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Kirwa v. United States Department of Defense

United States District Court, District of Columbia

October 25, 2017

MAHLON KIRWA, et al., Plaintiffs,



         Plaintiffs are three non-citizens serving in the United States Army's Selected Reserve of the Ready Reserve (“Selected Reserve”) who enlisted under the United States Department of Defense's Military Accessions Vital to the National Interest (“MAVNI”) program. Each wants to apply for citizenship pursuant to 8 U.S.C. § 1440, which provides an expedited path to citizenship for soldiers who serve during specified periods of military hostilities. Each, however, has been unable to apply because the military has refused to give them a signed Form N-426, which is a form that certifies an applicant's qualifying military service and must be submitted to the United States Citizenship and Immigration Services (“USCIS”) in order to apply for naturalization based on military service. Plaintiffs bring this action against the United States Department of Defense (“DOD”) and Secretary James Mattis, claiming that the military's refusal to issue them N-426 forms is unlawful under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.

         Before the Court is plaintiffs' motion for preliminary injunctive relief, brought on behalf of themselves and similarly-situated MAVNI soldiers. For the reasons stated herein, the Court will provisionally certify a class and grant the motion for a preliminary injunction.


         The issues in this case overlap with a related case before this Court, Nio v. United States Department of Homeland Security. See Nio v. United States Dep't of Homeland Sec., No. 17-cv-0998, 2017 WL 3917006 (D.D.C. Sept. 6, 2017). That case involves MAVNI enlistees who have already received a completed Form N-426, but have brought similar challenges to DOD's recent change in its N-426 policy. In addition, the Nio plaintiffs are challenging the Department of Homeland Security's (“DHS”) and USCIS's decision to put their naturalization applications on hold pending DOD's completion of the enhanced security screening (“DHS/USCIS Security Screening Requirement”) it now requires for MAVNI enlistees prior to initial entry training (“IET”) or active-duty service. The parties concede that filings in both the instant suit and Nio bear on the preliminary injunction inquiry before the Court, and thus, the Court may rely on records in both cases.


         A. Military Service as a Path to Citizenship

         Since at least the Civil War, special naturalization provisions have applied to non-citizens who serve in the United States military. See USCIS Policy Manual, Vol. 12, Part I, Ch. 3, § A. Currently, the requirements for naturalization based on military service are found in Section 328 and 329 of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1101, et seq. Section 328, codified at 8 U.S.C. § 1439, applies during peacetime; Section 329, codified at 8 U.S.C. § 1440, applies during designated “periods of military hostilities.” For present purposes, § 1440 is the only relevant statutory provision because on July 3, 2002, President George W. Bush signed an Executive Order declaring that a period of military hostilities had begun on September 11, 2001, and that Executive Order remains in effect as of today. See Exec. Order No. 13269, 67 Fed. Reg. 45, 287 (July 3, 2002).

         1. Section 1440

         Section 1440 applies to “[a]ny person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States” during a designated period of military hostilities. 8 U.S.C. § 1440(a); see also 8 C.F.R. § 329.2(a). Prior to 2003, § 1440 applied only to persons who had served in an “active-duty status, ” but it was amended in 2003 to insert “as a member of the Selected Reserve of the Ready Reserve or” after “has served honorably.”[1] National Defense Authorization Act for Fiscal Year 2004, § 1702, P.L. 108-136, 117 Stat. 1392 (Nov. 24, 2003) (“NDAA”).[2] “[A]ll soldiers enlisted through the Army Reserve Delayed Training Program (DTP) . . . are attached to a unit in the U.S. Army Reserve, ” and “[t]hey are members of the Selected Reserve of the Ready Reserve.”[3] (Decl. of Alicia M. Glanz Decl., Sept. 21, 2017 (“Glanz Decl.”), ¶ 2 (citing Army Regulation 601-210).)

