As Yalda Royan and her two teenage daughters waited for two long days in front of Kabul Airport trying to escape Afghanistan last summer, she could hear rifle shots being fired in the air. A thick, unruly crowd had surged around them, of people also looking for a way out of the country.
The Taliban had taken over the city with shocking speed, and thousands of Afghans, who had enjoyed nearly two decades of relative tranquility, were suddenly running for the exit.
Royan, a women's rights activist who worked for U.S.-sponsored programs, had an opportunity many other fellow Afghans lacked.
"I was on one of the lists to be evacuated," she told Law360. But she also had something many others didn't: a lawyer.
Just days after Royan was able to flee Afghanistan on a Canadian plane on Aug. 20, the women's rights nonprofit she worked for, VOICE Amplified, had already connected her with Lindsay M. Harris, an immigration attorney, professor and the director of the Immigration & Human Rights Clinic at University of the District of Columbia's David A. Clarke School of Law.
After a laborious escape that took Royan and her daughters first to Kuwait, then to Bahrain, Bulgaria and finally to the United States, they arrived at Dulles International Airport on Aug. 23. A U.S. Customs and Border Protection officer stamped the word "Paroled" on their passports. At the time, Royan didn't know what that meant.
Later, she would find out it's the process that allows refugees to enter the country without a visa and reside there for two years while given permission to work.
Harris first applied for a work authorization for Royan and her elder daughter. She then filed an asylum application for her in October, after working with law students for nearly two months on her case.
On Dec. 8, Royan was interviewed by a U.S. Citizenship and Immigration Services officer at the agency's asylum office in Arlington, Virginia. She is now waiting for the government to make a decision on her asylum petition.
"If I go back to Afghanistan, I will either be killed by the Taliban or I will die of hunger because I won't be able to work, because women are not allowed to work," Royan said. "I'm very concerned about the future of my two daughters."
As the frantic withdrawal of American troops and diplomatic personnel unfolded last summer, the U.S. government and allies transported thousands of Afghans fleeing Taliban rule. About 83,000 people have arrived in the U.S. as part of an operation dubbed Allies Welcome, according to the U.S. Department of Homeland Security.
But the arrival of so many people at the same time has put stress on the already overburdened immigration system and created an access to justice crisis, attorneys say.Despite the relentless work of nonprofits, pro bono attorneys and law school clinics, the search for immigration attorneys with the right qualifications to help Afghan evacuees is monumental.
"Everyone's trying to find lawyers who want to do this work," said Lenni B. Benson, a professor of immigration law at New York Law School. She called the logistics of meeting the legal needs of so many people at once "very daunting."
With huge backlogs and competent lawyers in short supply, it could take years before Afghan nationals will be able to secure a future in the U.S., and if Congress doesn't act, their path ahead will be long and filled with risk, advocates say.
Immigration lawyers, scholars and activists are pushing for lawmakers to create a statutory path to citizenship for Afghans, a process Congress has used in the past to receive Cuban nationals, Hungarians escaping Soviet rule and Liberians fleeing civil war, political instability and, more recently, an Ebola outbreak.
A legislative proposal to accomplish this, what many experts refer to as an Afghan Adjustment Act, has failed to make headway in the current Congress.
Rene Kathawala, the firmwide pro bono counsel at Orrick Herrington & Sutcliffe LLP, which has been assisting about 50 Afghans in applying for travel documents to come to the U.S., said political polarization is hindering the legislative process while the lives of thousands of Afghans are hanging in the balance.
"There shouldn't be any controversy over the Afghan Adjustment Act. But because our country is so fractured and polarized, there is," Kathawala told Law360.
About 90% of people evacuated from Afghanistan have been admitted into the U.S. through the parole process. Afghans who were not part of the evacuation and are still in Afghanistan or managed to flee to other countries must file for a particular type of parole, called humanitarian parole, that requires a petition showing proof of a verifiable, serious and imminent threat to themselves or their family members if they stay in those countries.
Denial rates for humanitarian parole are extremely high, immigration attorneys say.
Harris said that, to her knowledge and based on conversations with USCIS, only 148 applications for humanitarian parole have been approved of the 37,000 filed between July and December.
