By Sam Van Kopp and Alan Chvotkin

October 5, 2021

Since the fall of Kabul in August of 2021, the U.S. has housed tens of thousands of Afghan refugees on seven military bases: Quantico, Fort Pickett, Holloman, Fort Lee, Fort Bliss, Fort McCoy and Joint Base McGuire-Dix-Lakehurst.[1]  The federal government’s efforts to accommodate so many refugees on such short notice is remarkable, and it is not the purpose of this note to evaluate the government’s efforts.  However, as with any new government program, there are legal questions concerning the resettlement process that have not yet been resolved.  To date, no federal agency has published publicly available guidance concerning the administration of these specific refugee centers (“Centers”), although the U.S. Citizenship and Immigration Services (“USCIS”) and the Office of Refugee Resettlement (“ORR”) recently provided some online resources for refugees.[2]  The absence of information is a source of anxiety for those Afghan Americans with family in these Centers.

Nichols Liu LLP recently assisted a client in getting his mother released from the Center on Joint Base McGuire-Dix-Lakehurst (“Dix”).  We found this process to be very difficult to navigate because the Centers themselves are so new; in fact, the Department of Homeland Security (“DHS”) attorney we worked with confirmed that we were the first attorneys to contact them regarding the release of a refugee from Dix.  In an effort to help others with family inside these Centers, we offer the following observations and advice based on our experience at Dix.

Please note that the information provided in this note represents our understanding of the Afghan resettlement process as of the date of publication.  We expect and hope that the Federal government will quickly publish guidance on this process and clarify some of the issues discussed below.  Further, these observations reflect the de facto conditions on the ground as we found them, rather than any de jure authority since no public guidance specific to the Afghan refugee Centers existed at the time of our inquiry.

I. What Are the Afghan Refugee Centers?

The Centers differ depending on the DoD facility at issue.  On Dix, they are a cluster of permanent structures and tents housing a reported 8,000 refugees.[3]  On other DoD facilities, all refugees may be assigned to tents.  These structures are organized into ‘Villages,’ each with a ‘Mayor’ who acts as a point-of-contact for refugees seeking to speak with federal officials.  Because Afghan refugees were assigned to facilities as they arrived, they are not settled by ethnic group or regional affiliation. Our client’s mother was assigned her own room within a permanent building in a Village, and we understand this to be the typical practice there.

II. What is the purpose of these refugee centers?

The primary purpose of these centers is for medical screening, immigration processing and training for resettlement assistance.  On arrival, refugees are biometrically enrolled to confirm their identity.  Refugees are then supposed to be scheduled for an initial medical screening, although in our client’s mother’s case, this process had not yet occurred within a week of her arrival.  Afterward, refugees are given an appointment with the U.S. Citizenship and Immigration Service (“USCIS”) to address their specific immigration status.  Like many Afghan refugees, our client’s mother had earlier applied for a Special Immigrant Visa (SIV) and a Priority 2 (P-2) U.S. Refugee Admissions Program (USRAP) visa and was told that this initial meeting would be her first opportunity to check on the status of those applications.  As with her medical screening, however, our client’s mother had not met with USCIS or received an initial appointment date with USCIS before our intervention.

After these initial medical and immigration meetings, the refugees are required to wait for a meeting with a resettlement Non-Governmental Organization (“NGO”).  There appears to be no standard process for these interactions, as the NGOs differ by DoD facility and program.  However, our contact in the Department of State (“DoS”) described these meetings as including “trainings” that are designed to prepare the refugee for resettlement.  Only after a refugee completes these trainings, and the resettlement NGO finds a home and employment for the refugee, may the refugee leave the Center without jeopardizing their entitlement to resettlement benefits.

III. How long will refugees wait inside these refugee centers?

While the U.S. government has not issued a definitive statement on this issue, from our inquiry it seems as though most refugees will wait at least several months, and possibly more than a year, for resettlement.  The delay is  primarily attributable to the resettlement NGOs, as they lack the capacity to arrange for housing and employment for so many refugees on such short notice.  In discussing its progress in serving the entire Afghan refugee community, for example, the Lutheran Immigration and Refugee Service reportedly[4] announced that it had served only “more than 100 people” in “the past few weeks.” At that rate, it is not difficult to imagine that most of the 8,000 refugees on Dix will remain there for more than a year.

Not all refugees will have to wait that long, however.  The DoS and DoD representatives we spoke with said that those Afghans who already are U.S. citizens or Legal Permanent Residents are prioritized to the extent that they need resettlement assistance, and that many of those persons had already left Dix by late September.  Those with medical conditions are also supposed to be prioritized, but it is unclear how the Centers designate such persons.  Our client’s mother, for example, had multiple medical conditions that, in combination with her age and disability, should have qualified her for prioritization.  She had not been prioritized,  however, and indeed her health had already begun to deteriorate by the time we were able to bring her condition to the attention of the Center’s authorities.

