Seeking Asylum
Megan L McKenzie and Chester A. Isaacson, American Family Insurance Co. 

Editor’s Note: We all get asked from time to time if we can help a friend or family member with a legal matter outside of insurance defense work. Usually, we refer the person to an expert in that field, whether it be criminal law, family law, bankruptcy law, etc. Occasionally, however, we get asked to help with something that is out of our comfort zone, but still within our skill set. This article is one such example. If you would like to submit an article about a time when you comfortably ventured into an unfamiliar area of law, please send an email to the Editor at [email protected].

I.         A Brothers’ Story

Usman[1] and his younger brother, Ahmad, were born and raised on a small farm in rural Afghanistan where their family grew wheat and sugar. As is customary in Afghanistan, their family was large. Usman and Ahmad were two of ten siblings. 

As young men, the two brothers joined the Afghan National Army (“ANA”) and, after their training, joined the coalition forces in the war against the Taliban. 

Contrary to what many in the US believe, most Afghan citizens despise terrorist organizations such as the Taliban in a much more passionate and personal way than we could ever understand. For the vast majority of us in America, our experience with terrorism amounts to passive attention paid to a nightly news broadcast or the occasional glimpse of a headline as we casually swipe through the online articles in search of more “important” news.

The lives of nearly every Afghan citizen, however, have been touched in some meaningful way by terrorism. Afghans know the Taliban as a once laudable byproduct of the mujahideen mission to combat Soviet occupation that, over time, mutated into an extremist organization that has partnered with a myriad of international terrorist groups to impose extremist ideologies through violence. Over the years, the Taliban has fought to assert its authority through intimidation, discrimination, extortion, abuse, and murder. Most Afghan citizens have been either personally victimized by the Taliban or have friends and family members who have been subjected to the Taliban’s cruel tactics of violence and oppression.

When viewed through this lens, it becomes easy to understand why Usman and Ahmad eagerly chose to fight alongside the coalition forces in the hopes that doing so would finally drive the Taliban from their beloved country. A typical tour of duty for a US soldier lasts six to twelve months. Usman and Ahmad fought with the US-led coalition forces, without interruption, for nearly two decades. Ahmad served primarily as a driver, while Usman rose quickly through the ranks and ultimately became a Captain. 

During their many years of service, Usman and Ahmad worked closely with and fought alongside the US forces. They accompanied the US coalition forces on hundreds of combat missions and provided critical cultural advice on the diverse groups that inhabited the various areas where coalition forces were operating. Needless to say, this did not go unnoticed by the Taliban, and the brothers began to receive chilling letters from the Taliban threatening them and their family with death if they did not leave the ANA.

When the brothers ignored these letters, the Taliban made good on its threats, attempting unsuccessfully to assassinate them on multiple occasions through the use of remote-detonated explosives. Neither the letters nor the assassination attempts deterred Usman and Ahmad. The brothers had devoted their lives to the war against terror and wholeheartedly believed in America’s promise to eliminate the Taliban.

One can therefore only imagine the absolute horror, confusion and disbelief the brothers experienced when they were told by their superiors to report to the division headquarters, only to find, upon arrival, that the base had been completely abandoned and the US forces had begun a complete withdrawal from the country. At that moment, the brothers knew that they had to either leave Afghanistan or lose their lives.

Usman and Ahmad quickly collected their families and rushed to the Kabul Airport hoping to be evacuated from the country before the Taliban regained control. Unfortunately, however, thousands of others had also descended upon the airport with similar intentions. 

As the brothers and their families slowly made their way toward the airfield, they were forced to cross a deep drainage canal and contend with a mob of people who were fighting to make their way to the planes. The brothers were afraid that their wives and young children would be injured or killed. They therefore made the impossibly difficult decision to leave their families behind in the hopes that they would be able to make it out of Afghanistan on a later flight when conditions were less dangerous. 

Unfortunately, however, conditions deteriorated faster than anyone could have predicted after the US withdrawal. In a matter of days, the Taliban regained control of much of the country, including the Kabul Airport and flights out of the country effectively stopped. Usman and Ahmad’s families now live in hiding in Afghanistan, prisoners in their own homes, surviving only with the assistance of other family members and friends who remained in Afghanistan.

After their evacuation from Afghanistan, the brothers were initially flown to a base in Kuwait and ultimately made their way to Wisconsin, where they stayed with an incredibly kind member of the US military they had befriended through their close work with the coalition forces. Shortly thereafter, they were connected with a local non-profit, and the asylum process began.

II.         Qualifications for a Grant of Asylum

In brief, asylum protects people within the United States or at a point of entry who have a well-founded fear of being prosecuted in their country of nationality. Further, to qualify for asylum, the individual must be outside of their country of nationality and unable or unwilling to return.

