Carmelo [not his real name] fled his home country to escape persecution from local authorities and gang members. Since coming to the U.S., he has persevered through years of immigration detention—including prolonged isolation and even deportation in the midst of his appeal. But Carmelo and his Gibson Dunn pro bono legal team have been leaders in seeking justice not only in his case but for others like him who face persecution and torture abroad and are subject to lengthy detention during their search for protection in the U.S.
Now their work has led to an important precedent from a federal appeals court that will apply in all immigration cases within its jurisdiction. The Fourth Circuit’s opinion reaffirmed that people who fear returning to their countries of origin because they will be persecuted due to their family ties are eligible for asylum and other protections. It also acknowledged that immigration judges must meaningfully review all the evidence of the risk of torture before them, including people’s past experiences of torture by police and “country conditions evidence” that shows the likelihood of gang and government-sponsored violence in other countries.
In addition to the federal court appeal, our pro bono team worked alongside Carmelo through a trial, three agency appeals, and other proceedings seeking mandamus, habeas, and bond. The Fourth Circuit praised the team’s dedication and determination in its opinion: “In his administrative proceedings and on appeal, [the asylum seeker] has been ably represented pro bono by lawyers with the firm of Gibson, Dunn & Crutcher. [C]ounsel have performed admirably, and we are appreciative of their fine service.”
Our Washington, D.C. pro bono team included partners David Debold and Naima Farrell and associates Jessica Wagner, Tommy McCormac, Cate McCaffrey, Sam Whipple, and Austin Donohue.
This narrative courtesy of the Capital Area Immigrants’ Rights (CAIR) Coalition, which asked Gibson Dunn to take on Carmelo’s case.
Gibson Dunn has secured a six-figure settlement on behalf of Jose Ramirez, a wheelchair-bound former prison inmate who was beaten by prison guards and systematically denied access to accommodations for his physical disabilities.
In 2008, Jose Ramirez walked into prison a healthy man. Nearly a decade later, he was rolled out of prison in a wheelchair, severely disabled and in constant pain. In the intervening years, Mr. Ramirez had two botched back surgeries that relegated him to a wheelchair for the rest of his life. After the surgeries, his repeated pleas for medical care and disability accommodations were routinely denied, and his complaints met with indifference and violence. On one occasion, when Mr. Ramirez complained about the deplorable conditions of his confinement, three prison guards responded by throwing him out of his wheelchair and savagely beating him. Instead of reprimanding the officers, the prison disciplined Mr. Ramirez and placed him in solitary confinement.
While in prison, Mr. Ramirez filed a pro se complaint in the Southern District of New York against the prison guards and the prison’s medical director, alleging excessive use of force and deficient medical care. After the Court’s 2018 dismissal of the latter claim, Gibson Dunn took on Mr. Ramirez’s case pro bono the following year.
The Gibson Dunn team won a motion to amend the complaint to bring additional claims and convinced the Court to reconsider dismissal of the deficient medical care claim. The team also won a motion to compel the disclosure of internal prison documents. After it had deposed several witnesses and retained a renowned orthopedic surgeon as an expert witness, the Government asked to enter into settlement negotiations, which resulted in Gibson Dunn obtaining a $110,000 settlement for Mr. Ramirez in July 2023.
The Gibson Dunn team included of counsel David Kusnetz and associates Eric Hornbeck, Andrew Freire, and Ina Kosova.
As we close out Pride Month 2023, we wanted to take a moment to reflect and celebrate the work that Gibson, Dunn & Crutcher LLP has done together for the LGBTQ+ community over the last few years. We also want to recognize the acute challenges facing this community at this moment in time and pledge our continued support and activism in support of their rights. Gibson Dunn has a long history of supporting the LGBTQ+ community, including through our pro bono practice. We have represented LGBTQ+ asylum-seekers; helped transgender, nonbinary and gender-nonconforming clients obtain name and gender marker changes; and partnered with nonprofits and other organizations defending LGBTQ+ rights around the world.
Included in this newsletter are a few of the Firm’s recent pro bono matters for members of the LGBTQ+ community. We are proud to work on these matters and are committed to continuing this important work in the years to come, particularly as LGBTQ+ individuals face increasing threats to their rights and safety.
The Pro Bono Committee is thrilled to announce the winners of this year’s Frank Wheat Memorial Awards. This year’s winners demonstrated an unfailing dedication to pro bono, a commitment to excellence, and a passion for service, exemplifying the very best of Gibson Dunn. As in previous years, this year’s winners and nominees worked on a wide variety of matters—including both high-stakes individual pro bono representations and large-scale projects with far-reaching impacts—that reflect the breadth of Gibson Dunn’s pro bono practice.
Frank Wheat, a former Los Angeles partner, was a superb transactional lawyer, SEC commissioner, and president of the Los Angeles County Bar. He was also a giant in the nonprofit community, having founded the Alliance for Children’s Rights in addition to serving as a leader of the Sierra Club and as a founding director of the Center for Law in the Public Interest. He exemplified the commitment to the community and to pro bono service that has always been a core tenet of the Gibson Dunn culture. The Frank Wheat Award is given annually to individual lawyers and teams that have demonstrated leadership and initiative in their pro bono work, obtained significant results for their pro bono clients, and served as a source of inspiration to others. Recipients of the Frank Wheat Memorial Award each receive a $2,500 prize to be donated to pro bono organizations designated by the recipients.
In 2021, a year that presented countless challenges, Gibson Dunn remained committed to pro bono work, devoting more than 140,000 pro bono hours valued at approximately $128 million to hundreds of projects firmwide. Our attorneys averaged more than 90 pro bono hours per attorney in the United States and more than 80 pro bono hours per attorney worldwide.
Discrimination and prejudice against Asian American and Pacific Islander (AAPI) communities is not a new phenomenon. However, the COVID-19 pandemic has brought with it a surge in anti-AAPI harassment and hate crimes, with some institutions estimating a 124% increase in hate crimes between 2020 and 2021, followed by an even steeper 339% increase between 2021 and 2022.[1]
This exponential rise in anti-AAPI violence has drawn broader attention to a longstanding problem and an increased urgency to take action. Spearheaded by Debra Wong Yang, former partner Robert Hur, Veronica Moyé, David Lee, Betty Yang, Poonam Kumar, Cynthia Chen McTernan, Nicole Lee and many others, Gibson Dunn has responded through work on various fronts, including the founding of the Alliance for Asian American Justice, leadership of task forces and working groups, and representation of victims of anti-AAPI hate across the country.
Section I of this report examines obstacles that stand in the way of accountability from (a) a prosecutorial perspective and (b) from the perspective of victims. Section II highlights the Firm’s efforts, which are ongoing on multiple fronts, and Section III outlines possible paths forward as we continue to combat anti-AAPI hate.
I. Overview of the Problem
Twenty-four million Asian Americans and 1.59 million Native Hawaiians and Pacific Islanders currently live in the United States, according to 2020 Census data.[2] Although there has been increased media attention surrounding the recent spate of anti-AAPI attacks, this present-day phenomenon is only one part of a broader history.
Upticks in racial violence against Asian Americans historically correlate with periods of economic and social upheaval. In 1871, growing anti-Asian sentiment, fueled by fears that Asian immigrants were depressing wages during an economic downturn, led to a massacre of 18 Chinese residents, including a 15-year-old boy, in Los Angeles’ Chinatown.[3] In January 1930, Filipino men were attacked in race riots in Watsonville, California, purportedly motivated by resentment that Filipino men were taking over agricultural labor and interacting with white women.[4] Southeast Asian refugees faced discrimination and violence in the wake of the Vietnam War, including attacks by Ku Klux Klan members on Vietnamese fishermen in Texas.[5] In 1982, Vincent Chin was beaten to death by two autoworkers in Detroit who believed him to be Japanese, amid a recession that was partially blamed on the rise of Japanese automakers.[6] And in arguably the most recent surge of anti-AAPI violence before the present-day crisis, the terrorist attacks on September 11, 2001 led to a staggering 1,600% increase in the number of anti-Muslim hate crimes reported to the FBI as compared to the year prior.[7]
Today, the COVID-19 pandemic has led to another resurgence of anti-AAPI hate and violence. Reports of anti-AAPI hate crimes increased by over 70% during the pandemic, according to the FBI,[8] while the Center for the Study of Hate and Extremism estimates an even higher increase, from 124% between 2020 and 2021 to 334% between 2021 and 2022.[9] New York City and San Francisco have experienced steeper jumps, 343% and 567% respectively.[10] A 2021 Pew survey revealed that 45% of AAPI adults said they have experienced some sort of offensive incident based on their race.[11] From March 2020 to March 2022, the Stop AAPI Hate reporting center collected 11,467 anti-AAPI incidents nationwide.[12] Most incidents (67%) involved some version of harassment, such as verbal or written hate speech or inappropriate gestures, while 17% of incidents involved physical violence.[13] Additionally, 16% of incidents involved avoidance or shunning, and 12% of incidents included possible civil rights violations, such as discrimination in a business or workplace.[14]
In March 2020, Burmese American Bawi Cung and his six- and two-year-old children were attacked and stabbed in a Texas grocery store because the assailant believed they were Chinese and responsible for causing the pandemic.[15] In early 2021, 84-year-old Thai American Vicha Ratanapakdee was physically assaulted and killed;[16] 65-year-old Filipino American Vilma Kari was kicked in the stomach, knocked to the ground, and kicked in the head repeatedly while her attacker yelled, “You don’t belong here,” and while multiple onlookers watched.[17] And in March 2021, eight people, six of them Asian women, were killed in shootings at several Atlanta spas.[18] A month after the Atlanta killings, a mass shooting at a FedEx facility in Indianapolis left four Sikh Americans dead.[19]
These media reports and statistical data almost certainly fail to capture the full extent of the problem. As discussed in Section II, implicit and institutional biases contribute to underreporting by victims, which is further exacerbated by the lack of a uniform database and widely accessible reporting mechanisms. Some estimate that only about one-tenth or fewer of hate crimes are reported.[20]
II. Obstacles to Accountability and Justice
In Section II, we examine two significant barriers to accountability, both stemming from implicit and institutional biases: (a) challenges in adequate prosecution of hate crimes, and (b) challenges in underreporting and lack of resources on the part of victims of hate crime.
