Nio v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KUSUMA NIO, et al.,
Plaintiffs,
v. Civil Action No. 17-998 (ESH)
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Defendants.
MEMORANDUM OPINION
Before the Court is plaintiffs’ motion for preliminary injunctive relief.1 Plaintiffs are
non-citizens serving in the United States Army’s Selected Reserve of the Ready Reserve who
enlisted under the United States Department of Defense’s Military Accessions Vital to the
National Interest (“MAVNI”) program and who have applied for naturalization pursuant to
8 U.S.C. § 1440, which provides an expedited path to citizenship for soldiers who serve during
specified periods of armed conflict. They brought this action against (1) the United States
Department of Homeland Security (“DHS”) and its Acting Secretary, Elaine C. Duke, the United
States Citizen and Immigration Service (“USCIS”) and its Acting Director, James McCament
(collectively “DHS Defendants”); and (2) the United States Department of Defense (“DOD”) and
its Secretary, James Mattis (collectively “DOD Defendants”).2 Plaintiffs bring multiple claims
1
The motion for preliminary injunction applies to eight of the ten named plaintiffs, as the
remaining two were naturalized in June 2017. For the remainder of this Memorandum Opinion,
any reference to “plaintiffs” will refer only to these eight plaintiffs.
2
When this action was filed, James Kelly was the Secretary of Homeland Security and was the
named defendant.
under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, challenging (1) USCIS’s
decision to put their naturalization applications on hold pending DOD’s completion of the
enhanced security screening it now requires for MAVNI enlistees prior to basic training or
active-duty service (“DHS/USCIS Security Screening Requirement”); and (2) DOD’s position
that (a) “active duty” service is required for the issuance of USCIS Form N-426 (“Request for
Certification of Military or Naval Service”)—a form necessary for a MAVNI’s naturalization
application under 8 U.S.C. § 1440—and (b) that it may revoke the N-426 forms it previously
issued certifying plaintiffs’ qualifying service (“DOD N-426 Review”). Plaintiffs seek a
preliminary injunction (1) enjoining DHS Defendants from implementing the DHS Security
Screening Requirement and (2) preventing DOD Defendants from undertaking the DOD N-426
Review. (Pls.’ Mot. for a Prelim. Inj. (hereinafter “PI Mot.”), June 28, 2017, ECF No. 17.) For
the reasons stated herein, the motion is denied without prejudice.
BACKGROUND
I. FACTUAL BACKGROUND
A. The MAVNI Program
Generally, enlistees in the United States Armed Forces must be either United States
citizens or have legal permanent residence. See 10 U.S.C. § 504(b). However, under the
MAVNI program, which began in 2009 and is authorized through the end of September 2017,
non-citizens who are not permanent residents, but who are lawfully present in the United States,
may enlist if they have critical foreign language skills or specialized medical training.3 See id.
§ 504(b)(2); (Miller Decl. ¶ 4, July 7, 2017 (“1st Miller Decl.”); Defs.’ Mem. of Law in Opp’n to
3
The MAVNI program “was designed to attract two types of recruits: (1) healthcare
professionals (‘HCPs’) and (2) persons who possess critical foreign language skills (‘CFLs’),
both of whom are necessary to sustain effective military operations.” (1st Miller Decl. ¶ 4.)
2
Pls.’ Mot. for Prelim. Inj. (“Defs.’ Opp.”) Ex. 5 (United States Army Reserve MAVNI
Information Paper), ECF No. 19.)
Over the years of the MAVNI program’s existence, DOD has increased the security
screening requirements for MAVNI enlistees. (1st Miller Decl. ¶¶ 12–17.) As of September 30,
2016, DOD required that MAVNI enlistees complete an enhanced security screening before they
can receive a favorable “military-service determination” (also called a “suitability-for-service
determination”), qualify for active-duty status or ship to basic training. (PI Mot. Ex. 10; 1st
Miller Decl. ¶¶ 10, 14; Miller Decl. at 6–7, July 28, 2017 (“2d Miller Decl.”).) According to
DOD, its decision to require enhanced security screening for MAVNI enlistees arose out of
security concerns regarding the MAVNI program. (1st Miller Decl. ¶¶ 14–18; 2d Miller Decl. at
8–10; Tr. of Prelim. Inj. Hr’g (Day 1) at 21–22, July 19, 2017, ECF No. 34 (“7/19/2017 Tr.”).)
DOD’s enhanced security screening for MAVNI enlistees includes: (1) a Tier 3 or Tier 5
background investigation—formerly known as a Single Scope Background Investigation
(“SSBI”)4; (2) a National Intelligence Agency Check (“NIAC”)5; (3) a counter-intelligence
focused security review (“CI Review”); and (4) an “issue-oriented interview and/or issue-
oriented polygraph, if needed to resolve any foreign influences or foreign preference concerns.”
(1st Miller Decl. ¶ 14; 2d Miller Decl. at 5.) Once the above requirements are completed, DOD
conducts a final review and makes a military suitability determination. (Tr. of Prelim. Inj. Hr’g
(Day 2) at 7–9, Aug. 23, 2017, ECF No. 37 (“8/23/2017 Tr.”))
4
SSBIs involve detailed background checks. (2d Miller Decl. at 2–4.) Outside of MAVNI, Tier
5 investigations normally occur to certify individuals as eligible for top-secret security clearance,
and Tier 3 investigations occur to certify individuals as eligible for access to confidential or
secret information. (2d Miller Decl. at 2–4.) For MAVNIs, the Tier 5 investigation “has taken on
average 422 days during a period from 2014–2017 (out of a total of 2,812 completed
investigations.” (2d Miller Decl. at 5.)
5
The NIAC is a computer database check of the records of certain intelligence agencies.
