Nio v. U.S. Dep't of Homeland Sec.

• Decision Date: 06 September 2017
• Docket Number: Civil Action No. 17–998 (ESH)
• Citation: 270 F.Supp.3d 49
• Parties: Kusuma NIO, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

270 F.Supp.3d 49

Kusuma NIO, et al., Plaintiffs,

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

Civil Action No. 17–998 (ESH)

United States District Court, District of Columbia.

Signed September 6, 2017

Douglas W. BaruchJennifer M. WollenbergJoseph J. LoBue Fried, Frank, Harris, Shriver & Jacobson LLP Washington, DC for Plaintiffs.

Elianis N. Perez, Colin Abbott Kisor, Sarah Lake Vuong, U.S. Department of Justice, Washington, DC, Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for 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...