A. Challenges in Prosecution of Hate Crimes
Evidence suggests the physical and verbal attacks unleashed against AAPIs in recent years are not adequately prosecuted as anti-AAPI hate crimes, and that prosecution of these crimes fails to recognize the racial animus and stereotypes driving these acts.
Some of the examples described in Section I are illuminating. In the March 2021 Atlanta spa shootings, six of the eight victims were Asian women. The district attorney in Fulton County, where four of the victims were killed, filed formal notice that she intended to seek hate crime enhancements on the basis that the shooter targeted the victims because they were of Asian descent—yet the prosecutors in Cherokee County, where two of the four victims were Asian, declined to find the shooting racially motivated, determining instead that the perpetrator was motivated by a sex addiction and his religious beliefs. The shooter also claimed his acts were not driven by race.[21]
And in April 2021, nine people (including the gunman) were killed in a mass shooting at a FedEx facility in Indianapolis, Indiana. Four of the eight victims were Sikh Americans, and about 90% of the workers at the facility were as well. Although the shooter had previously visited white supremacist websites, the Justice Department declined to bring charges based on racial motivation or bias.[22]
A report from the Asian American Bar Association of New York found that only seven of the over 230 reported attacks against Asians in New York City through the first three quarters of 2021 led to hate crime convictions.[23] A review of a dozen high-profile criminal cases in San Francisco involving Asian and Asian American victims during 2020 and 2021 similarly found that only two incidents were eventually charged as hate crimes.[24]
The challenges facing adequate prosecution of hate crimes are two-fold. First, hate crimes are by nature difficult to prosecute because they require proof of a perpetrator’s intent. Because no universal symbol of anti-AAPI hate exists, prosecutors typically must rely on a perpetrator’s statements—if any are even made. While some statements may contain racial slurs or similarly obvious epithets, in the absence of such language, prosecutors are left to infer motive from the nature of act itself or must conduct additional investigation to collect evidence. Second, prosecutors may then lack the educational and logistical resources needed to build the rigorous case required for hate-crime prosecution. Prosecutors may not be familiar with the nuances and history behind anti-AAPI sentiment, such that they fail to detect racial animus where it exists, and they may simply lack the time and resources needed to undertake the additional investigation to gather evidence—for example, past Internet activity showing racial hate or evidence of association with various organizations indicating racial motive.
Combined, the difficult legal standard for hate-crime prosecution and a lack of resources needed to meet that standard result in lower rates of charges brought and lower rates of successful prosecutions across the board.
B. Challenges Facing Victims of Anti-AAPI Hate
The difficulties in adequately prosecuting anti-AAPI hate crimes are in turn compounded by the obstacles that face victims of anti-AAPI hate. First, the challenges of prosecuting hate crimes discussed in Section II.A may lead to underreporting by victims who doubt that their complaints will be taken seriously, and who therefore distrust police and the government more generally. Even where victims of anti-AAPI attacks seek to report these incidents, many are unaware of how to do so. Victims, especially those from under-resourced communities, are often unsure of what constitutes a hate crime, and to whom reports of such incidents can made. This is further exacerbated by language and cultural barriers, especially for the elderly.[25] Second, once complaints are made or filed, victims may also lack a sufficient understanding of the legal system to know how to navigate criminal proceedings and may broadly lack access to adequate representation in civil litigation.
As a result of these compounding factors, some estimate that only about one-tenth, or less, of hate crimes against AAPIs are reported. A study from AAPI Data revealed that only 30% of Asian Americans were “very comfortable” reporting a hate crime to law enforcement, compared to 42% for Latino Americans, 45% for Black Americans, and 54% for White Americans.[26] The same study concluded that roughly 10% of Asian Americans had experienced hate crimes or hate incidents, compared to 6% of the general population.[27]
III. Gibson Dunn’s Efforts on Behalf of Victims of Anti-AAPI Hate
A. The Alliance for Asian American Justice
In April 2021, in the wake of the continuing surge in anti-AAPI hate crimes across the country, Gibson Dunn partner Debra Wong Yang and four other prominent attorneys in the AAPI legal community, along with additional Fortune 1000 General Counsels and over 40 law firms, founded the Alliance for Asian American Justice. Recognizing the deep-seated barriers to justice preventing victims of anti-AAPI hate from holding their attackers accountable, Yang and others created the Alliance to stand up for victims and prevent future acts of anti-AAPI hate. In particular, the Alliance connects victims of anti-AAPI hate with law firm resources provided on a pro bono basis in an effort to combat the historical marginalization in the legal system of low-income and under-represented AAPIs.
Through the Alliance, attorneys across the country have provided pro bono legal counsel in civil litigation for victims of anti-AAPI hate, worked with law enforcement to ensure that perpetrators are held accountable, and identified additional specialized services, including social services and other community support, to assist victims in navigating these ordeals. The Alliance is also giving legal representation to families of the March 16 Atlanta spa shooting victims, as well as to the family of Mr. Ratanapakdee. With Gibson Dunn’s involvement, the Alliance is estimated to have provided legal representation in more than 50 cases of anti-AAPI violence, and has grown its network to more than 110 participating law firms.
Although the Alliance connects victims of anti-AAPI hate with law firms across the country, a number of our own Gibson Dunn attorneys have engaged in this important work. Led by partners Veronica Moyé and Betty Yang and of counsel Poonam Kumar, a Gibson Dunn team represents a client in a civil suit filed in Plano, Texas, asserting that a woman attacked our client and her friends, threatened to shoot them, shouted ethnically charged profanities at them, and told them to “stay … in [their] country.” Partner David Lee and associates Cynthia Chen McTernan and Nicole Lee also lead a team in representing an Asian family in southern California in civil litigation alleging that a man trespassed on their property, physically assaulted the family’s father in view of his wife and young daughters, and called them racial slurs. Former partner Robert Hur represented two Korean American women in Baltimore, Maryland, who were beaten by a man with a cinder block as the women tried to close their liquor store. Hur coordinated with law enforcement to hold the perpetrator accountable.
Gibson Dunn’s work extends beyond the Alliance. While partner at Gibson Dunn, Hur also served as chairman of an Asian American Hate Crimes Workgroup formed by Maryland Governor Larry Hogan in April 2021. After extensive consideration and analysis, the workgroup issued a series of recommendations in November 2021 that led to a series of statewide actions by Governor Hogan to combat anti-AAPI hate and bias crimes, including enhanced safety and enforcement measures, more robust community resources, and steps to empower educators and students.
IV. The Path Forward
First, we can and should continue to advocate for the implementation of a formal anti-discrimination framework that will, among other things, aid in combatting prosecutorial bias. To name one example, the Biden administration enacted the COVID-19 Hate Crimes Act in response to the surge in AAPI attacks,[28] intended to make hate crime reporting more accessible at the local and state levels by increasing public outreach, providing grants to law enforcement agencies to train their officers to identify hate crimes, encouraging the creation of state-run hate crimes hotlines, and decreasing language barriers in online reporting resources. Further, the law aims to expedite the Department of Justice’s review of hate crimes and expand reporting channels. Other formal processes to address this issue may include increasing bystander intervention training, increasing and improving data collection, and public education about the diversity within the AAPI community.
Second, we can further combat prosecutorial bias and lower the barriers to accessing justice by increasing awareness of the historical and cultural context in which these anti-AAPI attacks occur. In addition, the focus should not only be on prosecution: Better intelligence about individuals and groups that promote hate-motivated violence can also help. Absent evidence of explicit hate speech during an attack, prosecutors are often reluctant to charge attacks on AAPI victims as hate crimes. In those scenarios, law enforcement must conduct substantial investigation into perpetrators to uncover proof of racial animosity to support a hate crime charge, but resources to do so may not be available.
