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Dying while waiting: US government ordered to resolve visa issues for Afghan, Iraqi allies

Former U.S. Ambassador Ryan Crocker. (S.K. Vemmer/Department of State)

This article was originally published by Radio Free Europe/Radio Liberty and is reprinted with permission.

When Sakhidad started working as a translator for the U.S. military in Afghanistan at the age of 19, he hoped his “faithful and valuable” service would earn him a special U.S. immigrant visa and eventual U.S. citizenship.

In 2011, after two years on the job, Sakhidad applied under a special visa program set up by the U.S. Congress to protect persecuted U.S. allies.

He waited four years for his application to be processed. But the U.S. government never finished reviewing his case.

In the spring of 2015, shortly after the closure of the U.S. base where he’d worked for five years, Sakhidad was abducted, tortured, and killed by the Taliban.

They left his body on the side of a road with a note stuffed in his pocket — a threat addressed to his three brothers saying they would also be killed because they had worked for U.S. forces in Afghanistan.

Tired Of Waiting

There are still thousands of Afghans like Sakhidad who worked for the U.S. war effort and have waited years to learn whether they will be accepted under the Special Immigrant Visa (SIV) program.

The program aims to help Afghan and Iraqi allies who — like Sakhidad — face persecution and death threats in their homeland because of their work for the U.S. military, diplomatic missions, or U.S.-led international coalition forces.

This month, after suing U.S. President Donald Trump’s administration over the “life-threatening delays,” four Afghans and an Iraqi will finally be notified about the status of their applications.

The group won a class-action lawsuit challenging the government’s justification for delays beyond the 90-day deadline that is spelled out in the Special Immigrant Visa law.

Their lawsuit cited Sakhidad’s case as an example of the deadly risks such visa applicants face every day they are kept waiting.

It also noted that, like Sakhidad, hundreds of former translators employed by the U.S. military have been killed in Iraq or Afghanistan while waiting for their visa applications to be processed.

The identities of the five plaintiffs in the class action lawsuit have been kept anonymous in the court records to protect them and their families.

But some details about their situations have been revealed in court documents.

An Afghan man identified as John Doe-Alpha applied for his special immigrant visa in September 2013.

Since then, he has been forced to flee his hometown in Afghanistan because of continued threats by the Taliban directed at members of his family who stayed behind.

Those threats make it clear that he cannot return safely to his home.

An Afghan woman identified as Jane Doe-Bravo has received numerous death threats in letters and by telephone since she started working as a U.S. government employee in Afghanistan.

She applied for the special visa in October 2015 and has changed her residence and phone number numerous times while she continues to wait for an answer.

An Afghan plaintiff identified as John Doe-Charlie applied for the special visa in April 2016.

Doe-Charlie moved away from his home to protect himself and his family after the Taliban attacked his brother in a case of mistaken identity.

An Afghan woman identified in the lawsuit as Jane Doe-Delta applied for a special immigrant visa in December 2016 after she received death threats from the Taliban.

She said she and members of her family have been followed by masked men. She was also told that they would kill her family unless she quit her job with a U.S. military contractor.

The Iraqi man in the class-action lawsuit, identified as John Doe-Echo, applied for the special visa in July 2013 after militants targeted his family, kidnapping and killing his father.

‘Tortured’ View Of The Law

But the long delays experienced by the Afghans and Iraqis in the lawsuit are the norm rather than the exception.

The class-action lawsuit has revealed that, on average, those applying for the special immigrant visas spend about five years getting a background check and having their documents approved by the U.S. Embassy in Kabul or Baghdad.

Even after that, 98 percent of all applicants must wait more than nine additional months for a final ruling. On average, they wait about 16 months for a final decision once their application has been approved by the U.S. Embassy.

U.S. government attorneys argued that the delays were necessary because of the need to “balance individual eligibility for a visa” against “national security” concerns.

They also argued that processing the thousands of applications they’ve received is “complex,” and that the nine-month deadline was related to “institutional efficiency” rather than an obligatory timetable.