Much of today’s asylum law is based on the aftermath of World War II. The war left as many as eight million people displaced; two million of whom could never return to their home countries. Many of these displaced people found themselves in countries that did not want them. Consequently, the refugees received little protection, assistance, and no legal status. This prompted the United Nations to seek a solution to the refugee problem in cooperation with various other countries from around the world. The concept of asylum and the laws surrounding it were born from these efforts. 

Immigration law is always changing. It is generally the case that anyone who wishes to apply for asylum must do so within one year of arriving in the United States. However, if the individual arrived on a visa and has some other lawful status (such as a student or tourist), then the rule is that you must apply within a reasonable amount of time after that status expires. Generally, six months is considered to be a reasonable timeframe.

Asylum is a discretionary form of relief. Although an asylum applicant has the burden of establishing that a favorable exercise of discretion is warranted, absent any adverse factors, asylum should be granted in the exercise of discretion. 

To demonstrate eligibility for asylum, an applicant must show they are a “refugee”.[2] A refugee is a person who is outside their country of nationality who is unable or unwilling to return to their home country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[3] We argued that Usman and Ahmad had well-founded fears of persecution based upon their membership in a particular social group, political opinion, and religion.

An applicant who seeks a grant of asylum based on membership in a particular social group must establish that “the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”[4] A characteristic is immutable if it is either beyond the power of the individual to change, or so fundamental to their identity that they should not be required to change it.[5] The particularity requirement is met if the group is sufficiently distinct that it constitutes a discrete class of persons; and a group is socially distinct if society perceives it as a group, regardless whether members of the group are identifiable by sight.[6] Because Usman and Ahmad were ANA servicemembers, they are members of a group with a common, immutable characteristic, which cannot now be changed. The Taliban recognizes current and former ANA and other Afghan military forces members and targets them based on that membership.

Usman and Ahmad’s fears of persecution based on their military service were well-founded. An asylum applicant may demonstrate a well-founded fear of persecution by establishing that they subjectively fear persecution, and their fear is objectively reasonable.[7] To demonstrate that their fear is objectively reasonable, the applicant must show that (1) they possess one or more protected characteristics; (2) the persecutor is aware or could become aware that the applicant possesses this characteristic; (3) the persecutor is capable of persecuting the applicant; and (4) the persecutor is inclined to persecute the applicant.[8] The Taliban’s propensity for persecuting ANA servicemembers is well-documented. The Taliban was aware of our clients’ military service and threatened to take action against Usman and Ahmad if they did not abandon their posts. Usman and Ahmad received explicit threats from the Taliban, including those contained in the threat letters, attempted assassinations, and torture of family members who refused to share the brothers’ whereabouts. The Taliban are indisputably capable of acting on their threats, as they have taken control of Afghanistan’s national government and military operations.

Usman and Ahmad also have well-founded fears of persecution based on their political and religious beliefs. The Taliban believe that anyone who fights against them are anti-Taliban and anti-Islam. Because the ANA fought for years alongside U.S. coalition forces against the Taliban, ANA servicemembers are considered traitors and enemies by the Taliban. The threat letters to Usman and Ahmad from the Taliban specifically state that they believe the brothers have left the religion of Islam and are considered enemies because they were fighting alongside the U.S. Armed Forces. The Taliban are of course known for torturing or killing individuals who do not share their political or religious beliefs. There is no reason to believe Usman and Ahmad would have been any exception.

If Usman and Ahmad were to return to Afghanistan, the Taliban has the power, will, and resources necessary to track our clients down and execute on their threats. Their fears are well-founded.

III.         Statutory Grounds for Denial of Asylum

Asylum applicants must show they are not subject to any statutory grounds for denial. First, they must apply for asylum within one year of entry into the United States. We met the filing deadline for Usman and Ahmad.

Second, the applicant must show they were not “firmly resettled” in another country prior to settling in the United States.[9] A person is considered firmly resettled if they obtain permanent legal status or are eligible for such status in that country. Pursuant to 8 CFR § 208.15(a), an alien may be considered firmly resettled based on residence in a third country “after the events giving rise to the alien’s asylum claim.” In our case, Usman and Ahmad left Afghanistan after the Taliban’s takeover of the country. They flew to another country before being evacuated to the United States. They were not offered ,and were not eligible for, permanent resident status in the other country, so this was not a bar to asylum for our clients. 

No statutory grounds for denial existed as to Usman and Ahmad.

