Growing Numbers of Afghan Migrants Face Deportation in Court

Over 5,000 Afghan nationals faced new deportation cases so far this year, published first on the Immigration Lab's blog at American University.

This article was first published on the Immigration Lab’s blog (available here) at American University where I am currently a research fellow, and reproduced with permission here.

The number of Afghan immigrants facing deportation in immigration court spiked in fiscal year 2023 to a total so far of 5,434 up from just 610 in FY 2022. The growing numbers of Afghans in immigration court mirrors the overall upward trend in new deportation cases which grew from about 820,000 in FY 2022 to 1.27 million in FY 2023 based on data through the end of August that was analyzed and published by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. However, whereas the number of deportation cases for all nationalities grew 1.5 times over the previous year, the number of Afghan nationals in immigration court grew nearly 9 times the previous year. Afghan nationals still make up only a small percentage of all new deportation cases at less than one percent, but even this small fraction grew from negligible to almost half a percent in 2023. See Figure 1.

This remarkable growth comes at a time when many Afghan refugees living in the United States are uncertain about their future. Many Afghans arrived in the United States in the past few years, both before and after the U.S. military withdrawalfrom Afghanistan. The Biden administration created a humanitarian pathway into the United States for these refugees under Operation Allies Welcome (OAW) and granted many Afghans Temporary Protected Status (TPS) that typically safeguards them from deportation.  Among those Afghan migrants who lack permanent status, immigrants with pending deportation cases represent people who are most vulnerable to deportation. Without permanent legal status, Afghan refugees could remain at higher risk of deportation if they lose temporary status or if they commit certain crimes that make them deportable. Most Afghans remain without permanent immigration status or a clear pathway to citizenship.

Understanding the characteristics of Afghan, and other migrants facing deportation is important for the Immigration Lab and the Center for Latin American and Latino Studies (CLALS) at American University, which has an ongoing research project that examines the demographics, experiences, and challenges of recently-arrived refugees now living in the Washington, D.C. metropolitan area. This report examines the 5,434 Afghan deportation cases filed in court in the first 11 months of FY 2023 to inform the public, policymakers, and researchers about the growth of Afghans facing deportation.

About Deportation Cases in Immigration Court

The U.S. immigration court system is responsible for adjudicating cases brought against migrants by the Department of Homeland Security (DHS). Deportation (aka removal) hearings begin when an immigration enforcement agency files a document known as a Notice to Appear (NTA) with the court, placing an immigrant in removal proceedings. Once an NTA is filed, immigrants are required to attend a series of hearings with an immigration judge, including routine status hearings and individual hearings for immigrants who are requesting asylum. A case typically concludes with an immigration judge issuing a deportation order or granting the immigrant permission to remain in the United States on a temporary or permanent basis. In some cases, the government may also elect to close a case before it reaches a final decision to prioritize limited agency resources. Due to the complexity of U.S. immigration law and variations in judicial disposition, obtaining a positive outcome often depends not only on the quality of an immigrant’s case but also on the ability of the immigrant to obtain legal representation, be assigned to a favorable judge, and access additional social services that enable them to follow through on the various demands that the immigration system places on them. Given the political conditions in Afghanistan, it is expected that many Afghan migrants who are in immigration court would be eligible to apply for asylum as a form of relief. 

Immigration Court Location

Understanding which immigration courts Afghans facing deportation are assigned to helps illuminate where legal services are needed and what kinds of favorable or unfavorable judges these potential asylum seekers may face. The 5,434 new Afghans in court this fiscal year were assigned to a variety of courts, with no one court dominating over another. The Sacramento immigration court saw the largest number, with 601 new Afghan cases filed this year. This was followed in second place by San Francisco with 485 and San Diego (in fourth place) with 299 cases. The immigration court in Arlington, Virginia, came in third with 329, but the California courts combined indicate that the largest numbers of Afghans facing deportation are in California. The table below shows the total number of Afghan migrants facing deportation in courts with at least 100 Afghan cases.

Gender, Language, and Age

Of Afghans facing deportation whose gender was recorded in the immigration court’s data, 69.6 percent are listed as male while 30.4 percent are listed as female. Nearly a quarter (25.4 percent or 1,267) of all new Afghan cases in court this year where age was recorded were children under the age of 18. Another 16.6 percent were young adults between the ages of 18 and 24, while the largest group (38.3 percent or 1,911) were between ages 25 and 34. Under 20 percent (19.6 percent) were 35 years old and up.

The largest group of Afghans—38 percent—spoke what the court classifies as “Farsi - Afgani – Dari”, while a sizeable percentage—27 percent—are listed as speaking English with Pushtu coming in third at 21 percent. All other languages were less represented, but included Arabic (283), Farsi-Iranian-Persian (169), Spanish (93), Dargwa (67), Russian (35), and Turkish (25). 

Legal Representation

Representation is a crucial factor for immigrants seeking a favorable outcome allowing them to stay in the United States instead of being deported. Most new Afghan deportation cases filed in 2023 are not represented by an attorney. Just 1,227 of these new cases, or 22.6 percent of the total, have representation while the majority of 4,207, or 77.4 percent of the total, have no attorneys. It is not unusual for more recently filed cases to show lower rates of legal representation, since it requires time to find an immigration attorney, and requires additional time for the attorney to file their attorney paperwork with the court. These rates of representation are in fact higher than the national rates for new cases. Out of all new cases from 2023, just 12.6 percent have attorneys by the end of August 2023 while 87.4 percent do not. In this regard, Afghan nationals are faring better in court (22.6 percent compared to just 12.6 percent).

Asylum

Given the country conditions in Afghanistan, Afghans in court are likely to be eligible for asylum, a humanitarian form of relief that prevents a person from being deported to a country where they are likely to face persecution. Nonetheless, only 137 asylum cases involving Afghan nationals have been decided by judges so far this fiscal year. Of those, just 22 in total (16 percent) were denied while the rest were approved for either asylum or another form of relief. This is much lower than the 51 percent denial rate among all nationalities in FY 2023, which means that asylum could be an option for Afghan immigrants in court. However, barriers to applying for asylum in the first place—such as having access to legal representation and having sufficient time to prepare a strong case—may limit the availability of this option. include finding an attorney, 

Conclusion

While most of the U.S. public is sympathetic to Afghan arrivals, many were warned that their legal status in the U.S. was temporary, liminal, and would lead many to live in limbo. Thus, we are already starting to see Afghans in the U.S. facing deportation. Is the government truly prepared to deport people to Afghanistan under Taliban control? What do we owe the translators, contractors, and soldiers who partnered with the U.S. and ally governments for years? Will the U.S. government’s delays in providing a permanent pathway to legal status and citizenship lead to even more Afghans ending up in immigration court? It is important that the public is not only informed about the policies and programs affecting Afghan refugees but is also informed about the use of limited government resources to deport Afghans to potentially dangerous living conditions. 

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