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NIO v. United States Department of Homeland Security

United States District Court, District of Columbia

May 22, 2019

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

          MEMORANDUM OPINION

          Ellen Segal Huvelle, United States District Judge.

         Plaintiffs are a class of foreign nationals serving in the United States Army's Selected Reserve of the Ready Reserve who enlisted through the Military Accessions Vital to the National Interest (“MAVNI”) program. The MAVNI program provides an expedited path to citizenship to foreign nationals who are legally present in the United States, possess critical foreign-language or medical skills, and serve honorably during designated periods of hostilities. The question before the Court is whether the U.S. Department of Homeland Security (“DHS”) and its sub-agency U.S. Citizenship and Immigration Services (“USCIS”) acted lawfully when they instituted a policy on July 7, 2017, declining to naturalize MAVNI applicants until the applicant has been determined suitable for service by the U.S. Department of Defense (“DOD”) and the U.S. Army. Because USCIS's purported reasons for waiting for these military suitability adjudications do not comport with the evidence before the Court, it concludes that the challenged portion of USCIS's policy is arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2) (“APA”). The Court will therefore vacate that portion of the policy and grant partial summary judgment to plaintiffs.

         BACKGROUND

         I. FACTUAL BACKGROUND

         A. Origins of the MAVNI Program

         1. DOD Eligibility and Enlistment Requirements

         Much of the factual and procedural background relevant to the parties' cross-motions for summary judgment has been set forth in the Court's other opinions in this case and in a related case, Kirwa v. DOD, Civ. No. 17-1793.[1] However, certain information is necessary to understand the question before the Court.

         Generally, enlistees in the Armed Forces must be United States citizens or legal permanent residents. See 10 U.S.C. § 504(b)(1). However, through the MAVNI program, which was first authorized in 2008 and began operating in 2009, non-citizens who are not permanent residents but are lawfully present in the United States may enlist if they have critical foreign language skills or specialized medical training. See Id. § 504(b)(2); see also Nio PI Op., 270 F.Supp.3d at 53. By statute, non-citizens who serve honorably during designated periods of hostilities are afforded an expedited path to citizenship:

Any 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 hostilities], and who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section[.]

8 U.S.C. § 1440(a).[2] Since September 11, 2001, a designated period of hostilities has existed. See Exec. Order No. 13269, Expedited Naturalization of Aliens and Noncitizen Nationals Serving in an Active-Duty Status During the War on Terrorism, 67 Fed. Reg. 45, 287 (July 3, 2002). Over the course of the MAVNI program, more than 10, 000 recruits have joined the Armed Forces and have become naturalized as United States citizens. See Nio PI Op., 270 F.Supp.3d at 55.

         All soldiers, including MAVNIs, must meet general enlistment standards in order to serve. DOD and the individual services of the U.S. Armed Forces, including the Army, impose requirements ranging from basic eligibility criteria such as age and physical fitness to more subjective assessments relating to personal character and conduct. See generally Dept. of Defense Instruction (“DODI”) 1304.26, Qualification Standards for Enlistment, Appointment, and Induction (Pls.' Appx. 8 et seq.) (setting forth eligibility criteria for those serving in the military).[3]

         Since its inception, the MAVNI program has raised national-security concerns within DOD, and as a result, DOD has sought to strengthen the security screening requirements for MAVNI enlistees. See NIO PI Op., 270 F.Supp.3d at 53-54. (See also Decl. of Stephanie P. Miller ¶¶ 12-17, July 7, 2017 (ECF No. 19-7) (“7/7/17 Miller Decl.”).) In February 2010, James Clapper, then Under Secretary of Defense for Intelligence, issued a memo expressing concern that MAVNI enlistees serving on active duty had not undergone sufficient “counterintelligence-focused screening” and recommending “immediate steps” to correct the oversight. (DOD Memorandum for Under Secretary of Defense for Personnel and Readiness: Military Accessions Vital to the National Interest Personnel (MAVNI), Feb. 17, 2010 (DOD AR 151).) Later that year, DOD imposed enhanced security screening for all current and future MAVNI soldiers, including a “Single Scope Background Investigation” (“SSBI” or “Tier 5” investigation, hereinafter referred to as “Tier 5”), which is a detailed background check conducted by the U.S. Office of Personnel Management (“OPM”) and is typically used to determine whether an individual may receive access to classified information. See Nio PI Op., 270 F.Supp.3d at 54 n.4 (citing Second Decl. of Stephanie P. Miller in Response to July 19, 2017 Order of the Court at 2-4, July 28, 2017 (ECF No. 25-2) (“7/28/17 Miller Decl.”)). The new DOD policy also required the Service (e.g., the Army) to institute a “comprehensive counterintelligence-focused security review [“CI Review”] and monitoring program for MAVNI recruits.” (DOD Memorandum for Secretaries of the Military Depts.: Two-Year Extension of Military Accessions Vital to National Interest (MAVNI) Pilot Program at 1-2, Aug. 17, 2010 (Pls.' Appx. 1-2).)

