Case 2:17-cv-00242-TSZ Document 24 Filed 05/18/17 Page 1 of 2
District Court Judge Thomas S. Zilly
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Kirti Tiwari, Seung Yoon Yang, Amandeep Singh, Duncan Makau, Valdeta Mehanja, Luobin Sun, Rui Zhang, and Raj Chettri,
Plaintiffs, v. James Mattis, Secretary, U.S. Department of Defense, in his official capacity,
No. 2:17-cv-00242-TSZ
MOTION FOR LEAVE TO AMEND COMPLAINT NOTE ON MOTION CALENDAR: June 2, 2017
Defendant.
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Plaintiffs hereby move for leave to file a Second Amended Complaint. The proposed complaint adds eight additional plaintiffs who all have the same claims as the original plaintiffs. Leave to amend a complaint should be freely granted when justice so
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requires. Fed. Rule Civ. P. 15(a)(2). The proposed complaint is attached hereto as Exhibit
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1. The Court should grant Plaintiffs' motion for leave to amend.
22 23 24 25 26 27 MOTION FOR LEAVE TO AMEND COMPLAINT - 1 Case No. 2:17-cv-00242-TSZ
ATKINSON, CONWAY & GAGNON 420 L Street, Suite 500 Anchorage, AK 99501 Tel 907.276.1700 Fax 907.272.2082
Case 2:17-cv-00242-TSZ Document 24 Filed 05/18/17 Page 2 of 2
DATED this 18th day of May, 2017.
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ATKINSON, CONWAY & GAGNON Attorneys for Plaintiffs
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By: s/Neil T. O’Donnell Neil T. O’Donnell, Esq. 420 L Street, Suite 500 Anchorage, AK 99501 Phone: (907) 276-1700 Fax: (907) 272-2082
[email protected] Alaska Bar No. 8306049 Pro Hac Vice application submitted herewith
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MACDONALD HOAGUE & BAYLESS Attorneys for Plaintiffs, Local Counsel
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By: s/Joseph R. Shaeffer Joseph R. Shaeffer, WSBA #33273 1500 Hoge Building 705 Second Avenue Seattle, Washington 98104 Phone (206) 622-1604 Fax: (206) 343-3961
[email protected]
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CERTIFICATE OF SERVICE
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I hereby certify that on the 18th day of May, 2017, I filed the foregoing with the Clerk of Court using the CM/ECF System which will send notification of such filing to the following:
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Nathan Swinton, Esq. U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 Tel: 202-305-7667 Fax: 202-616-8470
[email protected]
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/s/ Deborah A. Pratt Deborah A. Pratt, Legal Assistant
[email protected]
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32-120/8001.1
MOTION FOR LEAVE TO AMEND COMPLAINT - 2 Case No. 2:17-cv-00242-TSZ
ATKINSON, CONWAY & GAGNON 420 L Street, Suite 500 Anchorage, AK 99501 Tel 907.276.1700 Fax 907.272.2082
Case 2:17-cv-00242-TSZ Document 24-1 Filed 05/18/17 Page 1 of 50
District Court Judge Thomas S. Zilly
1 2 3 4 5 6
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
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Kirti Tiwari, Seung Yoon Yang, Amandeep Singh, Duncan Makau, Valdeta Mehanja, Luobin Sun, Rui Zhang, Raj Chettri, Thong Nguyen, Xi Cui, Rajat Kaushik, Pingyang Liu, Kaushal Upadhyay, Blerta Mehanja, Mengmeng Cai, and Sandeep Singh,
Plaintiffs,
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15
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF BASED ON DEPRIVATION OF CONSTITUTIONAL RIGHTS
v.
13 14
No. 2:17-cv-00242-TSZ
James Mattis, Secretary, U.S. Department of Defense, in his official capacity,
Defendant.
16 17 18
Plaintiffs Kirti Tiwari, Seung Yoon Yang, Amandeep Singh, Duncan Makau, Valdeta
19
Mehanja, Luobin Sun, Rui Zhang, Raj Chettri, Thong Nguyen, Xi Cui, Rajat Kaushik, Samra
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Mrkovic, Pingyang Liu, Kaushal Upadhyay, Blerta Mehanja, Mengmeng Cai, and Sandeep
21
Singh, by and through their counsel of record, Atkinson Conway & Gagnon and MacDonald
22
Hoague & Bayless, hereby claim and allege as follows: JURISDICTION AND VENUE
23 24
1.
This action challenges unconstitutional national origin discrimination imposed
25
by, inter alia, Department of Defense (DoD) guidance memoranda that, inter alia, summarily
26
deny Plaintiffs -- who are all naturalized U.S. citizens -- the ability to apply for security
27
clearances until after the term of their initial military enlistment, thereby crippling their SECOND AMENDED COMPLAINT - 1 Case No. 2:17-cv-00242-TSZ
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military careers and preventing them from using their talents for the benefit of the national
2
defense.
3
2.
This action arises under the United States Constitution. This Court has
4
jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction); 28
5
U.S.C. § 2201 – 2202 (the Declaratory Judgment Act); and the Constitution. Venue in this
6
District is authorized by 28 U.S.C. § 1391(e)(1)(C) (judicial district in which a plaintiff
7
resides). THE MAVNI PROGRAM
8 9
3.
The Military Accessions Vital to National Interest (MAVNI) Program was
10
designed to address critical shortages of personnel in the U.S. Armed Services by allowing
11
noncitizens to enlist in the U.S. military if they were legally present in the United States and
12
did not yet have “green cards” (lawful permanent residence) but met certain other
13
requirements.
14
4.
The MAVNI program was initially authorized by Secretary of Defense Robert
15
Gates in November 2008. Secretary Gates authorized the U.S. Armed Services to recruit
16
two categories of MAVNI enlistees: (1) Health Care Professionals (HCPs), who were legally
17
present noncitizens with certain U.S. medical licenses or credentials, and (2) language
18
enlistees, who were legally present noncitizens who had demonstrated expertise in certain
19
strategic foreign languages. Army MAVNI enlistees were required to meet all of the usual
20
requirements for enlistment except that they were required to score higher on the Armed
21
Forces Qualification Test (AFQT) than other military recruits and were ineligible for any
22
"moral" or conduct waivers.
23
5.
MAVNI recruits were required to apply for naturalization as United States
24
citizens, and were advised of this requirement, as part of the enlistment contract process.
25
The naturalization process requires the noncitizen to complete USCIS Form N-400, undergo
26
extensive Department of Homeland Security background checks (including an FBI name
27 SECOND AMENDED COMPLAINT - 2 Case No. 2:17-cv-00242-TSZ
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check), pass English and civics tests, be interviewed by a United States Citizenship and
2
Immigration Services (USCIS) officer, and participate in a naturalization oath ceremony.
3
6.
The MAVNI program initially began recruiting people in 2009. Recruits
4
enlisted through the MAVNI program were assured repeatedly, both orally and in writing,
5
that they would have the same career opportunities, once naturalized, as any other United
6
States citizen serving in the United States Armed Forces. For example, the MAVNI
7
Information Paper (updated September 2012) states:
8
Once you enter the Army, you will have all the same opportunities afforded to you as any other Soldier in the U.S. Army. If you are eligible and meet all the requirements, you can apply for Officer Candidate School (OCS), Green to Gold, Warrant Officer Candidate School (WOC) or any other Army school or program for which you are eligible. To become an officer, you must be a U.S. citizen and you must also be eligible to receive a security clearance. You must be recommended to become an officer, and you will most likely have to work in your unit for at least a year so that your commander will have time to evaluate you and make a recommendation.
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
(Exhibit 1, pp. 6-7, see also Exhibit 2, pp. 6-7) 7.
Most jobs in the military require a security clearance, and promotion to higher
ranks almost universally requires a security clearance. 8.
All officers must have a security clearance, so someone who cannot obtain a
security clearance cannot become an officer. 9.
For example, all Army doctors are officers, so an individual cannot serve as an
Army doctor without obtaining a security clearance. 10.
Individuals also cannot serve in many enlisted and non-commissioned officer
positions without obtaining a security clearance, including almost all positions in Military Linguistics, Military Police, Military Intelligence, Signal Corps, Special Operations, Psychological Operations, the Defense Attache System, and Civil Affairs. Even many positions within non-sensitive branches of the Service (i.e., Transportation, Quartermaster,
SECOND AMENDED COMPLAINT - 3 Case No. 2:17-cv-00242-TSZ
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Artillery, Infantry, etc.) require a security clearance. For example, soldiers having access to
2
advanced military technology, or even simply administrative access to other soldiers' Social
3
Security numbers, must have a security clearance.
4
11.
The MAVNI Program has resulted in measurable benefits to the U.S. Armed
5
Forces. The DoD commissioned an independent consulting firm, Human Resources
6
Research Organization (HumRRO), to review and evaluate the program. Their February 20,
7
2013, report concludes variously that: "[b]ased on characteristics in our analyses, MAVNI
8
Soldiers compare exceptionally well to non-MAVNI Soldiers. . . . [They] bring a
9
significantly higher level of language proficiency to the Army than do their Army Special
10
Operations Forces (ARSOF)-trained and Defense Language Institute (DLI)-tested
11
counterparts, thereby increasing the Army’s capability in critical languages. . . . [They] have
12
higher predicted performance than non-MAVNI Soldiers based on the GT [General
13
Technical] score even when the model controls for education, sex, and race. . . . The
14
majority of supervisors indicated that proficiency in reading, writing, speaking, and
15
understanding English among [Critical Foreign Language] CFL-MAVNI Soldiers was the
16
same as or better than native-English speaking Soldiers. . . . Evaluation results indicate that
17
CFL-MAVNI Soldiers are of high 'quality' – findings that are consistent with the selection of
18
a CFL-MAVNI recruit as the Army’s 2012 Soldier of the Year. . . . More than half [of
19
MAVNIs] indicated that they would probably or definitely stay in the Army until
20
retirement."
21
12.
Initially, MAVNI recruits were subject to the normal military and DHS
22
security checks required of noncitizens entering the U.S. Armed Services. Once MAVNI
23
recruits became naturalized U.S. citizens, they could apply for security clearances just like any
24
other U.S. citizen serving in the U.S. Armed Services. They could also apply to "re-classify"
25
into jobs that required a security clearance.
26 27
13.
Naturalized citizens who had been recruited through the MAVNI program
have, since 2009, received all levels of security clearances, including Top Secret clearances, SECOND AMENDED COMPLAINT - 4 Case No. 2:17-cv-00242-TSZ
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and have gone on to successful careers as linguists, intelligence officers, doctors, military
2
police officers, and in other fields requiring a security clearance.
3
14.
The U.S. Government has different types of security clearances, which allow
4
access to certain types of classified information. Information may be classified as
5
Confidential, Secret, and Top Secret, as well as "Top Secret—Sensitive Compartmentalized
6
Information" or "TS/SCI.” The levels of clearance correspond to the level of access the
7
person is permitted to have to classified information. A person serving in the United States
8
Armed Services must have the level of clearance required for his or her job in order to hold
9
that position, with limited exceptions. For example, a person who wants to be an officer on
10
active duty in the U.S. Army must hold, at a minimum, a "Secret" clearance, which allows the
11
person to access information stamped "Secret" or "Confidential, " but does not allow the
12
person to access "Top Secret" information.
13
15.
To obtain a security clearance, a person must undergo a background
14
investigation. The level and type of investigation corresponds to the type of clearance the
15
person is seeking. A Single Scope Background Investigation (SSBI) has been typically
16
reserved for people requiring a Top Secret security clearance and access to sensitive
17
compartmented information (SCI). An SSBI is typically not required for persons who only
18
seek access to Secret, Confidential, or lower level information.
19
16.
An SSBI is a time-consuming and detailed investigation. The individual must
20
complete an exhaustive questionnaire and is interviewed personally by a trained investigator,
21
often for several hours. The individual’s close relatives, references, employers, neighbors,
22
and colleagues are interviewed. Various checks are also run, including credit checks and
23
criminal background checks.
24
17.
United States citizens who enlist in the United States Armed Services are only
25
required to undergo an SSBI if their job requires a Top Secret clearance. Beginning in 2012,
26
however, the DoD ordered all MAVNI recruits to undergo an SSBI. Once they were
27
citizens, however, MAVNIs were treated like all other U.S. citizens serving in the U.S. SECOND AMENDED COMPLAINT - 5 Case No. 2:17-cv-00242-TSZ
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Armed Services. Specifically, MAVNIs were eligible for the clearances available to any U.S.
2
citizen who could pass the security check required for that level of clearance. This equal
3
treatment changed, however, in the fall of 2016.
4
18.
On September 30, 2016, Peter Levine, Acting Under Secretary of Defense for
5
Personnel and Readiness, signed and issued a DoD memorandum entitled “Military
6
Accessions Vital to the National Interest Pilot Program Extension,” which was distributed
7
by DoD to the Army, Navy, and Air Force. (Exhibit 3) This memo extends the MAVNI
8
program through September 30, 2017, but also implements significantly revised accession,
9
eligibility, and screening protocols. Per the memo, DoD states "this guidance will serve as a
10
single source document for the administration of the MAVNI program and replaces all
11
previously issued program guidance." Significantly, the memo states that "MAVNIs will be
12
designated . . . as not eligible for an interim security clearance or access until the completion
13
of first enlistment and a positive national security determination is made by the DoD CAF
14
[Consolidated Adjudications Facility]." (Id., p. 6, emphasis added.)
15
19.
The September 30, 2016 DoD memo had an immediate and negative impact
16
on naturalized U.S. citizens who had enlisted in the U.S. Armed Services through the
17
MAVNI Program. U.S. citizens who had entered the Army through the MAVNI Program
18
were told that they were no longer eligible for any form of security clearance and therefore
19
could no longer progress in their jobs, become officers, sign ROTC contracts, attend OCS,
20
or reclassify into other jobs in the military -- such as military linguist -- that require a security
21
clearance. The bar to obtaining a security clearance also applied in their civilian jobs, for
22
example, if they were Reservists who sought work with defense contractors or Federal
23
agencies.
24
20.
On January 6, 2017, the Department of the Army, Office of the Assistant
25
Secretary for Manpower and Reserve Affairs, issued a guidance memoranda which similarly
26
provided that "MAVNI enlistees . . . are ineligible to reclassify, apply for officer producing
27 SECOND AMENDED COMPLAINT - 6 Case No. 2:17-cv-00242-TSZ
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programs or positions/programs that require a security clearance during their initial term of
2
enlistment." (Exhibit 4, p. 2)
3
21.
MAVNI naturalized U.S. citizens are now being treated differently from other
4
U.S. citizens who serve in the military. Other U.S. citizens serving in the military -- who
5
have undergone far less background screening than MAVNI recruits -- are not barred from
6
obtaining security clearances during their first term of service. Natural-born U.S. citizens
7
can immediately apply for a security clearance when they enlist, even if they have not
8
undergone the extensive background checks required of MAVNIs.
9
22.
In denying security clearances to U.S. citizens naturalized through the MAVNI
10
program as a class, DoD violated Executive Order 12968 ("Access to Classified
11
Information," 8/2/1995) § 3.1(c) which provides "[t]he United States Government does not
12
discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual
13
orientation in granting access to classified information." (Emphasis added.)
14
23.
In denying security clearances to U.S. citizens naturalized through the MAVNI
15
program as a class, DoD violated Executive Order 12968 ("Access to Classified
16
Information," 8/2/1995) § 3.2(a) which provides "[e]ligibility for access to classified
17
information shall be based on information concerning the applicant or employee that is
18
acquired through investigation conducted pursuant to this order or otherwise available to
19
security officials and shall be made part of the applicant's or employee's security record."
20
(Emphasis added.)
21
24.
The DoD, in issuing the September 30, 2016 and January 6, 2017 guidance
22
memoranda, neglected to review the legality of adopting a blanket prohibition on naturalized
23
MAVNI soldiers applying for security clearances including, in particular, failing to review
24
Executive Order 12968 or the decision in Huynh v. Carlucci, 679 F. Supp. 61, 66 - 67
25
(D.D.C. 1988) ("Defendant has offered insufficient evidence that national security would be
26
prejudiced if the Defense Department were required to accord newly naturalized citizens the
27
same case-by-case security review given other security clearance applicants."). SECOND AMENDED COMPLAINT - 7 Case No. 2:17-cv-00242-TSZ
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25.
There is no rational, much less compelling, basis for barring U.S. citizens who
2
entered the military through the MAVNI program from applying for security clearances
3
during their first term of enlistment. There is no rational, much less compelling, basis for
4
barring them from applying to become officers or barring them from numerous other
5
positions – such as a military linguist – that require a security clearance. THE PLAINTIFFS
6
A.
7 8 9 10
26.
Kirti Tiwari
Plaintiff KIRTI TIWARI is a United States citizen who naturalized on August
25, 2015. 27.
TIWARI is presently an Army Health Care Specialist (E4) assigned to 514th
11
Medical Company (Ground Ambulance), Joint Base Lewis-McChord near Tacoma,
12
Washington.
13
28.
TIWARI is a native of India. TIWARI obtained a Bachelor of Technology
14
degree in Biotechnology from the National Institute of Technology, in Allahabad, India, in
15
2010. TIWARI enrolled in the University of Houston in the spring of 2011. He obtained a
16
Master's degree in Molecular Biology from the University of Houston in the fall of 2012.
17
29.
TIWARI remained in lawful immigration status during his time in the United
18
States by holding an F-1 student visa or performing Optional Practical Training (OPT).
19
After graduation from the University of Houston, TIWARI worked as a Research Specialist
20
at the Baylor College of Medicine and Texas Children's Hospital.
21
30.
TIWARI enlisted in the United States Army under the MAVNI Program on
22
June 24, 2014 for an eight (8) year term of service; the first four (4) years being Active Duty,
23
with the remainder in the Army Reserve. TIWARI qualified for the MAVNI program based
24
on his fluency in English and Hindi, academic accomplishments, excellent Army test scores,
25
and physical fitness.
26 27
31.
TIWARI was told by his recruiter that after he became a naturalized U.S.
citizen and graduated from Basic Combat Training (BCT) and Advanced Individual Training SECOND AMENDED COMPLAINT - 8 Case No. 2:17-cv-00242-TSZ
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(AIT), he would be treated like any other American soldier including with regard to applying
2
for or attending officer-producing programs.
3
32.
After TIWARI enlisted, he was required to undergo an extensive Single Scope
4
Background Investigation (SSBI). His SSBI was reported back favorably on or about
5
February 19, 2015.
6
33.
Over several months in 2016, TIWARI assembled materials to submit to the
7
Army Medical Department (AMEDD) Accession Board for promotion to Area of
8
Concentration (AOC) 71A (Microbiologist) or 71E (Clinical Laboratory Scientist), which
9
would result in him becoming a commissioned officer. If so advanced, TIWARI would
10
likely have been assigned to Walter Reed Army Institute of Research (WRAIR). After
11
gaining further experience as a research Army Microbiologist or Scientist, TIWARI intended
12
to apply to a doctoral program through the Army Long Term Health Education and
13
Training (LTHET) Program.
14 15 16
34.
In addition to applying to the AMEDD Accession Board, TIWARI also
applied in 2016 to the NASA Astronaut Candidate Program. 35.
TIWARI was required to obtain letters of recommendations from his prior
17
employers as part of the AMEDD Accession Board application process. His thesis advisor
18
at the University of Houston wrote that "[a]mong the top notch students that I have taught,
19
I would rate him in the top 10%." The research professor he subsequently worked with at
20
the Baylor College of Medicine and Texas Children's Hospital wrote:
21 22 23 24 25 26 27
I consider him as one of the most diligent and rigorous researchers I have come across. . . . We were able to publish two manuscripts from the data generated during his time here and that speaks volumes about his work. He was first author on both of those manuscripts. His research work has been presented in various conferences and has been published in international journals. His acceptance of responsibility and constructive criticism and feedback is commendable. His decision-making skills, attention to detail, intellectual and leadership abilities set him apart from his peers.
SECOND AMENDED COMPLAINT - 9 Case No. 2:17-cv-00242-TSZ
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I am confident he will become an outstanding professional in his field of expertise. He will be a great mentor and a leader for any organization to have. I can attest to the fact that Kirti is exactly the kind of skilled, talented and dedicated leader you need in an organization like the Army and he will not hesitate to put organizational interest above anything else.
2 3 4 5 6 7
36.
Board application that: SPC Tiwari is an excellent junior leader. His ability to listen and appropriately interpret orders is a testament to his mission success. His peers listen and trust him to lead them and he is looked highly upon by seniors and subordinates alike. . . . I highly recommend SPC Tiwari be selected for commissioning. It would be an extreme disservice to the Army and our country to not invest in this intelligent and confident young leader. It is a privilege and honor to serve with him. Select now!
8 9 10 11 12 13 14 15
37.
Immediately he demonstrated extensive leadership abilities and superb fitness. His contribution to the unit has been outstanding in every way, as he has demonstrated solid adherence to Army values, outstanding competence, tremendous energy, and humbleness of spirit. People enjoy working with SPC Tiwari! . . . Our command was recently formally notified of his acceptance as an Army nominee into the NASA Astronaut program, notably as an enlisted soldier. . . . Without reservation, I recommend SPC Tiwari for accession as an officer.
17 18 19 20 21
23 24 25 26 27
TIWARI's Brigade Commander wrote in support of his AMEDD Accession
Board application that:
16
22
TIWARI's commanding officer wrote in support of his AMEDD Accession
38.
On November 2, 2016, TIWARI was informed through his Recruiting Station
Commander of the unofficial AMEDD Board results that included TIWARI for promotion and commissioning to AOC, 71A, Microbiologist. 39.
Shortly thereafter, however, TIWARI was told that, because of the September
30, 2016, memo from Acting Under Secretary of Defense for Personnel and Readiness Peter
SECOND AMENDED COMPLAINT - 10 Case No. 2:17-cv-00242-TSZ
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Levine, naturalized MAVNI soldiers such as TIWARI are ineligible to apply for or obtain a
2
security clearance during their initial term of enlistment.
3
40.
With the help of his chain of command, TIWARI was recently able to re-enlist
4
prior to the scheduled ending of his original term of enlistment. Since TIWARI is now in
5
his second enlistment, he is attempting to obtain a security clearance (although he has been
6
advised that he needs to redo the investigation, which may take 6 months or more). The
7
United States Army Recruiting Command (USAREC), however, is at times advising that
8
TIWARI still needs to wait the actual number of years listed on his initial enlistment contract
9
before he can apply to the Army Medical Department (AMEDD) Accession Board for the
10
71A Microbiologist position irrespective of the fact that he has now re-enlisted. At other
11
times, USAREC is now advising that TIWARI cannot apply for the 71A Microbiologist
12
Position without first actually receiving an active security clearance, which is not the case for
13
civilians or other soldiers who apply to the board. Civilians or other soldiers can apply, be
14
selected, and attend the Basic Officer Leadership Course, for example, without first receiving
15
an active security clearance.
16
41.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
17
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
18
initial term of enlistment, and other actions taken by DoD, severely limit TIWARI's ability to
19
serve his country, deny TIWARI the opportunity to advance in his chosen career in the U.S.
20
Army, and treat TIWARI as a second class citizen. B.
21 22 23 24
42.
Seung Yoon Yang
Plaintiff SEUNG YOON YANG is a United States citizen who naturalized
on February 17, 2016. 43.
YANG is presently an Army Specialist (E4) serving as a Combat Engineer in a
25
Sapper Platoon with A Company, 6th Brigade Engineer Battalion (ABN), 4th Infantry
26
Brigade Combat Team, 25th Infantry Division (4-25 IBCT) at Joint Base Elmendorf-
27
Richardson (JBER) in Anchorage, Alaska. SECOND AMENDED COMPLAINT - 11 Case No. 2:17-cv-00242-TSZ
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44.
1
YANG is a native of South Korea but spent much of his life in the United
2
States. His father attended an MBA program at MIT beginning in 2002 and YANG
3
attended 5th, 6th and 7th grade in Newton, Massachusetts. YANG went to high school at
4
Portsmouth Abbey School, a boarding school in Portsmouth, Rhode Island. YANG
5
attended the University of Chicago graduating in 2015 with dual degrees (Bachelor of
6
Science in Statistics and Bachelor of Arts in Economics). 45.
7
YANG remained in lawful immigration status during his time in the United
8
States by holding an F-1 student visa or performing Optional Practical Training (OPT).
9
YANG worked variously as a research assistant at the University of Chicago Crime Lab and
10
as a research assistant at the Woodrow Wilson International Center for Scholars in
11
Washington, D.C.
12
46.
YANG enlisted in the United States Army under the Military Accessions Vital
13
to National Interest (MAVNI) Program on January 14, 2015 for an eight (8) year term of
14
service, the first four (4) years and sixteen (16) weeks being Active Duty; with the remainder
15
in the Army Reserve. 47.
16
YANG qualified for the MAVNI program based on his fluency in English and
17
Korean, his academic accomplishments, his excellent Army test scores, and his physical
18
fitness.
19
48.
YANG was assured orally by his recruiter and in writing by the ARMY that
20
MAVNI was simply an enlistment option and that once he joined the ranks and became a
21
U.S. citizen he would be treated the same as all other soldiers. In particular, YANG was
22
assured that he would be given the same opportunities for advancement including the ability
23
to apply to officer-producing programs. For example, YANG was provided with a MAVNI
24
Information Paper signed by his Recruiter and the Recruiter's Station Commander which
25
stated that: "[o]nce you enter the Army, you will have all the same opportunities afforded to
26
you as any other Soldier in the U.S. Army. If you are eligible and meet all the requirements,
27 SECOND AMENDED COMPLAINT - 12 Case No. 2:17-cv-00242-TSZ
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1
you can apply for Officer Candidate School (OCS), Green to Gold, Warrant Officer
2
Candidate School (WOC) or any other Army school or program for which you are eligible."
3
49.
In April 2016, YANG 's leadership recommended that he apply for Officer
4
Candidate School (OCS). YANG then attempted to obtain a security clearance in order to
5
apply for OCS. YANG, however, was told in late fall 2016 that a recent DoD guidance
6
memo now prohibits MAVNI soldiers from applying for a security clearance until after their
7
first term of enlistment.
8
50.
YANG subsequently learned that a security clearance was not required to
9
initiate an application packet for the Army's Green to Gold Scholarship Program. He began
10
to alternatively pursue that route to eventually become an officer and simultaneously further
11
his education. His commanding officers stated in his Chain of Command Evaluation for his
12
application that "SPC Yang has the skills, intellect, and discipline to be an Army Officer. . .
13
. SPC Yang has excellent intellectual skills and a strong desire to learn. . . . He is a humble
14
and smart Soldier . . . He is Airborne qualified and has progressed as an Arctic Paratrooper
15
over the last 8 months. . . . Soldiers of equal rank in the Company look up to SPC Yang
16
based on his qualities and his achievements. I feel he is an excellent candidate for the
17
Army's Green to Gold program."
18
51.
As part of the Green to Gold application process, YANG obtained offers of
19
admission from Columbia University and Georgetown University Master's Degree Programs
20
in Statistics.
21
52.
On January 6, 2017, however, DoD issued a new memorandum stating that
22
MAVNI soldiers are not allowed to even apply to officer-producing programs (i.e., even if a
23
security clearance was not required during the initial phase of the program).
24
53.
In addition to now being prohibited from applying to any officer producing
25
programs, YANG 's inability to apply for or obtain a security clearance also seriously limits
26
his service as an enlisted soldier. For example, YANG cannot attend any specialized training
27
designed for Combat Engineers without a security clearance, such as the Explosive SECOND AMENDED COMPLAINT - 13 Case No. 2:17-cv-00242-TSZ
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1
Ordinance Clearance Agent Course. YANG will also need a clearance waiver to attend the
2
Basic Leader Course, which is a prerequisite for obtaining a promotion to Sergeant, since he
3
cannot apparently now obtain a security clearance or initiate a National Agency Background
4
Investigation.
5
54.
Army leadership is highly unlikely to promote junior enlisted soldiers who
6
cannot receive appropriate training or attend important schools due to clearance issues,
7
especially in combat Military Occupational Specialties (such as YANG 's MOS) where
8
hands-on skills are crucial for junior leaders.
9
55.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
10
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
11
initial term of enlistment, and other actions taken by DoD, severely limit YANG's ability to
12
serve his country, deny YANG the opportunity to advance in his chosen career in the U.S.
13
Army, and treat YANG as a second class citizen. C.
14 15 16 17
56.
Amandeep Singh
Plaintiff AMANDEEP SINGH is a United States citizen who naturalized on
July 27, 2016. 57.
SINGH is presently an active U.S. Army Reservist and Logistics Specialist
18
(E4) with the HHC, 518 Sustainment Brigade (SUS BDE) located in Knightdale, North
19
Carolina.
20
58.
SINGH is a native of India. SINGH came to the United States in the fall of
21
2001 at the age of 18 on an F-1 visa to attend college at Texas Tech University in Lubbock,
22
Texas. SINGH graduated from Texas Tech in 2007 with a Bachelor of Science degree in
23
electrical/electronic engineering.
24
59.
After graduating from Texas Tech, SINGH remained in lawful immigration
25
status in the United States while performing Optional Practical Training (OPT) and then by
26
holding a H-1B (professional work) visa.
27 SECOND AMENDED COMPLAINT - 14 Case No. 2:17-cv-00242-TSZ
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60.
1
Since graduating from Texas Tech, SINGH has worked continuously in the
2
wireless and RF (radio frequency) fields for a number of employers, including as a field test
3
engineer for Blackberry Ltd. and as a contracted verification test engineer for Microsoft
4
Corporation. 61.
5 6
On July 23, 2015, SINGH enlisted in the United States Army Reserve under
the MAVNI Program for an eight (8) year term of service. 62.
7
SINGH qualified for the program based on his fluency in English, Punjabi
8
and Hindi, his academic achievements, his excellent Army test scores, and his physical
9
fitness.
10
63.
During the MAVNI recruiting process, the recruiter told SINGH that, after
11
one year as an enlisted soldier, he could apply to Officer Candidate School (OCS) and other
12
officer-producing programs. SINGH, along with his Recruiter, the Center Commander, and
13
the Guidance Counselor, all signed a MAVNI "Information Paper" reiterating those same
14
promises.
15
64.
After SINGH enlisted through the MAVNI program, SINGH was required to
16
undergo an extensive Single Scope Background Investigation (SSBI), which reported back
17
favorably.
18
65.
19 20
As an individual holding an engineering degree with extensive professional
experience in his field, SINGH is a logical candidate for selection to OCS. 66.
In late 2016, SINGH learned of a recent DoD memo stating that MAVNI
21
soldiers cannot apply for or receive a security clearance until after their first term of
22
enlistment. This new rule precludes SINGH from applying to any officer-producing
23
programs.
24
67.
25 26 27
SINGH now faces a delay of at least five (5) years before he can apply for a
security clearance -- this despite the fact that he just recently passed an SSBI. 68.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
all naturalized U.S. citizens -- from applying for or receiving security clearances during their SECOND AMENDED COMPLAINT - 15 Case No. 2:17-cv-00242-TSZ
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1
initial term of enlistment, and other actions taken by DoD, severely limit SINGH's ability to
2
serve his country, deny SINGH the opportunity to advance in his chosen career in the U.S.
3
Army, and treat SINGH as a second class citizen. D.
4
69.
5 6
Duncan Makau
Plaintiff DUNCAN MAKAU is a United States citizen who naturalized on
September 15, 2016. 70.
7
MAKAU is presently a Unit Supply Specialist (E4) in Headquarter and
8
Headquarter Company (HHC), 4th Engineer Battalion, 36th Engineer Brigade, in Fort
9
Carson, Colorado Springs, Colorado. 71.
10
MAKAU is a native of Kenya who came to the United States in 2007 to
11
attend college at the United States Military Academy at West Point (USMA). MAKAU
12
graduated from the USMA with a Bachelor of Science degree in General Engineering in
13
2011. 72.
14 15
MAKAU also obtained a Master in Business Administration degree from
North Central College in Naperville, Illinois in 2016. 73.
16
MAKAU qualified for the MAVNI program based on his fluency in English
17
and Swahili, his academic achievements, his excellent Army test scores, and his physical
18
fitness.
19
74.
MAKAU's initial term of enlistment, which began on March 22, 2016, is for
20
eight (8) years; the first four (4) years and twenty one (21) weeks being Active service, with
21
the remainder in the Army Reserve.
22
75.
After MAKAU enlisted through the MAVNI Program he was required to
23
undergo an extensive Single Scope Background Investigation (SSBI). His SSBI was reported
24
back favorably on or about September 24, 2015.
25 26
76.
At the time MAKAU enlisted through the MAVNI Program, he was advised
he would be able to apply for positions that required a security clearance, such as Special
27 SECOND AMENDED COMPLAINT - 16 Case No. 2:17-cv-00242-TSZ
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1
Operations. He was also told that he would be able to apply for an officer commission since
2
he had graduated from the USMA.
3 4 5
77.
In late 2016, MAKAU learned of a DoD memo stating that MAVNI soldiers
cannot apply for or receive a security clearance until after their first term of enlistment. 78.
Because his eight-year enlistment began March 22, 2016, MAKAU has over
6
seven (7) years remaining before he can apply for a security clearance – this despite having
7
just passed an SSBI and having graduated from the USMA.
8
79.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
9
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
10
initial term of enlistment, and other actions taken by DoD, severely limit MAKAU's ability
11
to serve his country, deny MAKAU the opportunity to advance in his chosen career in the
12
U.S. Army, and treat MAKAU as a second class citizen. E.
