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Case Name Nio v. United States Department of Homeland Security IM-DC-0080
Docket / Court 1:17-cv-00998 ( D.D.C. )
State/Territory District of Columbia
Case Type(s) Immigration and/or the Border
Case Summary
Note: This lawsuit challenged the Department of Homeland Security’s policy of delaying naturalization for MAVNI soldiers who had already received certification of their honorable military service.
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Note: This lawsuit challenged the Department of Homeland Security’s policy of delaying naturalization for MAVNI soldiers who had already received certification of their honorable military service.
Kirwa v. United States Department of Defense is a challenge to the Department of Defense’s failure to certify the honorable military service of MAVNI soldiers seeking expedited naturalization;
Samma v. United States Department of Defense is a similar challenge by non-MAVNI soldiers.

The Immigration and Nationality Act provides an expedited path to citizenship for foreign nationals serving in the United States military. However, in 2017, the Department of Homeland Security began (at the request of the Department of Defense) to delay soldiers’ citizenship applications until the Department of Defense could complete an additional background check. Objecting to this new policy, 10 non-citizen service members, represented by private counsel, filed this class-action lawsuit against the Department of Homeland Security, United States Citizenship and Immigration Services, and the Department of Defense. The complaint, filed May 24, 2017 in the United States District Court for the District of Columbia and assigned to Judge Ellen S. Huvelle, alleged that the Department of Homeland Security’s policy was in violation of the Administrative Procedure Act.

The plaintiffs had all joined the military through the MAVNI program (“Military Accessions Vital to the National Interest”), through which the Department of Defense enlisted non-citizen soldiers who had special medical or linguistic skills needed by the military. Under this program, which was authorized by 8 U.S.C. §1440, MAVNI soldiers qualified for an expedited pathway to U.S. citizenship; the military even contractually required MAVNI soldiers to apply for citizenship. This opportunity was a significant recruiting incentive.

When a soldier applied for expedited naturalization, the Department of Defense was required by law to certify the soldier’s honorable military service (using DHS Form N-426), after which the Department of Homeland Security would process the soldier’s naturalization application. The plaintiffs in this case had already received certification of their honorable military service; however, after issuing certification, the Department of Defense asked the Department of Homeland Security to delay the soldiers’ applications while it conducted further background checks and investigations.

When the Department of Homeland Security complied with this request, the resulting delay deprived the plaintiffs of the protections of citizenship that the statute was intended to provide for service members. The plaintiffs claimed that Congress had enacted the statute to make the naturalization process easier for soldiers, not harder, and that this enhanced background investigation process was directly contrary to congressional intent.

The plaintiffs sought a declaration that it was not lawful for the agencies to put applications on hold to conduct background checks. They sought an injunction compelling the Department of Homeland Security to promptly process applications (and to expedite applications which had already been delayed); barring the Department of Defense from further interference with the processing of applications; and prohibiting either agency from retaliating against the plaintiffs or members of the proposed class. They sought similar mandamus and Administrative Procedure Act relief. Finally, they sought attorneys’ fees and costs under the Equal Access to Justice Act.

The plaintiffs filed an amended complaint on August 4, 2017. On August 24, the court ordered the agencies to begin submitting weekly status reports.

On September 6, the court denied the plaintiffs’ motion for a preliminary injunction. Although they had demonstrated that the processing delay was causing them irreparable harm, they had failed to demonstrate a likelihood of success on the merits. Further, the plaintiffs’ irreparable harm did not outweigh the seriousness of the national security concerns presented by the agencies. 270 F. Supp. 3d 49.

On October 13, 2017, the Department of Defense further announced that it would “recall and de-certify” its honorable service certifications for service members who had not yet completed a background check. The plaintiffs filed a second amended complaint, objecting to this additional obstacle in the naturalization process.

The court granted class certification on October 27, 2017. 323 F.R.D. 28. The class consisted of MAVNI soldiers who had enlisted prior to October 13, 2017; had received an N-426 certifying their honorable service; and whose naturalization had been delayed or withheld because of the agencies’ new policies. The same day, the court granted the plaintiffs’ motion for a preliminary injunction, “for the reasons set forth in the Court’s opinion granting a preliminary injunction in Kirwa” (issued two days earlier). The injunction prevented the Department of Defense from recalling or de-certifying a soldier’s Form N-426 while awaiting the results of a background investigation.

On January 23, 2018, the court denied the agencies’ motion to dismiss. In an April 12, 2018 order, the court denied the plaintiffs’ motion for more extensive preliminary injunctive relief. The agencies were ordered to submit reports to the court every four weeks, and the case was referred to Magistrate Judge Robin M. Meriweather for further proceedings.

On June 20, 2018, the court denied another motion by the agencies for dismissal or for summary judgment. On July 16, 2018, the magistrate judge ordered the agencies to provide a redacted version of a confidential agency document that the plaintiffs sought in discovery. 314 F. Supp. 3d 238.

