Afghan Allies and Refugees: Where Will They Go?

Former president, Donald Trump, struck a deal with Afghanistan that set out the terms for the United States to withdraw from Afghanistan by May 1, 2021.  The United States first sent troops to Afghanistan in October of 2001 in response to 9/11.[1] While on the ground, the United States collaborated with the Afghan army and other Afghan civilians in the war on terror.[2]  Due to tactical concerns, the Biden Administration had to delay the goal for withdrawal from May 1, 2021, to September 11, 2021.[3] The Biden administration then began withdrawing troops and Afghan allies in the summer of 2021, despite the obvious signs that the Taliban were not complying with the joint agreement.[4]  The decision to delay the withdrawal had detrimental effects as it gave the Taliban time to prepare and take countermeasures against it.[5]  The withdrawal was compromised as the Taliban seized their first province by August 6th and later gained full control of the country in the next two weeks.  Id.

 During the Afghan conflict, “more than 300,000 civilians have been affiliated with the American mission,” fighting alongside American soldiers, working as translators, or providing information to Americans.[6]  Many of these individuals were promised passage to the United States through the Special Immigrant Visa (S.I.V.), as these individuals would become targets of the Taliban once the United States withdrew. S.I.V. was designed to aid individuals who worked as translators, interpreters, or other professionals employed by or on behalf of the United States government in Afghanistan or Iraq.[7]  S.I.V. grants these individuals special pathways to obtain a green card.[8]  To be eligible, one must have: (1) “worked directly with the U.S. Armed Forces or under Chief of Mission authority as a translator or interpreter for a period of at least 12 months”, or (2) they were an employee of the U.S. government or International Security Assistance Force for at least two years.”[9]  Applicants must also obtain a favorable written recommendation from a General or Flag Officer in the chain of command of the U.S. Armed Forces unit.[10]  As of August 16, 2021, only 15,000 out of 34,5000 authorized visas were granted to Afghan nationals and their families.[11]  The Taliban’s takeover delayed the processing of these visas. Still, the system was imperfect even before, as the average time to process a S.I.V. application is nine months, leaving these individuals vulnerable to the Taliban as they wait. [12] Also, women and girls are rarely eligible to apply for these visas.[13]

The process was further hampered COVID-19 as immigration courts were closed and work was halted. [14]  Additionally, Afghanistan’s neighboring countries’ economies are battered by COVID-19 and cannot handle an influx of refugees.[15] Refugees also depend on funding through the United Nations High Commissioner for Refugees, which has been affected by COVID-19, as it is funded primarily through donations.[16]

The United States’ failure to evacuate Afghan allies successfully was detrimental as the international community does not have the proper avenues to resettle them. While legislation exists to protect them, the 1951 Refugee Convention and Protocol Relating to the Status of Refugees leaves much to be desired. The Protocol has no enforcement provision, and there is no way to compel countries to act in accordance with the Protocol.[17] Thus, the United States’ failure to grant the special status to the Afghan allies leaves them with few options as many countries cannot or will not accept them.[18] The mission's failure sheds light on the ineffective immigration system in the United States as so many visas could not be processed in time and demonstrates how the international community needs better mechanisms to aid these individuals.

Azadeh Amir-Aslani & Michaela Gawley are staff members of Fordham International Law Journal Volume XLV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See U.S. led attack on Afghanistan begins, HISTORY.COM (Oct. 14, 2021), https://www.history.com/this-day-in-history/u-s-led-attack-on-afghanistan-begins.

[2] See Natasha Turak et al., ‘Intelligence failure of the highest order’ — How Afghanistan fell to the Taliban so quickly, CNBC (Aug. 18, 2021), https://www.cnbc.com/2021/08/16/how-afghanistan-fell-to-the-taliban-so-quickly.html.

[3] See Oren Liebermann & Paul LeBlanc, First US Troops have started leaving Afghanistan as Biden decides not to extend withdrawal deadline, CNN (Aug. 24, 2021), ​​https://www.cnn.com/2021/08/24/politics/first-us-troops-leaving-afghanistan/index.html.

[4] See id. 

[5] Eugene Kiely & Robert Farley, Timeline of U.S. Withdrawal from Afghanistan, FactCheck.org (Aug. 17, 2021), https://www.factcheck.org/2021/08/timeline-of-u-s-withdrawal-from-afghanistan/.

[6] See Miriam Jordan, Thousands Who Helped the U.S. in Afghanistan are Trapped. What Happens Next? N.Y. Times (Sep. 30, 2021), https://www.nytimes.com/2021/08/16/us/afghanistan-visa-refugees-us.html.

[7] Fact Sheet: Overview of the Special Immigrant Visa Programs, National Immigration Forum (June. 22, 2021), https://immigrationforum.org/article/fact-sheet-overview-of-the-special-immigrant-visa-programs/.

[8] See id.

[9] Special Immigrant Visas (SIVs) for Iraqi and Afghan Translators/Interpreters, US. Department of State - Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/us-visas/immigrate/siv-iraqi-afghan-translators-interpreters.html (last visited Feb. 4, 2022).

[10] See supra note 7.

[11] See Cong. Rsch. Serv., U.S. Military Withdrawal and Taliban Takeover in Afghanistan: Frequently Asked Questions, (2021), https://crsreports.congress.gov/product/pdf/R/R46879.  

[12] See Evacuations from Afghanistan: What is the Afghan Special Immigrant Visa (SIV) program? Rescue.org (Aug. 2, 2021), https://www.rescue.org/article/evacuations-afghanistan-what-afghan-special-immigrant-visa-siv-program.

[13] See id.

[14] See Jorgee Loweree et al., The Impact of Covid-10 on Noncitizens and Across the U.S. Immigration System, American Immigartion Council, (2020), https://www.americanimmigrationcouncil.org/research/impact-covid-19-us-immigration-system.

[15] See supra note 12.

[16] See id.

[17] See generally, UN Colloquium on Refugees, The Problem of Refugees in the Light of Contemporary International Law Issues (Vera Gowlland-Debbas ed.)(May. 26-27, 1994), https://www.unhcr.org/uk/4ca348026.pdf.

[18] See Whitney Kassel, Fair Weather Friends, Foreign Policy (Oct. 15, 2014), https://foreignpolicy.com/2014/10/15/fair-weather-friends/.