         In relevant part, § 1440 provides that persons honorably serving in the Selected Reserve or in active-duty status “may be naturalized as provided in this section if . . . at the time of enlistment . . . such person shall have been in the United States, . . . whether or not he has been lawfully admitted to the United States for permanent residence.” 8 U.S.C. § 1440(a). To apply for naturalization under § 1440 requires compliance with most of the standard requirements for naturalization, see 8 U.S.C. § 1427; 8 C.F.R. §§ 316.1-316.14, but the path to citizenship is eased in at least three ways: (1) service members may be naturalized “regardless of age”; (2) “no period of residence or specified period of physical presence within the United States or any State or district of the Service in the United States shall be required”; and (3) “no fee shall be charged or collected from the applicant for filing a petition for naturalization or for the issuance of a certificate of naturalization” granted under this section. 8 U.S.C. § 1440(b)(1), (2), (4); see also 8 C.F.R. § 329.2(e). In addition, no minimum period of military service is required. See 8 U.S.C. § 1440; see also S. Rep. No. 1268-1292, at 5 (2d Sess. 1968) (“the wartime serviceman has no minimum required”).[4]

         “The executive department under which such person served shall determine whether persons have served honorably, ” and such service “shall be proved by a duly authenticated certification from the executive department under which the applicant served or is serving.” 8 U.S.C. § 1440(a), (b)(3); 8 C.F.R. §§ 329.1, 329.4.[5] “Citizenship granted pursuant to [§ 1440] may be revoked . . . if the person is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years.” 8 U.S.C. § 1440(c). Since October 1, 2001, USCIS has naturalized 109, 321 members of the military. USCIS, Naturalization Through Military Service: Fact Sheet at 3 (June 12, 2017) (“USCIS Fact Sheet”).[6]

         2. USCIS Form N-426

         Although 8 U.S.C. § 1440 applies to persons serving in the military's Selected Reserve or in an active-duty status, the statute is part of the Immigration and Nationality Act and it is administered by DHS and USCIS. To determine if an applicant is eligible for naturalization pursuant to § 1440, USCIS requires any such applicant to submit, along with their application for naturalization (Form N-400), a Form N-426 that certifies their qualifying military service. See 8 C.F.R. § 329.4; USCIS Policy Manual, Vol. 12, Part I, Ch. 5, § A (“The Request for Certification of Military or Naval Service confirms whether the applicant served honorably in an active duty status or in the Selected Reserve of the Ready Reserve.”). The N-426 form in effect during the relevant time period includes the following direction:

         Persons who are serving or have served under specified conditions in the U.S.

Armed Forces are granted certain exemptions from the general requirements for naturalization. To establish eligibility, the law requires the department with custody of the service record to certify whether the service member served honorably, and whether each separation from the service was under honorable conditions. USCIS requests certification of the service member's military service.

(Pls.' Mot. for a Preliminary Injunction (“PI Mot.”) Ex. 3, Sept. 19, 2017, ECF No. 11.)[7] The applicant fills out and signs the first part of the N-426, which asks for personal information; enlistment date and location; and all periods of military service, by branch, dates of service, and “type of service”-either “Active Duty” or “Selected Reserve of the Ready Reserve.” (PI Mot. Ex. 3.); see also USCIS Policy Manual, Vol. 12, Part I, Ch. 3, § B (“Qualifying military service is honorable service in the Selected Reserve of the Ready Reserve or active duty service . . . .”). “One day of qualifying service is sufficient in establishing eligibility.” USCIS Policy Manual, Vol. 12, Part I, Ch. 3, § A.

         A “certifying official” must then complete the second part of the form, indicating, by checking either “Yes” or “No, ” “whether the requestor served honorably or is currently serving honorably for each period of military service the requestor served.” (PI Mot. Ex. 3.) If the answer is “No, ” the certifying official is directed to provide details in the “Remarks” section, specifically to “[p]rovide any derogatory information in your records relating to the service member's character, loyalty to the United States, disciplinary action, convictions, other than honorable discharges, or other matters concerning his or her fitness for citizenship.” (PI Mot. Ex. 3.) Once a noncitizen soldier obtains an executed N-426 and submits an application for naturalization, it is the policy of the Bureau of Immigration and Customs Enforcement (“ICE”) not to initiate removal proceedings solely based on a lack of lawful status. (Nio, Decl. of Nathalie R. Asher, Aug. 10, 2017, ECF No. 31-1 (“Asher Decl.”), ¶ 5; Tr. of PI Hr'g at 57, Oct. 18, 2017, ECF No. 27 (“10/18/2017 Tr.”) at 57-58.) In a May 23, 2016 guidance document from ICE, ICE reiterated its position that “submitting this [MAVNI] application provides the enlistee continued lawful presence in the United States while the application is pending.” (PI Mot. Ex. 14, at 2.)

