Afghan Allies Face New Challenges

By Michelle Swearingen, Legal Advocate

Asylum is the primary pathway for protection for those fleeing their home countries due to persecution. Asylum can be accessed through two separate processes - the affirmative process and the defensive process. The application is the same for both (Form I-589), but the circumstances under which the applications are adjudicated are significantly different. Defensive asylum is applied for during a removal proceeding, while affirmative asylum-seekers have not yet begun the deportation process.

We are now seeing Afghan immigrants who entered the United States through the Southern Border in removal proceedings. Many of those could not access the evacuation in the Fall of 2021 fled to neighboring countries or applied for humanitarian parole, SIV, or referrals to the U.S. refugee system. Unfortunately, most Afghans who attempted these alternative paths to evacuation were met with delays and denials. According to a recent American Immigration Council report, less than 0.3% of Afghan humanitarian parole applications were approved as of April 2022. Desperate, and left with no other option, thousands of Afghans are now getting temporary humanitarian visas to go to Brazil and are making the journey from South America to the United States to find safety for their families and apply for asylum through the defensive process.

We are so thankful for the way communities in Northern Virginia have responded to the thousands of families who have been forced to flee Afghanistan following the fall of their country's government to the Taliban. The way individuals have walked faithfully into holistic caring of this group of vulnerable individuals mirrors the early church's care for the sick, the orphan, and the vulnerable. RILA grew out of a similar desire to connect the people of God with the needs of the world, as embodied by our asylum-seeking neighbors. Our model has always been to focus on those we believe to be the most vulnerable and with the fewest resources. Unfortunately, those who are the most vulnerable and with the fewest resources require the most intensive care. These are most often individuals seeking defensive asylum -- those who are less-resourced and who are following the only pathway available to them. 

This second wave of Afghans has experienced the same trauma as their peers who were evacuated in August of 2021 and brought to the United States with parole status -- losing their country and enduring threats and attacks from the Taliban. But those crossing the Southern Border have faced the additional trauma of months in hiding in Afghanistan and neighboring countries, detention in airports and at the border, and arduous journeys across several continents. These Afghans are facing the same cruel reality as many of our Central American clients fleeing gangs and gender-based violence. The only lawful process for them to seek asylum is through the Immigration Court. They are guilty until proven innocent. They aren't provided work permits or housing stipends while they apply for asylum. They are vulnerable to economic exploitation, to dishonest attorneys, and to an overwhelmingly complex legal system.

The defensive asylum process all but requires full legal representation for success. Whereas affirmative asylum cases involve presenting the case before U.S. Citizenship and Immigration Services (USCIS), defensive cases go through Immigration Court in an adversarial process with the Department of Homeland Security’s attorney serving as opposing counsel to the asylum seeker. Defensive cases involve both a Master Calendar Hearing to assess the status of the case as well as an Individual Merits Hearing where both the government and the asylum-seeker outline their arguments and present testimony from witnesses. Each defensive case requires extensive hours to collect evidence, draft the legal brief and prepare the asylum seeker and any witnesses. Representation is a critical piece of the process of securing safety for defensive asylum seekers. Our prayer is that RILA will continue to partner with our community to care for the most vulnerable among us.