Joint Letter to Biden Administration Expressing Concern Regarding Humanitarian Parole Denials for Afghans

December 14, 2021

Hon. Joseph R. Biden, Jr.                              
President of the United States
1600 Pennsylvania Avenue, NW
Washington, DC 20500

Hon. Alejandro N. Mayorkas
Secretary of Homeland Security
U.S. Department of Homeland Security
2707 Martin Luther King Jr. Avenue, SE
Washington, DC 20528

Ur Mendoza Jaddou, Director
U.S. Citizenship and Immigration Services
5900 Capital Gateway Drive
Camp Springs, MD 20588      

Hon. Kamala D. Harris
Vice President of the United States
1600 Pennsylvania Avenue, NW
Washington, DC 20500

Hon. Antony Blinken
Secretary of State
U.S. Department of State
2201 C Street NW
Washington, DC 20520

VIA EMAIL

RE: Humanitarian Parole Denials for Afghans

Dear President Biden, Vice President Harris, Secretaries Mayorkas and Blinken, and Director Jaddou:

We write to you on behalf of the undersigned organizations, legal services providers, resettlement agencies, law firms, and law school clinics, to express our extreme concern regarding the exclusionary approach the Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS) has adopted towards over 30,000 Afghans who have applied for Humanitarian Parole to the United States. As Secretary Mayorkas and Secretary Blinken have separately stated, the United States has a moral imperative to protect vulnerable Afghans, including the many left behind after the United States withdrawal or stranded in third countries who have since sought a pathway to protection in the United States via humanitarian parole.

When the Afghan Network for Advocacy and Resources (“Project ANAR”) wrote to you on October 20, 2021, with 113 other signatories, we requested public transparency, congressional oversight, community coordination, safe passage for Afghans, and a new pathway to broad relief for Afghans seeking refuge and family reunification in the United States. As legal service providers, advocates, and members of the Afghan diaspora, we seek not only adjudication of Afghan Humanitarian Parole applications, but the favorable use of the wide discretion that USCIS has to grant parole. Instead, USCIS has laid out a plan[1] that will close the door to tens of thousands of Afghans seeking safety in the United States. As Afghans begin to receive parole denials, we grow increasingly concerned about this approach. We lay out the issues of this approach, and our recommendations below.

Our concerns include, but are not limited to, the following:

1. Insurmountable Evidentiary Requirements

The types of evidence that USCIS requires -- for example, the standard requiring third-party evidence that names an applicant as facing risk of serious harm -- is insurmountable for Afghans in crisis and unnecessarily burdensome. Humanitarian Parole is not a process that confers immigration benefits and thus should not require such high evidentiary requirements. Afghans will have to pursue other immigration pathways once in the United States, at which point they can produce the evidence that those pathways require. Yet, this evidentiary standard is nearly impossible for anyone to meet, let alone Afghans, and goes far beyond the requirements of asylum and refugee law.

This evidentiary requirement also fails to account for the circumstances under which Afghans filed parole applications, and ignores the realities of life in Afghanistan, that make this type of evidence inaccessible. Many vulnerable Afghans are in hiding, without stable housing, and may have destroyed or lost evidence if they did have it for fear of persecution.  Afghans applied for parole in the wake of a dire humanitarian crisis, in an effort to rapidly flee harm from the Taliban, circumstances which the Departments of Homeland Security and State are certainly familiar with. The pandemic compounded the difficulty of obtaining official documents or reports, which are impossible for many Afghans to obtain even during times of relative stability. Many filed these applications at the urging of Members of Congress and federal agency staff, with the expectation of accessing evacuation pathways. That USCIS grants few numbers of Humanitarian Parole applications in typical years does not reflect that Afghans are ineligible, but that Afghans have insufficient viable alternative options. The United States paroled tens of thousands of Afghans since August without forcing them to meet these standards---those Afghans are no different from the Afghans who have applied through the Humanitarian Parole process with USCIS, except that the door has been arbitrarily closed on them.

