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New Lawsuit: Children of Afghan Allies Should Be Eligible for SIVs

FOR IMMEDIATE RELEASE

June 28, 2024

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Spencer Tilger | media@refugeerights.org

NEW LAWSUIT: CHILDREN OF AFGHAN ALLIES SHOULD BE ELIGIBLE FOR SIVS

U.S. Government cannot deny children who aged out during its own backlogged SIV process

(Alexandria, VA) – Yesterday, five Afghan nationals who applied for visas based on their or their family’s service to the U.S. government in Afghanistan filed a new lawsuit against the U.S. government. They are represented by the International Refugee Assistance Project (IRAP) and Williams & Connolly LLP. The plaintiff families applied to the Special Immigrant Visa (SIV) program with children as young as 14 years old, but after years of processing delays by the U.S. government, they have been told that their children “aged out” of eligibility to join their family in safety. Some parents made the difficult decision to separate from their children and travel to the United States, while others remained behind in Afghanistan. In all cases, their children are stuck in danger abroad, the exact outcome the SIV program was designed to prevent.

The Child Status Protection Act (CSPA) was created to prevent children from aging out of eligibility for immigrant status while their applications are processed. Since July 2022, the U.S. government has frozen children’s ages on the date that the parent first applied to the SIV program, meaning that children who are under 21 when their parents apply to the program will remain eligible no matter how long the government takes to process their parent’s application. However, this change was not applied retroactively to the plaintiffs and other Afghan families whose SIV applications were already pending. The U.S. government’s refusal to issue visas to these children is the result of both an inconsistent application of the law and the government’s extreme delays in processing their parents’ applications.

B.S.S. is an Afghan father living in North Carolina. His son turned 21 during the two years it took for the U.S. State Department to determine that he was eligible for SIV status and was told he was ineligible to join his family in the United States because of his age. As a result, the plaintiff’s son remains in Afghanistan in dangerous circumstances. 

“My son’s life in Afghanistan is filled with misery. Because I worked with the United States, he lives in constant fear, moving from place to place, always on the run,” said plaintiff B.S.S. “My wife and I are consumed with endless worry every day, wondering if our son is safe and where he might be. We cannot find peace of mind until he joins us in safety here in the United States. Our hope is that through this lawsuit, the U.S. government will understand the urgency of our situation and swiftly assist in reuniting our family, along with many others facing similar challenges, so that we can finally find some relief.”

Plaintiff H.K. is the son of an Afghan ally who, after years of waiting for his SIV to be processed, was murdered by the Taliban around the time the first stage of his SIV application was approved. H.K.’s sister and mother eventually received SIVs to move to the United States, but his application was rejected due to his age. H.K. now lives in hiding in Afghanistan. 

“My father worked with the United States because he had an unwavering commitment to the advancement of Afghanistan,” said plaintiff H.K. “He selflessly prioritized the country’s progress above his own safety, and lost his life for it. We are asking that I be able to join my mother and sister in America so that I can avoid a similar fate.”

Today’s lawsuit, filed in the Eastern District of Virginia, challenges the U.S. government’s determination that plaintiffs’ children are too old to qualify for SIVs as arbitrary and capricious and a violation of plaintiffs’ constitutional right to equal protection. The complaint asks that the government reconsider these children for SIV status so they can safely join their families in the United States.

“It’s outrageous that the government is forcing these families to remain in danger based on drawing arbitrary lines,” said IRAP Equal Justice Works Fellow Alexandra Zaretsky. “If our clients had applied for SIVs more recently, they would be able to bring their kids to safety. And if their applications had been approved later—as little as three weeks later, in one case—our clients would be able to bring their kids to safety. This defies all logic. These families who sacrificed so much for the United States are being penalized for the government’s own delays: the exact opposite of what Congress intended.”

ADDITIONAL RESOURCES:

  • Read the complaint: HERE
  • Read more about the case: HERE
  • Learn about IRAP’s other lawsuit challenging SIV processing delays: HERE

The International Refugee Assistance Project (IRAP) is a global legal aid and advocacy organization working to create a world where refugees and all people seeking safety are empowered to claim their right to freedom of movement and a path to lasting refuge. Everyone should have a safe place to live and a safe way to get there.

www.refugeerights.org

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