Federal judge strikes down time-in-service requirements for military naturalization
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Federal judge strikes down time-in-service requirements for military naturalization

A judge for the US District Court for the District of Columbia granted a motion for summary judgment on Tuesday vacating a time-in-service requirement for non-citizens who qualify for US citizenship based on their service in the US military.

On October 13, 2017, the US Department of Defense (DOD) adopted a policy requiring non-citizen service members to meet certain Minimum Service Requirements, including time-in-service and active duty status, before they could obtain a Certification of Honorable Service (N-426) Form required as part of the naturalization application. The court found that the Minimum Service Requirements were arbitrary and capricious under the Administrative Procedure Act and contrary to law.

Non-citizens serving in the US military during designated periods of hostilities can apply for expedited naturalization. The US has been in a designated period of hostility since President George W. Bush declared the War on Terrorism after the September 11, 2001, attacks. The Immigration and Nationality Act requires applicants to establish that they have “served honorably in the Armed Forces of the United States as Selected Reserve of the Ready Reserve or in an active duty status in the Armed Forces of the United States.” If they are separated from the Armed Forces for other than honorable conditions before the person has served honorably for five years, their citizenship may be revoked.

The court argued that the DOS plays no role in deciding whether to grant an application for naturalization based on military service. Their role is to certify that an applicant has “served honorably.” Prior to the 2017 policy, the DOD had no policy for completing the required Certification of Honorable Service Form. The new requirements, along with other changes implemented to training schedules, caused considerable delays, sometimes amounting to years.

The court held that the “DOD [is prohibited] from considering anything beyond an enlistee’s past service record in determining whether he or she has served honorably, but upon receipt of a request to certify an N-426 by a non-citizen who has satisfied one day of qualifying service, DOD must make the required determination.”

This is not the first time the courts have ruled against DOD’s treatment of non-citizen recruits. In 2017 the DC District Court ruled that this same policy caused unlawful delays in the certification of N-426 Forms for non-citizens recruited under the Military Accessions Vital to National Interest program.