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Afghan Asylum Seekers Are Being Denied Their Religious Rights in ICE Prisons

Detained Afghan asylum seekers remind us that the US immigration system is rooted in anti-Muslim racism.

A U.S. military service member stands near Afghan children in the recreation area of an Afghan refugee camp on November 4, 2021, in Holloman Air Force Base, New Mexico.

Each week, my organization, Project ANAR, receives multiple requests for assistance from Afghans of all ages who are detained in U.S. immigration prisons after crossing the southern border to seek asylum here. And each year, Ramadan brings to the forefront the depths of anti-Muslim racism they experience while navigating the U.S. immigration system.

Part of my job as a grassroots immigration lawyer defending asylum seekers in removal proceedings is to elevate the concerns that our clients and community members face, and to interact with immigration officials on their behalf. I am Afghan American and my organization formed in response to our community’s immigration needs in 2021, so the majority of the people we serve are Muslim. In recent weeks, our detained clients have reported systematic barriers to performing their faith during the holy month of Ramadan. Of course, what they experienced last month is not isolated — detention in and of itself restricts people and should never be used. For immigrants of faith, this routinely includes a lack of access to religiously appropriate meals, and other types of mistreatment including confiscation of religious headwear such as Sikh turbans.

During Ramadan, our clients detained in southern California reported receiving the pre-dawn meal, which Muslims eat to fuel themselves before beginning their fast, in the middle of the night, which is hours earlier than they would normally eat it. They also received the evening meal to break their fast late. Eating these meals at the appropriate times is not just a matter of comfort or convenience, but is Islamically significant.

The religious discrimination that our clients face does not end there. Even outside of Ramadan, Muslim asylum seekers incarcerated in immigration jails have shared with us that they cannot freely practice their religion, and for years, there has been documentation of such. Our clients have also reported being reprimanded and having water bottles confiscated when they have taken them into the bathrooms to perform ritual ablutions — again, an essential part of practicing Islam and performing prayers. Our Afghan women clients in San Diego and Louisiana detention centers routinely report that their requests for headscarves for prayers are refused, and they have reported that Black Muslim women have been sent to isolation in retaliation for their attempts to access a water bottle to help them perform ablutions.

It does not surprise us that our community members in Immigration and Customs Enforcement (ICE) custody experience discrimination and mistreatment in detention, as detention inherently produces these conditions and is a form of abuse in itself. However, we often witness surprise from government officials with whom we engage to advocate for our clients. This type of surprise from the same government that played a role in displacing our community echoes the sentiments we have encountered from the government since 2021, when the U.S. completed its military withdrawal and closed the U.S. embassy in Kabul.

Since then, tens of thousands of Afghans have languished with pending immigration applications for the U.S., many separated from family, after having been promised pathways to refuge. Despite advocates ringing the alarm for months that Afghans would need pathways to refuge, the U.S. government was unprepared for the volume of applications it received. One of the only application pathways most Afghans can access, humanitarian parole applications, come with fees, and the U.S. has thus far denied the majority of these applications that it has adjudicated — more than 13,000, while collecting nearly $20 million in application fees.

Many Afghans and those in diaspora pooled resources and sought donations in order to pay for these applications. My organization raised and immediately distributed more than $350,000 for application fees in the fall of 2021, to help our community members overcome one of the barriers to accessing refuge, but there is little we could do to shift the will of the U.S. government to accept those applications. Despite consistent efforts to hold the Biden administration accountable, we have only seen minor changes in adjudication standards on the part of the government. Now, three years later, we see more and more approvals but they remain outnumbered by denials.

Anti-Muslim racism and structural Islamophobia form the foundations of our modern immigration agencies. While it had previous iterations, ICE is not inherent to the U.S. immigration system; it was founded in 2003 pursuant to the Homeland Security Act, part of post-9/11 legislation weaponizing Americans’ fears in order to criminalize immigrants and others. In addition to this literal underpinning of the immigration system, this structural Islamophobia and exclusion also informs narratives that further drive policy around immigration. Narratives crafted both by politicians and the media utilize language ranging from “economic migrant” (painting a narrative of someone choosing to leave home for opportunities) to “refugee” (someone ‘deserving’ of refuge). Less than a decade ago, many Afghans were turned away from the U.S. and Europe en masse, deemed “unworthy” of protection. Now, the very same people who turned Afghans away then are calling our community “allies” of the U.S. — but this has not translated into actual protection.

The use of this language is a choice — many Afghans and others from communities referred to as “refugees” may not have been able to access the refugee program, and lack the full benefits of refugee status. Despite historical precedent for providing pathways to permanent status for populations moved through wartime evacuations, Congress has repeatedly failed to pass adjustment of status legislation for Afghans.

It is for these very reasons that Afghans have been left with virtually no accessible pathways. They are thus forced, like so many others, to make the difficult 11-country journey to the U.S.-Mexico border and physically seek asylum. There, they find themselves subject to ever-changing restrictive policies, as well as the criminalization of their immigration status and their faith. Many of the organizations that serve this community are unable or unwilling to serve those who have arrived this way. For example, federally funded resettlement agencies serve Afghans who qualify for resettlement assistance, and this leaves behind many asylum-seeking Afghans. This leaves grassroots organizations like ours at the forefront of filling in service gaps and meeting our community’s needs. In fact, even the U.S. government refers people to us when they clearly do not qualify for resettlement assistance, or do not have a clear-cut pathway to refuge.