3
If the investigation reveals unmitigable derogatory information—such as “undue foreign
influence”—the military suitability determination will be unfavorable and DOD can discharge
the MAVNI enlistee under “other than honorable conditions,” such as an “uncharacterized”
discharge. (8/23/2017 Tr. at 37–38; see PI Mot. Ex. 8; 1st Miller Decl. ¶ 14 (negative outcome
“could result in an applicant’s administrative discharge from the Armed Forces under any
administrative characterization of service, including ‘other than honorable’ conditions”);
2d Miller Decl. at 9; Defs.’ Resp. to the Court’s Aug. 24, 2017 Order Exs. A & B, Aug. 30,
2017, ECF No. 39 (“Defs.’ 8/30/2017 Resp.”).)6 An uncharacterized discharge also means that
the individual would no longer be eligible to become a naturalized citizen under the MAVNI
program. (8/23/17 Tr. at 24–25.)
Although on its face, DOD’s enhanced security screening requirements for MAVNI
enlistees does not necessarily impact the adjudication of MAVNI naturalization applications, as
explained infra, USCIS will not conduct an examination of a MAVNI naturalization applicant
until the applicant successfully completes DOD’s enhanced security screening.
B. Naturalization for MAVNI Enlistees
Generally, non-citizens who serve in the United States military during designated periods
of hostilities are afforded an expedited path to citizenship. See 8 U.S.C. § 1440.7 Since
September 11, 2001, such a period of hostilities has existed. See Exec. Order No. 13269, 67 Fed.
Reg. 45, 287 (July 3, 2002). Thus, the MAVNI program not only gives non-citizens who are not
lawful permanent residents the opportunity to enlist in the United States military, it also provides
6
Certain derogatory findings are “waivable,” while others are “unmitigable.” (Defs.’ 8/30/2017
Resp. Exs. A & B.)
7
During peacetime, 8 U.S.C. § 1439 provides the requirements for naturalization based on
military service. (1st Miller Decl. ¶ 5.)
4
an expedited path to citizenship. (1st Miller Decl. ¶¶ 4–9; Renaud Decl. ¶ 11, July 7, 2017 (“1st
Renaud Decl.”).)8
An applicant for naturalization pursuant to 8 U.S.C. § 1440 must submit to USCIS the
standard Form N-400 naturalization application along with a USCIS Form N-426.9 (1st Miller
Decl. ¶¶ 4–8.) DOD must execute the N-426, which certifies the applicant’s qualifying military
service. (1st Miller Decl. ¶¶ 6–8; 1st Renaud Decl. ¶ 10; PI Mot. Ex. 29.) The N-426 indicates
the applicant’s dates of service and whether the applicant served “on active duty” or in the
“Selected Reserve of the Ready Reserve.” (1st Miller Decl. ¶ 6; PI Mot. Ex. 29.) The applicant
bears the burden of showing that he “[h]as been, for at least one year prior to filing the
application for naturalization, and continues to be, of good moral character, attached to the
principles of the Constitution of the United States, and favorably disposed toward the good order
and happiness of the United States.” 8 C.F.R. § 329.2.
Until recently, USCIS processed MAVNI naturalization applications in the same fashion
as all other § 1440 applications, by following the generally-applicable requirements for
naturalization, such as the FBI criminal background check, see 8 U.S.C. § 1446(d); 8 C.F.R.
§ 335.3; (1st Renaud Decl. ¶¶ 3, 4, 15), as well as checking the Defense Clearance Investigative
Index (“DCII”) database to see if the “applicant has any derogatory information in his or her
military records.” (1st Renaud Decl. ¶ 5; PI Mot. Ex. 7 “USCIS Policy Manual”.) Once these
8
Under section 1440, the path to citizenship is eased in at least three ways. First, service members
may be naturalized “regardless of age, and notwithstanding the provisions of section 1429 of this title
as they relate to deportability and the provisions of section 1442 of this title.” 8 U.S.C. § 1440(b)(1).
Second, “no period of residence or specified period of physical presence within the United States or
any State or district of the Service in the United States shall be required.” Id. § 1440(b)(2). Third,
“no fee shall be charged or collected from the applicant for filing a petition for naturalization or for
the issuance of a certificate of naturalization” granted under this section. Id. § 1440(b)(4).
9
USCIS Form N-426 is required for all applications submitted pursuant to 8 U.S.C. § 1440, not
just MAVNIs.
5
checks were completed, the applicant could be scheduled for an examination by a USCIS officer.
8 C.F.R. § 335.2; (1st Renaud Decl. ¶ 3.) By statute, USCIS must adjudicate all naturalization
applications within 120 days of completing the examination. 8 U.S.C. § 1447(b); 8 C.F.R.
§ 335.3.
To date, USCIS has naturalized at least 10,000 MAVNI enlistees through the
aforementioned process. (7/19/2017 Tr. at 57.) And, pursuant to an initiative to expedite
processing of applications from enlistees who are at basic training, the “Naturalization at Basic
Training Initiative,” USCIS adjudicated most of these applications in approximately 10 weeks’
time—MAVNI enlistees would submit their naturalization applications upon arrival at basic
training (a process typically lasting 10 weeks)10 and USCIS would adjudicate the applications
and naturalize MAVNI enlistees by the last week of basic training.11 (1st Miller Decl. ¶ 9; 1st
Renaud Decl. ¶ 13.) Overall, as of May 2017, the average processing time for all military N-
400s, including MAVNI enlistees, was slightly more than 4 months.12 (Renaud Decl. ¶ 3, July
28, 2017 (“3d Renaud Decl.”).)
Beginning in early 2017, though, USCIS began to delay the processing of MAVNI N-400
applications pending the results of DOD’s enhanced security screening. (See, e.g., 1st Renaud
Decl. ¶¶ 21–25; Renaud Decl. & Document Production, July 17, 2017 (“2d Renaud Decl.”) &
attachment thereto (copies of USCIS documents referenced in 1st Renaud Decl. ¶¶ 23–26); 1st
10
MAVNI enlistees who join the program as medical personnel do not have to attend basic
training and can have their N-426s certified when they go to officer indoctrination training.
(8/23/2017 Tr. at 15; 7/19/2017 Tr. at 32–33.)
11
Other military naturalization applications also underwent expedited processing—for example,
a military member serving abroad on active duty would receive an adjudication within 180 days
of when USCIS received all associated background checks. (1st Renaud Decl. ¶ 12.)
12
As a point of comparison, as of May 2017, USCIS was processing non-military applications
for naturalization in 8.5 to 9 months’ time. (3d Renaud Decl. ¶ 3.)
