I wrote last time about recent updates from the Asylum Division. Here, I want to focus on one element of those updates: How the Asylum Offices are dealing with asylum applications from Afghan evacuees.
Since Afghanistan fell to the Taliban in August 2021, about 88,000 Afghans have been evacuated by the U.S. government and brought to our country. These are generally people who cooperated or worked with the United States or the prior Afghan government, plus their immediate family members. These Afghans would be at risk of harm or death in their country due to their affiliation with the United States or the prior government of Afghanistan.
Ideally, we would have brought these people here and given them permanent status, so they could feel stable and safe, and so they could start rebuilding their lives. Unfortunately, that is not what happened. A bill to regularize the status of Afghan evacuees–the Afghan Adjustment Act–has stalled in Congress, and so the evacuees are left in limbo, not knowing whether they can stay or whether they will have to leave. As a result, many evacuees have no other option but to seek asylum. This situation is absurd and insulting, and–adding injury to insult–the Asylum Offices are mishandling the Afghan’s applications. (more…)
Even before the Taliban took control of Afghanistan, that country was suffering a humanitarian disaster. In 2020, about 2.5 million Afghans were living outside their country as refugees; another 3.5 million were displaced within Afghanistan. In August 2021, the Taliban occupied Kabul, which triggered one of the largest air evacuations in history–over 124,000 people were flown out of Hamid Karzai International Airport.
Where all these people will go remains an open questions. As usual, Afghanistan’s neighbors are hosting the large majority of refugees, with more than 1.4 million in Pakistan and about 780,000 in Iran. Significant numbers of people are also in Europe and Turkey.
The United States is also accepting Afghans, and we are currently in the process of receiving about 50,000 people for permanent resettlement. Given our long involvement in Afghanistan, and that many Afghans relied on us and assisted our efforts, it seems only right that we protect those in need. The problem (or, more accurately, one problem) is that for most Afghan evacuees, there is no legal mechanism for them to remain permanently in the U.S., and so their legal status in our country is uncertain. (more…)
This week I attended an asylum interview for my Afghan client. He was a high-ranking government worker and a member of a secular political party. His daughters were educated and one of his sons was a diplomat. Because my client worked for the government and educated his daughters, he and his family became targets for the Taliban. They kidnapped and brutally murdered my client’s young son. They kidnapped a second son and held him for over two years, until he was finally freed during a military operation. That son has not been the same mentally or physically since his return. A third son was severely injured in a Taliban suicide bombing. In addition, a Taliban soldier beat up my client’s wife and repeatedly threatened my client and members of his family. During our practice session, my client’s wife sat nearby weeping as her husband recited their family’s story. As of this writing, my client has not been able to contact his adult daughters in Afghanistan, and he fears they could be subject to forced Taliban marriages or worse.
The Taliban takeover of Afghanistan happened more quickly than anyone predicted, but perhaps this result was inevitable. Or perhaps not. As we hear from all the Monday-morning quarterbacks about what should have happened, I notice that the voices of one important group are largely missing–the Afghan people themselves. We heard little or nothing from them when we invaded Afghanistan in 2001, as we shifted strategies and generals over the intervening years and decades, and during the draw-down that has been on-going for I-don’t-know-how-long. Why is it that we seem never to hear from the Afghan people? (more…)
Last week, two new clients hired me. Each told me a story that ranks among the worst I’ve heard since I’ve been practicing asylum law.
Having a positive attitude is half the battle.
The first was an Iraqi grandmother. Her son worked for an international NGO and the family had received threats because of the son’s work. One day, armed militiamen pulled the son from his car, and shot him to death in front of my client, her daughter-in-law (the son’s wife), and the son’s infant child. Later, the militia bombed my client’s house and killed her elderly mother. Years before, my client lost her husband, when he was killed in a bombing raid during the Iran-Iraq War. My client’s relative/translator explained, “This is Iraq.”
The second client was from Afghanistan, and his story was not directly related to his current asylum claim. He told me that 20 years ago, he was going to a party at his relatives’ house. For some reason, he was delayed, and before he arrived, the house was hit by a missile. He reached the scene moments later, and witnessed horrific carnage (I will spare you the details he told me). Suffice it to say, he saw many relatives and friends dead and dying. At the time, he was a teenager, and what he saw sent him into shock. He was physically unable to offer assistance, and he had to be carried back to his home. Relating the story many years later, he told me how the scene was still perfectly clear in his memory.
