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