One final consideration may affect the duration of a refugee’s stay, regardless of their immigration status: quarantine.  On September 20, the CDC issued an alert calling for Afghan refugees to be quarantined for 21 days following immunization for measles, mumps, leishmaniasis and malaria, among other infectious diseases.[5]  Additionally, our contacts on Dix told us that those Afghans arriving after September 7 would be required to receive the Covid-19 vaccine and quarantine for two weeks thereafter. It is not clear whether refugees would receive all such vaccinations simultaneously, or whether they would be required to quarantine between each inoculation.

IV. Who is in charge of these Centers?

The Department of Homeland Security is notionally in charge, but their operational control over the Centers appears to be limited.  For example, we spoke with a DHS attorney who claimed to be the point of contact for all of Ft. Dix, but he stated that DHS no authority over the facility or its refugees beyond USCIS’s immigration processing.

As a practical matter, the Department of Defense provides the personnel who control access to the Centers, patrol the Villages, maintain its facilities, and provide interpreters.  Those administering and overseeing inoculations and medical screenings appear to be a mix of DoD and Department of Health and Human Services personnel.  The Department of State maintains a small team of volunteers at each Center, in some cases limited to a single senior administrator and a half-dozen staff.  NGOs provide not only resettlement assistance, but also clothing, special food – the typical menu appears to be a repetition of rice, lentils and chicken – pre-paid cellphones and a few other amenities.

For getting in touch with a refugee and arranging for their departure from the Center, we found the Department of State (“DoS”) to be the agency of decision.  Although we first needed to contact a Department of Defense representative at Dix to confirm the refugee’s location within the Center, we afterward depended on a member of the small DoS delegation at Dix to arrange for the refugee’s departure.

V. What is the legal status of the Afghan refugees in these Centers?

The refugees are not detainees. Though the Afghans we spoke with in mid-September were ignorant of this fact, a refugee may ask to leave a Center at any time.  To do so, a refugee needs to speak to the Mayor of their village and ask for “Voluntary Departure.”  The Mayor is responsible for contacting the DoS representative at the facility, who must then arrange an exit interview for the refugee.  At our client’s mother’s interview, the representative made it clear that by choosing to depart, she like any other Afghan refugee would lose her right to resettlement assistance.  Further, she would be responsible for notifying USCIS of her  new address and arranging to receive what vaccinations she had not yet received at the Center.  The DoS representative’s statements were consistent with a USCIS Information Sheet, subsequently published on September 23,rd which summarizes a departing Afghan’s responsibilities.[6]

Importantly, requesting Voluntary Departure does not affect a refugee’s immigration status, though departing may make it harder for refugees to follow-up with USCIS as a practical matter because they will no longer have access to the Center’s resources.  Except for those refugees who have already received an SIV or P-2 visa, the refugees at these Centers are on Humanitarian Parole.  Humanitarian Parole allows an individual to live in the US while applying for asylum or a visa, but it is not itself a legal immigration status.  In this case, Parole lasts for two years, though a recipient may seek to renew that parole by application with USCIS.[7]  Parolees may work in the US if they have filed an Application for Employment Authorization[8] and received an Employment Authorization Document from DHS.

VI. Factors for Consideration Regarding Voluntary Departure

For those refugees with resources and family already settled in the US, the greatest risk of Voluntary Departure is the loss of resettlement benefits.  ORR recently published information explaining the full extent of these benefits, which range from cash assistance to employment services and medical care.[9]  DoS or ORR may change its policy regarding the loss of resettlement benefits for those choosing Voluntary Departure now that Congress has passed and the President has signed legislation to provide funding for federal agencies and benefits for Afghan “evacuees.”[10]  Nonetheless, since departure does not affect a refugee’s immigration status or work authorization, access to benefits is likely to remain the single greatest consideration.

There are also practical reasons for remaining in the Centers, even if a refugee has the resources and family that might make Voluntary Departure possible.  First, the Government’s approach to Afghan resettlement is still being formulated, and because the Government has already established an infrastructure to address Afghan resettlement at the Centers, those remaining at the Centers will be best positioned to benefit from whatever policy DHS, DoS and HHS create.  Second, because the Centers are the focus of so much Government and NGO resources, those outside of the Centers may find it more difficult than normal to get access to these same resources because of the priority given to those at the Centers.  Given that the wait for a visa may take years under normal circumstances, this is not an insignificant concern.

In our client’s mother’s case, three factors proved decisive in her decision to request Voluntary Departure.  First, her medical condition required specialized care that the Center could not readily provide.  Second, her family was already settled in California, and they had the resources necessary to transport her home, support her financially and follow-up on her visa applications without government assistance.  Third, her age and disability made her unable to work, limiting the utility of vocational and educational resettlement assistance.

