Federal judge rules DoD’s policy unlawfully slows immigrant troops’ path to citizenship

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A federal judge Tuesday struck down a Defense Department requirement that service members serve for six months or a year before being eligible for an expedited path to citizenship.

The lawsuit was filed by the American Civil Liberties Union in April on behalf of eight non-citizen service members. They represent a class of thousands in uniform, according to the ACLU.

The matter revolves around a DoD policy signed on Oct. 13, 2017, which lengthened the time a recruit must serve before receiving a certificate of honorable service, which is one of the requirements for getting expedited citizenship.

The change lengthened the time in service to 180 consecutive days of active duty or one year in the reserves, to include successfully completing basic training. Previously, eligibility for that certificate began after one day of service.

The U.S. Citizenship and Immigration Services policy manual stated that one day of service was sufficient in establishing eligibility. DoD previously didn’t have a formal policy, but Army and Navy personnel documents indicated that the certificate of honorable service could be issued after one day of service, according to court documents.

Under a ruling by Judge Ellen S. Huvelle in the U.S. District Court for the District of Columbia, DoD must revert to that one-day marker.

“Not only is DOD prohibited from considering anything beyond an enlistee’s past service record in determining whether he or she has served honorably, but upon receipt of a request [for a certificate of honorable service] by a non-citizen who has satisfied the one day of qualifying service, DOD must make the required determination,” Huvelle wrote in her decision.

DoD unlawfully withheld those certifications because of its minimum service requirements, she wrote.

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DoD spokeswoman Lisa Lawrence referred questions to the Justice Department. Justice officials did not immediately respond to a request for comment.

The ACLU applauded the judge’s decision.

“Congress has long recognized that immigrants who serve in the military during wartime are entitled to be Americans,” said Scarlet Kim, staff attorney with the ACLU’s National Security Project, in a statement. “This decision rejects the Trump administration’s racist attempt to subvert this clear congressional mandate in furtherance of its anti-immigrant agenda. We’re pleased that our clients and thousands of others like them can finally benefit from the expedited path to citizenship they have rightfully earned through their honorable military service.”

According to court documents, over the last three years, 1,695 certifications of honorable service have been requested and issued to non-citizen service members. But only 10 have been requested and issued in the last eight months. Generally, DoD has been able to issue the certification within two days after the request.

Most of the non-citizen service members in the lawsuit now have their certificates of service, according to court documents filed by Justice attorneys.

The government attorneys asserted that Congress delegated DoD the responsibility for certifying that a non-citizen’s service has been “honorable,” according to a court document.

“The history surrounding the passage of this statutory authority makes clear that the mere act of enlisting in the military does not automatically entitle an alien to become a naturalized citizen; rather, consistent with DoD’s long-standing practice, military officials must make an informed assessment of an alien’s service based on a sufficiently developed service record,” the court document stated.

The government argued that the policy change also aligned DoD’s honorable service characterizations with how DoD defines honorable service more broadly. Among other things, DoD’s policy governing entry-level separations from the service states that entry-level separations — those that occur within the first 180 days of active-duty service — will be uncharacterized, not specifying whether the service was honorable, according to the document.

The Oct. 13, 2017, policy change resulted from events that began under the Obama Administration. It addressed security concerns raised by DoD officials with the Military Accessions Vital to the National Interest, or MAVNI, program which had brought in more than 10,000 recruits since 2009. Supporters of the MAVNI program say it allows the military to recruit immigrants with vital skills such as foreign language proficiency or high-demand medical training. But critics said the program did not adequately screen potential applicants.

In 2016, the Pentagon determined it didn’t have proper security measures to protect against potential insider threats, and began a review. The concerns were confirmed by an investigation by the DoD Inspector General. That resulted in more stringent background checks.

“We could not continue what we’d been doing without an espionage potential,” then-Secretary of Defense James Mattis said of the previous weaknesses found in the program, speaking to reporters at the time.

The policy change also added the requirement that before a non-citizen active-duty member could get a certification of honorable service, he or she had to successfully complete basic training and serve at least 180 consecutive days of active duty service, to include the basic training.

Those non-citizens in the reserve components had to successfully complete basic training and serve at least one year of service toward non-regular retirement, to include the basic training.

For those non-citizens who have served in an active duty status in a hazardous duty area, the service member is eligible for the honorable service certification if he or she has successfully completed basic training; and satisfactorily serves at least one day of active-duty service in a combat zone, a qualified hazardous duty area, or an area where service in the area has been designated to be in direct support of a combat zone and which qualifies the member for hostile fire or imminent danger pay.

According to court documents, from Oct. 1, 2001, through September 2018, USCIS naturalized 129,587 members of the military.

About

Karen has covered military families, quality of life and consumer issues for Military Times for more than 30 years, and is co-author of a chapter on media coverage of military families in the book “A Battle Plan for Supporting Military Families.” She previously worked for newspapers in Guam, Norfolk, Jacksonville, Fla., and Athens, Ga.

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