The U.S. District Court in Washington, D.C., rejected those arguments.

It ruled on September 23 that the Trump administration’s justification for delays was a “tortured and untenable” interpretation of the law.

U.S. District Judge Tanya Chutkan ruled “national security” concerns cannot be used as a blanket justification for all delays because the congressional legislation specifies that exceptions are allowed for “high risk” applicants.

The court also noted that the Trump administration has not designated any applications as “high risk.”

Ryan Crocker — a former U.S. ambassador in Iraq, Afghanistan, Pakistan, Syria, Kuwait, and Lebanon — filed a brief in the case to support the Afghan and Iraqi petitioners, some of whom have been waiting for word on their visa applications since 2013.

Crocker’s filing described how visa delays harm U.S. interests by undermining the trust that other countries have in U.S. commitments.

Action Plan

To be sure, the special immigrant program has been plagued by delays since its inception when President George W. Bush signed legislation on the Iraqi program in 2007 and President Barack Obama signed the Afghan Allies Protection Act of 2009.

Nine Iraqis who sued the Obama administration over delays on their applications won their case in 2016 at the U.S. District Court in Washington, D.C.

That ruling rejected the Obama administration’s argument that the U.S. State Department and the Department of Homeland Security have unlimited discretion over processing the special-immigrant-visa applications.

It also rejected the argument that the courts could not enforce instructions from Congress to process the applications within nine months.

But Chutkan’s ruling is all the more significant because the court is forcing the government to come up with an action plan.

It also sets a precedent for thousands of other Afghans who’ve been waiting years for a final decision on whether they will be allowed to immigrate to the United States under the programs.

Many have been forced into hiding with their families while they wait because of death threats against them from Islamic militants.

“This ruling could finally bring relief to these men and women and their families who have been waiting in fear for far too long,” said Deepa Alagesan, an attorney for the International Refugee Assistance Project (IRAP) who helped file the class action lawsuit in June 2018.

“They served bravely in support of our missions abroad and we promised them a pathway to safety in return,” Alagesan said. “This ruling ensures that we keep our promise.”

Orders From The Court

The process of applying for an receiving a special immigrant visa under the program is long and difficult, with stringent vetting measures and security checks built into the system.

Applications from hundreds of Afghans will ultimately be rejected.

According to the latest quarterly report by the State Department and Department of Homeland Security, there were 7,755 applications from Afghans that still had not been processed as of March 31.

Congress has allocated a total of 18,500 of the special visas for Afghans.

But 12,197 had already been awarded by March 31 — leaving a total of just 6,303 special visas for the remaining 7,755 applicants.

For Iraqis, a total of 2,033 of 2,500 available special visas were given out by March 31.

The State Department and Department of Homeland Security say there are “sufficient visa numbers remaining to meet demand” from all Iraqi applicants “in the pipeline.”

“This program will continue until all qualified applicants have received visas,” their latest quarterly report on the Iraqi program says.

Chutkan’s ruling requires the Trump administration to produce a plan by October 23 on “promptly processing and adjudicating” the remaining applications for the special visas.

Once the court approves that plan, the Trump administration will be required to submit progress reports every 60 days on its efforts to eliminate delays for all of the applicants.

“It would be an inefficient use of the court’s resources” to require each of the 7,700 applicants who still await a decision on their visa application “to bring an individual claim in order to avail themselves of the nine-month benchmark,” Chutkan wrote.

The ruling says the Trump administration’s regular progress reports should include updated information on how many special visa applicants still await a decision and how long it needs to make those decisions.

It also calls for the Trump administration to specify whether it has met the legal deadlines for issuing decisions on the visa applications.

In cases where the deadline is not met, the court said the administration should provide an explanation for the delay and describe what actions it will take to resolve the issue.

The State Department has not commented publicly on the court ruling or what steps it plans to take to resolve the delays.

One State Department official who was not authorized to speak on the record told Reuters that the Trump administration was “aware of the court’s decisions” and was “reviewing it with our colleagues at the U.S. Department of Justice.