Soldiers in the U.S. Army Reserve are suing the Pentagon and the Department of Homeland Security for stalling their citizenship applications after they joined the military through a program that promised them fast-track naturalization for their service.
“Each plaintiff-soldier has kept his/her end of the bargain,” their lawsuit states. The immigrant recruits did their part by enlisting, training in drills with their unit, and subjecting themselves to deployment. The U.S. Army certified their service, and the military is supposed to provide citizenship as soon as they complete basic training or attend drills.
But at the Pentagon’s request, the Homeland Security Department is not processing their applications, as required, while the U.S. government subjects the recruits to a more rigorous background check than those typically needed to naturalize.
What’s more, Pentagon and Homeland Security officials now say they are considering going back and changing who is eligible to receive a certification of military service — required for naturalization under this military recruiting program — and possibly even revoking the certifications for those soldiers not in active-duty service.
The delay has put some soldiers at risk of deportation, the lawsuit states. These soldiers are “suffering irreparable harm” and financial strain as they face uncertainty about their status, unable to get a job, a drivers license, or a passport to visit sick family members, their attorneys say.
It has also baffled the military lawyer who wrote the policy.
The thing that startled me is that I wrote the guidance memo, which doesn’t say this at all. It’s flat out false.
Margaret Stock, lawyer and founder of the MAVNI program
“Are they making up new rules there at DoD? I’ve never heard of decertifying someone who is eligible through the Reserves, it is outrageous,” said Margaret Stock, a retired Army officer and lawyer. “They’ve naturalized thousands of reservists and all of a sudden DoD noticed it and they’re going to revoke some of them?”
The 10 reservists who brought the suit were recruited through the Pentagon’s Military Accessions Vital to the National Interest program, known as MAVNI, which gives expedited citizenship to legal immigrants who enlist with critical language skills or medical training.
Nearly 10,000 immigrants are in the MAVNI program, most of them serving in the Army. The popular program was allowed to accept 5,000 recruits in 2016, but was frozen last fall after security concerns about the vetting of recruits. Now the Pentagon is considering scrapping it altogether, according to an internal memo included in the suit. This would leave roughly 1,000 non-citizen recruits at risk of deportation despite being enlisted in the U.S. military.
Facing long delays and often contradictory answers from the military and government immigration agencies, some recruits told McClatchy they were afraid talking to the press would hurt them if they have to take their case to court. Others said they are wary that even speaking to immigration attorneys about possible litigation will get back to their recruiters and be a black mark on their record.
The Pentagon, in its court filing in this case, is clear about the implications. Although the soldiers named in this suit received their certifications, they “could be considered signed in error and may be decertified,” Stephanie Miller, Director of Military Accession Policy at the Pentagon, said in a July 28 filing, citing the program’s guidance.
Two classified reports concluded that MAVNI recruits “present an increased risk or threat to intelligence activities against the U.S. by foreign intelligence services,” Miller said in last week’s filing.
She also indicated the military wouldn’t protect recruits whose legal status is running out because their applications have come to a standstill: “For the MAVNIs who are no longer in a valid immigration status, and whether they will be subject to deportation…DoD defers to the authority of the Department of Homeland Security and U.S. Citizenship and Immigration Services,” she said.
The lawsuit was originally filed in late May, but last month a D.C. federal judge ordered that it be refiled to include extra legal claims. Despite that setback, U.S. District Judge Ellen Huvelle scolded the Pentagon in a three-hour hearing on July 19 for creating so much uncertainty through “baffling” policy changes.
“How is that legal?” Huvelle asked. “How can that not be contrary to the statute?”
Some reservists had already cleared all the hurdles. Nio Kusama, a surgeon serving in Fort Hamilton, N.Y., was scheduled for a citizenship ceremony oath in May. Three weeks before his naturalization, he was informed that it had been abruptly canceled. Another plaintiff, Jae Seong Park, completed basic training and served active duty for more than a year at Fort Jackson, S.C., before his application was placed on hold.
The next hearing in the reservists’ case is Aug. 23.
This is one of several lawsuits filed by MAVNI recruits in recent months after increasingly stringent security checks left thousands who had already enlisted in limbo.
In response to a different lawsuit, Defense Department officials cited enlistees using fraudulent student visas and falsified transcripts from universities owned by foreign national security agencies. Additionally, some failed to list foreign contacts. One recruit did not mention all of his connections “despite the fact that his father manages the military department of a foreign factory,” they said.
Advocates of the program argue that while none of these highly vetted immigrant recruits has ever been implicated in a serious security breach — which would result in revoking their citizenship, and would be public record — the same can’t be said of U.S.-born soldiers who go through far fewer checks. Last month, a U.S. soldier in Hawaii was arrested for attempting to provide military documents and a drone to ISIS. In May, another U.S. soldier was discharged after he fought with Russian-backed militants in Ukraine.
Attorneys say that mistakes and omissions often occur on SF86s, the application form used to issue security clearances, because recruiters are often filling those forms out quickly within an hour.
Stock said security concerns cited by the Pentagon are overblown if these are the examples cited to shut down the entire program.
“It’s not covering something up but being sloppy with your paperwork,” Stock said. “Jared Kushner had a team of lawyers helping him and he couldn’t even fill it out.”
The legal immigration status of many Plaintiffs has been jeopardized by their enlistment in the U.S. military combined with the unlawful delay in naturalization.
NIO et al v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY et al
Thousands of MAVNI recruits stuck in uncertain legal situations and facing long delays to be shipped to basic training have taken to closed Facebook groups to anxiously ask for updates about the various lawsuits. Some share responses from recruiters and lawmakers they have asked for help, and many said they hope that good news for the reservists will mean good news for the entire program.
Several enlistees have said their recruiters have been silent and unable to give answers since the litigation started. Recruiters in the group admit they are concerned about posting “in fear of what we say will be taken out of context, and we end up as part of the lawsuit.”
The Pentagon declined to comment due to pending litigation. Representatives for the Homeland Security Department did not respond to requests for comment.