A Look into the United States Asylum Process for Recent Afghan Evacuees

By Coryn Johnson*

I met the girl with the quiet not-quite-smile in a small building on a military base.[1] Laminate tiles in a dirty-off white made the flooring, coupled by white-paned windows framing cheap glass. The place resembled a one-room schoolhouse built in the 1970s. Did they still build one-room schoolhouses in those days? Desks scattered the room, paired with chairs a bit large for children but too small for most adults to sit in comfortably for any extended period. The calendar read late January, 2022. It was sunny but far below freezing. Light gleamed in through the poorly insulated windows. Still, the many people moving in and out kept the heat packed in tight enough. Most of the visitors[2] carried stacks of paperwork: identification cards, passports if they were lucky,[3] proof of employment with the U.S. government,[4] enrollment in university.[5] Volunteers filled out form after form with names of applicants, present location, the identities of dead family members—a plea for asylum[6] in the United States folded neatly into a document[7] that asks you to check a box if the applicant fears torture[8] upon return to their home country. I checked the box each time.[9]

 

She sat across from me at one of the tables. Her head donned a simple blue scarf, loosely exposing her dark hair, crisp middle part. I’m not sure of her age. Maybe twenty? Young. Blank applications and referral paperwork scattered the space between us. Her application had been filled out months ago, and the two of us sat chatting in those closing afternoon hours. Her English was good, still, she wanted to learn more, to improve. She’d been working as a volunteer translator for the others like herself, the tens of thousands of Afghan nationals that our government had screwed over, who we’d begged for help and then left stranded in the flooded[10] airport gates of Kabul in August of ’21. I saw the footage[11] of people hurling themselves into planes, pleading for a stamped escape.[12] The few who made it out were largely transported from Kabul to Qatar to Germany and now here: Fort McCoy, middle-of-nowhere, Wisconsin-town, U.S.A.

 

She asked me about different verbs in English:

 

Putting your name on paper? // That’s called signing your name, providing your signature. Someone will ask you: sign here.

 

And when you mail these papers to the authorities,[13] what would you call that? // Submitting your application, applying for asylum, something like that.[14]

 

And, when someone points a gun at you and they pull the trigger? What is that? I noted the sharp upper-right corner of the paper before me, pulled my gaze down to the listed names of pro bono attorneys in El Paso.[15] I questioned whether to reveal the shock on my face, most certain I already had. Her not-quite-smile remained. To shoot. I said. Or, if someone shoots you, you would say you’ve been shot or you were shot. Shot is the past tense verb. I flipped the sheet over. No more attorneys.[16] Also, receiving a vaccination[17] in the arm would be called getting a shot. Thinking back now, it’s interesting that one form kills you while the other saves you. I wonder how that came to be.

 

She wrote the word down, completing her tidy little list: sign, submit, shoot.

 

She also described this feeling of deep sadness, of seeing people you love die, of knowing that everyone around you has seen those same things. It always hurts, but you somehow begin to feel it less. The bad things, over and over, and it’s not the bad things themselves, but the feeling that stays. I’m certain the shock painted my face red this time around. I thought back to my own brief stints at attempting to learn French, to the words I had asked for: To buy? // Acheter. Or to look for? // Chercher. My French was always far worse than the English she spoke with me from across the table. And yet, no matter how fluent I could possibly become, I would never think to ask for the words she sought so intently. Trauma, I told her.[18] Trauma, she repeated, nodding. I spelled the word out loud. She added each letter one by one, seemingly no different from the others on her list.

 

Imagine her position: The story begins with eating breakfast in your family’s kitchen. It’s there you first hear the shots fired. Later, you’re in the small airport room—a closet really—all white walls and a stranger asking about the bread you ate that morning. You’re then on a crowded military base, seated across from an American who will only know you for those slim few hours. Months pass and you’re in your attorney’s office—if you’re lucky[19]—describing again the bread, the jam, the gunshots. Later, in the car with your sister, asking if she remembers things just as you do. Again, in your attorney’s office. Again. Again. Months and months later, before the immigration judge. Bread, jam, gunshots. It’s the same during each retelling. Each time you’re back in the kitchen and the shots fire, sometimes softer, sometimes just as loudly. You forget what jam tasted like back home.

 

Of course, this is gross simplification. This is imagination, projection. Please remember that.[20] Still, this is what anyone seeking asylum is asked to do: tell us your trauma, over and over again, let us decide if it’s enough,[21] we who have never experienced the half of it.

