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San Francisco — A federal court issued a ruling on Friday that halts a Trump administration policy that blocked hundreds of lawful permanent residents from serving in the U.S. military.
Judge Jon S. Tigar granted a preliminary injunction, holding that the Department of Defense likely violated the federal Administrative Procedure Act after it implemented a policy discriminating against lawful permanent resident enlistees.
Tigar’s ruling finds that the Defense Department provided no rational justification for the policy change, stating that it provided no evidence indicating that lawful permanent resident enlistees posed more of a risk than U.S. citizens.
“The ruling serves yet another blow to the administration’s anti-immigrant agenda,” said Sameer Ahmed, an attorney with the ACLU Foundation of Southern California. “This decision affirms that there is no justification for discriminating against individuals who want to risk their lives for this country simply because of their immigration status.”
The ACLU Foundation of Southern California, the ACLU Foundation of Northern California, and the law firm Latham & Watkins LLP filed a class action lawsuit in U.S District Court in San Francisco in June 2018, on behalf of all lawful permanent residents who enlisted in the armed services but have not been permitted even to attend basic training.
“We are very pleased with the court’s decision to grant the preliminary injunction,” said Peter Wald, partner with Latham & Watkins. “This ruling represents an important step in assuring that lawful permanent residents who enlist in the U.S. military enjoy the same rights to serve their country as U.S. nationals.”
The policy, set forth in an October 2017 memo by the Department of Defense, ended the long-standing practice of treating lawful permanent resident enlistees the same as U.S. citizens, who are permitted to begin serving in the military as soon as they meet initial entry qualifications. Normally, more extensive background checks are completed after the enlistee ships out to basic training. But the memo says that lawful permanent residents, 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 has amounted to an outright and indeterminate ban of lawful permanent residents, also called green-card holders, from serving in the U.S. 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 had not been given any indication when or if they would be permitted to serve.
Kuang was brought to the U.S. from China when he was 8 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 the 2017 policy, their lives were in limbo. The court’s ruling changes that.
"When I learned that my enlistment was delayed – even after signing a contract with the Navy – my hopes were dashed," said Kuang. "With this decision, I can now realize my dream and serve my country."
Read the order:
https://www.aclunc.org/docs/20181116-kuang_order_granting_pi_class.pdf
