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Nio v. United States Department of Homeland Security

United States District Court, District of Columbia

September 6, 2017

KUSUMA NIO, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE, United States District Judge

         Before the Court is plaintiffs' motion for preliminary injunctive relief.[1] Plaintiffs are non-citizens serving in the United States Army's Selected Reserve of the Ready Reserve who enlisted under the United States Department of Defense's Military Accessions Vital to the National Interest (“MAVNI”) program and who have applied for naturalization pursuant to 8 U.S.C. § 1440, which provides an expedited path to citizenship for soldiers who serve during specified periods of armed conflict. They brought this action against (1) the United States Department of Homeland Security (“DHS”) and its Acting Secretary, Elaine C. Duke, the United States Citizen and Immigration Service (“USCIS”) and its Acting Director, James McCament (collectively “DHS Defendants”); and (2) the United States Department of Defense (“DOD”) and its Secretary, James Mattis (collectively “DOD Defendants”).[2] Plaintiffs bring multiple claims under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, challenging (1) USCIS's decision to put their naturalization applications on hold pending DOD's completion of the enhanced security screening it now requires for MAVNI enlistees prior to basic training or active-duty service (“DHS/USCIS Security Screening Requirement”); and (2) DOD's position that (a) “active duty” service is required for the issuance of USCIS Form N-426 (“Request for Certification of Military or Naval Service”)-a form necessary for a MAVNI's naturalization application under 8 U.S.C. § 1440-and (b) that it may revoke the N-426 forms it previously issued certifying plaintiffs' qualifying service (“DOD N-426 Review”). Plaintiffs seek a preliminary injunction (1) enjoining DHS Defendants from implementing the DHS Security Screening Requirement and (2) preventing DOD Defendants from undertaking the DOD N-426 Review. (Pls.' Mot. for a Prelim. Inj. (hereinafter “PI Mot.”), June 28, 2017, ECF No. 17.) For the reasons stated herein, the motion is denied without prejudice.

         BACKGROUND

         I. FACTUAL BACKGROUND

         A. The MAVNI Program

         Generally, enlistees in the United States Armed Forces must be either United States citizens or have legal permanent residence. See 10 U.S.C. § 504(b). However, under the MAVNI program, which began in 2009 and is authorized through the end of September 2017, non-citizens who are not permanent residents, but who are lawfully present in the United States, may enlist if they have critical foreign language skills or specialized medical training.[3] See Id. § 504(b)(2); (Miller Decl. ¶ 4, July 7, 2017 (“1st Miller Decl.”); Defs.' Mem. of Law in Opp'n to Pls.' Mot. for Prelim. Inj. (“Defs.' Opp.”) Ex. 5 (United States Army Reserve MAVNI Information Paper), ECF No. 19.)

         Over the years of the MAVNI program's existence, DOD has increased the security screening requirements for MAVNI enlistees. (1st Miller Decl. ¶¶ 12-17.) As of September 30, 2016, DOD required that MAVNI enlistees complete an enhanced security screening before they can receive a favorable “military-service determination” (also called a “suitability-for-service determination”), qualify for active-duty status or ship to basic training. (PI Mot. Ex. 10; 1st Miller Decl. ¶¶ 10, 14; Miller Decl. at 6-7, July 28, 2017 (“2d Miller Decl.”).) According to DOD, its decision to require enhanced security screening for MAVNI enlistees arose out of security concerns regarding the MAVNI program. (1st Miller Decl. ¶¶ 14-18; 2d Miller Decl. at 8-10; Tr. of Prelim. Inj. Hr'g (Day 1) at 21-22, July 19, 2017, ECF No. 34 (“7/19/2017 Tr.”).) DOD's enhanced security screening for MAVNI enlistees includes: (1) a Tier 3 or Tier 5 background investigation-formerly known as a Single Scope Background Investigation (“SSBI”)[4]; (2) a National Intelligence Agency Check (“NIAC”)[5]; (3) a counter-intelligence focused security review (“CI Review”); and (4) an “issue-oriented interview and/or issue-oriented polygraph, if needed to resolve any foreign influences or foreign preference concerns.” (1st Miller Decl. ¶ 14; 2d Miller Decl. at 5.) Once the above requirements are completed, DOD conducts a final review and makes a military suitability determination. (Tr. of Prelim. Inj. Hr'g (Day 2) at 7-9, Aug. 23, 2017, ECF No. 37 (“8/23/2017 Tr.”))

