FEDERAL COURT RULES TRUMP ADMINISTRATION VIOLATED LAW WITH VISA DELAYS FOR AFGHANS AND IRAQIS COVERED BY SIV PROGRAM

Written by: Taher Kameli, Esq.

While the general subject of immigrant rights often results in significant political debate, certain groups of immigrants receive special protection under the law.  One such group of immigrants are certain Afghans and Iraqis covered by the Special Immigrant Visa (SIV) program. If you are covered by the SIV program, a law passed in 2013 requires that your visa application must be processed within 9 months.  However, on September 20, a Federal court ruled that the Trump administration violated this law with visa delays for certain Afghans and Iraqis covered by the SIV program.

U.S. District Court Judge Tanya Chutkan, in the U.S. District Court for the District of Columbia, issued the ruling in the case of Afghan and Iraqi Allies Under Serious Threat Because of Their Faithful Service to the United States, on Their Own and on Behalf of Others Similarly Situated v. Pompeo, 2019 U.S. Dist. LEXIS 160619 (D.D.C. 2019).  In describing the background of the case, Judge Chutkan stated, “Plaintiffs represent a class of individuals who, despite real and significant personal risk, aided the United States in its time of need and now look to the United States for protection for themselves and their immediate family members.  Plaintiffs are five anonymous Afghan or Iraqi nationals seeking refuge in the United States. They allege that they ‘provided faithful and valuable service to the US government or its allied forces’ in their capacities as employees of or on behalf of the United States government over the past several years. . . . They claim that because of their service, they ‘face an ongoing serious threat to their lives in their home countries.’ . . . Because of these threats, they submitted Special Immigrant Visa (‘SIV’) applications to the U.S. Department of State, seeking lawful admission into the United States. . . . Plaintiffs bring this case on behalf of themselves and a class of all people who have applied for an Afghan or Iraqi SIV pursuant to the Afghan Allies Protection Act . . . or the Refugee Crisis in Iraq Act . . . and whose applications have been awaiting government action for longer than 9 months. . . . They claim that Defendants have failed to process and adjudicate their SIV applications within a reasonable time”.

Citing in the record such facts as “[a]t least 7,700 applications have been pending for longer than the 9-month benchmark referenced in the statute . . . [o]f those 7,700 applicants, over 5,300 have waited an average of 2.5-5 years for COM [“Chief of Mission”] approval, and over 2,300 have waited an average of three years after receiving COM approval”, Judge Chutkan ruled, “Defendants argue that the delays are a result of their obligation to balance national security with individual eligibility for a visa.  However, the construction of the statute makes clear that Congress was patently aware of the national security implications when it set the 9-month time limit. . . . Defendants’ interpretation of the statute – that Congress gave ‘unequivocal direction’ to Defendants ‘to take whatever time is required to resolve national security concerns’ on cases that have not been designated as high risk . . . – is tortured and untenable. Similarly, the fact that the adjudication process is a complex one does not excuse delays of such magnitude, because Congress explicitly referenced that complexity in the 9-month provision.  The statutes provide that ‘all steps under the control of the respective departments incidental to the issuance of such visas, including required screenings and background checks, should be completed not later than 9 months.’ . . . (emphasis added) . . . It is clear that Congress did not intend to give Defendants an unbounded, open-ended timeframe in which to adjudicate SIV applications. . . . Plaintiffs have provided support for their argument that the delays (1) place Plaintiffs’ lives in danger, (2) cause Plaintiffs to live with the stress and anxiety of trying to protect themselves and their families from danger, (3) prevent Plaintiffs from adequately planning for the future, and (4) harm national interests, because delays undermine other countries’ trust in this country’s commitments. . . . Accordingly, within thirty days of the resolution of the class certification dispute, Defendants shall submit a plan for promptly processing and adjudicating the applications of current class members”.

Deepa Alagesan, of the International Refugee Assistance Project, praised the decision, stating, “This ruling could finally bring relief to these men and women and their families who have been waiting in fear for far too long . . . They served bravely in support of our missions abroad, and we promised them a pathway to safety in return.  This ruling ensures that we keep our promise”.

It was unclear if the government intends to appeal Judge Chutkan’s decision.  

While the law was definitely on the side of the plaintiffs, the decision in the Afghan and Iraqi Allies case was definitely helped by good lawyering work by the plaintiffs’ attorneys.  When immigrant rights are being challenged, it is important for the immigrant to hire skilled immigration lawyers, such as the Law Offices of Kameli and Associates, which has had years of experience and success in immigration litigation matters.  If you need help on any immigration matter, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for assistance.