13 14
80.
15
January 13, 2016.
16
81.
Valdeta Mehanja
Plaintiff VALDETA MEHANJA is a United States citizen who naturalized on
MEHANJA is presently a U.S. Army 15T Specialist (E4) assigned to Joint
17
Multinational Readiness Center (JMRC) Hohenfels, Germany where she works as a crew
18
chief on a LUH-72 Lakota Helicopter. She is also certified as a UH-60-A/L/M Blackhawk
19
Helicopter mechanic.
20
82.
MEHANJA is a native of Kosovo. Her family fled Kosovo in 1991 when she
21
was seven (7) years old. Her family lived as refugees in Germany until returning to Kosovo
22
after the war in 2000. Kosovo had been ravaged by the war and her family faced extreme
23
poverty and worked hard to make ends meet.
24
83.
At age 17, while finishing high school in Kosovo, MEHANJA was hired for
25
various clerical positions by contractors from the European Union and United Nations
26
organizations who gave her on-the-job IT training. She was eventually recognized as one of
27
their top young employees. MEHANJA was subsequently hired by DynCorp, an American SECOND AMENDED COMPLAINT - 17 Case No. 2:17-cv-00242-TSZ
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1
contracting company that was supporting NATO troops in Kosovo. DynCorp sent her to
2
Iraq from 2004 to 2005. There she was promoted to IT Team Leader with responsibility for
3
installing numerous complex data and radio networks in Baghdad, Tikrit and other locations.
4
84.
After taking time off to obtain several IT certifications, MEHANJA returned
5
to work for DynCorp in 2006, this time in Afghanistan. There she installed and supported
6
sophisticated voice and data communication systems that were often used in both overt and
7
covert U.S. State Department counter narcotics law enforcement operations. This work
8
included extensive involvement with ground-to-air and aircraft-to-aircraft communications
9
and often involved working in hostile areas of the country.
10
85.
After four years in Afghanistan, MEHANJA recognized that she needed to
11
further her education. Because of her experience with aircraft communication and her
12
admiration for the pilots with whom she worked and flew (and who had at times come to
13
her team's rescue under fire), she decided to apply to an aeronautical university. MEHANJA
14
was accepted at Embry-Riddle University in Daytona Beach, Florida and began school there
15
in the fall of 2010. MEHANJA paid for college and her flight training with the money she
16
had saved while working in Iraq and Afghanistan. MEHANJA graduated from Embry-
17
Riddle with a degree in Aeronautical Science in 2013. She continued on at Embry-Riddle
18
after graduation to work on a Master's Degree in Science in Aeronautics with an emphasis in
19
Aviation Aerospace Safety System.
20
86.
While at Embry-Riddle MEHANJA earned licenses and ratings including:
21
fixed wing and rotor private and commercial pilot licenses; fixed wing and rotor instrument
22
ratings; Airline Transport Pilot (ATP) license, multi-engine; Flight Instructor, fixed wing,
23
single engine and multi-engine, instrument rating; and Flight Instructor, rotor aircraft,
24
instrument rating.
25
87.
MEHANJA began working as a flight instructor for Embry-Riddle beginning
26
in her third year of school there. In March 2015, she was selected "Flight Instructor of the
27
Month" out of a highly competitive group of 180 flight instructors at the University. She SECOND AMENDED COMPLAINT - 18 Case No. 2:17-cv-00242-TSZ
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1
was selected by Embry-Riddle in 2013 and again in 2014 to serve as Pilot-in-Command of
2
the school's entry in the Women's Air Race Classic, a four-day transcontinental flight
3
competition. Her team won the collegiate division both years and finished third overall in
4
2013 and second overall in 2014. MEHANJA served as Flight Supervisor and Acting Chief
5
Flight Instructor at Embry-Riddle. She presently has approximately 2,000 hours of flight
6
time.
7
88.
MEHANJA enlisted in the United States Army under the Military Accessions
8
Vital to National Interest (MAVNI) Program on February 27, 2015. Under the delayed
9
entry program, she shipped out to Basic Combat Training (BCT) on September 1, 2015.
10
Her enlistment term is for six (6) years in the Regular Army. MEHANJA qualified for the
11
MAVNI program based on her fluency in English and Albanian (she is also fluent in
12
German); academic accomplishments; excellent Army test scores; and physical fitness.
13 14 15
89.
Prior to her enlistment, MEHANJA remained in lawful immigration status
during her time in the United States by holding an F-1 student visa or an H-1B work visa. 90.
At Basic Combat Training (BCT), MEHANJA was selected to be an Assistant
16
Platoon Guide and graduated with the highest female Army Physical Fitness Test score in
17
her platoon. She graduated Advanced Individual Training (AIT) as a UH-60 Blackhawk
18
repairer with a 97% GPA and honors from the Aviation Logistics School. She also served as
19
squad leader. While serving as a Blackhawk Repairer and Lakota Helicopters Crew Chief at
20
her current duty station in Hohenfels, Germany, MEHANJA was selected as the Joint
21
Multinational Readiness Center Soldier of the Month in September 2016.
22
91.
Critical to MEHANJA's decision to enlist through the MAVNI Program was
23
the assurances she received from her Recruiter and the MAVNI Information Paper that she
24
would be able to apply to Warrant Officer Candidate School (WOC) or Officer Candidate
25
School (OCS). As a Warrant Officer, she would be able to ensure that her ultimate
26
assignment was that of a pilot (MOS 153A, rotary wing aviator). Her goal was to become a
27
Blackhawk Helicopter pilot. SECOND AMENDED COMPLAINT - 19 Case No. 2:17-cv-00242-TSZ
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1
92.
MEHANJA was repeatedly told that after she naturalized as a U.S. citizen and
2
completed her initial training, she would have the same career opportunities as any other
3
soldier in the Army. The MAVNI "Information Paper" that she signed, and that was also
4
signed by her Recruiter, the Recruiting Center Commander, and the Recruiting Center
5
Guidance Counselor, promised the same thing: "Once you enter the Army, you will have all
6
the same opportunities afforded to you as any other Soldier in the U.S. Army. If you are
7
eligible and meet all the requirements, you can apply for Officer Candidate School (OCS),
8
Green to Gold, Warrant Officer Candidate School (WOC) or any other Army school or
9
program for which you are eligible."
10 11 12
93.
After her enlistment, MEHANJA was required to undergo an extensive Single
Scope Background Investigation (SSBI). That investigation reported back favorably. 94.
After completing her introductory training, MEHANJA began the lengthy
13
process of preparing a packet for the Warrant Officer Board, which included obtaining a
14
security clearance. After a thorough investigation (and pending issuance of a final security
15
clearance by the DoD Central Adjudicative Facility (CAF) in Fort Meade, Maryland), the
16
Army Joint Multinational Readiness Center (JMRC) in Hohenfels, Germany, issued
17
MEHANJA an Interim Security Clearance on November 9, 2016. At that time, both
18
MEHANJA and JMRC were unaware that the September 30, 2016 memo from Acting
19
Under Secretary of Defense Peter Levine, which announced that MAVNI soldiers were no
20
longer eligible to receive a security clearance, would apply to already naturalized MAVNIs.
21
95.
As part of the packet for the Warrant Officer Board, MEHANJA was required
22
to obtain letters of recommendation. The Lieutenant Colonel (Ret.) who worked with
23
MEHANJA in Afghanistan wrote in his recommendation letter that "I have known her since
24
2006 when she was serving as a contractor Communications Technician in a State
25
Department Aviation Program in Afghanistan. She was the 'go-to' person for any
26
communications issues we had. As the Deputy Director (GS15) for the DOS Air Wing, I
27
personally relied on her for the entire time she was in Afghanistan. . . . She has a great work SECOND AMENDED COMPLAINT - 20 Case No. 2:17-cv-00242-TSZ
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1
ethic and moral standards – I don't know where she learned it but she will pick the harder
2
right instead of the easier wrong. . . . I give her my unconditional recommendation for
3
Warrant Officer Flight Training. The Army needs people like SPC Mehanja in the Officer
4
Corps."
5
96.
MEHANJA's Brigade Commander during her Advanced Individual Training
6
(AIT) wrote in his recommendation letter that "[SPC Mehanja] has thus far set the bar high
7
in competence, character and commitment in all her training. She has earned the respect of
8
her entire chain of command, from her Drill Sergeants to the Post Commander, and is
9
deeply respected for her personal life story of courage and selflessness. . . . SPC Mehanja is
10
a must select for the Warrant Officer Candidate School. She is dedicated and driven,
11
constantly seeking self-improvement and ways to exceed her professional Army and personal
12
goals. She is the extremely rare candidate that already possesses the qualities and requisite
13
skills to become a U.S. Army Aviator as the Aviation Branch seeks to fill its quality Warrant
14
Officer ranks. SPC Mehanja has unlimited potential and I give her my absolute highest
15
recommendation for selection."
16
97.
MEHANJA's current Executive Officer at JMRC Hohenfels, Germany, wrote
17
in his recommendation letter "I served as the Flight Detachment Executive Officer over
18
SPC Mehanja for 8 months and witnessed her superior disciple, confident leadership, and
19
problem solving abilities on a daily basis. . . . SPC Mehanja should be your top selection as
20
an Officer candidate . . .” Her present Battalion Commander wrote "[s]he is without a doubt
21
one of the most competent, caring, and professional leaders I have worked with in 22 years
22
of service. She possesses a strong intellect, physical presence, professional competence,
23
moral character, and has served as a role model for all of the Soldiers and Leaders within our
24
unit. . . . She is the leader that every Battalion Commander wants to have at the decisive
25
point; and proves her worth every time. . . . It would be a great disservice to the United
26
States Army to not appoint her into the U.S. Army Officer Candidate School."
27 SECOND AMENDED COMPLAINT - 21 Case No. 2:17-cv-00242-TSZ
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1
98.
A few weeks after MEHANJA received her Interim Security Clearance,
2
MEHANJA was told that because she is a naturalized MAVNI soldier, she is no longer
3
eligible for a security clearance under the new DoD guidance and that she could no longer
4
apply to become a Warrant Officer.
5
99.
If MEHANJA is required to wait until after the end of her initial six (6) year
6
term of enlistment to apply for a security clearance, she will be several years past the age
7
cutoff for application to either Warrant Officer Candidate School or Officer Candidate
8
School; her flight currency will expire; and she will no longer be as competitive (if
9
competitive at all) for a Warrant Officer 153A position. Not only will this derail her Army
10
career, but it will also have a large negative impact on any subsequent civilian career because
11
airlines and aviation organizations typically only hire "current" pilots who are recent with
12
their flight hours and have recent working familiarity with applicable regulations.
13
100.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
14
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
15
initial term of enlistment, and other actions taken by DoD, severely limit MEHANJA's
16
ability to serve his country, deny MEHANJA the opportunity to advance in his chosen
17
career in the U.S. Army, and treat MEHANJA as a second class citizen. F.
18 19 20 21 22 23 24 25
101.
Luobin Sun
Plaintiff LUOBIN SUN is a United States citizen who naturalized on March
18, 2015. 102.
SUN is presently an active U.S. Army Reservist, Specialist Rank (E4), with the
346th Psychological Operations Unit located in Columbus, Ohio. 103.
SUN is a native of China. SUN came to the United States in 2011 on an F-1
visa to attend college at Ohio State University in Columbus, Ohio. 104.
SUN worked as a Student Officer with the Ohio State University Police
26
Department through most of college. In October 2014, SUN received a Merit Award, his
27
Police Department's second highest police honor, for coming to the rescue of a Police SECOND AMENDED COMPLAINT - 22 Case No. 2:17-cv-00242-TSZ
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1
Sergeant who was being strangled by an intoxicated suspect. SUN was the first non-sworn
2
officer at the University to ever receive such an honor.
3 4 5
105.
On March 5, 2014, while attending Ohio State, SUN enlisted in the United
States Army Reserve under the MAVNI Program for an eight (8) year term of service. 106.
SUN qualified for the MAVNI Program based on his fluency in English and
6
Mandarin Chinese, his academic achievements, his excellent Army test scores, and his
7
physical fitness.
8
107.
SUN was told orally by his recruiter that he could apply to Officer Candidate
9
School (OCS) after he obtained his college degree and completed one year of service. This
10
same information was repeated in the MAVNI Program "Information Paper" he received.
11
108.
After SUN enlisted through the MAVNI program, he was required to undergo
12
an extensive Single Scope Background Investigation (SSBI). His SSBI was reported back
13
favorably on or about November 3, 2014.
14
109.
SUN returned to Ohio State after completing his initial Army Reserve training
15
in June 2015. SUN graduated from Ohio State in December 2016 with a Bachelor of
16
Science, double majoring in Business Administration and International Studies.
17
110.
On December 18, 2015, SUN became employed part-time with the
18
Department of Homeland Security, Transportation Security Administration (TSA) as a
19
Federal Officer providing security at Columbus International Airport.
20
111.
SUN began preparing his OCS application package in 2015. His commanding
21
officer wrote on September 28, 2015 that "SPC Sun is a talented member of the 1001st
22
Quartermaster Company, he has performed with distinction as a 92F, (Petroleum Supply
23
Specialist). I fully understand and support his aspirations to become a commissioned officer
24
through the Officer Candidate School. SPC Sun will make an exceptional officer." SUN's
25
Platoon Leader similarly wrote that "SPC Sun has excellent potential to become a fine
26
officer. I am convinced that SPC Sun's intelligence, professionalism and foreign language
27
skills will make him an asset to the Officer Corps." SECOND AMENDED COMPLAINT - 23 Case No. 2:17-cv-00242-TSZ
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112.
1 2
In late 2016, SUN learned that a recent DoD memorandum prohibited him
from applying for or obtaining a security clearance during his initial term of service. 113.
3
SUN will be 32-years-old when his eight (8) year initial enlistment ends in
4
2022 and he finally becomes eligible to apply for a security clearance under the recent DoD
5
guidance. With a background check and OCS package likely taking a year or more to
6
compete, he will then be 33 years old and past the 32-year maximum age to attend OCS. 114.
7
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
8
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
9
initial term of enlistment, and other actions taken by DoD, severely limit SUN's ability to
10
serve his country, deny SUN the opportunity to advance in his chosen career in the U.S.
11
Army, and treat SUN as a second class citizen. G.
12 13 14 15 16 17
Rui Zhang
115.
Plaintiff RUI ZHANG is a United States citizen who naturalized on May 2,
116.
ZHANG is presently an Army Specialist (E4) serving as a Dental Specialist at
2014.
Tripler Army Medical Center in Honolulu, Hawaii. 117.
ZHANG is a native of China, however, he moved with his mother to Japan at
18
age 13 and never thereafter returned to China. After completing high school in Japan,
19
ZHANG came to the United States in 2006 at the age of 19 on an F-1 visa to attend college.
20
ZHANG obtained a Bachelor of Science degree from UCLA in Molecular Cell
21
Development Biology in 2013.
22
118.
Since arriving in the United States, and prior to becoming a citizen, ZHANG
23
remained in lawful immigration status either on an F-1 student visa or while performing
24
Optional Practical Training (OPT). ZHANG has worked variously as a math teaching
25
assistant, a math tutor, an assistant in an ophthalmology clinic, and as an EMT.
26 27
119.
ZHANG initially enlisted in the United States Army under the Military
Accessions Vital to National Interest (MAVNI) Program on July 16, 2013 for an eight (8) SECOND AMENDED COMPLAINT - 24 Case No. 2:17-cv-00242-TSZ
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1
year term of service, the first six (6) years being Active Duty, with the remainder in the Army
2
Reserve.
3
120.
ZHANG qualified for the MAVNI program based on his fluency in English,
4
Japanese, and Mandarin Chinese, academic background, excellent Army test scores, and
5
physical fitness.
6
121.
After ZHANG enlisted through the MAVNI program, ZHANG was required
7
to undergo an extensive Single Scope Background Investigation (SSBI), which reported back
8
favorably.
9
122.
ZHANG was told by his recruiter that, after one year of service, he would be
10
able to apply to officer-producing programs such as Officer Candidate School, Reserve
11
Officer Candidate Corps (ROTC), and Healthcare Professions Scholarship Program (HPSP).
12
The official MAVNI "Information Paper" he received said the same thing. Many of
13
ZHANG's MAVNI friends had previously gone to, and successfully completed, OCS.
14
123.
The Health Professions Scholarship Program (HPSP) offers potential military
15
physicians, dentists, nurses, and other health care professionals a paid medical education in
16
exchange for an additional military service commitment. All individuals joining the HPSP (if
17
they are not already officers) are commissioned as a Second Lieutenant, which in turn
18
requires a security clearance.
19
124.
In order to be selected for the HPSP, an applicant has to apply to and be
20
accepted by the school they wish to attend. ZHANG's goal was to enter medical school in
21
the fall of 2017. Towards that end, ZHANG spent many months taking additional
22
prerequisite classes, preparing for and taking the MCAT, writing applications and school-
23
specific essays, and obtaining recommendations. Because admission to medical school is
24
highly competitive, ZHANG has applied to many medical schools (like many other
25
applicants) and has paid substantial application fees.
26 27 SECOND AMENDED COMPLAINT - 25 Case No. 2:17-cv-00242-TSZ
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1
125.
Based on ZHANG's strong academics, language skills, and the fact that he is
2
already an Army soldier with an exemplary record, ZHANG's chances for acceptance to the
3
HPSP program and medical school were very high.
4
126.
On September 6, 2016, ZHANG's Officer in Charge (OIC) wrote to the U.S.
5
Army Central Personnel Security Clearance Facility stating "[r]equest to expedite Secret
6
Clearance of SPC Zhang, Rui investigation which is currently scheduled to close for
7
favorable adjudication. This action is required to upgrade to attend the Officer's
8
Commissioned School for Army Health Professions Scholarship Program (HPSP)."
9
127.
Approximately a month after submitting the September 6, 2016
10
memorandum, ZHANG learned that DoD had issued a new guidance memo stating that
11
MAVNIs must wait until the end of the first term of enlistment -- six (6) years in ZHANG'S
12
case – before applying for or receiving a security clearance. This will delay for years
13
ZHANG’s dream of becoming a doctor and create much more work and expense.
14
Specifically, all ZHANG’s present efforts to apply to medical school and HPSP will have
15
been wasted. ZHANG will have to retake some of the prerequisite courses and the MCAT
16
as they will have expired. ZHANG will then have to begin the application process to
17
medical schools and HPSP all over again.
18
128.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
19
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
20
initial term of enlistment, and other actions taken by DoD, severely limit ZHANG's ability
21
to serve his country, deny ZHANG the opportunity to advance in his chosen career in the
22
U.S. Army, and treat ZHANG as a second class citizen. H.
23 24
129.
25
February 4, 2014.
Raj Chettri
Plaintiff RAJ CHETTRI is a United States citizen who naturalized on
26 27 SECOND AMENDED COMPLAINT - 26 Case No. 2:17-cv-00242-TSZ
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130.
1
CHETTRI is a Sergeant, E-5, currently stationed at Joint Base Lewis-McCord
2
near Tacoma, Washington. CHETTRI is attached to Maintenance Platoon, Bravo
3
Company, 46th Aviation Support Battalion, 16th Combat Aviation Brigade. 131.
4
CHETTRI is a native of Nepal who came to the United States in the fall of
5
2002 to attend college at San Jacinto Community College in Houston, Texas. He obtained
6
an Associate Degree there in 2007. He graduated from the University of Houston summa
7
cum laude in December 2011 with a Bachelor of Science degree in hotel and restaurant
8
management and a minor in global business. CHETTRI is now pursuing a Masters of
9
Science degree in computer information systems at Florida Institute of Technology, which is
10
affiliated with the Army for distance learning. 132.
11
CHETTRI remained in lawful immigration status during his time in the
12
United States by holding an F-1 student visa or performing Optional Practical Training
13
(OPT).
14
133.
CHETTRI enlisted in the United States Army under the Military Accessions
15
Vital to National Interest (MAVNI) Program on June 10, 2013, for an eight-year term of
16
service: the first six years is Active Duty, the remainder is in the Army Reserve.
17
134.
CHETTRI qualified for the MAVNI program based on his academic
18
accomplishments, Army test scores, physical fitness, and fluency in Hindi. He is also fluent
19
in English, Nepalese and Russian.
20
135.
CHETTRI was repeatedly told by his recruiter that after he received his initial
21
training and citizenship, that the Army would treat him like any other U.S. citizen and that
22
he would be allowed to apply to schools and different Military Occupation Specialties
23
(MOSs) just like any other soldier.
24 25
136.
After enlistment CHETTRI was required to undergo an extensive Single
Scope Background Investigation (SSBI) which reported favorably on August 20, 2013.
26 27 SECOND AMENDED COMPLAINT - 27 Case No. 2:17-cv-00242-TSZ
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137.
1
CHETTRI graduated as the Distinguished Graduate of his Advanced
2
Individual Training (AIT) Apache helicopter maintenance course at Fort Eustis, Virginia, in
3
2014.
4
138.
CHETTRI's first duty station was at Camp Humphreys in South Korea where
5
he served as an Apache mechanic. Towards the end of that tour, he began looking for other
6
opportunities where he could use his talents to contribute to the Army in a bigger way. At
7
that time CHETTRI was receiving Army recruiting emails suggesting he consider applying
8
for Cyber Operations Specialist (MOS 17C). CHETTRI assumes the Army selects soldiers
9
to receive various recruiting emails based on their test scores, foreign language abilities, and
10
other skills.
11
139.
12 13 14 15
One or more MAVNI soldiers are presently working as Army Cyber
Operations Specialists. 140.
Army Cyber Operations Specialists are required to hold at least a Top Secret
clearance. 141.
While near the end of his tour at Camp Humphreys in South Korea,
16
CHETTRI also received recruiting emails from Special Operations Command stating that
17
MAVNI soldiers are highly valued for their language skills and cultural knowledge, and could
18
serve there as Civil Affairs Specialists (MOS 38B).
19 20 21 22 23
142.
CHETTRI decided to pursue simultaneous independent applications for
Cyber Operations Specialist (MOS 17C) and Civil Affairs Specialist (MOS 38B). 143.
An Army Civil Affairs Specialists are required to hold at least a Secret
clearance. 144.
CHETTRI's entire chain of command has consistently supported his
24
applications for advancement. In support of his applications, CHETTRI obtained various
25
recommendation letters, including, for example, from his company commander who wrote:
26
With the vote of confidence of his immediate NCOs and my personal observations, I can attest to his intelligence, fortitude, and professionalism. His subordinates, as well as his peers,
27
SECOND AMENDED COMPLAINT - 28 Case No. 2:17-cv-00242-TSZ
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1
confirm his exceptional qualities as a leader, trainer, and motivator.
2
SPC Chettri, Raj B. has performed his duties in an exceptional manner. He possesses a breadth and depth of knowledge seldom seen in a junior enlisted soldier. SPC Chettri has the natural ability to express complicated and technical information clearly and concisely. His problem solving skills and attention to detail will serve him well as a cyber operations specialist and guarantee his continued success as a leader. As a demonstration of his ability to excel at learning, he graduated from the University of Houston summa cum laude with a Bachelor's degree in hospitality management. SPC Chettri was also the distinguished graduate of AH-64D AIT class 025-14. In addition, he is a multi-lingual individual with a DLAB score of 121 and current DLPT 5 ratings in Hindi and Russian. I am convinced SPC Cettri, Raj B. will be successful in any endeavor he attempts.
3 4 5 6 7 8 9 10 11 12 13
145.
Based on successful completion of the Civil Affairs Assessment and Selection
14
Course, CHETTRI was selected for the Civil Affairs program in April 2016. Successful
15
applicants for Civil Affairs Specialist are required, before actually attending Civil Affairs
16
school, to also complete Airborne School. CHETTRI did so in June 2016.
17
146.
After finishing Airborne School, CHETTRI began waiting for the issuance of
18
his Secret clearance so he could receive a Permanent Change of Station (PCS) order to
19
attend Civil Affairs training. CHETTRI was told he would receive that clearance quickly as
20
he had already passed a rigorous Single Scope Background Investigation (SSBI). However,
21
CHETTRI continued to wait. He eventually learned in October 2016 from other MAVNIs
22
that the DoD had recently issued a memo stating that MAVNIs were no longer eligible to
23
receive any type of security clearance during their first term of enlistment.
24
147.
Because of the new rule prohibiting naturalized citizens who enter the Army
25
through the MAVNI program from obtaining a security clearance, CHETTRI cannot join
26
any of the military occupations for which he is best suited and would best serve the Army.
27 SECOND AMENDED COMPLAINT - 29 Case No. 2:17-cv-00242-TSZ
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1
148.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
2
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
3
initial term of enlistment, and other actions taken by DoD, severely limit CHETTRI's ability
4
to serve his country, deny CHETTRI the opportunity to advance in his chosen career in the
5
U.S. Army, and treat CHETTRI as a second class citizen. I.
6 7
149.
8
February 18, 2015.
9
150.
10 11
Thong Nguyen
THONG NGUYEN is a United States citizen who naturalized on
NGUYEN is a Financial Technician (MOS 36B) with the 25 th Infantry
Division in Schofield Barracks, Hawaii. 151.
NGUYEN is a native of Vietnam. He came to the United States in 2001 for
12
college. He received a dual Bachelor of Science Degree in Accounting and International
13
Business from St. Cloud State University in Minnesota in 2008. NGUYEN obtained a
14
Master of Business Taxation Degree from the University of Minnesota in 2012.
15
152.
In NGUYEN's last Optional Practical Training (OPT) position with UNIVIS
16
Group/WellMed Global LLC, he was responsible for reviewing financial statements and
17
sales and activity reports; coordinating quarter-end financial audits and ongoing audits of
18
receivables, payables and inventory; preparing sales tax data for submission of sales tax
19
returns; and managing payroll processing for over 600 contractors with diverse
20
compensation structures.
21
153.
On August 12, 2014, NGUYEN enlisted in the United States Army under the
22
Military Accessions Vital to National Interest (MAVNI) Program for an eight (8) year term
23
of service, with the first four (4) years in the Active Regular Army. He qualified for the
24
MAVNI program based on his fluency in English and Cantonese, academic
25
accomplishments, Army test scores, and physical fitness. NGUYEN is also fluent in
26
Vietnamese and Mandarin Chinese.
27 SECOND AMENDED COMPLAINT - 30 Case No. 2:17-cv-00242-TSZ
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154.
1
NGUYEN was assured during the recruiting process that after he went
2
through his initial training and became a U.S. Citizen, that he would be treated like all other
3
soldiers and would have an equal opportunity to apply to officer producing programs.
4
NGUYEN and the recruiting command signed a MAVNI Information Paper (December
5
2014) which stated:
6
Once you enter the Army, you will have all the same opportunities afforded to you as any other Soldier in the U.S. Army Reserve. If you are eligible and meet all the requirements, you can apply for Officer Candidate School (OCS), Reserve Officers' Training Corps (ROTC), Warrant Officer Candidate School (WOC) or any other Army school or program for which you are eligible. To become an officer, you must be a U.S. citizen and must also be eligible to receive a security clearance. You must be recommended to become an officer, and you will most likely have to work in your unit for at least a year so that your commander will have time to evaluate you and make a recommendation.
7 8 9 10 11 12 13 14
155.
After NGUYEN enlisted he went through a detailed and thorough Single
15
Scope Background Investigation. That investigation reported back favorably on August 18,
16
2014.
17
156.
NGUYEN has received a number of achievement awards and was encouraged
18
by his commanding officers to apply to Officer Candidate School (OCS). After beginning
19
that process, however, he learned that he was prohibited from applying to, or attending,
20
OCS during his first term of enlistment because he had entered the Army through the
21
MAVNI program. This is directly contrary to what NGUYEN was told during the
22
recruiting process.
23
157.
Given that NGUYEN is now barred from attending OCS, he applied for a
24
position with the 25th Infantry Division as a Protocol Specialist. NGUYEN was accepted
25
and transferred into that position, but now he and his commanding officers have discovered
26
that NGUYEN is prohibited from doing much of the work expected of someone in that
27
position because he cannot obtain a security clearance. NGUYEN has also considered SECOND AMENDED COMPLAINT - 31 Case No. 2:17-cv-00242-TSZ
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1
seeking a finance position in a Special Forces unit, but he is ineligible for such an assignment
2
because again he cannot obtain a security clearance.
3
158.
NGUYEN is trained and educated for, and has previously performed, far
4
more challenging financial work than the basic clerical tasks he is presently performing for
5
the Army. NGUYEN and his commanding officers believe that NGUYEN is not serving
6
the Army and the country to his potential in his present position. Besides this loss, the new
7
"no security clearance" rule is preventing NGUYEN from advancing in his Army career.
8
159.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
9
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
10
initial term of enlistment, and other actions taken by DoD, severely limit NGUYEN's ability
11
to serve his country, deny NGUYEN the opportunity to advance in his chosen career in the
12
U.S. Army, and treat NGUYEN as a second class citizen. J.
13
Xi Cui
14
159.
XI "Tracy" CUI is a United States citizen who naturalized on March 10, 2016.
15
160.
CUI is a resident of Renton, Washington. Her present duty assignment is as
16
an Army reservist Horizontal Construction Engineer in the 297 Engineer Company, Joint
17
Base Elmendorf-Richardson, in Anchorage, Alaska.
18
161.
CUI is a native of China. She obtained dual Bachelor's Degrees in Economics
19
and Urban and Regional Management from Peking University in 2008. CUI came to the
20
United States in 2008 for graduate school. CUI obtained a Master's Degree in Urban and
21
Regional Planning from the University of Florida in 2010.
22
162.
After arriving in the United States in 2008, CUI remained in lawful
23
immigration status prior to becoming a U.S. citizen by holding an F-1 student visa,
24
performing Optional Practical Training (OPT), or by holding an H1-B visa.
25
163.
From 2011 to early 2012, CUI worked as a Geographic Information System
26
(GIS) Analyst with the City of Palatka, Florida. This primarily involved transferring and
27
updating layers of AutoCad files for water and sewer mainlines, water meters, fire hydrants, SECOND AMENDED COMPLAINT - 32 Case No. 2:17-cv-00242-TSZ
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1
bike paths, and other structures and improvements to a GIS base map. From October 2012
2
to July 2016, CUI worked as a Planning and Zoning Technician III for the Haines Borough
3
in Alaska. There she updated and maintained their GIS system, reviewed land development
4
proposals, conducted field inspections, issued land use permits and enforced planning and
5
zoning laws. CUI was selected as the only employee in the Haines Borough to receive a
6
merit pay increase in FY 2014.
7
164.
From July 2016 to the present, CUI has been employed as an Associate
8
Planner with the City of Sammamish, Washington. There CUI reviews and processes
9
building and land use permit applications for compliance with zoning, code and State
10
Environmental Policy Act (SEPA) requirements, approve plans, conduct site investigations
11
and certify compliance.
12
165.
In 2015, CUI achieved Certified Planner designation from the American
13
Institute of Certified Planners (AICP). The AICP provides the only nationwide,
14
independent verification of planners' qualifications through a series of rigorous,
15
comprehensive examinations.
16
166.
On May 15, 2015, CUI enlisted in the United States Army under the Military
17
Accessions Vital to National Interest (MAVNI) Program for an eight (8)-year term of
18
service, with the first six (6) years being in the Reserve Component. CUI qualified for the
19
MAVNI program based on her fluency in English and Mandarin Chinese, academic
20
accomplishments, Army test scores, and physical fitness.
21
167.
CUI was assured during the recruiting process that after she went through her
22
initial training and became a U.S. Citizen, that she would be treated like all other soldiers and
23
would have an equal opportunity to apply to officer programs. CUI and her recruiter and
24
his commander and the Guidance Counselor all signed a MAVNI Information Paper
25
(December 2014) which stated:
26 27
Once you enter the Army, you will have all the same opportunities afforded to you as any other Soldier in the U.S. Army Reserve. If you are eligible and meet all the requirements, SECOND AMENDED COMPLAINT - 33 Case No. 2:17-cv-00242-TSZ
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1
you can apply for Officer Candidate School (OCS), Reserve Officers' Training Corps (ROTC), Warrant Officer Candidate School (WOC) or any other Army school or program for which you are eligible. To become an officer, you must be a U.S. citizen and must also be eligible to receive a security clearance. You must be recommended to become an officer, and you will most likely have to work in your unit for at least a year so that your commander will have time to evaluate you and make a recommendation.
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
168.
After CUI enlisted she went through a detailed and thorough Single Scope
Background Investigation. That investigation reported back favorably shortly before CUI shipped to basic training on November 18, 2015. 169.
CUI's chain of command encouraged her to apply for Officer Candidate
School (OCS) based on her education and work performance. CUI began putting her board packet together in January 2017 to become an Engineer officer. While preparing her packet in mid-February, her battalion security manager told her there would be no problem issuing her an interim security clearance. Shortly thereafter, however, CUI learned about a new rule that prohibits U.S. citizen MAVNI soldiers from obtaining a security clearance during their initial term of enlistment. CUI's battalion security officer has now confirmed that he cannot issue her any type of security clearance. 170.
CUI's OCS board packet now contains all required documents except her
security clearance. 171.
There is a 31-year age cutoff for OCS. CUI will be age 32 in eight (8) months.
