Afghan refugees need and deserve legal status in the United States

The Afghans evacuated by the United States have escaped the Taliban, but they still face a humanitarian emergency. These are refugees experiencing stunning loss and anxiety — they have well-founded fears of persecution as defined in the Refugee Convention and U.S. law — and they need and deserve legal status in the United States through a smooth and welcoming process. 

As we have seen, the Afghan refugees were and continue to be hurriedly evacuated and provided quick entry through what’s known as the parole authority of the secretary of the Department of Homeland Security. While this authority — used in the past for Cuban and Kurdish refugees, among others — enabled the United States to move quickly, it does not come with any assurances of support, a pathway to permanent residence in the United States or, most importantly, reunification with spouses and children left behind.

Congress should urgently solve this problem by passing legislation that will adjust the immigration status and that will immediately provide transition assistance to the tens of thousands of Afghan refugees who have arrived and will arrive in the future. 

But if Congress is slow, or fails to act, the Biden administration has at its disposal a fit-for-purpose option — the Refugee Act of 1980, which Congress enacted with near unanimity. In fact, this crisis could provide the administration with a unique opportunity to revitalize this landmark refugee legislation.

With the Refugee Act, Congress designed a system for normal times as well as for emergencies that would recognize refugees of humanitarian concern to the United States, receive them in safety and dignity, and put them on a pathway to become new Americans. Since 1980, the United States has resettled more than 3 million refugees, most of whom are now lawful permanent residents or U.S. citizens. 

While the current administration inherited a U.S. refugee admissions program that had been decimated by the Trump administration, it wasn’t until May — and then only under enormous pressure from refugee advocates — that the president raised the 2021 fiscal year refugee admissions ceiling to 62,500. But as of July 31, the U.S. had admitted only 6,274, on a pace to fall far short of President Trump’s record low ceiling.

Support for refugee admission “slots” are funded by Congress but cannot be rolled over from one fiscal year to the next, so with less than one month left in the 2021 fiscal year, over 50,000 refugee admissions places are likely be lost at the very same time those very same fully funded places could be used to receive and integrate Afghan refugees now on U.S. military bases in the United States or at locations overseas.

In the absence of new legislation from Congress to quickly adjust status and provide refugee benefits to the Afghans, the administration should make quick use of these 50,000 funded admission slots. The president should also be prepared to use the authority he is given by the Refugee Act both to raise this year’s refugee ceiling and to announce a ceiling of 200,000, for next year to accommodate Afghan arrivals as well as other refugees.

In short, in the absence of congressional action, the Refugee Act provides a safe and legal solution. 

Moreover, while some might argue that Afghans who were not considered for refugee status overseas and are already here as parolees cannot be processed under the Refugee Act, we do not share that view. Rather, we agree with a 1980 opinion from Justice Department’s Office of Legal Counsel, which argued that U.S. law “does not require that the alien be processed overseas or that he apply for refugee status in a third country.”

Biden administration officials will also confront the question of how to process Afghans who are currently being provided temporary refuge overseas but will very soon be in the United States. Even if the administration is unwilling to apply the Refugee Act to parolees already on U.S. soil — and in the absence of congressional action to solve the problem — the administration could use the Refugee Act for expedited and “bifurcated” processing under the Refugee Act, as applied in 1999 for Kosovar refugees evacuated from then-Macedonia.

The U.S. evacuation of 9,000 Kosovar refugees demonstrated that resettlement need not always be slow and bureaucratic. Under “bifurcated processing,” U.S. immigration officials initiated a refugee adjudication in Macedonia, quickly recognizing that the Kosovars they were interviewing had essentially all fled Kosovo at the same time for the same reason. Those Kosovars were flown and paroled into the United States. Many were sent to a military base in New Jersey where U.S. officials completed their processing and adjudications. Kosovars entered Fort Dix as parolees, but left as refugees. 

Like the Kosovar refugees who preceded them, these Afghans all fled at the same time for essentially the same reason and can easily establish that they are refugees under U.S. law. 

Congress should urgently act to quickly straighten out the status of the Afghans within the framework of the Refugee Act. But if that is not forthcoming, the administration has an option — the Refugee Act itself, which should be as adaptive and flexible as its drafters intended.

Eric Schwartz is former assistant secretary of state for Population, Refugees and Migration (2009-2011) and executive director of Refugees International.

Mark Hetfield is president and CEO of HIAS, a global Jewish refugee agency.