Ninth Circuit Revives Delay for Noncitizen Military Enlistees

SAN FRANCISCO (CN) – The Ninth Circuit revived a Trump administration policy Tuesday that opponents say treats noncitizens like “second-class recruits” and blocks them from starting basic training at the same time as citizens.

In an unpublished opinion, a unanimous three-judge panel found claims that the policy was “arbitrary and capricious” under the Administrative Procedure Act not strong enough to overcome a legal doctrine that cautions courts to avoid interfering in internal military decisions.

U.S. District Judge Jon Tigar blocked the policy in November 2018, finding the Department of Defense lacked evidence to support its claim that noncitizens pose a greater security risk than citizens. Tigar also found the policy would cause irreparable harm for recruits by indefinitely delaying their military careers and the benefits of military service, including an expedited path to citizenship and financial aid for school.

In October 2017, the Pentagon rolled out its new policy preventing legal permanent residents from starting basic training while their background checks are pending. It justified the policy with claims that noncitizens “have comparatively higher rates of foreign contacts and likelihood of foreign influence,” a claim Tigar rejected as unsupported by evidence.

The department also cited a 2017 study that identified three problems with military background checks for foreign nationals. First, because noncitizens are ineligible to get classified information, the enlistees were not subject to a higher-level “Tier 3” investigation which could have revealed disqualifying information. Second, the military failed to systematically cross-check noncitizens’ fingerprints with a “central biometric repository for terrorist data.” Third, the Department of Defense lacked access to enlistees’ green card and visa applications.

A lawyer for the plaintiffs argued in June that those flaws were “problems of the government’s own making” that could be fixed by improving the background check system, not indefinitely delaying noncitizens’ military careers.

Lead plaintiff Jiaho Kuang’s attorney, Sameer Ahmed of the American Civil Liberties Union of Southern California, could not be reached for comment Tuesday. He previously told Courthouse News that Kuang, who has lived in the United States since age 8, is one of many legal permanent residents who chose not to go to college because they expected to start military service right after high school.

On Tuesday, a three-judge Ninth Circuit panel found the policy would not cause noncitizens to suffer “grave injury” because they “were not entitled to quick or immediate accession” when they enlisted.

The panel further held that the Pentagon had valid support for its decision, citing guidelines from the Office of the Director of National Intelligence that tell decision-makers to consider noncitizens’ allegiance to the U.S., foreign influence and foreign preference in military background checks. The panel also found the policy was a reasonable response to the 2017 study that identified flaws in the screening process for noncitizens.

Citing the legal doctrine established in the 1971 Fifth Circuit decision Mindes v. Seaman, the panel added that “military decisions are generally reserved to military discretion.”

The circuit judges noted courts may still review and overturn military polices based on “palpably untrue or highly questionable” claims, but the panel said that was not the case for this policy.

“DOD’s claim to expertise in this case is not seriously in doubt, and its assertions about national-security risks are not far-fetched,” the panel wrote in a 5-page opinion. “We conclude that judicial review is foreclosed.”

The panel consisted of U.S. Circuit Judges Ronald Gould and Sandra Ikuta, along with U.S. District Judge Benita Pearson, sitting by designation from the District of Ohio.

Gould was appointed by Bill Clinton. Ikuta is a George W. Bush appointee and Pearson was appointed by Barack Obama.

The U.S. Department of Defense did not immediately respond to a request seeking comment Tuesday morning.

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