Tens of thousands of asylum seekers who fled Afghanistan will see applications reviewed more quickly after the U.S. Department of Homeland Security reached a settlement agreement in a class-action lawsuit on Sept. 6.
For many of those who sought it after the U.S. military pulled out of Afghanistan in 2021, asylum was unlawfully delayed, according to an initial complaint brought by seven Afghan plaintiffs. That left families and individuals who were awaiting safe harbor in danger after the Taliban took control of the country’s capital city, they allege.
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Attorneys representing these individuals said the parties have settled and filed an agreement with the U.S. District Court for Northern California. A hearing is set for Sept. 11 for a judge to approve it. An attorney familiar with the case said they feel strongly the agreement will be supported.
Once that happens, it will cover an estimated 20,000 Afghan people seeking asylum through U.S. Citizenship and Immigration Services — and likely more as better data becomes available. It’s one of the largest asylum adjudication class action settlements in U.S. history, according to one of the firms representing plaintiffs.
“They were promised resettlement in the United States. They were promised a fresh start. We invited them to come here,” said Ned Hillenbrand, partner at Kirkland & Ellis LLP.
The suit accused the government of failing to adhere to Congressionally mandated deadlines to process asylum applications within 150 days, 30 days faster than for other claims. Lawmakers had set that expectation for quicker processing in 2021, recognizing “the moral imperative to protect and support” the people who aided U.S. efforts in Afghanistan.
However, the suit alleged that now, two years later, the government processed just 11% of applications submitted via the Operation Allies Welcome program, with thousands still pending as their temporary parole was set to expire last month. Several of the plaintiffs claimed waiting upward of 200 days with no status updates from the government, with one awaiting answers for more than a year.
“For many of the spouses and children of people who applied for asylum, defendants’ failure to follow Congress’s directive spells constant danger because these family members are stuck in Afghanistan, awaiting family reunification,” according to court documents.
During the evacuation, approximately 70,000 vulnerable Afghans were relocated by the U.S. to overseas Defense Department facilities for security screening, vetting and health care, according to the White House’s April report. By some counts, more than 1.6 million have fled the country since 2021.
This settlement represents closure, but unfinished business, for asylum seekers. There’s relief among plaintiffs, Hillenbrand said, but the work is still to be done.
“Congress passed the resolution that said you have to prioritize their applications and expeditiously adjudicate them in 150 days, and for the vast majority of these applicants, that has not happened,” he said in an interview. “This is a pathway to getting back on track. But I don’t know that the mistrust and the disappointment of these applicants will ever dissipate fully.”
The settlement requires Homeland Security officials to process half of all application filed on or before June 3 by Oct. 31. A majority of those must have been long-term pending cases. Subsequent deadlines will require more cases to be adjudicated over time.
Homeland Security, headquartered in Washington, D.C., is primarily responsible for implementing immigration laws, though USCIS in particular makes decisions on asylum applications. The agency of 20,000 employees is based in Camp Springs, Maryland, and for several years has had difficulty wrangling its pending caseloads, which have ballooned by 85% in recent years, according to the Government Accountability Office.
“Policy changes, longer forms, staffing issues, and delays from COVID-19 contributed to longer processing times,” the 2021 report said. “Although USCIS has several plans to address the backlog, it hasn’t implemented them and hasn’t identified necessary resources.”
An agency spokesperson did not return a request for comment on Friday.
Accountability mechanism
To ensure there’s no further backsliding, plantiffs’ attorneys said there’s an accountability mechanism baked in: every 30 days from Oct. 6 until the settlement expires in 2025, the government will report on how many applications they’ve received, how many they’ve adjudicated and the results of those adjudications.
Afghan people who filed for asylum between July 31, 2021, and Sept. 30, 2022, will be covered by the agreement. For those whose parole is expiring in the coming weeks, the department said in the settlement it will considering extensions on a case-by-case basis to prevent a lapse.
“The U.S. government rightly promised that people who worked to support human rights and build democracy in Afghanistan could resettle in the United States,” said Richard Caldarone, co-counsel in the case and an NIJC attorney, in a statement. “The settlement ensures that the government will fulfill that promise to tens of thousands of our allies.”
Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.
