The ACLU Foundations of Southern and Northern California and law firm Latham & Watkins LLP filed a class action lawsuit in U.S. District Court in San Francisco on behalf of all lawful permanent residents who enlisted in the armed services but have not been permitted even to attend basic training.

The new policy, set forth in an October 2017 memo by the Department of Defense, ended the long-standing practice of treating non-citizen enlistees the same as U.S. citizens, who are permitted to begin serving in the military as soon as they meet basic qualifications. Normally, more extensive background checks are done after the enlistee ships out to basic training. But the memo says that non-citizens, though permanently residing in the country, must undergo unspecified background investigations before beginning to serve, for however long that takes.

The vague memo neither gives adequate justification for the change in policy, nor explains what the investigations entail and how long they will take. In practice, it amounts to an outright and indeterminate ban of lawful permanent residents, also called green card holders, from serving in the U.S. Armed Forces.

The lawsuit, against the Department of Defense and Secretary of Defense James Mattis, charges that this policy change violates not only the federal Administrative Procedure Act, but also the due process and equal protection guarantees of the Fifth Amendment to the U.S. Constitution.

Case Developments

June 21, 2018
Complaint filed.