Washington’s Push for the Afghan Adjustment Act Fails to Consider Needed Fixes and National Security Issues

Background and Abuse of Parole

In August of 2021, Afghanistan fell to the Taliban, spurring a crisis that led to a massive exodus of millions of refugees.  The Biden Administration led the United States into one of the largest and most chaotic evacuation airlifts in history, bringing nearly 80,000 Afghan nationals to the United States.

Americans were led to believe that the rescue mission was intended to save Americans and Afghani military allies, those who were a vital part of the American war effort and who had assisted American troops.  However, many who did not help U.S. personnel during the War on Terror were evacuated and allowed on board flights to the United States.

Because Congress did not play in a role in the evacuation and immigration processing of those who departed, the Biden Administration resorted to using immigration parole authority granted under the law to bring in Afghan nationals. The Immigration and Nationality Act, section 212(d)(5), states that parole is supposed to be used on a case-by-case basis for urgent humanitarian reasons or significant public benefit.  Additionally, the law states that the Secretary “may not parole into the United States an alien who is a refugee unless the Attorney General determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee.”  This language clearly states that the government must find a compelling reason, one in the public interest, to grant parole to someone who would otherwise qualify and go through the refugee process.  Despite the law, the Biden Administration, under Department of Homeland Security (DHS) Secretary Mayorkas, created a parole program designed for an entire category of people, cutting corners and not vetting each one on a case-by-case basis, as required by law.

As noted by DHS itself, “a grant of parole is a temporary and discretionary act exercised on a case-by-case basis. Parole, by definition, is not an admission.”  Thus, those paroled into the country could not avail themselves of adjustment of status, or applying for a green card.

Only Congress could exercise the adjustment of status.  When the parole program was created, the Biden Administration knew the grants of parole were not a durable and long-term immigration solution for those evacuated from Afghanistan. However, Secretary Mayorkas did it anyway and put Afghan nationals in this predicament.  Now, the administration is calling on Congress to fix the problem.

Mismanagement, Lax Vetting, and Fallout

The rush to evacuate and process Afghan nationals led to serious mistakes and mismanagement, highlighted by the DHS Office of the Inspector General (OIG).  In its September 2022 independent report, the OIG said that DHS encountered obstacles to screen, vet, and inspect all Afghan evacuees arriving as part of Operation Allies Refuge (OAR)/Operation Allies Welcome (OAW), and that U.S. Customs and Border Protection (CBP) “did not always have critical data to properly screen, vet, or inspect the evacuees.” The report had several key findings, including:

• Some information that was used to vet evacuees through U.S. government databases, including “name, date of birth, identification number, and travel document data was inaccurate, incomplete, or missing.”
• DHS OIG found “missing, incomplete, or inaccurate” first and last names, dates of birth, travel document numbers, travel document types, and visa data in CBP’s records systems.
  • 417 records had first name unknown.
  • 242 records had last name unknown.
  • 11,110 records had a date of birth recorded as “January 1.”
  • 36,400 records had “facilitation document” entered as the document type, but CBP could not define or provide an explanation for this document type.
  • 7,800 records had invalid or missing document numbers.
• The report noted that CBP did not maintain a list of Afghans admitted or paroled into the United States without proper identification. Thus, it’s hard to know who is really in the country today.

In addition to the DHS report, the Department of Defense Inspector General (DoD IG) reported that Afghan parolees were not screened using all available data before being allowed to enter the United States. As a result, the DoD IG report found that, as of November 2, 2021, there were at least 50 Afghans in the United States “with information in DoD records that would indicate potentially significant security concerns.” Later, in August 2022, Senator Hawley (R-Mo), and Senator Johnson (R-Wis) wrote a letter to the DoD regarding allegations from a whistleblower that DoD actually allowed 324 Afghans into the country that were on an intelligence community terrorist watchlist. The DoD IG later investigated the matter and provided a vague response, stating that the “National Ground Intelligence Center (NGIC) might have removed” certain Afghans from this watchlist that should have been retained on the list. To this day, it remains unclear how many Afghan terrorists on the watchlist may have been allowed entry.

Finally, there have been numerous media reports since the U.S. withdrawal documenting crimes committed by Afghan evacuees who were paroled into the United States – which include spousal abuse and sexual abuse of minors; assault on a female service member; and child molestation.  In February 2022, one Afghan national was deported after arriving in the United States on an evacuation flight due to a criminal record discovered after their arrival.  Concerns have also been raised about child trafficking and male evacuees entering the United States with child brides.

