Nio v. U.S. Dep't of Homeland Sec.

385 F.Supp.3d 44

Kusuma NIO, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No. 17-0998 (ESH)

United States District Court, District of Columbia.

Signed May 22, 2019

Douglas W. Baruch, Jennifer M. Wollenberg, Kayla M.S. Kaplan, Joseph J. LoBue, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC, for Plaintiffs.

Elianis N. Perez, Carlton Frederick Sheffield, Colin Abbott Kisor, Sarah Lake Vuong, U.S. Department of Justice, Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

Plaintiffs are a class of foreign nationals serving in the United States Army's Selected Reserve of the Ready Reserve who enlisted through the Military Accessions Vital to the National Interest ("MAVNI") program. The MAVNI program provides an expedited path to citizenship to foreign nationals who are legally present in the United States, possess critical foreign-language or medical skills, and serve honorably during designated periods of hostilities. The question before the Court is whether the U.S. Department of Homeland Security ("DHS") and its sub-agency U.S. Citizenship and Immigration Services ("USCIS") acted lawfully when they instituted a policy on July 7, 2017, declining to naturalize MAVNI applicants until the applicant has been determined suitable for service by the U.S. Department of Defense ("DOD") and the U.S. Army. Because USCIS's purported reasons for waiting for these military suitability adjudications do not comport with the evidence before the Court, it concludes that the challenged portion of USCIS's policy is arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2) ("APA"). The Court will therefore vacate that portion of the policy and grant partial summary judgment to plaintiffs.

BACKGROUND

I. FACTUAL BACKGROUND

A. Origins of the MAVNI Program

1. DOD Eligibility and Enlistment Requirements

Much of the factual and procedural background relevant to the parties' cross-motions for summary judgment has been set forth in the Court's other opinions in this case and in a related case, Kirwa v. DOD , Civ. No. 17-1793.¹ However, certain information is necessary to understand the question before the Court.

Generally, enlistees in the Armed Forces must be United States citizens or legal permanent residents. See 10 U.S.C. § 504(b)(1). However, through the MAVNI program, which was first authorized in 2008 and began operating in 2009, non-citizens who are not permanent residents but are lawfully present in the United States may enlist if they have critical foreign language skills or specialized medical training. See id. § 504(b)(2) ; see also Nio PI Op. , 270 F. Supp. 3d at 53. By statute, non-citizens who serve honorably during designated periods of hostilities are afforded an expedited path to citizenship:

Any person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States [during a designated period of hostilities], and who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section[.]

8 U.S.C. § 1440(a).² Since September 11, 2001, a designated period of hostilities has existed. See Exec. Order No. 13269, Expedited Naturalization of Aliens and Noncitizen Nationals Serving in an Active-Duty Status During the War on Terrorism , 67 Fed. Reg. 45,287 (July 3, 2002). Over the course of the MAVNI program, more than 10,000 recruits have joined the Armed Forces and have become naturalized as United States citizens. See Nio PI Op. , 270 F. Supp. 3d at 55.

All soldiers, including MAVNIs, must meet general enlistment standards in order to serve. DOD and the individual services of the U.S. Armed Forces, including the Army, impose requirements ranging from basic eligibility criteria such as age and physical fitness to more subjective assessments relating to personal character and conduct. See generally Dept. of Defense Instruction ("DODI") 1304.26, Qualification Standards for Enlistment, Appointment, and Induction (Pls.' Appx. 8 et seq. ) (setting forth eligibility criteria for those serving in the military).³

Since its inception, the MAVNI program has raised national-security concerns within DOD, and as a result, DOD has sought to strengthen the security screening requirements for MAVNI enlistees. See NIO PI Op. , 270 F. Supp. 3d at 53-54. (See also Decl. of Stephanie P. Miller ¶¶ 12-17, July 7, 2017 (ECF No. 19-7) ("7/7/17 Miller Decl.").) In February 2010, James Clapper, then Under Secretary of Defense for Intelligence, issued a memo expressing concern that MAVNI enlistees serving on active duty had not undergone sufficient "counterintelligence-focused screening" and recommending "immediate steps" to correct the oversight. (DOD Memorandum for Under Secretary of Defense for Personnel and Readiness: Military Accessions Vital to the National Interest Personnel (MAVNI), Feb. 17, 2010 (DOD AR 151).) Later that year, DOD imposed enhanced security screening for all current and future MAVNI soldiers, including a "Single Scope Background Investigation" ("SSBI" or "Tier 5" investigation, hereinafter referred to as "Tier 5"), which is a detailed background check conducted by the U.S. Office of Personnel Management ("OPM") and is typically used to determine whether an individual may receive access to classified information. See Nio PI Op. , 270 F. Supp. 3d at 54 n.4 (citing Second Decl. of Stephanie P. Miller in Response to July 19, 2017 Order of the Court at 2-4, July 28, 2017 (ECF No. 25-2) ("7/28/17 Miller Decl.")). The new DOD policy also required the Service (e.g. , the Army) to institute a "comprehensive counterintelligence-focused security review ["CI Review"] and monitoring program for MAVNI recruits." (DOD Memorandum for Secretaries of the Military Depts.: Two-Year Extension of Military Accessions Vital to National Interest (MAVNI) Pilot Program at 1-2, Aug. 17, 2010 (Pls.' Appx. 1-2).)