Third, solutions to addressing the recent rise in AAPI attacks should include education on victims’ rights and opportunities to seek relief through the civil and criminal justice system, as well as targeted outreach to vulnerable segments of the AAPI population, such as women or the elderly, to ensure that they are empowered to exercise the rights available to them. For these reasons, affording victims of anti-AAPI hate competent legal representation—while also ensuring that they have access to the social and mental health services critical to navigate these ordeals—is paramount. Through its work with the Alliance and elsewhere, Gibson Dunn’s work on this front and its representation of victims of AAPI attacks not only help those directly impacted in the cases, but may also inspire other victims of AAPI attacks to speak out and protect their rights. In partnering with organizations like the Alliance and other AAPI groups, Gibson Dunn has helped mobilize legal resources to demonstrate that the AAPI community will not be silent bystanders in the face of unwarranted, hateful attacks.
Moving forward, Gibson Dunn will proudly continue to collaborate with AAPI groups and other legal organizations to assist victims of AAPI attacks and seek justice.
______________________
[1] Kimmy Yam, Anti-Asian hate crimes increased 339 percent nationwide last year, report says, NBC News (Jan. 31, 2022), https://www.nbcnews.com/news/asian-america/anti-asian-hate-crimes-increased-339-percent-nationwide-last-year-repo-rcna14282.
[2] U.S. Census Bureau, 2020 Census Redistricting Data Summary File, Pub. L. 94-171 (2022).
[3] Corina Knoll, Los Angeles to Memorialize 1871 Massacre of Chinese Residents, N.Y. Times (Sept. 14, 2022), https://www.nytimes.com/2022/09/14/us/massacre-chinese-los-angeles-1871.html.
[4] On this day – Jan. 19, 1930: White Mobs Attack Filipino Farmworkers in Watsonville, California, Equal Justice Initiative (last accessed on Jan. 9, 2023), https://calendar.eji.org/racial-injustice/jan/19.
[5] William K. Stevens, Klan Inflames Gulf Fishing Fight Between Whites and Vietnamese, N.Y. Times (Apr. 25, 1981), https://www.nytimes.com/1981/04/25/us/klan-inflames-gulf-fishing-fight-between-whites-and-vietnamese.html.
[6] Wynne Davis, Vincent Chin was killed 40 years ago. Here’s why his case continues to resonate, NPR (June 19, 2022), https://www.npr.org/2022/06/19/1106118117/vincent-chin-aapi-hate-incidents.
[7] Katayoun Kishi, Assaults against Muslims in U.S. surpass 2001 level, Pew Research Center (Nov. 15, 2017), https://www.pewresearch.org/fact-tank/2017/11/15/assaults-against-muslims-in-u-s-surpass-2001-level/.
[8] Raising Awareness of Hate Crimes and Hate Incidents During the COVID-19 Pandemic, U.S. Dep’t of Justice and U.S. Dep’t of Health and Human Servs. (May 20, 2022), https://www.justice.gov/file/1507346/download?_sm_au_= iHV3RFTV1qNV7nVFFcVTvKQkcK8MG.
[9] Yam, supra note 1.
[10] Id.
[11] Neil G. Ruiz, Khadijah Edwards, and Mark Hugo Lopez, One-third of Asian Americans fear threats, physical attacks and most say violence against them is rising, Pew Research Center (Apr. 21, 2021), https://www.pewresearch.org/fact-tank/2021/04/21/one-third-of-asian-americans-fear-threats-physical-attacks-and-most-say-violence-against-them-is-rising/?_sm_au_=iHV3RFTV1qNV7nVFFcVTvKQkcK8MG.
[12] Two Years and Thousands of Voices: What Community-Generated Data Tells Us About Anti-AAPI Hate, Stop AAPI Hate (Jul. 2022), https://stopaapihate.org/wp-content/uploads/2022/07/Stop-AAPI-Hate-Year-2-Report.pdf.
[13] Id.
[14] Id.
[15] Texan pleads guilty to hate-crime attack on Asian family, AP News (Feb. 23, 2022), https://apnews.com/article/ coronavirus-pandemic-business-health-crime-texas-0a2d8913a7d693b911c373d8003dfcba.
[16] Rachel Swan, Man accused in street attack that killed 84-year-old Thai man in San Francisco to face trial, S.F. Chronicle (June 17, 2022), https://www.sfchronicle.com/bayarea/article/Man-accused-in-street-attack-that-killed-17249717.php.
[17] Jessie Yeung, She was attacked in the street for being Asian. Her community still lives in fear, CNN (Jan. 30, 2022), https://www.cnn.com/2022/01/29/us/asian-american-attacks-aftermath-intl-hnk-dst/index.html.
[18] Jenny Jarvie, Police say man charged with killing Asian women and others at spas had ‘sexual addiction’, L.A. Times (Mar. 16, 2021), https://www.latimes.com/world-nation/story/2021-03-16/7-killed-in-shootings-at-3-atlanta-area-massage-parlors.
[19] Casey Smith and Luis Andres Henao, US Sikh community traumatized by yet another mass shooting, AP News (Apr. 20, 2021), https://apnews.com/article/shootings-statutes-violence-hate-crimes-indianapolis-395655b314f1e 57553fbac7b3f1804be.
[20] Catherine Thorbecke, Why anti-Asian hate incidents often go unreported and how to help, ABC News (Mar. 18, 2021), https://abcnews.go.com/US/anti-asian-hate-incidents-unreported/story?id=76509072.
[21] Nicholas Bogel-Burroughs, Atlanta Spa Shootings Were Hate Crimes, Prosecutor Says, N.Y. Times (May 24, 2021), https://www.nytimes.com/2021/05/11/us/atlanta-spa-shootings-hate-crimes.html.
[22] Sakshi Venkatraman, FBI says FedEx shooting not a hate crime; Indianapolis Sikhs still want answers, NBC News (July 29, 2021), https://www.nbcnews.com/news/asian-america/fbi-says-fedex-shooting-not-hate-crime-indianapolis-sikhs-still-n1275430.
[23] Laura Ly, Only 7 of 233 reported attacks against Asian Americans in NYC in 2021 led to hate crime convictions, new report says, CNN (May 31, 2022), https://www.cnn.com/2022/05/31/us/hate-crime-convictions-asian-americans/index.html.
[24] Joe Fitzgerald Rodriguez and Han Li, Why High-Profile Attacks on SF’s Asian Communities Rarely Lead to Hate Crime Charges, KQED (June 2, 2022), https://www.kqed.org/news/11915634/why-high-profile-attacks-on-sfs-asian-communities-rarely-lead-to-hate-crime-charges.
[25] Thorbecke, supra note 20.
[26] Kimmy Yam, Asian Americans are least likely to report hate incidents, new research shows, NBC News (Mar. 31, 2021), https://www.nbcnews.com/news/asian-america/asian-americans-are-least-likely-report-hate-incidents-new-research-n1262607.
[27] Id.
[28] Pub. L. No. 117-13, 131 Stat. 265 (2021).
This update was prepared by Debra Wong Yang, former partner Robert Hur, Poonam Kumar, Cynthia Chen McTernan, Adrienne Liu, and Michelle Lou.
Gibson Dunn lawyers are available to assist in addressing any questions you may have about these developments. Please contact the Gibson Dunn lawyer with whom you usually work or the following:
Debra Wong Yang – Los Angeles (+1 213-229-7472, [email protected])
Zakiyyah T. Salim-Williams – New York (+1 212-351-2326, [email protected])
Katie Marquart – New York (+1 212-351-5261, [email protected])
Gibson Dunn’s Pro Bono Committee is thrilled to announce the winners of this year’s Frank Wheat Memorial Awards. As always, the winners showcase characteristics all Gibson Dunn attorneys aspire to: an unfailing dedication to pro bono, a commitment to excellence, and a passion for service. The winners also reflect the diversity of the Firm’s pro bono practice, as well as the impact of pro bono matters big and small.
Frank Wheat, a former Los Angeles partner, was a superb transactional lawyer, SEC commissioner, and president of the Los Angeles County Bar. He was also a giant in the nonprofit community, having founded the Alliance for Children’s Rights in addition to serving as a leader of the Sierra Club and as a founding director of the Center for Law in the Public Interest. He exemplified the commitment to the community and to pro bono service that has always been a core tenet of the Gibson Dunn culture. Recipients of the Frank Wheat Memorial Award each receive a $2,500 prize to be donated to pro bono organizations designated by the recipients.