         From August 2010 until May 16, 2012, recruitment of new MAVNIs was delayed while these strengthened security measures were implemented. (See Decl. of Stephanie Miller ¶ 6, Nov. 17, 2017 (ECF No. 39-5) (“11/17/17 Miller Decl.”); DOD Memorandum: Reinstatement of Military Accessions Vital to National Interest Pilot Program at 1, May 16, 2012 (DOD AR 136).) With subsequent reauthorizations, DOD continued to refine security screening requirements for MAVNIs. In late 2014, DOD specified that all MAVNI applicants would be subject to a “suitability determination” based on a National Intelligence Agency Check (“NIAC”) name search, [4] Tier 5, and CI Review, including an issue-oriented CI interview and/or polygraph “as needed to resolve any foreign influence or foreign preference concerns.” (DOD Memorandum: Two-Year Extension of Military Accessions Vital to the National Interest (MAVNI) Pilot Program Implementation Policy at 6, Dec. 19, 2014 (USCIS AR 215).) The 2014 DOD memo provided that “[f]ailure to obtain a favorable NIAC, [Tier 5, ] or CI-focused security review will render the applicant ineligible for enlistment or continued military service” and such a result would lead to immediate separation from the military. (Id.)

         In 2015, DOD promulgated regulations governing “enlistment, appointment, and induction criteria” for the Armed Forces, including a new provision that “an applicant will be considered ineligible” to enlist if he or she “[r]eceives an unfavorable final determination by the DoD Consolidated Adjudication Facility [‘CAF'] on a completed National Agency Check with Law and Credit (NACLC) or higher-level investigation [i.e., Tier 5], which is adjudicated to the National Security Standards. . . .” 32 C.F.R. § 66.6(b)(8)(iv); Qualification Standards for Enlistment, Appointment, and Induction, 80 Fed. Reg. 16, 269-01, 16, 273 (Mar. 27, 2015); see also DODI 1304.26, Encl. 3, § 2(h)(6) (Pls.' Appx. 18) (same requirement).[5] The regulation thus imposed an additional step-a “final determination” as to the soldier's suitability for military service-in addition to the DOD investigations required under the 2014 DOD memo. 32 C.F.R. § 66.6(b)(8)(iv). (See also Tr. of Proceedings at 18:7-20:17, Mar. 20, 2019 (ECF No. 245) (“3/20/19 Tr.”) (Christopher Arendt of DOD describing the process formalized by the regulation).) On September 30, 2016, DOD again addressed investigation and vetting requirements for MAVNIs, as discussed in more detail infra at Section I.B.

         2. USCIS Processing of Naturalization Applications

         Separate from the DOD requirements, MAVNIs who wish to naturalize must apply to USCIS for citizenship, and USCIS must “conduct examinations” of all applicants. 8 U.S.C. § 1446(b); see also 8 C.F.R. § 332.1(a) (designating USCIS officers “to conduct the examination for naturalization required under” the Immigration and Nationality Act or “INA”). Regulations specify that USCIS must review FBI criminal background checks, see 8 C.F.R. § 335.2(b), and for naturalization applicants with military service, USCIS also requests from DOD name check queries of DOD's Defense Clearance Investigative Index (“DCII”) to see if the applicant has a criminal record on his or her military record. See 12 USCIS Policy Manual, pt. I, ch. 6, § A, https://www.uscis.gov/policy-manual (“USCIS Policy Manual”). Following these checks, an applicant is scheduled for a naturalization interview by a USCIS officer, see 8 C.F.R. § 335.2, and USCIS must adjudicate the application within 120 days of the interview. 8 U.S.C. § 1447(b).

