Judge Slams US for Reneging on Promises to Noncitizen Soldiers

WASHINGTON (CN) – A federal judge rebuked the Defense Department on Friday for freezing out foreign-born U.S. Army reservists whose citizenship it had promised to fast-track.

Certifying her bench ruling in a written opinion late Friday, U.S. District Judge Ellen Huvelle ordered the agency to stop retroactively decertifying a form the soldiers have been including with their citizenship applications.

The service members in question belong to a pilot program established in 2008 called the Military Accessions Vital to National Interest.

Noncitizens recruited to this program generally demonstrate medical and language skills deemed vital to the national interest. In exchange for eight years of honorable service, program participants are given a form called the N-426 that they can pair with their naturalization applications to speed up the process.

After the Pentagon suspended the program last year, however, inducting its last recruits before June 2016, about 500 soldiers who already submitted their naturalization applications found that they were not being afforded any of the special treatment they had been promised.

By September 2016, the Defense Department announced that it had stopped processing naturalization applications for national-security reasons. The agency justified its action on a new requirement that soldiers would have to undergo additional security screening, akin to that required for a security clearance.

The delays triggered a federal complaint in May from Kusuma Nio and nine other program participants, but Huvelle denied them an injunction in September.

Though she voiced sympathy for their struggles, she found their claims insufficient at that juncture to override the government’s national-security claims.

The plaintiffs renewed their claims after the Defense Department added new requirements to the program on Oct. 13, saying applicants cannot be subject to any legal or disciplinary matter, must serve for certain periods of time, and must undergo extensive background checks and vetting.

While the applicants undergo the enhanced screening, the agency said previously submitted N-426 forms would be revoked.

Without submission of the N-426, however, soldiers participating the program are not protected from removal proceedings.

Huvelle found Wednesday, in a ruling on a similar but unrelated case, that the new requirements would double or triple the time it takes the service members to have their service certified.

The judge held oral arguments Friday on the Nio case. Arguing for the soldiers, attorney Jennifer Wollenberg said retroactive decertification of the N-426 forms would cause her clients irreparably harm.

Huvelle agreed, noting that decertifcation of service will unravel the naturalization applications for the duration of the vetting process. Once the vetting is complete, the soldiers will face additional waiting time because they will have to start the naturalization application process all over again.

“It’s going to hurt these people,” Huvelle said.

Justice Department attorney Colin Kisor failed to sway the judge that the soldiers cannot show irreparable harm since their certification would be restored five days after the vetting is complete.

Wollenberg countered that recertification after the vetting process and background checks is not guaranteed because of the new eligibility standards.

Huvelle sided with the challengers, saying the undue processing delays would leave program participants with an uncertain immigration status that could impact their ability to work and travel.

“They had a right to an expedited path to citizenship,” Huvelle said. “That’s what you’ve not permitted here.”

The DOD did not immediately respond to a request for comment. Kisor argued at the hearing that nothing in the law prohibits the government from decertifying the N-426 forms.

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