         Until very recently, DOD had no official guidance that applied to the execution of N-426s. (10/18/2017 Tr. at 16-17, 24, 45, 66.) However, since at least 2005 and through April 2017, the United States Army Human Resources Command published a document entitled “The Soldier's Guide to Citizenship Application, ” which “explains the procedures for Soldiers to apply for citizenship, ” noting that “[t]he goal is to streamline and expedite the handling of their applications.” (Pls.' Reply re PI Mot., ECF No. 22 (“PI Reply”), Ex. 7, at 4 (2017 version); see also id. Ex. 8 (2011 version); id. Ex. 9 (2005 version).) In that publication, it states:

As a general rule, a Soldier is considered to be serving honorably unless a decision has been made, either by the Soldier's commander or a court martial, to discharge him/her under less than honorable conditions.
In the rare cases where the character of a Soldier's service is questionable, ONLY the Soldier's commander can decide this issue, and the sole criterion for the decision is: If the Soldier were being discharged today, based on his/her record, what type of discharge would the Soldier receive? If Honorable or General or Under Honorable Conditions, the character of service on the N-426 will read “honorable”. If Under Less than Honorable Conditions, the N-426 character of service item will NOT read “honorable”.

(PI Reply Ex. 7, at 11; see also id. Ex. 8, at 11; id. Ex. 9, at 10.) The Army publication also provides that the N-426 service data can be verified and the form signed by someone in a Military Personnel Division or Military Personnel Offices. (PI Reply Ex. 7, at 11; see also id. Ex. 8, at 11; id. Ex. 9, at 10; PI Mot. Ex. 5 (USCIS letter dated March 31, 2017, to plaintiff advising him that he had not properly signed his N-426, and that once he did that, he should “[t]ake the N-426 to your personnel office, administrative unit, command, or human resources department where your service record can be verified and certified”).) The Navy has a similar publication, entitled “U.S. Navy Guide to Naturalization Applications Based upon Qualifying Military Service.” (PI Reply Ex. 12.) It instructs applicants to “submit the partially competed Form N-426 to their local service record holder, ” and then instructs that the certifying official “must complete all pertinent blocks” and “MUST sign” the document. (PI Reply Ex. 12 at 3-4.) In another publication, the Navy instructs the “local service record holder” to certify the N-426 after checking existing and past service records. (PI Reply Ex. 11.) Similar presentations by the Army to health care professionals who enlisted in MAVNI instructed them to have their chain of command sign their N-426 “after 1 drill is completed.” (PI Mot. Ex. 7.)

         The unrebutted evidence of DOD's past practice in certifying N-426s demonstrates that the honorable service determination consisted of a cursory records check to determine if the enlistee (1) was in the active duty or the Selected Reserves, (2) had valid dates of service, and (3) had no immediately apparent past derogatory information in his service record. Thus, DOD's past practice was to determine whether a person had served honorably based on an examination of his service record at the time the N-426 was submitted for execution. This conclusion was further confirmed by the information relevant to the length of time the certification process took for seven of the named Nio plaintiffs, each of whom had their N-426s certified within one day after they submitted the forms. (Nio, PI Mot., June 28, 2017, ECF No. 17, Exs. 26-32.)

         3. USCIS's Naturalization at Basic Training Initiative

         In August 2009, USCIS, in conjunction with the Army, adopted a “Naturalization at Basic Training Initiative” in order to provide expedited processing of naturalization applications for non-citizen enlistees once they arrived at IET.[8] See USCIS Fact Sheet at 2;[9] (see also Nio, Decl. of Daniel Renaud, ECF No. 19-6, July 7, 2017 (“1st Renaud Decl.”), ¶ 13.) “Under this initiative, USCIS conducts all naturalization processing including the capture of biometrics, the naturalization interview, and administration of the Oath of Allegiance on the military base.” USCIS Fact Sheet at 2. The goal, which was generally achieved, was for the naturalization process to be completed by the end of IET. (Decl. of Stephanie P. Miller, July 7, 2017 (“1st Miller Decl.”), ¶ 9; Nio, 1st Renaud Decl. ¶ 13.)