         If the investigation reveals unmitigable derogatory information-such as “undue foreign influence”-the military suitability determination will be unfavorable and DOD can discharge the MAVNI enlistee under “other than honorable conditions, ” such as an “uncharacterized” discharge. (8/23/2017 Tr. at 37-38; see PI Mot. Ex. 8; 1st Miller Decl. ¶ 14 (negative outcome “could result in an applicant's administrative discharge from the Armed Forces under any administrative characterization of service, including ‘other than honorable' conditions”); 2d Miller Decl. at 9; Defs.' Resp. to the Court's Aug. 24, 2017 Order Exs. A & B, Aug. 30, 2017, ECF No. 39 (“Defs.' 8/30/2017 Resp.”).)[6] An uncharacterized discharge also means that the individual would no longer be eligible to become a naturalized citizen under the MAVNI program. (8/23/17 Tr. at 24-25.)

         Although on its face, DOD's enhanced security screening requirements for MAVNI enlistees does not necessarily impact the adjudication of MAVNI naturalization applications, as explained infra, USCIS will not conduct an examination of a MAVNI naturalization applicant until the applicant successfully completes DOD's enhanced security screening.

         B. Naturalization for MAVNI Enlistees

         Generally, non-citizens who serve in the United States military during designated periods of hostilities are afforded an expedited path to citizenship. See 8 U.S.C. § 1440.[7] Since September 11, 2001, such a period of hostilities has existed. See Exec. Order No. 13269, 67 Fed. Reg. 45, 287 (July 3, 2002). Thus, the MAVNI program not only gives non-citizens who are not lawful permanent residents the opportunity to enlist in the United States military, it also provides an expedited path to citizenship. (1st Miller Decl. ¶¶ 4-9; Renaud Decl. ¶ 11, July 7, 2017 (“1st Renaud Decl.”).)[8]

         An applicant for naturalization pursuant to 8 U.S.C. § 1440 must submit to USCIS the standard Form N-400 naturalization application along with a USCIS Form N-426.[9] (1st Miller Decl. ¶¶ 4-8.) DOD must execute the N-426, which certifies the applicant's qualifying military service. (1st Miller Decl. ¶¶ 6-8; 1st Renaud Decl. ¶ 10; PI Mot. Ex. 29.) The N-426 indicates the applicant's dates of service and whether the applicant served “on active duty” or in the “Selected Reserve of the Ready Reserve.” (1st Miller Decl. ¶ 6; PI Mot. Ex. 29.) The applicant bears the burden of showing that he “[h]as been, for at least one year prior to filing the application for naturalization, and continues to be, of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States.” 8 C.F.R. § 329.2.

         Until recently, USCIS processed MAVNI naturalization applications in the same fashion as all other § 1440 applications, by following the generally-applicable requirements for naturalization, such as the FBI criminal background check, see 8 U.S.C. § 1446(d); 8 C.F.R. § 335.3; (1st Renaud Decl. ¶¶ 3, 4, 15), as well as checking the Defense Clearance Investigative Index (“DCII”) database to see if the “applicant has any derogatory information in his or her military records.” (1st Renaud Decl. ¶ 5; PI Mot. Ex. 7 “USCIS Policy Manual”.) Once these checks were completed, the applicant could be scheduled for an examination by a USCIS officer. 8 C.F.R. § 335.2; (1st Renaud Decl. ¶ 3.) By statute, USCIS must adjudicate all naturalization applications within 120 days of completing the examination. 8 U.S.C. § 1447(b); 8 C.F.R. § 335.3.

         To date, USCIS has naturalized at least 10, 000 MAVNI enlistees through the aforementioned process. (7/19/2017 Tr. at 57.) And, pursuant to an initiative to expedite processing of applications from enlistees who are at basic training, the “Naturalization at Basic Training Initiative, ” USCIS adjudicated most of these applications in approximately 10 weeks' time-MAVNI enlistees would submit their naturalization applications upon arrival at basic training (a process typically lasting 10 weeks)[10] and USCIS would adjudicate the applications and naturalize MAVNI enlistees by the last week of basic training.[11] (1st Miller Decl. ¶ 9; 1st Renaud Decl. ¶ 13.) Overall, as of May 2017, the average processing time for all military N-400s, including MAVNI enlistees, was slightly more than 4 months.[12] (Renaud Decl. ¶ 3, July 28, 2017 (“3d Renaud Decl.”).)

