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2 orders accuse military of discriminating against non-citizens

On Behalf of | Feb 4, 2019 | Employee Discrimination

One order from a U.S. District Court judge and another from a 9th Circuit appeals panel both say that certain Trump administration policies unlawfully discriminate against foreign-born military personnel.

In one, a district judge ordered the military to stop requiring “continuous monitoring” of foreign-born personnel based solely on their national origin. In the other, the appeals court upheld a lower court order saying that foreign-born soldiers could not proceed to basic training with their classes.

In neither case did the administration provide any real evidence that foreign-born military service members pose a greater security risk than U.S.-born service members.

Naturalized citizens from MAVNI program claim illegal profiling by military

The Military Accessions Vital to the National Interest (MAVNI) program was started in 2009 as an effort to recruit immigrants with critical medical or foreign language skills into the military. In exchange for their service, they received a fast track to U.S. citizenship. Over 10,000 immigrants joined the program before it was frozen in 2016 by the Trump administration.

Seventeen naturalized citizens who enlisted through the MAVNI program sued the Defense Department because it began requiring “continuous monitoring,” meaning a security check every two years, for foreign-born personnel but not for U.S.-born personnel. These checks continued to be required even after the foreign-born citizens left the military, if they took civilian work for the government or government contractors.

The DOD claimed that entering the U.S. military through the MAVNI program is itself suspicious, so the extra security was required for national security. However, its own witnesses testified that no one receiving citizenship through MAVNI has ever been charged with any criminal offense or been denaturalized.

The judge called the policy “flagrant profiling” and ruled that it unconstitutionally discriminated based on national origin. It is unclear if the DOD will appeal.

Non-citizens must be allowed to enter basic training without delay

The Ninth Circuit Court of Appeals upheld a district court’s order that the military cannot delay non-citizens’ entry into basic training to obtain background checks on them. In point of fact, the plaintiffs argue that not a single non-citizen has been allowed to begin basic training since the background check policy was enacted last year.

The Defense Department argued that non-citizens “have comparatively higher rates of foreign contacts and likelihood of foreign influence.” The district judge found this view to be unsupported by evidence.

“If there was no evidence that [legal permanent residents] posed a greater security risk, this policy change is by definition arbitrary and capricious,” he wrote. Government policies may not legally be arbitrary and capricious.

The appeals court’s order discontinues the policy while the DOD appeals to the U.S. Supreme Court.


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