FEDweek

Court Stops Restrictions on Accessions of Foreigners

Foreign nationals who wish to join the armed services and use their service as a path toward U.S. citizenship can continue to do so — for now. A federal judge in Washington ruled in favor of three reservists, who had filed a lawsuit challenging the Trump administration’s decree that would limit the Pentagon’s Military Accessions Vital to National Interest (MAVNI) program.

The three — Mahlon Kirwa, Santosh Meenhallimath, and Ashok Viswanathan — claim that they entered the reserves with the understanding that their path to service and possible citizenship would be facilitated if they complete their part of a Defense Department form, and then have the military complete its portion. They then could submit the form — known as N-426 — to U.S. Citizenship and Immigration Services, as the next step in their naturalization process. Meanwhile, the appropriate federal agencies would conduct background security checks on these individuals.

Ruling in their favor, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia wrote on October 25 that the three reservists and any other persons in similar straits who joined under MAVNI before Oct. 13, 2017, should be allowed to move forward with their naturalization efforts. (Rule changes instituted after that date prevent protection of enlistees who entered afterward.)

Citing a tradition that dates as far back as the Civil War, Huvelle referred to specific laws that allow “persons serving honorably” to continue to do so, even if they are not permanent U.S. residents or citizens
The MAVNI program, which began in 2008 and was adopted by the Army a year later, is part of the continuum of that tradition, Huvelle wrote. She also noted that security enhancements have been implemented when deemed necessary since its inception.

Problems arose last September, however, when a procedural change greatly slowed the MAVNI approval process. Persons — particularly reservists — who entered under MAVNI were being discharged because their paperwork was not processed in time.

At that point, about 500 MAVNI reservists tried to get N-426 forms before they entered boot camp. The Pentagon refused, on the grounds that only persons who actually were on active duty qualified for approval.

On Oct. 13, the Pentagon issued new policy guidance for N-426 approval. Under the terms, service members had to have clean records, pass a background investigation and vetting process, and serve in uniform “honorably.”

Thus, even though the three reservists entered the service before the changes took place, with each having signed contracts that outlined the path to naturalization and citizenship under MAVNI, the Pentagon wrongly refused to complete their necessary paperwork, Huvelle wrote.

The government’s unwillingness to act properly on the three persons’ behalf caused “irreparable harm” for the three reservists and others in similar straits, Huvelle wrote.
“The government represented to [the three] that in exchange for eight years of military service, they would be able to pursue an expedited path to citizenship shortly after enlistment. Now that time has been extended by two or three years,” Huvelle wrote.

The delay could lead to their discharge and possible deportment, she wrote — which in turn could subject them to severe repercussions in their home country for trying to join a foreign military.