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Afghans Allege Delays In Asylum Apps Under Biden Program

In this article for Law360, partner Mike Williams discussed his team's pro bono efforts in the U.S. District Court for the Northern District of California to address the adjudication of Afghan asylum applications. The team also includes partner Edward Hillenbrand and associates Joseph D'Antonio, Morgan Lily Phoenix, Michael Quinn and Sanjay Nevrekar.

Seven Afghans who came to the U.S. as part of a Biden administration resettlement effort accused the administration of asylum application processing delays, telling a California federal court they have less than five months before their temporary immigration status expires.

The Afghans, some of who had worked for the U.S. military in Afghanistan before the U.S. withdrew from the country, said in a class action filed Wednesday that while the Biden administration had recognized the importance of protecting and supporting Afghan allies in launching the expedited resettlement effort called Operation Allies Welcome in August 2021, only 11% of asylum applications under the program have been adjudicated.

The rest, the Afghans said, are stuck in a state of limbo as their two-year humanitarian parole period granted under the program approaches an August expiration date.

"It is essential that the U.S. government timely adjudicate the asylum applications of Plaintiffs and other Afghan people who cannot safely live under Taliban rule and require a path to citizenship to start fresh in the United States," the Afghans said.

Congress had required the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services to expeditiously process asylum applications for Afghans under the program within 150 days, which is 30 days faster than the timeline for processing other asylum claims, according to the class action complaint.

The Afghans — who are represented pro bono by attorneys at Kirkland & Ellis LLP and the National Immigration Justice Center — said that until USCIS processes their applications, they and other class members are shut out from bringing their spouses and children to the U.S. from Afghanistan, where they too face ongoing and serious danger from the Taliban.

The Taliban has already searched the current and former homes of spouses and children of two of the seven Afghans, according to their complaint.

Another plaintiff's uncle was captured and imprisoned by the Taliban in April 2022 in retaliation for his work as a "public doctor" and for being affiliated with the U.S. military.

"The Taliban searched Plaintiff Fatima's family house, looking for anything proving that her family worked with the United States, the Afghan National Army, or the Afghan government," the Afghans said. "Fatima's family members only survived this encounter because they had previously burned everything that showed their connection to the U.S. Army and its allies."

Furthermore, once their parole expires, they said many will lose access to federal benefits like Social Security and Medicaid and will be forced to rely on an "inconsistent hodgepodge" of state benefits or give into economic insecurity.

Students, they said, will also risk not getting federal financial aid for their postsecondary education. One of the plaintiffs has applied for federal financial aid to continue attending university in Illinois, according to the complaint.

"Absent prompt adjudication of their applications, evacuated people now enrolled in U.S. universities will face severe economic hardship when their parole ends," they said.

In filing their class action, the Afghans asked the court to declare that the Department of Homeland Security and USCIS have unlawfully withheld and unreasonably delayed their applications past the required 150-day adjudication deadline, and to abide by the deadline for all other eligible asylum applications.

They also asked the court to order the agencies to decide all the relevant applications that are overdue within 30 days.

"Thousands of people will be able to avoid further harm only if Defendants promptly adjudicate their asylum applications," they said.

Mike Williams, a litigation partner at Kirkland, described the class action in a statement as not only being about "broken promises and broken trust," but about the U.S. breaking its own laws.

"That is why we are asking the Court to require the United States to keep its promises to these Afghan people seeking asylum," Williams said. "These asylum applicants are among the most vulnerable to come to our country, and they should not be in legal limbo."

Richard Caldarone, an attorney at NIJC, called USCIS' "systematic failure" to timely process their Afghans' asylum applications "inexcusable."

"For thousands of people — particularly those who had to leave family behind in Afghanistan — USCIS's delays compound the trauma of Taliban threats and violence," Caldarone said. "Afghan people were forced to flee their homes and their country because they worked for liberty, equality, and democracy; they deserve better."

A representative for DHS did not immediately respond to a request for comment on Thursday.

The Afghans are represented by Edward Hillenbrand, Michael F. Williams, Joseph A. D'Antonio, Morgan Lily Phoenix, Michael P. Quinn and Sanjay Nevrekar of Kirkland & Ellis LLP, and Richard Caldarone, Keren Zwick and Colleen Cowgill of National Immigrant Justice Center.

Counsel information for the government was not available as of Thursday afternoon.

The case is Ahmed et al. v. U.S. Department of Homeland Security, case number 3:23-cv-01892, before the U.S. District Court for the Northern District of California.