MILITARY Noncitizens lose screening ruling
A federal appeals court is allowing President Trump’s Defense Department to reinstate its rule that required thousands of greencard holders who have enlisted in the armed forces to undergo lengthy background checks before reporting for duty, saying courts lack authority to review such military decisions.
The government conducts background checks on all enlistees to confirm their eligibility and determine whether they pose any security risks. The Defense Department’s October 2017 order barred greencard holders — immigrants who have been granted legal U.S. residence but are not yet citizens — from basic training until the investigations are completed.
Lawyers said the wait can last many months and sometimes more than a year. The Washington Post said a Navy report last year showed the average waiting period from the time of enlistment to reporting had increased to 354 days for naval recruits who were noncitizens, compared to 168 days for U.S. citizens.
About 5,000 greencard holders join the armed forces each year.
U.S. District Judge Jon Tigar of San Francisco halted the new rule last November. He said the government had not given any reasonable explanation for its action or presented any evidence that noncitizens pose any greater risk than U.S. citizens in the military.
But the Ninth U.S. Circuit Court of Appeals said Tuesday that the Defense Department had reasons for treating noncitizens differently.
Guidelines by the U.S. director of national intelligence instruct government screeners for positions affecting national security “to consider recruits’ allegiance to the United States, foreign influence and foreign preference,” the court said in a 30 ruling. It said a 2017 Defense Department study “identified several difficulties in screening (noncitizen) recruits that did not occur when screening citizens,” justifying a delay in their initial military placement.
The court did not identify those difficulties. But it said that “military decisions about national security and personnel are inherently sensitive and generally reserved to military discretion,” and that the Defense Department’s “assertions about national security risks are not farfetched.”
The ruling was issued by Judges Ronald Gould and Sandra Ikuta and U.S. District Judge Benita Pearson of Ohio, temporarily assigned to the appeals court.
American Civil Liberties Union attorney Sameer Ahmed, representing two greencard holders who challenged the new rule, said Wednesday he disagreed with the court’s conclusion that a policy that “discriminates categorically” based on citizenship status is largely immune from judicial review.
“The government submitted no data to actually demonstrate that (legal residents) were less loyal or have less allegiance to the United States than U.S. citizens,” Ahmed said.
The lead plaintiff, Jiahao Kuang of San Leandro, emigrated from China with his family when he was 8, taught himself computer coding and created educational software for his teachers in high school, the ACLU said. He enlisted in the Navy in 2017, putting his college plans on hold, but his reporting date was delayed until Tigar’s November 2018 ruling.
Ahmed said Kuang is now in the Navy and shouldn’t be affected by Tuesday’s ruling. But he said the plaintiffs would consider asking the full appeals court for a new hearing.
The Defense Department did not respond to a request for comment.