 

[1] Following the end of the 2001-2021 war in Afghanistan, large-scale evacuations of Americans, foreign citizens, and Afghan citizens commenced amid the withdrawal of NATO and U.S. forces. Katie Rogers, U.S. Acknowledges Afghanistan Evacuation Should Have Started Sooner, The New York Times, https://www.nytimes.com/2023/04/06/us/politics/evacuations-afghanistan-war-biden.html (Apr. 6, 2023). On August 15, 2021, the NATO-backed Islamic Republic of Afghanistan collapsed and the Taliban seized control of Kabul. Id. The fall of Kabul occurred much sooner than allegedly projected, and the evacuation operations constituted one of the largest airlifts in history. Ellie Kaufman et. al, Pentagon activates US airlines to assist with evacuation efforts from Afghanistan, CNN, https://www.cnn.com/2021/08/22/politics/pentagon-us-airlines-american-delta-united-afghanistan-evacuation/index.html (Aug. 22, 2022). By August 30, 2021, over 122,000 were airlifted from Hamid Karzai International Airport. David Vergun, Force Protection Measures at Kabul Airport Thwart Attacks, General Says, DOD News, Department of Defense, https://www.defense.gov/News/News-Stories/Article/Article/2756863/force-protection-measures-at-kabul-airport-thwart-attacks-general-says/ (Aug. 30, 2021).

[2] Most of the Afghan nationals housed at Fort McCoy had never been to the United States. However, many had previously worked with the U.S. government, marking them as eligible for Special Immigrant Visas. See supra text accompanying note 5. Outside this group, those remaining had little to show in terms of tangible ties to the United States—drastically narrowing their options for long-term stay within the country. Other than the few lottery systems (for example, under INA § 203(c); 8 U.S.C. § 1153(c), in 2024 the United States will allow for the issuance of 55,000 “Diversity Visas” to nationals from “adversely affected” countries through a random lottery system; see Instructions for the 2024 Diversity Immigrant Visa Program, U.S. Department of State, https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2024-Instructions-Translations/DV-2024-Instructions.pdf (last visited Apr. 8, 2023)), refugee or asylum status constitute the only legitimate avenues for immigrating to the United States for individuals without family ties, employment opportunities, or means to economically invest in the United States. See David Weissbrodt, Laura Danielson, & Howard S. Meyers III, Immigration Law and Procedure in a Nutshell 383 (West Academic, 7th ed. 2017).

[3] Afghanistan currently has the world’s weakest passport under the Henley Passport Index, based on poor diplomatic ties with most foreign states following the Taliban’s resumption of power. https://www.henleyglobal.com/passport-index/ranking. Even so, the Taliban has earned tens of millions of dollars in revenue from the sale of passports, as hundreds of thousands of Afghans attempt to leave the country. https://discover.passportindex.org/reports/why-afghanistan-syria-and-iraq-had-the-weakest-passports-in-2022/#:~:text=The%20three%20Middle%20Eastern%20countries,conflicts%20and%20visa%2Doverstay%20risk. Reports cite rampant corruption and bribery, with some Afghans paying eight times the official cost to receive a passport. Id.

[4] Those previously employed in Afghanistan “by, or on behalf of the U.S. government,” or “by the International Security Assistance Force (ISAF), or a successor mission (1) in a capacity that required you to serve as an interpreter or translator for U.S. military personnel while traveling off-base with U.S. military personnel stationed at ISAF, or a successor mission, or (2) to perform sensitive and trusted activities for U.S. military personnel stationed at ISAF, or a successor mission” fall under special immigrant status. See Special Immigrant Visas for Afghans – Who Were Employed by/on Behalf of the U.S. Government, U.S. Department of State, https://travel.state.gov/content/travel/en/us-visas/immigrate/special-immg-visa-afghans-employed-us-gov.html (accessed Apr. 14, 2023). Special immigrants under this category qualify for lawful permanent residence status. Id. In other words, proof of employment with the U.S. government may constitute a ticket to green-card status.

[5] See supra text accompanying note 6 (explaining that educated Afghan women may qualify for asylum under the “membership in a particular social group” category).

[6] To qualify for refugee or asylum status, an individual must show they have suffered past persecution or have a well-founded fear of future persecution in their home country because of their race, religion, nationality, membership in a particular social group, or political opinion. See INA § 101(a)(42); 8 U.S.C. § 1101(a)(42). “The source of the persecution must be the government or forces that the government is unwilling or unable to control.” Singh v. Garland, 48 F.4th 1059, 1067 (9th Cir. 2022) (quoting Canales-Vargas v. Gonzales, 441 F.3d 739, 743 (9th Cir. 2006)).

