Deportation of Afghan refugees from the United States

Deportation of Afghan refugees from the United States refers to the refoulment of Afghan refugees with no criminal conviction and the involuntary removal of Afghan-Americans who have been convicted of a common crime in the United States. Some of these individuals in removal proceedings were admitted to the United States in the 1980s with their refugee family members after escaping from genocide and persecution, and have continuously spent decades as legal immigrants (potential U.S. nationals).
According to the Immigration and Nationality Act (INA), the Afghan-Americans did not enter the United States with immigrant visas as lawful permanent residents but rather with special travel documents as refugees. As such, they have been immunized against deportation from the United States since 1980 when the U.S. Congress enacted INA §§ 207 and 209, 8 U.S.C. §§ 1157 and 1159. This legal finding is supported by latest precedents of all the U.S. courts of appeals and the Board of Immigration Appeals (BIA), which are binding on all immigration judges and Department of Homeland Security (DHS) officers.
History.
An Afghan-American in deportation proceedings has been reported in 1945. The immigration officials suspended (cancelled) his deportation, which allowed him to remain in the United States with his American family.
Afghans escaping from genocide and persecution in Afghanistan.
Afghanistan began to experience a great turmoil in the 1970s, which resulted in a mass exodus of its citizens, who were first admitted to neighboring Pakistan and Iran as refugees escaping from: (1) genocide that was orchestrated by the communist People's Democratic Party of Afghanistan (PDPA); and (2) political repression of the mujahideen, who were engaged in a guerrilla warfare with the PDPA. Iran and Pakistan have never provided citizenship or permanent residency to these Afghan refugees.
In 1980, the U.S. Congress and the Carter administration enacted the Refugee Act, which approved 50,000 international refugees to be firmly resettled in the United States each year. Before enacting the Refugee Act, Congress was well aware of the fact that these refugees are not priests and nuns but ordinary people prone to committing a crime just like Americans commit a crime in the United States.
Firm resettlement of Afghan refugees in the United States.
Each year, from 1980 onward, groups of Afghan refugee families lawfully entered the United States. These families were issued by the U.S. Department of State special travel documents. At least one such family entered with fraudulent documents and applied for asylum in the United States. After residing for at least one year in the United States, the then Immigration and Naturalization Service (INS) adjusted their status to that of lawful permanent residents (green card holders). This process statutorily protected them from refoulment (forceful deportation) for lifetime.
These refugee families were distributed all across the United States. Most were "firmly resettled" in and around New York City, California, Northern Virginia, Florida, and Texas. In 1982, the U.S. Supreme Court reminded all immigration officials that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." That opinion was issued after Congress and the Reagan administration "firmly resettled" in the United States refugees from various troubled countries.
United States Congress provides statutory relief to Afghan-Americans against removability.
The INA historically stated that "[t]he term 'alien' means any person not a citizen or national of the United States." The terms "inadmissible aliens" and "deportable aliens" are synonymous. If an Afghan-American is not inadmissible to the United States then he or she is plainly and unambiguously not removable from the United States. Anything to the contrary will make deportation from the United States a paid international vacation for him or her and a "cruel and unusual punishment" for others. For example, some deportees could successfully make the U.S. government pay them hundreds of thousands (or possibly millions) of dollars while others could end up committing suicide.
In this regard, INA § 207(c), 8 U.S.C. § 1157(c), expressly provides the following:
INA § 209, 8 U.S.C. § 1159, provides the following:
In addition to the above provisions, INA § 212(h), 8 U.S.C. § 1182(h), provides the following:
The above legal finding "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant." Congress clearly treated refugees (i.e., established victims of persecution who have absolutely no safe country) differently than all other aliens (who do have a safe country and are not victims of persecution). There is nothing ambiguous in the plain language of § 1157(c)(3), 1159(c), or 1182(h). If Congress wanted to treat refugees the same as all other aliens, it would have repealed §§ 1157(c)(3) and 1159(c) instead of amending them in 1996 and then in 2005. This clearly demonstrates that it intentionally made available a statutory and mandatory legal remedy to refugees. Under the well known "Chevron" doctrine, "[i]f the intent of Congress is clear, that is the end of the matter, for the court as well as the [Attorney General] must give effect to the unambiguously expressed intent of Congress."