Unless the rule prohibiting citizen-MAVNIs is reversed, she will not be able to use her talents to best serve the Army and her military career will be permanently derailed. 172.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
all naturalized U.S. citizens -- from applying for or receiving security clearances during their initial term of enlistment, and other actions taken by DoD, severely limit CUI's ability to
26 27 SECOND AMENDED COMPLAINT - 34 Case No. 2:17-cv-00242-TSZ
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1
serve her country, deny CUI the opportunity to advance in her chosen career in the U.S.
2
Army, and treat CUI as a second class citizen. K.
3 4 5
RAJAT KAUSHIK is a United States citizen who naturalized on April 16,
161.
KAUSHIK is an Army Dental Specialist (E4) assigned to U.S. Army Dental
Health Activity, Hawaii. 162.
8 9
160. 2015.
6 7
Rajat Kaushik
KAUSHIK is a native of India. He obtained a Bachelor Degree in India. He
also finished one year of post-graduate work in Bioinformatics in India. He has one sibling,
10
an older brother, who is a physician who obtained a Ph.D. from Harvard University and
11
practices in Washington, D.C. 163.
12
KAUSHIK enrolled in Northeastern University in Boston, Massachusetts, in
13
the fall of 2011. He obtained a Master's Degree in Biotechnology from Northeastern in
14
2014. 164.
15 16
Prior to becoming a citizen, KAUSHIK remained in lawful immigration status
during his time in the United States by holding an F-1 student visa. 165.
17
KAUSHIK enlisted in the United States Army under the Military Accessions
18
Vital to National Interest (MAVNI) Program. His enlistment term is for eight (8) years with
19
six (6) years in the Regular Army. He qualified for the MAVNI program based on his
20
fluency in English and Punjabi, academic accomplishments, Army test scores, and physical
21
fitness.
22
166.
KAUSHIK was told by his Recruiter, the Recruiter Station Commander, and
23
the Military Entrance Processing Station (MEPS) Commander, that after he became a
24
naturalized U.S. citizen and completed his initial training courses, he would be treated like
25
any other American soldier including regarding applying to officer-producing programs.
26 27 SECOND AMENDED COMPLAINT - 35 Case No. 2:17-cv-00242-TSZ
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167.
1
After KAUSHIK enlisted he was required to undergo an extensive Single
2
Scope Background Investigation (SSBI). His SSBI was reported back favorably on
3
February 4, 2015.
4
168.
In 2015 and 2016, KAUSHIK concentrated on completing his initial Army
5
training courses and the prerequisites for becoming an Army Dentist or Physician through
6
the Army Health Professions Scholarship Program (HPSP) or an Army Physician Assistant
7
(PA) through the Interservice Physician Assistant Program (IPAP). However, KAUSHIK
8
was eventually told by his chain of command that he could no longer qualify to attend any of
9
these programs because of a new memo from the DoD Office of Personnel and Readiness
10
stated that naturalized MAVNI soldiers could not apply for or receive a security clearance
11
until after their initial enlistment had ended. This new rule has prevented KAUSHIK from
12
utilizing his talents and skills to best serve the Army and frustrated and blocked his Army
13
career.
14
169.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
15
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
16
initial term of enlistment, and other actions taken by DoD, severely limit KAUSHIK's ability
17
to serve his country, deny KAUSHIK the opportunity to advance in his chosen career in the
18
U.S. Army, and treat KAUSHIK as a second class citizen. L.
19
Pingyang Liu
20
170.
PINGYANG LIU is a United States citizen who naturalized on June 23, 2015.
21
171.
LIU is a Behavioral Health Technician (MOS 68X) at Tripler Army Medical
22 23
Center, Hawaii. 172.
LIU is a native of China. He came to the United States in the summer of
24
2008 as a senior-year international undergraduate exchange student at Virginia Tech in
25
Blacksburg, Virginia. LIU continued his post-graduate studies in Biochemistry at Virginia
26
Tech. He successfully concluded his thesis defense in February 2013, and obtained his
27
Ph.D. in Biochemistry from Virginia Tech in March 2013. By that time, LIU had three firstSECOND AMENDED COMPLAINT - 36 Case No. 2:17-cv-00242-TSZ
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1
author, and one second-author, scientific publications. From mid-2013 until early 2015, he
2
worked as a postdoctoral associate at the University of California, San Francisco, where LIU
3
received a research scholarship and continued to publish scientific research papers. 173.
4
LIU remained in lawful immigration status during his time in the United States
5
prior to becoming a U.S. citizen by either holding an F-1 student visa or by performing
6
Optional Practical Training (OPT). 174.
7
LIU enlisted in the United States Army under the Military Accessions Vital to
8
National Interest (MAVNI) Program for an eight (8) year term of enlistment, with the first
9
four (4) years being in the Active Regular Army. LIU qualified for the MAVNI program
10
based on his fluency in English and Mandarin Chinese, academic accomplishments, Army
11
test scores, and physical fitness. 175.
12
During the recruiting process LIU's recruiter told him that MAVNI soldiers,
13
once they became citizens, would have the same opportunity as all other soldiers to apply to
14
Officer Candidate School (OCS) and other similar programs. LIU, along with his Recruiter,
15
the Center Commander, and the Guidance Counselor, all signed a MAVNI "Information
16
Paper – Updated September 2012) which said the same thing: "once you enter the Army,
17
you will have all the same opportunities afforded to you as any other Soldier in the U.S.
18
Army.
19
176.
After LIU enlisted and before he shipped to basic training, the Army
20
conducted a thorough Single Scope Background Investigation, which reported back
21
favorably on December 8, 2014.
22
177.
After joining the Army, LIU applied for a direct commission as an Army
23
Biochemist. LIU's board packet was fully prepared, submitted and ready for decision when
24
he was disqualified by the recent memos prohibiting citizen-MAVNI soldiers from obtaining
25
a security clearance during their first term of enlistment. The Army Medical Command
26
(MEDCOM) tried to obtain an exception to policy for LIU since his application was
27
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1
178.
Due to the new policy, LIU was also unable to apply for the Army Medical
2
Department (AMEDD) healthcare processional scholarship to medical school. One of his
3
long-term goals was to go to medical school and become a military physician scientist. LIU
4
finished all his medical school applications, took the MCAT test, and obtained favorable
5
letters of recommendation, but is now also blocked from pursuing this career path. The
6
former Department Chief at Tripler Army Medical Center wrote regarding his officer
7
application:
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Please accept this letter as my strongest endorsement of SPC Pingyang Liu for a direct commission in the U.S. Army. I served as SPC Liu's Department Chief at Tripler Army Medical Center from the beginning of his assignment in October 2015 to April 2016. My recommendation is based on direct supervision, collaboration and observation. SPC Liu is a remarkable individual. Born and raised in China, SPC Liu received his Bachelor's Degree from the University of Hong Kong. He was an exceptional student and was accepted to a Ph.D. program in biochemistry at Virginia Tech University. He completed his Ph.D. in biochemistry in less than 4 years – a remarkable feat – and went on to complete a post-doctoral program at the University of California. During that time, he worked on a groundbreaking HIV research study of his own design. . . . SPC Liu is fully committed to a military career and life as a U.S. Army Soldier. I know from direct observation that he successfully completes every task without fail. He willingly takes on any assignment. He applies his superior intellect, education and good sense of humor in a manner that is humble yet extraordinarily effective. His engaging personality and unflagging willingness to help others engenders the respect and admiration of his peers, NCOs and commissioned Officers. In my 32 years as a Department of Army Civilian, I have rated over 100 NCOs and Officers from the rank of SGT to COL; I would rate SPC Liu in the top 5% of Soldiers I have worked with during my career. SPC Liu has the character, the desire and the discipline to be an exemplary U.S. Army Officer. He is extremely loyal and he has my utmost respect and trust. SPC Liu has my highest SECOND AMENDED COMPLAINT - 38 Case No. 2:17-cv-00242-TSZ
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1
recommendation as a candidate for a direct commission. Please feel free to contact should you have any questions or need additional information about this remarkable Soldier.
2 3 4
179.
LIU tried to determine if there was any way around the new "no security
5
clearance" rule including through contacting Brian Schatz, U.S. Senator from Hawaii.
6
Schatz's office contacted the Army Accessions Division. The Chief of the Army Accessions
7
Division, Paul Aswell, wrote Senator Schatz stating that "we have corresponded with
8
Specialist Liu to assist him in seeking an exception to the USD(P&R) policy governing
9
security clearances in order to pursue a commission in the United States Army." LIU
10
subsequently submitted an exception request and supporting materials to the Army Enlisted
11
Accessions Branch seeking an exception to policy (ETP). LIU was told that this material
12
was inadequate; that he also needed to get his commander to specifically request an
13
exception to the "no security clearance" rule; that he then needed to obtain Staff Judge
14
Advocate (SJA) review of the material for legal sufficiency; and that he then needed to have
15
the request routed to both the chain of command at Tripler Medical Center and the Army
16
Medical Command Deputy Chief of Staff, G-1. If approved at all these levels, LIU was told
17
it would then be sent to the Under Secretary of Defense (Personnel and Readiness) for a
18
decision.
19
180.
As this process unfolded, LIU concluded that the Army was giving him an
20
ever expanding list of documents and approval requirements. Getting commanders and
21
others in the chain of command to prepare and/or approve such an exception request is
22
very difficult. There was no procedure for such an exception, there are no criteria for such
23
an exception, and no one was familiar with what to do in this situation. It was difficult and
24
time consuming simply to collect all the recommendation letters and supporting documents
25
necessary for a regular application to a direct commissioning board. Here LIU felt that the
26
Army was giving him a series of impossible tasks and that no exception would ever be
27
forthcoming.
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1
181.
Having undergone a successful security investigation and become a United
2
States citizen, LIU is very confused that what he has experienced in the Army is not
3
consistent with what he was told during his enlistment. Because of his inability to obtain a
4
security clearance simply because he entered the Army through the MAVNI program, he has
5
not been able to utilize his talents and education to best serve the Army. LIU's Army career
6
has also been, and continues to be, severely harmed by this new rule.
7
182.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
8
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
9
initial term of enlistment, and other actions taken by DoD, severely limit LIU's ability to
10
serve his country, deny LIU the opportunity to advance in his chosen career in the U.S.
11
Army, and treat LIU as a second class citizen. M.
12 13 14 15
220.
Kaushal Upadhyay
KAUSHAL UPADHYAY is a United States citizen who naturalized on
August 5, 2016. 221.
UPADHYAY is a Behavioral Health Specialist (E4) (MOS 68X) assigned to
16
the 98th Combat Stress Control, 62nd Medical Brigade, at Joint Base Lewis-McCord in
17
Washington.
18
222.
UPADHYAY is a native of India. After attending medical school in India, he
19
came to the United States in July 2009 for a Master in Public Health program at Florida
20
International University in Miami, Florida. UPADHYAY subsequently transferred to
21
Davenport University in Michigan where he is close to completing an MBA with a Health
22
Care Concentration.
23
223.
UPADHYAY has remained in lawful immigration status during his time in the
24
United States prior to becoming a U.S. citizen by holding an F-1 student visa or through
25
Curriculum Practical Training (CPT).
26 27
224.
While in India, UPADHYAY passed the United States Medical Licensing
Examination (USMLE) Steps 1 & 2. UPADHYAY completed Step 3 (the final step) in 2012 SECOND AMENDED COMPLAINT - 40 Case No. 2:17-cv-00242-TSZ
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while in the United States. The only remaining requirement to obtain his United States
2
medical license is to complete a medical residency. 225.
3
UPADHYAY enlisted in the United States Army under the Military
4
Accessions Vital to National Interest (MAVNI) Program on March 19, 2015, for an eight (8)
5
year term of enlistment, with the first four (4) years being in the Active Regular Army.
6
UPADHYAY qualified for the MAVNI program based on his fluency in English and Hindi
7
(he also speaks Gujarati), academic accomplishments, Army test scores, and physical fitness. 226.
8 9 10 11
Before UPADHYAY shipped to basic training, he underwent a thorough
Single Scope Background Investigation, which was favorably completed on November 9, 2015. 227.
During the recruiting process, UPADHYAY was told that once he finished
12
basic training and became a citizen, he would have the same opportunities as all other
13
soldiers including being able to apply to officer producing schools. In particular,
14
UPADHYAY was told that he would be able to apply to the Army Medical Department
15
(AMEDD) for an Army medical residency and direct commissioning as a Captain.
16
228.
The Army Continuing Education System (ACES) has certified that
17
UPADHYAY 's studies in India are "equivalent to four and one-half years of study in a
18
medicine program and a one-year compulsory rotating internship in the United States." The
19
only thing this is preventing UPADHYAY from applying for direct commissioning is the
20
new rule prohibiting MAVNIs from obtaining a security clearance during their first term of
21
enlistment. UPADHYAY contacted his Retention NCO to see if any exceptions to this
22
policy were possible but was told they could not help him.
23
229.
The Army is in need of Physicians and Surgeons. UPADHYAY is already a
24
qualified medical graduate. The new MAVNI security clearance rule prevents him from
25
using his skills and training to best serve the Army and his country. This situation is
26
contrary to what UPADHYAY was told when he enlisted and it has left him no meaningful
27
way to advance his Army career. SECOND AMENDED COMPLAINT - 41 Case No. 2:17-cv-00242-TSZ
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230.
1
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
2
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
3
initial term of enlistment, and other actions taken by DoD, severely limit UPADHYAY's
4
ability to serve his country, deny UPADHYAY the opportunity to advance in his chosen
5
career in the U.S. Army, and treat UPADHYAY as a second class citizen.
6
N.
7 8
183.
BLERTA MEHANJA is a United States citizen who naturalized on July 26,
184.
MEHANJA is presently a MOS 68W assigned to 2C HHB, FA, Vilseck,
2016.
9 10
Blerta Mehanja
Germany, where she works as a Health Care Specialist. 185.
11
MEHANJA is a native of Kosovo and the younger sister of Plaintiff Valdeta
12
Mehanja. Her family fled Kosovo in 1991 when she was five (5) years old. They lived as
13
refugees in Germany until returning to Kosovo in 2000. While in Germany, MEHANJA
14
learned a new language, attended school, and adapted to German society as best as she
15
could.
16
186.
In 2000, MEHANJA's family returned to help re-build a war-torn Kosovo.
17
Back in school, MEHANJA had to learn all her subjects in a new language, formal Albanian,
18
which is very different from the informal Albanian they spoke at home. MEHANJA also
19
had to learn the customs and norms of her peers since she was acting and talking like a true
20
German.
21
187.
In March of 2004, MEHANJA's two older sisters accepted jobs with the US
22
Department of State in Baghdad, Iraq. MEHANJA joined them in January of 2005 after
23
finishing high school at age nineteen (19).
24
188.
In Iraq, MEHANJA worked and lived in the Baghdad Hotel located in the
25
"Red Zone." After working in Iraq, MEHANJA worked for another year for the State
26
Department in Jordan. She then transferred to work as a Department of Defense contractor
27
in Afghanistan, where she served for another four years as a Financial/Purchasing Analyst. SECOND AMENDED COMPLAINT - 42 Case No. 2:17-cv-00242-TSZ
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1
Along with helping support her family, she saved all the money she could in order to attend
2
college in the United States.
3
189.
In July 2012, MEHANJA moved to the United States on an F-1 student visa.
4
MEHANJA graduated magna cum laude from Embry Riddle with a Bachelor of Science
5
Degree majoring in Homeland Security in December 2015.
6
190.
After seeing all the good the United States did for the people in Kosovo;
7
working as a contractor for the US Department of Defense for most of her adult life; and
8
serving in war zones for years in support of the US military, MEHANJA sought to become
9
an American citizen.
10
191.
On April 2, 2015, MEHANJA enlisted in the United States Army under the
11
MAVNI program. Her enlistment term is for eight (8) years with four (4) years in the Active
12
Regular Army. MEHANJA qualified for the MAVNI program based on her fluency in
13
English and Albanian (she is also fluent in German); her academic accomplishments; Army
14
test scores; and physical fitness.
15 16 17
192.
Prior to MEHANJA's enlistment, she remained in lawful immigration status
during her time in the United States by holding an F-1 student visa. 193.
During the enlistment process, MEHANJA was repeatedly told that once she
18
became a soldier and a U.S. citizen, that she would be treated like all other soldiers and be
19
given an equal opportunity to apply for assignments and officer-producing programs.
20
194.
After MEHANJA's enlistment and before going to basic training, she was
21
required to undergo an extensive Single Scope Background Investigation (SSBI), which
22
MEHANJA successfully passed.
23
195.
MEHANJA was recently selected for a Special Operations Unit in the Army's
24
Psychological Operations Division. She successfully completed the Selection and
25
Assessment class in November 2016. The selection rate of each class is only approximately
26
30%. Unfortunately, the new MAVNI security clearance rule now prevents MEHANJA
27
from continuing with the Special Forces Qualification Course (SPQC or, informally, the "Q SECOND AMENDED COMPLAINT - 43 Case No. 2:17-cv-00242-TSZ
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1
Course") -- or indeed any other officer program -- because she is no longer able to obtain a
2
security clearance.
3
196.
4
recommendation letter to the Officer Candidate School Selection Board stating:
5
I highly recommend SPC Blerta Mehanja be selected for Officer Candidate School (OCS). She exemplifies the professional excellence embodied in an Army Officer Corps and is a shining example of a young leader of Soldiers.
6 7 8
SPC Blerta Mehanja has displayed a zeal for soldiering through combat tours in Afghanistan, Jordan and Iraq in support of our nation's freedom and liberties. Her service has been nothing short of remarkable and she is the epitome of a warrior committed to selfless services. SPC Mehanja is 30 years old and a Kosovo native, who speaks fluent in English, German & Albanian (native language). She was a combat force multiplier as a Department of Defense Contractor in support of Iraqi Freedom and Enduring Freedom for almost 7 years. SPC Mehanja also volunteered at the NATO Role 3 (a MultiNational Medical Unit on Kandahar Air Field) prior to being employed. During SPC Mehanja's training in BCT, she fully complied with the seven Army Values and displayed nothing less than commendable Soldier traits as she served as the Student Platoon Leader.
9 10 11 12 13 14 15 16 17
Assigned to Aco 2-60th, SPC Mehanja successfully completed all training and persevered in a class where 240 trainees started and only 176 trainees made it to graduation day. SPC Mehanja has moved to the front of her peers by utilizing extraordinary ability to learn trainings objectives needed to be successful in Basic Combat Training.
18 19 20 21
SPC Mehanja is well respected amongst her peers and Drill Sergeants and proven to be a physically fit, mentally sharp leader who accomplishes all missions with excellence. She personifies the key qualifying traits of duty, honor, country, and without question deserves the honor of the selected into Officer Candidate School.
22 23 24 25 26 27
In Basic Training, MEHANJA's commanding officer, Michael Chung, wrote a
197.
MEHANJA believes that she would be of great service to the Army and her
country if she were allowed to fully utilize her skills, training and background as an Army SECOND AMENDED COMPLAINT - 44 Case No. 2:17-cv-00242-TSZ
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Special Operations Officer. The present MAVNI security clearance rule denies the Army
2
and her country of the full benefits of her service. It is also ruining MEHANJA's Army
3
career. 198.
4
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
5
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
6
initial term of enlistment, and other actions taken by DoD, severely limit MEHANJA's
7
ability to serve her country, deny MEHANJA the opportunity to advance in her chosen
8
career in the U.S. Army, and treat MEHANJA as a second class citizen.
9
O.
10 11 12 13 14
Mengmeng Cai
196.
MENGMENG CAI is a United States citizen who naturalized on July 14,
197.
CAI is a line medic assigned to the 2nd Infantry Division, 2nd Brigade, 4-23
2016.
Battalion, Alpha Company at Joint Base Lewis-McChord in Washington. 198.
CAI is a native of China. He came to the United States in 2010 to attend
15
college at Purdue University. CAI's original plan was to study biology and go to medical
16
school. However, he eventually realized that most medical schools would not consider an
17
applicant who was not a permanent resident or U.S. citizen. Though disappointed, CAI
18
switched his major to Geology and Geophysics, and graduated from Purdue with a
19
Bachelors in Science degree in 2015.
20
199.
CAI remained in lawful immigration status during his time in the United States
21
prior to becoming a U.S. citizen by either holding an F-1 student visa or by performing
22
Optional Practical Training (OPT) for an oilfield supply company.
23
200.
On August 5, 2015, CAI enlisted in the United States Army under the Military
24
Accessions Vital to National Interest (MAVNI) Program for an eight (8) year term of
25
enlistment, with the first four (4) years being in the Active Regular Army. CAI qualified for
26
the MAVNI program based on his fluency in English and Mandarin Chinese, academic
27
accomplishments, Army test scores, and physical fitness. SECOND AMENDED COMPLAINT - 45 Case No. 2:17-cv-00242-TSZ
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201.
1
During the recruiting process CAI's recruiter told him that, because of his
2
Army test scores and his college degree, that he should apply to become an officer after he
3
joined the Army. He further told CAI that MAVNI soldiers, once they became citizens,
4
would have the same opportunity as other soldiers to apply to Officer Candidate School
5
(OCS) and other similar programs. 202.
6
After CAI enlisted and before he shipped to basic training, he underwent a
7
thorough Single Scope Background Investigation, which reported favorably on August 11,
8
2015. 203.
9
Because of CAI's interest in the healthcare field, he chose Military
10
Occupational Specialty (MOS) 68W Combat Medic. CAI's Advanced Individual Training
11
(AIT) in that field renewed his interest in becoming a physician assistant or a doctor.
12
However, upon further investigation, CAI learned that he cannot apply for the Interservice
13
Physician Assistant Program (IPAP) -- or any other officer-producing program -- because he
14
is now ineligible to receive a security clearance. 204.
15
As a result of the new rule prohibiting citizen-MAVNI soldiers from obtaining
16
a security clearance during their first term of enlistment, CAI is unable to contribute to the
17
Army and his country to the full extent of his abilities. CAI's career in the Army is also
18
stopped in its tracks. This is directly contrary to promises of equal opportunity he received
19
when he enlisted.
20
205.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
21
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
22
initial term of enlistment, and other actions taken by DoD, severely limit CAI's ability to
23
serve his country, deny CAI the opportunity to advance in his chosen career in the U.S.
24
Army, and treat CAI as a second class citizen. P.
25
206.
26 27
Sandeep Singh
SANDEEP SINGH is a United States citizen who naturalized on June 10,
2013. SECOND AMENDED COMPLAINT - 46 Case No. 2:17-cv-00242-TSZ
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1
207.
SINGH is an Army Specialist (E4) assigned to D Company the 1-229 th Attack
2
Reconnaissance Battalion, 16th Combat Aviation Brigade, at Joint Base Lewis-McCord in
3
Washington.
4
208.
SINGH is a native of India. He came to the United States to attend college in
5
August 2008. He completed his Bachelors Degree in both Computer Engineering and
6
Electrical Engineering from North Dakota State in May 2010. After graduation SINGH
7
worked as a Programmer Analyst for SmartWorks LLC in Edison, NJ. SINGH's work at
8
SmartWorks included major Software Developer projects for FedEx and PNC Bank.
9
209.
SINGH remained in lawful immigration status during his time in the United
10
States prior to becoming a U.S. citizen by either holding an F-1 student visa, an H1B visa, or
11
by performing Optional Practical Training (OPT).
12
210.
SINGH enlisted in the United States Army under the Military Accessions Vital
13
to National Interest (MAVNI) Program on October 23, 2012, for an eight (8) year term of
14
enlistment, with the first four (4) years being in the Active Regular Army. SINGH qualified
15
for the MAVNI program based on his fluency in English and Hindi and Punjabi, academic
16
accomplishments, Army test scores, and physical fitness.
17
211.
During the recruiting process SINGH was repeatedly told that MAVNI
18
soldiers, once they completed basic training and became citizens, would have the same
19
opportunities as all other soldiers including with regard to applying specialized services,
20
Officer Candidate School (OCS), and other similar programs. SINGH, along with his
21
Guidance Counselor, signed a MAVNI "Information Paper – Updated September 2012"
22
which said the same thing: "once you enter the Army, you will have all the same
23
opportunities afforded to you as any other Soldier in the U.S. Army."
24
212.
After SINGH enlisted and before he shipped to basic training, he underwent a
25
thorough Single Scope Background Investigation. That investigation reported back
26
favorably on November 27, 2012.
27 SECOND AMENDED COMPLAINT - 47 Case No. 2:17-cv-00242-TSZ
EXHIBIT 1, Page 47 of 50
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1
213.
Upon completion of basic training, SINGH transitioned to Advanced
2
Individual Training (AIT) at Fort Eustis, Virginia where he completed the Apache
3
Helicopter Armament/Electrical/Avionic Systems training as an Honor Graduate in
4
October 2013. SINGH was also recognized for achieving the maximum score on the Army
5
Physical Fitness Test.
6
214.
In 2014, SINGH was deployed to Kandahar, Afghanistan in support of
7
Operation Enduring Freedom, for which service he received an Army Commendation Medal
8
and a NATO Service Medal.
9
215.
While at Ft. Lewis, SINGH received Army Combative Level 1 and 2
10
certifications and Master Combative Trainer certification. SINGH also at times served as
11
squad leader.
12
216.
In October 2015, SINGH successfully completed the Special Forces
13
Assessment and Selection (SFAS) program and qualified to attend the Special Forces
14
Qualification Course (SFQC or "Q Course"). Most applicants are not selected due to the
15
rigorous nature of this program.
16
217.
Immediately after being selected, SINGH applied for a Secret Clearance,
17
which is necessary to attend the Q Course and become special forces soldier. SINGH has
18
now been waiting for almost a year and a half to receive a clearance. His SFAS will expire
19
after two years. If SINGH is not able to obtain a Security Clearance before this October, he
20
will have to repeat the entire process.
21
218.
SINGH enlisted in the Army intending to use his skills and training to serve
22
the Army and his country to the fullest extent of his abilities. SINGH was told during
23
enlistment that he would have the same opportunities as any other soldier. The new rule
24
prohibiting MAVNI soldiers from obtaining a security clearance during their first term of
25
enlistment is preventing SINGH from achieving these goals and has halted the progress of
26
his Army career.
27 SECOND AMENDED COMPLAINT - 48 Case No. 2:17-cv-00242-TSZ
EXHIBIT 1, Page 48 of 50
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1
219.
The recent blanket DoD "guidance" prohibiting MAVNI soldiers -- who are
2
all naturalized U.S. citizens -- from applying for or receiving security clearances during their
3
initial term of enlistment, and other actions taken by DoD, severely limit SINGH 's ability to
4
serve his country, deny SINGH the opportunity to advance in his chosen career in the U.S.
5
Army, and treat SINGH as a second class citizen. CLAIM FOR DEPRIVATION OF CONSTITUTIONAL RIGHTS
6 7
199.
The subject DoD guidance memoranda and other DoD actions that penalize
8
U.S. Citizens because they entered the Armed Services through the MAVNI program
9
unconstitutionally discriminate against Plaintiffs based on their national origin in violation of
10
Plaintiffs' equal protection rights as guaranteed by the Due Process clause of the Fifth
11
Amendment of the U.S. Constitution.
12
200.
Plaintiffs are entitled to a declaration that a blanket prohibition on MAVNI
13
soldiers applying for or receiving a security clearance in their initial term of enlistment and
14
other DoD actions that penalize U.S. Citizens because they entered the Armed Services
15
through the MAVNI program are unconstitutional, invalid, and of no force and effect.
16
201.
Plaintiffs are further entitled to preliminary and permanent injunctions
17
prohibiting Defendant from enforcing any guidance memoranda or other rules prohibiting
18
MAVNI soldiers as a class from applying for or receiving a security clearance in their initial
19
term of enlistment or otherwise penalizing U.S. Citizens because they entered the Armed
20
Services through the MAVNI program.
21
WHEREFORE, Plaintiffs pray for relief as follows:
22
1.
Declaratory and injunctive relief as set forth in the Complaint;
23
2.
An award of costs and attorney fees pursuant to the Equal Access to Justice
24
Act (EAJA), 28 U.S.C. § 2412(d), and/or any other statute or rule of law that provides for an
25
award of costs and attorney fees in this situation; and
26
3.
Other relief deemed equitable or applicable by the Court.
27 SECOND AMENDED COMPLAINT - 49 Case No. 2:17-cv-00242-TSZ
EXHIBIT 1, Page 49 of 50
ATKINSON, CONWAY & GAGNON 420 L Street, Suite 500 Anchorage, AK 99501 Tel 907.276.1700 Fax 907.272.2082
Case 2:17-cv-00242-TSZ Document 24-1 Filed 05/18/17 Page 50 of 50
DATED this _______ day of __________________, 2017.
1
ATKINSON, CONWAY & GAGNON Attorneys for Plaintiffs
2 3
By: Neil T. O’Donnell, Esq. 420 L Street, Suite 500 Anchorage, AK 99501 Phone: (907) 276-1700 Fax: (907) 272-2082
[email protected] Alaska Bar No. 8306049 Pro Hac Vice application submitted herewith
4 5 6 7 8
MACDONALD HOAGUE & BAYLESS Attorneys for Plaintiffs, Local Counsel
9 10
By: Joseph R. Shaeffer, WSBA #33273 1500 Hoge Building 705 Second Avenue Seattle, Washington 98104 Phone (206) 622-1604 Fax: (206) 343-3961
[email protected]
11 12 13 14 15 16
CERTIFICATE OF SERVICE
17
I hereby certify that on the ______ day of ______________, 2017, I filed the foregoing with the Clerk of Court using the CM/ECF System which will send notification of such filing to the following:
18 19
Nathan Swinton, Esq. U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 Tel: 202-305-7667 Fax: 202-616-8470
[email protected]
20 21 22 23 24 25
Deborah A. Pratt, Legal Assistant
[email protected]
26 27
32-100/8001.1
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EXHIBIT 1, Page 50 of 50
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Case 2:17-cv-00242-TSZ Document 25 Filed 05/19/17 Page 1 of 11
1
District Court Judge Thomas S. Zilly
2 3 4 5 6 7 8 9 10 11 12
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Kirti Tiwari, Seung Yoon Yang, Amandeep Singh, Duncan Makau, Valdeta Mehanja, Luobin Sun, Rui Zhang, and Raj Chettri,
13 14 15 16
Plaintiffs, v. James Mattis, Secretary, U.S. Department of Defense, in his official capacity,
17
PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION NOTE ON MOTION CALENDAR: May 19, 2017
Defendant.
18 19
No. 2:17-cv-00242-TSZ
Plaintiffs have established the requirements for a preliminary injunction.
20 21 22 23 24
A.
DoD's Sub-Regulatory Guidance Discriminates on the Basis of Nationality
DoD argues that its new policy "does not discriminate against a protected class and is therefore subject to rational basis review." (Opp. p. 16) Significantly, DoD does
25
not dispute that its policy is unconstitutional if it constitutes national origin discrimination
26
(which must be justified by a compelling state interest).
27 REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 1 Case No. 2:17-cv-00242-TSZ
ATKINSON, CONWAY & GAGNON 420 L Street, Suite 500 Anchorage, AK 99501 Tel 907.276.1700 Fax 907.272.2082
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1 2 3 4 5
In this case, the subject classification is "predicated on membership in a suspect . . . class," specifically being a naturalized U.S. citizen. Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). By program design, every U.S. citizen MAVNI soldier is a naturalized U.S. citizen. DoD further admits that the "no security clearance for the first
6
term of enlistment" policy has been created because of characteristics typical of naturalized
7
citizens. DoD specifically states that it created the new policy because "as a group,
8
[MAVNIs] have spent significant periods of their lives outside of the United States and have
9 10
had extensive contacts with foreign persons." (Opp. p. 4) DoD's policy indisputably distinguishes between naturalized U.S. citizen
11 12
MAVNI soldiers and natural-born U.S. citizen soldiers. MAVNI soldiers cannot obtain a
13
security clearance during their initial term of enlistment. 1 Natural-born citizens can. This is
14 15
clearly national origin discrimination. DoD argues that its discrimination against naturalized U.S. citizen MAVNI
16 17
soldiers is not national origin discrimination because DoD is not simultaneously
18
discriminating against Lawful Permanent Residents (LPRs) who naturalized during military
19
service. This makes no sense. First, this argument does not diminish the fact that U.S.
20 21
citizen MAVNI soldiers cannot obtain a security clearance during their initial term of
22
enlistment while natural-born citizens (who constitute the vast majority of Army personnel)
23
can. Second, there is no logical or legal basis to contend that, by only discriminating against
24
a portion of a suspect class, a defendant is no longer engaged in suspect class discrimination.
25 26 27
DoD's argument -- advanced by the Department of Justice no less -- is entirely novel, legally 1
The first term of enlistment is typically 6 to 8 years. (Arendt Dec. ¶ 24 n.7)
REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 2 Case No. 2:17-cv-00242-TSZ
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1 2 3 4
unsupported, subject to no limiting principle, and outrageous. Under Defendant's theory, as long as some other person or group within the same suspect class (in this case, national origin) is not similarly harmed, there is no suspect class discrimination. 2 DoD admits that it is discriminating against U.S. citizen MAVNI soldiers
5 6
because of a typical characteristic of naturalized citizens: MAVNI soldiers have not lived
7
their entire lives in the United States and likely have extensive contacts with foreign persons.
8
(Opp. p. 4) DoD says it is not similarly discriminating against LPRs because it believes that
9 10
"MAVNI recruits, as a class, have spent significantly less time in the United States than
11
other foreign-born recruits such as LPRs." (Opp. p. 4, emphasis added; see also Arendt
12
Dec. ¶ ¶ 20, 28)3 Even assuming this assertion is correct, DoD is still admittedly
13
discriminating against U.S. citizen MAVNI soldiers because they have -- as naturalized
14 15 16
citizens -- "spent significant periods of their lives outside of the United States and have had extensive contacts with foreign persons." (Opp. p. 4) This is national origin discrimination.