Re-Parole

On June 8 of this year, DHS announced a process that “will enable Afghan nationals to renew their parole and continue to live and work in the United States.”  The Department claimed it would be a streamlined process, at no cost.  Beneficiaries would be granted a two-year extension of parole and work authorization.  According to some internal DHS sources, the department does not plan to extensively review the applicants’ backgrounds, and will allegedly not conduct TECS checks, FBI name checks, or FBI fingerprint checks. This could explain why their process is “streamlined.”

Immigration Policies to Consider

As Congress considers legislation to provide legal permanent status to Afghan nationals, it’s important to understand what other relief and accommodations have been made available.

First and foremost, adjusting the status of Afghan parolees isn’t necessary. Afghans who were not eligible for the Afghan Special Immigrant Visa (SIV) program could pursue asylum and permanent residence in the United States via the existing asylum process. This would allow the government to properly screen these aliens’ claims and properly vet them.  Some advocates for the Afghan Adjustment Act (AAA) argued that the asylum process is overly burdensome and too inefficient for Afghan evacuees. However, Congress took steps in Section 2502 of the Fiscal Year 2022 Continuing Resolution passed on September 30, 2021, to expedite the adjudication of asylum applications from Afghan evacuees.

Since the withdrawal, Congress also provided billions of dollars to support Afghan resettlement efforts, authorized thousands of more Afghan SIV visas, and made it easier for the Biden Administration to get Afghan SIVs into the United States.

Finally, there are other forms of relief for those Afghan evacuees who, for whatever reason, didn’t file an application for asylum within one year of arriving in the U.S. as required by the law.  The Biden Administration designated Afghanistan for Temporary Protected Status (TPS) in May 2022, applying to Afghan nationals who had continuously resided in the U.S. since March 15, 2022, and had been continuously physically present in the U.S. since May 20, 2022. The TPS designation provides Afghan nationals in the United States with temporary protection from removal and allows them to obtain a work permit and travel authorization.

So, what is the Biden Administration and Congress’ solution for dealing with the nearly 80,000 Afghan refugees? Put them on a path to citizenship.

Several bills have been introduced over the years to adjust the status of Afghan nationals on parole, including two recently introduced bills:  S. 2327 sponsored by Senator Klobuchar (D-Minn), and H.R. 4627 sponsored by Representative Miller-Meeks (R-IA). The bills are broadly known as the Afghan Adjustment Act (AAA), and would allow those in the United States to apply for a green card and eventual citizenship.

While the bills would put Afghan nationals on the path to citizenship, nearly all of the legislative proposals fail to close loopholes related to immigration parole authority that would help prevent this situation from happening again.  The bills also fail to address the lax vetting processes in place and fall far short in enhancing national security.

Some may argue that the legislative proposals contain adequate vetting requirements and protections to ensure terrorists and criminals don’t obtain a green card. However, they actually allow Biden’s DHS to waive multiple terrorism and criminality-related grounds of inadmissibility found in the INA. Under such language, DHS is allowed to waive almost any ground of inadmissibility it sees fit. Grounds of inadmissibility that can be waived include criminal conduct that occurred after their arrival, misrepresentation, and previous removal.

Further, the bills often don’t detail what happens in cases where there are no viable records, which will be a common occurrence with this population. It also suggests that the American people should trust that the same Administration which conducted lax vetting on the front end to create a more thorough and rigorous process on the back end in order to check its own work. It’s difficult to imagine how this Administration, which is spinning out of control due to a border crisis and resorting to releasing millions of people into the interior of the United States, could administer an enhanced screening and vetting program for the Afghan population.

Conclusion

Not only does FAIR oppose these bills because they unfairly adjust the status of certain aliens, it opposes the legislative proposals because they do not fix the underlying abuse of parole or significantly improve the vetting process.

Because the use of parole authority was, and continues to be, grossly abused by the Biden Administration, the statute needs to be clarified so that the creation of categorical parole programs is not allowed by any one Secretary.  Congress should dictate what classes, countries, and individuals are allowed admission into the United States, the duration of their stay, and whether they are allowed to work. Thus, any bill on this issue must include parole reform so that other populations are not in the same situation in the future.

Given the internal reports on vetting procedures, any bill related to Afghan nationals paroled into the country must also have strict screening and background check requirements. For the sake of national security and public safety, grounds of inadmissibility should not be waived.

Further, any bill to increase green card allocations for special populations should take into consideration overall immigration levels and statutory caps.  If Congress plans to adjust their status, it should do so only by temporarily reducing levels in other areas in order to accommodate the increase in green cards being issued.