6
Miller Decl. ¶ 18.) According to DOD, “on or around April 2017,” it “informed USCIS that it
was concerned about the naturalization of individuals whose Office of Personnel Management
(OPM) background investigation and DOD counterintelligence security review has not yet been
completed,” and thus, “DOD and USCIS jointly determined that it was in the best interest of the
United States to ensure [that] the naturalization decision of USCIS was informed by the outcome
of the completed OPM background investigation and the DOD counterintelligence security
review.” (1st Miller Decl. ¶ 18; see also 2d Miller Decl. at 8–10.) On July 7, 2017, Daniel
Renaud—Associate Director, Field Operations Directorate, of the USCIS Headquarters in
Washington D.C.— provided “final agency guidance” to the USCIS Field Offices in an email
with the subject line “Updated MAVNI N-400 Guidance.” (2d Renaud Decl. ¶¶ 3–4.) The email
summarizes USCIS’s authorization as follows:
USCIS has determined that the completion of DOD background checks is relevant
to a MAVNI recruit’s eligibility for naturalization. As such, all pending and
future MAVNI cases may not proceed to interview, approval, or oath until
confirmation that all enhanced DOD security checks are completed.
(2d Renaud Decl. attachment at 25.) Under the heading “Guidance,” it states:
USCIS must ensure that each MAVNI naturalization applicant demonstrates good
moral character and attachment to the U.S. Constitution as required by the INA
and 8 CFR. In order to do so, each applicant must receive proper DOD vetting
and clearance in alignment with the September 30, 2016 MAVNI extension
authorization and restrictions. Consequently, USCIS will not proceed to
interview, approve, or oath any currently pending or future MAVNI naturalization
applicants applying for naturalization under INA § 329, regardless of their active
duty or reserve service, until all enhanced DOD security checks are completed.
(Id.)
In plaintiffs’ view, the USCIS’s July 7, 2017 guidance amounts to an unlawful “hold” on
the processing of MAVNI naturalization applications. Defendants initially accepted the
description of USCIS’s action as a “hold” (see 7/19/2017 Tr. at 101)—indeed the term “hold”
7
appears in several earlier USCIS emails (see, e.g., 2d Renaud Decl. ¶¶ 3–4)—but subsequently
has tried to disavow that label. (See Defs.’ Supp. Mem. of Law in Opp’n to Pls.’ Mot. for
Prelim. Inj. at 2, Aug. 14, 2017, ECF No. 31 (“Defs.’ Supp. Opp.”) (“July 7, 2017 guidance was
intended to end all holds, while broadening existing background check resources under 8 C.F.R.
§ 335.1, to include DOD enhanced security checks for MAVNI applicants.”); see id. Ex. B (July
27, 2017 email from Claudia F. Young, Division Chief, Citizenship and Operations Support,
Field Operations Directorate, stating: “Please be advised that the below guidance from Associate
Director Dan Renaud [the July 7th, 2017 guidance] supersedes all previous emails and guidance
on MAVNI holds. This guidance clarified that there is no longer any hold on N-400s filed by
MAVNI recruits.”).) Yet, at the same time that USCIS asserts that there is no “hold,” it uses
mandatory language about awaiting DOD enhanced security screening:
However, these applications cannot be processed until all DOD enhanced security
checks are complete. Field Operations is now engaged in discussions with DOD
on the process DOD/USCIS will have to inform USCIS of MAVNI enlistees who
have successfully completed the required enhanced background checks. We will
keep you updated on the process and let you know of any cases that successfully
complete the required enhanced background checks.
(Defs.’ Supp. Opp. Ex. B (emphasis added).) Thus, even if the USCIS’s July 7, 2017 action is
not labeled a “hold,” it appears to have the same effect—MAVNI naturalization applicants
cannot be examined by USCIS until DOD completes its enhanced security screenings.
It further appears that MAVNI applicants must “successfully” complete DOD’s enhanced
security screening in order for USCIS to continue processing their naturalization applications.
(8/23/2017 Tr. at 25 (MAVNI enlistee cannot naturalize if DOD discharges an enlistee under
other than honorable conditions, “notwithstanding the presence or absence of an N-426 and
whether it’s revoked or not,” because “[y]ou have to have an honorable discharge if you are
8
discharged.”).)13
C. Plaintiffs
1. Enlistment
Between February and June 2016, each of the named plaintiffs enlisted in the United
States Army’s Selected Reserve of the Ready Reserve through the MAVNI program. Their
enlistment contracts obligate them to serve eight years of service in the Army Reserve, six years
of which must be served in the Selected Reserve. (Defs.’ Resp. to the Court’s July 14, 2017
Order (“Defs.’ 7/17/2017 Resp.”) Ex. B (Pls.’ Enlistment Contracts), July 17, 2017, ECF No.
23.) Each plaintiff was assigned to a U.S. Army Selected Reserve unit and has participated in
multiple drills with their units.14 (De Almeida Decl. ¶¶ 6, 8; Batchu Decl. ¶¶ 5, 7; Calixto Decl.
¶¶ 6, 8; Cheng Decl. ¶¶ 6, 8; Udeigwe Decl. ¶¶ 5, 8; Hong Decl. ¶¶ 6, 7; Li Decl. ¶¶ 4, 6; Liu
Decl. ¶¶ 4, 6.) Although each plaintiff expected to go to basic training within approximately six
months of enlistment, none has done so due to DOD’s enhanced security screening of MAVNI
enlistees. As of September 1, 2017, 575 days have elapsed since the date of enlistment of the
earliest plaintiff, and 451 days since the date of enlistment of the latest plaintiff. (De Almeida
Decl. ¶ 7; Batchu Decl. ¶ 6; Calixto Decl. ¶ 7; Cheng Decl. ¶ 7; Udeigwe Decl. ¶ 6; Hong Decl.
13
In two instances, MAVNI enlistees—not named plaintiffs—received uncharacterized
discharges despite having valid N-426s and were discharged from the Army because the
“[m]aximum DEP time [two years] has been exceeded.” (Pls.’ Supp. Mem. In Support of Pls.’