17
The status of national origin as a suspect class does not depend on how long a naturalized
18
citizen has lived in the U.S. or how many foreign friends and relations they have. Zobel v.
19 20 21
Williams, 457 U.S. 55, 68 (1982) ("The Constitution places the recently naturalized immigrant from a foreign land on an equal footing with those citizens of a State who are able
22
to trace their lineage back for many generations with the State's border.") (Brennan,
23
Marshall, Blackmun and Powell, concurring); Schneider v. Rusk, 377 U.S. 163, 168 (1964),
24 25 26 27
If DoD's logic was correct, then discrimination against, say, only Asian-Americans who live below the Mason-Dixon line, only particularly dark skinned African-Americans, or only Native-Americans over the age of 30, would not be suspect class discrimination. 3 No support is provided by Mr. Arendt for this assertion, it lacks any foundation, and it is wrong. (See Supp. Stock Aff.) 2
REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 3 Case No. 2:17-cv-00242-TSZ
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1 2 3 4
([t]his statute proceeds on impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make.") (Emphasis added.) 4 DoD's attempt to distinguish Plaintiffs' legal authorities is also unavailing.
5 6
(Opp. pp. 19-20) Discrimination against naturalized citizens was found unconstitutional in
7
every setting considered by the cited courts (and most of those courts made alternative
8 9 10
findings that the discrimination would not survive even rational basis review). (Pl. Mem. pp. 15-19) DoD has not cited a single case upholding discrimination against naturalized
11
citizens. Two cases cited by Plaintiffs actually involved efforts -- just like here -- to only
12
discriminate against a subgroup of naturalized citizens. Huynh v. Carlucci, 679 F. Supp. 61,
13 14 15 16
65 (D.D.C. 1988) (prohibition on issuing security clearances to naturalized citizens from 30 countries unless they have been citizens for at least five years or resided in the U.S. for at least 10 years unconstitutional under both strict scrutiny and rational basis tests); Faruki v.
17 18 19 20 21 22 23 24 25 26 27
This point is further illustrated by recent "travel ban" litigation. In Hawai'i v. Trump, ___ F.Supp.3d ___, 2017 WL 1011673 *12 (D. Hawaii), the government argued that its travel ban only "applies to six countries that Congress and the prior Administration determined posed special risks of terrorism" and could not have been religiously motivated because “the six countries represent only a small fraction of the world's 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population" (Id.) The district court rejected this argument, stating: "[t]he illogic of the Government's contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed." (Id.) See also Aziz v. Trump, ___ F. Supp.3d ___, 2017 WL 580855 *9 (E.D. Virginia). The court in Swift v. U.S., 649 F. Supp. 596, 601 n.4 (D.D.C. 1986), similarly stated in the context of an equal protection claim that "nothing in Doe [v. Casey, 796 F.2d 1508 (D.C. Cir. 1986),] suggests that while uniform discrimination against homosexuals on the basis of their sexual orientation is arguably illegal, random discrimination on the same basis is somehow permissible." 4
REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 4 Case No. 2:17-cv-00242-TSZ
ATKINSON, CONWAY & GAGNON 420 L Street, Suite 500 Anchorage, AK 99501 Tel 907.276.1700 Fax 907.272.2082
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1 2
Rogers, 349 F. Supp. 723, 733 (D.D.C. 1972) (requiring Foreign Service Officers be citizens for at least 10 years is unconstitutional under both strict scrutiny and rational basis tests).
3
Understandably, DoD makes no argument that its policy is justified by
4 5
compelling state interest. The court should accordingly find that Plaintiffs have established
6
probable success on the merits.
7
B.
8
DoD's Sub-Regulatory Guidance Does Not Have A Rational Basis
There is no evidence, and there are no reasonable grounds to believe, that U.S.
9 10
citizen MAVNI soldiers, as a class, present a greater security threat than native-born U.S.
11
citizens or Lawful Permanent Residents (LPRs). (Supp. Stock Aff.) Accordingly, there is no
12
rational basis for DoD's sub-regulatory guidance memos. See e.g., Huynh v. Carlucci, 679 F.
13
Supp. 61 (D.D.C. 1988) ("Defendant has failed to adduce sufficient evidence that the
14 15 16 17
Defense Department's blanket denial of security clearance to all recently-naturalized citizens from 30 different countries is supported by a compelling state interest or has even a rational basis.")
18
C.
19
"The heavy burden lies with the party asserting mootness to demonstrate that,
20 21 22
Plaintiffs' Claims Are Not Moot
after voluntary cessation, the challenged conduct cannot reasonably be expected to start up again." Bell v. City of Boise, 709 F.3d 890, 898 (9th Cir. 2013) (emphasis added, internal
23
quotations omitted). "A case becomes moot only when it is impossible for a court to grant
24
any effectual relief whatsoever to the prevailing party." U.S. v. Golden Valley Elec. Ass'n,
25 26 27
689 F.3d 1108, 1112 (9th Cir. 2012) (quoting Knox v. Serv. Employees Int'l Union, 132 S.Ct. 2277, 2287 (2012) (emphasis added). "Courts are particularly reluctant to find an action REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 5 Case No. 2:17-cv-00242-TSZ
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1 2 3 4 5 6 7 8
moot when the defendant voluntarily ceases the challenged conduct in the face of a pending lawsuit but continues to assert the lawfulness of the challenged conduct." Bonnichsen v. U.S., Dept. of Army, 969 F. Supp. 628, 640 (D. Or. 1997) (citing Armster v. United States District Court, 806 F.2d 1347, 1357 (9th Cir. 1986). Here DoD continues to assert the lawfulness of its new policy and has not even ceased to engage in the challenged conduct. Rather, DoD has decided that the particular MAVNIs who just happen to be plaintiffs in this litigation should now be issued
9 10
policy waivers. This gamesmanship is designed to prevent the Court from reaching the
11
merits of the dispute. This strategy was rejected in Huynh v. Carlucci, 679 F. Supp. 61, 66
12
(D.D.C. 1988) ("The Defense Department's eleventh-hour about face on this issue provides
13
Mr. Huynh no assurance that the Regulation, which on its face applies to him and which in
14 15 16
application has been applied to him in the past, will not in the future be applied to him."). Given DoD's continuing support of its challenged policy, there is no
17
assurance that DoD will continue to honor its "waivers," or that the waivers will be fully
18
recognized and promptly implemented in practice. Notably, the waivers were not issued by
19 20 21
the office that imposed the unconstitutional policy, even though DoD implicitly recognized the need for that office's approval. Specifically, the Office of the Under Secretary of
22
Defense for Personnel and Readiness issued the new policy and "oversees" the MAVNI
23
program. (Ex. 1 to Arendt Dec.; Opp. pp. 2-3) DoD accordingly sought approval of the
24
proposed waivers from the Under Secretary of Defense for Personnel and Readiness. (See
25 26 27
Ex. 7, p. 1 to Arendt Dec.) That approval was not forthcoming (neither the "Approved" or "Disapproved" box was checked). (Id.) The "waivers" were eventually issued by the lowerREPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 6 Case No. 2:17-cv-00242-TSZ
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1 2
level Acting Assistant Secretary of Defense for Manpower and Reserve Affairs. (Ex. 8 to Arendt Dec.; Supp. Stock Aff. ¶ 28)
3
Given that (1) the plaintiffs in this case are typical MAVNI soldiers (Supp.
4 5
Stock Aff. ¶ 8),5 (2) there is no principled reason for the waivers, (3) DoD stands by the
6
challenged policy, (3) the office that issued the policy has not approved of the waivers, and
7
(4) there are resulting institutional and inertial reasons for the waivers not to be fully
8 9 10 11
recognized and promptly implemented in practice, the Plaintiffs will directly benefit from both a judicial determination that DoD's new policy is unconstitutional and an injunction precluding enforcement of that policy.
12 13 14 15
Finally, this case is also not moot because Plaintiffs recently moved to amend the complaint by adding eight additional plaintiffs who have the same claims as the original plaintiffs.
16
D.
17
Plaintiffs agree that simply asserting an equal protection claim does not entitle
18
a plaintiff to a finding of likely irreparable harm. (Opp. p. 14) Plaintiffs, however, have also
19
Plaintiffs Have Demonstrated the Likelihood of Irreparable Harm
demonstrated probable success on the merits of their constitutional claim, which does
20 21
establish the likelihood of irreparable harm. Melendres v. Arpaio, 695 F.3d 990, 1002 (9 th
22
Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) ("It is well established that the
23
depravation of constitutional rights 'unquestionably constitutes irreparable injury.'"). 6
24 25 26 27
5
See also the description of the eight additional plaintiffs in Plaintiffs' proposed and lodged Second Amended Complaint. 6 DoD cites Ariz. Dream Act Coalition v. Brewer, 945 F. Supp.2d 1049, 1073 (D. Ariz. 2013), for the asserted proposition that not all equal protection violations necessarily cause irreparable injury. (Opp. p. 14) Notably, the Ninth Circuit reversed the District REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 7 Case No. 2:17-cv-00242-TSZ
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1 2 3 4 5 6 7 8 9 10 11
Finally, Plaintiffs are not relying on "speculation about the new policy's potential effects" (Opp. p. 1), but rather on the direct, serious and adverse effects they have already personally experienced as a result of the new policy. (See Plaintiffs Affidavits) 7 8 E.
DOD's Blanket Security Clearance Prohibition is Not Entitled to Deference
Plaintiffs do not ask the court to "intrude" on any matter involving unique "military expertise." (Opp. p. 22) Furthermore, "courts have been willing to defer to the military only within the confines of ordinary constitutional analysis. . . . This principle applies with even greater force to equal protection claims since it has traditionally been the domain of the federal courts to scrutinize classifications challenged on equal protection
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Court's finding of no irreparable harm stating, inter alia, "Plaintiffs' inability to obtain driver's licenses likely causes them irreparable harm by limiting their professional opportunities. . . . Plaintiffs' entire careers may be constrained by professional opportunities they are denied today." Ariz. Dream Act Coalition v. Brewer, 757 F.3d 1053, 1068 (9 th Cir. 2014). See also Faruki v. Rogers, 349 F. Supp. 723, 726 (D.D.C. 1972) ("[W]e must take notice of the probability that this delay, whether it is long or short, will have a deleterious effect on naturalized citizens' opportunity for advancement in the Service because of the weight that is inevitably given to seniority.") 7 DoD also fails to honestly acknowledge that its treatment of U.S. citizen MAVNI soldiers -- regardless of the resulting legal ramifications -- is directly contrary to the promises DoD made to those soldiers at the time of enlistment. DoD selectively discusses other aspects of the MAVNI Information Paper, but simply ignores the central fact that DOD unambiguously told MAVNI soldiers that "[o]nce you enter the Army, you will have all the same opportunities afforded to you as any other Soldier in the U.S. Army." (See e.g., Mehanja Aff. Ex. 3, p. 7) 8 Plaintiffs cannot be faulted for an alleged six month "delay" in moving for a preliminary injunction. (Opp. p. 1) Most MAVNIs were unaware that their security clearances were being held up on account of the September 30, 2016 memo until weeks or months after the memo was issued. MAVNIs also do not have a legal department available to challenge unconstitutional DoD policies. MAVNIs are also enlisted soldiers without the funds to hire counsel to take on major litigation. Finally, any delay attributable to the undersigned counsel was minimal in the overall circumstances of this case and should not in any event be held against the MAVNIs. REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 8 Case No. 2:17-cv-00242-TSZ
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1 2
grounds." Cammermeyer v. Aspin, 850 F. Supp. 910, 915 (D. Wash. 1994), app. dismissed and remanded, 97 P.3d 1235 (9th Cir. 1996).
3
F.
4 5 6 7 8 9 10 11 12 13 14
DoD argues that the equities and public interest do not support the issuance of a preliminary injunction because "Plaintiffs' requested relief would result in DoD having to screen every MANVI recruit on an individual basis, which in turn would likely either seriously tax DoD's ability to conduct the fulsome investigations necessary for these individuals (and increase the risk that unsuitable persons gain access to classified information) or result in recruits not receiving security clearances because an adequate background investigation could not be completed." (Opp. p. 24) This argument is not persuasive. DoD has already individually screened MAVNI soldiers to SSBI standards
15 16 17
The Equities and the Public Interest Support a Preliminary Injunction
(which is the standard required for a Top Secret clearance). MAVNIs are already "not receiving security clearances" on account of the challenged policy. If the "fulsome" SSBI
18 19
investigation (now called a Tier 5 investigation) discloses relevant adverse information, or if
20
DoD does not have sufficient information to make a security determination, DoD can deny
21
that individual U.S. citizen MAVNI soldier a security clearance. 9 As the Court stated in
22
Huynk v. Carlucci:
23
A preliminary injunction against enforcement of the Regulation will not harm any other parties. Defendant is only required to treat plaintiffs as he treats other citizens, just as was done before the Regulation was implemented. Defendant is not required to
24 25 26 27
9
Or, like any other soldier, if adverse information is subsequently discovered, DoD can revoke their security clearance. REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 9 Case No. 2:17-cv-00242-TSZ
ATKINSON, CONWAY & GAGNON 420 L Street, Suite 500 Anchorage, AK 99501 Tel 907.276.1700 Fax 907.272.2082
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1 2 3 4 5 6
grant security clearance under circumstances that might compromise national security. Defendant is not inhibited from considering all factors deemed appropriate and necessary in the interest of national security. Individualized consideration of plaintiffs is all that is required. (679 F. Supp. at 67) Consistent with the Constitution, DoD cannot adopt a blanket prohibition on
7
all U.S. citizen MAVNI soldiers applying for or receiving a security clearance in their initial
8
term of enlistment. "Citizenship obtained through naturalization is not second-class
9 10 11 12 13 14 15 16 17 18 19 20 21
citizenship." Knauer v. United States, 328 U.S. 654, 658 (1946). The waivers DoD has issued to every Plaintiff in this case (save Tiwari whom DoD now says does not need one) illustrate the unfairness, indefensibility, and folly of DoD's position. DATED this 19th day of May, 2017. ATKINSON, CONWAY & GAGNON Attorneys for Plaintiffs By: s/Neil T. O’Donnell Neil T. O’Donnell, Esq. 420 L Street, Suite 500 Anchorage, AK 99501 Phone: (907) 276-1700 Fax: (907) 272-2082
[email protected] Alaska Bar No. 8306049 Pro Hac Vice application submitted herewith
22 23 24 25 26 27 REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 10 Case No. 2:17-cv-00242-TSZ
ATKINSON, CONWAY & GAGNON 420 L Street, Suite 500 Anchorage, AK 99501 Tel 907.276.1700 Fax 907.272.2082
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1
MACDONALD HOAGUE & BAYLESS Attorneys for Plaintiffs, Local Counsel
2
By: s/Joseph R. Shaeffer Joseph R. Shaeffer, WSBA #33273 1500 Hoge Building 705 Second Avenue Seattle, Washington 98104 Phone (206) 622-1604 Fax: (206) 343-3961
[email protected]
3 4 5 6 7 8
CERTIFICATE OF SERVICE
9 10 11 12
I hereby certify that on the 19th day of May, 2017, I filed the foregoing with the Clerk of Court using the CM/ECF System which will send notification of such filing to the following: Nathan Swinton, Esq. U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 Tel: 202-305-7667 Fax: 202-616-8470
[email protected]
13 14 15 16 17 18 19
/s/ Deborah A. Pratt Deborah A. Pratt, Legal Assistant
[email protected]
20 21 22
32-118/8001.1
23 24 25 26 27 REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 11 Case No. 2:17-cv-00242-TSZ
ATKINSON, CONWAY & GAGNON 420 L Street, Suite 500 Anchorage, AK 99501 Tel 907.276.1700 Fax 907.272.2082
Case 2:17-cv-00242-TSZ Document 26 Filed 05/19/17 Page 1 of 16
District Court Judge Thomas S. Zilly
1 2 3 4 5 6 7 8 9 10 11 12 13
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Kirti Tiwari, Seung Yoon Yang, Amandeep Singh, Duncan Makau, Valdeta Mehanja, Luobin Sun, Rui Zhang, and Raj Chettri,
Plaintiffs,
16 17 18 19
SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK
v. James Mattis, Secretary, U.S. Department of Defense, in his official capacity,
Defendant.
14 15
No. 2:17-cv-00242-TSZ
STATE OF ALASKA THIRD JUDICIAL DISTRICT
) ) )
ss.
MARGARET STOCK, being first duly sworn upon oath, deposes and says: 1.
I previously provided an Affidavit in this case, and I am providing this
20
new Affidavit to supplement the prior one. To give context to my statements, in addition to
21
the background and qualifications I set out in my original affidavit, I also now note that I am
22 23 24
a 1985 graduate of Harvard College, a 1992 graduate of the Harvard Law School, a 2001 graduate of the Harvard Kennedy School of Government, and a 2006 graduate of the United
25
States Army War College. I served as an assistant and then an associate professor of law at
26
the United States Military Academy at West Point from 2001 to 2010. While at West Point,
27 SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK - 1 Case No. 2:17-cv-00242-TSZ
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1 2 3 4 5
I was the director of the National Security Law course in the Department of Law, and I taught national security law, Constitutional law, and military law, among other subjects. 2.
I am a nationally-recognized expert on immigration and citizenship
law, particularly as it applies to military matters. I authored the leading treatise on the
6
subject, Immigration Law & the Military (1st ed. 2012, 2nd ed. 2015). I am regularly asked to
7
speak on the topic to various groups including Federal immigration judges, the Federal Bar
8
Association, the American Immigration Lawyers Association, the Council on Foreign
9 10
Relations, and various military groups (including U.S. Army Recruiting Command, and the
11
Navy and Marine Corps Legal Assistance offices). I have also testified before Congress on
12
several different occasions with regard to matters involving immigration issues and military
13
service. I have written numerous scholarly articles on issues relating to immigration and
14 15 16
national security, and have served as an advisor on those issues to various Federal or military officials. I am also on the faculty for the periodic “National Security Law Institute” seminar
17
run by the University of Virginia School of Law in Charlottesville, VA; I lecture there
18
regularly on the topic of immigration law and national security.
19 20 21
3.
I have reviewed the Declaration of Christopher P. Arendt filed in
Support of DoD's Opposition to the Motion for a Preliminary Injunction. The Declaration
22
is notable for the absence of any facts or data comparing the MAVNI recruits with other
23
military recruits, such as native-born U.S. citizens, green card holders (Lawful Permanent
24
Residents or LPRs), and other non-LPR, non-citizen military recruits such as Pacific
25 26 27
Islanders. Other recruits pose a greater security concern and yet are not subjected to the rigorous background checks imposed on MAVNI recruits.
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1 2 3 4 5
4.
U.S. military recruiters have been challenged since 1775 with recruits
who misstate their credentials for military service for all sorts of reasons. U.S. citizens trying to enlist in the military regularly misstate their age, name, criminal history, use of drugs, educational credentials, and other critical details. Of note, one such recruit was the late
6
Senator Mike Mansfield of Washington, a native-born U.S. citizen who enlisted in the United
7
States Navy at the age of 14 after presenting a fraudulent birth certificate to Navy recruiters.
8
He was discharged after his real age was discovered. Mike Mansfield then enlisted underage
9 10
in the Army, was discharged, and then enlisted at age 17 in the Marine Corps. Despite lying
11
repeatedly about his age to military recruiters, Mike Mansfield eventually went on to a stellar
12
career in the United States Senate.
13 14 15 16 17 18 19 20 21
5.
The vast majority of military recruits today are United States citizens.
Immigrants (including green card holders and non-LPR recruits such as Pacific Islanders and MAVNIs) are typically less than 5% of the force in any given year. 6.
A person can become a United States citizen by being born within the
geographical boundaries of the United States, by deriving U.S. citizenship through U.S. citizen parents or grandparents, or by becoming a naturalized U.S. citizen. U.S. citizens born in the United States may have ancestors who have lived in the U.S. for generations, or they
22
may have parents who were in the United States on tourist visas; regardless of how many
23
foreign relatives they may or may not have, U.S. citizens at birth are treated similarly by the
24
U.S. military and are allowed to apply for security clearances upon enlistment. U.S. citizens
25 26 27
who join the military may or may not have any significant time in the United States before they enlist; in fact, hundreds of U.S. citizens join the U.S. Armed Forces each year although
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1 2 3 4 5
they have spent very little time in the United States before they enlisted. The military is also challenged by the fact that many purported “native born” U.S. citizens have questionable U.S. birth certificates; I am aware of hundreds of cases of persons who have been recruited into the U.S. Armed Forces as “native born” U.S. citizens but whose birth certificates later
6
turned out to be questionable or fraudulent. LPRs are also regularly recruited and later
7
discovered to have obtained their LPR status improperly.
8
7.
As I mentioned in my original affidavit, the MAVNI program began
9 10
with a briefing I gave to the Secretary of the Army in the fall of 2007. Since my retirement
11
from the Army Reserve in 2010, I have generally kept abreast of the status of, and changes
12
to, the MAVNI program through my contacts with past and/or present military personnel;
13
review of orders, reports and analyses regarding the program; and contacts with numerous
14 15 16
current and former MAVNI soldiers, sailors, and airmen. 8.
According to their affidavits, the MAVNI plaintiffs in this case have
17
lived in the United States between six years (Kirti Tiwari and Luobin Sun) and 16 years
18
(Amandeep Singh). These lengthy residences in the United States are not unusual for
19 20 21 22 23 24 25 26 27
MAVNI recruits. Many MAVNIs have attended high school and/or college in the U.S. for four or more years and then worked in the U.S. under work visas for several years before joining one of the U.S. Armed Services through the MAVNI program. 9.
I have reviewed the concerns raised by Christopher Arendt in his
Declaration. Mr. Arendt provides no factual basis for his assertion that the Legal Permanent Resident (LPR) population has “on average been in the United States for a significantly greater amount of time than the MAVNI population.” (Arendt Dec. ¶ 20). Furthermore, the
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relevant population of LPRs for purpose of this lawsuit would be “recruitable” LPRs -- that is, LPRs of an age that makes them eligible for enlistment into the US Armed Services. The relevant population is not the general population of LPRs whose average time in country is skewed upwards by significant numbers of older LPRs of long residence who are unable to
6
pass the citizenship exam and who therefore have not naturalized, and LPRs who are unable
7
to naturalize due to criminal records. Elderly LPRs are not recruited by the military, despite
8
their long residence in the United States.
9 10
10.
The recruitable LPR population (that LPR population eligible and
11
qualified for military service) consists of people who have typically been in the United States
12
for a much shorter period of time than MAVNIs. Unlike MAVNIs and other non-LPRs
13
who enlist in the U.S. Armed Services, LPRs usually naturalize without enlisting in the
14 15 16
military. LPRs who have been in the United States for three to five years or more are usually eligible to naturalize as civilians independent of any military service. LPRs who come to the
17
United States as children often derive U.S. citizenship automatically before they turn
18
eighteen (18) and then join the U.S. military as U.S. citizens.
19 20 21
11.
LPRs who have been in the U.S. long enough to qualify to naturalize as
civilians (three to five years) typically try to naturalize before they enlist, because their job
22
opportunities in the military are greater if they enlist as U.S. citizens. In my experience,
23
many LPRs who join the military today have only been in the United States for a short
24
period of time -- typically much less than five years -- and seek military service as a means to
25 26 27
expedite their citizenship because they have not been in the United States long enough to qualify for U.S. citizenship as civilians.
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12.
For example, I know of a young man from Thailand who recently
enlisted in the United States military within a few weeks after arriving in the United States on an immigrant visa, issued to him in Bangkok, Thailand. He immigrated to the United States based on his mother’s marriage to a United States citizen. The young man arrived in the
6
United States shortly after turning eighteen (18); he had spent his entire life in Thailand up
7
to that point, and had never been to the United States. Under ordinary naturalization rules,
8
this young man would be required to wait five (5) years to apply to naturalize as a United
9 10
States citizen. With his green card in hand, however, he was able to enlist in the U.S. military
11
immediately after arriving in the United States, and was not required to undergo extensive
12
background checks before shipping off to basic training. This young man had spent only a
13
few months of his life in the United States before he joined the U.S. military and applied for
14 15 16
expedited naturalization through military service. This young man’s entire family is Thai with the exception of his recently naturalized mother. This young man is not an unusual
17
case, and I have encountered hundreds of similar cases in the course of my career in the
18
United States Army Reserve. Many LPRs have not been in the United States very long
19 20 21
before they decide to enlist in one of the U.S. Armed Services. There is no requirement that LPRs must have any time in the United States before enlisting; they are merely required to
22
have LPR status.
23
13.
24 25 26 27
Similarly, United States citizens are not required to have any significant
amount of time in the United States before enlisting in one of the U.S. Armed Services. Many United States citizens are born overseas and spend substantial amounts of time overseas before enlisting in one of the U.S. Armed Services. It is common in today’s
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globally-connected society for Americans to be born overseas to United States citizen parents who are residing in a foreign country. A recent example of such a case was featured in the Washington Post, which ran a story on May 1, 2017 titled “He Fought with Russian-
5
Backed Militants In Ukraine. Now He’s A U.S. Soldier.” 1 The story explained that U.S.
6
citizen Guillaume Cuvelier was born and raised in France, having inherited U.S. citizenship
7
through his mother, and that he had spent most of his life outside the United States before
8 9 10
coming back to the United States and enlisting in the U.S. Army. Because he is a United States citizen from birth, Cuvelier was permitted to enlist in the U.S. Army without
11
undergoing extensive background checks. From the news article, it appears that he had been
12
in the United States for less than a year before he enlisted and shipped out to basic training.
13 14 15
14.
Many LPRs and U.S. citizens who enlist also have numerous foreign
relatives. A U.S. citizen born in the United States to parents who were in the United States
16
on a tourist visa may be the only U.S. citizen in his entire family, and yet will be eligible to
17
enlist in the U.S. Armed Services without undergoing extensive background checks and
18
without regard to the number of foreign relatives that he has and the limited amount of time
19
he has spent in the United States.
20
15.
21 22
DoD has not presented, and I am not aware of, any data or studies that
show that MAVNI soldiers have presented national security problems at any frequency
23 24 25 1
26 27
Thomas Gibbons, “He Fought With Russian-Backed Militants in Ukraine. Now He’s A U.S. Soldier,” Washington Post, May 1, 2017, available at http://wapo.st/2qqrQb1?tid=ss_mail&utm_term=.fd2d9a5b5351. SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK - 7 Case No. 2:17-cv-00242-TSZ
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1 2
higher than U.S. citizens or Legal Permanent Residents (LPRs) or other noncitizens who enlist in the military.
3
16.
4 5
In my experience, the MAVNI population is much less of a security
threat than other persons who are permitted to enlist in the U.S. Armed Services. Before a
6
person can enlist in the U.S. Armed Services through the MAVNI program, the person must
7
in most cases be a lawful nonimmigrant alien who has been in the United States lawfully for
8
at least two years. 2 Holding a lawful nonimmigrant status necessarily means that the person
9 10
has already undergone extensive background screening through the United States
11
Department of State, the United States Department of Homeland Security, or both agencies,
12
before entering the United States and/or being accorded the nonimmigrant status that
13 14 15
qualified the person to enlist through MAVNI. Before granting a non-immigrant status, DOS and DHS check national security, terrorism, gang, and criminal databases and collect
16
biometric information on the visa applicant, and typically conduct a personal interview. The
17
thorough background checks conducted on nonimmigrant visa applicants were significantly
18
strengthened in the post-9/11 era and are now more extensive than any pre-enlistment
19
background checks that DoD does on U.S. citizen or LPR enlistees.
20
17.
21
Unlike U.S. citizens, LPRs, and other noncitizen recruits such as Pacific
22
Islanders, MAVNI candidates for enlistment are categorically barred from being granted pre-
23
enlistment criminal conduct waivers.3 Also, all MAVNI recruits are individually approved
24 25 26 27
2
Recently, DOD also has allowed persons with “Deferred Action for Childhood Arrivals” (DACA) status to enlist through the MAVNI program as well, although these numbers are small. 3 Because MAVNI candidates have been maintaining a lawful nonimmigrant status for two years, however, they do not have criminal records of any significance. They are SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK - 8 Case No. 2:17-cv-00242-TSZ
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for enlistment by the U.S. Department of Homeland Security before they are permitted to sign an enlistment contract. In contrast, U.S. citizens and other noncitizens who enlist do not typically undergo extensive pre-enlistment background screening of the type inherent to the MAVNI population. 18.
Mr. Arendt provides very limited, anonymous descriptions of a handful
of MAVNI cases from what he describes as a population of more than 10,000 MAVNIs. (Arendt Dec. ¶ 23) Mr. Arendt does not explain that similar or even heightened security
9 10
concerns are presented by many U.S. citizen and LPRs recruits -- these recruits also often
11
have foreign relatives, have lived in foreign countries, present false documents, fail to reveal
12
critical information about their backgrounds, falsify transcripts, have attended foreign
13
universities or foreign military academies, and so forth. The striking point of Mr. Arendt’s
14 15 16 17 18 19 20 21
Declaration is that he cites very few problems out of a population of more than 10,000 MAVNI recruits. 19.
The first event Mr. Arendt lists is that “a number of individuals
accessed into the military based on receiving visas for universities that did not exist.” (Id.) Mr. Arendt appears to be referring to a small number of cases involving several foreign students who were approved by the U.S. Department of Homeland Security to enlist
22
through the MAVNI program although these students had enrolled in U.S. universities that
23
were approved by DHS to enroll foreign students, but where DHS later revealed that the
24
schools did not meet the requirements for DHS approval. For example, one of the cases to
25 26 27
different from the U.S. citizen and LPR population in this regard—high percentages of U.S. citizens and LPRs who attempt to enlist have criminal records and cannot enlist without being granted a “moral” or conduct waiver. SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK - 9 Case No. 2:17-cv-00242-TSZ
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1 2 3 4
which Mr. Arendt refers involves an Army Soldier named Xilong Zhu, who was approved by DHS for enlistment as reflected in the attached Form G845. (Ex. 4) 4 Mr. Zhu was approved by DHS to enlist based on his enrollment in the University of Northern New
5
Jersey (UNNJ). The University of Northern New Jersey was revealed in April 2016 by the
6
New York Times to be a fake school set up by the United States Department of Homeland
7
Security to entrap foreign student brokers. The DHS UNNJ “sting operation” is now the
8 9 10
subject of a class action lawsuit in the Eastern District of New York, whereby the students who were enrolled in the DHS fake school have sued DHS. (See Ex. 5, First Amended
11
Class Action Complaint For Injunctive and Declaratory Relief, Civil Action No. 16-6422
12
(ENV), filed Dec. 12, 2016, E.D. N.Y.)5 Mr. Arendt provides no evidence that the MAVNI
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
4
Mr. Zhu has a U.S. citizenship application pending with the USCIS office in Seattle, WA, and plans to shortly file a mandamus complaint against USCIS in the Western District of Washington, for failure to process his application timely. He is now an honorably discharged military veteran. Mr. Zhu has given me permission to discuss the facts of his case in this lawsuit. 5 The complaint alleges, inter alia, that “[b]y all outside appearances, UNNJ was a legitimate university occupying a building in Cranford and maintaining a highly visible web presence . . . ‘Dr. Brunetti’ regularly corresponded with students and met them in person in UNNJ's Cranford office. DHS bolstered UNNJ's veneer of legitimacy by listing the school on DHS's official website as certified for participation in SEVP [Student and Exchange Visitor Program]. It also obtained accreditation for UNNJ by the Accrediting Commission of Career Schools and Colleges (‘ACCSC’), a U.S. Department of Education-recognized accrediting institution, and by obtaining recognition for UNNJ by the New Jersey Department of Education. . . . Brokers principally, although not exclusively, targeted for enrollment in UNNJ noncitizens in F-1 status who had graduated from undergraduate or graduate programs at a U.S. university and worked lawfully for U.S. companies through OPT [Optional Practical Training]. Together, the brokers and UNNJ ensnared these students with promises that they could continue to lawfully working in the U.S. through CPT [Curricular Practical Training] without an immediate need to attend classes at UNNJ. Some students were told they could not enroll in classes because they were full; others that the school would soon offer classes online. Students were assured, however, that F-1 program rules allowed UNNJ to lawfully offer CPT to students who enrolled in UNNJ's postgraduate programs.” (Ex. 5, ¶ ¶ 30 – 34) SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK - 10 Case No. 2:17-cv-00242-TSZ
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soldiers who enrolled in the fake DHS school are any threat to national security, any more than are U.S. citizens or LPRs who have attended schools like Trump University and who later enlisted in one of the U.S. Armed Services. Moreover, Mr. Arendt does not explain why U.S. citizens or LPRs who attended the fake DHS school are eligible to enlist without
6
significant background checks, but MAVNIs who attended the same school allegedly present
7
security concerns that require extensive counterintelligence screening.
8
20.
