Should Iraqi and Afghan Special Immigrant Visa Applicants Be Allowed to Sue the Government?

By Dan Cadman on October 31, 2018

United States military forces in Afghanistan have implemented a policy limiting contact with their Afghan counterparts, following some disturbing insider attacks involving what appear to be jihadist infiltrators of that country's military and security forces.

Insider attacks have been such a constant in the long years of the Afghanistan conflict that they have a name: "green on blue" attacks (green is the color of the Afghan army uniform; blue represents the foreign NATO forces, including the United States, who are aiding Afghanistan in its war against the Taliban and other insurgencies).

The most recent attacks occurred when a Czech soldier serving NATO forces in Afghanistan was killed, and others wounded, by an Afghan commando who turned his weapon on his erstwhile allies. This closely followed an attack in which a security guard killed the Kandahar police and intelligence chiefs he was supposed to be protecting, while wounding two Americans. The commander of U.S. forces in Afghanistan narrowly escaped injury in the attack.

These incidents have been on my mind because they link to a lawsuit filed here in the United States on behalf of Afghan and Iraqi applicants for Special Immigrant Visa (SIV) status under programs that grant visas to nationals of those countries who have assisted U.S. military forces, often as translators. Such programs have been in effect for well over a decade and are regularly renewed via the yearly National Defense Authorization Act that funds the military (see, e.g., here).

The suit alleges inordinate and unreasonable delays in vetting and adjudicating applications for the visas, and the litigants are asking federal courts to issue an order of mandamus requiring the government to act, because their lives are in peril in Afghanistan and Iraq as they wait for decisions.

It's the kind of argument that undoubtedly will elicit sympathetic resonance with Americans on both the right and the left: How can we leave these people hanging? The problem is, as the green-on-blue attacks make evident, almost nothing is as it seems in either of those war-torn nations, and vetting can take years because even people who appear to be on the same side as you may not, in fact, be who and what they seem.

A host of watchdog reviews has made this clear over the years. For instance, a July 2008 report by the Department of State (DOS) Inspector General found that more than 25 percent of individuals being screened didn't meet program criteria, even though they had received the requisite recommendations from their military commanders. More troubling, some of the applicants were former members of the Saddam Hussein regime, and/or were dual nationals or legal residents of safe countries such as Canada.

Nine years later, in a July 2017 joint DOS/Department of Homeland Security report, auditors examining the program because of complaints surrounding delays in the program found that the top-four reasons for denial involved:

  • Failure to establish employment by or on behalf of the U.S. government;
  • Failure to establish at least one year of employment by or on behalf of the U.S. government between March 20, 2003, and September 30, 2013;
  • Failure to establish providing faithful and valuable service to the U.S. government; and, most disturbing
  • Derogatory information associated with the applicant that is incompatible with the requirements of the SIV program.

Certainly, none of these reasons inspires confidence in the integrity of the program. But the problems aren't just in the adequacy of vetting abroad. Here in the United States, we've seen the downside of inadequate screening as well. Take, for example, this snippet from a November 2013 ABC News story:

Several dozen suspected terrorist bombmakers, including some believed to have targeted American troops, may have mistakenly been allowed to move to the United States as war refugees, according to FBI agents investigating the remnants of roadside bombs recovered from Iraq and Afghanistan.

The discovery in 2009 of two al Qaeda-Iraq terrorists living as refugees in Bowling Green, Kentucky — who later admitted in court that they'd attacked U.S. soldiers in Iraq — prompted the bureau to assign hundreds of specialists to an around-the-clock effort aimed at checking its archive of 100,000 improvised explosive devices collected in the war zones, known as IEDs, for other suspected terrorists' fingerprints.

More recently — this past August — the Justice Department announced the arrest of Iraqi national Omar Ameen, who entered the United States as a refugee, after it was discovered that he was wanted for the murder of an Iraqi police officer.

All of this makes me believe that such delays, while regrettable, are more than justifiable given the stakes involved, and the uphill battle faced by those charged with vetting and adjudicating applicants under these special programs.

But there is a larger question: Why are aliens outside of the United States being permitted access to litigate whether or not they receive a visa? It has long been a settled matter of law that when aliens seek visas, they are not entitled to file lawsuits to contest denials. This is for the simple and (one would hope) obvious reason that they are outside the boundaries of the Constitution when they are outside of the United States. No alien has the intrinsic right to entry.

There is a practical side as well. According to the DOS Visa Office, in 2017 alone, consular officers adjudicated a total of 13,227,202 nonimmigrant visas, resulting in over 3.5 million denials. This doesn't count the additional hundreds of thousands of immigrant visa applications submitted. If the United States were to permit judicial review of visa delays and denials, the federal courts would be overwhelmed. This is something I touched on in a couple of recent blog posts decrying the lopsided state of affairs favoring aliens in the U.S. court system, and the burden that it is placing on those courts (see here and here).

So, when all is said and done, why is this lawsuit proceeding?