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

Decision Date25 August 2020
Docket NumberCivil Action No. 20-cv-1104 (ESH)
Parties Ange SAMMA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.
CourtU.S. District Court — District of Columbia

Brett Max Kaufman, Scarlet Kim, Pro Hac Vice, Noor Zafar, Pro Hac Vice, Jonathan Hafetz, American Civil Liberties Union Foundation, New York, NY, Arthur B. Spitzer, American Civil Liberties Union of the District of Columbia, Washington, DC, for Plaintiffs Ange Samma, Abner Bouomo, Ahmad Isiaka, Michael Perez, Sumin Park, Yu Min Lee.

Noor Zafar, Scarlet Kim, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs Timotius Gunawan, Rafael Leal Machado.

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

MEMORANDUM OPINION

ELLEN S. HUVELLE, United States District Judge The United States has a long history of allowing noncitizens to serve in its military and providing those who serve with an expedited path to citizenship. But in recent years, despite its need for noncitizen enlistees to fill its ranks, the Department of Defense ("DOD") had placed obstacles in that path to citizenship. DOD's actions have led to a significant amount of litigation, much of it before this Court. This is another such case that pits noncitizen service members against the DOD.1

Plaintiffs are noncitizens serving in the United States military who wish to file applications for naturalization pursuant to 8 U.S.C. § 1440, which provides an expedited path to naturalization based on military service during designated periods of hostilities. They are challenging a DOD policy adopted on October 13, 2017, that requires them to meet certain durational and type of service requirements ("Minimum Service Requirements") before they can obtain a Certification of Honorable Service (USCIS Form N-426) ("N-426 Policy"). A certified N-426 is required by the United States Citizen and Immigration Service ("USCIS") in order to apply for naturalization based on military service. Plaintiffs bring claims under the Administrative Procedure Act ("APA") seeking to vacate the Minimum Service Requirements because they are arbitrary and capricious; not in accordance with law; and in excess of statutory jurisdiction; result in agency action unlawfully withheld and unreasonably delayed; and were enacted without notice and comment. See 5 U.S.C. §§ 553, 706(1), 706(2)(A), (C), (D). The Court has certified a class and two subclasses to challenge these requirements. See Samma v. U.S. Dep't of Defense, No. 20-cv-1104, 2020 WL 4501000, at *10 (D.D.C. Aug. 4, 2020).

Before the Court are the partiescross-motions for summary judgment. (See Pls. Mot. for Summ. J., ECF No. 4 ("Pls.’ SJ Mot."); Defs.’ Cross-Mot. for Summ. J., ECF No. 19 ("Defs.’ SJ Mot.").) For the reasons stated herein, the Court will grant plaintiffsmotion for summary judgment and vacate the Minimum Service Requirements in DOD's N-426 Policy.

BACKGROUND
I. STATUTORY FRAMEWORK
A. Use of Noncitizens in the United States Armed Forces

Noncitizens have served in the United States military since the founding of this country, both voluntarily and as draftees. (See Pls.’ Mot. for Class Cert. Ex. 2, at 3, ECF No. 5-3, also available at https://dod.defense.gov/news/mavni-fact-sheet.pdf ("MAVNI Fact Sheet")); see also Act of July 30, 1813, 13 Cong. ch. 36, 3 Stat. 53, https://www-loc-gov.nwulib.nwu.ac.za/law/help/statutes-at-large/13th-congress/c13.pdf (allowing noncitizens to enlist); Selective Service Act of 1948, Pub. L. No. 80-759, §§ 3-4, 62 Stat. 604, 605-606 (authorizing the induction of male aliens). Although the groups of noncitizens who have been allowed to enlist has varied over the years, at this time the groups are defined in 10 U.S.C. § 504(b), which sets out the "Uniform Citizenship and Residency Requirements for Enlistment in the Armed Forces that Congress first adopted in 2006. See National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 542(a), 119 Stat. 3136.