2. Inappropriate Threat Standard

By requiring Afghans to demonstrate an individualized imminent threat through third party evidence in order to access Humanitarian Parole, USCIS is allowing Afghans to die before they can be granted parole. Afghans applied for parole, and continue to do so, with the expectation that they must show urgent humanitarian reasons and significant public benefit. USCIS Humanitarian Parole standards outlined in the 2017 Humanitarian Parole and Significant Public Benefit Training Module expand on those requirements, and allow USCIS to grant parole to individuals to come to the United States “Due to Fear of Harm Due to Generalized Violence that Occurs During a Civil Conflict, based on Ethnic, Tribal, or Religious or Political Violence.” USCIS has a history of guiding its officers to grant parole based on fear of harm due to generalized violence, specifically stating that applicants “may receive a parole request based on fear of harm due to generalized violence that occurs during a civil conflict. Examples of civil conflicts include ethnic, tribal, religious, or political violence, as well as war.”[2] This harm is “shared by a significant segment of the general population” and country conditions information is specifically outlined as a helpful mechanism to evaluate the parole request. Despite this guidance, USCIS has chosen to arbitrarily heighten its standards for Afghans presently living through such a crisis.

In addition, USCIS has not demonstrated what types of evidence might meet this heightened standard, and we fear that if someone is able to demonstrate that their situation is one that rises to this standard, it will be far too late for them to apply for parole and escape this imminent violence. Their case will also sit in a backlog of over 90 days, with the potential of falling through the cracks. Furthermore,  this is a duplicative and unnecessary requirement as the asylum process, which many will have to follow after arriving in the United States on parole, already provides an opportunity for USCIS to evaluate whether the individual has a well founded fear of persecution in  their home country. Importantly, the impact of applying such a high standard is to erect an insurmountable barrier for vulnerable Afghans who seek to reunite with immediate family members in the United States.

3. Inappropriate Evidentiary Standard for Third Country Applications will Result in Blanket Denials for Afghans

Some Afghans have risked their lives to seek safety in third countries, and pursue pathways to family reunification or access immigration status they were promised as Special Immigrant Visa applicants, because of imminent threats on their lives, as well as with the knowledge that DHS cannot complete processing of their applications while they remain in Afghanistan. For that reason, they may no longer be able to demonstrate an imminent threat on their life in the country where they reside. Afghans in third countries may lack stable living situations and legal status, and live under constant threat of detention and deportation, making it just as difficult for them to procure certain types of evidence as those in Afghanistan, let alone to produce such evidence with regard to harm they might suffer in a third country to which they have fled. This standard not only rules out parole for Afghans already in third countries or those who make it to third countries, but is also contradictory to USCIS’s stated prioritization of Humanitarian Parole applications from those in third countries. It is contradictory, inefficient, and exclusionary to apply this evidentiary standard.

4. Lack of Access to Alternative Pathways

Afghans have turned to Humanitarian Parole because other pathways are inaccessible, backlogged, and insufficient for the urgent needs produced by the Taliban takeover of the country. Advocates have long urged special programs to address the inaccessibility of existing pathways. UNHCR and U.S. refugee processing requires presence in third countries, which have largely closed their borders to Afghans. Even the few who may have passports and the ability to make the dangerous journey across a land border face uncertainty when arriving in third countries.  Other visa pathways, including family reunification, take years and do not address the immediate needs of Afghans who are facing immediate harm.

The United States withdrawal and evacuations in August allowed some Afghans access to parole in the United States, while leaving countless others behind. Afghans now left with no other option but to apply for Humanitarian Parole include those who have immediate family in the United States that have arrived in the United States since August, Afghans who had other pending immigration applications, and others who have always lacked viable pathways and were made vulnerable by the Taliban takeover. Afghans have resettled in the United States since August, due to DHS parole discretion. The lack of alternative pathways is particularly important because the United States has a specific responsibility to Afghans to ensure the existence of humanitarian pathways. While neighboring countries must open their land borders to Afghans, the United States must lead the way in meeting its obligation to keep its air borders and safe passage routes open to Afghans. The United States cannot and should not abandon those who were not able to access these pathways prior to August 2021.