Mr. Arendt vaguely references other cases that appear to be ones with
9 10
which I am familiar. He appears to fault an individual who failed to reveal certain
11
background facts of his educational history on a Standard Form 86; in that individual’s case,
12
the person’s military recruiter filled out the form and submitted it without the correct
13
information, but there has been no allegation that the person is any threat to U.S. national
14 15 16
security and the facts of his background were posted on “LinkedIn” and other social media, where they could be easily checked. Mr. Arendt refers to another individual who made
17
strange statements about supporting China and the 9/11 terrorists; this appears to be a
18
reference to an individual who was later diagnosed with severe schizophrenia, which he
19 20 21
developed after a combat tour in Afghanistan; the soldier was medically discharged from military service. (This same individual also offered to singlehandedly overthrow the Chinese
22
government with his “special mental powers.”) Mr. Arendt expresses surprise that a
23
MAVNI attended a foreign military university and therefore has classmates who work for a
24
foreign government intelligence agency, despite that fact that persons who meet that
25 26 27
description regularly attend U.S. colleges and universities (including U.S. military schools such as Command and General Staff College, the Army War College, and the Navy War
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College). Persons of this description have also enlisted in the U.S. Armed Services as U.S. citizens or LPRs. 21.
Mr. Arendt does not cite a single criminal or terrorism or espionage
case involving any MAVNIs; in contrast, I am aware that there have been dozens of criminal
6
and terrorism and espionage cases involving U.S. citizens who have enlisted in the military.
7
Examples include the ongoing case of Nidal Malik Hasan, a native-born American citizen
8
and Army officer who held a security clearance and who murdered 13 people -- including
9 10
three former immigrants who had naturalized as U.S. citizens through military service -- at
11
Fort Hood, Texas on November 5, 2009; Aaron Alexis, a native-born American who served
12
in the U.S. Navy, received a security clearance despite a history of bad behavior, and who,
13
after being discharged from active duty, killed twelve people in the Navy Yard in
14 15 16
Washington on September 16, 2013; Chelsea Manning, a native-born U.S. citizen and U.S. Army soldier who was convicted of numerous counts of violating the Espionage Act and
17
other offenses after leaking massive amounts of classified documents to Wikileaks; and
18
Edward Snowden, a native-born U.S. citizen who enlisted in the U.S. Army Reserve in 2004
19 20 21
and who fled the United States in 2013 to seek asylum in Russia after leaking thousands of highly classified documents to the news media. There is also the Cuvelier case discussed
22
above, which involved a U.S. citizen born overseas who had spent very little of his life in the
23
United States and had a history of fighting alongside Russian separatists in Ukraine and was
24
a member of a French extremist political party.
25 26 27
22.
The DoD Accessions Policy Directorate, together with the Defense
Personnel Security Research Center, conducted a lengthy study in 2005 titled “Screening for
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Potential Terrorists in the Enlisted Military Accessions Process.” (Pages 1 – 36 of this lengthy report are attached as Exhibit 6) The study defined a "potential terrorist" broadly as "a person who has sympathy for, or is a member of, a group that is both disloyal and hostile toward the U.S. government." (Id. p. 25) The study concluded that "[t]o the extent there is
6
an insider threat, the opinion of active duty personnel and counterterrorism and
7
counterintelligence experts and the evidence from case studies described in this report
8
suggest that it is not from new recruits. Rather, the threat derives from active duty persons
9 10
being recruited or converting to radical ideologies out of religious conviction or after being
11
disaffected with a commander, a fellow soldier, an assignment, or military service in
12
general . . .") (Id. at pp. 11, 36)
13
23.
14 15 16
All the information I have seen regarding MAVNI soldiers, including
the HumRRo analysis marked as Exhibit 1 to my original affidavit, shows that MAVNI soldiers outperform the general pool of soldiers on virtually every measure for which they
17
have been evaluated. Among other notable points, they are much less likely to have criminal
18
issues during their enlistment than U.S. citizen or LPR recruits, likely because (among many
19 20 21 22 23 24 25 26 27
reasons) they are ineligible for conduct waivers when they seek to enlist. 24.
The HumRRO report states that:
In providing examples of noteworthy performance by CFLMAVNI Soldiers, supervisors reported commendable performance more than nine times more frequently than problematic performance. The most frequent reported examples of noteworthy performance involve the following: * Strong job performance, * Commendable personal characteristics,
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* High degree of effort and hard work, and * Extending beyond current roles to meet new challenges and requirements. (See Ex. 1, p. 16 to my original Affidavit) 25.
Mr. Arendt clarifies in his Declaration that the September 30, 2016
6
policy memo prohibits all MAVNI soldiers from applying for or receiving a clearance in
7
their first term, not just critical foreign language (CFL) enlistees. (Arendt Dec. p. 13, n.7)
8
This recent policy change by DoD means that doctors enlisted as Health Care Professionals
9 10
(HCPs) through the MAVNI program now cannot practice medicine during their first term
11
of enlistment because doctors in the Army must qualify as officers, and to become an
12
officer, an individual must be eligible for and receive a security clearance. Mr. Arendt’s
13
Declaration has caused great consternation among the population of Health Care
14 15 16 17 18 19 20 21 22 23 24 25 26 27
Professionals recruited under the MAVNI program because Mr. Arendt’s Declaration indicates that they will no longer be able to serve as military Health Care Professionals, despite the fact that they were specifically recruited for that purpose. 26.
The other branch of the MAVNI program includes individuals
recruited for their critical foreign language skills (CFLs). A soldier cannot serve as a military linguist, however, unless he has a security clearance. So MAVNIs now cannot serve as military linguists during their initial term of enlistment. 27.
Contrary to Mr. Arendt's statement, the MAVNI program is not the
only program that allows recruits who are not citizens or LPRs to enlist and gain a path to U.S. citizenship. (See Arendt Dec. ¶ ¶ 6, 9) The military enlistment statute, 10 USC 504(b)(2), also allows the enlistment of non-citizen Pacific Islanders. These individuals are
SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK - 14 Case No. 2:17-cv-00242-TSZ
ATKINSON, CONWAY & GAGNON 420 L Street, Suite 500 Anchorage, AK 99501 Tel 907.276.1700 Fax 907.272.2082
Case 2:17-cv-00242-TSZ Document 26 Filed 05/19/17 Page 15 of 16
1 2 3 4 5
not U.S. citizens or LPRs, but they are permitted to enlist outside the United States, without any prior period of time in the United States, and are also permitted to naturalize shortly after enlistment. They do not undergo the extensive checks that MAVNI recruits undergo from DOS and DHS prior to coming to the United States because they are not required to
6
obtain non-immigrant visas or live in the U.S. legally for two years before they enlist. They
7
are also not subjected to the extensive background checks required of MAVNI recruits,
8
despite having no residence in the United States at all prior to enlistment. Finally, they all
9 10
have foreign relatives. 6 28.
11 12 13 14 15
After this lawsuit was filed, Stephanie Barna, the Acting Assistant
Secretary of Defense for Manpower & Reserve Affairs signed a Memorandum granting “exceptions to policy” to all but one of the named plaintiffs in this lawsuit. Unfortunately, however, the DOD policy at issue was not issued by the Assistant Secretary of Defense for
16
Manpower and Reserve Affairs, but by the Under Secretary of Defense for Personnel and
17
Readiness, a higher level official. It is unclear whether an “exception to policy” issued by a
18
lower level official is binding on the Under Secretary of Defense for Personnel and
19
Readiness. The document provided by Mr. Arendt with his Declaration indicate that the
20 21 22
exception to policy was sought from the Under Secretary of Defense for Personnel and Readiness (Arendt Dec. Ex. 7) but that office failed to approve any of the exceptions.
23 24 25 26 27
6
See Thomas Gibbons, "Uncle Sam Wants Micronesians For US Military," Christian Science Monitor, May 5, 2010, ("US military recruiting from the Federated States of Micronesia, per capita, leads all American states.") available at http://www.csmonitor.com/World/Asia-Pacific/2010/0505/Uncle-Sam-wantsMicronesians-for-US-military. SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK - 15 Case No. 2:17-cv-00242-TSZ
ATKINSON, CONWAY & GAGNON 420 L Street, Suite 500 Anchorage, AK 99501 Tel 907.276.1700 Fax 907.272.2082
Case 2:17-cv-00242-TSZ Document 26 Filed 05/19/17 Page 16 of 16
Case 2:17-cv-00242-TSZ Document 26-1 Filed 05/19/17 Page 1 of 4
EXHIBIT 4 TO SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK IN SUPPORT OF REPLY TO MOTION FOR PRELIMINARY INJUNCTION
Case 2:17-cv-00242-TSZ Document 26-1 Filed 05/19/17 Page 2 of 4
3530 OMB No. 16 IS·Oll>I: Expires OJ/3 lnOIS
Deparlmtnt of m,mebnd Sccuri1y U.S. Citizenship and Jmmigr.ilion Setvii:ef
Form G-845, Document Verification Request .. ·: .
· To: U.S. Citizenship and Immigrat~on Services (USClS) Attn; USClS SAVE Program St~t11s Verification Office
.
9. Check all that apply:
[81 a. Photocopy of primary immigration document
attached. Ensure copies arc tcglble. lf there is print on both sides of the immigralion document. attach a copy of rront and back.
From: Type or Stamp Name ~nd Address of Registered Agcnty US ~rmy Recruiting Command G3,
F,EP.D
D b, Other Informatien All.ichcd (spccil)· documents): SJ5C
:
l307 Third Ave. Fort KnoY.,
h"l 40121
rrint tk.lr1y since USCIS may use above agency odclrcss \\'hh
i1
No. 10IYiadow c11Velope.
·-·····-···------------'
'-----· ..
1. Immigration Document Number:: AJicn Registralicn Number (A·Ntin1bcr)
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T: --.----,---,
1·94 (Arrivnl-Dcparture Record) ]\lumber
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7 ~ 9~ 3
i s ; 3~ oI
Other immigration number {ir A-Number/1-94 Number available]:
10. Benefit
not
'--~~~~~~..:.-~~~~~~~-'
Identify document conlaining. the ~lhcr immigration number. .2. Applicant's name as shown on th~ immigration cocumcn1 (Last, First, Middle) :
lzhu
Xilong
O TANF O Education
D
Unemployment Insurance
O
Employment Authorization
O
l'ood Stamps
O
0
Housing Assistance
0
Medicaid/Medical Assistance
O
BackgroundCheck
Gran\/ Loan/ Work Study
O -·-
O
--
Soclal Security Number
SSJ orRSOI
Driver's License/ID ........,.,...... ,
__
[81 Olhcr (spcciry below) Military
3. Nationality
jchinese 4. OatcofBirth (mm/ddlyyyy):~
1 t. Nameof AgencyOfficial
joJ/26/
S. Social Security Number;
G3
12. Title of A!t<:nC\' Oflicial
lusARSC
,.
6. Student and Exchange Visitor Information System (SEVIS) Nurnben s-
13. Telephone Numbcr{includc area code)
(Q)CJ-1
7. Case Veriflcatlon Number
!e?Q/6'/7 70
14. !=';ix Number (include area code>:! (502) 626-0940
S. Registered Agency Case Number:
is, Date (mm/dd/yyyy): •
I ! !
Fomt 0·845 01/08112 N
EXHIBIT 4, Page 1 of 3
Case 2:17-cv-00242-TSZ Document 26-1 Filed 05/19/17 Page 3 of 4
Registered Agency Comments
USCIS RESPONSES: After review of the documents and/or information submitted, and/or of our records, we find that the document appears valid and relates to a/an:
D J. D 2. D 3.
0
7.
(INA).
Lawful Permanent Resident alien of the United States. Conditional Resident alien of the United States. Alien employment authorized in the United States as indicated:
D a. No expiration (indefinite) Ob. Expires on (mmfddlyyyy):
O c.
!~-------'
Prior employment authorization date(s):
Alien paroled into the United States under section 212 of the Immigration and Nationality Act
D a.
No expiration (Indefinite)
Db.
Parole granted on (mm/dd/yyyy):
Oc,
Parole expires on (mm/dd/yyyy):
0
8. Cuban/Haitian entrant of the United States.
0
9. Conditional entrant of the United States.
~10. Nonimmigrant alien. S ecif t e or class below : Fl until 07/31/2017
D
D 11. 0
American Indian born in Canada to whom the provisions of section 289 of the INA apply. Date status recognized (mm/dd/yyyy):...
4. Alien not employment authorized in the United States.
D 5.
D 6.
Alien has an application pending for (specify USCIS benefit):
Alien granted asylum or refugee status in the United States.
0
I
_,
12. U.S. Citizen.
OTHER USCIS RESPONSES:
0
13. USCIS is searching indices for further information.
0
14. This document is not valid because it appears to be: (Check all that apply)
D a. Expired Ob. Altered O e. Counterfeit Form G·84S O 1/08/12 N Page: 2
EXHIBIT 4, Page 2 of 3
Case 2:17-cv-00242-TSZ Document 26-1 Filed 05/19/17 Page 4 of 4
M'AVN\
3560 · · ·?lff~··.· ·
. . .....{.-·"::~i :.· ·, :.
. · . . .: . :/:.-2::if{:~.~.~.:~.~i:
0
1. Unable to process request without an original consent of disclosure statement signed by the applicant.
· 1
lJSCIS Stamp
Resubmit request.
0
2. No determination can be made from the information submitted. Obtain copy of the original alien registration document. Resubmit request.
D 3. D 4.
No determination can be made without seeing both sides of the documents submitted. Resubmit request.
JUN 2 6 2015
Cannot read document copy. Resubmit request,
~~O_ili_er_:
~
AV/ BUF 08
The applicant has maintained continuous legal status in a MAVNI category (Fl) for the previous two years. The applicant does not appear to have been out of the coun;:ry for more than 90 days in a single trip during the past two years.
MPA IN!TIALS _
APPROVED MUST ENLIST IN DEP/DTP PRIOR TO 31 July 2017. MUST BE IN DEP AT LEAST 180 DAYS
FarmG-84501(08/12N Page3
EXHIBIT 4, Page 3 of 3
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EXHIBIT 5 TO SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK IN SUPPORT OF REPLY TO MOTION FOR PRELIMINARY INJUNCTION
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------x JIE FANG; SHAOFU LI; KAUSHALKUMAR PATEL; HIRENKUMAR PATEL; XIAOYU ZHANG, FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Plaintiffs v. SARAH SALDAÑA, in her official capacity as Director of U.S. Immigration and Customs Enforcement;
Civil Action No. 16-6422 (ENV)
JEH JOHNSON, in his official capacity as U.S. Secretary of Homeland Security; LEON RODRIGUEZ, in his official capacity as Director of U.S. Citizenship and Immigration Services, Defendants. -------------------------------------------------------------x Plaintiffs Jie Fang, Shaofu Li, Kaushalkumar Patel, Hirenkumar Patel, and Xiaoyu Zhang sue Defendants Sarah Saldaña, Jeh Johnson, and Leon Rodriguez and allege as follows: INTRODUCTION 1.
This putative class action challenges the U.S. Department of Homeland Security’s
(“DHS”) determination that Plaintiffs and the putative class members they represent knowingly participated in visa fraud by enrolling at the University of Northern New Jersey (“UNNJ”). 2.
Plaintiffs are nationals of other countries who entered the United States on student
1
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visas in order to complete undergraduate and graduate university programs here.
Upon
completion of their academic programs, some Plaintiffs engaged in authorized work through optional practical training (“OPT”), a program which allows foreign graduates of U.S. universities to work for U.S. companies while maintaining student status. The program allows foreign students to “put into practice the skills and education they gain at U.S. universities to benefit the U.S. economy.” Jeh Johnson, DHS Secretary, Policies Supporting U.S. High-Skilled Businesses and Workers 3 (Nov. 20, 2014). 3.
While in the U.S., Plaintiffs sought the guidance of academic brokers and
recruiters to assist them to enroll in graduate programs that would allow them to further their education in the U.S., in some cases through continued lawful employment. These brokers steered Plaintiffs to enroll at UNNJ, a university accredited by the Accrediting Commission of Career Schools and Colleges, listed as a bona fide school by the New Jersey Department of Education, and approved by the Department of Homeland Security for participation in the student visa program. 4.
The agents pushed Plaintiffs to enroll in UNNJ because it offered graduate
programs which authorized students to continue their practical education in the United States through authorized work. Specifically, UNNJ allowed its enrollees to participate in Curricular Practical Training (“CPT”), a program similar to OPT which allows foreign university students to work for U.S. businesses while in student status when such work forms part of their academic curriculum. Consistent with Government regulations, UNNJ authorized its enrollees to participate in CPT upon the commencement of their graduate programs. 5.
Unbeknownst to Plaintiffs, UNNJ was established by Immigration and Customs
Enforcement (“ICE”), the immigration enforcement branch of the Department of Homeland
2
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Security. ICE created UNNJ in September 2013 as part of a sting operation to investigate and prosecute academic brokers who ICE believed were likely to commit visa fraud. 6.
ICE took extensive measures to make UNNJ appear to be a bona fide private
university. ICE obtained official accreditation for UNNJ, secured its inclusion on the New Jersey Department of Education’s website as a legitimate school, listed UNNJ as a DHS-approved school for participation in the student-visa program, set up an official “.edu” website with pictures of the school and its students which prominently advertised its accreditations, and maintained an active online presence on social media.
UNNJ was staffed with an active
President, “Dr. Steven Brunetti, Ph.D.,” who corresponded regularly in his role as “President” with students, maintained a page on UNNJ’s website, and regularly posted both personal and school-related updates on Facebook and Twitter. 7.
ICE shut down UNNJ in April 2016 and arrested 21 academic brokers for visa
fraud and other related offenses. 8.
Immediately following these arrests, ICE began terminating the student status of
Plaintiffs and all other foreign students who had enrolled at UNNJ for their “fraudulent enrollment.” Without providing Plaintiffs or the other students with a meaningful opportunity to confront any adverse evidence against them or to present evidence of their own, ICE determined across-the-board that all UNNJ enrollees knowingly committed visa fraud by enrolling in the school for the purpose of illegally obtaining and/or maintaining their student status. ICE has provided Plaintiffs with no mechanism for contesting their termination or the agency’s determination that they knowingly committed fraud by enrolling in UNNJ. 9.
Both ICE agents posing as UNNJ staff and the academic recruiters repeatedly
assured Plaintiffs that UNNJ and the programs it offered were legitimate and complied with all
3
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applicable rules and regulations. At no point before April 2016, when ICE terminated their student status, did Plaintiffs know that UNNJ was not a legitimate school or that there was anything amiss with their enrollment. 10.
ICE’s blanket fraud determination has far-reaching consequences for Plaintiffs
and the other UNNJ students they seek to represent. The determination, which ICE made without providing Plaintiffs with any meaningful opportunity to contest it, makes Plaintiffs ineligible for nearly all future immigration benefits. Plaintiffs seek injunctive and declarative relief. STATEMENT OF FACTS Background on Student Visas and Practical Training 11.
Congress has authorized nonimmigrant student status for foreign nationals who
enroll in Government-approved academic institutions.
8 U.S.C. § 1101(a)(15)(F). Foreign
students enter the United States on an “F-1” visa and are described as being in “F-1 student status.” ICE’s Student and Exchange Visitor Program (“SEVP”) is responsible for administering the student visa program and tracking information on students in F-1 status. 12.
A school must obtain formal approval from DHS before it can sponsor a student’s
F-1 status. The approval process is rigorous. A school must first file an application for School Certification on Form I-17 through the Student and Exchange Visitor Information System (“SEVIS”), a SEVP-managed Internet based system to track and monitor schools and foreign students in the United States. 8 C.F.R. § 214.3. The application requires a school to submit to DHS detailed information on its programs of study; accreditations and recognitions; information on its calendar, costs, and demographics; the locations of its campuses and instructional sites; and information on responsible school officials. It must also submit supporting evidence.
4
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13.
To obtain DHS approval, universities must provide proof of accreditation from a
U.S. Department of Education-recognized accrediting agency and information on each of the school’s programs of study. If approved, the school must submit to periodic recertification, which may be denied for a host of reasons, including a school’s failure to operate as a bona fide institution of learning, its failure to employ adequate qualified professional personnel, or its failure to maintain proper facilities for instruction. Id. § 214.4(a)(2). 14.
When ICE determines that a school’s participation in SEVP should be terminated,
it provides the school with notice and an opportunity to contest the intended termination. ICE also maintains a practice and policy of informing students of their school’s forthcoming termination and providing them an opportunity to transfer to another school or change status before ICE terminates their SEVIS record. ICE provides such students with at least one month of notice. This advance notice allows students to transfer schools before their SEVIS records are terminated, allowing them to preserve valid F-1 status. 15.
ICE regulations delegate considerable oversight authority to Designated School
Officials (“DSOs”) – school employees named by a school’s president and approved by ICE to monitor, advise, and oversee F-1 students enrolled in the school. 8 C.F.R. § 214.3(l). 16.
DSOs are responsible for, among other things, activating and maintaining SEVIS
records for the duration of a student’s enrollment, including registering a student’s participation in CPT; approving or requesting approval for benefits such as employment and reduced course load; and providing students with information needed to make informed decisions regarding maintaining nonimmigrant student status, including counseling students on the number of work hours allowed, the type of employment allowed, and their need to maintain F-1 student status. See, e.g., Id. §§ 214.2(f)(6)(iii), (9)(ii)(D), (10)(i); 214.3(g)
5
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17.
One of a DSO’s principal responsibilities is to monitor students enrolled in their
school and help them maintain compliance with the myriad rules governing F-1 status. DSOs thus “serve[] as a link between nonimmigrant students and SEVP and play[] a central role in ensuring the nonimmigrant students at their school maintain status while in the United States.” Student and Exchange Visitor Program: Training for Designated School Officials 13 (Oct. 22, 2013)
(“DSO
Manual”),
available
at
https://www.ice.gov/doclib/sevis/pdf/SEVP_DSO_Training.pdf. 18.
As ICE recognizes, “[t]here are a number of responsibilities for nonimmigrant
students to keep in mind. When one also considers that many of these students are in an unfamiliar culture, and perhaps struggling to become more fluent in English, the role of the DSO becomes more critical in assisting the student to maintain his/her nonimmigrant status. [A DSO’s] understanding of SEVP and nonimmigrant student status will assist [him or her] in counseling nonimmigrant students in ways that remind them of their responsibilities and allow them to maintain their nonimmigrant status.” Id. at 15. ICE admonishes DSOs that “[b]y carefully attending to the details of the information and the student’s record, a DSO may be able to alert the student to issues that might jeopardize their nonimmigrant status or make it difficult for them to re-enter the United States to continue their studies.” Id. at 14. 19.
Foreign nationals admitted to the U.S. in F-1 student status may lawfully remain
in the country as long as long as they are “pursuing a full course of study at an educational institution approved by the Service for attendance by foreign students, or engaging in authorized practical training following completion of studies . . . .” 8 C.F.R. § 214.2(f)(5)(i). Noncitizens in F-1 status are issued SEVIS Form I-20 by the ICE-approved school the student will attend. Id. § 214.2(f)(1)(i)(A). An F-1 student maintains valid status as long as he or she is “making normal
6
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progress toward completing a course of study,” id., and a student who continues from one education level to another (i.e., advancing from a bachelor’s to a master’s program) is considered to be maintaining his or her status. Id. § 214.6(f)(5)(ii). In the case of postgraduate programs (such as master’s and doctorate programs), a school’s DSO is responsible for certifying what counts as a full course of study. Id. § 214.2(f)(6)(i)(A)-(B). 20.
Students in valid F-1 status may transfer to another school as long as they follow
prescribed procedures. Id. § 214.2(f)(8)(i). An F-1 student who transfers between schools is allowed to remain in the U.S. while transferring as long as the student will begin classes at the new school within five months of transferring from the previous school or within five months of the program completion date, whichever is earlier. Id. 21.
Regulations authorize certain students in F-1 status to engage in “practical
training” – authorized work that F-1 students may perform related to their major areas of study. Id. § 214.2(f)(10). The regulations authorize noncitizens to perform such work while in F-1 student status. 22.
Regulations authorize two types of practical study: Curricular Practical Training
(“CPT”) and Optional Practical Training (“OPT”).
CPT is work performed as part of an
academic curriculum, and consists of “alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school.” Id. § 214.2(f)(10)(i). 23.
ICE entrusts a school’s DSO with designating CPT offerings and authorizing
individual students to participate in CPT. The authorization process is handled entirely by DSOs without ICE’s direct involvement or adjudication. Absent intervention from ICE, DSOs alone are responsible for confirming that a school’s practical training opportunity qualifies for CPT.
7
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24.
DSOs are responsible for recording a student’s authorized CPT participation in
the student’s SEVIS record. If a school approves a student for participation in CPT, it will provide the student with a Form I-20 which includes a written endorsement noting that CPT has been approved and that the student is authorized to work. This CPT-endorsed Form I-20 serves as evidence of the student’s authorization to work. 25.
There is no restriction on compensation during CPT. So long as it is authorized by
a school’s DSO, a student may complete CPT through full-time employment with a for-profit corporation and earn monetary compensation for the work performed. Further, F-1 students enrolled in graduate studies may participate in CPT at the start of their program if approved by the school’s DSO. Id. 26.
OPT is temporary employment separate from a student’s curricular requirements
that is directly related to the student’s major area of study. 8 C.F.R. § 214.2(f)(10)(ii)(A). Students may engage in authorized OPT during their annual vacation or when school is otherwise not in session; while school is in session as long as training does not exceed 20 hours a week; or after completion of a course of study. Id. § 214.2(f)(10)(ii)(A)(1)-(3). Training undertaken before a course of study is completed is commonly known as “pre-completion OPT” while training after the course of study has been completed is known as “post-completion OPT.” OPT is generally available for up to 12 months, but students with science, technology, engineering, or mathematics degrees may obtain a 24-month extension beyond the initial 12 months of post-completion OPT. Id. § 214.2(f)(10)(C). A student authorized for post-completion OPT may transfer to a new school and maintain his or her F-1 status as long as the student resumes his or her course of study within five months of transferring out of his or her last school or the date OPT authorization ends, whichever is earlier. Id. § 214.2(f)(8)(i).
8
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27.
A student who fails to maintain a full course of study or otherwise has his or her
F-1 student status terminated may apply for reinstatement. 8 C.F.R. § 214.2(f)(16)(i). A student may be granted reinstatement if he or she has not been out of status for more than five months at the time of filing (or if the failure to file within five months was due to exceptional circumstances); does not have a record of repeated or willful violations of immigration regulations; is pursuing or intending to pursue a full course of study in the immediate future; has not engaged in unauthorized employment; is not deportable for any reasons other than being present in violation of the law or failing to comply with terms of nonimmigrant status; and establishes that the violation of status resulted from circumstances beyond the student’s control or resulted from a reduction in the student’s course load that would have been in the DSO’s authority to authorize, and that denial of reinstatement would cause the student extreme hardship. Id. § 214.2(f)(16)(i)(A)-(F). There is no appeal from USCIS’s decision to deny reinstatement. Id. § 214.2(f)(16)(ii). University of Northern New Jersey and ICE’s Sting Operation 28.
In September 2013, ICE’s Homeland Security Investigations (“HSI”) unit
established a university in Cranford, New Jersey called the University of Northern New Jersey (“UNNJ”). HSI established UNNJ as part of an ICE sting operation called “Operation Triple Lindy” targeting unscrupulous academic recruiters and brokers who prey on foreign students seeking to maintain their valid F-1 status. ICE targeted brokers who steer students to enroll in schools whose principal objective is not to provide bona fide academic programs, but to enrich their proprietors though substantial fees and tuition while offering students no meaningful educational opportunities. 29.
Such brokers are often aware that the schools in which they place students are
9
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acting improperly. These brokers, however, abuse students’ trust and mislead them into believing that the schools in which they enroll are acting lawfully by facilitating practical training through the F-1 program. Brokers exploit the fact that in many countries, prospective students routinely rely on academic brokers to help them identify and enroll in universities. Brokers also take advantage of widespread misinformation concerning the F-1 program and the complexity of the program’s rules to convince their clients that schools’ offerings are lawful even when they are not. 30.
By all outside appearances, UNNJ was a legitimate university occupying a
building in Cranford and maintaining a highly visible web presence, including an elaborate official
website
(since
taken
down
but
archived
at
https://web.archive.org/web/20160327093120/http://www.unnj.edu/) and highly active Facebook and Twitter accounts. UNNJ’s President, “Dr. Steven Brunetti, Ph.D.”, maintained a detailed LinkedIn page identifying him as the president of UNNJ and posted regularly on the school’s social media accounts. “Dr. Brunetti” regularly corresponded with students and met them in person at UNNJ’s Cranford office. 31.
DHS bolstered UNNJ’s veneer of legitimacy by listing the school on DHS’s
official website as certified for participation in SEVP. It also obtained accreditation for UNNJ by the Accrediting Commission of Career Schools and Colleges (“ACCSC”), a U.S. Department of Education-recognized accrediting institution, and by obtaining recognition for UNNJ by the New Jersey Department of Education. 32.
Upon information and belief, ICE was aware that UNNJ did not satisfy the
substantive requirements to obtain these accreditations and recognitions. Instead, ICE obtained such accreditations and recognitions by informing ACCSC and the New Jersey Department of
10
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Education of its sting operation and requesting that these entities accord accreditation and recognition despite UNNJ’s failure to qualify for them. UNNJ’s website prominently advertised its accreditations, which were independently verifiable through ACCSC, the New Jersey Department of Education, and DHS’s respective websites. 33.
From 2014 to 2016, “Dr. Brunetti” and others posing as UNNJ staff coordinated
with various brokers to enroll foreign students at UNNJ.
The brokers charged students
thousands of dollars for their services on top of the thousands of dollars UNNJ charged for tuition and fees. UNNJ provided brokers with financial kickbacks for recruiting and enrolling students at UNNJ. 34.
Brokers principally, although not exclusively, targeted for enrollment in UNNJ
noncitizens in F-1 status who had graduated from undergraduate or graduate programs at a U.S. university and worked lawfully for U.S. companies through OPT. Together, the brokers and UNNJ ensnared these students with promises that they could continue lawfully working in the U.S. through CPT without an immediate need to attend classes at UNNJ. Some students were told that they could not enroll in classes because they were full; others that the school would soon offer classes online. Students were assured, however, that F-1 program rules allowed UNNJ to lawfully offer CPT to students who enrolled in UNNJ’s post-graduate programs. 35.
Upon information and belief, UNNJ designated the school’s President, “Dr.
Brunetti,” as its Principal DSO. Dr. Brunetti, however, provided noncitizens enrolled in UNNJ with none of the support expected or required of DSOs. Dr. Brunetti did not counsel students on how to maintain their lawful F-1 student status or provide them with appropriate guidance, as ICE guidance requires. To the contrary, “Dr. Brunetti” and other UNNJ staff compounded the misinformation the brokers fed their student clients by ignoring or actively misleading students
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who sought their guidance. 36.
Brunetti and other staff repeatedly reassured students that the extensions UNNJ
offered to their practical training programs would not pose a problem, and made similar representations to DSOs at bona fide academic institutions when students sought to transfer from these schools to UNNJ. UNNJ provided enrollees with official written confirmation authorizing them to work through CPT at the start of their graduate programs with UNNJ. 37.
In April 2016, ICE permanently shut down UNNJ. On April 5, 2016, ICE and the
Department of Justice announced the arrest of 21 brokers and recruiters for visa fraud and other crimes in connection with the UNNJ operation. 38.
Immediately following the operation’s public announcement, ICE began
terminating the SEVIS records and I-20s for each of the more than 1,000 noncitizens who had enrolled at UNNJ based on their alleged “fraudulent enrollment.” Specifically, ICE made a blanket finding that any noncitizen who enrolled in UNNJ knowingly participated in visa fraud by enrolling in the school for the sole purpose of illegally obtaining and/or maintaining their F-1 nonimmigrant status. ICE did not provide students with an individualized hearing or any meaningful opportunity to contest its determination that they had committed knowing visa fraud by enrolling in UNNJ. 39.
Contrary to its established practice and policy, ICE did not provide these students
with any advance notice that the school’s SEVIS designation would be terminated, nor any opportunity to transfer to another school or apply for a chance of status before their SEVIS records were terminated. 40.
ICE placed many of the students in removal proceedings in Immigration Court by
issuing them Notices to Appear (“NTAs”) which charged them with being removable from the
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United States under 8 U.S.C. § 1227(a)(1)(C)(i) for failure to maintain or comply with the conditions of the nonimmigrant status under which they were admitted. Immigration Consequences of a Fraud Finding 41.
An official finding that a noncitizen has knowingly participated in visa fraud
comes with far-ranging consequences, making such an individual permanently ineligible for nearly all immigration benefits. 42.
Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
1182(a)(6)(C)(i), states that “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit under the chapter is inadmissible.” Such individuals “are ineligible to receive visas and ineligible to be admitted to the United States.” Id. § 1182(a). Any such individual in the United States is ineligible to adjust their status and become a lawful permanent resident (i.e. a “green card” holder). Id. § 1255(a). 43.
ICE’s blanket fraud finding thus renders all UNNJ enrollees permanently and
forever barred from permanent admission to the United States, subject only to a narrow discretionary waiver available only to individuals with a spouse or parent who is a U.S. citizen or lawful permanent resident and who would suffer extreme hardship if the discretionary waiver is not granted. See id. §§ 1182(d)(3); 1182(i). 44.
ICE’s across-the-board fraud finding also renders UNNJ enrollees ineligible for
reinstatement of their F-1 status because a student who has a record of “willful violations of Service regulations” is categorically ineligible for reinstatement. 8 C.F.R. § 214.2(f)(16)(i)(B). 45.