         An applicant will not be approved for naturalization unless USCIS determines that she or he is “a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.” 8 U.S.C. § 1427(a). The applicant “bears the burden of demonstrating that, during the statutorily prescribed period, he or she has been and continues to be a person of good moral character.” 8 C.F.R. § 316.10(a)(1). For MAVNI applicants, the relevant statutory period is one year. 8 C.F.R. § 329.2(d).[6] USCIS makes this good moral character determination “on a case-by-case basis.” 8 C.F.R. § 316.10(a)(2). Certain criminal and immoral acts are explicitly disqualifying, but otherwise USCIS has discretion to evaluate the applicant's character in the context of “the standards of the average citizen in the community of residence.” Id.

         In 2003, § 1440 was amended to specify that a soldier's service in the Selected Reserve of the Ready Reserve (“SRRR” or the “Reserves”) is qualifying; the soldier need not have served in active duty. See National Defense Authorization Act for Fiscal Year 2004, § 1702, P.L. No. 108-136, 117 Stat. 1392 (Nov. 24, 2003). In fact, at all times relevant to this litigation, the USCIS Policy Manual provided that “[o]ne day of qualifying service is sufficient in establishing eligibility” for the statutory honorable-service requirement. Kirwa, 285 F.Supp.3d at 28 (quoting 12 USCIS Policy Manual, pt. I, ch. 3, § A). Further, under § 1440, to naturalize a MAVNI must have “served honorably” during a designated period of hostilities; if the soldier is no longer serving, she or he must have been “separated under honorable conditions.” 8 U.S.C. § 1440(a). When a MAVNI soldier submits to USCIS his or her naturalization application, known as Form N-400, he or she must also submit a certification of honorable service from DOD, known as Form N-426. Form N-426 “is the means by which DoD certifies whether an applicant for citizenship is serving honorably, and if no longer serving, whether they were separated under honorable conditions.” (7/7/17 Miller Decl. ¶ 6.) See also 12 USCIS Policy Manual, pt. 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.”). USCIS's long-standing interpretation of the honorable-service requirement under § 1440 is that any applicant who is no longer serving must have been separated under “honorable” or “general under honorable” conditions, and that a neutral “uncharacterized” separation is not sufficient. See 12 USCIS Policy Manual, pt. I, ch. 3, § B. (See also 3/20/19 Tr. at 14:1-23.)

         Prior to July 2017, information USCIS received from DOD about an applicant was routinely limited to the DCII DOD database check. (See 3/20/19 Tr. at 5:4-8 (to the Court's question, what information did USCIS receive from DOD other than the DCII index check, DOD's counsel responded, “none. There was no formal routine process”).) In the past, MAVNI naturalization applicants generally were processed quickly. Indeed, the MAVNI enlistment contract from 2016 indicated that an enlistee could expect to get to Basic Training within 180 days of enlistment. (See Certificate and Acknowledgement, U.S. Army Reserve, Service Requirements and Methods of Fulfillment at 3, § IV(8)(c), Armed Forces of the United States (ECF No. 23-2) (enlistment contract of one of the named plaintiffs).) Under an initiative to expedite processing of applications of enlistees at Basic Training, USCIS also adjudicated the applications of and naturalized MAVNIs by the end of the 10-week Basic Training course. See Nio PI Op., 270 F.Supp.3d at 55. Overall, as of May 2017, the average USCIS processing time for military naturalization applications (including those filed by MAVNIs) was approximately four months from start to finish. See Id. at 56, see also Kirwa, 285 F.Supp.3d at 31 (describing the MAVNI path to citizenship before September 2016). (See also Decl. of Daniel Renaud ¶ 5, July 28, 2017 (USCIS AR 258-59) (“7/28/17 Renaud Decl.”) (summarizing military application processing times).)

         B. DOD's Sept. 30, 2016 Memorandum

         When it reauthorized the program on September 30, 2016, DOD again imposed enhanced “eligibility requirements” for MAVNIs, including extensive background investigations. (See DOD Memorandum: Military Accessions Vital to the National Interest Pilot Program Extension, Sept. 30, 2016 (USCIS AR 233-41) (“Sept. 30 Memo”).)[7] The Sept. 30 Memo made shipment to Basic Training contingent on (1) completion of these enhanced background investigations and (2) a determination by DOD and the Army that the soldier is suitable for military service.