Two parts of § 504(b) are relevant to the present litigation. First, § 504(b)(1) provides that: "A person may be enlisted in any armed force ... if the person is ... (B) An alien who is lawfully admitted for permanent residence, as defined in section 101(a)(20) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(20) )." "The term ‘lawfully admitted for permanent residence’ means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." 8 U.S.C.A. § 1101(a)(20). Approximately 7,000 lawful permanent residents ("LPRs") enlist each year. (See Administrative Record ("AR") 19.)2

Second, § 504(b)(2) provides that "the Secretary concerned may authorize the enlistment of a person not described in paragraph (1) if the Secretary determines that such person possesses a critical skill or expertise--(A) that is vital to the national interest; and (B) that the person will use in the primary daily duties of that person as a member of the armed forces." 10 U.S.C. § 504(b)(2). In 2008, the Secretary of Defense utilized his authority under § 504(b)(2) to authorize the Military Accessions Vital to the National Interest ("MAVNI") Pilot Program. (See AR 124.) The MAVNI Program allowed non-citizens who were not LPRs 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." (AR 46 (Decl. of Stephanie Miller ¶ 4, July 7, 2017) ("7/7/17 Miller Decl.").) MAVNI enlistments stopped in 2016, for reasons discussed in greater detail infra , but from 2008 to 2016, more than 10,000 individuals enlisted in the military through the MAVNI program. (See AR 19, 46.)3

B. Statutory Eligibility for Naturalized Citizenship Based on Military Service

The service and sacrifice of noncitizens who serve in the United States military has long been recognized with grants of eligibility for citizenship. See, e.g. , 1813 Act (allowing noncitizens to become citizens immediately upon entering military service if they declared an intent to naturalize); Act of July 17, 1862, 37 Cong. ch. 200, 12 Stat. 594 (available at https://www-loc-gov.nwulib.nwu.ac.za/law/help/statutes-at-large/37th-congress/session-2/c37s2ch200.pdf) (allowing noncitizens who enlisted to become citizens upon being honorably discharged). Since the enactment of the Nationality Act of 1940, however, paths to citizenship based on military service have been codified as part of our immigration laws. See Nationality Act of 1940, Pub. L. No. 76–853, § 324, 54 Stat. 1137, 1149–1150 (1940) ("Nationality Act").

The Nationality Act provided that a "person ... who has served honorably at any time in the United States Army, Navy, Marine Corps or Coast Guard for a period or periods aggregating three years and who, if separated from such service, was separated under honorable conditions, may be naturalized ..." without having to satisfy several of the otherwise applicable requirements for naturalization. Id. The statute further provided "[a]ny such period or periods of service under honorable conditions ... shall be proved by duly authenticated copies of records of the executive departments having custody of the records of such service." Id. at 1149-50.

In 1942, the Nationality Act was amended to add a new title that provided that those "who ha[ve] served or hereafter serve[ ] honorably" in World War II and who have been lawfully admitted to the United States were eligible to naturalize without meeting the three-year service requirement. Act of Mar. 27, 1942, Pub. L. No. 77-507, § 1001, 56 Stat. 176, 182. For these applicants, service could be proved either by filing two affidavits of at least two citizen servicemembers "of the noncommissioned or warrant officer grade or higher ... or by a duly authenticated copy of the record of the executive department having custody of the record of petitioner's service, showing that the petitioner is or was during the present war a member serving honorably in such armed forces." Id. A later amendment that same year extended this type of naturalization to those who served in World War I. See Act of Dec. 7, 1942, Pub. L. No. 77-791, 56 Stat. 1041-42.

In 1948, Congress extended eligibility to naturalize based on service during WWI or WWII to persons who were not LPRs at the time of enlistment if (1) at the time of enlistment or induction such person shall have been in the United States or an outlying possession (including the Panama Canal Zone, but excluding the Philippine Islands), or (2) at any time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence." Act of June 1, 1948, Pub. L. No. 80-567, 62 Stat. 281-82. The 1948 amendment also added the following provision, which is at the heart of this case: "[t]he executive department under which such person served shall determine whether persons have served honorably in an active-duty status, and whether separation from such service was under honorable conditions." Id. Further, it altered the methods for proving honorable service, eliminating the option of using an authenticated copy of a service record and replacing it with the option of providing a "duly authenticated certification from the executive department under which the petitioner is serving" that "states whether the petitioner has served honorably in an active-duty status during either World War I or [World War II]."4 Id. at 282.

In 1952, Congress replaced the Nationality Act with the Immigration and Nationality Act ("INA"), Pub. L. No. 82-414, 66 Stat. 163 (1952), but it made no substantive changes in the law with respect to naturalization based on military service, providing one route for persons who served honorably at any time...

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