         Beginning in early 2017, though, USCIS began to delay the processing of MAVNI N-400 applications pending the results of DOD's enhanced security screening. (See, e.g., 1st Renaud Decl. ¶¶ 21-25; Renaud Decl. & Document Production, July 17, 2017 (“2d Renaud Decl.”) & attachment thereto (copies of USCIS documents referenced in 1st Renaud Decl. ¶¶ 23-26); 1st Miller Decl. ¶ 18.) According to DOD, “on or around April 2017, ” it “informed USCIS that it was concerned about the naturalization of individuals whose Office of Personnel Management (OPM) background investigation and DOD counterintelligence security review has not yet been completed, ” and thus, “DOD and USCIS jointly determined that it was in the best interest of the United States to ensure [that] the naturalization decision of USCIS was informed by the outcome of the completed OPM background investigation and the DOD counterintelligence security review.” (1st Miller Decl. ¶ 18; see also 2d Miller Decl. at 8-10.) On July 7, 2017, Daniel Renaud-Associate Director, Field Operations Directorate, of the USCIS Headquarters in Washington D.C.- provided “final agency guidance” to the USCIS Field Offices in an email with the subject line “Updated MAVNI N-400 Guidance.” (2d Renaud Decl. ¶¶ 3-4.) The email summarizes USCIS's authorization as follows:

USCIS has determined that the completion of DOD background checks is relevant to a MAVNI recruit's eligibility for naturalization. As such, all pending and future MAVNI cases may not proceed to interview, approval, or oath until confirmation that all enhanced DOD security checks are completed.

         (2d Renaud Decl. attachment at 25.) Under the heading “Guidance, ” it states:

USCIS must ensure that each MAVNI naturalization applicant demonstrates good moral character and attachment to the U.S. Constitution as required by the INA and 8 CFR. In order to do so, each applicant must receive proper DOD vetting and clearance in alignment with the September 30, 2016 MAVNI extension authorization and restrictions. Consequently, USCIS will not proceed to interview, approve, or oath any currently pending or future MAVNI naturalization applicants applying for naturalization under INA § 329, regardless of their active duty or reserve service, until all enhanced DOD security checks are completed.

(Id.)

         In plaintiffs' view, the USCIS's July 7, 2017 guidance amounts to an unlawful “hold” on the processing of MAVNI naturalization applications. Defendants initially accepted the description of USCIS's action as a “hold” (see 7/19/2017 Tr. at 101)-indeed the term “hold” appears in several earlier USCIS emails (see, e.g., 2d Renaud Decl. ¶¶ 3-4)-but subsequently has tried to disavow that label. (See Defs.' Supp. Mem. of Law in Opp'n to Pls.' Mot. for Prelim. Inj. at 2, Aug. 14, 2017, ECF No. 31 (“Defs.' Supp. Opp.”) (“July 7, 2017 guidance was intended to end all holds, while broadening existing background check resources under 8 C.F.R. § 335.1, to include DOD enhanced security checks for MAVNI applicants.”); see id. Ex. B (July 27, 2017 email from Claudia F. Young, Division Chief, Citizenship and Operations Support, Field Operations Directorate, stating: “Please be advised that the below guidance from Associate Director Dan Renaud [the July 7th, 2017 guidance] supersedes all previous emails and guidance on MAVNI holds. This guidance clarified that there is no longer any hold on N-400s filed by MAVNI recruits.”).) Yet, at the same time that USCIS asserts that there is no “hold, ” it uses mandatory language about awaiting DOD enhanced security screening:

However, these applications cannot be processed until all DOD enhanced security checks are complete. Field Operations is now engaged in discussions with DOD on the process DOD/USCIS will have to inform USCIS of MAVNI enlistees who have successfully completed the required enhanced background checks. We will keep you updated on the process and let you know of any cases that successfully complete the required enhanced background checks.

(Defs.' Supp. Opp. Ex. B (emphasis added).) Thus, even if the USCIS's July 7, 2017 action is not labeled a “hold, ” it appears to have the same effect-MAVNI naturalization applicants cannot be examined by USCIS until DOD completes its enhanced security screenings.

         It further appears that MAVNI applicants must “successfully” complete DOD's enhanced security screening in order for USCIS to continue processing their naturalization applications. (8/23/2017 Tr. at 25 (MAVNI enlistee cannot naturalize if DOD discharges an enlistee under other than honorable conditions, “notwithstanding the presence or absence of an N-426 and whether it's revoked or not, ” because “[y]ou have to have an honorable discharge if you are discharged.”).)[13]

