A federal court late Wednesday stopped the Trump administration from deporting an Afghan man who is trying to enter the United States with a special visa reserved for those who have assisted the U.S. mission in Afghanistan at great risk to their own lives.
Hours before immigration officials were set to send the Special Immigrant Visa-recipient back to Afghanistan, the Court of Appeals for the 3rd Circuit on Wednesday granted a temporary stay of the deportation in response to an emergency request by the man’s lawyers.
Department of Homeland Security officials detained the man, whom lawyers declined to identify for privacy reasons, when he arrived at Newark International Airport on Monday night, said Elizabeth Foydel, a lawyer for the International Refugee Assistance Project, one of three groups seeking his release.
His case would have been the first known removal of an Afghan recipient of the Special Immigrant Visa (SIV) and is the second case in a matter of days involving SIV holders being detained while trying to enter the United States legally.
Foydel said immigration authorities had held the 25-year-old for nearly 36 hours without providing access to a lawyer, during which time the government says he voluntarily withdrew his application for entry to the United States. The U.S. State Department revoked his visa, at the request of Customs and Border Protection (CBP), Tuesday night, she said.
CBP officials declined to comment on the man’s case.
A federal judge had denied an initial request by the man’s lawyers to prevent the deportation, but the appeals court blocked his removal.
Authorities earlier this month also sought to block an Afghan national carrying the same type of visa from entering the country with his wife and young children. A federal judge in Los Angeles last week halted an attempt by immigration officials to deny the family’s entry.
The U.S. government created the SIV program for Iraqi and Afghan nationals in 2007 in an effort to provide an immigration opportunity to people in those two countries who helped the U.S. missions there, often as interpreters for U.S. troops and diplomats, and at great personal peril.
The SIV vetting process is extensive and requires approval by multiple government agencies, including the DHS. Some applicants have gone into hiding to protect themselves while waiting years for approval to travel to the United States.
U.S. law stipulates that a successful Afghan SIV applicant must demonstrate Afghan citizenship or nationality, have been “employed by or on behalf of the United States Government in Afghanistan . . . for not less than one year” and have provided “faithful and valuable service to the United States Government.”
Advocates for the program, which has long enjoyed bipartisan support, say they fear that incidents such as this man’s attempted removal — coming on the eve of a new government travel ban targeting primarily Muslim countries — could indicate a broader shift in U.S. policy. Advocates also argue that the visas are not only necessary to protect those who have helped the United States, but they also ensure further help and cooperation in U.S. war zones in the future.
The Trump administration had planned to implement on Thursday a travel ban on new visa applicants from six majority-Muslim countries, a measure it says will prevent potential terrorists from entering the United States. But a federal judge in Hawaii froze the executive order nationwide Wednesday. Afghanistan, also a majority-Muslim country, is not on the list of countries Trump wants to ban, but the Afghan SIV holders’ lawyers think the detentions — for which immigration authorities have provided no reason — are related to the policy move.
In the first case involving an Afghan SIV holder, federal officials in Los Angeles this month detained an Afghan family, including three small children, as they entered the country. The family was released without charge last week after a federal judge intervened; the family had been held for four days.
Customs and Border Protection does not typically comment on individual cases, and an agency official declined to do so Wednesday. But the official said that a variety of things, including newly accessible intelligence, an individual’s answers to questions, general “nervousness” or “a lack of eye contact” can all factor into a border official’s decision to deny a person entry to the country, regardless of what kind of visa the person is carrying.
“It is on the traveler, the burden of proof, to show that they are admissible to the United States,” said the official, who spoke on the condition of anonymity because he was not authorized to comment publicly.
Foydel said it is difficult to say whether her client “fully understood the implications of what he was doing” when he agreed under questioning to relinquish his visa.
And Marion Goins Leon, a former soldier and contractor with the U.S. military who had worked with the man in Afghanistan, said the man’s English is limited enough that “if you talk to him too fast, he doesn’t understand.”
The government’s argument appeared to hinge on the fact that man no longer had a valid visa — because it was revoked — and that, under questioning from border officials, he “explicitly stated that he has no fear of returning to Afghanistan; and (2) voluntarily withdrew his application for admission to the United States,” according to the decision by Judge Jose L. Linares of the U.S. District Court for the District of New Jersey. “Furthermore, the Government argues that aliens have no Constitutional right to entry to the United States or to a visa, even if they present themselves at a port of entry.”
Sens. Jeanne Shaheen (D-N.H.), John McCain (R-Ariz.), Jack Reed (D-R.I.) and Thom Tillis (R-N.C.) on Wednesday introduced a bill to authorize an additional 2,500 Special Immigrant Visas for Afghans, after program advocates reported last week that the U.S. Embassy in Kabul had halted the evaluation of new applicants.
“This is a matter of life and death for interpreters and other support staff. As we speak, many of them are being hunted down by the Taliban and other terrorists,” Shaheen said in a news release Wednesday. Shaheen spokesman Ryan Nickel said the senator last week sent a letter to DHS Secretary John Kelly, requesting information about the circumstances of the Afghan family’s detention in Los Angeles. She did not receive a reply, Nickel said, and the senator planned to send another inquiry Wednesday about the Afghan man slated for deportation in New Jersey.
“We have a moral obligation to protect the thousands of Afghans who put themselves, and their families, at risk to help our soldiers and diplomats,” Shaheen said. “To abandon them now would be a stain on our nation’s honor.”
McCain, a decorated military veteran, echoed that concern: “We simply cannot win this war without the assistance of the Afghan people who put their lives on the line to help American troops and diplomats serving in harm’s way.”
Leon, the former soldier and military contractor who had employed the man in Afghanistan and sponsored his SIV application, said he had at one point provided his employee housing on the U.S. military base where he worked, because the man had been harassed and attacked on his way to work.
Leon said he had previously helped get about 10 of his former employees into the United States with visas. “He’s the first one they did this to,” Leon said.
This article has been updated.