One thing that both clients have in common is that they laughed nervously and smiled while telling me their stories.
It seems to me that laughing and smiling in response to these stories is a very human reaction. Perhaps the normal emotions–anger, grief, shock–are simply inadequate to the task of recalling and relating such events. Or maybe my clients’ embarrassed smiles are almost an apology for having to talk about such terrible stories. There probably is no appropriate affect for telling personal stories of senseless violence and life-changing horror, and so maybe the default demeanor is a shy smile or a nervous laugh.
Of course, as an immigration lawyer, I am concerned that an “inappropriate” smile or laugh might create the impression that my clients are not credible. Although they have often reacted this way during our practice sessions, my clients seldom laugh or smile during actual trials or asylum interviews. And even if a client did show an “inappropriate” emotion, I suspect that most decision makers would see the reaction for what it was, and I doubt credibility would be negatively impacted.
I also sometimes wonder about how these stories affect the people that hear them. One study I found about secondary trauma in asylum lawyers found that lawyers were at some risk of secondary trauma, and the risk increased with the amount of time the lawyers worked on asylum cases. Another study, which originally appeared in the Georgetown Immigration Law Journal (where I once served as a Senior Notes and Comments Editor), found that Immigration Judges suffered from secondary trauma and “more burnout than has been reported by groups like prison wardens or physicians in busy hospitals.”
I’ve always been a bit skeptical that people in my line of work (or me specifically) suffer from secondary trauma. The difficulty for me comes not from hearing the clients’ stories (which can be upsetting), but rather from overwork. Too many clients expect too much, too quickly. Maybe hearing terrible stories and working with people who have experience real trauma has an effect on us, but it is very hard–for me at least–to see this effect.
But of course, like my clients who laugh when they tell me their stories, I have my own ways of coping with stress. In my first job out of college, I helped find work for recently resettled refugees. Everywhere I went, I asked about employment opportunities. Finally, I decided that I could not continue that way. There was a time for work, and a time for not working. If you can’t separate the two, you ultimately won’t be successful at either. Although it is more difficult now, with my own business, I still try to keep that separation. With that said, I’m off to the pub to do some more coping. Cheers.
An Afghan woman who was under investigation for filing a false asylum claim was found dead last month in an apparent suicide. Gulalay Bahawdory, 60, grew up in Afghanistan and lived in Europe before coming to the United States and applying for asylum in 2000.
In her asylum application, Ms. Bahawdory apparently used a fake name. Her husband, Bashir Bahawdory, also a former refugee from Afghanistan, states that she left the United States before receiving a decision in her case. But ICE says that her case was denied and she was ordered removed from the U.S. in April 2001. Both the husband and ICE could be correct: Perhaps she left before a decision was reached, and then an IJ ordered her removed in absentia.
In 2004, Ms. Bahawdory returned to the United States based on a marriage petition filed by her husband. She became a U.S. citizen in 2009.
According to the Taliban, these girls are committing a serious crime.
Ms. Bahawdory lived in Raleigh, North Carolina. It sounds like she had a good life there with her husband and her adult step children, who thought of her as a best friend.
For some reason, ICE began investigating her case earlier this year. After the investigation began, Ms. Bahawdory thought of little else, her husband said. She feared that if she were deported to Afghanistan, she would be harmed or killed by the Taliban or other extremists.
According to an ICE spokesperson, “Mrs. Bahawdory’s prior removal from the United States was discovered when ICE ran the fingerprints she provided for the spousal petition.” ICE did not say when or why they checked the fingerprints or why it only began investigating her citizenship this year. Also, no word on why this discrepancy was not discovered earlier. (After all, what’s the point of taking fingerprints if they don’t reveal issues like this at the time of the application?)
Last month, Ms. Bahawdory’s body was found in a lake in north Raleigh. Police found her car nearby. In the car, there were three notes. One was to her husband, stating that she loved him and knew what she had done was wrong. She wrote a second note to her attorney, thanking her for doing what she could to help. The third letter was left for the Raleigh police. “I love the United States,” Ms. Bahawdory wrote. “God bless the United States.”