         C. Plaintiffs

         1. Enlistment

         Between February and June 2016, each of the named plaintiffs enlisted in the United States Army's Selected Reserve of the Ready Reserve through the MAVNI program. Their enlistment contracts obligate them to serve eight years of service in the Army Reserve, six years of which must be served in the Selected Reserve. (Defs.' Resp. to the Court's July 14, 2017 Order (“Defs.' 7/17/2017 Resp.”) Ex. B (Pls.' Enlistment Contracts), July 17, 2017, ECF No. 23.) Each plaintiff was assigned to a U.S. Army Selected Reserve unit and has participated in multiple drills with their units.[14] (De Almeida Decl. ¶¶ 6, 8; Batchu Decl. ¶¶ 5, 7; Calixto Decl. ¶¶ 6, 8; Cheng Decl. ¶¶ 6, 8; Udeigwe Decl. ¶¶ 5, 8; Hong Decl. ¶¶ 6, 7; Li Decl. ¶¶ 4, 6; Liu Decl. ¶¶ 4, 6.) Although each plaintiff expected to go to basic training within approximately six months of enlistment, none has done so due to DOD's enhanced security screening of MAVNI enlistees. As of September 1, 2017, 575 days have elapsed since the date of enlistment of the earliest plaintiff, and 451 days since the date of enlistment of the latest plaintiff. (De Almeida Decl. ¶ 7; Batchu Decl. ¶ 6; Calixto Decl. ¶ 7; Cheng Decl. ¶ 7; Udeigwe Decl. ¶ 6; Hong Decl. ¶ 6; Li Decl. ¶ 5; Liu Decl. ¶ 6; see also 7/19/2017 Tr. at 39-40.) DOD has declined to give an estimate as to how long the enhanced security screening will take, but as of September 5, 2017, it had not been completed for any of the eight named plaintiffs. (See Defs.' Weekly Report in Resp. to Court's Aug. 24, 2017 Order, Sept. 1, 2017, ECF No. 41 (“9/1/2017 Weekly Report”); Defs.' Am. Weekly Report in Resp. to Court's Aug. 24, 2017 Order, Sept. 5, 2017, ECF No. 42 (“9/5/2017 Weekly Report”).)[15]

         2. Naturalization Applications

         Between August 19, 2016, and March 23, 2017, while drilling with the DTP and awaiting a basic-training date, each named plaintiff applied for naturalization by filing their Form N-400, along with a properly executed N-426. Plaintiffs' naturalization applications have now been pending for as little as five months or for as much as slightly over a year. Thus, even if plaintiffs' USCIS examinations occurred today (which they will not because DOD has yet to complete enhanced security screening for any named plaintiff and USCIS is waiting on those screenings) USCIS could take up to an additional four months to reach a final decision on naturalization. See 8 U.S.C. § 1447(b); 8 C.F.R. § 335.3. In the meantime, at least four of the eight named plaintiffs no longer have a lawful immigration status. (8/23/2017 Tr. at 31-32, 69 (listing three plaintiffs that defendants were aware of and a fourth whom plaintiffs' counsel informed the Court would lose his student visa on September 1, 2017); PI Mot. Ex. 24, at 3; 9/1/2017 Weekly Report; see also 9/5/2017 Weekly Report.) These four plaintiffs could be subjected to removal proceedings by Immigration and Customs Enforcement (“ICE”), and DHS/USCIS cannot provide them with protection from possible deportation. (Asher Decl. ¶ 7, Aug. 10, 2017; see also 7/19/2017 Tr. at 13-14; 8/23/2017 Tr. at 22-25, 27-28; 8/23/2017 Hr'g Pls.' Ex. 1.)

         3. DOD's N-426 Review

         Further complicating matters for plaintiffs is the fact that DOD has undertaken a “review” of its policy for issuing N-426s and is contemplating revoking previously issued N-426s for MAVNI enlistees who have not served on “active-duty.” However, the status of DOD's N-426 Review is not entirely clear from the current record.

         On July 7, 2017, defendants filed the declaration of Stephanie P. Miller-the Director, Accession Policy Directorate, in the Office of the Under Secretary of Defense for Personnel and Readiness, DOD-which stated that “Presently, DOD is not certifying any new MAVNI N-426s. For a variety of reasons, some [of] which remain classified, DOD is undertaking a review of the entire MAVNI pilot program, its procedures, and the standards for certifying approximately 400 existing N-426s.” (1st Miller Decl. ¶¶ 19-20.) Defendants also filed a declaration from Mr. Renaud which indicated that “USCIS understood that DOD might act to revoke some of the Forms N-426s that had been submitted and decided to temporarily hold affected naturalization applications until it determined whether these individuals were eligible to naturalize.” (1st Renaud Decl. ¶ 24.)

         At the July 19, 2017 hearing, defense counsel stated that DOD “has not decertified any of the presently certified N-426 forms . . . . [But] is not presently certifying any new N-426s.” (7/19/2017 Tr. at 20.) When asked if DOD was thinking of revoking N-426s “because somebody signed that wasn't a person with authority or because they were signed prematurely or that drilling [as opposed to active-duty service] does not count as honorable service, ” counsel replied:

Right. And so in the [declaration] of Stephanie Miller she indicates that they're [referring to DOD] undertaking a review of the N-426 process. I don't know the contours of that process. I assume that everything that Your Honor just said will be part ...

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