By PBI Intern Søren Whiting
On August 31st, the Biden Administration ended all U.S. military involvement in Afghanistan, marking an end to a twenty-year war. Two weeks before the United States had withdrawn all troops, Taliban forces seized control of the country. In response, tens of thousands of individuals in Afghanistan gathered at central airports seeking to flee gendered, political, or religious oppression under Taliban rule. The Taliban’s rapid takeover complicated the evacuation process for many, leaving U.S. citizens, Afghans who assisted the U.S., and Afghans fleeing oppression stranded in Afghanistan. Moreover, Afghans who managed to leave Afghanistan, or are able to do so in the future, and seek to enter the U.S. still face obstacles.
For eligible Afghans who worked as translators, interpreters, or other professionals employed by or on behalf of the U.S. government in Afghanistan, the U.S. offers a green card through the Special Immigrant Visa (SIV) program. A “Priority 2” (P2) designation is available for those who assisted the U.S. but did not meet the minimum time in service or employment requirement to qualify for the SIV program. Qualifying for P2 status requires Afghans to get themselves out of Afghanistan and in another country before the U.S. can process them as refugees. Delays and backlogs in the processing of the SIV and P2 visas make it harder for eligible Afghan nationals to attain evacuation and access to refuge. Afghans may also qualify for parole status, which grants temporary refuge in the U.S. under the Immigration and Nationality Act, which allows the U.S. to permit individuals to enter and remain in the U.S. temporarily for urgent humanitarian reasons. If granted refugee status, the U.S. will assist with travel.
The resettlement process in the U.S. presents a wide array of unique challenges for stateless individuals who have made their way to the U.S. or a port of entry. U.S. immigration policy authorizes a grant of asylum to individuals who prove that they fled their country due to past persecution or fear of future persecution. However, the process of proving the danger of persecution to the U.S. Citizenship and Immigration (USCIS) services is complex. There are two routes applicants can take to seek approval for asylum, termed ‘Affirmative’ (through USCIS asylum officer) and ‘Defensive’ (when the person is in removal proceedings). Whether seeking asylum through the Affirmative Process or the Defensive Process, an immigrant to the U.S. does not have the legal right to counsel and, consequently, must often represent themselves without an attorney throughout the hearing. Through this process, the court will decide whether the individual shall be granted asylum.
The Importance of Counsel
In fiscal year 2020, a report by Transactional Records Access Clearinghouse (TRAC) concluded that “73.7 percent of immigration judge decisions denied asylum, and asylum itself was granted just 26.3 percent of the time. [H]aving representation greatly increased the odds of winning asylum or other relief [31.1 percent success rate versus only 17.7 percent for unrepresented asylum seekers.]” 2
A second [U.S.-based] study titled Refugee Roulette 2 examined the relationship between access to legal counsel and the likelihood of a refugee being granted asylum. That study found: “Represented asylum seekers were granted asylum at a rate of 45.6 percent, almost three times as high as the 16.3 percent grant rate for those without legal counsel. The regression analyses confirmed that with all other variables in the study held constant; represented asylum seekers were substantially more likely to win their case than those without representation.” These studies underscore the importance of providing legal aid in the asylum process.
As more refugees enter the U.S. fleeing persecution from the Taliban, pro bono assistance is needed now more than ever. Currently, over 123,000 individuals have been airlifted out of Kabul. As the Department of Homeland Security vets refugees from Afghanistan, a large influx of individuals is expected to require legal aid to navigate the complex U.S. resettlement process.
Moreover, the large numbers of Afghan refugees seeking to reside in nations other than the U.S. often face similar, and in some cases more formidable, hurdles. In 2020 alone, the United Nations High Commissioner for Refugees found that “Afghan refugees constitute one of the world’s largest refugee populations with more than 2.2 million refugees—some 90 percent of all Afghan refugees worldwide—finding safety in neighboring Iran and Pakistan.” Hundreds of thousands more refugees are settling in other countries, such as Canada, Germany, France, and Austria. A variety of countries have made commitments to resettle refugees, including Tajikistan (up to 100,000 refugees), the United Kingdom & Canada (20,000 each), and Germany (10,000 refugees). This is in contrast with countries such as Turkey, Austria, Russia, and France that have enacted policy decisions hostile to refugee resettlement. Clearly, assisting refugees undergoing forced displacement is a global need.