Whatever the cause of death, this is clearly a tragic case. If, as it appears, Ms. Bahawdory committed suicide for fear of deportation to Afghanistan, her death is doubly tragic. For one thing, having already attained U.S. citizenship, it is not easy for the U.S. government to revoke that citizenship. Remember John Demjanjuk? He was a naturalized U.S. citizen who was convicted of accessory to murder of 27,900 Jews during World War II. Despite his horrific crimes, it took over 30 years to finally de-naturalize and deport him. If it took 30 years for a criminal like Mr. Demjanjuk, how long would it have taken for Ms. Bahawdory?
Also, even if her citizenship were revoked, Ms. Bahawdory had several defenses to removal: She could have sought asylum (or lesser forms of humanitarian relief like Withholding of Removal or Torture Convention relief); She might have been eligible for a waiver for the immigration fraud; She might have been eligible for Cancellation of Removal. In addition, even if she were denied all relief, she could have asked for deferral of removal based on humanitarian grounds. She certainly would have presented a sympathetic case given her age, her home country, her family ties to the U.S., and (as far as I know) her otherwise clean record.
I can certainly understand why someone–especially a woman from a country like Afghanistan–would feel tremendous stress if she felt she would be deported to her homeland. But Ms. Bahawdory was a long way from being deported. If she really did commit suicide because she feared deportation, this is a tragedy that should never have happened.
Aesha Mohammadzai, the Afghan woman who was featured on the cover of Time magazine after relatives cut off her nose and ears, appears in a new CNN on-line piece called Saving Aesha.
Aesha Mohammadzai: The face that launched a thousands quips.
When she was 12 years old, Aesha’s father promised her to a Taliban fighter in order to satisfy an obligation. Not surprisingly, the marriage was abusive and when she was 18, Aesha fled. She was captured and returned to her husband’s family. As punishment for attempting to escape, her husband’s family cut off her nose and ears, and left her to die. Aid workers and the U.S. military rescued her, and she was brought to a shelter run by Women for Afghan Women.
Although generally protective of Aesha’s privacy, WAW ultimately brought her case to the attention of Time magazine. As CNN reports:
The organization’s decision to allow Time to photograph Aesha in 2010 was calculated and deliberate. The group wanted to influence the conversation about U.S. troop withdrawals, and Aesha was its best chance. She became the poster child for the 15 million Afghan women and girls it fears will be brought to their knees, again, if troops leave too soon and the Taliban regain control.
Possibly due to the publicity surrounding her case, she was able to come to the U.S. for reconstructive surgery. But Aesha did not adjust well to the United States. She was still suffering from severe mental and emotional trauma, and her reconstructive surgery had to be postponed due to her fragile emotional state. Women for Afghan Women took over her care and provide her with housing and volunteer tutors.
Perhaps due to her emotional condition, it seems Aesha was a difficult charge. She constantly threw fits, and one roommate after another fled her apartment. At one point, she was hospitalized for 10 days. After that incident, her medications were changed and she started doing better.
CNN reports that in late 2010, Aesha’s father-in-law was arrested for his role in her mutilation:
Authorities said he held Aesha at gunpoint and ordered five other men — including her husband — to cut her. The father-in-law was released last July, however, reportedly because he didn’t do the cutting himself and because Aesha is no longer around to pursue the case.
Aesha received asylum in the United States in November 2011. Although I was unable to find information about the basis for her asylum, there are a number of possible grounds: The claim could have been based on her particular social group–one formulation for this claim might be women who fear persecution in Afghanistan based on resistance to forced marriage. Also, she might have framed the claim in terms of religious persecution–her family members harmed her because she would not comply with their version of Islam. In addition, since she claims her husband in the forced marriage was a Taliban, she might have a fear of persecution based on imputed political opinion after her case became public and she moved to the U.S. Obviously, the government of Afghanistan is unable and unwilling to protect her.
Aesha’s case illustrates several important points. First, refugees are often very damaged people. Aesha is much worse off than most refugees, but people who flee persecution, who have been injured, who have lost loved ones, and who have lost their homes and property often have mental health issues. Such people may be difficult to deal with, and those who assist refugees must be patient and understanding. For me, at least, it is not always easy to be patient with difficult clients, especially when I am under pressure from several cases at once. I imagine this is true for many people assisting refugees.
