WASHINGTON (CN) – Three non-citizens serving in the U.S. Army filed a federal complaint Friday accusing the Department of Defense of unlawfully refusing to certify their eligibility for naturalization after promising them a fast-track to citizenship.
Mahlon Kirwa, Santhosh Meenhallimath and Ashok Viswanathan filed the class action against the Defense Department and Secretary of Defense James Mattis.
"As non-citizen soldiers serving honorably during wartime, plaintiffs have an absolute statutory right to apply to become naturalized U.S. citizens, but defendants are refusing to certify their naturalization application eligibility as required by law, leaving these soldiers to languish in immigration limbo, notwithstanding their ongoing military service to this nation," the 32-page complaint states.
The three men, who serve in the Selected Reserve of the Ready Reserve, were recruited into the Army under the 2008 Military Accessions Vital to the National Interest program (MANVI), which promises non-U.S. citizens with special language or medical skills deemed vital to U.S. national interests an expedited path to citizenship if they serve honorably during wartime.
Federal law allows Kirwa, Meenhallimath and Viswanathan to apply for naturalization, but in order to do that they need the Pentagon to complete certification form N-426.
According to the lawsuit, the citizenship opportunity provided a powerful incentive for their enlistment, the terms of which require them to serve for eight years.
But the three soldiers say the Defense Department has implemented a new policy of refusing to issue that form on the basis that the MANVI soldiers have not served in active-duty capacity yet, even though the law does not require that.
"Defendants’ policy of withholding issuance of N-426s has no lawful basis and contravenes their duty to act," the lawsuit says. "And defendants have implemented this policy in blatant disregard for the immense suffering and mounting harm that their actions have caused to soldiers under their command."
The new policy "stands in stark contrast" to the Pentagon’s previous policy, according to the complaint. The Defense Department has processed thousands of forms for MANVI soldiers in the past, after which they are sent to the Department of Homeland Security for regular processing. But now the Defense Department is directing relevant commands to stop issuing the N-426 until the soldiers have seen active duty.
Calling the Pentagon's conduct "a poorly-thought-out and thinly-veiled effort" to deny the soldiers citizenship, the complaint suggests that the department's views about the program have shifted over time.
In a separate but related case filed in May, the Pentagon told a judge it is not certifying any MANVI soldiers while it conducts a review of the program in response to concerns that Army officials had previously jumped the gun on N-426 certifications.
According to proceedings in that case, the Pentagon and the U.S. Customs and Immigration Services are at odds over interpretation of the law. According to Friday's complaint, Customs and Immigration Services disagrees with the Defense Department's new policy of requiring active-duty service before it will certify the eligibility of MANVI soldiers for citizenship.
The three soldiers, who enlisted in 2015 and 2016, say they are currently stuck in limbo without voting rights, work authorization or the ability to travel in and out of the United States. They are also without protection from deportation: According to the Department of Homeland Security, MANVI soldiers are only lawfully present in the United States "at the discretion of the agency."
Deportation could pose high risks for some of them.
"These individuals would be subject to deportation to countries of origin, where, for some, they could face detention, interrogation, prosecution, and/or imprisonment because of their decision to enlist in the U.S. Army and swear their allegiance to the United States and the Constitution," the complaint states.
The Defense Department declined to comment on the pending litigation.
When reached for comment, attorneys for Kirwa, Meenhallimath and Viswanathan also declined to comment.
The soldiers seek class certification and declaratory, injunctive and mandamus relief.
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