Washington Lawyer - November/December 2021 - 29

FEATURE
The resulting chorus of criticism focused on the execution of the
military's withdrawal and evacuation, but for those with personal and
professional involvement in Afghanistan, the chaos was not surprising.
The Taliban takeover of Afghanistan also laid bare the magnitude of the
unfolding crisis and a U.S. immigration system buckling under the strain
of a mass evacuation into the United States not seen since Vietnam.
As of September, more than 31,000 Afghans have entered the United
States, while more than 40,000 were awaiting processing and security
vetting at U.S. military bases in Europe and the Middle East. Among the
evacuees were some of the 18,000 Special Immigrant Visa (SIV) applicants
who were facing Taliban retribution for their work supporting the
U.S. military, but tens of thousands who potentially could qualify for the
visa have been left behind in Afghanistan.
Since 2018 the American Legion, the nation's largest wartime veterans
service organization, has advocated for the expedited extraction of
translators and other workers who
assisted U.S. military efforts in
Afghanistan. Lawrence Montreuil, the
organization's legal director, has firsthand
experience of the long, complex, and
daunting SIV process while serving as
Afghan National Army advisor, with interpreters
working at his side.
" When I was in Afghanistan trying to get
an answer from the State Department in
Kabul on the status of somebody's SIV, it
was nearly impossible, so I can only
imagine the difficulty experienced by
those Afghans who are there now trying
to get an answer or who have over the
past year been trying to get an answer, "
Montreuil says.
Immediately following Biden's announcement
of troop withdrawal from Afghanistan,
Montreuil says the American
Legion met with White House and
National Security Council officials to
advocate for an increased commitment
to those who had assisted the U.S.
military forces. Operation Allies Refuge
was set into motion in July, " but unfortunately in our opinion the plan
was underdeveloped and not enough resources were allocated to
ensure the extraction of all those who assisted us in Afghanistan, "
Montreuil says.
Long processing times have been, and continue to be, a major obstacle
for those applying to resettle in the United States through the SIV
program. A 2013 amendment to the Afghan Allies Protection Act requires
the State Department to complete case processing within nine months,
but according to a June 2020 State/Homeland Security Department
report, 63 percent of the outstanding Afghan SIV applications had been
pending administrative processing for 500 or more days, and the average
processing time was 852 days. The report gives several explanations
for the long processing time, including low program staffing, high
caseload volume, the need for background checks, and COVID-19
disruptions.
The Afghan Allies
Protection Act requires the
State Department to complete
case processing within nine
Afghan SIV applications had
been pending for 500 or
more days.
months, but a June report shows
63 percent of outstanding
UNCLEAR LEGAL PATH AHEAD
Those familiar with the U.S. immigration system are unlikely to be surprised
by the long wait, but immigration attorneys like Allen Orr, president
of the American Immigration Lawyers Association, have little
patience for the excuses on processing
delays.
" Someone says to me as an immigration
attorney, 'Well, it's about money . . . We
don't have the money for that.' [But] we
have the money for Mars; we have the
money for war. How do we not have the
money to make sure these people are relegated
the right way? " Orr says.
" As an immigration practitioner, you can't
explain to me why it takes two years. It is
the function of being at a club that's
empty and they just have a line for the
sake of making people think there's something
going on inside. "
Evacuated Afghans face a long, uncertain
immigration journey ahead. Those who
were not employed on behalf of the U.S.
military may qualify for refugee or asylee
status. President Biden raised the ceiling on
refugee admissions to 62,500 for fiscal year
2021, from 15,000 in 2020 under Trump, the
lowest number since the Refugee Act of
1980 went into effect. Apart from the
The SIV program, along with the Afghan Allies Protection Act, has been
rife with problems since its inception in 2009, according to Montreuil. " It's
been under-resourced and not a lot of emphasis has been placed on it.
It's been mismanaged, " he says. " This is a manifestation of years of
neglect across successive administrations. "
There have been incremental improvements to the SIV program since its
creation. Initially, the program provided for the issuance of 1,500 SIVs a
year, and that limit has been increased over time. In 2021 Congress
passed the Emergency Security Supplemental Appropriations Act authorizing
8,000 additional SIVs, for a total allocation of 34,500 visas.
limited availability of visas, which has resulted in substantial backlogs, it
typically takes two years just to process an application for refugee status.
" It's a management problem. It's a desire problem. If the will was there to
get it done, we would get it done, " Orr says, pointing out that one could
get an associate degree faster than a visa.
Orr and others cite the Indochina Migration and Refugee Assistance
Act, which facilitated the resettlement of approximately 130,000
Vietnamese, Laotian, and Cambodian refugees at the end of the Vietnam
conflict in 1975, as an example of the United States' experience handling
a large refugee crisis. Operation Frequent Wind airlifted thousands of
refugees out of Vietnam over the course of two days, bringing them
mainly to Guam, where they were processed prior to parole into the
United States.
NOVEMBER/DECEMBER 2021
* WASHINGTON LAWYER 29
Washington Lawyer - November/December 2021

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