immigration Visas process is, in addition to how much Afghan allies have done for the United States, Congress should do for Afghans the same as they did with Hungarians and Cubans.
Nonetheless, Congress seems undecided on passing legislation similar to those in the past. In July, Senator Tom Cotton proposed the “Ensuring American Security and Protect Afghan Allies Act,” and several congressmen who opposed the Act now support Cotton’s proposal.[xix] The competing proposal would give Afghans conditional permanent residency for four years while they are “rigorously screened,” and only when they pass the vetting process are the conditions removed.[xx] Furthermore, according to Cotton, the proposal would allow for military members and veterans to “refer Afghans outside of the U.S. for priority refugee status.”[xxi] This is not the solution because, as some advocates have pointed out, the proposal would restrict the president’s power to give humanitarian paroles, which would make emergency evacuations harder.[xxii]
The Department of Homeland Security (“DHS”) announced a new process allowing Afghan citizens to renew their parole for two more years.[xxiii] Even more, the DHS will consider extending the parole for those still in the process of applying for asylum or permanent residency, like the Afghans applying for the Special Immigration Visa.[xxiv] The parole extension, however, does not give Afghan parolees any permanent solution or stability in this country; it only provides a short-term band-aid that brings nothing but uncertainty to the parolees. Humanitarian parole does not give parolees the ability to “sponsor family members, work in certain jobs, receive in-state tuition in some states, or, importantly, work toward a permanent residen[t] [status].”[xxv]
The Taliban government in Afghanistan is in a crisis. Despite the Taliban stating that they would not restrict women’s rights, the fears of many became true.[xxvi] In March 2022, middle and high school girls were not allowed into schools.[xxvii] In November 2022, women were banned from utilizing gyms and parks.[xxviii] In December 2022, women were forbidden from joining universities and working with national and international nongovernmental groups.[xxix] The Taliban’s most recent action against women was closing all beauty salons and using stun guns on women protesting the prohibition.[xxx] The Afghan parolees live in constant fear as they face the possibility of returning to Afghanistan, where women’s and human rights are nonexistent. They deserve permanent legal status in the United States, just as Hungarians and Cubans had the opportunity before. This can only be achieved by Congress passing the Afghan Adjustment Act.
[i] See Julia Hollingsworth, Who are the Taliban and how did they take control of Afghanistan so swiftly?, CNN (last updated Aug. 24, 2021, 1:07 PM), https://www.cnn.com/2021/08/16/middleeast/taliban-control-afghanistan-explained-intl-hnk/index.html.
[ii] See Riazat Butt, Two-year timeline of events in Afghanistan since 2021 Taliban takeover, ABC News (Aug. 14, 2023, 12:47 AM), https://abcnews.go.com/International/wireStory/year-timeline-events-afghanistan-2021-taliban-takeover-102244200.
[iii] See Pass the Afghan Adjustment Act, Refugees Int’l (last visited Sept. 10, 2023), https://www.refugeesinternational.org/actions/pass-the-afghan-adjustment-act/.
[iv] Britain Eakin, DHS Says Afghan Evacuees Can Reapply For Parole In June, Law360 Legal News (May 5, 2023), https://www.law360.com/articles/1605079/dhs-says-afghan-evacuees-can-reapply-for-parole-in-june.
[v] INA § 212(d)(5); 8 U.S.C. § 1182(d)(5).
[vi] INA § 212(d)(5); 8 U.S.C. § 1182(d)(5).
[vii] See Yalda Royan, It’s Been Two Years. Why Are Afghan Refugees Like Me Still in Legal Limbo?, Slate (Aug. 23, 2023, 10:00 AM), https://slate.com/news-and-politics/2023/08/afghanistan-refugees-legal-limbo-two-year-anniversary.html.
[viii] Katherine Gypson, US Lawmakers Fail to Pass Afghan Adjustment Act by Year’s End, VOA (Dec. 20, 2023, 2:20 PM), https://www.voanews.com/a/us-lawmakers-fail-to-pass-afghan-adjustment-act-by-year-s-end/6884480.html (noting Senator Chuck Grassley’s statement when he said, “[y]et again, another independent watchdog confirms that the vetting of those admitted to the United States in the wake of President Biden’s disastrous withdrawal from Afghanistan has been completely insufficient.”)
[ix] Id.
[x] The Afghan Adjustment Act, S. 2327, 118th Cong. (2023).
[xi] See Royan, supra note v; see also Jen Kirby, An act of Congress could grant legal status to thousands of Afghan allies. What’s the holdup?, Vox (Aug. 15, 2023, 4:15 PM), https://www.vox.com/2023/8/15/23833209/afghanistan-kabul-anniversary-afghan-adjustment-act-parole-siv.
[xii] See Royan, supra note v (explaining how Royan applied for asylum in 2021, was given two interviews, one in 2021 and another one in 2023, but still has not received a decision); see also Kirby, supra note vii (explaining how Amiri evacuated with her children and husband in 2021, but her husband had applied for the Special Immigration Visa in 2014 and is still waiting); see Lauren DeLaunay Miller, Climbing got her out of Afghanistan. She needs lawmakers to let her stay in the U.S., NPR (Aug. 27, 2023, 8:00 AM), https://www.npr.org/2023/08/23/1195479128/biden-immigration-taliban-humanitarian-parole (explaining how 21-year-old Bakhshi “applied for asylum at the end of 2022 but after a five-hour interview in December, she still hasn’t received a decision.”).
[xiii] See Kirby, supra note vii.
[xiv] See Royan, supra note v.
[xv] U.S. Const. art. I, § 8, cl. 4 (stating that “[Congress shall have Power . . . ] [t]o establish an uniform Rule of Naturalization. . . .”).
[xvi] See DeLaunay Miller, supra note viii.
[xvii] See id.
[xviii] See id.
[xix] Alyssa Aquino, Lawmakers Propose Dueling Afghan Relief Bills, Law360 Legal News (July 14, 2023, 7:52 PM), https://www.law360.com/articles/1700027/lawmakers-propose-dueling-afghan-relief-bills.
[xx] Id.
[xxi] Id.
[xxii] See DeLaunay Miller, supra note viii.
[xxiii] See DHS Announces Re-parole Process for Afghan Nationals in the United States, Dep’t of Homeland Sec. (June 8, 2023), https://www.dhs.gov/news/2023/06/08/dhs-announces-re-parole-process-afghan-nationals-united-states.
[xxiv] See id.
[xxv] DeLaunay Miller, supra note viii.
[xxvi] See Hollingsworth, supra note i.
[xxvii] See Butt, supra note ii.
[xxviii] See id.
[xxix] See id.
[xxx] See id.