This year, we selected two winners in each category, and we also recognized the work of four members of the Gibson Dunn staff who went above and beyond in their support of the Firm’s pro bono practice. The Frank Wheat Award winners showcase important aspects of the Firm’s diverse and vibrant pro bono practice, which includes advising small businesses and nonprofits, appellate litigation, immigration, racial justice and criminal justice reform, veterans advocacy, and many other important initiatives. In total, more than 1,450 Gibson Dunn attorneys around the world devoted nearly 140,000 hours to pro bono work in 2022.
We recently marked the one-year anniversary of the Taliban’s takeover of Afghanistan. Many of you will remember the frantic days between August 15, when the Taliban seized Kabul, and August 31, the date U.S. forces set for their withdrawal. The United States ultimately evacuated approximately 125,000 people from Afghanistan before completing its withdrawal. Unfortunately, many more were unable to evacuate and have been in hiding, on the run, and living in constant fear of Taliban reprisals ever since.
As these events unfolded, a firmwide team of Gibson Dunn attorneys immediately jumped into action. Especially in those early days, we had attorneys and staff across the Firm working day and night to help individuals and families trying to escape Afghanistan and find safety in the United States or elsewhere. Our initial efforts focused on a handful of families with direct connections to the Firm, such as interpreters who had worked with Gibson Dunn attorneys who previously served in the U.S. military. However, what began as a very personal mission to help several families at risk of Taliban violence quickly evolved into something much bigger.
Over the last year, our attorneys have worked alongside our nonprofit and corporate partners to help Afghans seeking to flee Afghanistan, as well as those who already had traveled to the UK, the United States, and elsewhere. Since August 2021, the firmwide Afghanistan Task Force has grown to well over 200 attorneys who collectively have devoted more than 11,000 pro bono hours to the mission—work valued at approximately $10 million. If you’d like to learn more about the Firm’s work on behalf of hundreds of Afghan clients, please watch a short video found here.
Gibson Dunn lawyers provide an overview of the ongoing and still unfolding humanitarian crisis in Afghanistan. The session covers the latest updates on the legal landscape for Afghan refugees, the various mechanisms for providing immigration relief to Afghan refugees in the United States, and a look at how the legal profession has and can help close the justice gap for these deserving families.
View Slides (PDF)
PANELISTS:
Katherine Marquart is a partner in Gibson Dunn’s New York office and is the Firm’s Pro Bono Chair. In this role, Ms. Marquart manages and coordinates the Firm’s pro bono efforts globally. She also maintains a substantive practice in many areas of public interest law. Ms. Marquart previously spent seven years as a litigation associate at the Firm, where her practice focused on complex business litigation, transnational litigation, and internal investigations and regulatory inquiries.
Sara Ghalandari is Of Counsel in the San Francisco office of Gibson, Dunn & Crutcher. She is a member of the firm’s Real Estate Group. Ms. Ghalandari’s practice encompasses a wide-array of land use/development matters and real estate transactions, including zoning, planning, the California Environmental Quality Act (CEQA), public private partnerships, and matters regarding construction access, underpinning and shoring. The primary focus of her practice is the processing of entitlements, supervising the preparation and approval of environmental documentation, and negotiating transactional documents associated with land use, project development, and construction, including agreements between private and public entities (including local governments and public agencies).
Lauren Traina is an associate in the Los Angeles office of Gibson, Dunn & Crutcher. She currently practices in the firm’s Real EstatePractice Group. Ms. Traina’s practice focuses on land use and real estate matters, with an emphasis on energy transactions, including project development, acquisitions, financings and restructurings. She has significant expertise in wind power, solar power and other renewable energy technology, and has represented both developers and tax equity investors in connection with these transactions. Ms. Traina also has notable experience in corporate mergers and acquisitions, capital markets, and securities regulation.
MCLE CREDIT INFORMATION:
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In August 2021, amidst the rapid collapse of the Afghan government and the Taliban takeover of Afghanistan, Gibson Dunn launched a firmwide effort to provide pro bono legal services to the Afghan community. What began as a small-scale effort to provide assistance to individuals and families with ties to the Firm, including through military service or family connections, quickly grew into something much bigger. Over the course of a few short months, the Firm began to work with hundreds of Afghan individuals and families who feared Taliban violence due to their collaboration with the U.S. military or government, their work to promote the Afghan government and civil society, or their public support for causes seen as antithetical to the Taliban’s rule. Our clients included journalists, teachers, lawyers, doctors, women’s rights activists, and those who worked with or for the United States military, most of whom were and are seeking humanitarian parole as a means of traveling to and resettling in the United States. As we close out 2021, that work is ongoing, though some of our focus has begun to pivot to providing pro bono services to those individuals and families who have made it safely to the United States and are now seeking permanent lawful status here, most often as asylees. We invite all our friends, colleagues, and clients to join with us in these efforts in the days, weeks, and months to come.
Section I of this report provides an update regarding the situation in Afghanistan and efforts to evacuate vulnerable Afghans to the United States. Section II discusses Gibson Dunn’s ongoing efforts on behalf of Afghans at imminent risk of Taliban violence, many of whom are applying for humanitarian parole, as well as the Firm’s leadership role in the Welcome Legal Alliance, an initiative to support Afghan evacuees who have arrived in the United States and require pro bono legal representation to navigate the U.S. immigration system and address other legal needs. Finally, Section III of this report provides additional context regarding the resettlement process and benefits available to Afghan evacuees who have arrived in the United States. To learn more about these efforts or to get involved, please reach out to Katie Marquart, Partner & Pro Bono Chair.
I. Overview of the Current Situation in Afghanistan
Beginning in late August 2021, tens of thousands of Afghans, along with U.S. citizens and permanent residents, tried desperately to flee the country—an exodus that has continued over the past several months. In the months following the Taliban’s seizure of power, the situation in Afghanistan has become even more dire, with thousands of individuals internally displaced, in hiding, and at risk of Taliban reprisals. Nearly four months after the United States completed its military withdrawal from Afghanistan, approximately 44,000 displaced Afghans have settled into permanent housing and integrated into local communities throughout the United States. Another 32,000 remain in temporary housing on seven military bases across the country and a few overseas military posts, awaiting resettlement assistance while the Biden Administration, nonprofit organizations, and private sector partners work together to resettle families across the country. Others have been evacuated by U.S. allies and seek to resettle in countries like Canada, Germany, and the United Kingdom.
Thousands of Afghans who sought to escape Taliban rule remain in Afghanistan, where they face a perilous future. Individuals targeted by the Taliban—including dissidents, cultural rights defenders, artists in banned industries, religious and ethnic minorities, and individuals associated with Western culture—live in constant fear, witnessing and experiencing beatings, arrests, enforced disappearances, and killings. U.S. Citizenship and Immigration Services (“USCIS”) has received more than 30,000 humanitarian parole applications from Afghans seeking to enter the United States, and many other Afghans continue searching for alternate routes to safety, either in the United States or elsewhere. Because many of these individuals collaborated with the U.S. government and military, served in the Afghan government, or worked with nonprofit organizations and NGOs, they fear Taliban reprisals. Many of these individuals and families have been forced into hiding in Afghanistan, while others, in desperation, have embarked on perilous journeys to neighboring countries.
Additionally, with winter looming in Afghanistan, the country is facing an economic crisis with potentially devastating consequences for its citizens. There are already approximately 23 million people reportedly on the brink of potentially life-threatening food insecurity. And, as feared, the Taliban’s newly-implemented policies have restricted women’s freedom of movement and imposed compulsory dress codes, denied and curtailed access to education and employment, and restricted rights to peaceful assembly. Moreover, employment opportunities for women have declined, leading to diminished resources for families forced to rely on single income earners. Exacerbating these challenges, many individuals who worked with U.S. and Afghan forces over the last 20 years have gone into hiding and are now unable to support their families.
II. Gibson Dunn’s Efforts on Behalf of Affected Families
a. Pro Bono Humanitarian Parole Applications
In the waning days of August, as the humanitarian crisis in Afghanistan began to unfold, Gibson Dunn began working with dozens of families hoping to apply for humanitarian parole in the United States. These initial efforts were discussed in our September 2021 report, The Humanitarian Crisis in Afghanistan: Overview of Gibson Dunn’s Recent Efforts. Since then, the Firm has remained steadfastly committed to helping these families seek refuge from the threat of Taliban violence, secure legal status in the United States, and reunite with family members.
To date, approximately 200 Gibson Dunn attorneys and staff have dedicated more than 5,000 hours—valued at more than $4 million—to these efforts, including preparing approximately 300 humanitarian parole applications. Of course, Gibson Dunn is only a small part of the broader legal response to the humanitarian crisis in Afghanistan. We are proud to have partnered with in-house attorneys from many of our corporate clients on many of these applications, and we are thankful to have collaborated with attorneys at nonprofit organizations that are on the front lines of these efforts.
