Despite an August 2020 court order that forced the Army to abolish minimum time-in-service requirements for foreign-born recruits requesting expedited U.S. citizenship, the service has failed to adequately implement the new rules, a federal judge said last month.
The original court order came after the American Civil Liberties Union won a lawsuit arguing that the Defense Department unlawfully added time in service requirements and restrictive processing procedures to an expedited citizenship pathway available to troops through the Immigration and Nationality Act.
During the wars in Iraq and Afghanistan, more than 100,000 foreign-born U.S. troops became American citizens through that process, which requires the member’s military branch to certify that they are serving honorably.
The court order required the military to process all service certification forms within 30 days of receipt and overturned a 180-day service requirement, established in October 2017 by Trump administration officials, for active duty troops to have their naturalization certificate processed, as well as a one-year service requirement for reserve component troops. The overturned rules also required completion of basic training before recruits could apply.
But in an opinion responding to evidence showing that several Army training installations were still refusing to process naturalization certifications, Judge Randolph Moss of the U.S. District Court for the District of Columbia said there was “cause for concern” that the service isn’t effectively implementing the order to speed up the path to U.S. citizenship.
He noted, though, that the service has “engaged in good faith and substantial efforts to comply with the court’s order.”
ACLU attorney Sana Mayat told Army Times they’ve found dozens of troops whose citizenship paperwork was delayed because commanders didn’t understand — or didn’t receive — the new guidance. She wanted the judge to issue a new order enforcing the previous decision by requiring the Army to start centrally tracking naturalization certificate requests and provide monthly updates to the court.
“Since [the August 2020 court order], we’ve seen at numerous Army bases — specifically Fort Jackson, Fort Sill, Fort Sam Houston, Fort Benning — so many cases of class members coming to us and telling us that they’ve been told by their chain of command that they must wait a minimum period of time,” Mayat said in a phone interview.
Court filings reviewed by Army Times described cases of soldiers whose drill sergeants refused to accept the paperwork, others where units failed to process forms in the required timeframe, and one where a soldier graduated from his training pipeline and was stationed overseas without the legal protections provided by U.S. citizenship.
“At some places, like Fort Jackson, for nine months there was even written guidance being circulated saying that the minimum service requirements were still in effect,” said Mayat.
Government attorneys argued that the service has taken steps to improve the distribution of the new guidance, including two Army-wide orders that instructed training centers to ensure leaders all the way down to the drill sergeant level were aware of the updated rules.
Moss, the judge, agreed and denied the ACLU’s request to enforce the motion, saying that “more than anything, these failures likely reflect the administrative difficulty of implementing a policy within a massive organization like the Army.”
Mayat thinks the administrative burdens cut both ways, and that brand-new soldiers are not likely to report issues or know how to exercise administrative relief channels like inspector general complaints. She also believes the cases her team found don’t represent the totality of the issue, though without a centralized method for tracking naturalization forms, it’s not clear how widespread the failures have been.
“What we’ve shown the court is really just the tip of the iceberg in terms of how many cases there really could be out there…[soldiers] new to service are often intimidated and aren’t going to feel like they [can] go to a lawyer…to really assert their rights, especially against their chain of command,” argued the ACLU attorney. “This essentially puts the burden on service members to enforce their rights instead of the Army.”
The judge did indicate that the Army needs to fix the issue, or he may be willing to reconsider the ACLU’s request for him to enforce the August 2020 order “if…noncompliance with the Court’s order persists.”