Kirwa v. U.S. Dep't of Def.

• Citation: 285 F.Supp.3d 21
• Decision Date: 25 October 2017
• Docket Number: Civil Action No. 17–1793(ESH)
• Parties: Mahlon KIRWA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: United States District Courts. United States District Court (Columbia)

285 F.Supp.3d 21

Mahlon KIRWA, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.

Civil Action No. 17–1793(ESH)

United States District Court, District of Columbia.

Signed October 25, 2017

Douglas W. Baruch, Jennifer M. Wollenberg, Joseph J. LoBue, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC, for Plaintiffs.

Nathan Michael Swinton, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

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.

BACKGROUND

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, 270 F.Supp.3d 49, 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.

I. FACTUAL BACKGROUND

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...