Bills to Speed Resettlement of Afghan Allies Cut Corners on National Security, Fraud, and Public Health

Dan Cadman is a Fellow at the Center for Immigration Studies.

Author's Note: As this report was going to publication, there was breaking news that the president intends to evacuate and temporarily relocate Afghan SIV applicants to several countries not yet firmly identified, as well as possibly the U.S. territory of Guam, while their applications are pending.

Such a move will not mitigate the negative impact of the bills described below. It might, in fact, add to the adverse implications because there will inevitably be significant pressure from these third countries to ensure that they are permanently resettled quickly rather than see them become a resource drain, and potentially a public safety and national security risk, to the host country.

What is more, whatever capacities the U.S. government has in-country in Afghanistan now to check out Afghan claims for vetting purposes would disappear completely.

Finally, there is also the question of using Guam as the site for temporary relocation of Afghan SIV applicants. For immigration purposes, when one enters Guam, one has entered the United States, according to 8 U.S.C. Sec. 1101(a)(38). This has significant implications because individuals who have entered are vested with substantial constitutional rights not available to those outside the U.S. There are significant litigation implications to this; for instance if an alien is denied, he or she will be entitled to the full panoply of removal proceedings and appeals, as well as be in a position to sue the government to attempt to persuade a district court or appellate court judge to overturn any adverse administrative decisions. Such proceedings frequently take years to resolve.

Executive Summary

The United States is drawing down its military force in Afghanistan, ending its involvement in a 20-year war that started with the terrorist attacks of September 11, 2001. President Biden has directed that all troops be out of Afghanistan no later than September 11, 2021.

The withdrawal leaves at risk the existing Afghan government which is still at war with the Taliban and its affiliates, pending the outcome of peace negotiations. Also potentially at risk are those individuals who over the years assisted U.S. military and civilian government officials and their NATO/International Security Assistance Force (ISAF) colleagues.

Since at least 2008, U.S. law has authorized Special Immigrant Visas (SIVs) for Afghans employed by the United States Government, as well as their immediate families, but the pace of issuance has been slow owing to the operational difficulties in completing adequate medical and security vetting. Consequently, there have often been a pool of available SIV numbers beyond the capacity of U.S. officials to process and adjudicate in any fiscal year.

The vetting has been further complicated by instances of complicity in which Afghans employed by the U.S. have been discovered to have links and loyalties to the Taliban, and who have used their positions and access to report on troop movements, vulnerabilities, etc.

Congress has recognized the difficulties in vetting and approving applicants in its many amendments to the laws providing for Afghan SIVs, by balancing requirements to prove that the principal “perform[ed] sensitive and trusted activities” on one hand; with the right to be represented by counsel at all interviews and examinations, to be given a chance to respond to adverse information, and even to appeal denials to the U.S. Chief of Mission, on the other hand.

Fearing a collapse of even nominal law and order after the withdrawal of U.S. troops, members of Congress have introduced bills designed to hasten the completion of pending SIV applications and the adjudication of new applications; to increase the number of SIV slots beyond those already available; and even expand the potential pool of applicants by eliminating key criteria required to apply, even though the existing reserve of available SIV numbers is far from exhausted.

Key Findings

The pending Senate and House bills would eliminate important safeguards built into the law over the years. For example,

• Applicants would no longer have to show that they performed “sensitive and trusted” work to qualify;
• Applicants would no longer have to show that they are at risk if they stay in Afghanistan;
• The number of visas available would nearly double, despite the exceedingly short period of time remaining for a robust presence in the country;
• The need for applicants to have a medical screening for contagious diseases before approval and entry would be eliminated.

As a result of these changes the bills would significantly increase the security, public health, and fraud risks that are inherent in visa programs like this, while doing little to ensure that SIVs are actually being provided to those who deserve them.

