A group of Afghan allies filed a lawsuit claiming that their children’s visa applications were denied without good reason. The U.S. Department of Homeland Security (DHS) is asking a federal judge in Virginia to dismiss the case, arguing that the lawsuit has no legal basis.
The plaintiffs are Afghan nationals who assisted the U.S. during the war against the Taliban. DHS says the lawsuit tries to defend the rights of third parties, which is not usually allowed in court. According to DHS, the Immigration and Nationality Act (INA) doesn’t provide a way to challenge visa decisions for these children living in Afghanistan.
The main issue in the lawsuit is whether the children are eligible for visas. DHS claims that third parties, like parents, cannot legally challenge these visa decisions, especially for those without rights to enter the U.S. from abroad. DHS also points out that the visa denial is only preliminary and not a final decision, meaning that it doesn’t require judicial review. Even if it were final, the decision should still be dismissed because of a legal principle known as consular nonreviewability. This doctrine says that decisions about granting or denying entry to noncitizens are final.
The Afghan allies say that the U.S. Departments of State and Homeland Security delayed processing their children’s visa applications. They argue that these delays caused their children to turn 21 and “age out” of the Afghan Special Immigrant Visa program. The program requires applicants to be unmarried and under 21. DHS responds that while the parents began the process before their children aged out, they didn’t submit the necessary petitions in time.
The Afghan Special Immigrant Visa program, established in 2009, offers protection to Afghan nationals and their families who helped the U.S. military. To prevent children from aging out of eligibility, the Child Status Protection Act was introduced to freeze their age at the time the application was filed. The plaintiffs argue that their children’s ages were not properly frozen, leading to their visa denials. Now, these children remain in Afghanistan, facing threats from the Taliban.
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