Mot. For Prelim Inj., Ex. 2, Aug. 18, 2017, ECF No. 33; see also 8/23/2017 Tr. at 22–25; 8/23/17
Hr’g Pls.’ Ex. 1; Defs.’ 8/30/2017 Resp. ¶ 3.) These two individuals, if they had no valid
immigration status, could be subject to removal proceedings. As of July 2017, the maximum
DEP time has been extended to three years, but this policy was not applied retroactively. (Defs.’
8/30/2017 Resp. ¶ 3.)
14
Plaintiffs are part of the Army Reserve Delayed Training Program (“DTP”). (2d Miller Decl.
at 6.) DTP “allows these members of the Selected Reserve to attend drill periods for pay and
benefits, known as Inactive Duty for Training (IDT) during the period prior to assignment to
initial military training (also known as basic training).” (2d Miller Decl. at 6.)
9
¶ 6; Li Decl. ¶ 5; Liu Decl. ¶ 6; see also 7/19/2017 Tr. at 39–40.) DOD has declined to give an
estimate as to how long the enhanced security screening will take, but as of September 5, 2017, it
had not been completed for any of the eight named plaintiffs. (See Defs.’ Weekly Report in
Resp. to Court’s Aug. 24, 2017 Order, Sept. 1, 2017, ECF No. 41 (“9/1/2017 Weekly Report”);
Defs.’ Am. Weekly Report in Resp. to Court’s Aug. 24, 2017 Order, Sept. 5, 2017, ECF No. 42
(“9/5/2017 Weekly Report”).)15
2. Naturalization Applications
Between August 19, 2016, and March 23, 2017, while drilling with the DTP and awaiting
a basic-training date, each named plaintiff applied for naturalization by filing their Form N-400,
along with a properly executed N-426. Plaintiffs’ naturalization applications have now been
pending for as little as five months or for as much as slightly over a year. Thus, even if
plaintiffs’ USCIS examinations occurred today (which they will not because DOD has yet to
complete enhanced security screening for any named plaintiff and USCIS is waiting on those
screenings) USCIS could take up to an additional four months to reach a final decision on
naturalization. See 8 U.S.C. § 1447(b); 8 C.F.R. § 335.3. In the meantime, at least four of the
eight named plaintiffs no longer have a lawful immigration status. (8/23/2017 Tr. at 31–32, 69
(listing three plaintiffs that defendants were aware of and a fourth whom plaintiffs’ counsel
informed the Court would lose his student visa on September 1, 2017); PI Mot. Ex. 24, at 3;
9/1/2017 Weekly Report; see also 9/5/2017 Weekly Report.) These four plaintiffs could be
subjected to removal proceedings by Immigration and Customs Enforcement (“ICE”), and
DHS/USCIS cannot provide them with protection from possible deportation. (Asher Decl. ¶ 7,
15
According to defendant’s September 1, 2017 Weekly Report, the NIACs are complete for all
plaintiffs, four of the SSBIs are complete, and “CI Interview Dates” have been scheduled for
dates ranging from September 12, 2017, to January 28, 2018. (See 9/1/2017 Weekly Report.)
10
Aug. 10, 2017; see also 7/19/2017 Tr. at 13–14; 8/23/2017 Tr. at 22–25, 27–28; 8/23/2017 Hr’g
Pls.’ Ex. 1.)
3. DOD’s N-426 Review
Further complicating matters for plaintiffs is the fact that DOD has undertaken a
“review” of its policy for issuing N-426s and is contemplating revoking previously issued N-
426s for MAVNI enlistees who have not served on “active-duty.” However, the status of DOD’s
N-426 Review is not entirely clear from the current record.
On July 7, 2017, defendants filed the declaration of Stephanie P. Miller—the Director,
Accession Policy Directorate, in the Office of the Under Secretary of Defense for Personnel and
Readiness, DOD—which stated that “Presently, DOD is not certifying any new MAVNI N-426s.
For a variety of reasons, some [of] which remain classified, DOD is undertaking a review of the
entire MAVNI pilot program, its procedures, and the standards for certifying approximately 400
existing N-426s.” (1st Miller Decl. ¶¶ 19–20.) Defendants also filed a declaration from Mr.
Renaud which indicated that “USCIS understood that DOD might act to revoke some of the
Forms N-426s that had been submitted and decided to temporarily hold affected naturalization
applications until it determined whether these individuals were eligible to naturalize.” (1st
Renaud Decl. ¶ 24.)
At the July 19, 2017 hearing, defense counsel stated that DOD “has not decertified any of
the presently certified N-426 forms . . . . [But] is not presently certifying any new N-426s.”
(7/19/2017 Tr. at 20.) When asked if DOD was thinking of revoking N-426s “because
somebody signed that wasn’t a person with authority or because they were signed prematurely or
that drilling [as opposed to active-duty service] does not count as honorable service,” counsel
replied:
11
Right. And so in the [declaration] of Stephanie Miller she indicates that they’re
[referring to DOD] undertaking a review of the N-426 process. I don’t know the
contours of that process. I assume that everything that Your Honor just said will
be part of that process for the rereview to either recertify or revoke.
(7/19/2017 Tr. at 24.) He further referred to plaintiffs’ N-426s as “potentially revocable”
(7/19/2017 Tr. at 46), but he indicated that revocation of any of the eight named plaintiffs’ N-
426s was not “imminent.” (7/19/2017 Tr. at 56.) Similarly, an attorney from DOD’s Office of
General Counsel who was present at the hearing represented that whether to revoke plaintiffs’ N-
426s was “something that’s being decided, Your Honor, right now.” (7/19/2017 Tr. at 48.) At
the end of the hearing this Court asked defendants to file answers to a number of questions,
including questions about the status of DOD’s N-426 review.
In response, defendants filed a second declaration from Ms. Miller, which states that
“members of the Selected Reserve . . . must have served in an ‘active duty status’ for DOD to
certify honorable service,” and that DOD had “recently determined” that N-426s issued to an
enlistee “without creditable active duty service could be considered signed in error and may be
decertified upon the completion of a review of the existing standards for certifying
approximately 400 existing N-426s.” (2d Miller Decl. at 6–7.)
However, on August 23, 2017, at the continuation of the preliminary injunction hearing,
defense counsel appeared to refute Ms. Miller’s declaration:
With respect to Ms. Miller’s second declaration which is ECF 25-2, her answer
four is not a final answer in the sense that it says the DOD has determined that
you have to have active duty status—and we discussed this a bit at the last
hearing. That is not the final position of the United States. There’s some inter-
agency discussions going on right now and will in the coming weeks. That is not a
final position of the United States, and it is not clear at this point that that is going
to be the final legal answer that the United States rests on.
(8/23/2017 Tr. at 10; see also 8/23/2017 Tr. at 16.) Counsel further stated that DOD was
developing N-426 criteria on whether someone without active-duty status could receive an N-
12
426, and he also explained that although DOD had told officers to stop issuing N-426s pending
development of this criteria, some N-426s had been issued by accident since that instruction
issued. (8/23/2017 Tr. at 11–12, 14.) With regard to revocation, the most counsel could say is
that “I’m not certain that any will ever be revoked.” (8/23/2017 Tr. at 14.) When asked about
the current status of DOD’s N-426 Review, counsel’s “best answer” was that “the procedures for
N-426s, issuing new ones and reissuing or revoking old ones, has not been decided yet.”16
(8/23/2017 Tr. at 14.)
This representation, however, is arguably contradicted by an August 17, 2017 DOD
Memorandum, which plaintiffs brought to the Court’s attention, in which Charles D. Luckey—
the Chief of Army Reserve/Commanding—states that “[e]ffective immediately, I withhold
authority to certify the honorable service (N-426) of Soldiers who have not yet attended Initial
Entry Training (IET).” (8/23/2017 Hr’g Pls.’ Ex. 2; see also Thomas Decl. ¶ 5, Aug. 29, 2017.)
In a subsequent filing, defendants embrace this memorandum and claim that it is “consistent”
with Ms. Miller’s July 7, 2017 declaration in that it indicates that DOD is not “presently”
certifying any new MAVNI N-426s. (Defs.’ 8/30/2017 Resp. at 2 & Ex. D.)
Although the record contains conflicting representations as to the current status of DOD’s
N-426 Review, there is no question that: (1) DOD’s current view, despite what appears to be a
clear conflict with the statutory language in 8 U.S.C. § 1440 and defense counsel’s
representation that DOD’s view does not represent the “final position of the United States,” is
that active-duty status is the only way to qualify for a valid N-426; (2) DOD has stopped issuing
N-426s to MAVNI enlistees who have not served in active-duty status; and (3) DOD is
16
It became apparent at the hearing that USCIS and DOD have differing views as to whether
active-duty service is required for issuance of an N-426. (8/23/2017 Tr. at 15–17.)
13
reviewing whether to revoke N-426s that had previously been issued to MAVNI recruits,
including the named plaintiffs, if they had not been to active-duty status. (1st Renaud Decl. ¶ 24;
1st Miller Decl. ¶¶ 19–20.) Moreover, if DOD revokes plaintiffs’ N-426s, they cannot be
naturalized since USCIS will not process their applications if they are not filed with an N-426.
(7/19/2017 Tr. at 36–37, 58; 8/23/2017 Tr. at 25.)
II. PROCEDURAL HISTORY
When plaintiffs’ naturalization applications were not adjudicated within their expected
time frame, they made inquiries to USCIS and found that DHS/USCIS was “holding” their
applications at the request of DOD pending DOD enhanced security screening. Plaintiffs filed
their initial complaint on May 24, 2017, alleging that DOD’s “interference” in the naturalization
process and USCIS’s acquiescence to DOD’s request to hold MAVNI applications pending
completion of DOD’s background checks were unlawful. On June 28, 2017, following a
Washington Post story revealing the existence of an internal DOD Action Memo, dated May 19,
2017, which indicated that DOD proposed never completing the enhanced security screening for
MAVNIs currently in the DTP (see PI Mot. Ex. 8), plaintiffs filed a motion for a preliminary
injunction.
Defendants filed their opposition on July 7, 2017—the same day that USCIS issued its
field guidance formally instituting a “hold” on MAVNI applications. Mr. Renaud’s declaration,
which was attached to defendants’ opposition, referenced a number of internal documents,
including the July 7th USCIS field guidance. This Court ordered defendants to provide the
referenced documents relating to USCIS’s decision to hold adjudication of MAVNI applications
pending enhanced security screening. (Order, July 14, 2017, ECF No. 22.) On July 17, 2017,
the July 7th USCIS field guidance was first provided as a result of defendants’ filing of a second
14
declaration from Mr. Renaud with attachments. (2d Renaud Decl. ¶ 3.)17 Then at a July 19,
2017 hearing, DOD revealed for the first time that it was in the process of reviewing its standards
for issuing N-426s and whether “active duty” was required for a valid certification. (See, e.g.,
7/19/2017 Tr. at 48.)
Following the hearing, and given the questions that arose at the hearing and the need for
additional briefing, the Court ordered (1) defendants to file supplemental declarations responding
to specific questions posed by the Court; (2) plaintiffs to file an amended complaint and a revised
request for preliminary relief; (3) defendants to supplement their opposition to the motion for
preliminary injunction; and (4) plaintiffs to file a reply to defendants’ supplemental opposition.
(See Order, July 19, 2017, ECF No. 24.) At a hearing on August 23, 2017, the Court learned of
additional developments, leading it to require further submissions from defendants and to
conduct an ex parte review of two classified documents that defendants had cited to support their
national security justification for the DHS Security Screening Requirement—“the 2017 Inspector
General Report” and the “2017 Defense Intelligence Agency Report.” (Order, August 24, 2017,
ECF No. 36.) Defendants filed their responses to the Court’s questions and provided the
documents for review on August 30, 2017.
The Court is now in a position to rule on the motion for preliminary injunction.
17
Mr. Renaud represented that the July 7th USCIS field guidance and other
attached documents represent a compilation of all final agency guidance provided
to USCIS Field Offices and/or to the National Benefits Center by FOD
headquarters from February 28, 2017, through the present, setting national
policies regarding the processing of N-400 applications filed by MAVNI recruits.
I have reviewed the attached documents and attest that they are true and accurate
copies of final agency guidance.
