US refugee class action

Since 2018, a Freshfields team, in partnership with the International Refugee Assistance Project (IRAP), has been fighting for the swift processing of visa applications for Afghans and Iraqis facing mortal danger for helping US forces and who have applied for special immigrant visas (SIVs) to enter the US. Along the way they have scored major victories for these allies.

Congress created the SIV program in 2008 for Iraqis and in 2009 for Afghans in order to provide a legal pathway to safety for local allies who have become the target of the Taliban, ISIS, and other anti-US forces. 

Afghans and Iraqis eligible for SIVs include allies who worked for or on behalf of the US government as translators, interpreters, contractors, and engineers, among other roles.

Delays to potentially life-saving applications challenged

With applicants facing mortal danger and many living in hiding, in 2013 Congress directed that applicants receive a decision on their visas within nine months of submitting their applications. Nevertheless, many applicants have been waiting years for decisions.

A US-based Freshfields team and IRAP commenced a class action lawsuit in 2018, representing a class of SIV applicants – the plaintiffs – on a pro bono basis. The action was brought against the Department of State and Department of Homeland Security, in addition to representatives of these agencies. This case, Allies v. Blinken, is the first class action brought on behalf of SIV applicants.

In January 2019, the US District Court for the District of Columbia provisionally certified a class of plaintiffs who had not received an adjudication on their SIV applications within the statutory nine-month timeline, and simultaneously denied the defendants’ motion to dismiss.

In September 2019, US District Judge Tanya S. Chutkan granted summary judgment in the plaintiffs’ favor. In her decision, Judge Chutkan held that the delays the applicants experienced, especially given the dangers and risks they endure, were unreasonable, and ordered the Department of State and Department of Homeland Security to prepare a plan to adjudicate the pending SIV applications following a final determination on class certification.

The summary judgment decision is critical for SIV applicants seeking refuge in the United States and holds defendants accountable to the statutory nine-month timetable for adjudicating SIV applications. Its importance has only increased in the wake of the US withdrawal from Afghanistan, as Afghan allies are at increased risk of being harmed by the Taliban.

In February 2020, Judge Chutkan certified a class of all applicants whose applications were pending government action for more than nine months and appointed Freshfields and IRAP as class counsel. The defendant agencies submitted a first adjudication plan thirty days later, which Freshfields and IRAP challenged for failing to meet the court’s orders. Judge Chutkan agreed and ordered the defendant agencies to work with Freshfields and IRAP as class counsel to devise a joint plan.

In May 2020, the parties agreed to an Adjudication Plan, which the court ratified in June. Under the Adjudication Plan, which provides a framework implementing the court’s orders, the defendant agencies were required to meet timing benchmarks for processing class members’ applications and make periodic reports on their progress to the court.

Defending an important victory

Since the Adjudication Plan was entered, Freshfields and IRAP have worked to defend the hard-won class relief.

In August 2020, the Defendants appealed several of the district court’s rulings to the Court of Appeals for the District of Columbia Circuit. Freshfields and IRAP challenged the appeal on jurisdictional grounds. When the US withdrew from Afghanistan in August 2021, thousands of Afghan allies, many whose applications had been languishing for years, were left behind as the Taliban took control. In September 2021, Defendants withdrew their appeal. The parties agreed to temporarily stay the Adjudication Plan to allow for settlement discussions, which ultimately failed.

In May 2022, Defendants filed a motion asking to be relieved of the court-ordered Adjudication Plan, citing changes in circumstances arising from, among other things, the US withdrawal from Afghanistan and complications arising from the COVID-19 pandemic. The district court refused to terminate the Adjudication Plan after ruling that the government continues to unreasonably delay processing the class members’ applications, but permitted the government to propose modifications. The court further ordered discovery into the necessity of potential modifications to the Adjudication Plan. In January 2023, Defendants appealed the district court’s decision to the D.C. Circuit. The parties are awaiting a decision on that appeal.

Freshfields Partner Linda Martin underlined the firm’s commitment to making a positive difference within the communities we touch: “I’m incredibly proud of our team’s hard work on behalf of our clients,” she said.