A second point involves media coverage. According to CNN, Women for Afghan Women made a decision to publicize Aesha’s case in order to influence the debate about American troops in Afghanistan. Given Aesha’s fragile condition, it is unclear whether she had the capacity to understand the effect of going public, even if she did give consent (which is not clear from the CNN article). Lawyers and their clients sometimes have diverging interests, particularly when there is an opportunity for publicity. Most lawyer want publicity, but most clients prefer anonymity. I doubt that WAW had a fiduciary duty to Aesha when they publicized the case, but they certainly had a moral responsibility. If the CNN article is accurate, it raises serious issues about WAW’s decision to publicize Aesha’s case.
A final point raised by Aesha’s case is that women are often ill-served by our asylum law. Many female asylum seekers fear persecution based on forced marriage, FGM, domestic violence, and the like. But these issues do not fit neatly into the protected categories for asylum (race, religion, nationality, political opinion, and particular social group). Fortunately, enterprising lawyers (and judges) have broadened the basis for asylum to protect women from some of these harms. Wouldn’t it be nice, though, if the Refugee Convention specifically recognized these types of harms?
Aesha’s case illustrates how complicated and difficult it can be to assist a refugee and help her rebuild her life. In this process, asylum is often only a first step.
"I'm still waiting for a decision in my asylum case."
As conditions in Afghanistan have deteriorated, I find myself representing increasing numbers of Afghan asylum seekers. Many are young men who have worked with the United States military. Others are journalists or other media types who have appeared on television in Afghanistan. Still others worked for human rights groups and women’s rights groups.
One thing that my clients have in common is that they are all trying to bring about peaceful, democratic changes to their country. As a result of their activities, my clients faced threats from the Taliban. A number of my clients were attacked, and some had close relatives killed by the Taliban. Because the Afghan government cannot (and in some cases will not) protect them, my clients are seeking asylum in the U.S.
Another thing my Afghan clients have in common is that their cases are being held up for “security” checks. I’ll explain below why I put the word security in quotation marks.
But first, a bit of background: The majority of aliens who file affirmative asylum cases receive a decision two weeks after their interview. Apparently, cases with Afghan asylum seekers are reviewed by headquarters. This takes a lot longer than two weeks. So far this year, I have been to 11 asylum interviews: five from Afghanistan, six from other countries (five from Ethiopia and one from Iran). All five of the Afghan cases are still pending. Of the other six, we have decisions in all cases except one (the Iranian case). In my longest-pending Afghan asylum case, the applicant was interviewed more than seven months ago; we are still waiting for a decision.
According to an Asylum Officer I spoke to, the reason for the delay has to do with “security.” Obviously, there are legitimate concerns about people coming from Afghanistan and seeking asylum in the U.S. But there are several reasons why I am skeptical about these “security” checks. For one, many of my Afghan clients worked closely with the U.S. military, and they have letters, certificates, and photos (often with high-ranking military and civilian officials, including some who were photographed with President Bush) to prove it. Such individuals have already been subject to some pretty serious scrutiny, so it is not clear what additional checks are necessary. Second, all the Afghan asylum seekers were screened for security issues in Afghanistan before they received their U.S. visas. Since nothing suspicious was found in Afghanistan, it seems unlikely (at best) that anything would turn up during an additional security background check in the United States. Finally, my clients are currently in the United States. If they are dangerous, they should not be walking freely around our country for six months (or more) while USCIS checks to see whether they pose a security risk. If USCIS believed that a particular asylum seeker presented a threat, I image (and I hope) that they would detain the person immediately.
A number of my clients have family members in Afghanistan who are hoping to join their relative in the United States if asylum is approved. Some of these people are living in precarious circumstances and face threats from the Taliban. It is frustrating and frightening for my clients and their family members when they have no idea how long until they will receive a decision. It is not fair to keep people waiting in limbo. I hope that USCIS will consider improving the processing time for Afghan cases. If they cannot do that, I hope they will at least provide an estimate to the asylum seekers about how long a decision will take. Treating asylum seekers with respect and dignity means processing cases as quickly as possible and being as open about the waiting time as circumstances allow.
The Washington Post recently reported on a sharp spike in asylum seekers coming from Afghanistan. The increase corresponds with the U.S. troop surge, and a feeling in the country that a peaceful future is no longer possible.