         Pursuant to this new policy, a MAVNI's security screening must include three specific investigative steps: (1) the NIAC database check, (2) the Tier 5 background investigation by OPM, and (3) the CI Review, including interviews and polygraphs as necessary. (See Id. at USCIS AR 238.) Each of these investigations (collectively, the “DOD investigatory phase”) generates a report summarizing its findings. (See, e.g., Pls.' Mem. in Supp. of Pls.' Mot. for Partial Summ. J. & in Opp'n to Defs.' Cross Mot. for Summ. J. at 18, Dec. 21, 2018 (ECF No. 227) (“Pls.' Opp'n & Reply”) (reproducing an excerpt of a DOD document referring to the CI Review report).)

         The Sept. 30 Memo provides that, after the DOD investigatory phase is complete, and before shipping to Basic Training, the soldier must still await a determination by his or her service (e.g., the Army) that he or she is suitable for military service. This “military suitability determination” has two steps, which together are referred to by plaintiffs as the “adjudicatory phase” of DOD's vetting process. First, based on the DOD investigation results, DOD's Central Adjudication Facility (“DOD CAF”) makes a recommendation (in later documents referred to as a “military service suitability recommendation” or “MSSR”) to the Army. (See Sept. 30 Memo at USCIS AR 238.) Neither DOD CAF nor the Army conducts any additional investigation of the applicant, but rather they rely on the information gathered during the DOD investigatory phase and consider whether any derogatory findings can be “mitigated” by information from the investigations or provided by the applicant. To make this MSSR recommendation, DOD CAF assesses the applicant using as its criteria 13 National Security Adjudicative Guidelines. (See id.; see also DOD Memorandum: Implementation of Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (Dec. 29, 2005), Aug. 30, 2016 (Pls.' Appx. 93 et seq.) (the “Adjudicative Guidelines”).) The Adjudicative Guidelines provide detailed criteria for evaluating an individual's background, including how certain information may be mitigable, and are generally used to determine whether an individual may access classified information or hold a national security position. The Adjudicative Guidelines include criteria such as allegiance to the United States, Foreign Influence, Foreign Preference, Personal Conduct, and Criminal Conduct, as well as guidance for determining whether certain conduct or information about an applicant should be disqualifying or can be mitigated. (See generally Adjudicative Guidelines at Pls.' Appx. 98-121 (describing the criteria for each of the Adjudicative Guidelines).)

         Second, once DOD CAF has rendered the MSSR, it is provided to the Army for its review. The Army reviews the recommendation and, if it is not favorable, it also reviews the underlying investigatory results to determine if the “derogatory information” on which the unfavorable MSSR was based can be mitigated. (See Sept. 30 Memo at USCIS AR 238 (“If derogatory information was revealed, the DoD CAF will provide information to the accessing service via the Case Adjudication Tracking System.”).) The service then renders a final “military suitability determination” (commonly referred to as a “military service suitability determination” or “MSSD”) based on DOD CAF's recommendation and on the service's own needs: “The accessing service will use this information to then render the final military suitability determination in accordance with DoDI 1304.26 and any service specific policies.” (Id.; see also Id. at USCIS AR 234, 239, 241 (additional references to the “suitability determination” for MAVNIs).) It is the MSSD that determines whether a MAVNI may attend Basic Training and then proceed to active duty. If a MAVNI is found suitable for service, he or she ships to Basic Training; if found unsuitable he or she is promptly separated, or discharged, from the military. (See Id. at USCIS AR 241 (flow chart depicting separation immediately after “NON FAVORABLE Military Suitability Determination”).)

         As a result of the Sept. 30 Memo, MAVNIs have had to wait significantly longer between their dates of enlistment and dates for shipment to Basic Training. In response to this situation, in October and November 2016 the Army began placing MAVNIs in the Army's Delayed Training Program (“DTP”), where they would remain enlisted and continue to drill as reservists while awaiting shipment to Basic Training. (See Decl. of Daniel Renaud ¶ 21, July 7, 2017 (USCIS AR 249) (“7/7/17 Renaud Decl.”); 7/28/17 Miller Decl. at 6.) Soldiers drilling in DTP are categorized by the Army as “entry level” because they are reservists who have not yet attended Basic Training. See Enlisted Administrative Separations, Army National Guard and Reserve, Army Reg. 135-178, Glossary § II. If a soldier is discharged from entry-level status, the discharge is not characterized as honorable or other than honorable, but rather by the neutral “uncharacterized” classification. See Id. § 2-11(a).

