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Afghan soldier denied asylum, ordered back to Afghanistan

BATAVIA – Convinced that the Taliban will kill him if he returns to Afghanistan, Major Jan Mohammad Arash bolted from his training program on Cape Cod in the fall and, with the help of a taxi and two other Afghan soldiers, found his way to Niagara Falls.

Arash never made it across the border to Canada and, on Friday, his journey and dream of asylum came to an end.

A federal immigration judge denied Arash’s request to stay in the United States and ordered him returned to Afghanistan.

Arash’s attorney, Matthew Borowski, said after Friday’s decision he plans to appeal it to the Board of Immigration Appeals, which could take three to eight months to act. In the meantime, Arash will stay at the federal detention facility in Batavia.

“I’m disappointed that the immigration judge ruled against Major Arash, but I’m prepared to appeal to the BIA,” Borowski said. “And I’m confident they’ll give due weight to the ample evidence and testimony we presented in court which establishes that the major will be persecuted and tortured if returned to Afghanistan.”

Friday’s court session lasted a little more than an hour. It was closed to the public.

But Borowski said that, as part of his ruling, Immigration Judge Steven J. Connelly found that any torture or persecution by the Taliban would not be protected under United Nation’s Convention Against Torture because the Taliban is not the official governmental body of Afghanistan.

Borowski said the judge also ruled that since Arash was a military officer in the Afghan national army, any sanctions he faces from Afghan government for trying to leave the force would constitute “prosecution,” not “persecution.”

The judge’s decision came three weeks after another Afghan soldier, Capt. Noorullah Aminyar, went to trial over his request for asylum, and more than a month after a third soldier, Capt. Mohammad Nasir Askarzada, was transferred to Canada, where he’s expected to gain freedom.

Arash’s future, meanwhile, remains very much in doubt following the judge’s order. He is the first of the three Afghan soldiers who fled Massachusetts to seek asylum to go on trial.

All three soldiers said fear of the Taliban prompted them to abandon their training in September and flee to Niagara Falls with the hopes of making it into Canada.

Borowski said he has pleaded with officials from Immigration and Customs Enforcement to allow Arash to be released from detainment as the proceeding continues so he can work to send money home to his family.

The attorney, who’s taken the case pro bono, also said he’s fighting to have the $25,000 bond amount reduced so his client can avoid confinement for the time being.

He said he’s optimistic about his client’s chances on appeal.

“I think we have a strong case,” Borowski said. “I think we’ve met our burden.”

When the three soldiers crossed the Rainbow Bridge and asked for asylum, Canadian authorities turned them over to U.S. immigration officials.

“We showed them our passports and our Afghanistan military ID cards,” Arash, 48, told The Buffalo News a few days later. “We told them we were trying to save our lives and our families. They sent us to jail.”

The three men have remained in custody at the Federal Detention Center in Batavia since their arrests in late September.

All three also testified about the kind of treatment they would face if they had to go back to Afghanistan, from both the government and the Taliban, Borowski said.

Arash, the father of five children, said he spoke to his family in Afghanistan after his arrest, and they were shocked to learn he was in jail.

“In my whole life, this is the first time I have been in a jail,” he told The News. “We are not criminals.”

In interviews, the soldiers said they are terrified that members of the Taliban will kill them if they are sent back to Afghanistan.

They claim terrorists in their country hate Afghan soldiers because of their allegiance to American soldiers. They also fear for the safety of their families, who remain there.

Borowski on Friday said he spoke on the phone with Arash’s wife about a month ago. They were hiding out in a remote area in Afghanistan and had no food or firewood, he said.

Arash said he knows of soldiers who were murdered in their homes and sometimes in front of their families.

When asked why he chose the U.S. or Canada, he said it was the absence of wars here.

“We want a place of peace to live with our family,” he said. “Peace is a prize from God, a gift from God to your people.”

email: pfairbanks@buffnews.com and abesecker@buffnews.com