At least two students formerly enrolled at UNNJ who have returned to China have
had their visa applications denied or delayed by U.S. consulates abroad based on their
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inadmissibility under § 1182(a)(6)(C)(i). Based on ICE’s blanket finding that every noncitizen who reenrolled in UNNJ knowingly participated in visa fraud, none of the Plaintiffs or others who enrolled at UNNJ will ever be able to receive any immigration benefits in the future without applying for a discretionary waiver for which they may not be eligible. They have essentially been blacklisted at all levels of the U.S. immigration system with no way to challenge meaningfully ICE’s determination that they knowingly committed visa fraud. JURISDICTION 46.
This Court has jurisdiction over this matter under 28 U.S.C. § 1331 (federal
question jurisdiction), 28 U.S.C. § 1346 (United States as a defendant), and the United States Constitution. 47.
There are no administrative remedies available to Plaintiffs. ICE has determined
that Plaintiffs knowingly committed visa fraud and there is no established mechanism for Plaintiffs to challenge that determination administratively. VENUE 48.
Venue is proper in the Eastern District of New York under 28 U.S.C. §
1391(e)(1)(C) as Plaintiff Jie Fang (Brooklyn, New York) resides in the Eastern District of New York and Defendants are officers or employees of the United States. Additionally, Mr. Fang was issued an NTA from ICE’s New York field office, which is responsible for all boroughs of New York City and Long Island. Venue is also proper under 28 U.S.C. § 1391(e)(1)(B) because ICE agents coordinated directly with a substantial number of academic brokers located in the Eastern District of New York, including the broker who enrolled Plaintiff Xiaoyu Zhang, whose office was located in Flushing, New York.
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PARTIES 49.
Plaintiff Jie Fang is a native and citizen of the People’s Republic of China who
currently resides in Brooklyn, New York. Mr. Fang first entered the United States in March 2011 to study at Murray State University in Murray, Kentucky. After graduating from Murray State in December 2014 with a bachelor’s degree in finance, Mr. Fang moved to New York to start post-completion OPT with Forte Capital Group in January 2015. During his OPT period, Mr. Fang also worked with other companies, namely Achievers Only Network, ABC Global Systems, and Premium Merchant Funding. 50.
Towards the end of his OPT period, Mr. Fang decided that he wanted to pursue
graduate studies in finance and had heard about UNNJ through a friend. Mr. Fang contacted Philip Li and Sofia Zhang of Excellent Student Service to assist him with enrollment in UNNJ. Ms. Zhang informed Mr. Fang that he could legally work on CPT through enrollment in UNNJ without attending classes. Mr. Fang conducted research online and saw that UNNJ was listed as an approved school on the DHS website, fully accredited, and had an active official webpage and social media accounts. At the end of December 2015, he paid Excellent Student Service $2,000 and provided his application materials to the agency which submitted them to UNNJ on his behalf. Mr. Fang was accepted to UNNJ in late January 2016 and he paid Excellent Student Service another $1,700. Mr. Fang was told these fees were for tuition at UNNJ. 51.
Mr. Fang worked for his employer on CPT from February 15, 2016 until the first
week of April when he received a letter from ICE terminating his student status. About two weeks later, Mr. Fang received a letter from ICE requesting that he call to schedule a meeting at ICE’s office in New York City. The following week, Mr. Fang went to ICE’s office and was issued an NTA. Mr. Fang’s Immigration Court hearing is scheduled for March 17, 2017.
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52.
Plaintiff Shaofu Li is a native and citizen of the People’s Republic of China who
graduated from Syracuse University in November 2014 with a master’s degree in chemical engineering. He subsequently commenced a Ph.D. program at Syracuse with the Biomedical and Chemical Engineering Department. By October 2015 Mr. Li realized that he did not enjoy his Ph.D. program at Syracuse and decided to obtain another master’s degree in another area of study. Mr. Li wanted to start a new program in the spring of 2016 and began searching for a broker who could assist him. 53.
In December 2015, Eva Xu at Excellent Student Service began assisting Mr. Li in
transferring to a new school. Mr. Li expressed his interest to Ms. Xu in pursuing lawful employment during his studies and Ms. Xu recommended UNNJ as a school that could provide him with CPT if he found a suitable internship. Mr. Li checked both UNNJ’s website and DHS’s website to verify the school’s legitimacy. He then submitted his application materials and tuition payment for UNNJ. 54.
In January 2016, Ms. Xu provided Mr. Li with UNNJ’s acceptance letter and the
necessary forms to transfer his SEVIS record from Syracuse to UNNJ. The DSO at Syracuse, Mary Idzior, looked up UNNJ in the SEVIS system, told Mr. Li that everything looked good to her, and processed his transfer to UNNJ. In February 2016, UNNJ issued Mr. Li a Form I-20 and he had no suspicions that there was anything wrong with his enrollment. 55.
Mr. Li did not learn that UNNJ was shut down until April 2016 when ICE officers
came to his home, put him in handcuffs, and took him to their office. After questioning him, the officers issued Mr. Li an NTA. 56.
Mr. Li has applied for reinstatement of his student status and is currently studying
at Harrisburg University in Pennsylvania, but has not received the reinstatement and believes he
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will be denied such reinstatement based upon ICE’s illegal determination that he committed fraud. 57.
Plaintiff Kaushalkumar Patel (“K. Patel”) is a native and citizen of India who
originally entered the U.S. on an F-1 student visa in December 2014 in order to pursue a master’s of business administration degree at the University of Findlay in Ohio. Mr. Patel had already obtained a bachelor’s degree in commerce from South Gujarat University in India.
The
University of Findlay required Mr. Patel to complete an English as a second language course before starting his MBA and he decided to transfer to Monroe College in New York in January 2015 so that he would be able to immediately commence the MBA program there. 58.
At the end of his first semester at Monroe College, Mr. Patel decided that he
wanted to switch to a master’s degree in information systems. The president of Monroe College informed Mr. Patel that the school would not allow him to take a semester break and that if he wanted to switch programs without taking a break he would have to change schools. He approached Wilmington University and Pace University regarding admission to their programs, but they informed him that their summer courses were already full. 59.
Mr. Patel subsequently found information about UNNJ online and looked into its
accreditation by researching online and calling the U.S. Department of Education. The U.S. Department of Education informed Mr. Patel over the telephone that UNNJ was fully accredited and that international students were authorized to attend the school. Mr. Patel went to UNNJ’s campus in Cranford to inquire about admission to the school and the receptionist there told him that he had to go through an agent. The receptionist referred Mr. Patel to the AIPT Institute. The AIPT Institute told Mr. Patel that he would have to attend both online and in-person classes
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at UNNJ and that tuition and fees would be $20,000, which could be paid in installments. Mr. Patel was admitted to UNNJ on April 16, 2015 and was enrolled for online classes in June 2015. 60.
After four months at UNNJ, the agency forcefully offered Mr. Patel CPT and
placed him with Triveni IT Company. Mr. Patel turned down the CPT and never performed any work for Triveni, but the agency nonetheless emailed him an I-20 endorsed for CPT. At this time, Mr. Patel realized there may be problems with UNNJ and he requested a refund of his fees and asked that his SEVIS record be transferred. The agency told him that he had to pay an installment of $3000 in order to have his record transferred. However, the agency then refused to transfer Mr. Patel’s SEVIS record and threatened to terminate his I-20 and cancel his visa. 61.
On September 15, 2015, Mr. Patel went to an appointment at the Philadelphia
USCIS Field Office that he scheduled and the USCIS officer told him that there was nothing wrong with UNNJ or his enrollment there and that his student status remained active. 62.
Mr. Patel’s wife gave birth to their U.S. citizen daughter in March 2016. After
UNNJ was shut down by the government, Mr. Patel was issued an NTA for removal proceedings. He has since been accepted to study at Harrisburg University and is seeking reinstatement of his student status, but has not received the reinstatement and believes he will be denied such reinstatement based upon ICE’s illegal finding that he committed fraud. 63.
Plaintiff Hirenkumar Patel (“H. Patel”) is a native and citizen of India who
entered the U.S. on an F-1 student visa in December 2014 to pursue an MBA at Tuffin University in Ohio. Mr. Patel had already obtained a bachelor’s degree in computer engineering from Saurashtra Univeristy. Similarly to K. Patel, Mr. H. Patel transferred to Monroe College in January 2015 so that that he would not have to take an English language class prior to commencing the MBA program. Also like K. Patel, Mr. H. Patel wanted to switch to an
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information systems master’s program and was told that he needed to find another school if he did not want to take a term off from school. 64.
After seeing that other schools were already full for summer classes, Mr. H. Patel
found UNNJ online, checked UNNJ’s accreditation, and called the U.S. Department of Education who informed him that UNNJ was fully accredited. When Mr. H. Patel contacted UNNJ, they referred him to the AIPT Institute. 65.
Mr. H. Patel had the same experience as K. Patel when dealing with AIPT
Institute and UNNJ. He made the same tuition payments and was enrolled for online classes during summer 2015. After several months, the agency tried to force him into CPT with the same Triveni IT Company as K. Patel. He did not perform any work for the company and requested that UNNJ transfer his record. The agent, however, refused, threatened to terminate his student status, and demanded an additional tuition payment. Mr. H. Patel was forced by the agent to maintain his enrollment at UNNJ. 66.
Mr. H. Patel’s wife gave birth to their U.S. citizen son in November 2015. After
UNNJ was shut down in April 2016, Mr. H. Patel was issued an NTA by ICE agents. He has applied for reinstatement of his student status and has been accepted to continue his studies at Harrisburg University, but has not received the reinstatement and believes he will be denied such reinstatement based upon ICE’s illegal finding that he committed fraud. 67.
Plaintiff Xiaoyu Zhang is a native and citizen of the People’s Republic of China
who currently resides in Dallas, Texas. Ms. Zhang originally entered the United States in August 2011 on an F-1 student visa to pursue a bachelor’s degree in journalism at the University of Texas (“UT”). Ms. Zhang graduated from UT in December 2013 and worked as a contractor for Apple from January 2014 to January 2015 with her post-completion OPT. In February 2015,
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Ms. Zhang contacted Tiffany Xue with U.S. Quickly Consulting Center to help her find a graduate school in which to enroll. Ms. Xue informed her that there were schools that offered a full time CPT program where students were not required to attend classes. Ms. Zhang submitted her application materials to Ms. Xue who applied to UNNJ on her behalf. 68.
Ms. Zhang received an acceptance letter from UNNJ a few days later. As this
was the first time she had ever heard of UNNJ, Ms. Zhang researched the school online and saw that it was certified by both DHS and the State of New Jersey. Based on her research and Ms. Xue’s assurances, Ms. Zhang decided to enroll in UNNJ’s master’s in information systems program and paid $4,000 in tuition.
In April 2015, Ms. Zhang was also accepted to the
University of North Texas (“UNT”) for enrollment for the fall semester, but she opted to defer her enrollment until fall 2016. 69.
In May 2015, Ms. Zhang started working as a business analyst for American
Technology Consulting, LLC with her CPT provided by UNNJ. In March 2016, Ms. Zhang’s contract with her employer expired and she informed Ms. Xue that she wanted to transfer from UNNJ to UNT where she would commence studies in the fall. After several weeks had gone by without any progress on the transfer, Ms. Zhang unsuccessfully tried to contact Ms. Xue and UNNJ. She searched UNNJ online, and much to her surprise, found out that UNNJ was shut down in early April 2016 and that Ms. Xue had been arrested. 70.
Ms. Zhang received a termination letter from ICE the following week and worked
with UNT to transfer her SEVIS record and obtain a new I-20. UNT provided Ms. Zhang with a new I-20 and she applied for reinstatement in May 2016. Her reinstatement application was rejected due to a filing error and she resubmitted it in June 2016. Ms. Zhang’s reinstatement application remains pending and she is currently attending classes at UNT.
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71.
Ms. Zhang believes her reinstatement will be denied based upon ICE’s illegal
finding that she committed fraud. Ms. Zhang was never contacted directly by ICE officers and she never received an NTA, although her former employer told her that ICE officers did go to her former office to inquire about her. 72.
Defendant Sarah Saldaña is the Director of Immigration and Customs
Enforcement (“ICE”). In this capacity, she is responsible for all ICE enforcement operations and the administration of the Student Exchange Visitor Program. She is ultimately responsible for the operation related to UNNJ and the decision to terminate Plaintiffs’ SEVIS records and I-20s for their enrollment at UNNJ, as well as the decision to issue NTAs to UNNJ students. Ms. Saldaña is sued in her official capacity. 73.
Defendant Jeh Johnson is the Secretary of Homeland Security and heads the
Department of Homeland Security (“DHS”). ICE is a subdivision of DHS. As Secretary of Homeland Security Mr. Johnson is ultimately responsible for all actions taken by ICE. Mr. Johnson is sued in his official capacity. 74.
Defendant Leon Rodriguez is the Director of U.S. Citizenship and Immigration
Services (“USCIS”), the agency within DHS responsible for adjudicating visa petitions and most other applications for immigration benefits. Mr. Rodriguez is sued in his official capacity. CLASS ACTION ALLEGATIONS 75.
Plaintiffs bring this action as a class action on behalf of themselves and all others
similarly situated pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure. The class consists of the following ascertainable members: All foreign students who enrolled at UNNJ and who were subjected to ICE’s blanket determination that they knowingly participated in visa fraud by enrolling in UNNJ.
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76.
The precise number of noncitizens who fall within the class definition is known
only to Defendants, but based on public statements by the Government, the class likely consists of approximately 1,076 foreign students, making joinder of all members impracticable. 77.
A community of interest exists between the named Plaintiffs and members of the
class in that there are questions of law and fact that are common to all Plaintiffs and class members. Plaintiffs and the class members they seek to represent challenge ICE’s across-theboard determination that they have committed fraud without any evidentiary hearing or individualized assessment, making them ineligible for any immigration benefits or admission into the U.S. All Plaintiffs and class members have had their student status terminated by ICE because ICE determined that they engaged in fraud by enrolling in UNNJ. 78.
The claims or defenses of the representative Plaintiffs and of Defendants are
typical of the claims or defenses of the class. Although the relevant parties currently face different immigration related procedural situations (whether currently subject to an NTA in the U.S., not currently subject to an NTA in U.S., or currently residing abroad), they all have the same claim against Defendants: ICE has improperly determined that they committed fraud/material misrepresentation barring them from obtaining immigration benefits or admission to the United States in the future. 79.
The named Plaintiffs will fairly and adequately protect the interests of the class
because they, like all class members, are subject to the same unlawful fraud/material misrepresentation determination made by ICE based their enrollment at UNNJ. 80.
Individual suits by each member of the class would be impracticable because they
would create a risk of inconsistent or varying adjudications and would establish incompatible standards of conduct for the parties opposing the class.
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81.
The number of individual suits would impose an undue burden on the courts as it
would require the adjudication of potentially thousands of separate lawsuits. 82.
Plaintiffs’ lead counsel, Ira J. Kurzban, has a 37-year history of experience in
immigration-related class action cases and can adequately represent the interests of class members as well as the named plaintiffs. CAUSES OF ACTION FIRST CAUSE OF ACTION: VIOLATION OF THE FIFITH AMENDMENT OF THE U.S. CONSTITUION— FAILURE TO PROVIDE PROCEDURAL DUE PROCESS 83.
Plaintiffs incorporate paragraphs 1 to 82 as if fully stated herein.
84.
ICE’s determination that Plaintiffs knowingly participated in visa fraud was not
accompanied by constitutionally adequate procedural protections and violated Plaintiffs due process rights. ICE made this determination on an across-the-board basis for every noncitizen who enrolled at UNNJ without any individualized hearing. 85.
This determination violated due process by: (i) failing to provide Plaintiffs with
individualized hearings before impartial adjudicators before determining that Plaintiffs knowingly committed visa fraud; (ii) failing to provide Plaintiffs with adverse evidence and an opportunity to confront and respond to such evidence; and (iii) failing to provide Plaintiffs with an opportunity to present evidence on their own behalf. 86.
Rather than comply with these well-established due process principles, ICE
simply made a blanket determination that any student who ever enrolled at UNNJ knowingly participated in visa fraud, regardless of the facts surrounding each student’s case.
ICE’s
complete disregard for consideration of Plaintiffs’ individual circumstances and its blanket, indiscriminate determination that every noncitizen who enrolled in UNNJ knowingly committed
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visa fraud violated Plaintiffs procedural due process rights. SECOND CAUSE OF ACTION VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT—ARBITRARY AND CAPRICIOUS AGENCY ACTION: Visa Fraud Determination 87.
Plaintiffs incorporate paragraphs 1 to 82 as if fully stated herein.
88.
ICE’s finding that Plaintiffs engaged in knowing visa fraud in connection with
their enrollment at UNNJ violates the Administrative Procedure Act (“APA”) and should be set aside pursuant to 5 U.S.C. § 706(2)(A) as arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law. 89.
In making its finding that Plaintiffs engaged in knowing visa fraud, the agency did
not consider any facts relevant to Plaintiffs’ individual circumstances nor did it provide any explanation, let alone reasoned explanation, justifying its determination. Rather than considering relevant facts specific to each student, ICE merely pre-determined as a fait accompli that any student who ever enrolled at UNNJ engaged in fraud. The only fact considered by ICE in making this determination was the fact of the students’ enrollment in UNNJ. The agency’s lack of consideration of any other relevant facts specific to individual students before making its determination was arbitrary and capricious and in violation of the APA. THIRD CAUSE OF ACTION VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT—ARBITRARY AND CAPRICIOUS AGENCY ACTION: Unlawful Termination of F-1 Status 90.
Plaintiffs incorporate paragraphs 1 to 82 as if fully stated herein.
91.
ICE’s termination of Plaintiffs’ F-1 student status violates the Administrative
Procedure Act (“APA”) and should be set aside pursuant to 5 U.S.C. § 706(2)(A) as arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law.
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92.
Until ICE unilaterally shut down UNNJ, Plaintiffs complied with every rule and
regulation governing the F-1 visa program. UNNJ was DHS-certified to sponsor students in F-1 status; UNNJ’s DSO certified Plaintiffs’ participation in a bona fide CPT program; and Plaintiffs obtained a facially valid Forms I-20 confirming the validity of their F-1 status and authorization to work in CPT. 93.
In unilaterally terminating Plaintiffs’ F-1 status immediately upon announcing its
shutdown of UNNJ, ICE failed to provide Plaintiffs with notice or any opportunity to maintain their valid F-1 student status prior to its termination. In direct contravention of ICE’s established practice and policy, ICE failed to provide Plaintiffs with any opportunity to transfer to another school or apply for a change of status before terminating their SEVIS records – an action which caused Plaintiffs immediately to be “out of status.” FOURTH CAUSE OF ACTION ESTOPPEL 94.
Plaintiffs incorporate paragraphs 1 through 82 as if fully stated herein.
95.
ICE and its agents knowingly made material misrepresentations to Plaintiffs and
engaged in affirmative misconduct by: (1) establishing and operating UNNJ as a “university” without any intention of providing any bona fide education; (2) obtaining third-party certifications, accreditations, and recognitions for UNNJ and advertising these accreditations on UNNJ’s website and elsewhere with the knowledge that UNNJ did not qualify for them; (3) listing UNNJ as an institution certified by DHS for participation in the student visa program with the knowledge that UNNJ did not qualify for such participation; (4) referring students to brokers to assist them in enrolling in UNNJ when ICE knew that these brokers were actively preying on and defrauding students and were engaged in illegal practices; (5) enrolling Plaintiffs in UNNJ,
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issuing them acceptance letters, and otherwise representing UNNJ to students as a legitimate institution of higher learning; (6) including UNNJ as an active participant in ICE’s SEVIS system, issuing Plaintiffs facially valid Forms I-20, and processing their enrollment and school transfers; (7) maintaining an active website, social media presence, and physical presence calculated to give the appearance that UNNJ was established and operating as a genuine university; (8) approving Plaintiffs for CPT and lawful permission to work and providing Plaintiffs with assurances that the CPT and work authorization UNNJ awarded them was lawful and permitted under governing regulations and rules; (9) assuring Plaintiffs that their enrollment in UNNJ and authorized work under CPT would not adversely affect their lawful status in the U.S.; (10) communicating directly with Plaintiffs in a manner that intentionally gave the false impression that their enrollment in UNNJ would not adversely affect their lawful status in the U.S.; and (11) accepting thousands of dollars in unrefunded fees from students for “tuition” with the knowledge that UNNJ was not a genuine educational institution. 96.
In enrolling at UNNJ, Plaintiffs relied on ICE’s intentional misrepresentations to
their detriment. 97.
The Government should be equitably estopped from relying on Plaintiffs’
enrollment in UNNJ as a basis for a finding that they committed fraud or to otherwise deny them any immigrant benefit. ATTORNEYS’ FEES 98.
Plaintiffs incorporate paragraphs 1 to 97 as if fully stated herein.
99.
As a result of Defendants’ unlawful actions, Plaintiffs were required to retain
legal counsel and to pay counsel reasonable attorneys’ fees. Plaintiffs qualify for fees, expenses, and costs under the Equal Access to Justice Act.
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100.
Pursuant to the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504 and 28
U.S.C. § 2412, Plaintiffs are entitled to recover their costs, expenses, and fees because the Defendants’ actions are not and have not been substantially justified. RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and: a.
Certify this action as a class action and award all relief granted to the class as a whole;
b.
Declare that ICE’s determination that Plaintiffs knowingly participated in visa fraud by their enrollment at UNNJ violated Plaintiffs’ Fifth Amendment due process rights; violated the APA and was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance of the law;
c.
Declare that ICE is estopped from relying on Plaintiffs’ enrollment in UNNJ as a basis to find that they committed fraud or otherwise to deny them any immigration benefit;
d.
Issue an injunction requiring DHS and any of its officers, employees, managers and directors, including those at ICE and USCIS, to provide adequate individualized proceedings before an impartial adjudicator for each Plaintiff in which they will be entitled to review any adverse evidence, respond to such evidence, and present favorable evidence on their behalf prior to determining whether each individual student who enrolled at UNNJ committed fraud;
e.
Issue an injunction requiring an impartial adjudicator as part of the above described individualized administrative proceedings to develop a proper record as
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to whether any student for whom a fraud determination is sustained is immune from a fraud determination on the basis of entrapment by DHS; f.
Issue an injunction barring DHS and any of its officers, employees, managers and directors, including those at ICE and USCIS, prior to providing constitutionally adequate individualized proceedings (i) from relying on a noncitizen’s past enrollment in UNNJ to deny the noncitizen any immigration-related benefit; (ii) from posting on DHS computer systems that Plaintiffs and the class members have committed fraud in relation to their enrollment at UNNJ and requiring that any such notations be removed from DHS computer systems; (iii) from providing directly or indirectly to any other agency of the U.S. government or a foreign government a statement or electronic transmission that Plaintiffs and the class members have committed fraud in relation to their enrollment at UNNJ; and (iv) from using any fraud determination to deny or delay the adjudication of any immigration related petition or application filed by Plaintiffs or class members;
g.
Declare that ICE unlawfully terminated Plaintiffs’ F-1 student status without affording them a reasonable opportunity to preserve their valid status by transferring to another DHS-approved school or applying for a change of status;
h.
To order DHS to reinstate Plaintiffs’ valid F-1 status and provide Plaintiffs with a reasonable period to maintain their valid F-1 status by transferring to another DHS-approved school or apply for change of status.
Dated: December 9, 2016
Respectfully submitted, KURZBAN KURZBAN WEINGER TETZELI & PRATT, P.A. 2650 SW 27th Avenue, 2d Floor Miami, Florida 33133
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Tel: 305-444-0060 Fax: 305-444-3503 By: /s/Ira J. Kurzban IRA J. KURZBAN NY Bar No.: 5347083 Email:
[email protected] EDWARD F. RAMOS (pro hac vice application forthcoming) Email:
[email protected] IAN K. SHAW (pro hac vice application forthcoming) Email:
[email protected]
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EXHIBIT 6 TO SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK IN SUPPORT OF REPLY TO MOTION FOR PRELIMINARY INJUNCTION
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I PERSEREC I ==1 Technical Report 05-8 April 2005
Screening for Potential Terrorists in the Enlisted Military Accessions Process
Kelly R. Buck Defense Personnel Security Research Center
Andree E. Rose Martin F. Wiskoff Kahlila M. Liverpool Northrop Grumman Mission Systems
Approved for Public Distribution: Distribution Unlimited
Research Conducted by Defense Personnel Security Research Center
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April 2005
Technical Report 05-8
Screening for Potential Terroristsin the Enlisted Military Accessions Process
Kelly R. Buck Defense Personnel Security Research Center Andree E. Rose Martin F. Wiskoff Kahlila M. Liverpool Northrop Grumman Mission Systems
Released by James A. Riede! Director Work Sponsoredby: DoD Accession Policy Directorate and Defense Personnel Security Research Center 99 Pacific Street, Suite 45 5-E Monterey, California 93940-2497
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REPORT DOCUMENTATION PAGE
Pubficreporting burdenfor thiscollectionof!nformationis estimatedto average1 11our perresponse.inductl11gIha timeforrevievving mstructtcos. searchingex]s1ingdatasources.gathering andmaintaining the data ne-ode
1. REPORT DATE (DD-MM- YYYY)
29-04-2005 4. TITLE AND SUBTITLE
I Technical 2. REPORT TYPE Report
3, DATES COVERED (From - To)
I
i
1999-2005
!
SL CONTRACTNUMBER
Screening for Potential Terrorists in the Enlisted Military Accessions Process Sb. GRANT NUMBER
i
Sc. PROGRAM ELEMENT NUMBER
I
6. AUTHOR(S)
I
I
Sd. PROJECT NUMBER
!
Kelly R. Buck, Andree E. Rose, Martin F. Wiskoff, Kahlila M. Liverpool Se. TASK NUMBER
I
7. PERFORMINGORGANIZATIONNAME(S)AND ADDRESS(ES)
Defense Personnel Security Research Center 99 Pacific Street, Suite 455-E Monterey, CA 93940-2497
Sf. WORK UNIT NUMBER 8. PERFORMINGORGANIZATIONREPORT NUMBER
TR 05-8 I
9. SPONSORINGI MONITORINGAGENCY NAME(S) AND ADDRESS(ES)
10. SPONSOR/MONITOR'SACRONYM(S)
Defense Personnel Security Research Center 99 Pacific Street, Suite 455-E Monterey, CA 93940-2497
PER.SER.EC
Accession Policy Directorate OASD (FMP) (MPP)(AP) 4000 Defense Pentagon Room 28271 Washington, DC 2030 l -4000
11. SPONSOR/MONITOR'SREPORT NUMBER(S)
12. DISTRIBUTIONI AVAILABILITYSTATEMENT
Unrestricted 13. SUPPLEMENTARYNOTES I
14. ABSTRACT
Tn early 2004, PERS ER EC was tasked and sponsored by the Office of the Secretary of Defense Accession Policy Directorate to identify what the Armed Forces are doing to screen for terrorists in the enlistment process. The authors (a) reviewed recent literature and intelligence reports to identify and understand active anti-American groups of concern for military enlistment, (b) reviewed all relevant executive orders, DoD directives, and Armed Forces instructions and regulations, and (c) visited recruiting and military entrance processing facilities across the U .S,, interviewing personnel at each. The report focuses primarily on individuals joining the enlisted ranks rather than on those entering the U.S. Army's 09L Military Occupational Specialty (MOS), officers, and direct commissions (chaplains, nurses, lawyers, engineers, etc.), ln many ways, however, findings from the study bear on these other groups as well. Findings in the report are presented within the following areas: arriving at a working definition of a terrorist; characterizing the threat; suspicion indicators of potential terrorist allegiances; policies; screening procedures; suspicious incident reporting procedures; and training and education. The research found some evidence of small numbers of persons enlisting in the Armed Forces who are sympathetic to or participants in terrorist groups, At the same, the Armed Forces have implemented many policies and practices designed to specifically, or by default, enable detection of and response to such individuals. Recommendations are made for improving information exchange between DoD, law enforcement, and the intelligence community and for enhancing the efficiency and effectiveness of relevant DoD accessions policies and
I
15. SUBJECTTERMS
terrorism, terrorist, counterterrorism, enlistment, recruiting, military entrance processing, USMEPCOM, suspicion, screening, personnel security, translator, waiver, identification, identity 16. SECURITYCLASSIFICATIONOF:
17. LIMITATION OF ABSTRACT
a. REPORT
b. ABSTRACT
c. THIS PAGE
UNCLASSIFIED
UNCLASSIFIED
UNCLASSIFIED
118, NUMBER OF PAGES
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138
19a. NAME OF RESPONSIBLEPERSON l 9b. TELEPHONE NUMBER (inciude
area
code)
831-657-3000 StandardForm 298 (Rev. 8-98)
Prescribedby ANSI Std. 239.18
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Preface In early 2004, the Office of the Secretary of Defense Accession Policy Directorate asked the Defense Personnel Security Research Center (PERSEREC) to identify what the Armed Forces are doing to screen for terrorists in the enlistment process. The purpose of this report is to present the results of that effort, reflecting a comprehensive approach to many dimensions of personnel screening in the Armed Forces enlistment process. The report also provides recommendations for additional steps that could be taken to make enlistment screening either more efficient or effective. Some of these bear directly on counterterrorism issues. Others are recommendations formulated as byproducts of the study's intensive review of military enlistment procedures. All findings and recommendations have been vetted with Armed Forces Recruiting Commands, United States Military Entrance Processing Command, and basic training personnel throughout the life of the project. Tn fact, many of the findings and recommendations were provided by the Recruiting Commands and the United States Military Entrance Processing Command (USMEPCOM), who have been a great source of expertise in this effort. James A. Riedel Director
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Acknowledgements Facilities The following locations facilitated our visits by making staff available for interviews, providing facility tours, or providing some other form of assistance that deserves special recognition. This study could not have been accomplished without the cooperation and expert contributions of the leadership and staff at all of these facilities.
Recruiting Stations (RS)
Army Battalions
Air Force, Capitola, CA Air Force, Salinas, CA Coast Guard, San Jose, CA Marine Corps, Boulder, CO Marine Corps, Denver, CO Navy, Capitola, CA Navy, Daly City, CA Navy, Lakewood, CO Navy, Salinas, CA
Albany, NY Brooklyn, NY Syracuse, NY
Navy Districts Denver, CO Seattle, WA
Air Force Squadrons 313 Syracuse, NY 36 I McChord AFB, WA
Military Entrance Processing Stations (MEPS) Albany, NY Albuquerque, NM Brook I yn, NY Denver, CO
Additional Facilities Marine Corps Recruiter's School, San Diego, CA Navy Recruiting Area 1, Scotia, NY Navy Recruit Training Command, Great Lakes, IL United States Military Entrance Processing Command (USMEPCOM), Great Lakes, IL
Detroit, Ml Fort Dix, NJ Honolulu, HI Los Angeles, CA Portland, OR Raleigh, NC1 Sacramento, CA San Antonio, TX San Diego, CA San Jose, CA Seattle, WA Syracuse, NY
Recruiting Commands Air Force, San Antonio, TX Army, Louisville, KY Marine Corps, Quantico, VA Navy, Millington, TN
I
Telephonic interview with MEPS personnel
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Contributing Experts
The following individuals deserve special recognition for accommodating our visits, sharing expert advice, and for providing technical information during the course of our interviews. We sincerely regret if we have failed to recognize any individual's contribution to this body of work. We greatly appreciate the time and information offered by every person with whom we spoke. Sergeant First Class Dave Foland Staff Sergeant Carol A. Harrell Staff Sergeant Crystal J. Kim Sergeant First Class Phillip A. Maas Sergeant First Class Timothy J. McCool Master Sergeant Gamet J. Tyrell Sergeant First Class Drew Williams
Army Captain Tomiko Ballard Major Thomas Battles Mr. Blane Mr. Clark Sergeant Dance Major Thomas M. W. Downs Mr. Paul Drebitke Major Mark Entwisle Lt Col John W. Gillette Captain Grossman Major Bill Gumm Lt Col Timothy Kiely Major Mahaney Sergeant Melendez Sergeant Michaeles Major Hugo Morales Colonel James Palermo Major Todd Parker Sergeant First Class (Ret.) Kelly Parsons First Sergeant Dave Pickering Mr. Polk Master Sergeant Sanocki Frank Shaffery John J. Sheehy Captain Ray Shetzline Errol Smith Sheila Stewart Diana Svab Sergeant First Class Thomas Alexander "Sasha" Vorobiov Captain Mark Winkler Captain Woods
Navy CDR Annie Andrews John K. Austin CDR Layne Boone PNCS(SW/AW) Dee Budzinsky EPDS Joel Chewing LCDR Russ Delany Mr. Sylvester "Sly" Gaston, 111 FC I Dan Hebert LCDR Ralita Hildcbrande Mr. Ed Kearl CDR James Knapp Terry Laque CDR Donald Leingang CDR Ray Lewis LCDR Theresa Lewis Deputy Bill Lovejoy Chief Charles Montoya Ms. Kathy Morris Command Master Chief Denver Navarrete Lt. Newhalfen LCDR Richard Preston LCDR Ann H. Rennie Lt Jared Chiu-Rourrnan EPDS Jerry Scott LCDR Alison Tanaka Deputy CDR John Tomkovitch Lt Lori C. W arks CAPT Ray Wynne
Army National Guard Sergeant First Class Julio Apodaca Sr. Master Sergeant Carl Clark Sergeant First Class Edward Correa Ill
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MGySgt C.L. MacMillan Staff Sergeant Meyers Mr. Michael J. Styka LtCol Ken Thompson Captain Whited Mr. Steve Wittle LtCol Noel "Scott" Wood
Air Force Staff Sergeant Stephanie Coffee Lt Col Glen F. Copeland Colonel Bob East Lt Col Susan Ernala Lt Col Laura Feldman Major Thomas Fredericks Staff Sergeant Thomas George Staff Sergeant Jason M. Gossman Staff Sergeant Christian Granda Master Sergeant Dana M. Hannon Technical Sergeant Hendrick Staff Sergeant Valerie James Staff Sergeant John KonKolics Staff Sergeant Mike Kuettel Major Cheryl Lee Master Sergeant Terry K. Lemmon Technical Sergeant Billie L. Lopez Master Sergeant Stephen A. Mataraza Lt Col Patrick E. McCormack Staff Sergeant Eric E. Neill Senior Master Sergeant Thomas M Nelligan Lt Col Jade Skinner Staff Sergeant Eric Ramos Major Mike Reyna Technical Sergeant Richard Rose Captain Edward L. Smalls Major Kenneth Smalls Master Sergeant Brian Smith Major Tangela Spencer Technical Sergeant Scott Thomison Captain David J. Wilson Lt Col Dan Woolever
Coast Guard Carlos R. Rosario Petty Officer Val Teixeira
USMEPCOM Captain Judith Ackerson Colonel John M. Atkins Mr. David O'Brien Master Sergeant Patrick J. Cameron Lt Col Tom Henson Mr. Kevin D. Moore, Sr. Major Ted Newman Mr. Dale Ostrowski Colonel Rocky Swearengin Ms. Dorothy Thomas Colonel Daniel C. Weaver Colonel Lon Yeary
Military Law Enforcement& Intelligence Dave Gilbert, AFOSI Fallon Procter, Army INSCOM Personnel at IACP from CID, OSI, and NCIS
Marine Corps Master Sergeant J.T. Allan Master Sergeant Dean L. Bowers Captain Burgett Major Charles W. Dougherty Major Kyle D. East Staff Sergeant Joseph Ezit, UI Master Sergeant Furness Major Griggs GySgt Terrance L. Haase Captain Hesseling
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Executive Summary Purpose of the Study In early 2004, the Office of the Secretary of Defense Accession Policy Directorate asked the Defense Personnel Security Research Center (PERSEREC) to identify what the Armed Forces are doing to screen for terrorists in the enlistment process. The purpose of this report is to present the results of that effort. The report identifies the many steps in the enlisted accessions process that have been implemented to help identify individuals who belong to or are sympathetic of groups that are disloyal and hostile toward the U.S. government. Overall, USMEPCOM and the Services have implemented many effective policies and screening procedures while respecting and protecting applicants' rights to freedom of speech, religion, and association. Building on the steps that have already been taken, additional measures are recommended that may improve the efficiency and/or effectiveness of the current screening process. Methodology An extensive review was conducted of Department of Defense (DoD), Armed Forces, and United States Military Entrance Processing Command (USMEPCOM) policies and procedures pertaining to the enlistment process. The objective was to identify components that would serve the purpose of helping to screen for potential terrorists. Reviews of these literatures were supplemented with visits and interviews at recruiting stations (RS), military entrance processing stations (MEPS), military Recruiting Commands, military training commands, and USMEPCOM. For a list of sites visited, refer to the acknowledgements section. Interviews were conducted in each of these locations and relevant documents were collected.
