An Afghan military officer who fled a training exercise on Cape Cod last year has won political asylum in the United States, after his lawyers argued that sending him home would be a death sentence.
Major Jan Arash was one of three Afghan soldiers who spent more than $1,600 to travel last September from Cape Cod to a border checkpoint in Niagara Falls, where they were detained for deportation. The men said the Taliban insurgents had targeted them for aiding the American military.
On June 25, the federal Board of Immigration Appeals said Arash deserved asylum, calling the Taliban a “persecutor” that the Afghan government is “unable to control.” The board’s ruling overturned a New York immigration judge’s decision to deny Arash asylum earlier this year.
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“He’s almost speechless. He’s overjoyed,” said Matthew Borowski, one of Arash’s immigration lawyers in Buffalo who provided details of the decision Tuesday because immigration records are not public.
US Immigration and Customs Enforcement has 30 days to appeal the decision, officials said.
“US Immigration and Customs Enforcement is currently reviewing the Board of Immigration Appeals’ decision and must await the lower court’s action before determining the appropriate next steps,” said ICE spokesman Khaalid Walls.
The Afghan government has struggled to assert control since the US- and NATO-led combat mission ended last year. The State Department says the Central Asian nation is “extremely unstable” and under constant risk of attacks, kidnappings, and suicide bombings. Just last week, a Taliban suicide bomber attacked Parliament, killing two and wounding dozens, according to media reports.
Arash and two other soldiers had arrived in Cape Cod last September with dozens of soldiers from the United States and other countries to study emergency planning at Camp Edwards.
The three soldiers slipped away during a trip to Walmart, pooled their money, and took taxis to the Canadian border. Their disappearance triggered a search of military barracks, shopping malls, and even a strip club, although officials said the men posed no threat to security. Two days later, the men turned up at the Rainbow Bridge seeking asylum in Canada.
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Canada swiftly returned the three men to the United States, which detained them for deportation proceedings in administrative immigration courts.
One soldier, Captain Mohammad Nasir Askarzada, a father of two, was returned to Canada in December after his lawyer argued that he should have been admitted because he has relatives in that country.
His lawyer, Razmeen Joya, said Askarzada has been free pending an asylum hearing possibly this summer — in stark contrast to Arash and Captain Noorullah Aminyar, 31, who have been held in immigration jail for the past nine months.
Until now, the fates of Arash and Aminyar appeared grim.
Both had appeared before Judge Steven Connelly in Batavia immigration court, which is inside an immigration detention center in rural New York. Connelly set bonds of $25,000 each — over four times their annual pay as soldiers.
Borowski said Connelly denied Arash’s asylum request in January and Aminyar’s earlier this month, setting them on track for deportation to a nation where the average life expectancy is 50. Arash is 49.
The judge’s decisions are not public, but Borowski said he ruled that they could not seek asylum because they feared the Taliban. He said a three-judge panel for the Board of Immigration Appeals, headquartered in Virginia, “squarely rejected that.” Borowski said immigration judges Roger Pauley, Anne Greer, and Patricia Cole ruled that the Taliban posed a serious threat to Arash’s safety — and that the Afghan government was unable to protect him.
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“The board ruled that the Taliban is a de facto government, that the Afghan government is unable to control the Taliban or to protect people from the Taliban,” Borowski said.
Afghan officials in Washington strongly disagreed with that assessment Tuesday.
“The Taliban is not a de facto government in Afghanistan,” said Bilal Askaryar, spokesman at the Embassy of Afghanistan. “Their control is limited, and they are on the defensive.”
Ramin Manawi, counselor and embassy charge d’affaires, said most Afghans who study or train in the United States later return home safely.
“Our country needs them,” he said. “We always encourage Afghans to return. The reason they come here to study is to go back and fix these issues.”
On Tuesday, Borowski called on ICE to release Arash from the immigration jail in Batavia. He said the board’s ruling signaled that Aminyar may also prevail in his asylum case. Both men have wives and children in Afghanistan.
If ICE does not appeal Arash’s case, Borowski said, he could be eligible for a green card within a year and US citizenship after another five years.
Afghans are one of the world’s largest refugee groups, according to the United Nations, but few have won asylum in the US immigration courts.
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Of 41 applicants in fiscal year 2014, only 15 Afghans won asylum in the US immigration courts.
Maria Sacchetti can be reached at maria.sacchetti@globe.com. Follow her on Twitter @mariasacchetti.