A new nationwide settlement granted this month will help approximately 20,000 Afghan people who arrived in the United States under Operation Allies Welcome after the U.S. government evacuated Afghanistan in August 2021. The settlement, in a class action lawsuit filed last April by our team at the National Immigrant Justice Center (NIJC) and Kirkland & Ellis LLP, is one of the largest of its kind in recent history.

When the U.S. government withdrew from Afghanistan and offered refuge to thousands of people who faced immediate danger of persecution by the Taliban, Congress instructed the Biden administration to make asylum decisions within 150 days of people filing their applications. But thousands of Afghan people are still waiting for an asylum decision well past that deadline. Many have spouses and children trapped in Afghanistan, where they are living under constant threat of danger.

The named plaintiffs in Ahmed v. DHS include people who worked for U.S. agencies in Kabul, women’s rights advocates, a healthcare worker, a teacher, and a journalist.

“I always trusted the U.S. government, but this situation has hurt so many people seeking permanent relief,” said Mursal Sadat, a representative of the class. “I am very happy that we have reached a settlement that will change this situation, so that asylum seekers can restart and rebuild their lives.”

We're also working on ongoing litigation challenging President Biden’s asylum ban.

At the end of Title 42, migrants and advocates hoped for a more welcoming approach from the Biden administration. Instead, they were met with new restrictions, including an asylum ban that violates the rights of asylum seekers and mimics two harmful regulations imposed by former President Trump, both of which were found illegal. As one judge described it, President Biden’s rule, “looks like the Trump administration’s Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app.”

Before the ban took effect, NIJC began working with partner organizations, and asylum seekers to challenge it.

On May 11, NIJC joined the American Civil Liberties Union Immigrants’ Rights Project, ACLU of Northern California, and Center for Gender & Refugee Studies in filing a legal challenge (East Bay Sanctuary Covenant v. Trump) against Biden’s asylum ban on behalf of nonprofit organizations that serve asylum seekers.

The following month, NIJC and the same partners filed a second case (MA v. Mayorkas) in the District Court for the District of Columbia that challenges the ways the ban and related policies have entirely shut off asylum at the U.S.-Mexico border. The plaintiffs in this case are 18 individual asylum seekers and two additional organizations.

The ban denies asylum for everyone at the border who passed through another country en route to the United States (i.e., people from countries other than Mexico), except for those who are able to obtain CBP One appointment (a severely flawed system relying on a smart phone app); the rare person who first sought and was denied asylum in another country; or those who can prove that they qualify for one of a few other extremely narrow exceptions. NIJC has also challenged related policies that force asylum seekers from certain countries back to Mexico, speed up the credible fear process, and force people seeking asylum to undergo their initial asylum screenings (called "credible fear interviews") while detained by U.S. Customs and Border Protection (CBP) in facilities where their access to legal services is virtually impossible.

In July, Judge Jon Tigar of the U.S. District Court of the Northern District of California ruled the ban was illegal, but the Ninth Circuit Court of Appeals granted a stay of the ruling, allowing the government to pursue an appeal while the ban remains in place. Oral argument on that appeal is set for November 7, 2023. 

“Every day the asylum ban rule remains in place increases the risk of harm for people who have been forced from their homes and have come to our country seeking safety,” said NIJC Senior Litigation Attorney Richard Caldarone. “It’s unconscionable that the Biden administration continues to defend policies that the federal courts have repeatedly found unlawful and that block people from access to asylum.”

Christopher* fled Ecuador in May after receiving multiple threats from an organized crime group. Because of this group’s presence in several countries, Christopher felt that the only place he could be safe was in the United States. When he arrived at the U.S.-Mexico border, Christopher spent days trying to secure a CBP One appointment.

“There were people saying that they had to wait six months, four months [for an appointment] with CBP One,” Christopher said.

Afraid that something would happen while he waited for an appointment, Christopher decided to enter the U.S. and turn himself into immigration officials. He spent over 50 days in immigration detention.

While in detention, Christopher only learned about the asylum process through other people also seeking asylum. Without any direction from immigration officials on the process or access to legal help, they helped each other prepare for their credible fear interviews to have the best opportunity to pass.

“There were many people in the same situation that I was in. The majority of people didn’t know what to say or talk about. We helped each other prepare for the credible fear interviews,” he said.

Christopher’s asylum claim was denied and he is currently facing deportation. Frustrated by the lack of consideration he got for his asylum claim and fearful for his life, Christopher agreed to join others as a plaintiff in NIJC’s second challenge to President Biden’s asylum ban. While that case is pending, Christopher is able to remain in the United States, but beyond that time his fate is uncertain.  

“There’s an insecurity to this [process]. I don’t feel at ease,” Christopher said. “If they granted me political asylum, it would be wonderful because that’s why I came here.”

We’ll continue to keep you updated on breaking developments in these cases and other important immigration issues. If you want to support people seeking asylum, you can donate to NIJC to fund efforts to defend immigrants and their right to seek asylum. If you are a lawyer and want to volunteer, learn more about being a pro bono attorney with NIJC and represent people seeking asylum (we have more than 100 people on our waiting list who need pro bono representation).

Thank you!

Keren Zwick
Director of Litigation, National Immigrant Justice Center

*Client’s name has been changed to protect their privacy.

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