It is also crucial to take notice that the penultimate provision of § 1182(h), where it repeatedly mentions the phrase "under this subsection", obviously does not apply to any Afghan-American requesting relief under §§ 1157(c)(3) and 1159(c), or under the United Nations Convention against Torture (CAT). In other words, that commanding concluding statement of § 1182(h) only applies to aliens who were admitted to the United States as lawful permanent residents in accordance with Form I-130, Form I-140, Diversity Immigrant Visa, etc. The Afghan-Americans who were admitted as refugees in the 1980s are still refugees under the INA and international law because (1) they continue to be victims of persecution and (2) they have absolutely no safe country of permanent residence. This means that any such Afghan-American who has been convicted of any offense mentioned in § 1101(a)(43)(A) is not (and has never been) precluded from relief under §§ 1157(c)(3) and 1159(c) or the CAT. It has long been understood in the United States that whenever "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."
The above provisions are in clear harmony with each other and the overall law of the United States, including with international law. Secondly, providing relief under §§ 1157(c)(3) and 1159(c) or the CAT is not discretionary but statutory and mandatory, and the above provisions all involve "legal claims" (i.e., constitutional claims or questions of law). As such, federal judges are fully empowered to review these "legal claims" at any time, especially in a case involving exceptional circumstances. The U.S. Court of Appeals for the Ninth Circuit recently reaffirmed this by stating the following:
Expansion of the definition of "nationals but not citizens of the United States".
In 1986, less than a year before the CAT became effective, Congress expressly and intentionally expanded the definition of "nationals but not citizens of the United States" by adding paragraph (4) to 8 U.S.C. § 1408, which plainly states that:
The natural reading of § 1408(4) demonstrates that it was not exclusively written for the 55,000 American Samoans but also for Afghan-Americans who statutorily and manifestly qualify as "nationals but not citizens of the United States." This means that any Afghan-American who can show by a preponderance of the evidence that he or she meets (or at any time has met) the requirements of 8 U.S.C. §§ 1408(4) and 1436 is plainly and unambiguously a "national but not a citizen of the United States." Such person must never be labelled or treated as an alien, especially after demonstrating that he or she has continuously resided in the United States for at least 10 years without committing (in such 10 years) any offense that triggers removability. "Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences."
Introduction and amendment of the term "aggravated felony".
In 1988, Congress introduced the term "aggravated felony" by defining it under 8 U.S.C. § 1101(a). Its definition was amended over the years. As of September 30, 1996, an "aggravated felony" only applies to convictions "for which the term of imprisonment was completed within the previous 15 years." After the elapse of such "15 years" and avoidance of another aggravated felony conviction, a lawful permanent resident (LPR) automatically becomes eligible for both cancellation of removal and a waiver of inadmissibility. He or she may (at any time) request these immigration benefits depending on whichever is more applicable or easiest to obtain. A suspended sentence counts as "term of imprisonment" and must be added to the above 15 years passing of time, and it makes no difference if the aggravated felony was committed in Afghanistan, American Samoa, Australia, Canada, Mexico, the United Arab Emirates, United Kingdom, United States, or in any other country or place in the world.
Illegal Immigration Reform and Immigrant Responsibility Act.
In February 1995, U.S. President Bill Clinton had issued an important directive in which he expressly stated the following:
On April 1, 1997, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) took effect, which is particularly aimed at combating illegal immigration to the United States. But despite what President Clinton said in the above directive, some plainly incompetent immigration officers began deporting firmly-settled legal immigrants (i.e., potential Americans). These people have permanent resident cards, Social Security numbers, driver's licenses, state ID cards, bank accounts, credit cards, insurances, etc. They own homes, businesses, cars and other properties in the United States under their names. Such people statutorily qualify as "nationals of the United States" after continuously residing in the United States for at least 10 years without committing (in such 10 years) any offense that triggers removability. This appears to be the reason why the permanent resident card (green card) is valid for 10 years. It was expected that all Afghan-Americans would obtain U.S. citizenship within 10 years from the date of their first lawful entry, but if that was unachievable then they would statutorily become "nationals but not citizens of the United States" after the successful elapse of such 10 years. Anything to the contrary will lead to "deprivation of rights under color of law," which is a federal crime that entails capital punishment for the perpetrator(s).
The Afghan-Americans in removal proceedings have already "been lawfully accorded the privilege of residing permanently in the United States" by the Attorney General, but decades later the incompetent immigration officials unconstitutionally turned these "firmly resettled" Americans into refugees again. Unlike other aliens in removal proceedings, these refugees have no safe country and they obviously owe permanent allegiance solely to the United States. They have never pledged any kind of allegiance to the communist PDPA government, which dissolved in April 1992, nor to the Taliban or the other Afghan governments. This makes them nothing but a distinct class of persecuted Americans. The ones who cannot become U.S. citizens are statutorily allowed by Congress to live in the United States with their American families for the rest of their life. Deporting such Americans shocks the conscience of every ordinary judge because doing such is plainly a grave international crime. Not only Americans but the whole world sees that there is nothing but death and a grave waiting for Afghan-Americans returning to Afghanistan, which is nothing but an international war zone controlled by the United States.