Background

With the introduction of two bills, H.R. 3385¹ and H.R. 3985², the House of Representatives has been moving expeditiously to make substantive changes to the Afghan Allies Protection Act of 2009, as amended (the “AAPA”). A bill, S. 2032, has also been introduced into the Senate which contains elements of the language found in H.R. 3385, plus additional new provisions.³

The AAPA⁴ authorizes the issuance of special immigrant visas (SIVs) to Afghans and their immediate families if the principal alien worked for, or on behalf of, the United States government, in a military or civil capacity under specified circumstances; or for, or on behalf of, the International Security Assistance Force (ISAF) and its successor, Operation Resolute Support.

The reason for the push to move these bills toward prompt enactment is because President Biden has announced a full withdrawal of all U.S. troops from Afghanistan by September 11, 2021. Many members of Congress worry that, if left behind, Afghan interpreters, translators, and others who aided U.S. efforts may be subject to revenge attacks by the Taliban in the vacuum created by the withdrawal.⁵

But the question is whether the bills will meaningfully aid U.S. officials in making prompt but appropriate decisions about the grant or denial of SIVs, given the complexities of the military and political situation. As discussed later in more detail, there are reasons to be concerned about whether the bills presently pending before Congress strike the right balance between expeditious processing sufficient to meet the looming 9/11/21 withdrawal deadline, while simultaneously ensuring the security and public health safety of American citizens. This is because the bills waive or eliminate important public health and national security safeguards presently built into the law.

Some observers might conclude that the result will be to vastly expand the available slots and then fill every one, regardless of whether those who fill them have truly provided true and faithful service or not. If so, the granting of these visas in the final months of operation will become an exercise in optics rather than an effort to identify and aid Afghans truly at risk because of their service to the United States and ISAF.

History of the Special Immigrant Visa Program Relating to Afghans

Virtually all readers will remember that our military action in Afghanistan was precipitated by the 9/11 attacks committed by operatives of al Qaeda, which was being sheltered by the Taliban that then ruled the country. The longer our military and civilian cadre stayed and the more they expanded, the more necessary it became to rely on vetted local hires to aid them in their work.

The United States has long recognized its special responsibilities toward individuals who aid our military and civilian missions throughout the world. As our stay lengthened and expanded, the decision to issue special immigrant visas to Afghans who helped us became an inevitability, but the pace of issuance has been slow owing to the difficulties in completing adequate medical and security vetting in a country wracked with decades of violence and inadequate infrastructure or safe facilities in which to perform required examinations outside of the reinforced portions of the capital area (the so-called “Green Zone” of Kabul).

In 2005, a provision was added to the National Defense Authorization Act (NDAA) for FY 2006⁶ which established SIV programs for both Iraqis and Afghans employed as translators by the U.S. government, plus their immediate families. The following year, the Consolidated Appropriations Act (CAA) for FY 2008 contained a provision directing that any unused SIV numbers from the prior year should be rolled over and continue to be made available to eligible applicants.⁷ Together, these two bills formed a pattern that would endure to the present: both Iraqi and Afghan SIV laws from 2007 onward have always been buried in much larger legislation, such as the yearly National Defense Authorization Acts and Consolidated Appropriations Acts; none have ever survived passage as stand-alone bills.⁸

Two years later, Congress enacted the Afghan Allies Protection Act of 2009 (AAPA), as a separate and distinct program from the Iraqi SIV program. As usual, it was embedded in a larger bill: the Omnibus Appropriations Act for FY 2009.⁹ It has formed the basis of the Afghan SIV program since that time, although it has been amended on at least 13 occasions through various NDAAs and CAAs.

The AAPA as amended authorizes the issuance of special immigrant visas (SIVs) to Afghans and their immediate families, if the principal alien worked—

• for, or on behalf of, the United States government (USG), in a military or civil capacity under specified circumstances; or
• for, or on behalf of, the International Security Assistance Force (ISAF) and its non-military successor, Operation Resolute Support (hereinafter simply referred to as “ISAF” for brevity), operating in Afghanistan under the auspices of the North Atlantic Treaty Organization (NATO).¹⁰

Readers should note that the phrase, “on behalf of” has been construed to include individuals employed by contractors of the U.S. government or ISAF if they meet the other specified criteria.

