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Court: DOD must stop blocking soldiers' citizenship applications

Posted by Richard J. Tasoff | Oct 28, 2017 | 0 Comments

A federal judge has ruled that the Defense Department must stop blocking applications for U.S. citizenship made by reserve soldiers who were promised a fast track. A 2008 pilot program, the Military Accessions Vital to National Interest, promised certain noncitizens expedited citizenship in exchange for eight years of military service. Now that they've fulfilled their side of the bargain, the DOD is trying to back out.

The MAVNI program was piloted because the U.S. military needed recruits with certain military and language skills. The law says that both active-duty and members of the Selected Reserve or Ready Reserve are eligible. In March, the DOD made changes to the program so that only active-duty service members are eligible for naturalization.

The program requires service members to submit a form N-426 with their naturalization applications. That form certifies honorable service. In the past, the DOD had certified N-426 forms within days. Last month, several reserve service members filed a class-action lawsuit because the DOD refused to certify their N-426 forms merely because they were in the Selected Reserve.

The Defense Department had argued that it has an unreviewable right to determine when to certify honorable service. The federal judge found that argument to be nonsense.

"DOD's N-426 policy is subject to review as a ministerial task not committed to agency discretion, for there are meaningful standards by which the court can judge agency action in this context," the judge wrote.

The ruling also sets aside a series of new requirements the DOD put in place to block naturalization by reserve members on Oct. 13. Beyond the honorable service requirement, the DOD had added requirements that the applicant not be subject to any disciplinary or legal matter, serve for a specific period, and undergo extensive background checks and additional vetting.

"The government represented to plaintiffs that, in exchange for 8 years of military service, they would be able to pursue an expedited path to citizenship shortly after enlistment," the judge wrote. "Now that time has been extended by two or three years."

The DOD again insisted its decisions were not subject to court review and that national security required the changes. The judge again found that position untenable. "A central principle of administrative law," the judge pointed out, is that government positions must be based on reasoned analysis and not be arbitrary or capricious.

The judge ordered the DOD to stop refusing to sign the N-426 forms for anyone in the Selected Reserve and certified the class action on the matter.

"Every day of delay leaves plaintiffs in limbo and in fear of removal," she noted.

About the Author

Richard J. Tasoff

Senior Partner Richard J. Tasoff is a senior partner in Tasoff & Tasoff, one of the oldest "AV" rated (highest Martindale-Hubbell rating) law firms in Los Angeles specializing in immigration law. Richard, a Certified Specialist in Immigration & Nationality Law (State Bar of California Board of L...


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