Meanwhile, with little rhyme or reason, the Department of Homeland Security (DHS) detains our community members, young and old, and they encounter a unique criminalization of their faith and nationality in ICE custody. Often, ICE weaponizes the very circumstances that they were forced to flee (and that form part of their asylum claim) against them to label them as a national security risk, which can make it nearly impossible to obtain release from detention prior to conclusion of one’s immigration proceedings. Moreover, those who earn the title of “ally” to the U.S. and served alongside U.S. armed forces are also often subject to this heightened scrutiny and prolonged detention. One of our detained clients described chronic pain from a head injury he suffered while serving as an interpreter for the U.S. military. Nonetheless, he has been detained for months, which he says has made him feel “extremely alone and confused.”

DHS has opened an investigation into the disproportionate targeting of Muslims under a federal policy that subjects asylum seekers entering the U.S. via the border in Texas to criminal charges and incarceration. My own young clients have been separated from family members and held in prolonged detention, often without any explanation, and sometimes either implicitly or explicitly based on case flags invoking immigration law inadmissibility grounds. One such blatantly outrageous instance involved a young woman who was flagged for “terrorism” after an initial screening with an asylum officer. Despite a positive finding for credible fear, U.S. Citizenship and Immigration Services had flagged a potential ground for inadmissibility to the U.S. following a line of questioning during which the young woman disclosed that she had paid utilities in Afghanistan since 2021. The officer had made a faulty determination that, because the Taliban controlled the whole country, paying utilities amounted to paying the Taliban and supporting a “terrorist organization.” The result was that our client, a young woman with a disability and a serious medical condition, was detained for weeks until we could intervene. In this case, we were able to do so successfully because we had access to the interview and determination. More often though, we are punching in the dark to push back against vague characterizations of our community members as threats to national security.

The policies that DHS implements are rooted in exclusion and punishment, and Afghans are not isolated in what they experience at the hands of these agencies. It is not just by our own lived experiences and those of our clients and community members that we know this — both Democratic and Republican presidential administrations have been clear and consistent that their goal is to deter migrants from the Global South. Both President Joe Biden and Vice President Kamala Harris have made public speeches directing Haitians, Guatemalans, and others not to come to the United States to seek asylum. Currently, anyone who comes here to seek asylum and is unable to access a port of entry is considered an enforcement priority and can be detained and placed in removal proceedings.

Such broad discretion results in egregious situations. For example, I have attended multiple bond hearings to represent teenagers arbitrarily separated from their younger siblings and parents because they are considered adults for the purposes of immigration law. “Family separation” is frequently used to reference the zero-tolerance border separations in 2018. But it is actually a byproduct of all immigration enforcement and it’s something that happens every day — whether this means someone separated from their spouse and children, or separated from their siblings or grandchildren.

For our Afghan clients, I know that it goes a long way that my colleagues and I can speak their languages and understand their culture, but we cannot even imagine what they experienced being imprisoned and torn from their families. However, the Afghans we work with share their experience of state-sanctioned family separation with detained asylum seekers of other nationalities. The solidarity that they proactively embody with other asylum seekers is a source of inspiration for us. One elderly Afghan woman who spent months distressed in a remote Louisiana immigration prison shared that she was supported by younger Spanish-speaking women, who would advocate on her behalf to the guards and ICE agents. Likewise, our Afghan clients urge us to assist their friends of other nationalities who are also seeking release from detention.

Let us not forget that post-9/11 anti-Muslim policies fueled the violence, occupation and U.S. foreign policy in Afghanistan — the very reasons that Afghans are displaced in the first place. On top of that, such policies are the reason that our community does not have access to immigration pathways, and the reason that they end up detained in abhorrent conditions. Some experience harm and torture twice as a result of such foreign policy — we currently represent a young man who was arbitrarily detained for a few days as a teenager in Afghanistan, a fact that has now been weaponized to keep him detained after coming to the U.S. to seek safety. We must continue to work toward ending the systems that displace our communities — and also the ones that exclude them, force them through insurmountable barriers, and then criminalize them for who they are and how they pray when they manage to reach the U.S. to seek safety.

While there is much uncertainty around the future of asylum given the upcoming presidential election, many of the policies advanced under the current administration are reiterations of policies from the Trump era. We look toward the coalitions of grassroots organizations building movements for justice, and naming the interconnectedness of our struggles. Immigration advocates have spent months working closely with Palestine advocates, and are explicit about how the causes are related. Immigrant youth activists have led direct actions demanding both a permanent ceasefire in Gaza and permanent protections for immigrants.

Abolitionist organizations like Believers Bail Out have also been leading the way in supporting detained Muslim asylum seekers as well as incarcerated Muslims, and they make knowledge about these systems accessible to Muslim Americans, which in turn empowers them to engage in advocacy alongside those who are incarcerated. Last year, Believers Bail Out led a campaign in support of more than 100 detained Mauritanian asylum seekers facing exorbitant bonds. We must learn from and build alongside organizations like theirs, as they can show us what to prepare for in a world where anti-asylum policies are even further entrenched while violence and climate change continue to displace our communities.