One of the ground realities of the AAPA is that it has been extremely difficult to administer in a country where the Taliban has ruled vast swathes of territory that ebb and flow with the tides of war. It has not been uncommon for U.S. government officials to be unable to complete applications for significant periods of time. Medical examinations are difficult to perform, and national security and public safety vetting is onerous. For this reason, there is often an unused pool of SIVs available.¹¹

Yet notwithstanding the difficulties, from FY 2010 through May 31, 2021, well over 70,000 principals and their families have been processed, approved, and admitted to the United States.

As Congress deliberates what to do with the SIV program and how to do it, the Biden administration appears to be doing exactly the same thing. In February of this year, the president issued an Executive Order with a section (Sec. 3) that deals specifically with the SIV programs for Iraqis and Afghans.¹² Section 3 is extensive, levying a number of procedural and reporting requirements on the secretaries of State, Defense, Homeland Security, and Health & Human Services, all of which are intended to hasten the pace at which applications are received and adjudicated and, presumably, approved. Among many other things, the secretaries are enjoined to—

• assess whether there have been undue delays in meeting statutory benchmarks for timely adjudication of applications;
• assess whether adequate guidelines exist for reconsidering or reopening applications in appropriate circumstances and consistent with applicable law;
• ensure existing procedures and guidance are sufficient to permit prospective applicants a fair opportunity to apply and demonstrate eligibility; and
• ensure that applicants are not prejudiced by delays in verifying their employment.

Despite public pronouncements of confidence in the future of Afghanistan, and presidential assurances to the leaders of Afghanistan's government that they are not being abandoned¹³, there is ample room to worry about the future of Afghanistan after U.S. withdrawal; the Taliban has never concerned itself with outside views of its conduct. During its reign over the country from 1996-2001 it engaged in barbarous conduct including stoning of women for various offenses against Islam. Every Friday, after prayers and before a soccer match, the Taliban used the country's national soccer stadium to stage public executions and maimings of apostates and others who violated their strict, fundamentalist view of Islamic Sharia law.¹⁴

There is a strong moral imperative for the United States to stand behind those who aid us. For Americans of a certain age, images of our ignoble retreat from Vietnam, with U.S. Marines on the embassy roof in Saigon shoving desperate persons away from the last overcrowded helicopters to depart the country, are seared on our consciousness. No one wants a repeat of such a scenario. But Afghanistan is a country where alliances shift like sands of the desert, and where in some years “green-on-blue” attacks inflicted on U.S. and NATO troops by our ostensible allies in the Afghan army and police forces constituted a significant proportion of the total of dead and wounded: 15 percent in 2012:

In May 2012, ISAF commander General John Allen said that about half of the green-on-blue attacks have been carried out by Taliban infiltrators. In August, General Allen said that approximately 25% of the green-on-blue attacks were due to Taliban infiltration and/or coercion of Afghan forces, according to The New York Times. The Taliban routinely take credit for the attacks.¹⁵

It is a certainty that some of those who gained employment with U.S. or ISAF forces did so for the purpose of reporting back to the Taliban.¹⁶

Afghanistan is also a country plagued with serious communicable illnesses ranging from tuberculosis to hemorrhagic fever to unchecked COVID-19 to cholera.

What the Proposed Amendments Would Do

The three bills discussed in this analysis, H.R. 3385, H.R. 3985, and S 2032, would significantly alter the way in which the AAPA is administered and almost certainly result in approval of an unknown number of individuals who would be ineligible under the law as presently written. The effect of these amendments is discussed individually for each bill below.

H.R. 3385, the “Honoring Our Promises through Expedition (HOPE) for Afghan SIVs Act of 2021”. This bill amends the provisions of the Immigration and Nationality Act (INA) that require intended immigrants to take, and pass, medical examinations prior to entry, and permits Afghans to enter without such medical clearances and be given conditional SIV status, It does so by authorizing the secretaries of State and Homeland Security to jointly grant one-year waivers of those examinations by SIV applicants. Further, the waivers are extendable in one-year increments, thus permitting the admission to the United States of individuals who might otherwise be inadmissible on health grounds.

