Pentagon Asks Ninth Circuit to Restore Policy on Noncitizen Enlistees

SAN FRANCISCO (CN) – Courts may not second-guess the U.S. military’s decisions, a Justice Department lawyer argued Friday in urging the Ninth Circuit to reverse an injunction against a Trump administration policy that delays noncitizens’ military careers.

“This is precisely the type of discretionary action based on military expertise and national security concerns that is committed to military discretion,” Justice Department lawyer Thomas Pulham told a three-judge Ninth Circuit panel Friday.

According to Pulham, U.S. District Judge Jon Tigar made a grave error in November 2018 when he blocked a Department of Defense policy that prevents foreign nationals from starting basic training until after their lengthy background checks are completed.

Lead plaintiff Jiahao Kuang, who has lived in the United States since age 8 and signed up to join the Navy after high school, claims the policy leaves him and thousands of other enlistees stuck in limbo and unable to start their military careers. Meanwhile, the policy allows U.S. citizens to start basic training with their background checks still pending.

A longer wait to start basic training means delays in obtaining the benefits of military service, including financial aid for school and an expedited path to U.S. citizenship. The background checks can take over a year.

The Department of Defense claims the policy was enacted for national security reasons because noncitizens “have comparatively higher rates of foreign contacts and likelihood of foreign influence.” Tigar found the military lacked evidence to support that conclusion.

The government also cited a 2017 study that identified three problems with military background checks for foreign nationals. First, because noncitizens are ineligible to access 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.

Representing the plaintiffs, attorney Peter Wald of Latham & Watkins in San Francisco called those issues “procedural problems of the government’s own making.” He said the proper remedy would be fixing the background check system, not indefinitely delaying noncitizens’ military careers.

Because shipping lawful permanent residents to basic training did not cause the “information gaps,” Wald insisted the government lacks a rational basis for the policy.

U.S. Circuit Judge Sandra Ikuta was not convinced.

“The question is not who caused the information gap,” Ikuta said. “The question is what can the government do to fix the information gaps.”

Ikuta added she does not see why the government’s actions in this case were “not rational.”

Sitting on the panel by designation from the District of Ohio, U.S. District Judge Benita Pearson asked both sides “where the line should be drawn” on when courts can and cannot review U.S. military decisions.

Pulham cited the Ninth Circuit’s 1985 decision in Khalsa v. Weinberger, which held that a Sikh man was not free to join the military if he could not comply with its appearance regulations on head and facial hair. Pulham said the plaintiffs in this case are even less aggrieved because they are not banned from joining the military based on their status as a member of a group. Instead, their careers are merely delayed.

Wald countered that Khalsa involved a completely different policy – one that applied uniformly to all enlistees, rather than subjecting one group to a separate set of rules.

“We would say the line should be drawn when you’re talking about class-based discrimination,” Wald said.

U.S. Circuit Judge Ronald Gould, who in February dissented from a decision not to stay the injunction pending appeal, joined Ikuta and Pearson on the panel.

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

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