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Immigration Law

Court Enjoins DOD's MAVNI Block: Kirwa v. U.S. Dept. of Defense

Kirwa v. U.S. Dept. of Defense, Oct. 25, 2017 - "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. ... Finding that plaintiffs have carried their burden as to all requirements, the Court grants plaintiffs’ motion for preliminary injunctive relief. ... DOD has given no reasoned justification why certifying a form N-426 for immigration and naturalization purposes implicates our national security. Furthermore, despite its assertions to the contrary, DOD does not control the naturalization process. (See PI Opp. at 38 (“DOD’s new policy marks an effort to . . . set standards for a naturalization process that has been greatly challenged by national security threats.”).) So DOD’s unfounded attempt to control criteria for naturalization does not constitute a reasonable explanation for the October 13, 2017 policy change here. ... Based on the record and for the reasons discussed herein, the Court concludes that plaintiffs are likely to succeed in proving—at least for MAVNI enlistees who have enlisted prior to October 13, 2017, and who completed sufficient service in the Selected Reserve—DOD must expeditiously certify or deny their N-426s based on their existing military records. ... By preventing plaintiffs from submitting valid naturalization applications to USCIS, defendants are depriving plaintiffs of “lawful presence” for purposes of ICE enforcement. ... defendants’ refusal to certify plaintiffs’ N-426s based on their past honorable service causes irreparable injury to plaintiffs and the proposed class."

[Hats off to the Fried Frank team, Douglas W. Baruch, Joseph J. LoBue and Jennifer M. Wollenberg, and to MAVNI's creator, Margaret D. Stock!]