Inside an Afghan Asylum Case in 2022

Kabul Evacuation. US DOD Photo By: Marine Corps Staff Sgt. Victor Mancilla

Written By Jason Criss Howk

*Author’s note: The law firm I worked with has given me permission to discuss the generalities of the process to help other Afghan refugees and attorneys assisting them.

In 2021 a diplomat put me in touch with a law firm that was seeking an expert witness that could describe the current conditions in Afghanistan for an asylum case. At first, I was hesitant to assist without knowing the reasons the person was being held in detention and being forced to go before a judge to earn their asylum. My entire career as a military officer was spent trying to understand, and counter terrorists in Afghanistan and Pakistan; I was concerned the government must have thought they caught a terrorist in the massive refugee flow.

I soon learned that the U.S. Government had not given the lawyers or the refuge-seeking person any reasons for his detention. Knowing the person had already spent months in prison-like conditions with no charges of a crime, I said I would help.

After signing on with the legal team as a witness I was given access to the documents and evidence of the case from both the defendant’s counsel and the U.S. Government. The person seemed to have a legitimate case to me from their statements; but I was only being hired to explain the security situation in Afghanistan, it would be up to the lawyers to win or lose the case.

As a witness, I was an observer of the asylum trial process, and wanted to relay what I witnessed.

The most striking thing for me was that the U.S. Government did not tell the refugee why they were holding them in custody and why they wanted them to go to trial to gain asylum status. There was no government evidence presented at all to the counsel, or court, before the trial.

Meanwhile the defendant presented many reasons to the U.S. government for why they were seeking asylum. They had worked for United Nations entities, for the U.S. Military, and the Afghan Defense Forces over the years. In the year before the Taliban-Haqqani terrorists seized control of Afghanistan the Taliban shadow-government had sent multiple written warnings to the asylum-seeker ordering him to stop collaborating with the Taliban’s enemies. The Taliban saw him as a “traitor” who worked with the “infidels.”

Not just once, but twice, the U.S. Government delayed the trial for several weeks, giving as a reason the government’s need to conduct more security background checks on the refugee.

By the time the case finally went to trial, the U.S. Government had still not handed over any evidence or documentation of a crime or wrongdoing by the defendant. The government did not seem to know why they wanted to deny the asylum request and go to court.

In preparation, the defense lawyers asked me to simply explain my background to the court and the security conditions for Afghans past and present. They were not sure what questions I would be asked, and they assumed given my written report, and my biography, that the U.S. Government would not try to question my expertise on Afghanistan. As a person with a 23-year history as a U.S. Government national security leader who focused on Afghanistan and terrorism, the government lawyers trying to discount my knowledge of the country seemed an unlikely approach.

During the trial when the judge asked the government if they would concede the fact that I was an expert witness on Afghanistan, the lawyers said that they would not. They asked the judge to determine for themselves if I was a credible witness. This made for a longer trial, as I had to explain my entire career of involvement in Afghanistan from 2002 through to 2022. It turned out that this move was the U.S. Government’s only real strategy for seeking the denial of asylum, to discredit me.

After I gave my testimony, the government had its chance to question me and reveal their evidence against the refugee. The government questions were rambling and a bit all over the place. One question I recall was them asking me why the defendant’s family in Afghanistan had not been killed yet. After I answered the question, the government had no rebuttal to my opinions on the security situation, or my explanation about why his return to Afghanistan could lead to his death.

I think to the judge’s surprise and ours, the government had no evidence from their months of delaying. The trial ended quickly after my testimony, as the government revealed they had no case and rested. The law firm that hired me thought it would take around 30 days for a verdict. Yet, the verdict was returned in 8 business days and the refuge-seeker was given asylum.

What stood out to me as a former Foreign Area Officer that focused on South-Asia was the U.S. Government’s lack of understanding about what life was like under the Taliban in the 1990s, what the Taliban was doing during our twenty-year war, and what life is like for Afghans today under the illegal terror regime.

I am left with a few more questions about the Afghan refugee process after watching how we are treating asylum seekers. First, why is the government dragging out the asylum petitions process like this? Don’t we have a better use for our tax-dollars right now? And second, why didn’t the government just tell the judge that they had no evidence sooner and allow the process to move out of court quickly?

These are busy days for the U.S. Government as they grapple with an influx of Afghan refugees. According to the Humanitarian Legal Assistance Project, the USCIC usually receives about 2,000 humanitarian parole requests per year, and deny about 75% of those applicants. Since August of last year there have been 35,000 requests. So far 90% of those humanitarian parole applicants have been rejected by the U.S. Government.

It is my hope that the U.S. Government speeds up the resettlement process and only sparingly uses the court system for Afghans who represent a documented threat to our nation. I know many Afghans that have immigrated to the U.S. since 2002 and proudly watched them become American citizens. Afghans I know are some of the most productive and passionate members of our nation. We should ensure our limited resources are spent wisely right now as tens of thousands more refugee seekers are in limbo outside of the United States and it will take a lot of effort to bring them to safety in our partner nations and here at home.

Jason Criss Howk is a retired U.S. Army Foreign Area Officer, who also served as a combat engineer and infantry paratrooper. He is involved in numerous non-profit efforts to assist Veterans and their families, and the Afghan people around the globe. Jason is the Editor of A Voice For Two Nations, and the co-founder and Director of Global Friends of Afghanistan, a non-partisan educational think tank in DC that educates people about Afghanistan and helps amplify Afghans voices and Afghan solutions to their nation’s concerns.