         Generally, a soldier could remain in DTP for up to two years, after which he or she must attend Basic Training or face discharge. (See 7/28/17 Miller Decl. at 10 (quoting National Defense Authorization Act for Fiscal Year 1993, § 1115(c), P.L. No. 102-484 (Oct. 23, 1992)).) Because it was taking so long to become eligible for Basic Training under the new requirements, some MAVNIs exceeded this two-year limit on DTP enlistment and faced discharge. (See id.) To alleviate this problem, DOD “determined that in this instance the [2-year] limitation may be waived if movement to training remains impracticable, ” and extended the 2-year DTP timeout deadline by an additional year to permit MAVNIs to remain enlisted while they waited for the results of the DOD investigatory phase and their MSSDs. (See DOD Memorandum: Waiver of Minimum Training Requirements for Certain Military Accessions Vital to the National Interest (MAVNI), Jul. 27, 2017 (ECF No. 26 at 4) (enlarging the DTP timeout deadline to 36 months).)

         Another byproduct of the delay was that by early 2017, approximately 500 MAVNIs drilling in DTP sought and received signed N-426s and submitted naturalization applications before having started Basic Training. See Kirwa, 285 F.Supp.3d at 31 (citing 10/18/2017 Tr. at 21-22). These individuals had not completed their DOD background investigations. (See 7/7/17 Renaud Decl. ¶ 21 (USCIS AR 249).) According to Daniel Renaud, USCIS Associate Director, Field Operations Directorate, “[p]rior to the September 30, 2016 memo, USCIS had received few, if any, applications from MAVNI recruits who were drilling in the DTP. Instead, the recruits usually attended Basic Training soon after enlisting in the Army and waited until they attended Basic Training to apply for naturalization.” (Id.)

         Against this backdrop, on May 19, 2017, DOD issued an “Action Memo” addressed to the Secretary of Defense, identifying four primary “MAVNI Risk Groups, ” along with mitigation plans for addressing the risks identified with each group. (DOD Action Memo: Military Accessions Vital to the National Interest (MAVNI) Pilot Program at 2, May19, 2017 (Pls.' Appx. 7) (“DOD May 2017 Action Memo”).) Of relevance to the plaintiffs in this case, DOD identified as “Group 3” the approximately 2, 400 MAVNIs drilling in DTP whose Tier 5 investigations had not been completed, including the approximately 500 MAVNIs who had received their Form N-426s and applied for naturalization. (Id.) The Action Memo recommended that all DTP MAVNIs be discharged using Secretarial plenary authority, “[e]xcept for individual cases deemed vital to the national interest.” (Id.)[8]

         C. USCIS's July 7, 2017 Guidance

         As far back as 2016 and into 2017, DOD was communicating to USCIS its growing concerns about the MAVNI program, through both discussions and written materials provided on an ad-hoc basis. (See Decl. of Daniel M. Renaud ¶¶ 3-4, Mar. 5, 2018 (USCIS AR 2-3) (“3/5/18 Renaud Decl.”).) According to Stephanie Miller, Director of DOD's Accession Policy Directorate, DOD senior leaders informed USCIS officials in April 2017 that DOD “was concerned about the naturalization of individuals whose [Tier 5] background investigation and DoD counterintelligence security review has not yet been completed.” (Miller 7/7/17 Decl. ¶ 18.) Based on these concerns, according to Ms. Miller, 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 [these completed reviews]” and “mutually agreed that USCIS would slow down the Form N-400 adjudications of the MAVNI pilot program applicants.” (Id.) On April 13, 2017, USCIS “issued a written hold” on these soldiers' naturalization applications. (7/7/2017 Renaud Decl. ¶ 25 (USCIS AR 250-51).)