The report focuses on individuals joining the enlisted ranks, excluding those entering linguist positions, officers, and direct commissions (chaplains, nurses, lawyers, engineers, etc.). Nonetheless, many of the issues discussed in this report would apply to vetting of other than new enlisted rank personnel. To understand the terrorist threat, contemporary literatures on groups associated with the attacks on the U.S. on September ll, 2001, were reviewed as well as literature pertaining to domestic terrorist groups. Military criminal investigations personnel were consulted and Federal Bureau ofinvestigation (FBI), state, local, and military law enforcement intelligence reports were monitored throughout the project to identify indications of terrorist activity by U.S. military enlisted personnel. Definition of Terrorist In our meetings with recruiting and USMEPCOM personnel, we found it effective to conceptually frame the "terrorist" in "screening for terrorists" as anyone who was
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sympathetic to, or a member of, a group that could be characterized as both disloyal and hostile toward the U.S. government. Effectively, anyone who is antagonistic toward the U.S. government and who would be willing in any way to support the efforts of a specific group in working against the U.S. government, its citizens, and entities would qualify as someone whom we are interested in detecting and excluding from military service and from possible access to sensitive information and facilities.
Characterizingthe Threat This section briefly describes the main foreign (Militant Jihadists) and domestic groups (White Supremacists, White Nationalists, and domestic militias) whose past and recent actions and current ideologies render them particularly hostile and disloyal toward the U.S. government. Several data sources were consulted and Recruiting Commands, MEPS, and military law enforcement personnel were interviewed to surface indications of attempted or actual enlistment of disloyal and hostile persons. The sources accessed for this report did surface some currently or formerly enlisted persons with terrorist or extremist group associations. While their presence in the military is significant in its own right, the actual numbers are extremely small relative to the denominator representing the millions of personnel who have been enlisted in the Armed Forces. Smaller still is the number of personnel who enlisted specifically for purposes of furthering their extremist causes. Most intelligence, information, and history of events suggest that more significant is the threat from outsiders waging attacks against military personnel, some of whom may be employed at RS and MEPS. Additionally, the fact that the insider cases we did find were documented is indicative of the diligence the Recruiting Commands and USMEPCOM have towards these issues. To the extent there is an insider threat, the opinion of active duty personnel and counterterrorism and counterintelligence experts and the evidence from case studies examined for this report suggest that it is not from new recruits. Rather, the threat derives from active duty persons being recruited or converting to radical ideologies out of religious conviction or after becoming disaffected with a commander, a fellow solider, an assignment, or military service in general (Mintz & Vistica, 2003). Or, the threat could be manifest in individuals who engage in bad conduct for purely self-interested reasons such as money, ego, addiction, or revenge and then attempt to dignify their actions, after the fact, as being motivated by some higher religious value. While the number of active duty personnel who can be categorized as insider threats or terrorists is believed to be nearly infinitesimal once the denominator of millions of military personnel is taken into account, the means available to persons who would, were all things known, be disqualified from enlisting are the same means that terrorists could use to enlist. In the enlistment process, this effectively boils down to how one represents one's identity, background, abilities, associations, and intentions. To the extent that optimal procedures arc not in place to detect problems in how applicants represent their personal identifiers, background, abilities, associations, and intentions, terrorists and nonterrorists alike can exploit the weaknesses.
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Policies and Regulations Restricting Extremism in Military Service The U.S. government, DoD, and the Armed Forces have established numerous policies defining and restricting participation in extremist organizations and activities, which would include participation in terrorist groups and activities. The DoD and Armed Forces have also established policies regarding how to define and respond to persons and activities that appear to be inconsistent with defense of national security. This section lists these policies, along with key components of them that directly and indirectly define and regulate participation of and response to military personnel in extremist and terrorist groups and activities. Screening Procedures that Help Detect Enlistees Who May be Disloyal and Hostile Toward the U.S. Government The Recruiting Commands and USMEPCOM have implemented many screening procedures that have the effect of detecting and deterring applicants and recruits who are enlisting with disloyal and hostile intentions. These procedures include identification checking and verification, criminal background checks, checks of the FBI's terrorist file (and thus checks of the Terrorist Screening Center databases), extremist tattoo screening, numerous questionnaires and interviews, credit checks, and, when appropriate, security clearance background checks. Policies and Procedures for Reporting and Documenting Suspicious Persons or Activities Under current procedures, observations of suspicious persons are often first reported through recruiting chains of command to commanders who are authorized to determine whether the information should be forwarded to law enforcement, force protection services, or antiterrorism officers. More formal means for reporting and sharing suspicious person and incident information are being developed. Training and Education All of the military services provide extremist group detection and response training to some segments of their services. This section provides information on military personnel training and education that address extremism, hate, discrimination, and conflict resolution. Recruiting, MEPS, and training personnel were asked at every location visited whether they received training on the recognition and reporting of individuals who may be hostile and disloyal toward the U.S. government. Based on their responses, it is clear that equal opportunity training is well understood and valued. Military Services also consistently receive force protection briefings and training for dealing with external threats.
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Recommendations
We observed aspects of the enlistment process that conceivably could contribute to acceptance of persons whom the military would prefer not to enlist, if all things were known at the time they were processing them. The vulnerabilities in the enlistment process that otherwise disqualified people could intentionally use, or unintentionally benefit from, are the same vulnerabilities that terrorists could use to elude detection and infiltrate the military. Therefore, by addressing these vulnerabilities, the enlistment community can strengthen its screening against terrorists. In addition to making recommendations to address the effectiveness of screening practices, we also observed a few opportunities for improving the efficiency of existing screening practices. This section presents recommendations that were developed over the course of the project, Some were derived from interviews with enlistment personnel. Others were the
result of the authors' observations, based on their knowledge of personnel security systems. USD(P&R) should work with the Intelligence community and federal and local Jaw enforcement to improve exchange of information between these entities and DoD regarding recruitswho may be members of or have associations with extremist groups. When the DoD submits fingerprints for checks of the FBI's criminal record files, a check of the FBl's Violent Gangs and Terrorist Organization File (VGTOF) is also conducted. The VGTOF file is updated regularly with consolidated files of the Terrorist Screening Center. Hits on this file are not returned to the Recruiting Commands, however, but rather go to the submitting agency of the record found. It is at the discretion of these agencies to notify the Recruiting Commands that a person in VGTOF is attempting to enlist. Recruiting Commands do not report being notified nor would the law enforcement agencies aware of the case know whom to notify. Agreements and procedures are needed for more effective and timely exchange of this information in a way that does not compromise the investigations of law enforcement. USD(P&R) should work with other federal agencies such as the Department of HomelandSecurity (DHS), United States Citizenship and Immigration Services (USCIS), Social SecurityAdministration (SSA), and Federal Bureau of Investigation (FBI) to clarify and simplify procedures for USMEPCOM and Recruiting Command personnelto report suspicious persons and incidents. USMEPCOM personnel have noted that it is not a simple matter to communicate suspicious persons or incidents to appropriate federal agencies outside of DoD. The networks of communication are not always user-friendly and it can be difficult to identify which government agencies, such as FBI, OHS, SSA, or USCIS, to notify. Even more difficult is knowing whom to contact within any of these agencies.
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USD(P&R) should support development and/or implementation of training materials for recruiting and USMEPCOM personnel in the detection and response to individuals with potential terrorist and extremist group associations.
Recruiting and USMEPCOM personnel interviewed during this study were not aware of having received systematic training on recognizing and responding to possible terrorists who try to enlist. Instructors and course developers assigned to address the subject matter reflected in this section should take advantage of information in this document and our efforts to catalogue relevant courses. The information provided should make it easier for them to locate and integrate into their classes relevant information and course materials being used in other instruction venues across the DoD. USD(P&R) should support USMEPCOMand the Recruiting Commandsin developing and training on optimal DoD information sharing systems for suspicious persons and incidents. Recruiting Commands, MEPS, and basic training personnel need clear and easily implemented instructions for aggregating and sharing information about persons they detect who may have terrorist or extremist group associations. Information sharing among these groups does not appear to occur, and because of this, military personnel cannot evaluate the full extent to which problematic persons associated with particular groups are trying to enlist in the military and their apparent strategies for doing so. Personnel are unlikely to be able to detect anything beyond what would appear to be isolated incidents.
•
Ensure Recruiting and MEPS personnel, recruits, and basic training personnel know when, how, and to whom within DoD to report suspicions of extremist associations of applicants, recruits, and other military personnel.
•
Continue and accelerate development of the joint suspicious incident database via Area Security Coordinators or some other means for aggregating information about suspicious incidents and persons.
•
Ensure suspicious incident and person reporting is integrated to include all entities involved in the accessions process from recruiting stations through basic military training.
USD(P&R)should improve methods for preventing, detecting, and respondingto identification fraud. Misrepresentations of identity are common tactics of terrorists trying to gain entry where they would otherwise be prohibited. In the military enlistment context, extremists may attempt to show documents, such as alien registration cards or birth certificates, which meet eligibility requirements. Or they may present identification documents that dissociate them from military, criminal, or watch list records that would disqualify them
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from enlistment. USMEPCOM and the Recruiting Commands currently do not have systematic resources or procedures for protecting their organizations from this kind of fraud. •
USD(P&R) and USD(I) should work together to develop and provide comprehensive document fraud recognition training.
•
USD(P&R) should continue and accelerate support for USMEPCOM and recruiting command progress toward paperless processing, which will enhance automated evaluation of identification information.
•
USD(P&R) should implement policy and procedures to increase the likelihood that law enforcement detains and investigates applicants who engage in identification fraud.
•
USD(P&R) should continue development and implementation of USMEPCOM's e-Signature and e-Security initiatives. Until these systems are in place, require recruiting station, MEPS, recruiting liaison, and basic training personnel all to review and validate original identification documents.
•
USD(P&R) should support and promote implementation civil fingerprint file for all fingerprint submissions.
•
USD(P&R) should ensure that all identification information that can be validated against databases is appropriately requested and docw:nented.
of checks of the FBI
USD(P&R) should ensure MEPS-type quality assurance is applied to all overseas recruits MBPS personnel play an important role in providing quality assurance to applicants for military service. Currently, with the exception of the Unites States Marine Corps (USMC), Recruiting Commands are not subjecting overseas applicants to the same quality assurance procedures used for domestic applicants. As such, enlistment via recruiting stations in non-U.S. countries would be a softer target for someone wanting to infiltrate the U.S. military. In fact, this may be one of the most vulnerable points for allowing hostile foreign nationals to infiltrate our military. Providing extra layers of screening beyond the recruiter, who has conflicting demands to recruit individuals, will provide a harder target for someone wanting to enlist for purposes of undermining or attacking the U.S. government.
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USD(P&R) and DUSD(CI&S) should review policy and procedures to identify the best means for improving the completeness and accuracy of information used to populate security clearance applications (SF 86 I EPSQ I E-QIP, etc.). Currently, the "SF 86: Questionnaire for National Security Positions" is completed by every applicant for military service in the United States. Its purpose is to collect information for background investigations of persons applying for security clearances. For military accessions and security clearance vetting, the SF 86 is the primary questionnaire for documenting potential indicators of hostile and disloyal associations and histories. The importance of the SF 86 may not be sufficiently understood or respected by some recruiting personnel. Recruiters often help applicants fill out the SF 86, sometimes incompletely and inaccurately, to meet paperwork requirements for enlistment. This same SF 86 is then also submitted as part of security clearance applications. As the DoD moves toward automated adjudication of security clearances, based to some extent on automated processing of information on the SF 86, without better quality, the military recruiting process will be responsible for infusing vulnerability into national security by contributing to clearance of individuals who pose a risk.· USD(P&R), DUSD(Cl&S), the FBI, and OPM should work together to ensure DoD is receiving full advantage of statutory authorizations to receive applicants' criminal history for national security clearance and military acceptance and retention purposes when appropriate. We initially recommended that the USD(P&R) review procedures being used to assign the FBI purpose code to fingerprint submissions for FBI criminal record checks. USMEPCOM quickly and correctly determined that they do not have any control over how OPM forwards record check requests to the FBI. To restore the level of access to information enjoyed by DoD prior to the transfer of the PSI from DSS to OPM, the FBI, OPM, and the DoD will need to meet to determine how to submit criminal record checks from DoD for national security purposes and enlistment or retention in the military as authorized by USC Title 5, section 9101 (SCIA). According to the FBl, record checks for national security purposes may result in return of juvenile records and sealed records from states queried through FBI checks. Since the enlistment population has a much higher probability of having committed any crimes as juveniles and because juvenile records are often sealed, access to records as authorized by SCIA should be ensured. USD(P&R) should support increased use of and training on the intelligence value in credit reports to validate information provided by applicants With the exception of Army, currently, credit reports are being run on every applicant. The Army is expected to obtain credit reports on every applicant beginning in October 2005. Information was not available to indicate whether or how enlistment personnel are benefiting from the intelligence available in credit reports. For example, credit reports can provide the following types of information:
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•
•
• •
Unlisted aliases Amount and types of information inconsistent with age of applicant Unlisted residences Evidence of problematic finances
USD(P&R) should identify how this information can most effectively be made available to decision makers in the accessions process who are determining whether individuals applying for military service are who they say they are and whether they should resolve financial issues before applying for security clearances. The military Recruiting Commands should work together and with law enforcement to develop a joint services Digital and Searchable Tattoo Assessment Tool (TAT). Tattoo screening was one of the most frequent practices that recruiting personnel indicated they used to identify individuals with indications of possible hostile and disloyal associations and intentions toward the U.S. government. Recruiting and basic training personnel consistently indicated concern with the completeness, accuracy, timeliness, and accessibility of intelligence for screening tattoos. The efficiency and effectiveness of information available in tattoo screening can be improved through development and implementation of a joint digital and searchable tattoo assessment tool (TAT). USD(P&R) should update policies and procedures pertaining to prohibiting and detecting extremist association manifest in Internet behavior. The Internet has greatly expanded opportunities for people who are hostile and disloyal toward the U.S. government to meet each other, share information, and plan. In our study, the Internet provided the strongest evidence of active duty military personnel participating in extremist groups. The DoD and the Recruiting Commands should clarify prohibited participation in Web sites and Web forums that are sponsored by, or are online gathering places for, terrorists and extremist groups The DoD should also consider establishing procedures and assigning responsibility for monitoring extremist Web sites and forums for participation by members of the Armed Forces. USD(P&R) should standardize and implement question strategies that are more likely to engage applicants in conversations about potentially problematic associations. As discussed earlier, indications are that questions currently being asked of applicants regarding associations with extremist groups do not yield many affirmative responses. This may be because, in actuality, virtually none of the persons filling out the SF 86 have had associations with extremist groups. At the same time, the questions asked may not effectively open discussions about the kinds of behaviors and attitudes that indicate sympathy for or involvement in
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extremist groups. Based on interviews with enlistment personnel, reviews of their questionnaires, and reviews of answers to the SF 86, we feel that a better set of questions could be made available to enlistment personnel to probe pertinent issues with applicants. They would specifically address the ways applicants and recruits can act to support groups hostile and disloyal to the U.S. government, to include Internet behavior. The proposed questions are as follows: The following questions pertain to your participation terrorist organizations and activities.
in extremist and
Note: First, define for each applicant what "extremist or terrorist organizations or activities" mean: People who support or agree with extremist organizations think it is OK to use force or violence or to discriminate against other people based on their race, ethnicity, religion, gender, sexual orientation, disability, national origin, or support for U.S. government policy. Or they may try to disrupt, sabotage, overthrow, or commit espionage or terrorism against the U.S. government, or any of its State or local governments. a. Have you ever advocated or practiced discrimination or committed acts of violence or terrorism against individuals based on their religion, ethnicity, race, sexual orientation, disability, gender, or loyalty to the U.S. government? (YES/NO)
b. Have you posted or distributed literature or participated in public demonstrations to show your allegiance to or to promote an extremist organization or philosophy? (YES/NO) c. Have you ever provided labor, money, or other resources to extremist individuals or organizations? (YES/NO) d, Have you ever received training from or recruited or provided training for extremist organizations or causes? (YES/NO) e. Have you ever attended any meetings, participated in any Web sites or on-line discussions, or exchanged information in any way with individuals involved in extremist organizations or causes? (YES/NO) f. Are there any groups (such as countries, political groups, or religious groups) who you would feel obligated to defend if they claimed they were under attack by the United States Government? (YES/NO)
If you answered "yes" to any of question (a) through (f) above, please explain.
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Table of Contents Introduction
1
Arriving at a Working Definition of Terrorism
3
Characterizing the Threat 5 Recent Groups Who Have Demonstrated Disloyalty and Hostility Toward U.S. Government 5 Militant Jihadism as an Insider or Outsider Threat 7 Evidence Indicating Prevalence oflnvolvement of Hostile and Disloyal Groups in the Military at the Time of Enlistment ··---~··-,, .IO Conclusions about the Threat of Terrorists Infiltrating the Military through the Enlisted Accessions Process 14 Policies and RegulationsRestricting Extremismin Military Service Executive Orders and DoD Directives U.S. Anny Regulations___ U.S. Navy Instructions U.S. Air Force Instructions U.S. Marine Corps Orders ----------·--------
16 18 24
····---
25 26 27
Screening Procedures that Help Detect Enlistees Who May be Disloyal and Hostile Toward the U.S. Government 29 Establishing Identity 29 Establishing Employment Eligibility 30 Automated Database Checks 31 State and Local Criminal History Checks 34 Tattoo Screening --~~-~--~~~--~~~~~~--~~~~~34 Questionnaires and Interviews 37 Credit Checks 50 Security Clearance Restrictions 50 Aptitude Testing 51 Policies and Procedures for Reporting and Documenting Suspicious Persons or Activities Federal Department of Homeland Security System USMEPCOM Station Advisory Reporting Network (STARNET) Armed Forces Recruiting Stations Operational Security Manual Procedures _ ...~-Army Regulations Training and Education-~~-----~-~---~~~~~--~ U.S. Army U.S. Navy U.S. Air Force
52 52 52 53 53
54 54 56 58
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U.S. Marine Corps (USMC) All Services and the Security Community
60 61
Appendices Appendix
A: Examples
of White Extremists in the Military on the Web
Appendix
B: Indications
Appendix
C: U.S. Navy Military Applicant Security Screening
of Extremists
Appendix D: U.S. Army, TAPE-EPMD Questionnaire
in Security Clearance Investigations_ (MASS)
A-1 B- l F-1
Form 169-R, Security Screening
G-1
Appendix E: U.S. Army, TAPE-EPMD Form 189-R, Personnel Reliability Program Screening Questionnaire H-1
List of Tables 1. Compendium of Concepts Used in Definitions of Terrorism and Terrorist
3
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Introduction In early 2004, the Office of the Secretary of Defense Accession Policy Directorate asked the Defense Personnel Security Research Center (PERSEREC) to identify what the Armed Forces are doing to screen for terrorists in the enlisted accessions process. The purpose of this report is to present the results of that effort. The report focuses on individuals joining the enlisted ranks, excluding translators", and officer, chaplain, and professional positions. Nonetheless, many of the issues discussed in this report would apply to vetting of those types of personnel. At the heart of the research effort was a review of Army, Navy, Air Force, and Marine regulations pertaining to activities conducted by recruiting stations (RS) and Military Entrance Processing Stations (MEPS). Reviews of these regulations were supplemented with visits to RS, MEPS, Recruiting Commands, and training facilities across the nation (see acknowledgements). As a result of this work, we developed detailed flow charts of every step in the accessions process from the recruiting station through the end of basic training that involved an exchange of written, verbal, or visual information between military enlistment personnel" and applicants. These information exchanges were then reviewed in light of whether they could constitute a screen for terrorists. Steps in the process that serve the purpose of screening for terrorists are summarized in the section detailing "Screening Procedures that Help Detect Enlistees Who May be Disloyal and Hostile Toward the U.S. government." Before assessing the value of each point of information exchange in screening for terrorists, however, we had to arrive at a working definition of the types of persons who may be trying to enlist in the military who could be categorized as "terrorists." As one 2
Enlistment of translators was an issue in most of our visits to MEPS. Many RS and MEPS personnel indicated they were "uncomfortable" with the idea of some of the people they were enlisting as 09L Translators/Aides. At the same time, personnel in these MOS are subjected to more stringent enlistment standards, with the exception of Armed Services Vocational Aptitude Battery (ASV AB) scores and possibly age thresholds. In taking the ASVAB, they must process through MEPS and cannot use Mobile Examination Team (MET) sites. They are all subjected to National Agency and Local Agency Checks (NACLC), must meet citizenship requirements of AR 601-20, and cannot be granted waivers above the minor nontraffic level. They cannot be processed on Saturdays, Service mission day, or extended hours processing support days - all times when they may not be subjected to the utmost scrutiny. They also undergo an Oral Proficiency interview (OPf). Applicants enlisting in the 09L program enter under the Army Civilian Acquired Skills Program. (USA.REC Operation Order 3-0007). The extra measures reflect that, in the current climate, the military services recognize this is a higher risk group for potentially enlisting persons who are hostile and disloyal to the U.S. government. This same climate entails acute demands for translators, however, and we trust the military commands have good reason for assuming more risk in order to meet their needs for people who speak the languages of people with whom we are in conflict. 3 The term "enlistment personnel" refers to the following: all personnel under the commands of the Armed Forces Recruiting Commands, a!I personnel under the command of the United States Military Entrance Processing Command (USMEPCOM), and basic training personnel for all Services.
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will see in reviewing the section on "Arriving at a Working Definition of Terrorism," applying a very literal definition of "terrorist" and "terrorism" was not realistic. Instead, we focused on aspects of the screening process that could surface indicators consistent with the identities or tactics of groups who have shown themselves to be disloyal and hostile toward the U.S. government. These types of groups are described in the section on "Characterizing the Threat." When these indicators surface in the accessions process, it does not mean that the applicants with whom they are associated are necessarily disloyal and hostile toward the U.S. government. They arc simply cues to accessions and security personnel to be alert, ask more questions, and act as much as possible and permissible to dispel any suspicion that the indicator at issue is in any way related to hostile intentions toward the U.S. government. The conditions of possibility and permissibility referenced in the preceding sentence are very important to understanding the accessions process. Enlistment personnel are extremely vigilant of the civil rights and liberties of the individuals whom they are working to enlist. They have guidance on objective behavioral criteria that can be used to disqualify applicants. At the same time, these decisions are made in a climate
that is respectful of individuals' fundamental rights to privacy and freedom of speech, association, and religion. Once one moves from disqualifying applicants based on clear criteria such as low test scores, poor medical health, impermissible tattoos, or serious criminal conduct to having to make decisions based on extremist intentions and associations, the task gets much tougher, Nonetheless, the Armed Forces have dealt effectively with these issues, and the results of their efforts are reviewed in the section on "Policies and Regulations Restricting Extremism in Military Service." Policies pertaining to extremism are ineffective unless individuals are aware of them, have common understandings of them, and actually implement them in the course of daily business. Therefore, as part of this research effort, we reviewed what is being done to train and educate enlistment personnel, new recruits, and their instructors to detect and respond to applicants and recruits who may be disloyal and hostile toward U.S. government. Finally, we conclude with some recommendations of what we feel could be added or strengthened in the accessions process to increase the chances that individuals who are both disloyal and hostile toward U.S. government could be detected. Many of these recommendations do not reflect inadequacies in current systems; rather, they are prospects for enhancing systems to increase the likelihood of detecting persons who are engaging in deception in the accessions process, as terrorists would have to do in order to be enlisted.
2
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Arriving at a Working Definition of Terrorism In a project with the purpose of identifying what is being done to "screen for terrorists" in the enlisted military accessions process, working from any one official definition or one of the many available unofficial definitions of "terrorists" and "terrorism" was problematic, particularly with the frame of reference being enlisted military personnel. What do enlisted terrorists look like? What have they done or what do they intend to do that qualifies them as terrorists? Definitions from the U.S. Code, the Department of Homeland Security, the European Union, the Department of Defense (DoD), and Web sites of terrorism experts were culled. The resulting compendium of terms and conditions used in definitions of terrorism is shown in Table 1. This list shows an array of dimensions according to individuals' affiliations, their intentions, their targets, and characteristics of their real or possible acts. Table I Compendium of Concepts Used in Definitions of Terrorism and Terrorist
•
•
•
• •
• •
• •
premeditated politically motivated violence perpetrated by subnational groups or clandestine agents usually intended to influence an audience calculated to terrorize the public or a particular section of it includes threats as well as actual violence randomly selects targets in order to terrorize the public at large excludes attacks on soldiers, which would be warfare targets noncombatants, which can include civilians and off . duty servicemen or on-duty servicemen not actively engaged in hostilities excludes states from being perpetrators of terrorism; states can only be sponsors of terrorism engaged in any violent revolutionary activity intentionally committed by an individual or a group against one or more countries, their institutions or people has the aim of intimidating one or more countries, their institutions or people has the aim of seriously altering or destroying the political, economic or social structures of countries calculated use of violence or the threat of violence to inculcate fear intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological entails destruction of people or property by people not acting on behalf of an established government committed for purpose of redressing a real or imaginary injustice attributed to an established government aimed directly or indirectly at an established government
3
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In holding ourselves to a literal interpretation of "screening for terrorists," we would effectively be trying to identify policies and procedures in the enlistment process that reveal when the dimensions in Figure 1 are associated with applicants. For example, we would be attempting to identify how the Armed Forces are screening for individuals or members of subnational groups who are enlisting for the purpose of engaging in ideologically motivated violence or threats of violence against randomly selected targets that represent a particular government with the aim of intimidating or coercing the noncombatant population of that government, which includes off-duty soldiers and onduty soldiers not engaged in hostile actions. Putting the words to print shows the absurdity of taking the term "terrorist" literally when referring to policies and procedures to "screen for terrorists" in the enlistment process. In our meetings with recruiting and USMEPCOM personnel, we found it effective to conceptually frame the "terrorist" in "screening for terrorists" as anyone who was sympathetic to, or a member of, a group that could be characterized as both disloyal and hostile toward the U.S. government. Effectively, anyone who is antagonistic toward the U.S. government and who would be willing in any way to support the efforts of a specific group in working against the U.S. government, citizens, or entities would qualify as someone whom we are interested in detecting and excluding from military service and possible access to sensitive information and facilities. The advantage of this definition is that it enables us to take into account both domestic and foreign antagonists. It also allows us to rule out criminal gang associations that are not necessarily disloyal to the U.S. government. Someone can be a drug dealer or
a gang member and have no desire to carry out an ideologically motivated agenda for committing or supporting violence against the government. The definition also excludes from being classified as terrorists those foreign nationals who enlist in the Armed Forces to learn military training, with the intention of returning to their home countries and our allies to use that training on behalf of their nations' defense and military actions. This is not an uncommon scenario in our military. The key with these soldiers, however, is that while not necessarily being loyal to the U.S. government, they are not hostile toward it either. Thus, we arrived at the following as the object of our analysis of"what's being done to screen for terrorists" in the enlisted accessions process: a person who has sympathy for, or is a member of; a group that is both disloyal and hostile toward the U.S. government.
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Characterizing the Threat With disloyalty and hostility toward the U.S. government as the standard for excluding some applicants and recruits, it is possible to think strategically about groups who are active at this time and who meet both these criteria. In this section, the main foreign and domestic groups who would pose the greatest threat if they are attempting to infiltrate the military are described. Evidence is provided of their recent actions and current ideologies that render them hostile and disloyal toward the U.S. government. Following this section, evidence of any involvement by these groups in the military at the time of enlistment is discussed. Not all extremist groups are specifically referenced in this section. The focus is on those that were active at the time this report was prepared and whose ideology is anti-U.S. government and who advocate denying U.S. citizens their civil rights. Thereafter, steps in the accessions process that screen for possible members of these groups are listed. Recent Groups Who Have DemonstratedDisloyalty and Hostility Toward U.S. Government Militant Jihadists What we are calling "Militant Jihadists" are often referenced as Islamists, Islamic extremists, Jihadists, al-Qaeda, and other names that represent similar groups that are engaged in violence against the U.S. and its allies. These groups have been waging violence against U.S. assets and interests for decades, though they gained a prominent and permanent place in the U.S. public's consciousness with the 2001 hijacking and crashing of United and American Airlines flights in New York, Virginia, and Pennsylvania. Over time, variants of these groups dissolve and reassemble under different names. Their purposes, as described below, remain constant. For a recent list and description of these types of groups, one can refer to the Department of Homeland Security Terrorist Organization Reference Guide (2004) and the Department of State's list of Designated Foreign Terrorist Organizations (FTOs). Militant Jihadists engage in violence under the guises of avenging injustice against Muslims and/or instituting extremist Islamic Law, or Shariah Law, as defined by extremist Muslim religious leaders, in place of existing non-Islamic and/or democratic regimes (see, e.g, Al-Khilafa Publications, 1999). Due to the sensitivity of the topic in light of the First Amendment of the U.S. Constitution's Bill of Rights, one cannot begin a discussion of Militant Jihadists and their relationship to Islam without clarifying that the term Militant Jihadism is not used to represent the religion of Islam. At most, it is a subset within a larger population representing all of the Islamic faith. Many Muslims, however, would disagree that Militant Jihadists belong in the same field as people of the Muslim faith. It is not the purpose of this report to address the place of Militant Jihadists in the religion of Islam. It is important for the reader to understand that references to Militant Jihadists in no way bear on the legitimacy, rights, divine guidance, and propriety of the Muslim faith in general. 5
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The U.S. government needs to clearly establish the point that Militant Jihadism is a political ideology that often happens to be communicated using the rhetoric of religion. Militant Jihadism does not make a distinction between church and state. In fact, a fundamental tenet of the Militant Jihadist philosophy is that it would be a sin to purposefully in any way establish a separation of church and state. Democratic laws are illegitimate and evil because they are "man-made" laws expressing the will of the electorate rather than God. For the Militant Islamist, the State, in all things, should operate as a manifestation of and in obedience to Allah. Thus: "At first glance, militant Islam appears to present a challenge unprecedented in the U.S. experience. The U.S. government - a determinedly secular entity - cannot formulate a policy toward a religion. But a closer look at militant Islam reveals the solution. Yes, Islam is indeed a faith, but its militant variant is a form of political ideology. Formulating a policy toward it is akin to a policy toward fascism or Marxism-Leninism." (Pipes, 2003) Militant Jihadists are openly hostile toward the United States and western values and mores. For many, their ultimate goal is to replace non-Islamist political systems with a Khilafa, i.e., Islamic State (e.g., see Al-Khilafa Publications, 1999). Western society especially is the enemy of Islam. Ayatollah Khomeini declared war on the west in 1979, and Militant Jihadists have engaged in anti- Western violence since at least 1983. The political ideology of the Militant J ihadist is totalitarian. lslamism is a ruling
system, not a matter of personal faith. For example, it prescribes conduct in law, medicine, economics, engineering, social and family relations, and education. Militant Jihadism prescribes a complete program for regulating the day-to-day activities of everyday life. Militant Jihadists are anti-democratic ( e.g., see Bin Abdul Aziz, n.d.), anticapitalist (Mariam & Nawaz, 2003), anti-communist, and anti-socialist. At least national, and for some global, domination is a political objective. They are not willing to tolerate integrated, co-existence of Western and Militant Jihadist values and mores. For the reasons listed above, the allegiance to the U.S. and the willingness to defend its Constitution must be questioned of anyone who materially supports or ideologically advocates the legitimacy of Militant Jihadism. As such, any involvement in anything pertaining to Militant Jihadism should be subject to question in military service, security clearance screening, and continuing evaluation. As stated by one author: Most Muslims, like everyone else, want to live their lives in peace. But that fact doesn't change or mitigate another fact: that terrorists and militants around the world today are using the Qur'an and the teachings of Islam to recruit and motivate terrorists, making principal use of the doctrines surrounding the concept of jihad (Spencer, 2003: xiii). Determination of participation in or support or advocacy of Militant Jihadist groups and their ideologies should be grounds for denial of acceptance into the Armed
6
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Forces of the U ,S. and denial of access to classified or sensitive information. The challenge comes in trying to explore these issues and establish these grounds without unconstitutional discrimination based on religion. The issues also need to be addressed without creating a basis for filing of civil rights and equal employment opportunity complaints against the U.S. government in the civil courts.
