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Case Name Kirwa v. United States Department of Defense IM-DC-0079
Docket / Court 1:17-cv-01793 ( D.D.C. )
State/Territory District of Columbia
Case Type(s) Immigration and/or the Border
Case Summary
Note: This lawsuit is a challenge to the Department of Defense’s failure to certify the honorable military service of MAVNI soldiers seeking expedited naturalization under the Immigration and Naturalization Act.
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Note: This lawsuit is a challenge to the Department of Defense’s failure to certify the honorable military service of MAVNI soldiers seeking expedited naturalization under the Immigration and Naturalization Act.
Samma v. United States Department of Defense is a similar challenge brought by non-MAVNI soldiers who qualify for expedited naturalization under the same statute.
Nio v. United States Department of Homeland Security challenges the Department of Homeland Security’s consideration and adjudication of applications following certification of honorable military service.



The Immigration and Nationality Act provides an expedited path to citizenship for non-citizens serving in the United States military, but in 2016, the Obama Department of Defense implemented a new internal policy adding substantive and procedural requirements. Objecting to new policy, three non-citizen service members, represented by private counsel, filed this class-action lawsuit against the Department of Defense. The complaint, filed on September 1, 2017 in the United States District Court for the District of Columbia and assigned to Judge Ellen S. Huvelle, alleged that the Department’s policy violated the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act, and the Immigration and Nationality Act. The plaintiffs sought a declaration that the Department’s new requirements were unlawful; an injunction barring the Department from implementing the 2016 policy; and mandamus and APA relief compelling the Department to promptly process naturalization paperwork without adding extra-statutory requirements. They also sought to bar the Department from retaliation against soldiers participating in the lawsuit, and from discharging a soldier in order to avoid certifying her honorable service. Finally, they sought attorneys’ fees and costs.

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 Department even contractually required MAVNI soldiers to apply for citizenship. This opportunity was a significant recruiting incentive.

As part of the expedited naturalization process, the Department of Defense was required to certify to the Department of Homeland Security that an applicant’s military service had been honorable; DHS created Form N-426 for this certification. The statute did not specify a particular duration of service; it simply required a soldier’s service to be honorable. DHS regulations confirmed that a soldier could be eligible for expedited naturalization after one day of military service.

Contrary to the express language of the statute, the 2016 policy indicated that the Department would not certify a soldier’s honorable service unless she had served in active-duty status. The policy also restricted the pool of military officials authorized to sign the certification.

The plaintiffs’ certification requests had been denied or delayed because of the new policy. They alleged that the delay in naturalization deprived them of the protections that the statute was intended to provide, including access to United States consular services while deployed overseas, work and school authorization and benefits, and ability to sponsor family members.

On October 25, 2017, the court granted a preliminary injunction, requiring that the Department “use its best efforts” to complete each N-426 form within 2 days of receiving it. 285 F. Supp. 3d 21. The order provisionally certified a class for purposes of the preliminary injunction, comprising MAVNI recruits who had enlisted prior to October 13, 2017. Two days later, the Department sought an administrative stay of one week, to allow time for the Solicitor General to decide whether to appeal the order; the court denied that motion the same day. The court’s order clarified that any application which had previously been returned to its applicant would have to be re-submitted in order to be certified.

The plaintiffs filed an amended complaint on November 3, 2017. On November 15, they moved to enforce the preliminary injunction, alleging that the Department was not complying with the court’s order: it was not promptly completing N-426 forms, it had “imposed new administrative pre-conditions for issuance of N-426 forms,” and it had not informed unit commanders or class members of the requirements of the preliminary injunction.

The same week, the Department moved for dismissal or for summary judgment. Acknowledging that the court had already granted class certification in Nio, the Department did not oppose the plaintiffs’ class certification motion in this case. It did, however, seek to limit the class to include only those who qualified as of the date of class certification. When the court granted certification on December 1, 2017, it specified no cut-off date for class membership; it simply specified MAVNI soldiers who had not received a duly authenticated N-426.

On December 15, 2017, the court ordered the Department to submit regular status reports. (This order was eventually vacated in June 2020.)

On January 11, 2018, the court dismissed the plaintiffs’ substantive due process claim, but denied the Department’s motion to dismiss (or grant summary judgment on) the remainder of the plaintiffs’ claims. 285 F. Supp. 3d 257. On May 23, the court denied the Department’s motion to reconsider. 315 F. Supp. 3d 266. The case was referred to Magistrate Judge Michael Harvey for mediation in December 2019; as of August 2020, negotiations continue.