And even when granted, parole of any kind does not provide permanent status. Paroled Afghans will have to obtain a special immigrant visa or apply for asylum. In rarer cases, they could obtain employment- or family-based immigrant visas, Benson said.
According to a DHS report published in December, about 40,000 of the Afghans evacuated by the U.S. agencies last summer are either SIV holders or applicants, about 3,500 have green cards, about 4,000 have refugee status and only 21 have other kinds of visas.
At least 36,433 evacuees do not fit into any of those categories.Shane Ellison, the supervising attorney at Duke University School of Law's Immigrant Rights Clinic, told Law360 that this last group does not appear to have any options other than applying for asylum.
In the early days of Operation Allies Welcome, Ellison took his law students to Fort Pickett, an army base in Virginia, to give about 100 Afghan evacuees who had just arrived an orientation on American law and tell them what to expect in the coming months.
"We were in kind of early, helping them understand that even though they had parole and work authorization, that that wasn't a permanent pathway to status to remain in the United States and that they would need to take certain additional steps," Ellison said.
The American Immigration Lawyers Association has about 15,000 members, but many of them don't have experience with asylum, humanitarian parole or SIVs."It is true that many of these attorneys do not have prior experience in filing SIV, asylum or humanitarian parole applications," Sharvari Dalal-Dheini, AILA's director of government relations, confirmed that in an email to Law360. "These are areas of immigration law, especially SIV and humanitarian parole, that are not used as frequently as other types of immigration benefits, so there are fewer people who have that knowledge base."
The organization has held training sessions for its members and is using its nationwide network of 13,000-plus volunteers to help meet the need for pro bono asylum representation for Afghans, Dalal-Dheini said.
There have also been other efforts across the legal industry to train lawyers in asylum work. For instance, the New York State Bar Association offered a one-hour beginner's program in December.
And since American troops pulled out of Afghanistan, the American Bar Association has been coordinating a nationwide response effort to the evacuee crisis.
Adonia R. Simpson, the director of policy and pro bono at the ABA Commission on Immigration, said the association has partnered with HIAS, a Jewish American resettlement agency, in connecting Afghan asylum seekers with pro bono attorneys who can help them.
"We hope to serve hundreds of people if the model works as anticipated," Simpson said.
Congress created the SIV program in 2008 to help Afghans and Iraqis who had assisted American operations post-9/11 secure entry into the U.S. and give them a path to citizenship.
More than 80,000 Afghans and 21,000 Iraqis have benefited from the SIV program since its inception. Since August, hundreds of thousands of people have either inquired about or filed applications for the visas, a U.S. Department of State spokesperson told Law360 in an email.
"We are working diligently to process the enormous surge in new applications," the spokesperson said.
Applicants must show that they have worked for or on behalf of the U.S. government for at least one year between Oct. 7, 2001, and the end of 2023, according to the State Department's website. They also have to show they are in serious danger if they remain in Afghanistan, which could be difficult to do because it involves providing documentation from credible third-party sources that detail the threats the applicants face. USCIS might doubt the credibility of those sources, Benson said.But the biggest obstacle for most Afghans is securing evidence of employment, as many government contractors have gone in and out of business and not maintained a stable database of human resources records, Benson said.
And working on SIV requires specific legal expertise that is hard to find, Benson noted.
"It's not that it's impossible for an immigration lawyer to figure it out," she said. "But it's not so much the substance of the visa that's the problem. It's that the procedure is complicated and opaque."
Applying for asylum is also an onerous process. Applicants must show that they are in danger of death or serious harm if they remain in their countries. Bases for seeking asylum include political, ethnic or religious persecution, or membership in groups, such as the LGBTQ community, that might be targeted under a regime.
Preparing an asylum application should take at least 20 to 40 hours of legal work, Benson said. Then it could take four to 12 hours to prepare an applicant for an interview with USCIS officers, and the interview itself can use up an entire day. In total, an asylum case can easily take up to 80 hours of an attorney's work, if there are no appeals or further litigation, she said.
Finding competent lawyers who can commit that much time pro bono is a challenge, she said.