         B. The MAVNI Program

         1. Establishment

         In 2008, pursuant to 10 U.S.C. § 504(b)(2), the Secretary of Defense authorized the creation of the MAVNI Pilot Program, which allowed non-citizens who were not lawful permanent residents to enlist in the United States military if it was determined that enlistment would be vital to the national interest because they were “health care professionals” in certain specialties or possessed “critical foreign language skills.” (1st Miller Decl. ¶ 4; Secretary of Defense Memorandum dated Nov. 25, 2008 (cited in PI Mot. Ex. 6).) The program was reauthorized several times, most recently in September 2016, when it was extended through September 30, 2017. (See Nio, PI Mot. Ex. 10, ECF No. 17-10 (“9/30/2016 DOD Memorandum”).)

         2. Enhanced Security Screening (9/30/2016 DOD Memorandum)

         Over the years of the MAVNI program, DOD increased the security screening requirements for MAVNI enlistees. (1st Miller Decl. ¶¶ 12-17.)[10] From June to September 2016, DOD engaged in a review of the MAVNI program that led it to conclude MAVNI screening “was not being implemented adequately.” (1st Miller Decl. ¶ 15; see also Id. ¶¶ 15- 17.) On September 30, 2016, citing national security concerns, DOD implemented enhanced security screening requirements for MAVNIs and required that the screening be successfully completed before a MAVNI enlistee would get a “military suitability determination” and be allowed to go to IET. (9/30/2016 DOD Memorandum, attach. 1, at 3; 1st Miller Decl. ¶¶ 10, 14- 18; Nio, Tr. of PI Hr'g (Part I), July 19, 2017, ECF No. 34 (“Nio, 7/19/2017 Tr.”) at 21-22.) DOD's enhanced security screening for MAVNI enlistees included: (1) a Tier 3 or Tier 5 background investigation-Tier 5 was formerly known as a Single Scope Background Investigation (“SSBI”); (2) a National Intelligence Agency Check (“NIAC”); (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; 9/30/2016 DOD Memorandum, attach. 1, at 3-5.) Despite the reference to the possibility of a Tier 3 background investigation for some MAVNIs (a much less in-depth and time-consuming endeavor (see Decl. of Stephanie P. Miller, July 28, 2017 (“2d Miller Decl.”), ¶ A2), DOD's current position is that all MAVNIs are subjected to a Tier 5 investigation because “every MAVNI applicant inherently has derogatory information” due to the fact they are citizens of foreign governments. (10/18/2017 Tr. at 11-12.) Currently, the estimated time for completion of the Tier 5 investigation is over 400 days, and that is just one part of the enhanced security screening. (10/18/2017 Tr. at 13; 2d Miller Decl. ¶ A2.)

         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. (Nio, Tr. of PI Hr'g (Part II), Aug. 23, 2017, ECF No. 37 (“Nio, 8/23/2017 Tr.”) at 37-38.); PI Mot. Ex. 9 (“May 2017 Action Memo”); 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. ¶ A5; Nio, Defs.' Resp. to the Court's Aug. 24, 2017 Order Exs. A & B, Aug. 30, 2017, ECF No. 39.) An uncharacterized discharge also means that the individual would no longer be eligible to become a naturalized citizen. (Nio, 8/23/2017 Tr. at 24-25.)

         C. MAVNI Program in the Army Reserve

         The Army Reserve began implementing the MAVNI Program in 2009 due to “critical shortages of high-quality, multi-lingual, ethnically and culturally diverse recruits, and healthcare professionals . . . .” (PI Mot. Ex. 6 (Army Memorandum dated 3/24/2009 re “AR [MAVNI] Pilot Program Implementation Guidance”).)[11] This litigation concerns MAVNIs who enlisted in the Army Reserve's Selected Reserve of the Ready Reserve and who are in the DTP.