From August 2010 until May 16, 2012, recruitment of new MAVNIs was delayed while these strengthened security measures were implemented. (See Decl. of Stephanie Miller ¶ 6, Nov. 17, 2017 (ECF No. 39-5) ("11/17/17 Miller Decl."); DOD Memorandum: Reinstatement of Military Accessions Vital to National Interest Pilot Program at 1, May 16, 2012 (DOD AR 136).) With subsequent reauthorizations, DOD continued to refine security screening requirements for MAVNIs. In late 2014, DOD specified that all MAVNI applicants would be subject to a "suitability determination" based on a National Intelligence Agency Check ("NIAC") name search,⁴ Tier 5, and CI Review, including an issue-oriented CI interview and/or polygraph "as needed to resolve any foreign influence or foreign preference concerns." (DOD Memorandum: Two-Year Extension of Military Accessions Vital to the National Interest (MAVNI) Pilot Program Implementation Policy at 6, Dec. 19, 2014 (USCIS AR 215).) The 2014 DOD memo provided that "[f]ailure to obtain a favorable NIAC, [Tier 5,] or CI-focused security review will render the applicant ineligible for enlistment or continued military service" and such a result would lead to immediate separation from the military. (Id. )

In 2015, DOD promulgated regulations governing "enlistment, appointment, and induction criteria" for the Armed Forces, including a new provision that "an applicant will be considered ineligible" to enlist if he or she "[r]eceives an unfavorable final determination by the DoD Consolidated Adjudication Facility [‘CAF’] on a completed National Agency Check with Law and Credit (NACLC) or higher-level investigation [i.e. , Tier 5], which is adjudicated to the National Security Standards...." 32 C.F.R. § 66.6(b)(8)(iv) ; Qualification Standards for Enlistment, Appointment, and Induction , 80 Fed. Reg. 16,269 -01, 16,273 (Mar. 27, 2015); see also DODI 1304.26, Encl. 3, § 2(h)(6) (Pls.' Appx. 18) (same requirement).⁵ The regulation thus imposed an additional step—a "final determination" as to the soldier's suitability for military service—in addition to the DOD investigations required under the 2014 DOD memo. 32 C.F.R. § 66.6(b)(8)(iv). (See also Tr. of Proceedings at 18:7-20:17, Mar. 20, 2019 (ECF No. 245) ("3/20/19 Tr.") (Christopher Arendt of DOD describing the process formalized by the regulation).) On September 30, 2016, DOD again addressed investigation and vetting requirements for MAVNIs, as discussed in more detail infra at Section I.B.

2. USCIS Processing of Naturalization Applications

Separate from the DOD requirements, MAVNIs who wish to naturalize must apply to USCIS for citizenship, and USCIS must "conduct examinations" of all applicants. 8 U.S.C. § 1446(b) ; see also 8 C.F.R. § 332.1(a) (designating USCIS officers "to conduct the examination for naturalization required under" the Immigration and Nationality Act or "INA"). Regulations specify that USCIS must review FBI criminal background checks, see 8 C.F.R. § 335.2(b), and for naturalization applicants with military service, USCIS also requests from DOD name check queries of DOD's Defense Clearance Investigative Index ("DCII") to see if the applicant has a criminal record on his or her military record. See 12 USCIS Policy Manual, pt. I, ch. 6, § A, https://www.uscis.gov/policy-manual ("USCIS Policy Manual"). Following these checks, an applicant is scheduled for a naturalization interview by a USCIS officer, see 8 C.F.R. § 335.2, and USCIS must adjudicate the application within 120 days of the interview. 8 U.S.C. § 1447(b).

An applicant will not be approved for naturalization unless USCIS determines that she or he is "a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order...