VII. Steps for Helping a Relative if they Choose Voluntary Departure

An Afghan refugee is able to request Voluntary Departure without any outside assistance.  However, given the language barrier, the limited DoS and USCIS staff currently assigned to these Centers, and the relative unfamiliarity some refugees may have with US government systems, we expect that some refugees will ask their relatives for help in navigating this process.  For a family member looking to get started in this process, there are a few steps that may prove helpful.

First, contact the Judge Advocate General (JAG)’s office at the military installation where the Center is located.  While that JAG office may not be directly involved in the Center’s operations, their responsibility for the military facility generally means that they will know who to contact within the DHS and DoS teams operating at the Center.  In our client’s mother’s case, these DHS and DoS persons were the only individuals who could tell us about his mother’s status, and the only parties who could assist in her departure.

Second, at least some Village Mayors have a telephone associated with their offices.  In our case, we were able to call the Mayor’s office to bring our client’s situation to their attention.  The Mayor’s office was also the location for the out-processing meeting with DoS, and the coordinating entity for the Center’s other services, including NGO and medical support.

Third, prepare for the refugee’s transport before Voluntary Departure is requested.  On Ft. Dix, DoD currently operates one shuttle a day that transports those who have chosen Voluntary Departure from their Village to the installation’s front gate.  Once at the gate, the refugee is off-base and entirely on their own resources.  A refugee seeking to leave the Center will therefore need to time his or her request for Voluntary Departure and exit interview with their family member’s availability to arrange transport.  Given how remote some of these military facilities are, this is an important consideration.

VIII. Conclusion

We at Nichols Liu are deeply impressed with the federal government’s efforts to assemble and resource these Centers on such short notice.  We believe the vast majority of refugees will elect to remain at the Centers in order to qualify for resettlement benefits and access government services.  Our hope is that this note may help those with questions about Voluntary Departure, and those select refugees who – like our client’s mother – would benefit from Departure because of their unique circumstances.

Samuel Van Kopp
[email protected]
(202)-846-9834

Alan Chvotkin
[email protected]
(202) 846-9806

[1] For early reporting on the refugee Centers at DoD facilities, see Patricia Kime, 3 More Bases Set to Take in Afghan Refugees, Joining 4 Others Nationally, Military.com, August 27, 2021, at https://www.military.com/daily-news/2021/08/27/2-more-virginia-bases-set-take-afghan-refugees-joining-4-others-nationally.html

[2] U.S. Citizenship and Immigration Services, Afghan Related Information, at https://www.uscis.gov/humanitarian/afghan-related-information (last visited Sep. 30, 2021); Office of Refugee Resettlement, Afghan Assistance Resources, at https://www.acf.hhs.gov/orr/programs/refugees/afghan-assistance-resources.

[3] Jennifer Steinhauer and Eileen Sullivan, Thousands of Afghans on American Military Bases Await Resettlement, N.Y. Times, Sep. 30, 2021, at https://www.nytimes.com/2021/09/16/us/politics/afghan-refugees.html.

[4] Tracey Tully, Music and Cookouts in a Tent City for Afghans Starting Life in the U.S., N.Y. Times, Sep. 25, 2021, at https://www.nytimes.com/2021/09/16/us/politics/afghan-refugees.html.

[5] Health Advisory: Guidance for Clinicians Caring for Individuals Recently Evacuated from Afghanistan (Sep. 20, 2021), https://emergency.cdc.gov/han/2021/han00452.asp

[6] USCIS: Information Sheet for Afghan Parolees Departing Military Installations, at https://www.uscis.gov/sites/default/files/document/fact-sheets/09232021_Post-base_Departure_Information_Sheet.pdf  (last visited Sep. 30, 2021).

[7] See Form I-131, available at https://www.uscis.gov/i-131

[8] Known as a Form I-765, available at https://www.uscis.gov/i-765

[9] Office of Refugee Resettlement, Afghan Assistance Resources, at https://www.acf.hhs.gov/orr/programs/refugees/afghan-assistance-resources. See also ORR, Benefits for Afghan Humanitarian Parolees, at https://www.acf.hhs.gov/sites/default/files/documents/orr/Benefits-for-Afghan-Humanitarian-Parolees.pdf.

[10] Division D of the Fiscal Year 2022 Continuing Resolution (P.L. 117-43, signed September 30, 2021), is referred to as the “Afghanistan Supplemental Appropriations Act, 2022.” It refers to individuals as “Afghan evacuees” if the individual’s evacuation was facilitated by the U.S. Government as part of “Operation Allies Refuge.” The law provides funds to DoD to support evacuation and resettlement activities, funds to HHS for refugee assistance to Afghan nationals, funds to the Department of State to support relocation of additional at-risk individuals and funds for the FBI and USCIS. It would make Afghan nationals eligible for a range of benefits, including expedited asylum processing, resettlement assistance, a Real ID identification card and other benefits if they pass a background check.