SAN FRANCISCO — For more than two centuries, immigrants have played a vital role in the U.S. military, fighting and sometimes dying for their adopted country. But the Trump administration has turned its back on history by barring lawful permanent residents from serving in the military indefinitely.
Today, the American Civil Liberties Union Foundation of Southern California, the American Civil Liberties Union Foundation of 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.
"Lawful permanent residents who enlist in the U.S. military are entitled to the same rights and procedures that govern U.S. citizens who enlist," said Peter Wald, partner with Latham & Watkins. "These individuals have already undergone — and passed — detailed background checks to gain status as lawful permanent residents, and arbitrarily to delay the start of their service burdens not only the freedoms afforded to them by U.S. law, but diminishes the strength of our armed forces."
The named plaintiffs in the lawsuit, both of whom have lawful permanent resident status in the U.S., are Jiahao Kuang of San Leandro, California and Deron Cooke of Trenton, New Jersey. They were allowed to enlist — Kuang in the Navy and Cooke in the Air Force — last year, but have not been given any indication when or if they’ll be permitted to serve.
"Barring green card holders from the military is just one of many of the Trump administration’s harmful and counterproductive anti-immigrant policies,” said ACLU SoCal Staff Attorney Sameer Ahmed. "There is no justification for discriminating against individuals who want to risk their lives for this country simply because of their immigration status."
The Trump administration policy prevents individuals who could be valuable assets to the military from serving, even though the military itself recognizes that this could worsen recruiting shortfalls and compromise national security. Studies show that lawful permanent residents are highly qualified and have lower attrition rates than citizen enlistees. Many also speak a second language other than English.
Kuang was brought to the U.S. from China when he was eight years old. He graduated high school with a 3.8 GPA and not only taught himself computer coding, he also founded his high school's first coding club, created educational software programs for his teachers, and helped organize a coding event for all high schools in the Bay Area.
Cooke immigrated from Jamaica in 2015 in search of a better life. Inspired by his family's history of public service — his father was a police officer and his uncle a U.S. Air Force pilot — he enlisted and signed a contract to be an auto mechanic.
But because of this policy, their lives are in limbo. They can't make long-term commitments to jobs or enroll in colleges because they could still possibly join the military at any moment.
"I recently graduated from high school and want to join the U.S. Navy as soon as possible because I want to serve my adopted country," said Kuang. "But now I do not know what to do. I cannot even go to college this fall because I didn't apply with the expectation that I would join the Navy after I had signed my enlistment contract."
In the past, the military itself has recognized the contributions of non-citizen enlistees.
In the aftermath of the 9/11 attack, for example, President George W. Bush issued an executive order providing an expedited path to U.S. citizenship for non-citizens serving in the armed services to incentivize enlistment.
Now, the Department of Defense is discriminating against non-citizen enlistees and preventing them from serving and protecting their adopted country in the U.S. military.
The lawsuit asks that the October 2017 memo be rescinded and declared unlawful.