Gregory Marsh - 08/28/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process: Substantive Due Process
Content of Injunction
Preliminary relief granted
Reporting
Defendant-type
Jurisdiction-wide
Immigration/Border
Constitutional rights
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 Department of Defense
Plaintiff Description Non-citizen soldiers in the U.S. military seeking naturalization through the Military Accessions Vital to the National Interest (“MAVNI”) program.
Class action status sought Yes
Class action status outcome Granted
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
Filed 09/01/2017
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)
  Resources Related to DOD’s Tightening of Rules and Discharges of Immigrants from the Military
American Immigration Lawyers Association
Date: Jul. 24, 2020
By: American Immigration Lawyers Association
[ Detail ] [ External Link ]

  Kirwa, et al. v. United States Department of Defense, et al., Civil Action No. 17-1793
MAVNI Federal Class Action Litigation
Date: May 31, 2019
By: MAVNI Federal Class Action Litigation
[ Detail ] [ External Link ]

Court Docket(s)
D.D.C.
08/07/2020
17-cv-01793
IM-DC-0079-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D.D.C.
09/01/2017
Complaint and Prayer for Declaratory, Preliminary and Permanent Injunctive, Administrative Procedure Act, and Mandamus Brief [ECF# 1]
IM-DC-0079-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
10/25/2017
Order [ECF# 28]
IM-DC-0079-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
10/25/2017
Memorandum Opinion [ECF# 29] (285 F.Supp.3d 21)
IM-DC-0079-0003.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
10/27/2017
Amended Order [ECF# 32]
IM-DC-0079-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
11/03/2017
Amended Complaint [ECF# 33]
IM-DC-0079-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
11/16/2017
Order [ECF# 37]
IM-DC-0079-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
12/01/2017
Memorandum Opinion [ECF# 47]
IM-DC-0079-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
01/11/2018
Memorandum Opinion [ECF# 60] (285 F.Supp.3d 257)
IM-DC-0079-0008.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
05/23/2018
Memorandum Opinion and Order [ECF# 92] (2018 WL 7141989)
IM-DC-0079-0009.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
05/23/2018
Memorandum Opinion and Order [ECF# 93] (315 F.Supp.3d 266)
IM-DC-0079-0010.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Harvey, G. Michael (D.D.C.) [Magistrate] show/hide docs
IM-DC-0079-9000
Huvelle, Ellen Segal (D.D.C.) show/hide docs
IM-DC-0079-0002 | IM-DC-0079-0003 | IM-DC-0079-0004 | IM-DC-0079-0006 | IM-DC-0079-0007 | IM-DC-0079-0008 | IM-DC-0079-0009 | IM-DC-0079-0010 | IM-DC-0079-9000
Plaintiff's Lawyers Baruch, Douglas W. (District of Columbia) show/hide docs
IM-DC-0079-0001 | IM-DC-0079-0005 | IM-DC-0079-9000
Beary, Webster R.M (District of Columbia) show/hide docs
IM-DC-0079-0001 | IM-DC-0079-0005
Gates, Shaun A (District of Columbia) show/hide docs
IM-DC-0079-0001 | IM-DC-0079-0005
Kaplan, Kayla M.S. (District of Columbia) show/hide docs
IM-DC-0079-9000
Lobue, Joseph W. (District of Columbia) show/hide docs
IM-DC-0079-0001 | IM-DC-0079-0005
Raol, Neaha P (District of Columbia) show/hide docs
IM-DC-0079-0001 | IM-DC-0079-0005 | IM-DC-0079-9000
St. Romain, Katherine L (District of Columbia) show/hide docs
IM-DC-0079-0001 | IM-DC-0079-0005
Wollenberg, Jennifer M (District of Columbia) show/hide docs
IM-DC-0079-0001 | IM-DC-0079-0005 | IM-DC-0079-9000
Defendant's Lawyers Dugan, Joseph C. (District of Columbia) show/hide docs
IM-DC-0079-9000
Holland, Liam (District of Columbia) show/hide docs
IM-DC-0079-9000
Knapp, Michael Fraser (District of Columbia) show/hide docs
IM-DC-0079-9000
Mauler, Daniel (District of Columbia) show/hide docs
IM-DC-0079-9000
Swinton, Nathan Michael (District of Columbia) show/hide docs
IM-DC-0079-9000

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