Alam v. U.S. Citizenship & Immigration Servs.

• Decision Date: 21 March 2022
• Docket Number: Case No. 21-CV-755 (NEB/JFD)
• Citation: 592 F.Supp.3d 810
• Parties: Jakiul ALAM, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Leslie Tritten, and Ur M. Jaddou, Defendants.
• Court: U.S. District Court — District of Minnesota

592 F.Supp.3d 810

Jakiul ALAM, Plaintiff,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Leslie Tritten, and Ur M. Jaddou,¹ Defendants.

Case No. 21-CV-755 (NEB/JFD)

United States District Court, D. Minnesota.

Signed March 21, 2022

Graham Blair Ojala-Barbour, Ojala-Barbour Law Firm, Saint Paul, MN, Margaret D. Stock, Pro Hac Vice, Neil T. O'Donnell, Pro Hac Vice, Cascadia Cross Border Law Group LLC, Anchorage, AK, for Plaintiff.

Liles Harvey Repp, DOJ-USAO, Civil, Minneapolis, MN, for Defendants.

ORDER ON MOTION TO DISMISS

Nancy E. Brasel, United States District Judge

Under 8 U.S.C. Section 1440 of the Immigration and Nationality Act ("INA"), to obtain citizenship, a soldier applying for naturalization must have been "separated under honorable conditions" as characterized by the military. When a soldier is discharged while in entry-level status, the military does not characterize his discharge type, instead issuing an "uncharacterized" discharge. The interaction between Section 1440 ’s requirement that a separation be "under honorable conditions" and the military policy of issuing "uncharacterized" discharges creates problems for applicants to the Military Accessions Vital to the National Interest program ("MAVNI"). In other contexts, the military treats an "uncharacterized" discharge as "under honorable conditions." But USCIS, the agency granting citizenship, does not. Instead, it treats an "uncharacterized" discharge as a neutral third category, which is neither "under honorable conditions" nor "under other than honorable conditions."

Plaintiff Jakiul Alam challenges the USCIS policy of departing from the military's treatment of an "uncharacterized" discharge. Alam enlisted in the United States Army through MAVNI—a program to provide an expedited path to citizenship for immigrant soldiers with specialized skills. The Army discharged Alam from service for medical reasons and gave him an "uncharacterized" discharge. USCIS denied Alam's citizenship application under its policy that an "uncharacterized" discharge is not "under honorable conditions."

Alam argues that an "uncharacterized" discharge is a discharge "under honorable conditions" because (1) the plain language of Section 1440 contemplates only two categories of discharge: "under honorable conditions," and "under other than honorable conditions"; and (2) USCIS must consider military instructions when interpreting the meaning of "uncharacterized." Defendants² move to dismiss because they believe Section 1440 permits a third category of "uncharacterized" discharge, which is neither "under honorable conditions," nor "under other than honorable conditions." In doing so, Defendants place the burden to prove statutory meaning on Alam.

Defendants’ motion to dismiss is denied because the Court finds Defendants’ interpretation of Section 1440 unavailing. First, the plain language of Section 1440 contemplates only two categories of discharge. Second, USCIS must consider military instructions in its analysis: Section 1440 makes characterization of discharge the responsibility of the military, not USCIS. The Court also declines to place the burden of proving statutory meaning on Alam because statutory interpretation is a question of law.

BACKGROUND

MAVNI offers non-citizens with critical-language skills or specialized medical training an expedited path to citizenship if they enlist and serve in the United States military during a period of ongoing hostilities. (Compl. ¶¶ 41–42.) MAVNI soldiers agree to serve the military as soon as they are able, and in the program's early history, soldiers attended basic training shortly after enlistment. (Id. ¶¶ 42–43); Samma v. U.S. Dep't of Def. , 486 F. Supp. 3d 240, 245 (D.D.C. 2020). In the past decade, the military and USCIS have added new requirements for MAVNI applicants, delaying their citizenship applications. (Compl. ¶¶ 43, 45); Samma , 486 F. Supp. 3d at 255–58.

I. Alam's Military Service and Naturalization Application³

Alam came to the United States from Bangladesh on an F-1 student visa in January 2014. (Compl. ¶ 40.) He studied computer science at Winona State University in Minnesota and graduated in May 2017. (Id. ) In 2016, while he was still a student, he enlisted in the Army. (Id. ¶¶ 40, 44.) Alam served in an Army Reserve unit for over two years. (Id. ¶ 45.)

Naturalization Application. During his service, Alam applied for naturalization. (Id. ¶ 46.) He included the required Form N-426, which a military official completed. (Id. ) The Form N-426 asks the official to check a box—either yes or no—to reflect whether the "character of [the soldier's] service" was "honorable." (ECF No. 1-1 ("N-426") at 3.) USCIS uses this form and the Form DD-214 (described below) to determine whether an applicant is eligible for naturalization. (E.g. , ECF No. 1-11 ("Miriyeva Admin. Decision") at 3; ECF Nos. 1-3, 1-4.) Alam's N-426 certified that his military service was "honorable" as of January 2018. (Compl. ¶ 46; ECF No. 1-1 at 3.)