Sometimes "flight" is wiser than "fight."
The number of Afghan asylum seekers has surpassed the number of people fleeing Iraq and Somalia, making Afghanistan the leading producer of asylum seekers in the world. In 2009, 27,057 Afghans sought official protection in foreign nations. The numbers are expected to be somewhat lower for 2010, but Afghanistan will remain the largest source of asylum seekers in the world. According to the Washington Post:
The vast majority of the refugees are young men in their teens, 20s and 30s, often well educated and with the financial means to pay $20,000 or more to human smugglers for passports and visas to Pakistan or Iran, then on to Europe, Australia, Canada or the United States.
Because of the difficulty in coming here, the United States received only about 113 Afghan asylum seekers in FY 2010.
In my own practice (in Washington, DC), during the last two years, I have seen an increase in asylum cases from Afghanistan. My firm filed 12 or 13 Afghan asylum cases in 2010 (so I suppose I represented about 10% of all Afghan asylum applicants in the United States for the year). About 2/3 of my clients were men, and most of them were young, fluent in English, and very well educated. Most of my male clients were journalists or somehow involved with the media. Others were working closely with the U.S. military. My female clients were women’s rights activists or “Westernized” students (or both). All the cases that I worked on so far have been successful, which reflects the Asylum Office’s view that the situation in Afghanistan is dangerous (and hopefully also that we are doing a good job).
I feel that my clients face a dangerous–and often life threatening–situation in Afghanistan. Several of them have had relatives murdered by the Taliban. However, I can’t help but think that Afghanistan is worse off without these well-educated and committed men and women. Before they left, they were contributing in important ways to the development of the country, and they were working against extremism. Unfortunately, it is just such people who are targeted by the Taliban. Indeed, these are the types of people that every repressive regime targets (the most well-known examples are the scientists, academics, and artists who fled from the Nazis).
Like many refugees before them, the Afghanis I represent have made a decision to leave families, friends, and promising careers to seek safety in the West. While I feel sad that Afghanistan is losing so many talented individuals, I respect their choice to leave. And while I hope the situation in their country improves, I am proud that our country offers protection to those Afghanis who need our assistance.
The website Wikileaks, which exists to make public “sensitive material,” recently published the Afghan War Diary, a collection of 75,000 classified documents from the U.S. military detailing ground-level operations in Afghanistan. Among the information released are names and villages of Afghanis who assisted the United States. Now, Newsweek magazine reports that a Taliban spokesman has threatened vengeance against the exposed “collaborators.” A few days after Wikileaks published the documents, numerous tribal elders received threatening letters. One elder was murdered. The magazine reports:
The frightening combination of the Taliban spokesman’s threat, [Tribal Elder] Abdullah’s death, and the spate of letters has sparked a panic among many Afghans who have worked closely with coalition forces in the past…. [There are] reports of Afghans rushing to U.S. and coalition bases in southern and eastern Afghanistan over the past few days, seeking protection and even asking for political asylum.
(To be fair to Wikileaks, there is a debate about whether the leaked documents have made any difference. Some argue that the Taliban already know the “collaborators.” Wikileaks has confidential U.S. documents, but not confidential Taliban documents, so Wikileaks does not know whether the Taliban was aware of all the collaborators listed in the exposed documents. Given this lack of knowledge, it seems to me that the failure to redact the Afghani names from the leaked documents was incredibly irresponsible.)
A Taliban fighter checks out Wikileaks.
What then can be done about Afghanis who have been “outed” by Wikileaks? One possibility is the Afghan Allies Protection Act, which authorizes 1,500 visa each year for Afghanis “who have been employed by or on behalf of the United States Government in Afghanistan on or after October 7, 2001, for a period of not less than one year, and who have experienced or are experiencing an ongoing serious threat as a consequence of that employment.” Whether the people named in the Wikileak documents were employed by or on behalf of the U.S. government for at least one year is an open question. If not, this law will not help them.
If it turns out that the Taliban’s threats are serious, Congress should consider amending the law to permit endangered Afghanis to come to the U.S., at least temporarily, even if they do not satisfy all the requirements of the Afghan Allies Protection Act. It’s good policy to show our allies that we protect them, especially when they were endangered by our own security failing. More than that, protecting such people is the right thing to do.