IV.         The Long Road to Asylum

There is no standard set of documents that constitute an asylum application; though in nearly every instance the application will include a completed Form I-589.[10] Without going into an unnecessary amount of detail, the I-589 form is a document that must be completed by the applicant (and often his/her attorney) and includes information pertaining to the applicant’s background and family members, as well as the basis for the applicant’s asylum request. In other words, the applicant must explain why he or she is seeking asylum (i.e., persecution based upon race, religion, nationality, political opinions, membership in a particular social group or torture convention). 

In addition to the I-589 Form, the typical asylum application will also include a legal memorandum in support of the applicant’s application, evidence supporting the request for asylum, a sworn declaration of the applicant and any identifying documents the applicant may have (e.g. driver’s license, passport, National Identity Card, employment authorization card, etc.). 

To prepare these documents on behalf of the brothers, we had many meetings with them, using hard-to-come-by (and often very expensive) interpreters. All the documents had to be read to the brothers in their native language, Pashto, and the interpreters had to sign certificates that they accurately translated everything. The language barrier presented one of the largest challenges during the process, but the Afghan community in the US supports one another and pulled through for Usman and Ahmad when we needed help.

After the application is completed, it must be submitted to the appropriate regional division of the United States Citizenship and Immigration Services (“USCIS”). At that point, the applicant must wait (often several months) before either a request for additional information is received or the applicant is provided with a notice for an interview with an asylum officer. 

In our case, the interview took place in the USCIS Chicago Office. During the interview, the applicant swears, under oath, to tell the truth, and the interview begins with the officer asking the applicant a variety of questions to confirm the information contained in the application is correct. At that point, the officer will typically go through the applicant’s story and ask the applicant questions about his or her asylum claim. 

The interviews are conducted in English and the applicant is required to bring his or her own interpreter if one is necessary. An attorney may also be present at the interview, though the bulk of the questioning is directed at the applicant. That said, the attorney is permitted to clarify responses when appropriate and is often permitted to give a short “closing argument.” Witnesses are generally not permitted to testify at the USCIS interview. 

We attended our clients’ interviews, which were scheduled about a month apart from one another. The process took place in a small office. It felt akin to defending a client’s deposition in one of our insurance defense cases, with much larger stakes of course. The scariest part of Ahmad’s interview was the fact that the interpreter did not arrive until an hour after our scheduled start time. Thankfully, the immigration officer was running late, and we did not lose our hearing slot. It was amazing how Ahmad made friends with all the other Afghans waiting for their hearings in the lobby, and through that network, someone knew our interpreter, was able to call him, and let us know he was on his way. I am so impressed with how perfect strangers went out of their way to help us that day when they could have been preparing further for their own interviews.

After the interview has been completed (and if no additional information is requested by USCIS), the applicant must wait to receive notice of whether their asylum application is approved. There is no set timeframe for USCIS to make its decision. It not uncommon for the decision to take several months and, in some instances, over a year to arrive. In Ahmad’s case, it took about sixteen months from the time of his hearing until he received confirmation of his approval notice. It took about thirteen months for Usman. 

V.         Conclusion

Ultimately, after our hearings, USCIS agreed with us that Usman and Ahmad warranted asylum protection in the United States, and granted our clients’ applications. Now, we can apply for derivative asylum on behalf of Usman and Ahmad’s family members who have remained in Afghanistan. We are in the process of completing those applications, so the families can be reunited in the United States. 

Before this opportunity, neither of us ever imagined working in the world of immigration or asylum law. This project has taken us far outside our practice area comfort zones. However, the advocacy skills we have developed as litigators certainly helped achieve a positive outcome for the clients. The work itself was not easy, particularly due to the language barrier and horror stories the brothers shared. Convincing them to open up to us, as strangers via interpreters, about their fears was necessary and difficult. Interpersonal skills gained from years of representing clients from all walks of life were put to the test with this work. Ultimately, we succeeded and gained their trust. Knowing we made a difference in their lives and that they truly appreciate the work has been incredibly rewarding. We look forward to celebrating with them when they can hug their wives and children on American soil. 

In our profession, we do not have the luxury of free time. That being said, we highly encourage everyone to seek out these pro bono opportunities. In our case, it was literally the difference between life and a death sentence if Usman and Ahmad were deported back to Afghanistan. Your work may genuinely make an impact, and you may realize personal and professional goals you never knew existed.

Author Biographies:

Megan L McKenzie is in-house counsel at American Family Insurance. She obtained her JD in 2008 from the Thomas Jefferson School of Law. She is the Vice Chair of the Women in the Law Committee, received the 2023 WDC Women in the Law Committee Award, is a member of the WDC Board of Directors, and is the current WDC Program Chair.

Chester (Chet) A. Isaacson is in-house counsel at American Family Insurance. He received his law degree from the University of Wisconsin Law School in 2006. Chet is a member of the WDC Board of Directors.