Fact check: Biden’s dubious claim that ‘the law doesn’t allow’ Afghan translators to be evacuated to US while they wait for visas

By Daniel Dale

Thousands of Afghans who worked with American troops face grave danger as a result of the ongoing US military withdrawal from Afghanistan.

In a speech last week about the withdrawal plan, President Joe Biden said he is trying to speed up the processing of the Special Immigrant Visas (SIV) that will allow these Afghans, such as interpreters, to live in the United States.

Biden said he had a message for the Afghans: “There is a home for you in the United States if you so choose, and we will stand with you just as you stood with us.”

But Biden also said that, before their visas are processed, the Afghans would be evacuated to “third countries” or “US facilities outside of the continental United States.” He said flights would begin this month.

Some advocates have urged the Biden administration to evacuate the waiting Afghans to Guam — a US territory that was used to temporarily house Vietnamese evacuees in the 1970s and Kurds who were evacuated from Iraq in the 1990s — rather than having the Afghans wait in a third country like Tajikistan, Kazakhstan or Uzbekistan, where some could potentially get marooned in poor conditions without access to the US legal appeals system.

After Biden’s speech, a reporter asked him why the government can’t evacuate Afghan translators to the US to await visa processing, like some migrants at the southern border who have been allowed into the country while their cases are addressed.

Biden responded: “Because the law doesn’t allow that to happen. And that’s why we’re asking the Congress to consider changing the law.”

Facts First: Biden’s “the law doesn’t allow that to happen” claim is dubious. According to multiple experts in immigration law, there is a law that allows the Biden administration to bring Afghans who worked with American troops to the US before their visas are finalized. Specifically, these experts say, the Department of Homeland Security has the legal authority to grant these Afghans immigration “parole,” under which they could enter the US while their applications are still being assessed. The US already has parole programs for designated population groups from other countries.

Federal parole law says that the Secretary of Homeland Security has the authority to grant parole for “urgent humanitarian reasons or significant public benefit” to “any individual applying for admission to the United States,” though “only on a case-by-case basis.”

“I think it goes without saying that Afghan interpreters and their families would meet this standard,” Faiza Sayed, an assistant professor of law at Brooklyn Law School and director of the Safe Harbor Clinic, said in an email.

Adam Bates, policy counsel at the International Refugee Assistance Project, said there is “nothing” — in either the parole law or the law governing the Special Immigrant Visa (SIV) program for Afghans — “that forbids President Biden from utilizing parole to get SIV applicants and their families into the US where they can be processed along some path to an immigrant status.”

Democratic Rep. Earl Blumenauer of Oregon, one of the most active members of Congress on this issue, said in an email: “I am a little surprised to hear the president say that. My understanding is that he does have the authority. We need to get these brave people who risked their lives out of Afghanistan and to safety as quickly as possible.”

It’s theoretically possible that when Biden said “the law” doesn’t allow the Afghans to wait in the US, he was attempting to refer specifically to the law or rules about the Special Immigrant Visa program. The program requires applicants living abroad to go through a multi-step vetting process before they enter the US.

But Biden certainly made it sound like he was talking about US law broadly, not one particular statute. And as Bates noted, the SIV law itself talks about Afghans who have already received parole and entered the US — which clearly suggests Congress did not intend to use the SIV law to prohibit the use of parole for this group.

Further, it’s not even clear that the Biden administration as a whole believes that Biden was correct when he said “the law doesn’t allow” the Afghans to be brought to the US to await visa processing.

The White House would not comment for this article. On Wednesday, CNN Pentagon correspondent Barbara Starr reported that a US official with direct knowledge of current discussions says Afghans may be now relocated “in the US at potential military installation locations.” The official said the State Department was looking at granting humanitarian parole.

The State Department would not comment on the record for this article. A State Department official said in a statement to CNN earlier this week that “parole is not intended to be used to avoid normal visa or refugee processing procedures and timelines, to bypass inadmissibility waiver processing, or to replace established processing channels” — but the official did not insist that parole simply cannot be used in this urgent circumstance.

At a briefing on Wednesday, White House press secretary Jen Psaki would not say whether Guam was being considered.

The meaning of the parole law

We’re saying Biden’s claim is dubious, rather than simply declaring it inaccurate, because we can’t say for sure how the courts would rule on a future legal challenge about a hypothetical Biden decision to create a parole program for thousands of Afghans. As the nonpartisan Congressional Research Service noted in a report last October, there has been a long-running political dispute about what the phrase “only on a case-by-case basis” in the parole law is supposed to mean.

Some conservatives, including in the administration of former President Donald Trump, have argued that since the law says parole must be granted “only on a case-by-case basis,” parole can’t lawfully be used for entire designated population groups.

We can be confident, though, that Biden was not endorsing the conservative interpretation of the “only on a case-by-case basis” language when he made his own claim about what “the law doesn’t allow.” We know that because the Biden administration supports the existence of parole programs for designated population groups — which have existed for years without being invalidated by judges.

The Republican George W. Bush administration created a parole program for people in Cuba who are family members of US citizens or permanent residents. The Obama administration, in which Biden served as vice president, created parole programs for the family members of Filipino World War II veterans who are US citizens or permanent residents; Haitian family members of US citizens and permanent residents; international entrepreneurs; and Central American minors.

The Obama administration explained that even though its parole programs made a whole group of people eligible for parole, each individual would be considered on a case-by-case basis. (Parole is temporary, and, for the purposes of immigration law, someone who has been granted parole has not been formally “admitted” to the US.)

“Parole power has always had some nominal limits written into the statutory language, but those constraints have rarely prevented presidential administrations from using the parole power broadly to pursue humanitarian and international relations goals,” said Adam Cox, a New York University law professor and co-author of the book “The President and Immigration Law.”

Biden’s administration announced in March that it was reviving the Obama administration’s program for Central American minors, which was halted by the Trump administration.

Other factors at play

It is possible that security considerations, rather than some sort of legal prohibition, are the real reason the Biden administration has been reluctant to bring the Afghans to the US before they have completed the vetting process.

A source familiar with the Department of Homeland Security’s decision-making process said last week, “DHS is trying to figure out how to do it quickly and how to make sure people coming into the US are not a threat, that’s the bottom line.” And the source said there are some parts of the intelligence community — not the entire federal government — that have taken the position that once an individual is on US soil, their agencies are restricted from providing crucial assistance in the vetting process.

Regardless, that is not what Biden said.

The Biden administration has publicly cited other factors in explaining its thinking. Pentagon press secretary John Kirby told reporters Tuesday that it was “better and more efficient to look at locations overseas right now,” saying overseas locations were preferable because of “proximity” to Afghanistan “more than anything.”

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CNN’s Kylie Atwood and Geneva Sands contributed to this article.