Note that the provisions of this bill do not specify any limitations on the number of extensions that may be granted, thus at least in theory permitting an indefinite delay in medical examinations for immigrant visa purposes. Note also that upon expiration of the final waiver, whenever in the indefinite future that might be, and within 30 days of admission as a conditional SIV entrant, the Secretaries of Homeland Security and Health & Human Services are directed to ensure “to the greatest extent practicable” that the alien undergoes such an examination. It is only after the examination establishes that the alien in not inadmissible under those provisions of the INA barring individuals with dangerous communicable diseases, that the conditional status will be lifted.

While the provisos of this bill seem notionally workable, there are in fact a number of practical difficulties with how it would work in real life. The first, of course, is that law does not limit the number of waiver extensions. The second, and more serious, issue is that individuals who have not been medically screened will be allowed to enter the United States. If an Afghan entrant does, in fact, have one or more dangerous communicable diseases, he or she will be a vector—a carrier—free to mingle among an unsuspecting U.S. population. How likely is this? Recent reports out of Afghanistan indicates that COVID-19 is out of control, having risen by 24,000 percent in a single month as of mid-June.¹⁷

As the U.S. embassy in Kabul notes in pertinent part on its public website,

• New cases and deaths from COVID-19 have risen sharply throughout Afghanistan. Hospitals are reporting shortages of supplies, oxygen, and beds for both COVID-19 and non-COVID-19 related patients. U.S. citizens have reported being denied admittance to hospitals due to lack of space.
• The U.S. Centers for Disease Control and Prevention (CDC) has issued a Level 4 Travel Health Notice . . .¹⁸

But COVID is not the only problematic communicable disease in the country. According to the Borgen Project¹⁹, three of the 10 most common diseases afflicting Afghans are—

• Tuberculosis, which affects 35 percent of the population;
• Cholera, which can be transmitted person-to-person through poor hygiene resulting in relay of the fecal matter containing the virus; and
• Crimean-Congo Hemorrhagic Fever, a highly contagious viral disease in the same family as Ebola that kills upward of 30 percent of its victims. Although it is initially tick-borne, according to the National Institutes of Health, “to date, there is no vaccine or specific treatment available and the knowledge regarding its pathogenesis is highly limited.”²⁰

It is difficult to conceive of the United States granting admission and free rein to move about without medical checks for extended periods, to a population of individuals who may be vectors for such serious diseases, especially given the disastrous and tragic consequences our nation experienced with the COVID pandemic, which has caused nearly 600,000 deaths.²¹

The third and final concern in this bill is the proviso that the Homeland Security and HHS secretaries establish procedures to ensure “to the extent practicable” that aliens receive their medical examinations. What effective procedures could possibly be adopted? Upon entry, these aliens are free to move around wherever they wish; chances are good that many will reestablish themselves in communities far from where they are first placed, and become difficult to find. They are in receipt of immigrant status, and the fact that it is conditional makes no material difference in their lives. There is little that the U.S. government can do that would be effective to induce a fearful or ignorant or restive SIV recipient to undergo a medical examination. The threat of detention or repatriation of this group of aliens is nonexistent should they choose not to comply: there is no legal basis for such an action and it would not be countenanced in any case, even though the net consequence is to put an unwitting American public at risk of serious and potentially fatal communicable diseases.

H.R. 3985, the “Averting Loss of Life and Injury by Expediting SIVs Act of 2021”. This bill adds 8,000 visas to the pool of already-available and unused visas. The bill also strikes various existing reporting requirements. This is unfortunate because the current reports require the secretaries of State and Homeland Security to—

. . . describe actions taken, and additional administrative measures that may be needed, to ensure the integrity of the program established under this subsection and the national security interests of the United States related to such program. (Emphasis added)

Abandoning such language implicitly sends the wrong message to both applicants and government officers responsible for the SIV program.

Equally significant, the bill eliminates existing language built into the law requiring that applicants have performed “sensitive and trusted service” in their capacities while working with U.S. military forces assigned to ISAF. This modification opens the door for any alien with even a tangential claim to aiding U.S. forces while assigned to ISAF to make a claim. Contrary to ensuring that deserving Afghans receive SIVs in a prompt and accurate fashion, it is likely to open the application floodgates between now and 9/11/21 to applicants with marginal or frivolous claims, making it much more difficult for the responsible U.S. agencies to vet and adjudicate legitimate applicants.