"Not every pro bono lawyer is going to come out of a BigLaw firm ready to take on one of these cases," Benson said.
And typical law school clinics can only take a handful of cases each year. Stephen W. Yale-Loehr, an immigration law scholar who runs the immigration clinic at Cornell University Law School, said the clinic was only able to take nine asylum cases this semester.
"It's better than nothing," he said. "Clinics can only do so much."
The Immigrant Justice Clinic at the University of Wisconsin Law School is currently assisting three asylum seekers, its director, Erin Barbato, told Law360.
Duke's immigrant rights clinic is aiming to prepare asylum claims for 10 Afghan families, Ellison said.
"The needs are just so much greater than what we can offer in that kind of capacity," he said.
To maximize its impact, Duke is creating template legal briefs to be used in assisting individuals who appear to be eligible for asylum. Those templates include crucial documentation for every asylum case, such as country condition reports and legal analysis, that can be used for large numbers of applicants.
Beyond the amount of work that goes into it, winning an asylum case is difficult, even for Afghans who found themselves in the throes of a Taliban occupation, attorneys say.
The threshold for obtaining asylum from a USCIS officer is high, and most applicants don't meet it. Some Afghans seeking asylum might fail to pass scrutiny when USCIS officers inquire about their background. And in some areas of Afghanistan, people collaborated with the Taliban, which the U.S. government considers a terrorist group. That could derail an applicant's prospects for asylum, Benson said."One of the misperceptions many Afghans have is that they were on an evacuation list, so therefore they must automatically qualify for asylum. No," Benson said. "A person who is not a lawyer, not experienced in asylum, may just assume all of the people we evacuated should automatically qualify. That's not how it works."
Royan experienced that firsthand. With a proven record of work on behalf of the U.S. government and a career in women's rights advocacy, convincing an asylum officer her life was in danger under Taliban rule should have been relatively easy, she thought.
She was mistaken.
During the interview, little was asked about her and her background, Royan said; most of the questions delved into her family members and their affiliation to various groups and political parties. At some point during the interview, which lasted almost eight hours, Royan felt she could not go on anymore, but she pushed through. It was dark when she left the building, she said.
"I was put on one of those military airplanes because I was the person at risk," Royan said. "And now, here, I have to sit down for eight hours and prove that, yes, I was the person at risk, while I have provided you with all links, all documents or photos of my activism in Afghanistan and how they are putting me at risk if I go back."
Even just preparing the asylum petition was painful, Royan said.
"I had to review all my life from the childhood until now, which was very traumatizing, going back to all the violence that I had faced, the discrimination that I had gone through," she said.
Royan said she felt depressed for a week after the interview and could barely get out of bed.
Harris said Royan's story makes a perfect case in point for why legislation like the Afghan Adjustment Act is needed.
"This is someone who the U.S. assisted in evacuating with her two teenage daughters from Afghanistan. Are we really going to send them back to Afghanistan? And if we're not, then what is the point of pushing her through this process?" Harris said.
Benson made a similar point.
"Making everyone go through an asylum interview and using the resources of the asylum office to adjudicate these cases in an already overburdened system doesn't really make sense to me," she said.When asylum seekers are refused asylum by USCIS and they lack any other legal status — in most cases they don't — they get referred to immigration courts, where they have to fight deportation.
Immigration courts are already overloaded, and already heavy backlogs have worsened because of pandemic shutdowns and staff shortages. The current backlog for asylum is approximately 1.6 million cases, according to the Transactional Records Access Clearinghouse, a research institution based at Syracuse University.
Law school clinic directors, immigration lawyers and attorneys at resettlement agencies all seemed to agree that only congressional intervention will solve the Afghan evacuee crisis effectively.
"If Congress can pass an Afghan Adjustment Act, that would be huge for these people," Hila Moss, a managing attorney at the nonprofit U.S. Committee for Refugees and Immigrants, told Law360.
Legislative action would also avoid using up the asylum system's resources, advocates say.
"This is a legal need. It's something that it's going to take congressional action to meet," Ellison said. "It's just the right and responsible thing to do."