Immigrants & the Military

Immigrants & the Military Angie Junck Margaret D. Stock

Agenda • Selective Service • Enlistment • Naturalization Process • Naturalization-Related Issues • Immigration impact of military discharges and courts-martial • Loss of Citizenship • Military-related Legislation • DREAM Act • HR 6020

Selective Service “. . . it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who . . . is between the ages of eighteen and twenty-six . . . The provisions of this section shall not be applicable to any alien lawfully admitted to the United States as a non-immigrant . . . for so long as he continues to maintain a lawful nonimmigrant status . . . .”

Military Enlistment • 10 USC §504 • US citizens, U.S. nationals, lawful permanent residents (including conditional residents) • Citizens of Micronesia, Palau, Marshall Islands • Others whose enlistment is “vital to the national interest” as determined by a Service Secretary

MAVNI • DOD-wide enlistment pilot program ends Dec 09 • 1000 cap: 890 Army, 100 Navy, 10 Air Force • 333 health care providers + 667 language enlistees • Legally present persons only • Expedited citizenship (INA §329) • www.defenselink.mil/news/mavni-factsheet.pdf

Expedited Citizenship for Those in the Military • Many requirements for citizenship are reduced or waived for a member of the U.S. armed forces or those already discharged from the service • No fees • Revocable unless 5 years of honorable service • Naturalization @ Army Basic Combat Training • In FY 2008, there were 6,356 military naturalizations in the U.S. and 1,509 overseas.

Wartime Military Naturalization • Green card (Lawful Permanent Resident) status not required • No minimum period of military service • Active duty or Selected Reserve (National Guard) • Specified wartime periods only • No physical presence or continuous residence required • Must show good moral character • Can naturalize in removal proceedings

Peacetime Military Naturalization • Served honorably in the military for at least one year (need not be continuous) --active or reserve status in U.S. Army, Navy, Marines, Air Force, or Coast Guard • Lawful Permanent Resident at the time of examination • Filed an application while still in the service or within 6 months of separation • Good moral character

Good Moral Character • No actual statutory definition • Statute only defines what good moral character does not mean and who will not be allowed to establish good moral character • Many criminal convictions can bar showing good moral character

Danger with Good Moral Character • With an aggravated felony conviction (defined broadly to include non-violent misdemeanors) and certain other criminal convictions, a person is not barred from joining the military, but will be denied naturalization and even worse, will be deportable • Not placed into deportation proceedings until discharged from the military (Forman memo)

Permanent Ineligibility to Naturalize • Deserters and draft dodgers if occurred when U.S. at war and conviction by court martial or other court • Person who applied for and received certain exemptions from compulsory, but not voluntary U.S. military service, based on being an alien

Military Discharges • Honorable discharge • General discharge under honorable conditions • Other than honorable discharge • Bad conduct discharge • Dishonorable discharge

Discharges and Immigration Consequences • Type of discharge • Whether discharge shows • Lack of good moral character • Criminal conviction • Reason for discharge • Alienage • Conscientious objector

Types of Courts-Martial • Summary court-martial • Special court-martial • Bad conduct discharge special court-martial • General court-martial

Impact of Participating in Protests • First Amendment rights of servicemembers • Uniform Code of Military Justice provisions • Officers v. enlisted • Violations of military regulations • See handout • Potential immigration impact

Deportation of Veterans • Noncitizens, including long time lawful permanent residents who served in the military, can be deported for violation of immigration laws - See, e.g., Lopez v. Henley, ___ F.3d ___ (5th Cir. July 12, 2005) (noncitizen was properly deported because his federal conviction for attempting to possess a controlled substance barred him from showing good moral character for purposes of obtaining naturalized United States citizenship, despite the noncitizen's active service in the United States military during the Vietnam War)

Deportation of Those Formerly in the Military • Most criminal deportation grounds of immigration law require a conviction as defined by immigration law.

Deportation of Those Formerly in the Military • Some authorities appear to assume without analysis of the definition of conviction, that a court martial finding of guilt of an offense under military law constitutes a conviction for immigration purposes. • However, summary court martial and convictions under minor military informal procedures, with “non-judicial” punishment are arguably not convictions for purposes of immigration law.

Deportation of Those Formerly in the Military • Prosecutorial & Judicial Discretion - Honorable military service is considered an equity in deportation proceedings

DREAM Act: Legalization for Undocumented Students • DREAM = Development, Relief, and Education for Minors Act • Since 2002, the DREAM Act has been introduced into Congress as a means of legalizing undocumented students in the U.S. who have been here since their infancy, grew up and attended school here, and stayed out of trouble

DREAM Act • DREAM Act was re-introduced in March 29, 2009 in the Senate as S. 729; under “American Dream Act,” as H.R. 1751 on March 26, 2009 in the House The requirements, which have not been finalized, are: • Must be between the ages of 12 and 25 at the time of enactment • Must have arrived in the United States before the age of 16 • Must have resided continuously in the United States for at least five (5) consecutive years since the date of arrival • Must have graduated from a U.S. High School, or obtained a General Education Diploma • Must have "Good moral character"

DREAM Act • Students will be issued conditional (temporary) residency for six years • Within the six year conditional residency period, a qualified student must attend college and earn at least a two year degree (AA), or serve honorably in the U.S. uniformed services for two years • Once the immigrant has met all of the conditions at the end of the period, he/she may file a petition to lift the conditions and obtain lawful permanent residence • When that petition is approved, he/she may file for US citizenship, if eligible

Current Status of DREAM Act • 5/14/2009 Referred to House subcommittee

HR 6020 (José Gutierrez Act) • Expanded naturalization eligibility • Extended time to apply • Codifies the Forman memo • Restores discretion in removal proceedings • Immigration relief for military families

Questions?

Immigrants & the Military