While awaiting a USCIS determination about his naturalization application, Alam completed and passed the Military Service Suitability Determination ("MSSD") and other requirements of MAVNI. (Id. ¶¶ 45, 47.) He began active-duty training in June 2018. (Id. ¶ 49.)

Discharge. In July, the Army discharged Alam for "failed medical/physical/procurement standards." (Id. ¶ 51.) At discharge, the military completed a Form DD-214, titled "Certificate of Release or Discharge from Active Duty." (Id. ; ECF No. 1-2 ("DD-214").) Among other things, the DD-214 requires the official completing it to state the "reason for separation" and the "character of [the soldier's] service." (Compl. ¶¶ 52–54; DD-214.) The Army designated Alam's service as "uncharacterized." (Compl. ¶¶ 52–54; DD-214.) Alam received no other notice or process. (See Compl. ¶ 114 ("[Alam] was never given the required notice and process for any lesser type of discharge.").)

The DD-214 is completed for internal military purposes, not for USCIS. (See generally ECF No. 1-13 (describing the process for completing a DD-214 and uses of the form).) The DD-214 lists six categories of discharge,⁴ and Department of Defense instructions reference three broad discharge types: "honorable," "general (under honorable conditions)," and "under other than honorable conditions." (DoDI 1332.14 Enclosure 4 § (3)(b)(2)⁵ .) For a soldier to receive an "under other than honorable conditions" discharge, the soldier must have "been afforded the opportunity to request an administrative board action." (Id. § (3)(b)(2)(c)(2).) In limited circumstances, including separation while a soldier is in entry-level status, the military does not characterize a soldier's discharge and instead lists the discharge type as "uncharacterized." (Id. § (3)(b)(3)(c)(1).) According to DoD instructions, when an "administrative matter" requires a characterization of "honorable or general" to make the soldier eligible for military benefits, an uncharacterized, entry-level discharge should be "treated as the required characterization." (Id. § (3)(b)(3)(c)(1)(c).) In other words, although an "uncharacterized" discharge is distinct from an honorable or general discharge, the military treats it as honorable or general so that the soldier becomes eligible for military benefits.

Alam's Application for Naturalization is Denied. In December, USCIS interviewed Alam for his naturalization application. (Compl. ¶ 56.) The interviewing officer told Alam that his application was recommended for approval. (Id. ¶ 58; ECF No. 1-3.) But USCIS later denied Alam's application because "[his] DD form 214 ... reflects that [he] received an uncharacterized discharge from the U.S. [military]." (Compl. ¶¶ 59–60; ECF No. 1-4.)

Alam filed an administrative appeal in March 2019. (Compl. ¶ 66.) USCIS requested a new N-426. (Id. ¶ 68.) While the old N-426, completed while Alam was still in the Army, listed his service as "honorable," the new N-426 reflected his discharge status. (Id. ¶¶ 46, 70–71.) Different from either the DoD instructions (listing three categories of discharge) or the DD-214 (listing six categories of discharge), the N-426 allows for two categories of discharge: "Honorable" or "Other." (ECF No. 1-8 at 4 (Part 6).) Alam's new N-426 lists his discharge type as "Other." In the "Remarks" section, the form specifies that he received an "uncharacterized" discharge and a "favorable" MSSD. (Compl. ¶ 71; ECF No. 1-8 at 5 (Part 7).)

USCIS affirmed its denial of Alam's naturalization application, citing Section 1440. (ECF No. 1-9 at 3.) It reiterated that it considered Alam ineligible for naturalization because he did not show he was discharged from the Army "under honorable conditions." (Id. at 2.) In its decision, USCIS explained that it does not consider "uncharacterized" as "under honorable conditions." (Id. at 3; Compl. ¶ 74.)

II. Previous Litigation over MAVNI

Alam is not the first soldier to challenge the implementation of MAVNI. A brief history of MAVNI jurisprudence provides helpful context for understanding this suit.

In Nio v. United States Department of Homeland Security , MAVNI applicants challenged a Department of Homeland Security requirement that they pass MSSD background checks before they could be naturalized. 385 F. Supp. 3d 44, 62 (D.D.C. 2019). The District of Columbia district court found that requiring an MSSD determination before an applicant could be naturalized was arbitrary and capricious because USCIS bears an independent responsibility to investigate applicants. Id. at 67–68. The court noted that a soldier must receive a favorable MSSD to receive an "honorable" or "general under honorable conditions" discharge type; thus, the MSSD requirement merely reiterated Section 1440 ’s honorable service requirement.⁶ Id. at 68. The court also found that USCIS's requirement that an applicant obtain a favorable MSSD was arbitrary and capricious because USCIS's "justifications for the MSSD Requirement are [ ] belied...