         In early May 2017, USCIS learned from DOD about two cases where a MAVNI soldier had “naturalized before his or her DoD background checks revealed derogatory information that USCIS would have considered, had it known about the information, in determining whether the individual was eligible to naturalize.” (3/5/18 Renaud Decl. ¶ 3 (USCIS AR 2) (referencing ad-hoc conversations and emails between DOD and USCIS personnel included at USCIS AR 11-13).) USCIS learned from DOD of these two cases during a field visit in May 2017 to Fort Jackson, a military base used by the Army for Basic Training. Follow-up emails between USCIS and DOD personnel who participated in this visit indicate that approximately 21 MAVNI soldiers were already in Basic Training although their Tier 5 investigations were still pending. (See USCIS AR 11-13.) The emails also indicate that two MAVNIS who had already naturalized were “chaptered out unfavorably”-i.e., discharged after being determined ineligible to enlist, one for “bad conduct” and one for “failure to adapt.” (USCIS AR 12-13.) On the same day as the DOD May 2017 Action Memo, USCIS sent another email to the field to clarify that its April 13 written hold on MAVNI N-400 applications affected only DTP MAVNIs who had not yet shipped to Basic Training. (See 7/7/17 Renaud Decl. ¶ 25 (USCIS AR 250-51); see also USCIS Email, MAVNI Hold, May 19, 2017 (ECF No. 23-1 at 10-11).)

         Meanwhile, DOD's Office of the Inspector General (“OIG”) was investigating the MAVNI program, including national security concerns related to soldiers' potential foreign ties or loyalty to the United States. In June 2017, OIG issued a classified report (the “OIG classified report”) detailing its findings and highlighting these national security concerns. (See 3/5/18 Renaud Decl. ¶ 4 (USCIS AR 2-3); Memo, DHS USCIS MAVNI Program, July 3, 2017 (USCIS AR 7) (“July 3 DHS Memo”).) Then, on July 3, 2017, DHS issued a one-page memo for the Secretary of Homeland Security, titled “DHS USCIS MAVNI Program, ” referring to the OIG classified report and other concerns about the processing of MAVNI naturalization applications. (See July 3 DHS Memo (USCIS AR 7).) The July 3 DHS Memo stressed “security concerns regarding MAVNI recruits, informed by a classified DOD Inspector General report, ” and stated that “USCIS views additional background checks at the naturalization stage as necessary and appropriate in accordance with its general authority to conduct background checks on naturalization applicants.” (Id.)

         On July 7, 2017, Mr. Renaud sent an email containing the USCIS “Guidance” that is the gravamen of this litigation. The email is just over one page and instructs that a MAVNI naturalization applicant may not proceed to interview until “all enhanced DoD security checks are completed.” (See Email from Daniel M. Renaud, Updated MAVNI N-400 Guidance, July 7, 2017 (USCIS AR 4-5) (“July 7 Guidance”).)[9] The July 7 Guidance makes clear that the enhanced security checks referred to are those required under the Sept. 30 Memo:

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 [codified at 8 U.S.C. § 1440], regardless of their active duty or reserve service, until all enhanced DoD security checks are completed.

(July 7 Guidance at 2 (USCIS AR 5).)

         The July 7 Guidance constituted a major change in USCIS policy. For the prior seventeen years, USCIS had basically relied on an FBI background check and a DCII index check to vet MAVNI applicants, but had not required extensive and lengthy DOD background investigations or an MSSD adjudication prior to considering a MAVNI's naturalization application. See Nio PI Op., 270 F.Supp.3d at 65.

         The July 7 Guidance briefly explains its motivations. First, it summarizes DOD and USCIS concerns over the prior year and a half, especially “circumstances and instances” of MAVNI enlistees becoming naturalized “before a DoD background check revealed derogatory information suggesting that [the applicant] lacked good moral character or attachment to the U.S. Constitution.” (July 7 Guidance (USCIS AR 5) (noting that investigations had subsequently identified such conduct as “immigration fraud, criminal acts, aggravated felonies, active membership and participation in the Communist Party, and national security concerns”); see also 7/7/17 Renaud Decl. ¶ 17 (USCIS AR 248) (noting the same concerns); 3/5/18 Renaud Decl. ¶¶ 3-4 (USCIS AR 2) (noting the same concerns and citing the OIG classified report and “other classified documents”).) The July 7 Guidance explained: “USCIS has determined that the completion of DOD background checks is relevant to a MAVNI recruit's eligibility for naturalization. . . . 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.” (July 7 Guidance at 1-2 (USCIS AR 4-5).)

         II. ...


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