(CN) – The Trump administration must allow non-citizens to begin basic training at the same time as other recruits, a divided Ninth Circuit found Friday, upholding a lower court’s ruling.
“Appellants’ motion to stay the district court’s November 16, 2018 order pending appeal is denied,” U.S. Chief Circuit Judge Sidney Thomas wrote on behalf of the majority in a succinct, 1-page order.
U.S. Circuit Judge Ronald Gould broke with the majority, saying he would have allowed the policy until the merits of the case were decided.
“The strength of the named plaintiffs’ claims are not very strong, because at most the new Department of Defense policy requires a delay in class members’ entry into basic training until after their background checks have been completed,” Gould wrote in his 2-page dissent. “At most, the injury is a delay in reporting to basic training for an individual if that person’s background check proves one that is safe for the military, and if the person is thought not safe for the military based on the background check, then there’s no recognizable harm at all.”
U.S. District Court Judge Jon Tigar did not see it that way when he ruled against the defense department last November in the Northern District of California. In his view, the Trump administration failed to justify its need for the policy.
“If there was no evidence that [legal permanent residents] posed a greater security risk, this policy change is by definition arbitrary and capricious,” Tigar wrote in his 55-page ruling.
The Department of Defense had argued the policy served national security because non-citizens “have comparatively higher rates of foreign contacts and likelihood of foreign influence.”
The injunction means enlistees like lead plaintiff Jiahao Kuang, who has lived in the U.S. since age 8 and signed up to join the Navy after high school, can start their military careers without delay.
In November, Kuang’s attorney, Ahmed, said his client and thousands of other enlistees have been living in a state of limbo for months. Some enlistees, including Kuang, chose not to go to college because they expected to start military service, he said.
“The sooner you join the military, the sooner you can advance your military career,” Ahmed said.
A longer wait to start basic training means it will take longer to accrue the benefits of military service, including financial aid for college and an expedited path to U.S. citizenship, Kuang argued.
Ahmed said he is not aware of any non-citizen who has been allowed to start basic training since the Trump administration enacted the new policy last year.
In addition to the preliminary injunction, Tigar’s ruling granted class certification.
U.S. Circuit Judge Richard Paez also sat on the Ninth Circuit panel. President Bill Clinton appointed all three judges.