Noncitizen US Soldiers Score Relief in Court

WASHINGTON (CN) – The Department of Defense must stop blocking U.S. citizenship applications from three soldiers serving in the U.S. Armed Forces, a federal judge ruled Wednesday.

By putting the men at risk for deportation, U.S. District Judge Ellen Huvelle said the DOD is causing irreparable harm to the soldiers, who were promised a fast track to citizenship in exchange for eight years of honorable military service.

“Every day of delay leaves plaintiffs in limbo and in fear of removal,” the 35-page opinion states. “Plaintiffs live in constant fear that they will lose their work or student visas or be discharged, deported, and subject to harsh punishment in their country of origin for joining a foreign military.”

A representative for the Pentagon said they are evaluating the ruling.

Established as a pilot program in 2008, the Military Accessions Vital to National Interest program recruits noncitizens with medical and language skills deemed vital to the national interest. Service members who belong to this program are required to pair their naturalization applications with a form called the N-426, which certifies their honorable military service.

Though the law says that active-duty service members or members of the Selected Reserve of the Ready Reserve are eligible for naturalization, the DOD made a change in March so that only active-duty servicemembers were eligible.

Mahlon Kirwa, Santhosh Meenhallimath and Ashok Viswanathan filed a class action last month after the DOD refused to sign their N-426 forms.

The DOD had previously certified such documents within days of their submission. It argued that it had agency discretion about when and whether to certify honorable service, which it said makes the policy unreviewable.

Judge Huvelle disagreed.

“DOD’s N-426 policy is subject to review as a ministerial task not committed to agency discretion, for there are meaningful standards by which the court can judge agency action in this context,” the ruling states.

Huvelle’s ruling came about two weeks after the DOD shifted course again, introducing new criteria that the judge said would further delay certification of the Selected Reservists’ forms.

Under the proposed criteria, the DOD revoked the active-duty requirement but imposed additional requirements stipulating that applicants cannot be subject to any legal or disciplinary matter, must undergo extensive background checks and vetting, and must serve for certain periods of time.

These requirements could double or even triple the amount of time it will take for service members to have their service certified, Huvelle found.

“DOD represented to plaintiffs that they would naturalize, or at least have the protection of being in the process of pursuing expedited citizenship, shortly after enlistment,” the Oct. 25 ruling states. “Instead, the October 13th Guidance stands in stark contrast since the new projected timetable deprives the enlistees of their right to apply for an expedited path to citizenship.”

Huvelle again rejected the DOD’s argument the policy could not be judicially reviewed.

“DOD offered no reasoned explanation for this change, thereby suggesting that DOD’s decision was an arbitrary and capricious one,” the ruling says.

Pointing to “a central principle of administrative law,” Huvelle said agencies must acknowledge and present a reasoned explanation for departures from long-standing practices and policies.

Under D.C. Circuit precedent, an agency’s action is considered arbitrary and capricious when it fails to provide “reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.”

Huvelle slammed an “illogical” argument by the government that the soldiers would not be harmed because they could still apply for citizenship after they get their forms.

“The government represented to plaintiffs that, in exchange for 8 years of military service, they would be able to pursue an expedited path to citizenship shortly after enlistment,” she wrote. “Now that time has been extended by two or three years.”

The DOD’s assertion of national security also missed the mark.

“DOD has given no reasoned justification why certifying a form N-426 for immigration and naturalization purposes implicates our national security,” the ruling states.

Huvelle’s order includes an injunction barring the DOD from refusing to sign the forms for reservists who have served for at least one day in the Selected Reserve.

Huvelle also certified the class action for members of the Selected Reserve who enlisted before Oct. 13 and have not received completed N-426 forms.

The soldiers Kirwa, Meenhallimath and Viswanathan are represented by Jennifer Wollenberg with the Washington office of Fried, Frank, Harris, Shriver & Jacobson. Wollenberg declined to comment on the ruling.

%d bloggers like this: