By Catherine Park
Answer: Whether the noncitizen serves in the U.S. military during a time of war, or a time of peace, could make a difference.
Extended Answer: Bridge- and temporary options to regularize immigration status for immediate family members of qualifying noncitizen servicemembers are available, as well.
The Department of Homeland Security (DHS) and the Department of Justice (DOJ) have been known to exercise prosecutorial discretion. See blog post (April 13, 2022), Civil Immigration Enforcement Priorities. The armed forces of the United States also possess discretionary authority, up to and including support for naturalization of noncitizen servicemembers and former servicemembers, living or deceased, who were separated under honorable conditions, in some circumstances even if the servicemember is undocumented, entered the U.S. unlawfully, and/or enlisted in the U.S. military by showing counterfeit (or legally insufficient) documentation of legal status.
Case-in-point: Juan Escalante, who was a 19-year-old undocumented noncitizen and recent high-school graduate in 2002, purchased a false “green card” for $50 and breezed through the U.S. Army recruiting checkpoint. After basic training, he ended up as a mechanic with the infantry division that led the attack on Baghdad during the war in Iraq (“Operation Enduring Freedom”). (At the time, his undocumented parents were in removal proceedings at the Board of Immigration Appeals.). And the rest is history (quite literally, recorded in military history), as President Bush awarded the division a “Presidential Unit Citation” for demonstrating “extraordinary heroism in action against an armed enemy … such gallantry, determination, and esprit de corps in accomplishing its mission under extremely difficult and hazardous conditions as to set it apart and above other units participating in the same campaign.” Despite the Army’s concern that allowing Pvt. Escalante to remain in the service could send the wrong message–perhaps encouraging budding terrorists to enlist and then train for combat within America’s military machine–the leadership decided to support Pvt. Escalante’s continued service and bid for citizenship. Sources: When Your Client Fights for Uncle Sam: “No Card” Soldiers and Expedited Citizenship, 8 Bender’s Immigration Bulletin 1889 (2003) (internal citations omitted) (author of article is an unnamed Assistant Professor, Department of Law, U.S. Military Academy, West Point, N.Y.); A Matter of Loyalty, Newsweek, November 2, 2003.
As discussed by the unnamed Assistant Professor in the Department of Law at West Point:
The Army could [have] perhaps administratively discharge[d] [Private Escalante], but the Army [was] not required to do so; such a discharge [was] discretionary with Private Escalante’s commander. In Private Escalante’s favor, the military does have a long history of overlooking fraudulent enlistment problems when soldiers have served honorably and have proved their worth in battle. (Footnote: For example, many people over the years have lied about their age to get into the military. Some have used an older brother’s birth certificate. The military does not always prosecute such persons for “fraudulent enlistment,” and many have gone on to serve their country honorably. A good example is former U.S. Senator Mike Mansfield, now deceased, who lied about his age in order to get into the Navy and fight in World War I (he was 14 when he enlisted). He subsequently served in the Army and Marine Corps. See Christopher Thorne, Mike Mansfield: Eighth-Grade Dropout Who Became Longest-Serving Senate Leader, Dead At 98, Associated Press, Oct. 5, 2001).
8 Bender’s Immigration Bulletin 1889 (2003).
In 2004, Pvt. Juan Escalante became a U.S. citizen. Source: F. Davila, Army private receives new rank: U.S. citizen, Seattle Times, February 12, 2004.
Sections 328 and 329 of the Immigration and Nationality Act (INA) provide the statutory authority for naturalization of noncitizen servicemembers who served honorably (whether living or deceased).
INA § 328, 8 U.S.C. § 1439, provides for expedited naturalization of servicemembers who are (1) already lawful permanent residents; (2) served in the aggregate for at least one year; (3) were never separated from the service except under honorable conditions; and (4) during time periods when not in the service, can prove that, for the five years immediately preceding the naturalization petition (between any time periods of service), they resided continuously in the U.S. or in the district or state of service, demonstrated good moral character and “attachment to the principles of the United States Constitution and favorable disposition toward the good order and happiness of the United States.”
A naturalization petition under § 328 must be filed within six months of separation from the service. But if filed beyond the six-month period, the noncitizen must additionally meet the residence requirements for naturalization under INA § 316(a), 8 U.S.C. § 1427(a), which requires lawful permanent residence, at least five years of residence in the U.S. (and physical presence for at least half that time immediately preceding filing of the petition), at least three months of residence in the state or district of service where the application is filed, continuous residence in the U.S. after filing the petition and up to the time of becoming a citizen, and, during all of the aforementioned time periods, show that they have been and still are of good moral character, attached to the principles of the U.S. Constitution, and of favorable disposition toward the good order and happiness of the United States.