The stories of these families and their bravery continue to inspire Gibson Dunn attorneys, who are committed to pursuing all legal avenues to help these families reach safety. Many of these families have demonstrated a longstanding opposition to the Taliban—from attorneys and judges who helped put Taliban fighters behind bars to families who ran clandestine schools for girls, from interpreters who worked with the U.S. military to student activists and advocates for peace, and from former members of the Afghan government to religious and ethnic minorities. By way of example, we have proudly partnered with the International Legal Foundation (“ILF”), an international NGO that hires, trains, and deploys local legal aid attorneys in post-conflict areas, to help file humanitarian parole applications for seven of their Afghan lawyers and their families. We sincerely hope that, while their mission continues around the world, we can help the ILF bring some of their colleagues to safety.
We are honored to work with these courageous individuals and hope to one day welcome them as our new neighbors and friends in the United States.
b. Welcome.US
Gibson Dunn also has played an active role in Welcome.US, a new national effort to empower individuals, nonprofits, businesses, and others to welcome and support Afghan refugees arriving in the United States. In October 2021, Gibson Dunn Managing Partner Barbara Becker joined a roundtable meeting hosted by the White House to discuss ways in which private sector leaders are working together to help support Afghan evacuees.
As part of this effort, Gibson Dunn has teamed up with Welcome.US, Human Rights First, and the Afghan-American Foundation to lead the Welcome Legal Alliance, which will mobilize law firms, corporate legal teams, and the broader legal community to ensure that Afghans arriving in the United States have access to legal services throughout the entire resettlement process. Gibson Dunn, together with other co-leaders of the Alliance, is actively recruiting new legal volunteers from law firms and businesses, sourcing Dari- and Pashto-speaking legal professionals, and coordinating a working group to triage legal needs and reduce the barriers to obtaining quality legal representation. A growing list of organizations and law firms, including The International Refugee Assistance Project, Kids in Need of Defense, Pars Equality Center, Tahirih Justice Center, and We the Action, have committed to joining the Alliance. If you are interested in joining this effort, please reach out to [email protected].
III. Resettlement Process and Benefits for Afghan Arrivals
As an increasing number of Afghan refugees arrive in the United States, the Firm’s work is shifting to help Afghan evacuees settle in their new homes and obtain permanent immigration status. Many of these families are eligible for Special Immigrant Visas (“SIVs”) or other priority visas, and currently are awaiting resolution of their applications. Others, who have been granted humanitarian parole for a period of two years, intend to lawfully seek asylum upon their arrival in the United States.
Given the significant logistical and regulatory challenges inherent in resettling in the United States, Gibson Dunn is committed to helping these families navigate the intimidating and often confusing legal landscape to obtain the benefits to which they are entitled. Below, we describe some of the requirements placed on Afghan humanitarian parolees to maintain their parole status, discuss the process of registering for health and housing benefits, and provide a brief overview of the resettlement process.
a. Parole Requirements and Accommodations Upon Arrival to the United States
Every applicant approved as a humanitarian parolee must undergo a series of processing, screening, and vetting processes—both before and after arrival in the United States—if they wish to maintain their parole. U.S. Customs and Border Protection (“CBP”) has placed conditions on all paroled Afghan nationals, including medical screenings and vaccination requirements. Intelligence, law enforcement, and counterterrorism professionals conduct biometric and biographic screenings for all Afghan arrivals into the United States. Additionally, parolees are tested for COVID-19 upon arrival to the airport, and are given the option to receive the COVID-19 and other required vaccinations at various U.S. government-run sites, or at a designated Department of Defense (“DOD”) facility. The testing and vaccinations are provided at no cost to the Afghan arrivals.
Once tested, Afghan parolees are welcomed onto U.S. military bases, where they have the option to receive services through the U.S. government’s Afghan Placement and Assistance (“APA”) program. The APA is an emergency program created in response to the evacuation efforts in Afghanistan, and is designed to provide initial relocation support and benefits to Afghan parolees admitted to the United States between August 20, 2021, and March 31, 2022.
Afghan parolees receive temporary housing facilities on military bases until they are resettled into the local community. DOD has provided temporary housing facilities to parolees at eight installations: Marine Corps Base Quantico, Virginia; Fort Pickett, Virginia; Fort Lee, Virginia; Holloman Air Force Base, New Mexico; Fort McCoy, Wisconsin; Fort Bliss, Texas; Joint Base McGuire-Dix-Lakehurst, New Jersey; and Camp Atterbury, Indiana.
b. Health Insurance and Other Health Benefits
Almost all Afghan parolees receive health coverage provided by the Office of Refugee Resettlement (“ORR”) during their stay on the DOD bases. After leaving the bases, almost all Afghan refugees will be eligible for health insurance through Medicaid, the Children’s Health Insurance Program (“CHIP”), the Health Insurance Marketplace, or the Refugee Medical Assistance Program (“RMA”). These benefits are available under Section 2502 of the Extending Government Funding and Delivering Emergency Assistance Act, H.R. 5305, P.L. 117-43 (enacted September 30, 2021), which extends health insurance to Afghans paroled into the United States on or after July 31, 2021. The act expands eligibility for resettlement assistance, entitlement programs, and other benefits available to refugees until March 31, 2023, or the term of parole granted to the parolee, whichever is later.
c. Access to Resettlement Agencies and Additional Benefits
Parolees may resettle in a community either on their own or through a resettlement agency. The agencies factor in a parolee’s geographical preference for resettlement, but housing shortages in certain locations may require resettlement elsewhere. On base, parolees eventually will be processed and connected to a local resettlement agency that will complete the process of fully integrating the parolee into a local community. Parolees may remain on the military base while they await being connected to a resettlement agency, or they may voluntarily depart from the base and independently seek assistance from a resettlement agency. Although the process of being connected to an agency and resettled off base has been quite lengthy—a recent report estimated it to take more than a month—for evacuees on the military bases, the government hopes to complete these efforts by February 15, 2022.
Regardless of how the parolee is connected to the resettlement agency, the parolee will receive certain benefits and services through the agency after processing is complete. Although benefits available to parolees will vary by location, resettlement agencies typically offer benefits and resources relating to housing, clothing, cultural orientation, counseling, English language training, job skills training, and job placement. The resettlement agency also can assist the parolee in signing up for government benefits like Supplemental Security Income (if eligible) or temporary assistance for needy families (“TANF”). Parolees ineligible for these benefits may still receive assistance through ORR’s Refugee Cash Assistance (“RCA”) program, which provides eight months of cash assistance to help families meet their most basic needs (e.g., food, shelter, and transportation).
The nine resettlement agencies working with the U.S. government are:
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Lutheran Immigration & Refugee Service (“LIRS”) |
United States Conference of Catholic Bishops (“USCCB”) |
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Ethiopian Community Development Council, Inc. (“ECDC”) |
U. S. Committee for Refugees and Immigrants (“USCRI”) |
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HIAS |
International Rescue Committee (“IRC”) |
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Church World Service (“CWS”) |
World Relief (“WR”) |
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Domestic & Foreign Missionary Society (“DFMS”) |
IV. Conclusion
The mobilization of lawyers to help those affected by the continuing—and worsening—upheaval in Afghanistan has only just begun. Gibson Dunn is proud to partner with the broader legal community, including legal aid organizations, resettlement agencies, and attorneys across the private sector, to fight on behalf of these courageous families. Through coordinated and cooperative efforts, such as the Welcome Legal Alliance, we can maximize our impact and assist Afghans in need, both in Afghanistan and here in the United States.
Gibson Dunn lawyers are available to assist in addressing any questions you may have about these developments. Please contact the Gibson Dunn lawyer with whom you usually work or the following:
Katie Marquart – New York (+1 212-351-5261, [email protected])
Patty Herold – Denver (+1 303-298-5727, [email protected])
© 2021 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
In honor of Pro Bono Month, celebrated in October each year, we’d like to highlight some of the Firm’s tremendous pro bono achievements from 2021, as well as to recognize our attorneys’ tireless dedication to expanding access to justice, providing high-quality representation to some of the most vulnerable members of our communities, and responding to some of the most urgent issues of our day. Throughout the course of the last few years, as the Firm and the world grappled with a rapidly changing world, we have doubled down on our efforts to fight for racial justice, to bring relief to those most directly impacted by the pandemic, to defend the immigrant community, and, most recently, to tackle head-on the heartbreaking humanitarian crisis unfolding in Afghanistan.
We hope this newsletter gives you a taste of the types of work the Firm takes on through its pro bono practice, including advising small businesses and nonprofits, appellate litigation, immigration, racial justice and criminal justice reform, and veterans advocacy. We are so proud of our attorneys’ work on these issues and look forward to seeing what the rest of the year brings!
Since the collapse of the Afghan government and the Taliban’s takeover of Kabul more than three weeks ago, tens of thousands of Afghans, along with U.S. citizens and U.S. permanent residents, have desperately tried to flee the country and the Taliban’s oppressive rule. This humanitarian crisis continued to worsen as the emergency evacuation operation ran up against the deadline of U.S. withdrawal on August 31, 2021. Some of the most vulnerable Afghans at risk of imminent harm from the Taliban include those who previously supported the U.S. military or government, promoted democracy in Afghanistan, or worked on behalf of women’s rights, as well as members of ethnic and religious minorities. As of today, thousands of Afghans continue to search for safe pathways out of the country.
