The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Time to Pass the Afghan Adjustment Act
Congress should grant permanent residency to Afghans who came to the US fleeing the fall of their country to the brutal Taliban regime.
Today is the second anniversary of the fall of Kabul and the loss of Afghanistan to the oppressive Taliban regime. In the aftermath of the fall, the US took in thousands of Afghans fleeing the brutal new government, including many who had fought on the side of the US or worked to promote human rights. Unfortunately, to this day, the US government still has not granted permanent residency to Afghans who entered the US based on executive "parole." As a result, most of the Afghans remain in legal limbo, making it difficult for them to fully integrate into American society. That's bad for both them and the US economy.
Congress can easily fix the problem by passing an Afghan Adjustment Act—legislation that would grant Afghan parolees permanent residency and work permits. But, so far, they haven't found the political will.
Washington Post columnist Catherine Rampell, one of the best media commentators on immigration issues, summarizes this unfortunate state of affairs:
But her place in the country that took her in is precarious.
"I'm in a legal limbo," she says. That's because, almost two years after the United States withdrew its last forces from Afghanistan, Congress has failed to deliver on the promises made to our allies in America's longest war…..
The U.S. government pledged to protect those who aided our military and diplomatic interests. But it never fully developed the legal and administrative capacity to do so. Most of those we hastily evacuated from Afghanistan ended up coming here through a sort of short-term workaround measure, full of temporary and uncertain extensions, called "humanitarian parole…."
Akbari remains immensely proud of her service to her country. She is eager to resume serving by joining the U.S. military but cannot do so until she gets a green card. Which, for the foreseeable future, is unavailable.
Like many other Afghans who entered through parole, she has applied for asylum — a separate, convoluted and notoriously backlogged process. It's supposed to be expedited for Afghan parolees, but only a tiny sliver of Afghan applicants have been successfully adjudicated, with the rest stuck in what could be a years-long queue…..
Akbari fears that, by the time her asylum application is settled and she subsequently becomes eligible to apply for a green card, she will be too old to serve in the U.S. military.
In the meantime, she says she's grateful for opportunities she has been granted in the United States, including many facilitated by U.S. service members she once worked alongside. But she finds it difficult to plan a future, because many prospective employers are reluctant to hire someone whose ongoing work eligibility remains uncertain.
The Biden Administration has eased the situation somewhat by giving Afghan parolees the opportunity to apply for a two year extension to their initial two year parole period. But this is just a temporary reprieve. And people like Akbari remain barred from opportunities (including military service) that are only open to permanent residents. Moreover, like the initial grant of parole, the extension rests entirely on executive discretion. What Caesar giveth, he (or a successor) can taketh away.
Passing an adjustment act can fix these problems. Historically, Congress has in fact enacted such legislation for other parolees fleeing war and oppression, including Hungarians and Cubans fleeing communism, and—most closely analogous to the Afghan situation—Vietnamese fleeing the fall of South Vietnam. It should do the same thing here.
In an August 2021 post, I went over the many reasons why the US should grant refuge to Afghans fleeing the Taliban. They include general moral considerations against barring refugees fleeing violence and oppression, the unusually heinous nature of the oppression Afghans face under Taliban rule (worse than most "ordinary" dictatorships), national security interests, and the US government's significant share of responsibility for the Taliban's return to power (both the Trump and Biden administrations deserve hefty shares of blame).
I won't go over these points again here. I will merely note that all of them justify granting permanent, not just temporary refuge. The oppression the parolees face if forced to return is just as bad now as two years ago. And granting permanent refuge will serve US national security and foreign policy interests better than a mere temporary reprieve. People who aid US forces in war and help promote human rights in alliance with us should know that we will give them permanent refuge, if needed, not just a brief stay of execution.
As I have previously pointed out, many of the same considerations also justify granting permanent residency to Cuban, Venezuelan, Ukrainian, and other parolees. In addition to the Afghan Adjustment Act, Congress is also now considering a Ukrainian Adjustment Act and a Venezuelan Adjustment Act.
All should be enacted. But if political constraints allow passage of some but not others, that's still much better than nothing. As always, the best should not be the enemy of the good.