Will Biden keep Trump’s military immigration policy? Next month’s case is a test

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Tara Copp
·4 min read
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Department of Justice attorneys are scheduled to defend a Trump administration policy that makes it more difficult for immigrant soldiers to become U.S. citizens, despite President Joe Biden directing his administration to ease paths to naturalization for those who serve in the military.

Lawyers for six immigrant soldiers challenging the policies told McClatchy that the former administration had been appealing the case before the United States Court of Appeals for the D.C. Circuit when former President Donald Trump lost reelection.

A brief from the Justice Department defending policies put in place at the Defense Department in 2017 is due to the Court of Appeals by March 3. Late last week the Justice Department requested a 30-day extension in the case.

“As of now, they’re still defending the policy,” American Civil Liberties Union attorney Scarlet Kim who is representing the service members in Samma v. the Department of Defense told McClatchy. “Obviously, we would hope that they would review it and revoke it. From our perspective, it’s completely at odds with Biden’s public pronouncements about reviewing naturalization policy.”

The Biden administration could decide to withdraw the appeal and let the lower court’s ruling stand, she said.

The White House referred questions on the case to the Justice Department.

Tina Jagerson, a spokeswoman for the Department of Justice, said the agency had no comment on whether the administration would still appeal the decision.

In its request for an extension, which would have to be granted by the court, the Justice Department said the additional 30 days would “allow the government adequate time to consult with the Office of the Solicitor General and the U.S. Department of Defense.”

At the heart of the case is an October 2017 policy change directed by former Defense Secretary James Mattis that extended military service requirements to 180 days for active duty service members, and a year for reservists, before a person was qualified to be considered for an N-426 form, a certification of honorable service, which is necessary for naturalization.

Mattis also changed who was qualified to determine whether a person had served honorably, removing that role from unit commanders and requiring a colonel or higher to approve the form.

At that time, Mattis said the changes, which included a separate new policy that added new layers of background vetting, were necessary to ensure that none of the immigrant soldiers were security risks.

In August 2020, the U.S District Court for the District of Columbia had ruled in favor of the service members.

In its opinion, the court ruled that the Defense Department’s 180-day policy was “arbitrary and capricious” and that “minimum service requirements are contrary to law and that DOD’s refusal to certify plaintiffs’ N-426s because they have not met those requirements constitutes agency action unlawfully withheld.”

Kim said the Samma case could impact potentially thousands of non-citizen service members, including several thousand legal permanent residents, or “Green Card” holders, and an additional number of immigrant soldiers who joined the U.S. military through the Military Accessions Vital to the National Interest program.

The Defense Department has said in previous court filings on the case that approximately 5,000 legal permanent residents enlist in the military each year.

The MAVNI program has been closed since 2016 but still has applicants waiting to be vetted, a required step before they can join the military. The Army, which is responsible for MAVNI personnel, did not immediately have numbers available on those applicants.

“The Army is committed to completing this mission expeditiously, and meanwhile continues to ship qualified MAVNI applicants to training upon completion of their background screening,” said Army spokesman Lt. Col. Gabriel Ramirez.

Previously, service members could get the required form completed as soon as they reported to basic training so that if they were sent overseas, they would deploy as naturalized U.S. citizens.

The policy change led to U.S. Citizenship and Immigration Services closing naturalization offices at military basic training sites in the United States and overseas, citing that they were no longer needed since basic training runs shorter than 180 days.

It also led, in some cases, to yearslong delays for immigrant service members who were unable to perform their assigned military duties because of a backlog in additional security vetting that was also put in place by the 2017 policy or found their citizenship status in limbo for years because they could not get the military to provide them the required N-426 form.