In an October 27 exclusive, the Wall Street Journal reported that Republican congressional leaders are questioning the process by which the Biden administration has vetted Afghan nationals brought to the United States following the chaotic U.S. withdrawal from that Central Asian country. Had the president followed the rules, these things would not be happening.
Vetting in the immigration context is not terribly complicated. Section 212(a) of the Immigration and Nationality Act (INA) bars the admission of aliens based on several criteria (medical issues, criminal history, terrorism ties, national security risk, etc.), and applicants for admission bear the burden of establishing that they are not inadmissible based on any of them.
Applicants do this by presenting identification documents, bank statements, police reports, and other proof that they aren’t barred from entry. The biometric and biographic information from those identification documents is then entered into databases to determine whether the U.S. government has any derogatory information about the applicant. Applicants also submit to interviews to verify their identities and explain their intentions.
In the case of legal immigrants and nonimmigrants, the applicant must go through this process twice: once before a State Department consular officer, and once when seeking admission from a CBP officer at a port of entry.
As the foregoing shows, that vetting process is only as good as the documents that applicants present, and the intelligence that is available to consular and CBP officers to verify applicants’ statements. Whenever the validity of those documents cannot be confirmed, it is an invitation to fraud.
Fraud itself is inherently turpitudinous, but there is a spectrum of risk that such fraud intends to conceal. Some nonimmigrants intend to live here permanently (generally a bar to nonimmigrant status), and the fraud hides that intent. Some criminals plan to mend their ways and hide their criminal pasts to gain a “fresh start” in America. Such cases are at one end of the spectrum.
On the other end are criminals who intend to expand on their predations in this country, and terrorists who engage in fraud to gain access to the United States in order to attack U.S. institutions and/or innocent people.
Proper vetting ensures that the U.S. government can stop those who are inadmissible — regardless of the ground of inadmissibility — from entering this country to begin with. Which brings me back to the Afghans.
The Journal reports (based on documents prepared for Republican senators) that certain steps in the vetting process for Afghan evacuees, from in-person interviews to document verification, “were skipped or delayed”.
It continues: “Those without paperwork or identifying biometric or biographic information were allowed to give their own names and dates of birth for entry into U.S. government tracking systems,“ while “screenings also didn’t include an assessment of the individual’s ties to the U.S.”
By law, no foreign national is admitted into the United States unless permitted, and visas themselves are proof of such permission (this visa requirement is waived for nationals of certain countries under section 217 of the INA, provided they present proper passports). Most of the 100,000 Afghan nationals flown out of that country lacked visas or any other status to be admitted, but the Journal reports that nearly 70,000 have been allowed to enter the United States anyway, most of them likely on parole.
An unnamed administration official cited in that story contended that the United States’ nearly two-decade long involvement in Afghanistan had allowed it to “build up databases of information related to national security threats and crime”, making the use of biometric and biographical data “a robust screening strategy”.
Despite this contention, as the paper explained, 10 Afghan evacuees who had been brought to the United States have been detained as national security risks.
There are more than 37 million people in Afghanistan, a largely rural country slightly smaller than Texas. Despite the administration’s contentions that the United States’ involvement in that country over the past 20 years enables federal officials to screen out aliens who pose national security and criminal risks, that is an extremely questionable proposition.
It is especially questionable given the fact that, as my colleague Dan Cadman noted in October 2014, “even allegedly vetted soldiers and police” there “routinely” attacked and killed “U.S. and allied troops in so-called 'green on blue' attacks”.
If the U.S. government was unable to properly vet Afghan security forces when it effectively controlled the country, what faith would anyone have that it could vet Afghan nationals now?
That is especially true of Afghan evacuees who failed to present any identification documents at all. The Journal notes that efforts by Republican lawmakers to find out “how many Afghans traveled without any paperwork” were unavailing, even though this is a legitimate question, answers to which members of Congress are entitled given their oversight responsibilities.
Not that it would really matter, however, because as that article explains: “Federal officials interviewed at U.S. bases overseas stated to Republican aides that they didn’t have any training in identifying fraudulent Afghan documents, raising concerns about the validity of documents that were used.”
What good would a requirement that evacuees provide identity documents do if those reviewing the documents cannot tell good ones from fake ones? Here is a pro tip from this former INS associate general counsel handling national security cases: Bad guys use fake ones, especially if they are notorious.
None of this would be an issue if the Biden administration had simply followed the rules. Instead of flying tens of thousands of Afghans to the United States, the federal government should have used the money to erect safe and secure refugee camps for those fleeing the Taliban or other terrorist groups in a nearby country and to provide transport to those camps, if necessary.
At those camps, refugee officers could have performed the necessary screening in a much more orderly fashion and allowed Afghans who were eligible for refugee status into the United States under section 207 of the INA, once proper checks were run. Of course, the admission of such aliens would have been subject to the refugee cap, but that is what the law requires.
Aliens eligible for Special Immigrant Visa (SIV) status could have made applications from those camps as well. The Journal reports that almost half of the Afghans who have been flown to this country were eligible for SIV, which means that more than half were not.
Respectfully, there is no authority under the INA or any other federal law that permitted the evacuation of tens of thousands of Afghan nationals out of that country and to the United States except for those who had received refugee status or who had proper visas.
Nor is it clear whether those aliens were even properly paroled into the United States. Under section 212(d)(5)(A) of the INA, parole may be granted “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
On October 26, Sen. Josh Hawley (R-Mo.) tweeted the following E-mail, which allegedly shows that U.S. officials on the ground in Afghanistan were ordered to fill evacuation flights to “excess” with “[f]amilies including women and children” for transit to the United States:
NEWS: This email was shared w/ me by an American official present jn Afghanistan during the evacuation who was shocked by Administration’s failure to vet Afghans before they were evacuated. Email details orders from Joe Biden to fill up the planes - even without vetting pic.twitter.com/LJq0dHlcm0
— Josh Hawley (@HawleyMO) October 26, 2021
There is no “case-by-case basis” in such an operation. All such Afghan “families” had to do was make it to the airport, and entry to the United States was assured.
There are many lessons to be learned from the United States’ 20-year involvement in Afghanistan, not least of which is how not to run an evacuation program. As noted, the INA already contains a refugee process under which aliens legitimately fleeing persecution can be admitted to the United States, as well as SIV for eligible Afghans.
Those benefits should have been adjudicated abroad, before those aliens ever came to the United States, not ad hoc after they were already brought to this country. The reason that the United States invaded Afghanistan was because that country was harboring terrorists. Given that, bringing Afghans who have not been vetted, and whom we may never be able to properly vet, is reckless.