         1. Path to Citizenship

         MAVNIs in the Army Reserve's Selected Reserve are eligible for naturalization under § 1440. Indeed, the standard enlistment contract for a MAVNI enlistee in the Army Reserve's Selected Reserve includes an addendum, signed by the enlistee and a DOD official, which states: “[i]n exchange for being permitted to enlist in the Army, I agree to apply for U.S. citizenship as soon as the Army has certified my honorable service.” (See, e.g., Defs.' Notice of Supp. Filing Exs. 1-3, attach. 1, at 3, Oct. 19, 2017, ECF No. 25-1 (copy of plaintiff Kirwa's enlistment contract).) But, their path to citizenship has been dramatically prolonged by DOD's enhanced security screening requirements.

         a. Before 9/30/2016

         From the inception of the MAVNI Program until September 30, 2016, what typically happened to a MAVNI in the Army's Selected Reserve is that the enlistee would sign the enlistment contract and go to IET in approximately 180 days. (10/18/2017 Tr. at 32, 108; see also MAVNI Information Paper (“you will apply for citizenship during Basic Combat Training (BCT). The Army, along with USCIS has implemented expedited citizenship processing for all non-citizens at each of the Army's BCT. DO NOT MAIL YOUR CITIZENSHIP PACKET BEFORE YOU SHIP TO BCT. All documentation including the N-426 will be signed at BCT. Your recruiter or Reserve commander does not need to sign or mail anything for you.”) If MAVNIs did not have certified N-426s before they entered IET, they would receive one and apply for citizenship at IET. (10/18/2017 Tr. at 22-23.) IET would be completed in ten to twelve weeks, and by the end of IET, USCIS would have adjudicated their N-400 naturalization applications, and the MAVNIs would be granted citizenship. (1st Miller Decl. ¶ 9; 1st Renaud Decl. ¶ 13.)

         b. After 9/30/2016

         After the 9/30/2016 DOD Memorandum, MAVNIs in the DTP began to experience significant delays in being sent to IET. (10/18/2017 Tr. at 32 (statement by DOD counsel: “I think it's pretty clear that the process as it was originally contemplated was intended to move more quickly than what it currently does.”).) In fact, the enhanced screenings were taking so long that MAVNIs were starting to be discharged because they had exceeded the allowable time of two years in the DTP. (See, e.g., Nio, Pls.' Supp. Reply Ex. 2, Aug. 18, 2017, ECF No. 33-2.) On July 27, 2017, in an attempt to ameliorate this problem, the then-Acting Secretary of the Army issued a memorandum that waived the requirement to attend IET within 24 months of accession and extended the period to 36 months for the 2, 513 soldiers then in the DTP on the ground that the “waiver is necessary to accommodate the additional security screening.” (Nio, Defs.' Notice of Supp. Documentation, ECF No. 26.)

         Not having any idea how long it might take to get to IET, at least 500 MAVNIs in the DTP sought and received signed N-426s before starting IET and submitted naturalization applications. (See 10/18/2017 Tr. at 21-22; see also May 2017 Action Memo at 2.) But USCIS has refused to process their immigration applications until DOD's enhanced security screening is completed. See Nio, 2017 WL 3917006, at *4.

         However, starting sometime in the spring of 2017, the Army began to change its practice and began to decline requests for N-426s to MAVNIs still in the DTP on the ground that they were not serving on “active duty.” (See, e.g., PI Mot. Ex. 13 (email to MAVNIs from Army Reserve administrator stating “I have found out that we cannot certify [an N-426] unless you are on Active Duty”).) On July 7, 2017, DOD told this Court that it was “undertaking a review of . . . the standards for certifying approximately 400 existing N-426s” (the Nio plaintiffs), and that it was “not certifying any new MAVNI N-426s” (the Kirwa plaintiffs) because it “viewed IET [active duty] as a necessary precondition of an honorable service determination.” (1st Miller Decl. ¶¶ 19-20; 2d Miller Decl. ¶ A4.) On August 17, 2017, the Army formerly ordered that no more N-426s were to be issued while its review was ongoing unless the person had served on “active duty.” (PI Mot. Ex. 10 (Aug. 17, 2017 Department of the Army Memorandum) (“Effective immediately, I withhold ...

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