The combined effect of the eliminated language and the substituted language bodes ill for the integrity of the program since as the deadline gets closer, there will inevitably be considerable pressure applied downward to government field-level officers to approve applications, and in the process it's entirely possible that many inadmissible individuals—including those who pose dangers to the national security and public safety—may be granted entry.²²

Additionally, the bill eliminates existing requirements that SIV applicants provide a showing that they face a serious threat. While it could be argued that Afghans who significantly aided USG and ISAF forces face a serious threat upon withdrawal, the practical consequence of eliminating the requirement, like elimination of the requirement to have performed sensitive and trusted service, is that it will result in a cascade of new applications, many from individuals whose service was marginal or, worse, whose loyalties are questionable. It has happened before with both Iraqi and Afghan entrants.²³ This will only make it more difficult to separate the wheat from the chaff.

Curiously, given the elimination of the serious threat requirement, there is language in the bill (that was not incorporated directly as an amendment to the AAPA) which requires the Secretary of State to submit to Congress a report detailing procedural improvements to adjudication of applications submitted to the U.S. Chief of Mission, Kabul, as well as a report—

. . . on the procedures and processes used by the Chief of Mission to determine whether an Afghan applicant for a special immigrant visa under section 602 of the Afghan Allies Protection Act of 2009 (8 U.S.C. 1101 note) has experienced, is experiencing, or may reasonably be expected to experience an ongoing, serious threat as a result of the qualifying service of the applicant. (Emphasis added.)

The two provisos appear to be entirely inconsonant with one another.

S. 2032, the ‘‘Afghan Allies Protection Act of 2021’’. This bill nearly doubles the available pool of SIVs from 26,500 to 46,500. Given that there are less than two months left until the U.S. withdraws its military forces, and there is doubt that the U.S. embassy will be able to function fully and efficiently thereafter, one must wonder exactly how such a huge number of SIV applications could possibly be received, vetted and adjudicated adequately in such a short period of time. Yet who can doubt that any number of shady operators, middlemen, “facilitators” and others in Kabul will sell their services to Afghans willing to pay any price for help in submitting applications in the hope that they will be chosen, whether or not they are in fact eligible at all. Such a flood of applications also opens the doors to more than just ineligible fraudsters submitting false documents. The Taliban and its colleagues in a number of other Islamic fundamentalist movements (such as al Qaeda with whom it still maintains collegial relationships) would be foolish not to attempt to plant operatives in the United States given such a golden opportunity.

The bill also requires the U.S. Chief of Mission to reopen, of his/her own accord, any prior application that was “erroneously denied”, whether or not the applicant appealed, and whether or not such an appeal, if filed, was denied.

Note also that although existing law provides that appeals must be filed within 120 days of a denial, this bill adds a clause “...or thereafter at the discretion of the Secretary of State.” One wonders how such a process would work and whether in the end it would also result in a flood of post-appeal motions to reopen being submitted to the secretary in hopes that he or she might be inclined to exercise such discretion. The burden of handling so potentially massive an amount of paperwork, much of it baseless, would be huge. There are also litigation risks in instances where the Secretary of State declines to exercise his newly-authorized discretion to grant waivers, because lawsuits may be filed alleging he abused that discretion through denial.²⁴

Like H.R. 3985, the Senate bill strikes language in existing law that requires submission of evidence of a serious threat to the applicant based on his or her employment with the USG or ISAF.

And like H.R. 3385, the Senate bill provides for waivers of medical examinations otherwise required prior to an immigrant's entry into the United States. Such waivers are for one-year periods, indefinitely extendable for additional one-year periods, provided that the individual receives a medical exam within 90 days of entry. But, as with H.R. 3385, one wonders exactly how the Secretaries of Homeland Security and HHS can force aliens to do this if they are indifferent to the importance and disinclined since there are no workable mechanisms in the law that give the U.S. government leverage in the matter. Afghan immigrants are smart enough to know they will not be taken into custody and returned. In any case, 90 days in the U.S. without medical exams is more than enough time for diseases to spread from infected carriers into the U.S. population.