(2d Renaud Decl. ¶ 4.)
15
DISCUSSION
I. LEGAL STANDARD
A preliminary injunction grants “intermediate relief of the same character as that which
may be granted finally.” De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945). It
is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is
entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A
plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. The final two
factors merge where, as here, the government is the opposing party. See Pursuing America’s
Greatness v. Fed. Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016); see also Nken v.
Holder, 556 U.S. 418, 435 (2009).
II. PRELIMINARY INJUNCTION AGAINST DOD DEFENDANTS
Given that 8 U.S.C. § 1440 applies to “[a]ny person who . . . has served honorably as a
member of the Selected Reserve of the Ready Reserve or in an active-duty status in the
military,” id. § 1440(a) (emphasis added), the Court is puzzled by DOD’s position that “active
duty” service is required for naturalization under the MAVNI program. Still, it cannot grant
plaintiffs’ motion for a preliminary injunction against DOD’s N-426 Review because plaintiffs
have failed to establish that they will suffer any irreparable harm absent an injunction.
See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
Currently, plaintiffs each have a valid N-426, and DOD has not represented that it intends to
imminently revoke any of plaintiffs’ N-426s. (See 2d Miller Decl. at 7.)
In short, the fact that DOD has stopped issuing any new N-426s while its N-426 Review
16
is ongoing has no impact on plaintiffs. Given this conclusion, this Court need not address the
remaining preliminary-injunction factors and denies preliminary injunctive relief against DOD
on the ground that, at least at this stage, plaintiffs have failed to establish any imminent injury
from DOD’s current N-426 Review. Chaplaincy of Full Gospel Churches, 454 F.3d at 297;
see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 162 (2010).
III. PRELIMINARY INJUNCTION AGAINST DHS DEFENDANTS
The Court denies plaintiffs’ motion for a preliminary injunction against DHS Defendants.
Plaintiffs have met their burden on irreparable harm, but have yet to make a strong enough
showing of a likelihood of success on the merits to succeed at this stage. In addition, a balancing
of plaintiffs’ irreparable harm against the public interest does not tip decidedly in plaintiffs’
favor. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011); see also Morales v. Sec’y,
U.S. Dep’t of State, 220 F. Supp. 3d 1, 4 (D.D.C. 2016).
A. Irreparable Harm
The record demonstrates that the DHS Security Screening Requirement is causing
irreparable harm to plaintiffs. “[T]o meet the standard for irreparable harm the movant must
present sufficient evidence that the purported injury is certain, great, actual, imminent, and
beyond remediation.” Save Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d 108,
112–13 (D.D.C. 2015); see also Chaplaincy of Full Gospel Churches, 454 F.3d at 297. All eight
plaintiffs are suffering irreparable harm because they are not obtaining citizenship rights and
benefits, and, as a result of the legal limbo DHS Defendants have left them in pending resolution
of their naturalization applications, their ability to travel and pursue professional and personal
opportunities has been curtailed. See, e.g., Roshandel v. Chertoff, 554 F. Supp. 2d 1194, 1200–
01 (W.D. Wash. 2008), amended in part, No. C07-1739MJP, 2008 WL 2275558 (W.D. Wash.
17
June 3, 2008). While it is true that there is no right to naturalization, USCIS cannot indefinitely
delay adjudication of MAVNIs’ naturalization applications, and they cannot impose
requirements that contravene statutory or regulatory requirements. See 5 U.S.C. § 706; see also
Roshandel, 554 F. Supp. 2d at 1200–01 (noting as much in a similar challenge to USCIS’s
processing of naturalization applications).
Representations made to plaintiffs in their enlistment contracts and by actors responsible
for implementing the MAVNI program led plaintiffs to reasonably believe that USCIS would
process their applications for naturalization quickly and without the extensive delay and hardship
that has been caused by USCIS’s reliance on DOD’s enhanced security screening. (See, e.g.,
Calixto Decl. ¶ 7.) As a result, plaintiffs are forced to live in uncertainty about the legality of
their immigration status, and they are prevented from ordering their day-to-day affairs or from
making future plans, including travel abroad to see family members. See, e.g., Vartelas v.
Holder, 566 U.S. 257, 268 (2012) (noting that “[l]oss of the ability to travel abroad is itself a
harsh penalty, made all the more devastating if it means enduring separation from close family
members living abroad”) (footnote omitted).
Significantly, four plaintiffs have lost their lawful immigration status during the delay
and have no legal protection from removal and deportation proceedings.  (8/23/2017 Tr. at 31–
32, 69; 2d Miller Decl. at 9; PI Mot. Ex. 24 at 3.) DHS refuses to give the Court any assurance
that these plaintiffs will not be removed. (See Asher Decl. ¶ 7; see also 7/19/2017 Tr. at 13–14;
8/23/2017 Tr. at 22–25, 27–28; 8/23/2017 Hr’g Pls.’ Ex. 1.) These plaintiffs enlisted in the
MAVNI program over a year ago with the clear understanding, based on the explicit
representations of the government, that they would become naturalized citizens, not illegal
18
immigrants.18 Thus, plaintiffs have established irreparable harm. See Chaplaincy of Full Gospel
Churches, 454 F.3d at 297 (citation omitted); Save Jobs USA, 105 F. Supp. 3d at 112–13.
B. Likelihood of Success on the Merits
While plaintiffs have presented a host of legal arguments, the Court cannot conclude at
this stage that they have cleared the high hurdle of demonstrating a likelihood of success on the
merits on any specific claim.19 Even viewing the July 7th USCIS field guidance as final agency
action within the meaning of the APA,20 plaintiffs still face additional legal obstacles.
1. Claims under APA § 706(2)
a. Contrary to Law
Plaintiffs claim that the addition of an enhanced security screening is contrary to law,
which this Court construes as a challenge under 5 U.S.C. § 706(2)(A)21 or 5 U.S.C.
§ 706(2)(C).22 However, it is difficult to conclude that the DHS Security Screening Requirement
18
In fact, plaintiffs’ enlistment contracts required them to apply for citizenship as soon as DOD
certified their N-426s. (7/19/2017 Tr. at 36.)