Recommendations

Given the above concerns, we urge the following:

1. Special Afghan Parole Program: We recognize the limits of the individualized Humanitarian Parole Program that exist, and the changes that USCIS has implemented in adjudicating Afghan applications since August. We urge USCIS to implement a special parole program for Afghans that will meet the unique and large-scale needs of this population, and the urgency the situation demands.
2. Broad Favorable Use of Discretion: In the absence of a special parole program for Afghans, we urge USCIS to use its discretion to broadly grant Afghans parole. Parole is a tool historically utilized in moments of crisis. USCIS has the authority to widely implement the use of parole for Afghans at risk. USCIS must recognize that even if someone is potentially eligible for an alternative pathway, they have applied for Humanitarian Parole because they cannot wait for other pathways, or cannot effectively access other pathways. Afghans can pursue appropriate immigration pathways once safely in the United States, where they will have the support of their families, communities, and legal counsel.
3. Reduced Evidentiary and Threat Standards: In the absence of a special parole program for Afghans, we urge USCIS to consider what types of evidence Afghans can realistically obtain given the ongoing crisis, to accept widely documented country conditions as evidence in parole applications. We urge USCIS not to base its denials on lack of individualized third party evidence of threats of harm, and to embrace an approach in line with the generalized standard laid out in the 2017 USCIS training course, cited above.
4. Establish a Process for Consular Processing: The United States is capable of continuing to process and resettle at-risk Afghan nationals, even when a physical consular presence is challenging or impossible. The United States must either facilitate entry for Afghans into third countries so that they may complete processing in that third country, or conditionally approve parole applications and allow Afghans to complete their processing once in the United States.[3]
5. Broad Approval of Fee Waivers or a Policy of Waiving Fees: Afghans continue to file for Humanitarian Parole. In the emergency response effort to file applications quickly, Afghans overwhelmingly paid the $575 per person fee to avoid processing delays. We urge USCIS to adopt a policy of waiving all Humanitarian Parole fees, or at a minimum broadly approve fee waivers for Afghan applications. Community resources are better utilized supporting arriving refugees and Afghans abroad directly.
6. Broad Use of Customs and Border Protection (CBP) Parole at Ports of Entry in Tandem with Ongoing Evacuation Efforts: Given that DHS parole authority extends beyond USCIS, we urge the DHS to employ broad discretion to parole Afghans and implement screening mechanisms that will allow CBP to parole those Afghans who may access evacuation pathways. We ask DHS, the State Department, and others to maintain channels for evacuation and safe passage routes for Afghans.
7. Public Information: USCIS must make information about Humanitarian Parole for Afghans more accessible to the public, including regular updates to its website. Applicants applied often at the suggestion of government officials, in the wake of an unfolding humanitarian crisis and by direct consequence of United States foreign policy. They deserve ongoing and frequent updates. We ask USCIS to meet with stakeholders regularly regarding the processing of Humanitarian Parole applications from Afghans.

We urge your offices to address these concerns immediately.

Signed,

Afghan Network for Advocacy and Resources (Project ANAR)
13 Lines LLC
AAG
ACCESS of WNY
Afghan American Church
Afghan-American Community Organization (AACO)
Afghan Coalition
Afghan Evacuation and Resettlement Lawyers (AERL)
Afghan Legal Empowerment Portal
Afghan Refugee Relief
Afghan Refugee Relief and Aid of Michigan
Afghan Scout Relief Fund
Afghans For A Better Tomorrow
AK Poku Law, PLLC
Akin Gump Strauss Hauer & Feld Pro Bono Practice
Al Otro Lado
Aldea - The People's Justice Center
American Immigration Council
American Immigration Lawyers Association New England
American Muslim Empowerment Network (AMEN)
Amnesty International USA
Arizona Justice For Our Neighbors
Arkansas Coalition of Marshallese
ARTogether
Asian Services in Action (ASIA)
Association of Wartime Allies
Azadi Alliance
Berkeley Immigration Group
Berkeley Law Afghanistan Project
Building One Community
Burma Refugee Families & Newcomers
Cal Voices
California Collaborative for Immigrant Justice
Capital Area Immigrants' Rights Coalition (CAIR Coalition)
Catholic Charities NY, Immigrant and Refugee Services
Catholic Legal Immigration Network, Inc.
Catholic Multicultural Center
Causa Justa :: Just Cause
Center for Gender & Refugee Studies
Center for Empowering Refugees and Immigrants
Central Valley Immigrant Integration Collaborative
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Christian Reformed Church Office of Social Justice
Church World Service
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