To establish past persecution or fear of future persecution, the applicant must show the harm they experienced or fear rises to the level of legal persecution. Id. at 1068. Courts have held that repeated physical harm constitutes persecution. See Lopez v. Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004). In contrast, “a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty,” does not meet this threshold. Mikhailevitch v. I.N.S., 146 F.3d 384, 390 (6th Cir. 1998).

Any established persecution must be on account of one of the five enumerated grounds. Many recent Afghans seeking asylum in the United States have done so on account of their political opinions. Still, most Afghan applicants fit more than one of the enumerated grounds for asylum. Members of ethnic minority groups such as the Hazaras fear persecution by the Taliban government on account of their race. Sitarah Mohammadi and Sajjad Askary, Why the Hazara people fear genocide in Afghanistan, Al Jazeera, https://www.aljazeera.com/opinions/2021/10/27/why-the-hazara-people-fear-genocide-in-afghanistan (Oct. 27, 2021). Many Afghan Christians and Shia Muslims fear persecution because of their religion. U.N. expert decries ‘systematic’ attacks on Afghan Shia groups, Al Jazeera, https://www.aljazeera.com/news/2022/9/12/un-expert-decries-systematic-attacks-on-afghan-shia-groups (Sept. 12, 2022); Christians in Extreme Danger in Afghanistan, USCIRF Spotlight, United States Commission on International Religious Freedom (Jan. 28, 2022). Additionally, many Afghan women who received university education apply for asylum on account of their “membership in a particular social group,” in addition to other grounds. That said, the definition of the “particular social group” is disputed and subject to frequent litigation.

[7] The document in question is called an I-589. See supra text accompanying note 17. Please fit your greatest fears and traumas into the space provided. “Have you, your family, or close friends or colleagues ever experienced harm or mistreatment or threats in the past by anyone? If ‘Yes,’ explain in detail[.]” See I-589, Application for Asylum and Withholding of Removal, Department of Homeland Security, U.S. Department of Justice; https://www.uscis.gov/sites/default/files/document/forms/i-589.pdf. “Are you afraid of being subjected to torture in your home country or any other country to which you may be returned? If ‘Yes,’ explain why … describe the nature of torture[.]” Id. This is the affirmative asylum application process.

[8] The United States ratified the Convention Against Torture and Other Cruel, Inhumane or degrading Treatment of Punishment (CAT) in 1994. https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&clang=_en. Article 3 of CAT forbids any signatory country from expelling, returning, or extraditing a person to another country if there are substantial grounds for believing that he would be in danger of being subjected to torture. 8 C.F.R. § 208.18. General violence or human rights violations in a country are insufficient to require relief under CAT. Id. Instead, an applicant must show they would likely face an act that (1) causes severe physical or mental pain and suffering, (2) intentionally inflicted (3) for a proscribed purpose (4) by or with the acquiescence of a government official and (5) not arising from lawful sanctions. See 8 C.F.R. § 208.18(a); In re J-E-, 23 I. & N. Dec. 291 (BIA 2002). This definition is extremely narrow.

[9] Torture by the Taliban is well-documented. See, e.g., Peter Beaumont and Hannah Ellis-Petersen, Afghanistan reports of torture and killing contradict Taliban’s promises, The Guardian, https://www.theguardian.com/world/2021/aug/20/afghanistan-reports-of-torture-and-killing-contradict-taliban-promises (Aug. 21, 2021); Afghanistan: Taliban Torture Civilians in Panjshir, Human Rights Watch, https://www.hrw.org/news/2022/06/10/afghanistan-taliban-torture-civilians-panjshir (June 10, 2022); Afghanistan: Taliban torture and execute Hazaras in targeted attack – new investigation, Amnesty International, https://www.amnesty.org/en/latest/news/2022/09/afghanistan-taliban-torture-and-execute-hazaras-in-targeted-attack-new-investigation/ (Sept. 15, 2022).

[10] This language itself is dangerous. Terms such as “flooding,” “surging,” or “pouring in” create an image of migrants as water, signaling danger. It’s dehumanizing. See generally Bram Frouws, Negative narrative, mistaken metaphors: The need for careful language on migration, Mixed Migration Centre, https://mixedmigration.org/articles/op-ed-negative-narratives-mistaken-metaphors-the-need-for-careful-language-on-migration/ (Mar. 8, 2021); Keith Cunningham-Parmeter, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, 79 Fordham L. Rev. 1545 (2011).

[11] See Luke Harding and Ben Doherty, Kabul airport: footage appears to show Afghans falling from plane after takeoff, The Guardian, https://www.theguardian.com/world/2021/aug/16/kabul-airport-chaos-and-panic-as-afghans-and-foreigners-attempt-to-flee-the-capital (Aug. 16, 2021).

