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Afghan soldier detained in Batavia wins right to remain in the U.S.

There was a time when Maj. Jan Arash saw Canada as his best bet for freedom.

Make it there, the Afghan solider once thought, and that will be my ticket to asylum and my escape from the Taliban.

Arash finally realized his dream Monday, but with one major change in plans – the promise of freedom may keep him here in Buffalo.

And maybe even allow his family in Afghanistan to join him.

Fresh from the news that a three-judge immigration panel has granted him asylum, Arash was preparing for what his lawyer called an absolute certainty – his release after more than nine months at the Federal Detention Center in Batavia.

“He was overjoyed,” Matthew Borowski said of Arash’s reaction to the news. “His first priority is to learn more English and get a job.”

It was back in September that Arash and two other Afghan soldiers grabbed national headlines when they bolted from their training program on Cape Cod and, with the help of a taxi, found their way to the Rainbow Bridge. All three soldiers said it was their fear of the Taliban that prompted them to abandon their training and flee to Niagara Falls with hopes of making it into Canada.

They never made it across the border and instead found themselves under arrest and facing deportation back to Afghanistan. When a local immigration judge rejected Arash’s request for asylum, his fate seemed even more bleak.

On Monday, Borowski received word that the Board of Immigration Appeals in Virginia has reversed that decision and ordered Arash’s case back to Judge Steven J. Connelly in Batavia. Borowski said Connelly is expected to now approve Arash’s asylum request and free him.

“I’m not holding my breath but I think he should be released today,” he said of Arash on Tuesday.

In hopes of expediting his release, Borowski and his law partner, Ryan Witmer, plan to file a “humanitarian parole” request asking Connelly to release Arash while the final details of his asylum can be worked out.

Even more importantly, perhaps, the panel’s decision could prove crucial to the case of Capt. Noorullah Aminyar, the other Afghan solider still being held in Batavia. A third solider, Capt. Mohammad Nasir Askarzada, was ruled eligible for asylum in Canada and was transferred there in December.

“It doesn’t guarantee we’ll be successful but the cases are so similar, it’s hard to imagine another outcome,” Witmer said of Aminyar’s pending appeal.

For Arash, the ruling means new hope that his family – his wife and five children are still in Afghanistan – will be able to come here, as well. Borowski said he could not comment on Arash’s family – he indicated in December they were in hiding in a remote part of Afghanistan – but indicated the law allows for the family of asylum seekers to join them here.

Borowski said he thinks Arash is seriously considering Buffalo as a permanent home for his family. If they do come, it would provide a closing chapter to Arash’s story that many thought unlikely at the time of his arrest nine months ago.

From the day he fled his training facility on Cape Cod, Arash has argued that his life would be at risk if he returned to Afghanistan, and, in the end, it was that claim that earned him asylum.

In his earlier ruling, Connelly found that any torture or persecution by the Taliban would not be protected under the United Nation’s Convention Against Torture because the Taliban is not the official governmental body of Afghanistan.

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

The appeals panel disagreed.

“They found that Maj. Arash does face persecution from the Taliban,” Borowski said. “The board also rejected the immigration judge’s finding that the Taliban is not a de-facto government.”

During their trials, all three men testified about the kind of treatment they would face if they had to go back to Afghanistan and, during interviews with reporters, said they were terrified that members of the Taliban would kill them.

They claim terrorists in their country hate Afghan soldiers because of their allegiance to U.S. soldiers. They also fear for the safety of their families, who remain there, and Arash said he knows of soldiers who were murdered in their homes and sometimes in front of their families.