Militant Jihadism as an Insider or OutsiderThreat Available evidence suggests that the nature of Militant J ihadism as described above is such that adherents would be more likely to opt to attack the U,S. and its allies from the outside rather than through infiltration. As stated in one Fatwah found on the Web: , , , .we warn the Muslims wherever they are, particularly those Muslims in Iraq, not to offer any support, morally or financially or militarily or physically in their onslaught against Islam and Muslims in the region, though they attempt to take the Muslims onto their side. But Allah (swt)" designated people in this Ummah that will direct others that go astray, and May Allah protect us all.., Therefore we warn the Muslims wherever they are, particularly those Muslims in Iraq, not to offer any support, morally or financially or militarily or physically in their onslaught against Islam and Muslims in the region, though they attempt to take the Muslims onto their side. But Allah (swt) designated people in this Ummah that will direct others that go astray, and May Allah protect us all. (FATWA RELEASED BY THE SHARI'AH COURT OF THE UK, September 11, 2003) In May of 2004, the following message appeared on the Web: The torture of Muslim prisoners in Iraq in the "rape rooms" at the American Abu Ghraib prison confirms that the so-called American war on terror is realty a war on Islam. George Bush has created a global gulag network of extra-legal and secret U.S. prisons with thousands of inmates. This Gulag stretches from Afghanistan to Iraq, to Guantanamo and secret CIA prisons around the world. This Gulag exclusively holds Muslim prisoners. In light of these revelations, AIMasakin would like to take this opportunity to remind the American Muslim Mujahedin, and our allies in the revolutionary and anti-Imperialist left, that ROTC buildings, armed service recruiting centers, individual military personnel, and police officers are "military targets." These institutions must be violently and covertly attacked. In fact, there are thousands of unarmed military targets walking around all over the U.S .. Outraged American citizens and American Muslims should have little difficulty making violent contact with recruits, cadets, marines, etc. We strongly recommend that such contact be made with a very sharp knife, 4
"swt" is an acronym used by many Muslims following their written references to God to
show respect. It stands for "Subhanahu wa ta'ala'' meaning "Allah is pure of having partners and He is exalted from having a son" or "be He glorified and exalted."
7
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pepper spray, brass knuckles, baseball bats, firearms, explosives, or the bumper of a full sized automobile, truck or SUV. (Found in an FBI Law Enforcement Online BOLO and in Amant, 2004). In August of 2004, Recruiting Commands were targeted for retaliatory action for the war in Iraq. In an August 18th memo, Colonel Blakely (first name unknown) sent the following message to Army recruiting station chiefs:
All - we have received a credible FBI report on a plan to possibly attack military recruiting stations across CONUS. This is based on information from a credible source and indicated that the planning may have taken place over the last 30 days. The motivation for the attacks is based on anger about the war in Iraq, and the plan called for the attackers to enter the station and shoot anyone that was inside the station. These attacks were planned over the next two months. Immediate action: Notify each recruiting station within your brigade today of this possible threat. The above incidents reflect Militant Jihadists as an external rather than internal threat. The logic of the situation of joining the military in the enlisted ranks would also lead one to reasonably believe that terrorists are more likely to pose an external rather than internal threat. The Militant Jihadists operating today plan and conduct missions in ways that maximize their control over when, where, and how their attacks occur. Enlistment in the military would not only subject them to great scrutiny from military peers and commanders, but would also present enormous uncertainty in when, where, and how they could support or carry out attacks against the U.S government, its population, or allies. Recruits in the enlisted ranks often spend several years obtaining training to qualify for more sensitive duties. Their ability to meet qualification standards is uncertain. The amount of time it would take them to get into a position that would be of value for someone of a terrorist mind-set is uncertain. The continuity and existence of groups or support systems on whose behalf terrorists enlist in the military cannot be ensured over the span of time required for new recruits to use U.S. military resources to carry out terrorist missions or to get in positions to have information that would not otherwise be available. Some persons interviewed for this report felt terrorists would want to enlist to gain access to weapons and training on how to use them. The fact of the matter is that, especially for international terrorists, weapons and weapons training are available through more efficient means than a tour of duty with the U.S. military. Additionally, bribing active-duty military members for weapons or information would be a more efficient and effective means than serving a tour of enlistment to obtain these resources. In light of the multitude of contingencies that come with military service and the prevalence of alternatives for carrying out objectives, enlistment in the military for purposes of pursuing a terrorist agenda against the U.S. government does not seem logical.
8
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U.S. Domestic Terrorists
The largest and most active domestic terrorist groups who are specifically antiU.S. government are often characterized as white supremacists, white nationalists, and right-wing militias. These groups are likely to pose a greater threat through infiltration of the U.S. military than are Militant Jihadists (Axtman, 2003). Many of these domestic extremist groups operating today and their ideologies were well described in an earlier study that looked at screening for extremists in the military (Flacks & Wiskoff, 1998). The essential ideologies of these groups have not changed since 1998, and the reader is encouraged to review Flacks and Wiskoff's work. The following excerpt, taken from a Web site, characterizes the extremist components of the White Nationalist ideology (for the full excerpt, refer to Appendix A): The problem, as any White Nationalist knows, isn't in the Black Nationalists, who are really potential allies, but rather in the corrupt criminal regimeists [sic], who are the real enemies. Given their criminal nature, it is a waste of time to negotiate with them for our freedom, just as it is undesirable for us to leave them alive to corrupt our future White Nationalist nations. These regime criminals have usefully segregated themselves into professions such as lawyers, politicians, bankers, police. So now that they have made themselves known as oppressors to the people by their conduct, it is an easy thing to identify them for justice (see full excerpt from Lindstedt Web posting in Appendix A). Similar sentiments to the above statement can be found in more recent postings on white supremacist Web sites. The following demonstrates the threat from the right-wing militia types in the U.S.: Mr. [X], a 38-year-old who last made a living renting out snowmobiles here in this spectacularly beautiful nook of northwestern Montana had a terror plan that made Osama bin Laden's look rinky-dink. Not content merely to kill a few thousand people, Mr. [X]'s nine-member militia was planning a violent revolution and civil war to overthrow the entire U.S. government. The plan, according to Sheriff James Dupont, was for the militia to use its machine guns, pipe bombs and 30,000 rounds of ammunition to assassinate 26 local officials (including Mr. Dupont), and then wipe out the National Guard when it arrived. After the panicked authorities sent in NATO troops, true American patriots would rise up, a ferocious war would ensue, and the U.S. would end up back in the hands of white Christians (Kristof, 2002). The above news excerpt captures the essence of the right-wing militia movement in the U.S.; many of its supporters overlap with White Nationalists and Supremacists. Some members of these groups act on their beliefs merely through personal separatism, a benign form of protest. Other militia members have been indicted and convicted for planning to bomb federal buildings, attacking military bases, robbing armories, and
9
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igniting propane storage facilities. In Florida, a militia planned to destroy a nuclear power plant. Enlistment of individuals with these ambitions is justifiably of concern to the Armed Forces. The common denominator in the Militant Jihadists and the above domestic groups is their advocacy of violence to achieve their anti-U.S. government ideological ends. As one author states: In fact, militia members and Al-Qaeda members are remarkably similar. Both are galvanized by religious extremism (America's militias overlap with the Christian Identity movement, which preaches that Jews are the children of Satan and that people of color are sub-human), both see the U.S. government as utterly evil, and both are empowered by the information revolution that enables them to create networks, recruit disciples and trade recipes for bio- and chemical weapons (Nikols, 2002) Other Militant Activists Other militant activists such as the Environmental Liberation Front (ELF), the Animal Liberation Front (ALF), the Animal Rights Foundation (ARF), and anarchists engage in violence to achieve their particular objectives. For animal rights activists, common targets include factory farms, cosmetic manufacturers, and labs that use animals in scientific experiments. Anarchists may target Wal-Mart and other big chain stores. Environmental activists have been known to sabotage land developments and vandalize car dealerships and personal SUVs. The disqualifiers for military service for militants described in this paragraph would be their propensity for or history of criminal conduct, not their disloyalty and hostility toward the U.S. government. Since these groups are not targeting the U.S. government per se, they are not considered further in this report. Evidence Indicating Prevalence of Involvement of Hostile and Disloyal Groups in the Military at the Time of En listment To find evidence of involvement of hostile and disloyal groups in the military at the time of enlistment, the following sources were consulted: open-source digital newspaper articles, law enforcement sensitive intelligence reports available on the FBI's LEO-Online, postings on electronic message boards hosted by extremist groups, decisions of the U.S. Court of Appeals for the Armed Forces, "yes" responses to associations-related questions on the SF 86/EPSQ, reports of investigation (ROls) for subjects under the age of 35 undergoing initial security clearance investigations, leadership in each of the Recruiting Commands, and personnel from the Army Criminal Investigation Division, the Navy Criminal Investigation Service, and the Air Force Office of Special Investigations. The following describes the findings from these sources.
10
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Restricted Access Intelligence Reports, Open Source News Articles, and Court Decisions After culling the sources referenced in intelligence reports, open source news articles, and court decisions, 13 cases occurring after September 11, 2001, were identified and no fewer than seven cases prior to September 11, 2001, were identified that indicate the enlistment of personnel with possible ties to organizations and ideologies that are definitely or possibly both disloyal and hostile toward the U.S. government. In the cases that are only deemed possibly relevant, the actions or alleged associations of individuals were consistent with what we understand to be indicative of problematic involvements and allegiances. A few additional cases were also evident in a study of domestic terrorism and its relation to the US. military (Presley, 1996). Due to the age of the articles referenced in the Presley article, however, they could not be retrieved electronically. There are certain to be other cases that have not been included. Their numbers do not change the overall impression that, relative to the denominator representing the millions of persons in the military over the last decade, the U.S. military does not have a marked pattern of terrorists infiltrating its ranks. Of the 13 cases post September 11, 2001, only eight were unambiguous cases of active or reserve duty military personnel engaging in actions that were specifically associated with groups and ideologies that are hostile and disloyal toward the U.S.
government. Of the remaining five cases, one involved a naturalized civilian interpreter for U.S. military forces at Guantanamo Bay, Cuba. Another case demonstrated the recruiting efforts targeted at active duty military personnel to support anti-American groups. The remaining three cases were individuals who had alleged ties to problematic groups or engaged in crimes that were of the same type engaged in by anti-American groups. In none of the above cases was there clear evidence that the persons involved enlisted for the first time in the military for the express purpose of carrying out an antiAmerican agenda. Message Boards Message board searches using terms associated with extremist groups and military enlistees yielded some of the strongest evidence of disloyal and hostile persons enlisting in the military, and, in some cases, possibly for the express purpose of carrying out an anti-American agenda. Almost all of these were white supremacists or nationalists, and most were found in www.storrnfront.org forums. For a cross-section of the kind of rhetoric demonstrating both presence and intolerability of potentially disloyal and hostile persons in the accessions process, refer to Appendix A. Relative to the population of military enlistees, the numbers suggest the involvement of a handful of isolated cases, or at most, very small cadres. The presence of
11
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these individuals in the military does not necessarily indicate, however, grave deficiencies in the enlistment screening system process. It more likely reflects the ability of some individuals without derogatory records to both satisfy enlistment standards and withhold information about extremist ideologies and associations throughout the process. For example, the responses of some message board members to white supremacists contemplating enlistment indicate that some do enlist, but that many are separated once their white supremacist or white nationalist loyalties become known. Additionally, as seen in Appendix A, the relatively larger number of message board postings warning new recruits from revealing their extremist group associations exemplifies the presence of both military policy and action to disallow such activities in the Armed Forces. Effectively, the military has a "don't ask, don't tell" policy pertaining to extremism. If individuals can perform satisfactorily, without making their extremist opinions overt through words or actions that violate policy, reflect poorly on the Armed Forces, or disrupt the effectiveness and order of their units, they are likely to be able to complete their contracts. This reality demonstrates the balance the Armed Forces have achieved between screening for extremists while respecting privacy and preserving federally protected rights to freedom of speech, religion, and association.
"Yes" Responses to Association Questions on the SF 86/EPSQ To identify other sources of evidence of potentially anti-American individuals enlisting in the military, we reviewed answers to questions about problematic associations for approximately 1.5 million SF 86: Questionnaires for National Security Positions (SF 86) completed between 1999 and 2003. The two questions as stated on the SF 86 are as follows: 30. Your Association Record a. Have you been an officer or a member or made a contribution to an organization dedicated to the violent overthrow of the U.S. Government and which engages in illegal activities to that end, knowing that the organization engages in such activities with the specific intent to further such activities? (YES/NO) b. Have you ever knowingly engaged in any acts or activities designed to overthrow the U.S. Government by force? (YES/NO) If you answered "Yes" to a orb, explain inthe space below: Out of these approximate 1.5 million questionnaires, we identified 28 respondents who appeared to intentionally answer "yes" to the above questions. While other respondents answered "yes," the nature of their remarks indicated their responses were data entry errors and that they thought they were answering "yes" to different questions than the ones listed above.
12
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Of the 28 legitimate "yes" responses, only five were submitted by applicants under the age of 35. This indicates that most yes responders were not recent military enlistees. Of the five younger applicants, only three appeared to be military applicants, and only two of these appeared be new applicants, as the third was applying for a SecretPeriodic Reinvestigation (PR). Of the two potential military enlistees, one indicated he at one time had been a member of the Ku Klux Klan; the other indicated only that "my school went on stike [sic]." For a full listing of"ycs" responses to the SF 86 associations questions, regardless of military enlistment status, refer to Appendix B.
The dearth of valid yes responses to the above SF 86/EPSQ questions may say less about the prevalence of enlistment of persons with extremist intentions than it does about the quality of the questions that are being asked. Later, we make recommendations for alternate questions that could be asked. Reports oflnvestigation (ROis) for Subjects Under the Age of 35 Undergoing Initial Security Clearance Investigations All ROis stored in the Defense Security Service (DSS) Case Control Management System (CCMS) from 1999 through 2003 (approximating a million and a half cases) were searched for presence of terms that indicated that issues pertaining to extremism had surfaced in DoD security clearance background investigations. Examples of terms that yielded relevant cases are as follows: neo-nazi anti-government Bigot confederate flag david koresh Fanatic hates the U.S. Jews mosque [ racial slur] semitic supremacy ultra conservative
anti-american arabic blacks conspiracy theories disloyal forged driver hitler
KKK muslim right wing Skin head Swastika Vengeance
anti-estab Ii shmen t aryan brainwash converted extremist fundamentalist is lam Militant Nazi Sabotage Skinhead to forge
The terms were not case-sensitive. All cases containing these terms that pertained to military subjects under the age of 35 who were undergoing an initial security clearance were reviewed. Whether these soldiers were officers or enlisted personnel was not known. Data were also not available to indicate how long subjects of these cases had been in the military. Nonetheless, they give some approximation of the extent, or lack of extent, of extremists in the military.
13
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It is important to not that the fact that these cases were documented indicates the seriousness with which these issues are addressed by security clearance investigators. In other words, while these cases represent possible enlistment of extremists, they also demonstrate that screening policies and procedures are in place to detect them.
The review found 131 cases where subjects or their references indicated that subjects had some association with or sympathy for extremist groups. Most of these were white supremacists, though there are some interesting cases of possible Militant Jihadist sympathizers. Appendix B provides summaries of issues in all relevant cases found. Interviews In further efforts to surface any anecdotes of applicants or recruits who were specifically identified as being both hostile and disloyal to the U.S. government, we made e-mail, phone, and in person queries with representatives of the Air force Office of Special Investigations (OSI), the Army's Criminal Investigation Division (CID), and the Naval Criminal Investigative Service (NCTS). In addition, we interviewed personnel from each of the MEPS and Recruiting Commands that we visited. Criminal investigations personnel could not provide any information about cases over the last few years of known anti-American persons attempting to join the military in the enlisted ranks. It is not known if this is an indication of the lack of such cases or the unwillingness of criminal investigations personnel to share information. In several out of dozens of visits at RS and MEPS, personnel reported that they had contact with suspicious persons. In only a few cases, however, was information about these applicants forwarded to law enforcement for investigation. In most cases, the suspicious individuals departed without attempting to actually enlist. Further, if these individuals were hostile and disloyal toward the U.S. government, they could have as likely been casing the facilities for possible future attack rather than actually trying to enlist. In most of the cases where recruiters or MEPS personnel initially had suspicion, further screening alleviated any suspicions. Over all visits, we saw no indication of any widespread efforts to join the enlisted ranks by persons hostile and disloyal to the U.S. government. Conclusions about the Threat of TerroristsInfiltrating the Military through the Enlisted Accessions Process This section briefly describes the main foreign (Militant Jihadists) and domestic groups (White Supremacists, White Nationalists, and domestic militias) whose past and recent actions and current ideologies render them particularly hostile and disloyal toward the U.S. government. Several data sources were consulted and Recruiting Commands, MBPS, and military law enforcement personnel were interviewed to surface indications of attempted or actual enlistment of disloyal and hostile persons.
14
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The sources accessed for this report did surface some currently or formerly enlisted persons with terrorist or extremist group associations. While their presence in the military is significant in its own right, the actual numbers are extremely small relative to the denominator representing the millions of personnel who have been enlisted in the Armed Forces. Smaller still is the number of personnel who enlisted specifically for purposes of furthering their extremist causes. Most intelligence, information, and history of events suggest that more significant is the threat from outsiders waging attacks against military personnel, some of whom may be employed at RS and MEPS. To the extent there is an insider threat, the opinion of active duty personnel and counterterrorism and counterintelligence experts and the evidence from case studies described in this report suggest that it is not from new recruits. Rather, the threat derives from active duty persons being recruited or converting to radical ideologies out of religious conviction or after becoming disaffected with a commander, a fellow solider, an assignment, or military service in general (Mintz & Vistica, 2003). Or, the threat could be
manifest in individuals who engage in bad conduct for purely self-interested reasons such as money, ego, addiction, or revenge and then attempt to dignify their actions, after the fact, as being motivated by some higher religious value. While the number of active duty personnel who can be categorized as insider threats or terrorists is believed to be nearly infinitesimal once the denominator of millions of military personnel is taken into account, the means available to persons who would, were all things known, be disqualified from enlisting are the same means that terrorists could use to enlist. In the enlistment process, this effectively boils down to how one represents one's identity, background, abilities, associations, and intentions. To the extent that optimal procedures are not in place to detect problems in how applicants represent their personal identifiers, background, abilities, associations, and intentions, terrorists and nonterrorists alike can exploit the weaknesses. The following section examines how indications of misrepresentation of identity, background, abilities, associations, and intentions may be manifest in the accessions process in a way to justify suspicion by recruiting, MEPS, and initial training personnel. Then, we identify the steps in the enlisted accessions process that directly or indirectly bear on the detection of these qualities.
15
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EXHIBIT 7 TO SUPPLEMENTAL AFFIDAVIT OF MARGARET STOCK IN SUPPORT OF REPLY TO MOTION FOR PRELIMINARY INJUNCTION
Case 2:17-cv-00242-TSZ Document 26-4 Filed 05/19/17 Page 2 of 9
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U.S. Citizenship and Immigration Services
Naturalization Through Military Service: Fact Sheet Specialprovisionsof the Immigrationand NationalityAct (INA} authorizeU.S. Citizenshipand ImmigrationServices(USCIS} to expeditethe applicationand naturalizationprocessfor current membersof the U.S. armed forcesand recentlydischargedservicemembers.Generally, qualifyingmilitary serviceincludesservicewith one of the following:Army, Navy,Air Force, MarineCorps,CoastGuardand National Guard.In addition, spousesof membersof the U.S. armedforceswho are or will be deployed may be eligiblefor expeditednaturalization.Other provisionsof the law also allow certainspousesto completethe naturalizationprocessabroad.
Qualifications A memberof the U.S. armed forcesmust meet the requirementsand qualificationsto becomea citizenof the United States.He or she must demonstrate: • Good moral character, • Knowledgeof the Englishlanguage, • Knowledgeof U.S. governmentand history(civics),and • Attachmentto the United Statesby taking an Oath of Allegianceto the U.S. Constitution. Qualifiedmembers of the U.S. armed forcesare exempt from other naturalization requirements,including residenceand physicalpresencein the United States.These exceptionsare listed in Sections328 and 329 of the INA. All aspectsof the naturalization process,including applications,interviewsand ceremoniesare availableoverseasto membersof the U.S. armed forcesand certain"command-sponsored" spouses. A personwho obtains U.S. citizenshipthrough his or her military serviceand separatesfrom the military under "otherthan honorableconditions" beforecompletingfive yearsof honorable servicemay have his or her citizenshiprevoked.
Service in Peacetime Section328 of the INA applies to all membersof the U.S. armedforcesand those already dischargedfrom service.An individual may qualify for naturalizationif he or she has: • Servedhonorably in the U.S. armed forcesfor at least one year, • Obtainedlawful permanent residentstatus, and • Filedan applicationwhile still in the serviceor within six months of separation.
EXHIBIT 7, Page 1 of 8
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Service during Periods of Hostilities
Underspecialprovisionsin Section329 of the INA, the Presidentsignedan executiveorderon July 3, 2002,authorizingall noncitizenswho have servedhonorably in the U.S. armedforceson or after Sept. 11, 2001,to immediatelyfile for citizenship.This order also coversveteransof certaindesignatedpastwars and conflicts.The authorizationwill remain in effectuntil a date designatedby a future presidentialexecutiveorder. Naturalizationat BasicTraining USCIS establishedthe Naturalizationat BasicTrainingInitiative in August2009 with the Army to give noncitizenenlisteesthe opportunity to naturalizewhen they graduatefrom basic training. Underthis initiative, USCIS conductsall naturalizationprocessingincludingthe captureof biometrics,the naturalizationinterviewand administrationof the Oath of Allegiance on the military installation.Since2009 USCIS has expandedthe initiative to the Navy,Air Force, and finally to the MarineCorpsin 2013,givingenlisteesof these branchesequal opportunityto (in most cases)leave basictraining as U.S. citizens. How to Apply Everymilitary installation hasa designatedpoint-of-contact,generallyin the personnel division or the JudgeAdvocateGeneral'sOffice,to assistmembersof the militaryprepareand file theirnaturalizationapplicationpacket.That packetincludes: • Applicationfor Naturalization,USCIS Form N-400(Membersof the military are not charged a fee to file the Form N-400.) • Requestfor Certificationof Military or NavalService,USCIS Form N-426 (The military must certifythis form beforesending it to USCIS. Individualsseparatedfrom the military may submit an uncertifiedForm N-426with their DD Form 214.) Oncethe packetis complete,send it to the specializedmilitary naturalization unit at the USCIS National BenefitsCenterfor expeditedprocessingusingthe addresseslisted on the form's web
~· Customer Service to Assist the Military USCIS customerservicespecialistsare availableto respondto inquiriesfrom military members and theirfamilies Mondaythrough Fridayfrom 8 a.m. to 4 p.m. (Central),exceptfederal holidays.Military families may contact USCIS by: • Callingthe military toll-free telephone help line -- 1-877-CIS-4MIL(l-877-247-4645),or • Sendingan e-mail to the military customerservicespecialistsat:
[email protected].
EXHIBIT 7, Page 2 of 8
Case 2:17-cv-00242-TSZ Document 26-4 Filed 05/19/17 Page 4 of 9
Posthumous Benefits Section329Aof the INA providesfor grantsof posthumouscitizenshipto certainmembersof the U.S. armedforces.A member of the U.S. armedforceswho served honorablyduring a designatedperiod of hostility and died as a resultof injury or diseaseincurredin or aggravated by that service(includingdeath in combat) may be eligibleto receiveposthumouscitizenship, as long as the next-of-kin appliesfor posthumouscitizenshipwithintwo yearsof the service member'sdeath. Other provisionsof the law extend immigration benefitsto the service member'ssurvivingspouse,children and parents. Statistics (through FiscalVear 2015) • SinceOct. 1, 2001,USCIS has naturalized109,321membersof the military, with ll,069 of those servicemembersbecomingcitizensduringUSCIS naturalization ceremoniesin 34 foreigncountries:Afghanistan,Albania,Australia,Bahrain,China (Hong Kong),Cuba (Guantanamo),Djibouti, El Salvador,Georgia,Germany,Greece,Haiti, Honduras,Iceland, Iraq,Italy, Jamaica,Japan, Jordan, Kenya,Korea,Kosovo,Kuwait, Kyrgyzstan,Libya, Mexico,the Philippines,Qatar,South Korea,Spain,Thailand, Turkey, UnitedArabEmirates and the United Kingdom. • Sincethe beginningof fiscalyear 2008,USCIS has naturalized2,650military spouses duringceremoniesin the following 33 countries:Afghanistan,Australia,Bahrain,Bulgaria, Chile,China (HongKong),Cuba, El Salvador,Georgia,Germany,Greece,Hungary,India, Italy, Jamaica,Japan,Kuwait, Mexico,Moldova,Norway,Oman, Panama,the Philippines, Poland,Portugal,Singapore,South Korea,Spain,Tanzania,Thailand, Turkey,the United ArabEmirates,and the United Kingdom. • Sincethe beginningof fiscalyear 2009,USCIS has presented106 childrenof membersof the military with citizenshipcertificatesduringceremoniesin Italy, Germany,Japan,South Korea,and the United Kingdom. MILITARY STATISTICS BY YEAR AND LOCATION (through Fiscal Year 2015)
Naturalized Service Members
VEAR
TOTAL
USA
ABROAD
FY-02
2,434
2,434
0
FY-03
4,659
4,659
0
FY-04
6,327
6,327
0
FY-05
7,136
6,106
1,030
EXHIBIT 7, Page 3 of 8
Case 2:17-cv-00242-TSZ Document 26-4 Filed 05/19/17 Page 5 of 9
YEAR
TOTAL
USA
ABROAD
FY-06
8,538
6,643
1,895
FY-07
5,895
4,541
1,354
FY-08
7,865
6,356
1,509
FY-09
10,505
8,850
1,655
FY-10
11,146
9,735
1,411
FY-11
10,333
9,415
918
FY-12
8,693
8,184
509
8,758
8,414
344
9,239
8,970
269
7,709
7,534
175
109,321
98,252
11,069
FY-13
FY-14
FY-15 TOTAL
Military Children Naturalized Abroad Location of Ceremony Italy Germany
TOTAL
FY-09
FY-10
FY-11
FY-12
FY-13
FY-14
FY-15
3
0
0
0
1
0
2
0
29
4
7
3
4
0
2
9
EXHIBIT 7, Page 4 of 8
Case 2:17-cv-00242-TSZ Document 26-4 Filed 05/19/17 Page 6 of 9
Japan
31
5
6
7
0
4
3
6
South Korea
25
3
4
7
4
5
1
1
United Kingdom
18
0
1
17
0
0
0
0
106
12
18
34
9
9
8
16
TOTAL
Military Spouses NaturalizedAbroad Locationof Ceremony TOTAL FY-08
FY-09
FY-10
FY-11
FY-12
FY-13
FY-14
FY-15
Afghanistan
1
0
0
0
0
0
1
0
0
Australia
2
0
0
0
0
0
2
0
0
Bahrain
9
0
0
0
1
1
4
1
2
Bulgaria
1
0
1
0
0
0
0
0
0
Chile
1
0
0
0
0
1
0
0
0
China (Hong Kong)
1
0
0
1
0
0
0
0
0
Cuba
1
0
0
0
0
1
0
0
0
El Salvador
1
0
0
1
0
0
0
0
0
Georgia
3
0
0
0
0
1
2
0
0
964
10
173
154
155
146
135
86
105
11
0
0
0
11
0
0
0
0
Hungary
1
0
0
0
0
0
0
0
1
India
1
0
0
0
0
0
1
0
0
246
4
51
45
35
21
28
31
31
1
0
0
0
1
0
0
0
0
675
5
73
144
61
133
83
68
108
Kuwait
2
0
0
2
0
0
0
0
0
Mexico
1
0
0
0
1
0
0
0
0
Germany Greece
Italy Jamaica Japan
EXHIBIT 7, Page 5 of 8
Case 2:17-cv-00242-TSZ Document 26-4 Filed 05/19/17 Page 7 of 9
Moldova
1
0
0
0
0
0
0
0
1
Norway
3
0
0
2
0
0
0
0
1
Oman
2
0
0
1
1
0
0
0
0
Panama
1
0
0
1
0
0
0
0
0
Philippines
5
0
0
3
0
1
0
0
1
Poland
3
0
0
0
1
0
1
0
1
Portugal
2
0
0
0
2
0
0
0
0
Singapore
1
0
0
0
0
0
0
0
1
464
11
58
63
62
87
61
62
60
63
0
3
23
8
14
8
5
2
Tanzania
1
0
0
0
1
0
0
0
0
Thailand
5
0
0
2
1
1
0
0
1
12
0
0
3
2
3
3
1
0
1
0
0
0
0
0
1
0
0
164
0
21
28
25
20
28
25
17
2,650
30
380
473
368
430
358
279
332
South Korea Spain
Turkey United Arab Emirates United Kingdom TOTAL
Service Members NaturalizedAbroad Locationof Ceremony TOTAL FY-08 FY-09 FY-10 FY-11 FY-12 FY-13 FY-14 FY-15 Afghanistan
1017
105
183
208
288
99
100
30
4
Albania
2
0
0
0
0
0
2
0
0
Bahrain
20
0
0
2
2
2
6
8
0
China (Hong Kong)
4
0
0
4
0
0
0
0
0
Cuba (Guantanamo)
4
0
0
3
0
0
1
0
0
Djibouti
6
0
2
0
0
3
0
1
0
El Salvador
2
0
0
2
0
0
0
0
0
EXHIBIT 7, Page 6 of 8
Case 2:17-cv-00242-TSZ Document 26-4 Filed 05/19/17 Page 8 of 9
Georgia
5
0
0
0
0
0
1
0
4
764
135
137
152
131
87
51
41
30
12
0
1
2
8
0
0
1
0
Haiti
1
0
0
1
0
0
0
0
0
Honduras
5
0
2
1
0
2
0
0
0
Iceland
3
3
0
0
0
0
0
0
0
Iraq
1839
644
678
427
88
2
0
0
0
Italy
150
13
26
26
37
12
10
14
12
2
0
0
0
1
1
0
0
0
1553
349
282
288
224
183
117
55
55
Jordan
1
0
0
0
0
0
0
1
0
Kenya
0
0
0
0
0
0
0
0
0
Kosovo
34
0
0
29
1
2
0
2
0
Kuwait
399
110
167
58
4
45
5
6
4
Kyrgyzstan
1
0
0
0
1
0
0
0
0
Libya
1
0
0
0
0
0
1
0
0
Mexico
1
0
0
0
1
0
0
0
0
Philippines
7
0
4
0
3
0
0
0
0
Qatar
3
0
0
0
1
0
0
0
2
904
149
171
198
107
64
48
104
63
28
0
1
9
10
3
2
2
1
Thailand
9
0
0
1
7
1
0
0
0
Turkey
1
0
0
0
0
0
0
1
0
U.A.E.
3
0
0
0
0
2
0
1
0
United Kingdom
9
1
1
0
4
1
0
2
0
6790
1509
1655
1411
918
509
344
269
175
Germany Greece
Jamaica Japan
South Korea Spain
TOTAL
EXHIBIT 7, Page 7 of 8
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Last Reviewed/Updated: 12/22/2016
EXHIBIT 7, Page 8 of 8