Over the past few weeks, Gibson Dunn sprang into action to help individuals at heightened risk of Taliban reprisals evacuate to safety. Section I of this report briefly summarizes some of the events on the ground in Afghanistan, with a particular focus on the humanitarian crisis that has resulted from recent developments. Section II highlights the Firm’s efforts, which are still ongoing and evolving to meet the rapidly changing situation in Afghanistan and across the globe. Understanding that many families are in urgent need of short-term evacuation from Afghanistan as well as long-term immigration relief, our teams are taking a holistic approach that focuses both on helping at-risk individuals pursue pathways to enter the United States as expeditiously as possible and on identifying ways they can obtain lawful immigration status in the United States on a permanent basis. Additional information detailing several avenues of legal relief—humanitarian parole, Special Immigrant Visas (“SIVs”), refugee resettlement, and asylum—can be found in Section III of this report. If you are interested in learning more about these efforts or how to get involved, please reach out to Katie Marquart, Partner & Pro Bono Chair.
I. Overview of the Current Situation in Afghanistan
The United States completed its military withdrawal ahead of its August 31 deadline, which had been set pursuant to an agreement with the Taliban signed in February 2020. Since the evacuation operation began on August 14, more than 123,000 people, most of them Afghans, have been evacuated, according to the U.S. government. But thousands more have been left behind, including Afghan interpreters and others who worked directly alongside U.S. military and government officials. In acknowledging that it did not get everyone out of the country that it wanted to, the United States has promised to find other ways for individuals to leave Afghanistan that do not require a U.S. military presence.
Even before the withdrawal of troops, the Taliban made it more difficult for civilians to flee the country and find safe harbor by erecting checkpoints and controlling access to Hamid Karzai International Airport and Afghanistan’s land borders. Those who were able to reach the airport faced additional dangers of being crushed by crowds, abused by the Taliban, and targeted by terrorist attacks like the August 26 ISIS-K suicide attack that killed nearly 200 people.
With U.S. and allied forces now gone, the road to safety has gotten even more challenging. Despite this, thousands of people are continuing to search for pathways to safety. Gibson Dunn will not stop working on behalf of these families. Rather, we will pursue all legal avenues to ensure that Afghans eligible to travel to another country will be not be turned away.
II. Gibson Dunn’s Efforts on Behalf of Affected Families
More than 100 Gibson Dunn attorneys and staff are working on the cases of dozens of families—well over 200 people—seeking refuge in the United States to escape the Taliban regime. These families, like many others, face a heightened risk of persecution, physical violence, and even death because of their collaboration with the U.S. military or government, their work to promote the Afghan government and civil society, or their public support for causes seen as antithetical to the Taliban’s rule.
These families’ stories are incredibly compelling. Several were interpreters for the U.S. military, including for Gibson Dunn associates who previously served in the U.S. military, while others were members of the Afghan military and Afghan National Police working alongside U.S. forces in hostile regions. Others are women and children whose husbands and fathers already immigrated to the United States on SIVs to begin building a home for their families. Some are pregnant or have infants and small children. Some are being targeted because they were journalists, open critics of the Taliban, or female professionals. Many of our clients already have faced threats and physical abuse at the hands of the Taliban, while others are being actively hunted by the Taliban. Although many of these families initially wished to remain in Afghanistan to help rebuild their home country, recent developments made them face the difficult reality that they had to leave.
The danger these families face cannot be overstated. A handful of families were able to safely escape before the American withdrawal, but many remain in hiding. Some families have abandoned their houses and are now homeless with limited, dwindling resources—and no way of supporting themselves given their need to stay hidden and evade the Taliban’s attention. Many are afraid the internet will be cut at any time, leaving them without any lifeline outside the country. Most can only communicate at certain times of the day, when there is less risk the Taliban will find them and search their phones for U.S. phone numbers or English messages. All are afraid the Taliban will find them and their families before they can escape.
In light of the severe risks and the urgency of these families’ need to travel to the United States, we have advocated for our clients using every avenue at our disposal. We have called on members of Congress, the State Department, the Department of Defense, and the Department of Homeland Security, as well as former government officials, to seek their help and insight. We gathered intelligence from teams on the ground to notify our clients of critical information in real time. While the United States remained in Afghanistan, we were also able to connect our clients inside the airport with U.S.-sponsored non-governmental organizations (“NGOs”) coordinating flights to ensure they were placed on manifests when possible.
Although the current situation is dire, we continue to fight for those who remain in Afghanistan until they can find their way to safety. This includes helping our corporate clients whose employees and representatives in Afghanistan similarly have found themselves in need of immediate assistance to escape persecution and leave the country. We have provided round-the-clock assistance to help our corporate clients navigate legal challenges in carrying out emergency on-the-ground actions related to their evacuation efforts and measures to ensure employee safety.
Our pro bono efforts thus far have largely focused on filing humanitarian parole applications to help families at risk of Taliban reprisals enter the United States on a temporary basis. Although our current focus is on helping these families reach safety outside Afghanistan, we also hope to assist with their long-term immigration cases upon arrival in the United States. Many of these families are eligible for SIVs or other priority visas and currently are awaiting resolution of their applications. The rest intend to apply for asylum upon their arrival in the United States. In the short term, however, we believe humanitarian parole remains the best chance for many of these families to gain authorization to travel to the United States.
III. Avenues of Legal Relief in the United States for Afghans Fleeing the Taliban
As we look ahead to what is to come, Gibson Dunn is eager to help provide access to the various forms of legal relief available to help these brave families. Although many logistical and safety challenges will persist, we are committed to doing what we can to help these courageous families navigate the legal pathways to obtaining temporary or permanent safe harbor in the United States or in other countries around the world. To date, most of our efforts have focused on resettlement into the United States. For that reason, we focus here on those avenues, which include: humanitarian parole for individuals facing urgent humanitarian needs; SIVs for those who worked for U.S. forces in Afghanistan; refugee admission under the P-1, P-2, and P-3 programs for certain Afghans who remain outside the United States; and asylum for those who arrive in the United States and are unable to return to Afghanistan.
A. Humanitarian Parole
Humanitarian parole is an option for temporary resettlement in the United States based on urgent humanitarian or significant public benefit needs. Under INA § 212(d)(5), the Secretary of Homeland Security “may, in his or her discretion, parole into the United States temporarily . . . on a case by case basis, for urgent humanitarian reasons or significant public benefit, any alien applying for admission to the United States.” Although it is typically an extraordinary measure, humanitarian parole may be the most direct pathway for many Afghans to enter the United States, given the current situation in Afghanistan.
Because individuals can seek humanitarian parole for “urgent humanitarian reasons or significant public benefit,” it is available to Afghan nationals who would not otherwise qualify for entry via SIV or the U.S. Refugee Admissions Program (“USRAP”), discussed below. For example, humanitarian parole is an important option for those who worked for the Afghan government, collaborated with U.S. forces without meeting the stringent SIV employment requirements, or otherwise are in danger due to their beliefs or minority status. It also might be a more expeditious option for those who may qualify for SIV or USRAP resettlement, but who face such urgent danger that they cannot wait to be processed through those more traditional pathways. To reduce the processing time, applicants can request “expedited processing” in urgent, life-threatening situations. Given the exponential increase in the number of humanitarian parole applications filed in recent weeks, however, it is difficult to predict how long it will take to adjudicate these applications.
Afghans facing persecution by the Taliban can apply for humanitarian parole for themselves, without depending on a referral or support from an employer or other entity. Alternately, individuals in the United States, including SIV holders, can submit a petition for humanitarian parole on behalf of Afghans currently outside the United States. In either case, a financial sponsor with lawful immigration status in the United States must submit an affidavit agreeing to sponsor the parolee(s) upon arrival in the United States. If approved, parolees are permitted to enter the United States for a specified period of time (typically one year). Once in the United States, parolees can apply for asylum or obtain permanent residence through other lawful means.
B. Special Immigrant Visa
Recognizing the danger our Afghan allies faced due to their work with U.S. forces, Congress created the SIV programs in 2006 and 2009 to allow certain Afghans to resettle in the United States as legal permanent residents with access to resettlement assistance and other benefits. Afghan nationals who were employed by or on behalf of the U.S. government in Afghanistan, or those who served as interpreters or translators for U.S. military personnel or under Chief of Mission Authority at the U.S. Embassy in Baghdad or Kabul, may be eligible for SIVs. However, the SIV application process often takes many years—time that many Afghan allies no longer have.