[12] In this case, no one was “stamped.” All came to the United States awaiting legal status that had yet to be determined. The main difference between refugee and asylum status is that the refugee applicant applies from abroad, whereas the asylum applicant applies from within the United States or at its border. See Weissbrodt at 383. None of the Fort McCoy visitors had time to apply via the refugee route. All who qualified thus sought affirmative asylum. Even so, the documentation required for asylum is often hard to gather. Hopeful asylees must submit a valid form of identification, including any passports, other travel or identification documents, and Form I-94, Arrival-Departure Record, if received upon arrival to the United States. See Preparing for Your Affirmative Asylum Interview, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/preparing-for-your-affirmative-asylum-interview (last visited Apr. 8, 2022). In addition, they must provide originals of any birth certificates and marriage certificates, a particularly difficult ask when many applicants left their home countries under stressed or urgent circumstances. Id. And, any documents not in English must be accompanied by a certified translation. Id.

[13] Here, the “authorities” are asylum officers, employed by U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security (DHS) responsible for adjudicating asylum applications. See 8 U.S.C. § 1225.

[14] Applicants for asylum can apply through three general processes: through an asylum merits interview following expedited removal proceedings and a positive credible fear determination, through the defensive asylum process before an immigration judge during removal proceedings, or through the affirmative asylum process. See The Affirmative Asylum Process, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/the-affirmative-asylum-process (last visited Apr. 8, 2022). In other words, applicants for asylum may apply (1) upon arriving in the United States, (2) after arrival, within one year of admission, and (3) during the removal process as a defense to removal from the United States, again, within one year of admission. See Weissbrodt at 390.

In the United States, the affirmative asylum process goes something like this: First, the applicant must physically arrive in the United States. See The Affirmative Asylum Process, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/the-affirmative-asylum-process (last visited Apr. 8, 2022). Second, they must apply for asylum by filing Form I-589, Application for Asylum and for Withholding of Removal. This must be filed within one year of the applicant’s arrival to the United States, unless an extension is granted. See INA § 208(a)(2)(B); 8 U.S.C. § 1158(a)(2)(B). Those previously denied asylum are ineligible (INA § 208(a)(2)(C); 8 U.S.C. § 1158(a)(2)(C)), as are those who can be removed to a safe third country (INA § 208(a)(2)(A); 8 U.S.C. § 1158(a)(2)(A)), or those who have committed certain crimes (INA § 208(b)(2); 8 U.S.C. § 1158(b)(2)). Once U.S. Citizenship and Immigration Services (USCIS) has received the application, it will send the applicant an acknowledgement of receipt and a notice to visit the nearest application support center for fingerprinting. See The Affirmative Asylum Process, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/the-affirmative-asylum-process (last visited Apr. 8, 2022). Third, the applicant must undergo fingerprinting and an intensive background check. Id. Fourth, following a successful background check, the applicant will receive an interview notice from USCIS. Id. Applicants are categorized as either first, second, or third priority in terms of scheduled interview times. Id. Fifth, the applicant must attend their scheduled interview, along with any family members seeking derivative asylum. Id. Applicants are not entitled to attorneys or interpreters. Instead, they should arrange to bring their own. Id., see also Preparing for Your Affirmative Asylum Interview, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/preparing-for-your-affirmative-asylum-interview (last visited Apr. 8, 2022). Interviews typically last around one hour, where the asylum officer will review the required documentation provided by the applicant and ask questions to determine whether the applicant meets the requirements for asylum status. Id. Sixth, the asylum officer will make the asylum status determination. Id. The applicant “must meet the definition of a refugee in order to be eligible for asylum. The asylum officer will determine whether [the applicant]: [is] eligible to apply for asylum; [m]eet[s] the definition of a refugee in section 101(a)(42)(A) of the INA; and [is] barred from being granted asylum under section 208(b)(2) of the INA.” Id. Following this determination, “[a] supervisory asylum officer [will review[] the asylum officer’s decision to ensure it is consistent with the law. Depending on the case, the supervisory asylum officer may refer the decision to asylum division staff at USCIS headquarters for additional review.” Id. Finally, the applicant will receive the decision. Id. Typically, they are required to return to the asylum office in-person two weeks following their interview to pick up the decision. Id.