19
Because defendants raised jurisdictional arguments in their first opposition to plaintiffs’
motion for a preliminary injunction, this Court notes that it has general federal question
jurisdiction, 28 U.S.C. § 1331, to consider plaintiffs’ claims under the APA. See Sackett v. EPA,
566 U.S. 120, 131 (2012) (noting that the Court had federal question jurisdiction to consider
5 U.S.C. § 706(2) claims); Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094,
1099–1100 (D.C. Cir. 2003) (noting that the court had federal question to consider 5 U.S.C.
§ 706(1) claims); Hamandi v. Chertoff, 550 F. Supp. 2d 46, 50 (D.D.C. 2008) (same).
20
Because this Court does not find that plaintiffs have established a likelihood of success on the
merits, it need not reach defendants’ argument that the July 7th USCIS field guidance does not
represent final agency action.
21
“The reviewing court shall—hold unlawful and set aside agency action, findings, and
conclusions found to be—arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
22
“The reviewing court shall—hold unlawful and set aside agency action, findings, and
conclusions found to be—in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right.” 5 U.S.C. § 706(2)(C).
19
violates the relevant statutes and regulations given the broad mandate Congress bestowed on
DHS/USCIS to oversee and evaluate naturalization applications. See Norton v. S. Utah
Wilderness All., 542 U.S. 55, 66–67 (2004); see also Nolan v. Holmes, 334 F.3d 189, 198–99 (2d
Cir. 2003).
8 U.S.C. § 1446, and its implementing regulations, authorizes DHS/USCIS to “conduct
examinations” of applicants for naturalization. Id. § 1446(b). To facilitate effective examination
of applicants for naturalization, Congress instructed DHS, USCIS, and other relevant agencies to
investigate an applicant and determine if he or she is “a person of good moral character, attached
to the principles of the Constitution of the United States, and well disposed to the good order and
happiness of the United States.” Id. § 1427(a). Implementing regulations further explain that
DHS/USCIS should evaluate each applicant to make sure he “[h]as been, for at least one year
prior to filing the application for naturalization, and continues to be, of good moral character,
attached to the principles of the Constitution of the United States, and favorably disposed toward
the good order and happiness of the United States.” 8 C.F.R. § 329.2(d).
Having reviewed under seal the two 2017 classified documents completed by the
Inspector General and the Defense Intelligence Agency, the Court cannot ignore (1) that
enlistment of foreign nationals in the military implicates national security concerns outlined in
the classified documents, and (2) that these national security concerns can bear on an applicant’s
good moral character, attachment to the Constitution, and disposition towards the United States.
8 U.S.C. § 1427(a); 8 C.F.R. § 329.2(d). Because additional screening for national security risks
does not plainly conflict with these relevant factors for examination, and because no statute or
regulation prohibits enhanced security screening, this Court cannot conclude that plaintiffs are
likely to succeed on their contrary-to-law claim. See Entergy Corp. v. Riverkeeper, Inc., 556
20
U.S. 208, 218 (2009) (noting that agency action is permissible if it represents a “reasonable
interpretation of the statute—not necessarily the only possible interpretation, nor even the
interpretation deemed most reasonable by the courts”); Thomas Jefferson Univ. v. Shalala, 512
U.S. 504, 513, 517–18 (1994) (upholding application of a broad regulation because it did not
conflict with the regulation’s plain language).
b. Arbitrary and Capricious
Plaintiffs also argue (1) that DHS Defendants acted in an arbitrary and capricious manner
when they abruptly added the DHS Security Screening Requirement, and (2) that this Court
should treat any national security justifications for the policy as a post hoc rationalization.
5 U.S.C. § 706(2)(A); see Am. Wild Horse Pres. Campaign v. Perdue, No. 15-5332, 2017 WL
3318750, at *6–10 (D.C. Cir. Aug. 4, 2017); Menkes v. U.S. Dep’t of Homeland Sec., 637 F.3d
319, 337 (D.C. Cir. 2011); see also Humane Soc’y of U.S. v. U.S. Postal Serv., 609 F. Supp. 2d
85, 95–96 (D.D.C. 2009).
Defendants argue that the DHS Security Screening Requirement only implements
existing statutory and regulatory provisions that permit investigation of an applicant’s good
moral character. See 8 U.S.C. § 1446(a); 8 C.F.R. §§ 316.2, 329.2, 335.1, 335.2. To shore up
this argument, defendants note that USCIS already relies on other agencies to obtain background
information on applicants. See 8 C.F.R. § 335.2 (FBI criminal background checks). On the
other hand, plaintiffs argue that the DHS Security Screening Requirement is not permitted by
existing statutes or regulations because it substantially changes the application process and adds
a background check that is much more onerous than anything USCIS has required before.
See Electronic Privacy Information Center v. U.S. Department of Homeland Security, 653 F.3d
1, 6 (D.C. Cir. 2011).
21
There can be no doubt that the DHS Security Screening Requirement is a dramatic
change in DHS/USCIS policy. See id. at 6–8. Regulations give DHS/USCIS authority to
investigate an applicant, 8 C.F.R. §§ 335.1, 335.2, but imposing a far more rigorous security
process, which has been outsourced to DOD, represents a stark departure from the longstanding
policies of DHS/USCIS.
For seventeen years, USCIS relied on an FBI background check and a DCII inquiry to vet
MAVNI applicants. DHS/USCIS has never use a tool like the DHS Security Screening
Requirement, and “[a] central principle of administrative law is that, when an agency decides to
depart from decades-long past practices and official policies, the agency must at a minimum
acknowledge the change and offer a reasoned explanation for it.” Am. Wild Horse Pres.