There are two SIV programs for which Afghan allies, including their spouses and children under age 21, might be eligible. First, a limited number of SIVs is available under Section 1059. To qualify, an Afghan must have worked directly with U.S. forces or the Chief of Mission authority as a translator/interpreter for at least one year and must obtain a favorable recommendation from a General or Flag Officer in their chain of command or at the embassy where they worked. Second, and more commonly, Afghans can apply for SIVs under Section 602(b) if they (1) were employed for at least one year by the U.S. government, a U.S. government contractor, or the International Security Assistance Force working with U.S. forces; (2) provided faithful and valuable service; and (3) face an ongoing serious threat because of their qualifying work.
C. The U.S. Refugee Admissions Program
Afghan nationals also may enter the United States through USRAP, which provides an opportunity for permanent resettlement in the Unites States to various classes of refugees. As a general rule, individuals seeking resettlement as refugees must be outside the United States and go through processing in a third country, rather than within their country of nationality.
- P-1 Refugees: The first of three categories under USRAP, Priority 1, is for individuals who have been referred by an Embassy, a designated NGO, or the United Nations High Commissioner for Refugees (“UNHCR”), due to the applicant’s circumstances and need for resettlement. Typically, P-1 refugees are referred to the United States by UNHCR.
- P-2 Refugees: Priority 2 designations are given to individuals the Department of State determines to be part of a group of “special concern” due to their circumstances and need for resettlement. In August 2021, the Department of State announced that certain Afghan nationals and their family members who are at risk due to their affiliation with the United States may be eligible for refugee resettlement under the P-2 program. Eligible individuals could include Afghans who (1) did not meet the minimum time-in-service for an SIV but who otherwise would be eligible for an SIV; (2) worked for a U.S. government-funded program or project supported through a U.S. government grant; or (3) were employed by U.S.-based media organizations or NGOs in Afghanistan. Spouses and children of any age, whether married or unmarried, also can resettle in the United States with someone who has been given a P-2 designation. Although many Afghans might be eligible for resettlement under the P-2 program, there are two significant challenges. First, Afghans seeking refugee resettlement under the P-2 program must be referred by their employer; they cannot apply for themselves. Second, the State Department has not yet explained how or where processing, which includes interviews and security checks, will occur.
- P-3 Refugees: The third refugee designation, Priority 3, provides an opportunity for permanent resettlement for Afghan refugees outside Afghanistan who have immediate family members (i.e., spouses, parents, and children) who already have been admitted to the United States. The family member in the United States must file within five years of the date when they were admitted as a refugee or special immigrant, or granted asylum.
D. Asylum
In addition to these more extraordinary pathways, Afghans also may pursue more traditional avenues of immigration relief in the United States, such as family-based visas and asylum. Asylum, in particular, likely will be the next step for many Afghans who enter the United States via humanitarian parole. Like other immigrants, Afghans can apply for asylum if they fear persecution based on race, religion, nationality, political opinion, or membership in a particular social group. They can do so upon entry in the United States or within one year of entering the country.
IV. Conclusion
We understand that there is a long road ahead, and that the process of reaching physical safety is just beginning for many individuals and families facing the threat of violence from the Taliban. We will continue to fight for short- and long-term immigration solutions on behalf of these brave individuals and families, using every avenue at our disposal. Gibson Dunn also is engaging in broader efforts to assist these individuals and families as they resettle in countries across the globe. We hope these efforts, together with the work of so many other organizations that have pulled together to help evacuate and resettle vulnerable Afghans, will remind our Afghan allies that they are not forgotten, and that they have many advocates fighting for them.
Gibson Dunn lawyers are available to assist in addressing any questions you may have about these developments. Please contact the Gibson Dunn lawyer with whom you usually work or the following:
Katie Marquart – New York (+1 212-351-5261, [email protected])
Patty Herold – Denver (+1 303-298-5727, [email protected])
© 2021 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
Gibson Dunn strongly condemns acts of violence, hatred and bigotry of any kind. In recent weeks, we have seen a disturbing rise of anti-Jewish hate erupt in communities around the world. These attacks rooted in anti-Semitism have no place in society, and we denounce anti-Semitism in any form, and in any context.
It has been a difficult year for many, and we know that many of our colleagues, friends and family members have been impacted by the recent attacks on the Jewish community and are struggling on a very personal level with these heinous acts of bigotry and prejudice. These horrific acts of physical violence in our communities and explicit anti-Semitic messages are deeply disturbing.
If we have learned anything from this past year, it is that we must not be afraid to condemn acts of hatred and violence wherever, and whenever, we see them in our communities. As Elie Wiesel said, “I swore never to be silent whenever human beings endure suffering and humiliation.” Silence is complicity and Gibson Dunn has never been silent. At Gibson Dunn, we have always and will always defend the rule of law, civil liberties, and equal justice for all. Our lawyers have been encouraged to take up that mantle, through pro bono efforts, charitable giving, or otherwise. The firm is proud of our longstanding partnerships with organizations committed to fighting anti-Semitism, including the Anti-Defamation League and the American Jewish Committee, which recently issued a groundbreaking survey on anti-Semitism in America. We are proud of the pro bono work that we have done in collaboration with organizations like Bet Tzedek and so many others, and we commit ourselves to further engaging in these important efforts.
Indeed, we have always prided ourselves on being on the frontlines of all major social justice and human rights issues of the day. Whether fighting for marriage equality; protecting those impacted most directly by the Travel Ban; fighting to reunite families separated at the southern border; standing up for the Dreamers and ultimately saving the DACA program; tackling police reform and criminal justice reform; defending the rights of peaceful protestors demanding racial justice in the wake of the murder of George Floyd; or advocating for victims of anti-Asian hate, we have actively taken a leadership role in righting such inequities. And this has never been more true than over the past year – Gibson Dunn has repeatedly reaffirmed our commitment to fighting hatred, injustice and inequity in our communities – particularly when these acts of hatred are rooted in discrimination against race, religion, color, sexual orientation, or national origin. We continue to stand with our colleagues and will fight prejudice and bigotry as we continue to advocate for tolerance, inclusion and understanding.
Gibson Dunn is committed to doing our part to combat anti-Semitism and hate in all of its forms. We encourage you to read this OpEd published in The American Lawyer from law firm leaders that we are proud to co-sign.
On May 19, 2021, Gibson Dunn was awarded the 2021 Richard D. Odgers Pro Bono Partner Award from the Giffords Law Center to Prevent Gun Violence, one of the nation’s leading legal and policy organizations dedicated to finding sensible solutions that will prevent further gun violence.
Giffords recognized and honored the firm’s work as lead counsel in a case seeking to compel the ATF to regulate “ghost guns” as the lethal firearms they are; in helping Giffords Law Center explore litigation and regulatory responses to mass shootings; and in assisting with numerous amicus briefs in important gun cases, including a powerful brief that 139 members of the US House of Representatives filed in the most important Second Amendment case to reach the Supreme Court in a decade.
Giffords featured its relationship with Gibson Dunn in its virtual gala, highlighting a 15-year partnership with the firm in litigation and other legal matters seeking to end gun violence across the United States. The Gibson Dunn team includes Century City partner Scott Edelman; New York partners Avi Weitzman, Akiva Shapiro, and Reed Brodsky; Los Angeles associate Jillian London; New York associates Lee R. Crain, Erica Sollazzo Payne, Alexandra Perloff-Giles, Liesel Schapira, Kaylie Springer, Trevor Gopnik, Michael Klurfeld, Amanda LeSavage, Praatika Prasad; and San Francisco associate Zach Tan.
We are thrilled to announce Gibson Dunn’s participation as a member of The Alliance for Asian American Justice (“The Alliance”), a national pro bono initiative committed to standing up for victims, and preventing future acts, of anti-Asian hate. Gibson Dunn is joined by a group of Fortune 1000 General Counsel and over 40 law firms in this important effort. The Alliance will be co-chaired by Gibson Dunn partner Debra Wong Yang and White & Case partner Tai Park. Deb will also serve on The Alliance’s Board of Directors alongside Tai; Don H. Liu, Executive Vice President and Chief Legal & Risk Officer of Target Corporation.; Wilson Chu, Partner, McDermott Will & Emery and Brian A. Sun, Partner, Norton Rose Fulbright.
The Alliance will coordinate and drive law firm pro bono resources on behalf of victims to assist and support them in obtaining legal remedies. This can include providing victims with counsel to bring lawsuits to seek compensatory and other civil remedies or working with law enforcement to ensure that perpetrators are held accountable, where appropriate. The Alliance will also identify additional resources, when relevant, that will help victims navigate this challenging time, including specialized legal services, social services, and other community support.
Initial case intake will be conducted by The National Asian Pacific American Bar Association, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice (AAAJ), and frontline legal and community organizations, before being referred to The Alliance. We are grateful to expand our partnerships with these organizations through our work with The Alliance and we welcome you to join in this important effort.