A year later, on May 22, 2019, the court granted partial summary judgment to the plaintiffs. Because the Department of Homeland Security’s “purported reasons” for delaying applications “[did] not comport with the evidence before the Court,” the court concluded that the policy of delay was “arbitrary and capricious in violation of the Administrative Procedure Act.” The court therefore vacated the MSSD portion of the delay policy (the MSSD was one of the key components of the background investigation). 385 F. Supp. 3d 44. In the same order, the court denied another motion by the defendants for summary judgment.

The court continued to require the agencies to provide regular reports regarding the number of naturalization applications processed and the time it took to process them.

On December 13, 2019, the case was referred to Magistrate Judge Michael Harvey for mediation.

On August 20, 2020, the court converted the preliminary injunction of October 27, 2017 into a permanent injunction. This ruling was based on the court’s May 22 decision vacating the MSSD requirement. The plaintiffs’ remaining claims were dismissed with prejudice and the case was closed; the court retained jurisdiction to enforce its orders.

Gregory Marsh - 08/29/2020


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Issues and Causes of Action
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Issues
Content of Injunction
Preliminary relief granted
Reporting
Retaliation Prohibition
Defendant-type
Jurisdiction-wide
Law-enforcement
Immigration/Border
U.S. citizenship - acquiring
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Mandamus, 28 U.S.C. § 1361
Defendant(s) United States Citizenship and Immigration Services
United States Department of Defense
United States Department of Homeland Security
Plaintiff Description A class of MAVNI soldiers who had received certification of their honorable service, but whose applications for naturalization were delayed by the Department of Homeland Security.
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Preliminary injunction / Temp. restraining order
Declaratory Judgment
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Filed 05/24/2017
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Nio Documents
https://dcfederalcourtmavniclasslitigation.org/
Date: Jul. 27, 2020
By: MAVNI Federal Class Action Litigation
[ Detail ] [ External Link ]

Docket(s)
1:17-cv-00998 (D.D.C.)
IM-DC-0080-9000.pdf | Detail
Date: 08/20/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Compaint [ECF# 1]
IM-DC-0080-0001.pdf | Detail
Date: 05/24/2017
Source: PACER [Public Access to Court Electronic Records]
Second Amended Class Action Complaint and Prayer and Prayer for Declaratory, Temporary, Preliminary and Permanent Injunctive, Administrative Procedure Act, and Mandamus Relief [ECF# 61]
IM-DC-0080-0002.pdf | Detail
Date: 10/20/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 73] (D.D.C.)
IM-DC-0080-0003.pdf | Detail
Date: 10/27/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 167] (D.D.C.)
IM-DC-0080-0004.pdf | Detail
Date: 07/16/2018
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinon and Order [ECF# 240] (D.D.C.)
IM-DC-0080-0005.pdf | Detail
Date: 03/04/2019
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 249] (385 F.Supp.3d 44) (D.D.C.)
IM-DC-0080-0006.pdf | WESTLAW| LEXIS | Detail
Date: 04/22/2019
Source: PACER [Public Access to Court Electronic Records]
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Judges Huvelle, Ellen Segal (D.D.C.) show/hide docs
IM-DC-0080-0003 | IM-DC-0080-0005 | IM-DC-0080-0006 | IM-DC-0080-9000
Meriweather, Robin Michelle Court not on record show/hide docs
IM-DC-0080-0004 | IM-DC-0080-9000
Plaintiff's Lawyers Baruch, Douglas W. (District of Columbia) show/hide docs
IM-DC-0080-0001 | IM-DC-0080-0002 | IM-DC-0080-9000
Beary, Webster R.M (District of Columbia) show/hide docs
IM-DC-0080-0001 | IM-DC-0080-0002
Gates, Shaun A (District of Columbia) show/hide docs
IM-DC-0080-0001 | IM-DC-0080-0002
Kaplan, Kayla M.S. (District of Columbia) show/hide docs
IM-DC-0080-9000
LoBue, Joseph J. (District of Columbia) show/hide docs
IM-DC-0080-0001 | IM-DC-0080-0002 | IM-DC-0080-9000
Perez, Elianis N. (District of Columbia) show/hide docs
IM-DC-0080-9000
Raol, Neaha P (District of Columbia) show/hide docs
IM-DC-0080-0001 | IM-DC-0080-0002 | IM-DC-0080-9000
St. Romain, Katherine L (District of Columbia) show/hide docs
IM-DC-0080-0001 | IM-DC-0080-0002
Wollenberg, Jennifer M (District of Columbia) show/hide docs
IM-DC-0080-0001 | IM-DC-0080-0002 | IM-DC-0080-9000
Defendant's Lawyers Adebonojo, Kenneth (District of Columbia) show/hide docs
IM-DC-0080-9000
Kisor, Colin A. (District of Columbia) show/hide docs
IM-DC-0080-9000
Sheffield, Carlton F. (District of Columbia) show/hide docs
IM-DC-0080-9000
Vuong, Sarah Lake (District of Columbia) show/hide docs
IM-DC-0080-9000

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