Naturalizing through military service: who decides?

• Author: Christopher Clifton
• Position: J.D. Candidate, 2022, Georgetown University Law Center; M.B.A., 2019, New York University Stern School of Business; B.S. Operations Research and Computer Analysis, 2013, U.S. Coast Guard Academy
• Pages: 1061-1086

NATURALIZING THROUGH MILITARY SERVICE:

WHO DECIDES?

CHRISTOPHER CLIFTON*

ABSTRACT

Congress enacted 8 U.S.C. § 1440 to provide noncitizens serving in the

U.S. armed forces with an expedited path to naturalization during periods of

hostility. Congress expressly required the executive to make two threshold

determinations before a military member can be considered for naturaliza-

tion under this statute. First, the executive must certify that an applicant has

“served honorably.” Second, the President must designate by executive order

that the armed forces are “engaged in military operations involving armed

conflict with a hostile foreign force.” Since the War on Terrorism began in

2001, the military had authorized any noncitizen serving in the military to

qualify for expedited naturalization by certifying their service as “honora-

ble” after just one day in the military. However, in 2017, the Trump adminis-

tration implemented new regulations that required noncitizens to serve for at

least six months prior to the military certifying their service as “honorable.”

This policy spurred a number of legal challenges, creating a court split over

the justiciability of the executive’s determination of “honorable service.”

This court split not only renews critical questions on the scope of judicial

review over matters of military affairs, but it also provides an important pre-

view into the amount of discretion that may be afforded to the executive to

determine whether the U.S. remains in “a period of armed conflict with a hos-

tile foreign force.”

TABLE OF CONTENTS

I. INTRODUCTION ..................................... 1062

II. NATURALIZING THROUGH MILITARY SERVICE ................ 1063

* Christopher Clifton, J.D. Candidate, 2022, Georgetown University Law Center; M.B.A., 2019,

New York University Stern School of Business; B.S. Operations Research and Computer Analysis, 2013,

U.S. Coast Guard Academy. The author is a Lieutenant in the U.S. Coast Guard. The views expressed

herein are his own and do not necessarily represent the views of the Coast Guard, the Department of

Homeland Security, or any other component of the U.S. Government. © 2022, Christopher Clifton.

1061

A. Historical Statutory Framework. . . . . . . . . . . . . . . . . . . 1063

B. Modern Statutory Framework. . . . . . . . . . . . . . . . . . . . . 1064

III. JUSTICIABILITY OF MILITARY AFFAIRS . . . . . . . . . . . . . . . . . . . . . 1066

A. Scope of Statutory Authority ...................... 1067

B. The Military as a “Specialized Society”.............. 1069

C. The APA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070

IV. JUSTICIABILITY OF DETERMINING “HONORABLE SERVICE”......... 1071

A. Joining the Military as a Noncitizen. . . . . . . . . . . . . . . . . 1071

B. Legal Challenges and Court Split .................. 1072

1. D.C. District Court: Kirwa v. DoD (2017) . . . . . . . . . 1073

2. District Court of Nevada: Kotab v. U.S. Dep’t of Air

Force (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074

3. D.C. District Court: Samma v. DoD (2020) ........ 1075

C. Resolving the Court Split . . . . . . . . . . . . . . . . . . . . . . . . . 1076

1. “Determining” What Constitutes Honorable Service

Under the APA............................ 1076

2. The Impact and Validity of the Mindes Test . . . . . . . . 1078

3. The Limits of Non-Justiciability ................ 1082

V. JUSTICIABILITY OF DESIGNATING PERIODS OF “ARMED CONFLICT”. . . 1083

VI. CONCLUSION ...................................... 1085

I. INTRODUCTION

Since our nation’s founding, immigrants have played a vital role in main-

taining the U.S. military as one of the world’s premier armed forces. More

than 20 percent of union soldiers that fought in the Civil War were immi-

grants, and hundreds of thousands of immigrants have served during times of

war in just the past century.

1

Immigrants Serving in the Military Have Earned Their Citizenship, FWD.US (June 4, 2021),

https://perma.cc/69F3-FPJX.

Additionally, immigrants have made some of

the most meaningful contributions to our military: 22 percent of all

Congressional Medal of Honor awards have been issued to immigrants.

2

Collin Fox, Restore MAVNI for Legal Aliens to Enter the Military, 147 PROCEEDINGS 8 (2021),

https://perma.cc/XEM9-7BYS.

As a reward for the sacrifice made by noncitizens who serve in the mili-

tary, Congress has provided a special path for naturalization during periods

1.

2.

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