The Pro Bono Committee is thrilled to recognize the winners of this year’s Frank Wheat Memorial Awards. The Frank Wheat Memorial Award is given annually to individual lawyers and teams that have demonstrated leadership and initiative in their pro bono work, obtained significant results for their pro bono clients, and served as a source of inspiration to others. This year’s winners reflect the very best of what it means to be a Gibson Dunn lawyer, and we are so proud to honor them for their work.
Frank Wheat, a former Los Angeles partner, was a superb transactional lawyer, SEC commissioner, and president of the Los Angeles County Bar. He was also a giant in the nonprofit community, having founded the Alliance for Children’s Rights in addition to serving as a leader of the Sierra Club and as a founding director of the Center for Law in the Public Interest. He exemplified the commitment to the community and to pro bono service that has always been a core tenet of the Gibson Dunn culture. Recipients of the Frank Wheat Memorial Award each receive a $2,500 prize to be donated to pro bono organizations designated by the recipients.
As you will note, this year’s winners and nominees worked on a variety of matters ranging from immigration work and first amendment defense to pandemic response efforts and critically important racial justice work. Ultimately, we selected two winners in each category. In the team category we chose to honor the work of two teams of lawyers who rose to meet the challenges thrown at various communities amidst the COVID-19 pandemic – the small business community and the immigrant community. We similarly chose to honor two individual attorneys this year. One devoted stood up and fought zealously to defend first amendment rights – and won, while the other worked tirelessly to further the firm’s work on police reform and accountability.
This last year has brought with it unprecedented challenges to our personal and professional lives as we sought to deal with the widespread ramifications of the coronavirus pandemic. Amidst this backdrop, we all watched in horror as the brutal killing of George Floyd by the police was captured on camera, sparking activism, protests, and discussions about racism and inequality in the United States and around the world, including here at Gibson Dunn. Immediately the firm spoke out and, more importantly, acted to reaffirm its commitment to addressing and tackling racial justice and equity issues. As part of that, we refocused and recommitted our efforts to take on pro bono matters that directly impact systemic racism and racial justice, including police reform, criminal justice reform, equity in education and health care, and much more. We have also launched several racial justice-focused pro bono collaborations with many of the Firm’s corporate clients. In the past six months, nearly 400 lawyers have dedicated more than 16,000 hours to over 50 matters dedicated to achieving racial equity.
As we all know, when this Firm puts its mind to a cause, we can achieve great things. And, just as we have with issues like LGBTQ rights and immigrant rights, Gibson Dunn is dedicated to playing a meaningful role in the fight against policies, practices, and actions that produce unequitable outcomes for people of color. Together we will achieve lasting, real change.
When the COVID-19 pandemic hit, it introduced unimaginable challenges into all our lives. But for those living in poverty or within marginalized communities, the impact of the disease was especially devastating. Gibson Dunn has remained steadfast throughout, while also pivoting and adapting to meet the needs of the moment, reaching out to help those most dramatically impacted and doing what we could to help. Since March 2020, over 300 Gibson Dunn lawyers have dedicated more than 8,000 pro bono hours to these Coronavirus-response efforts. By coming together during this challenging time we hope that we have made a difference in the lives of our pro bono clients, as well as in the broader communities in which we all live.
Over the course of the last few months we have also seen the uprising of a powerful racial justice movement that has captured the hearts of people around the world. Gibson Dunn has met this moment by recommitting to working towards racial justice with an overwhelming collective energy. In just a few short weeks we have taken on new projects and cases that address a variety of racial justice issues, and put in place teams and structure to do so much more. We look forward to seeing what is still to come in this important fight. As the Firm charges ahead to tackle racial justice and systemic oppression, we also want to reflect on all that we have already accomplished together in 2020.
Palo Alto partner Carrie LeRoy was inspired by tragedies in her community involving cyber bullying and other forms of harassment via social media. Recognizing the disconnect between the practice of victim-blaming – which appeared to be rampant on social media – and the reality that the law strives to protect survivors and punish perpetrators, she developed a program now known as Cyber Dignity. The program trains pro bono attorneys to educate thousands of young people in the Bay Area and beyond, with a focus on teaching teenagers their rights and responsibilities in the areas of social media, cell phone use, and other technology. Its primary goals are deterrence of sexual assault and cyber bullying, empowerment of survivors, and engagement of bystanders. The curriculum addresses First Amendment rights in the social media space, accomplice liability via texting in the case of a suicide, documenting sexual assault online, and other timely and important issues.
The Practising Law Institute (PLI) recently digitized the program as part of its pro bono curriculum, and in June 2020, Carrie was featured on Pro Bono Net’s Connecting Justice Communities blog.
Our communities are being torn apart by incidents of unspeakable racism. As these incidents grow in number so, too, grows the legitimate anger, hurt, distrust, fear and public outrage of those in our community who have been targeted. These incidents include, but are not limited to, the death of Ahmaud Arbery, a 25 year old African-American who was shot while jogging through a neighborhood in southeast Georgia, the death of Breonna Taylor, a 26 year old African American woman killed by police after they forcefully entered her home on a no-knock warrant, and the recent death of George Floyd, a 46 year old African American man who was murdered in Minneapolis, Minnesota. Mr. Floyd was in police custody – handcuffed and lying on the ground in prone position when one of the arresting officers placed his knee on the back of Mr. Floyd’s neck and kept it there for nearly nine minutes with other officers watching. Mr. Floyd repeatedly called out that he could not breathe and onlookers protested that his life was in jeopardy. Mr. Floyd suffocated and died from these injuries. Both the death of Mr. Arbery and Mr. Floyd were captured on videotape which is very hard to watch, and impossible to justify.
These traumatic events and resulting unrest during a global pandemic have left many of us at a loss and with an overwhelming sense of despair, anger, fear and helplessness during these trying times. I know that many of our colleagues are struggling on a very personal level with these heinous tragedies and inequities. We, at Gibson Dunn, stand with our colleagues and will fight racism wherever we see it as we continue to defend the rule of law, civil liberties and equal justice for all. Our lawyers have been encouraged to take up that mantle, through pro bono efforts, charitable giving, or otherwise. Our firm is already engaged in a variety of matters that impact on racial justice issues, including tackling police reform and criminal justice reform. We know that there is much more work to be done and we are not doing nearly enough, but I do believe that we have arrived at a pivotal moment in the fight for racial equality and I am proud to say that Gibson Dunn will play a prominent role in that fight.
As an initial step, Gibson Dunn will contribute $100,000 to the NAACP Legal Defense and Education Fund (LDF). LDF is America’s premier legal organization fighting for racial justice and has been a long-standing beacon of hope for communities of color. Through litigation, advocacy, and public education, LDF seeks structural changes to expand democracy, eliminate disparities, and achieve racial justice in a society that fulfills the promise of equality for all Americans. Gibson Dunn’s very own Ambassador Ron Kirk serves on LDF’s Board of Directors. We are proud to stand alongside Ron in supporting LDF’s important work.
Martin Luther King, Jr. notably stated “The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.” In my communication earlier this year celebrating Dr. King’s life and legacy, I wrote that Dr. King’s work “is an amazing gift to the world – challenging the status quo and its many inequalities, yet he was hopeful, optimistic, empowering and inspirational about a better world that lies ahead.” Gibson Dunn is committed to ensuring that a better and more equitable world lies ahead.
Stay safe and healthy, and stand strong.
Kenneth M. Doran
Chairman & Managing Partner
Gibson, Dunn & Crutcher LLP
On June 1, 2020, President Barack Obama published a blog post titled “How to Make this Moment the Turning Point for Real Change,” sharing the link to a milestone community-based policing report and toolkit created last year by the Leadership Conference Education Fund—the education and research arm of the Leadership Conference on Civil and Human Rights—and describing it as a “starting point” to an effective policing reform agenda tailored to different communities. Gibson Dunn partners and associates worked extensively on the report and toolkit.
Published on March 28, 2019, the 416-page report titled “New Era of Public Safety: A Guide to Fair, Safe, and Effective Community Policing” is designed to be a guide to best practices for public safety and policing in the 21st century, grounded in the core theme of community policing. As noted in the executive summary, “this report was developed to give individuals, communities, activists, advocacy organizations, law makers, and police departments the knowledge to carry out this important work.” The accompanying toolkit is “intended to empower communities to hold police departments accountable by working together to address problems and to find the best way forward to coproduce public safety.” The report and toolkit are available for download here and here.
Since late 2016, Gibson Dunn had been closely involved in researching and drafting this report, with over 160 associates conducting research into best practices and recommendations to reform policing in collaboration with community advocates and law enforcement experts, including the Policing Project at NYU School of Law; Ron Davis, former director of the Office of Community Oriented Policing Services (COPS Office) of the U.S. Department of Justice (DOJ) and Scott Thomson, chief of the Camden County Police Department and president of the Police Executive Research Forum.
The Gibson Dunn team includes Marcellus McRae, Ben Wagner and Frances Waldmann