Pro Bono Opportunities to Assist with Resettlement
There are many examples of pro bono lawyers partnering with organizations to provide assistance to Afghan refugees. For example, PILnet has teamed up with one hundred law firms, bar associations, corporations, and organizations to provide 165,000 pro bono hours to support refugees’ access to asylum and other legal protections; Arnold & Porter has partnered with International Refugee Assistance Project (IRAP) to provide legal aid to displaced individuals; and Akin Gump Strauss Hauer & Feld LLP has assembled a team of pro bono attorneys dedicated to aiding Afghan refugees. We applaud these and the many others that are providing assistance.
Several organizations are offering opportunities to sign-up online to help in various ways. For instance, PILnet and the Global Refugee Forum (GRF) Pledge Legal Community are urgently soliciting submissions of interest from firms, legal clinics, other legal actors, and donors interested in building, funding, or implementing collaborative pro bono projects to address refugee needs. PILnet and the GRF Pledge Legal are looking for aid in the short term, focused on building such projects to provide legal support to Asia Pacific Network of Refugees (APNOR) and Global Refugee-led Network (GRN), as they seek to support Afghans with information about legal pathways and to file applications for relevant visas in the U.S., U.K., CA, AU, and EU. PILnet is requesting that those interested in providing pro bono support complete this Afghanistan – Pro Bono Mapping form to indicate their availability, areas of specialty, and other capacity factors.
Human Rights First is also seeking attorneys and volunteers to provide pro bono legal assistance to Afghan evacuees. They are currently seeking law firms, lawyers, and law school
clinics to provide legal representation or other legal services on a range of immigration-related matters, including humanitarian parole requests, SIVs, asylum, Petition for Non-immigrant Worker Status (Form I-129), Temporary Protected Status (TPS), or family reunification. Interested volunteer attorneys may sign up by completing the Human Rights First Project Afghan Legal Assistance (PALA) – Volunteer Attorney Form.
Further, National Partnership for New Americans (NPNA) is looking for volunteers to help provide consultations to Afghan clients around their legal status, family reunification, parolee status, asylum process and application, and filing legal documentation. The time commitment is only around 1-5 hours. Interested volunteers can register using this link.
The American Bar Association also is mobilizing attorneys to provide pro bono support to displaced individuals. You can find a list of opportunities on their website.
Lack of experience in immigration law need not be an obstacle to making a valuable contribution toward easing this crisis. If you are interested in providing legal services but would like to first receive training or learn more about humanitarian legal aid to Afghan individuals and families, the International Refugee Assistance Project’s website routinely updates list of resources for attorneys.
With our collective help, tens of thousands of people will be able to achieve peace and security that is desperately needed.
 Baghdassarian, A. (2021, August 19). Special Immigrant Visas for the United States’ Afghan Allies: Lessons Learned from Promises Kept and Broken LawFare. https://www.lawfareblog.com/special-immigrant-visas-united-states-afghan-allies-lessons-learned-promises-kept-and-broken
 Ramji-Nogales, J., Schoenholtz, A. I., & Schrag, P. G. (2007). Refugee roulette: Disparities in asylum adjudication. Stan. L. Rev., 60, 295.
 How many refugees are fleeing the crisis in Afghanistan?: USA FOR UNHCR. How to Help Refugees – Aid, Relief and Donations. (n.d.). Retrieved November 5, 2021, from https://admin.unrefugees.org/news/how-many-refugees-are-fleeing-the-crisis-in-afghanistan/.
 Ghosh, P. (2021, August 22). Which countries are taking in Afghan refugees and which countries are not? Hindustan Times. Retrieved November 5, 2021, from https://www.hindustantimes.com/world-news/which-countries-are-taking-in-afghan-refugees-and-which-countries-are-not-101629646800845.html.