A servicemember can naturalize under § 328 while in the service. Citizenship under § 328 can be revoked if, for example, a separation under less than honorable conditions occurs before five years of aggregated service.
INA § 329, 8 U.S.C. § 1440, goes much further than § 328 by authorizing naturalization regardless of whether the noncitizen servicemember was ever in lawful immigration status, so long as the noncitizen served during a designated period of war (which currently includes World War I, World War II, Korean conflict, Vietnam conflict, Persian Gulf conflict, and Iraq War) and was separated under honorable conditions. A servicemember separated on account of alienage or a conscientious objector who refused to wear the uniform is not deemed to have served honorably or separated under honorable conditions for purposes of § 329. Qualifying noncitizens may naturalize regardless of age and even if they are removable under the civil immigration laws. Citizenship under § 329 is revokable if, for example, a separation under less than honorable conditions occurs before five years of aggregated service.
Although not expressly mentioned in § 329, incorporation of the “good moral character” requirement of INA § 316(a) into § 329 has been upheld. See, e.g., Nolan v. Holmes, 334 F.3d 189 (2d Cir. 2003); Lopez v. Henley, 416 F.3d 455 (5th Cir. 2005); O’Sullivan v. U.S. Citizenship & Immigration Servs., 372 F. Supp. 2d 1097 (N.D. Ill. 2005), aff’d, 453 F.3d 809 (7th Cir. 2006); United States v. Carriles, 541 F.3d 344 (5th Cir. 2008), cert. denied, 556 U.S. 1130 (2009); In re Suey Chin, 173 F. Supp. 510 (S.D.N.Y. 1959) (D.N.Y. 1959); In re Brodie, 394 F. Supp. 1208 (D. Or. 1975); Boatswain v. Ashcroft, 267 F. Supp. 2d 377 (E.D.N.Y. 2003), aff’d, 414 F.3d 413 (2d Cir. 2005); Cacho v. Ashcroft, 403 F. Supp. 2d 991 (D. Haw. 2004); Moore v. James, 770 F. Supp. 2d 786 (E.D. Va. 2011); Lawson v. U.S. Citizenship & Immigration Servs., 795 F. Supp. 2d 283 (S.D.N.Y. 2011).
What about family members of noncitizens who served honorably in the U.S. military?
The current policy of U.S. Immigration and Customs Enforcement (ICE) is to consider a noncitizen’s honorable military service as a significant mitigating factor if the noncitizen violates the immigration laws. See ICE Directive 10039.2 (May 23, 2022). This prosecutorial discretion extends to immediate family members. A noncitizen who is the spouse, parent, son, or daughter of an active-duty or honorably discharged servicemember, living or deceased, may receive consideration for prosecutorial non-enforcement on account of the immediate family member’s U.S. military service.
ICE has been known to remove noncitizens from the U.S., only to backtrack when they learn of the removed noncitizen’s U.S. military service, or service by an immediate family member. Source: D. Gonzalez, U.S. deports spouse of fallen soldier, quickly reverses decision, azcentral.com, April 15, 2019.
Servicemembers could enlist without knowing that they are already U.S. citizens. For example, if a parent naturalizes before a child turns eighteen, the child automatically obtains citizenship. Such servicemembers need only apply for a “Certificate of Citizenship” but oftentimes use an (expired) green card for identification and erroneously declare themselves to be out of lawful status. Source: K.S. Mautino, et al., Path to Citizenship: Undocumented Veterans Who Served Honorably May Still Be Eligible for Citizenship, 18-4 Bender’s Immigration Bulletin (2013).
The ICE Directive instructs officers and agents to affirmatively ask noncitizens whether they have U.S. military service, or an immediate family member with U.S. military service, and investigate positive claims. Under the ICE Directive, no removal proceedings (or other enforcement actions) should be brought against noncitizens who are eligible for naturalization under INA §§ 328 or 329, unless there are significant aggravating factors (such as criminal violations). Agents and officers, in consultation with the Office of the Principal Legal Advisor (OPLA), should complete a memorandum before taking any enforcement action against a noncitizen with U.S. military service, as well as a citizenship memorandum analyzing whether the noncitizen is eligible for citizenship under INA §§ 328 or 329 or any other ground where probative evidence of citizenship eligibility exists.
For immediate family members, ICE must also reasonably make efforts to verify any claims of an immediate relative on active duty or deployment. ICE must also “facilitate such efforts to the greatest extent practicable where the noncitizen is detained.”
DISCLAIMER: The opinions expressed herein are for informational purposes only and might not be applicable to your case or circumstances. If you need legal advice about a specific matter, consult an attorney.