[15] Many of the applicants I worked with were eventually moving to Texas, some to D.C., and others still scattered across the remaining regions. In total, over 83,000 people arrived in the U.S. as part of an operation dubbed Allies Welcome by the U.S. Department of Homeland Security. However, the arrival of so many people at once—of which nearly all are seeking asylum—has overwhelmed the already over-burdened immigration system. Most asylum seekers cannot afford typical attorney’s fees, and there is no guaranteed right to counsel for asylum applicants. As a result, they must seek counsel through pro bono attorneys operating mainly through nonprofits or law school clinics. The demand far outweighs the supply.

It may take years before Afghan nationals can secure permanent resident status in the United States. 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. However, this proposed path to citizenship, referred to as the Afghan Adjustment Act, has failed to make headway in the current Congress. Marco Poggio, 83,000 Afghans Made it to the U.S. Now They Need Lawyers, Law 360, https://www.law360.com/articles/1462197/83-000-afghans-made-it-to-the-us-now-they-need-lawyers?copied=1 (Feb. 6, 2022).

[16] There are never enough qualified attorneys to work on asylum cases. Additionally, case backlogs can trap applicants in limbo for months and often years. See Muzaffar Chishti and Julia Gelatt, Mounting Backlogs Undermine U.S. Immigration System and Impede Biden Policy Changes, Migration Policy Institute, https://www.migrationpolicy.org/article/us-immigration-backlogs-mounting-undermine-biden (Feb. 22, 2023) (“The immigration court backlog now tops 1.6 million cases, up from 1.1 million before the pandemic and more than double the caseload that existed in fiscal year (FY) 2018. At USCIS, the backlog has surged from 5.7 million applications at the end of FY 2019 to about 9.5 million as of February. And at the State Department, waits for in-person consular interviews for immigrant visas rose to a high of 532,000 last July, up from an average 60,900 in 2019 before the pandemic.”).

[17] A noncitizen who seeks admission as an immigrant, including under asylum status, who fails to show proof of vaccination against vaccine-preventable diseases is inadmissible and therefore ineligible for admission or adjustment of status. INA § (a)(1)(A)(ii).

[18] I didn’t get into the difference between trauma and post-traumatic stress disorder. I’m not equipped for that. This weakness on my part, even as a law student, points to a major underlying problem with the asylum process: many lawyers are not sufficiently trained to work with victims of trauma, and the asylum process itself is re-traumatizing. See Katrin Schock, Rita Rosner, and Christine Knaevelsrud, Impact of asylum interviews on the mental health of traumatized asylum seeker, European J. of Psychotraumatology (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4558273/pdf/EJPT-6-26286.pdf. Even with the growing movement toward trauma-informed lawyering, the asylum process is embedded with triggers, from the repeated questioning of applicants to the cross-examination format of credible fear interviews that each applicant must complete. See Ann E. Webb, Robbin E. Gearing, Hope W. Baker, Trauma-Informed Lawyering in The Asylum Process: Engagement and Practice in Immigration Law, 4 J. Mental Health Soc. Behavior 171 (2022), https://doi.org/10.33790/jmhsb1100171 (“By the very nature of the process, the person applying for asylum must repeatedly recount their past persecution or fear of future persecution to prove credibility and eligibility for asylum. During the first processing encounter with a customs and border protection officer, the individual is asked whether they are afraid to return to their home country. Following that initial encounter, which is transcribed and becomes part of the individual’s record, the asylum seeker then participates in a credible fear interview, in which they again are asked about fear of return and the details of the alleged persecution. The credible fear interview is also recorded or transcribed and becomes part of the record. If the individual receives a positive credible fear hearing, the next step in the process is finding a lawyer to assist with the merits of their asylum claim, which may involve telling their story to several different individuals or agencies before finding a lawyer who will take the claim. The individual then needs to recount their story to the lawyer, and possibly to a legal assistant or investigator. Because of the need to create a paper record, the individual will typically have to tell their story a number of times to the attorney or the attorney’s staff members in order to create a sworn declaration. The individual then goes to court where the story must again be repeated to the immigration judge.”).

[19] See supra text accompanying note 15.

[20] You must also take note: This isn’t her identity. The girl across the table is more than the trauma she’s retold over and over again. Really, she’s just a person.

[21] Even if found to be credible, the asylum applicant’s trauma may not be considered “enough” to count as legal persecution. See, e.g., Dandan v. Ashcroft, 339 F.3d 567, 574 (7th Cir. 2003) (“While it is distasteful to have to quantify suffering for the purposes of determining asylum eligibility, that is our task.”); see also Abdelmalek v. Mukasey, 540 F.3d 19, 23 (1st Cir. 2008) (“It is never a pleasant task to attempt to quantify an individual’s suffering and measure it against the suffering of others.”).

* Coryn Johnson is a staffer for JLI Vol. 41.