Conclusion

Many believe that although remnants of al-Qaeda exist throughout the region it has been vastly weakened by U.S. and allied military actions. By contrast, the Taliban still controls and functionally rules vast swathes of Afghanistan, and has proven an intractable foe for the Afghan government, as well as U.S. military and NATO ISAF forces. It may not be able to win the country by force but its capacity to persevere has gained it concessions at the negotiating table in Qatar while in return it has offered little except assurances that it is willing to engage in dialogue with the Afghan government, once all foreign forces have been withdrawn.

Taliban leaders have also claimed that they are “committed to peace talks, adding that they want[ed] a 'genuine Islamic system' in Afghanistan that would make provisions for women's rights in line with cultural traditions and religious rules. The statement came amid slow progress in the talks between the hardline Islamic group and Afghan government representatives in Qatar and as violence rises dramatically around the country ahead of the withdrawal of foreign forces by September 11.”²⁵ However, their actions on the ground tell a different story.

According to a May 18, 2021 story by NBC News:

During the first three months of 2021, the Taliban stepped up attacks against the Afghan people, maintained close ties with Al Qaeda and actively planned for large-scale offensives — all while peace talks between the Taliban and the Afghan government failed to make any progress, according to a new report by the Defense Department's Office of Inspector General.

"U.S. Forces-Afghanistan reported a historic increase in enemy-initiated attacks since the signing of the U.S.-Taliban agreement, with nearly 37 percent more enemy-initiated attacks this quarter than during the same period in 2020," the report from the Pentagon's internal watchdog said about Operation Freedom Sentinel, the name of the U.S. counterterrorism mission in Afghanistan.

Citing information provided by Resolute Support, the NATO mission in Afghanistan, the inspector general found that enemy-initiated attacks in the first and second quarters of fiscal year 2021 remained above historical averages, with 11,551 reported this quarter and 10,431 last quarter.²⁶

In Afghanistan, poverty, primitive living conditions, and a near-complete absence of health care are the rule for the vast majority of the population. It is unlikely that SIV entrants and their families will maintain the kind of hygienic standards Americans take for granted, and if for no other reason than this, they may not readily recognize or care about the need for medical examinations to determine their admissibility—after all, they have already effected entry. This also means that they may, in the ordinary course of daily life, could expose everyone they come into contact with to diseases such as tuberculosis, COVID, cholera, and hemorrhagic fever.

There is also the substantial question about the wisdom of loosening or eliminating existing standards for approval of SIVs, given the realities of Afghanistan, a country in which violence and warfare have been a way of life for many decades. This has resulted in a fracturing of the social order, an adherence to tribalism, and a commonplace acceptance of brutality. The form of Islam practiced is extremely conservative; honor killings are common²⁷; and women are routinely relegated to second-class status. New arrivals will struggle to understand or adhere to our laws and social mores, even as they find themselves questioning the liberal nature of our culture and attitudes toward sex, gender, and a host of other subjects. This promises to be an enduring assimilation problem, and many will not adapt. They may find themselves on the wrong side of our legal system or, worse, embracing a fundamentalist interpretation of Islam after-the-fact which works to radicalize them even if they were not members or associates of the Taliban before they were admitted to the United States.

It is likely that broadening the opportunities for application in the ways mandated by the pending bills will most assuredly overwhelm U.S. officials in the last crucial weeks, resulting in poor vetting and approvals of individuals who never provided faithful service, never performed in sensitive and trusted positions, and are unlikely at risk. They may even have been members or associates of the Taliban whose role was in fact to spy and report back on U.S. military and civil officials and their programs and operations. Such individuals, once in the United States, may prove to be volatile national security threats.

In sum, while the United States does indeed owe a debt of thanks and a helping hand in relocation of legitimate SIV applicants, past history shows that the program is also susceptible to penetration by enemies of the United States. Any legislation designed to facilitate granting of SIVs must be phrased in ways cognizant of the potentials for fraud and abuse, not to mention admission of enemy combatants and terrorists.

Endnotes