Kirwa v. United States Department of Defense

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MAHLON KIRWA, et al., Plaintiffs, v. Civil Action No. 17-1793(ESH) UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants. MEMORANDUM OPINION Plaintiffs are three non-citizens serving in the United States Army’s Selected Reserve of the Ready Reserve (“Selected Reserve”) who enlisted under the United States Department of Defense’s Military Accessions Vital to the National Interest (“MAVNI”) program. Each wants to apply for citizenship pursuant to 8 U.S.C. § 1440, which provides an expedited path to citizenship for soldiers who serve during specified periods of military hostilities. Each, however, has been unable to apply because the military has refused to give them a signed Form N-426, which is a form that certifies an applicant’s qualifying military service and must be submitted to the United States Citizenship and Immigration Services (“USCIS”) in order to apply for naturalization based on military service. Plaintiffs bring this action against the United States Department of Defense (“DOD”) and Secretary James Mattis, claiming that the military’s refusal to issue them N-426 forms is unlawful under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Before the Court is plaintiffs’ motion for preliminary injunctive relief, brought on behalf of themselves and similarly-situated MAVNI soldiers. For the reasons stated herein, the Court will provisionally certify a class and grant the motion for a preliminary injunction. BACKGROUND The issues in this case overlap with a related case before this Court, Nio v. United States Department of Homeland Security. See Nio v. United States Dep’t of Homeland Sec., No. 17-cv- 0998, 2017 WL 3917006 (D.D.C. Sept. 6, 2017). That case involves MAVNI enlistees who have already received a completed Form N-426, but have brought similar challenges to DOD’s recent change in its N-426 policy. In addition, the Nio plaintiffs are challenging the Department of Homeland Security’s (“DHS”) and USCIS’s decision to put their naturalization applications on hold pending DOD’s completion of the enhanced security screening (“DHS/USCIS Security Screening Requirement”) it now requires for MAVNI enlistees prior to initial entry training (“IET”) or active-duty service. The parties concede that filings in both the instant suit and Nio bear on the preliminary injunction inquiry before the Court, and thus, the Court may rely on records in both cases. I. FACTUAL BACKGROUND A. Military Service as a Path to Citizenship Since at least the Civil War, special naturalization provisions have applied to non-citizens who serve in the United States military. See USCIS Policy Manual, Vol. 12, Part I, Ch. 3, § A. Currently, the requirements for naturalization based on military service are found in Section 328 and 329 of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1101, et seq. Section 328, codified at 8 U.S.C. § 1439, applies during peacetime; Section 329, codified at 8 U.S.C. § 1440, applies during designated “periods of military hostilities.” For present purposes, § 1440 2 is the only relevant statutory provision because on July 3, 2002, President George W. Bush signed an Executive Order declaring that a ...

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