"Only aliens are subject to removal." As mentioned above, the terms "inadmissible aliens" and "deportable aliens" are synonymous. It is common knowledge that these aliens mainly refer to the INA violators among the 75 million foreign nationals who are admitted each year as guests, the 12 million or so illegal aliens, and the INA violators among the 400,000 foreign nationals who possess the temporary protected status (TPS). An LPR can either be an alien or a national of the United States (American), which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States as a green card holder. Any such person who has been convicted of any aggravated felony, whether the aggravated felony was committed inside or outside the United States, is "debarred from becoming a citizen of the United States." However, unlike a "national but not a citizen of the United States," any alien who has been convicted of an aggravated felony is removable from the United States but only if his or her "term of imprisonment was completed within the previous 15 years." Such alien cannot:
Challenging an aggravated felony charge.
An "order of deportation" may be reviewed at any time by any immigration judge or any BIA member and finally by any authorized federal judge. Particular cases, especially those that were adjudicated in any U.S. district court prior to the enactment of the Real ID Act of 2005, can be reopened under Rule 60 of the Federal Rules of Civil Procedure. The review of the order does not require the alien (or the American) to remain in the United States. It can be requested from anywhere in the world "via" mail (e.g., DHL, FedEx, UPS, etc.) and/or electronic court filing (ECF), and the case can be filed in any court the alien (or American) finds appropriate.
Every United States nationality claim, illegal deportation claim, and CAT or asylum claim is adjudicated under 8 U.S.C. §§ 1252(a)(4), 1252(b)(4), 1252(b)(5), and 1252(f)(2). When these specific provisions are invoked, all other contrary provisions of law, especially § 1252(b)(1) and "Stone v. INS", 514 U.S. 386, 405 (1995) (case obviously decided prior to IIRIRA of 1996, which materially changed the old "judicial review provisions of the INA"), must be disregarded because the above three claims manifestly constitute exceptional circumstances. The Supreme Court has pointed out in 2009 that "the context surrounding IIRIRA's enactment suggests that § 1252(f)(2) was an important—not a superfluous—statutory provision." In this regard, Congress has long warned every government officials by expressly stating the following:
According to § 1252(f)(1), "no court (other than the Supreme Court)" is authorized to determine which two or more people in removal proceedings should be recognized as nationals of the United States (Americans). This includes parents and children or relatives. The remaining courts, however, are fully empowered pursuant to §§ 1252(b)(5) and 1252(f)(2) to, "inter alia", issue an injunction to terminate any Afghan-American's removal proceedings; return any previously removed Afghan-American to the United States; and/or to confer United States nationality upon any Afghan-American (but only using a case-by-case analysis). In addition to that, under , any officer mentioned in may at any time move to terminate the removal proceedings of any Afghan-American who turns out to be a national of the United States or one who is simply not "removable" under the INA.
Number of Afghan-Americans physically removed from the United States.
In spite of being eligible for relief under, "inter alia", 8 U.S.C. §§ 1157(c)(3), 1159(c), and 1182(h), and Afghanistan and the United States having absolutely no repatriation agreement, approximately 378 Afghan-Americans have been physically removed from the United States between November 2002 and January 2016. At least 225 had no criminal conviction. These individuals were probably failed asylum seekers who did not possess any legal status in the United States or simply wrongfully deported. "Recent data suggests that in 2010 well over 4,000 U.S. citizens were detained or deported as aliens[.]"
Among the remaining 153 Afghan-Americans, one appears to have been convicted of homicide, another of negligent homicide (involuntary manslaughter or vehicular homicide), and the remaining were convicted of assault and other common crimes, including driving under the influence (DUI), shoplifting, and traffic offenses. A couple of them violated a firearm law but an Afghan-American convicted of such an offense should never be deported unless the government wants to provide to him or her a paid international vacation. Congress clarified this in 1996 and it was perfectly settled by the BIA in a March 2000 "en banc" decision, which has since been binding on all immigration judges and DHS officers. It is, therefore, a clearly established law for qualified immunity purposes. Deportation of Afghan-Americans steadily declined over the years, from "77" in 2003 to only "17" in 2015.
References.
"This article in most part is based on law of the United States, including statutory and published case law."