Campaign, 2017 WL 3318750, at *5; see also Lone Mountain Processing, Inc. v. Sec’y of Labor,
709 F.3d 1161, 1164 (D.C. Cir. 2013).
However, based on the justifications offered by defendants in the classified documents
reviewed by this Court, it cannot conclude that defendants’ explanation for its change in policy is
a post hoc rationalization. See Menkes, 637 F.3d at 337. Nor can it characterize defendants’
change in policy as arbitrary and capricious when the policies respond to present national
security concerns. Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (“National-security policy is
the prerogative of the Congress and President.”); Schneider v. Kissinger, 412 F.3d 190, 195
(D.C. Cir. 2005); see also Adams v. Vance, 570 F.2d 950, 954 (D.C. Cir. 1978) (noting that
application of injunctive-relief standards changes where core concerns of the executive branch
are at stake).
c. Notice and Comment
Plaintiffs argue that defendants should have subjected their new eligibility requirement to
22
notice and comment. 5 U.S.C. 706(2)(D); 5 U.S.C. § 553; Electronic Privacy Information Center,
653 F.3d at 4–7. Under the APA, agency action that represents a legislative rule must undergo
notice-and-comment procedures, which is not the case for “interpretative rules, general statements
of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A); Perez v.
Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015); Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C.
Cir. 2014). The precedential delineations between legislative rules and the latter category of
exempted agency actions are not clean-cut and admit of sometimes contradictory applications.
See Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 251–52 (D.C. Cir. 2014); see also Soundboard
Ass’n v. FTC, No. 17-CV-00150 (APM), 2017 WL 1476116, at *10 (D.D.C. Apr. 24, 2017). Still,
a legislative rule can broadly be characterized as an agency action that “purports to impose legally
binding obligations or prohibitions on regulated parties” or “sets forth legally binding requirements
for a private party to” obtain a benefit. Nat’l Min. Ass’n, 758 F.3d at 251–52; see also Mendoza,
754 F.3d at 1021 (“A rule is legislative if it supplements a statute, adopts a new position
inconsistent with existing regulations, or otherwise effects a substantive change in existing law or
policy.”).
The DHS Security Screening Requirement appears to have the characteristics of a
legislative rule. It is similar to the change in policy reviewed in Electronic Privacy Information
Center v. U.S. Department of Homeland Security, 653 F.3d 1 (D.C. Cir. 2011) (hereinafter
“EPIC”), which involved a challenge to the Transportation Security Administration’s (“TSA”)
decision to screen airline passengers by advanced imaging technology (“AITs”), instead of metal
detectors. 653 F.3d at 2–3. TSA reached its decision to implement AIT screening without
notice-and-comment, arguing that TSA’s broad statutory mandate allows it to screen airline
passengers for dangerous weapons. Id. at 3. In EPIC, TSA relied on its broad mandate to justify
23
its decision to forego notice-and-comment procedures when adopting its policy on AITs. Id. at
4–5. The AIT program was clearly a new policy, but TSA still argued that it was not a
legislative rule because it imposed no new substantive obligations on passengers—they always
had to undergo screening, this was just another version. Id. at 6–7.
However, the D.C. Circuit was unpersuaded:
Concededly, there is some merit in the TSA’s argument it has done no more than
resolve an ambiguity inherent in its statutory and regulatory authority, but the
purpose of the APA would be disserved if an agency with a broad statutory
command (here, to detect weapons) could avoid notice-and-comment rulemaking
simply by promulgating a comparably broad regulation (here, requiring
passengers to clear a checkpoint) and then invoking its power to interpret that
statute and regulation in binding the public to a strict and specific set of
obligations.
Id. at 7.
Notwithstanding the similarities between EPIC and the DHS Security Screening
Requirement, this Court is unable to conclude that plaintiffs are likely to succeed on the merits of
their notice-and-comment claim given the national security concerns that defendants cite for their
change in policy. See id. at 8 (refusing to vacate a rule promulgated without notice-and-
comment procedure because it “would severely disrupt an essential security operation”); see also
5 U.S.C. § 553(b)(B); Jifry v. FAA, 370 F.3d 1174, 1179–80 (D.C. Cir. 2004).23
2. Claims under APA § 706(1)
In addition to their APA § 706(2) arguments, plaintiffs claim that the delay caused by the
DHS Security Screening Requirement is itself unreasonable under 5 U.S.C. § 706(1). As
23
Plaintiffs also claim that DHS violated the APA’s publication requirement by failing to publish
the July 7th USCIS field guidance or a statement of reasons for its change in policy.
See 5 U.S.C. § 552. But given the classified nature of the 2017 Inspector General Report and the
2017 Defense Intelligence Agency Report, it may be that defendants are exempt from the APA’s
publication requirement. See id. § 552(b).
24
explained earlier, plaintiffs are suffering from the delay caused by the DHS Security Screening
Requirement, but to succeed under 5 U.S.C. § 706(1), plaintiffs must demonstrate that USCIS is
not completing its investigation, examination, and adjudication of MAVNI naturalization
applications within “a reasonable amount of time.” Hamandi v. Chertoff, 550 F. Supp. 2d 46, 50
(D.D.C. 2008). Determining whether USCIS is performing its duty within a reasonable amount
of time within the meaning of 5 U.S.C. § 706(1) is a fact intensive inquiry. See
Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984)
(hereinafter “TRAC”); see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d
1094, 1100 (D.C. Cir. 2003). The TRAC factors include: (1) whether a “rule of reason” governs
the time agencies take to make a decision, (2) timetables mandated by applicable statutory or
regulatory schemes, (3) the spheres of regulation in which the agency is imposing delay, (4) the
effect expediting delay will have on other “agency activities of a higher or competing priority,”
and (5) “the nature and extent of the interests prejudiced by delay.” TRAC, 750 F.2d at 80.
Concerning the second factor, USCIS must grant or deny an application within 120 days
after its examination of a MAVNI applicant, 8 U.S.C. § 1447(b); 8 C.F.R. § 335.3, but no statute
or regulation mandates a timetable for completing the investigation and examination.
See Hamandi, 550 F. Supp. 2d at 50. With regard to the remaining factors, the current record is
inadequate at this time to reach any conclusions. See Mashpee Wampanoag Tribal Council, 336
F.3d at 1100 (noting that “[r]esolution of a claim of unreasonable delay is ordinarily a
complicated and nuanced task requiring consideration of the particular facts and circumstances
before the court”); see also Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 190 (D.C. Cir. 2016).
Therefore, this Court cannot conclude plaintiffs have demonstrated that USCIS’s delay rises to
the level of unreasonable delay as a matter of law. 5 U.S.C. § 706(1); see TRAC, 750 F.2d at 80.
25
C. Harm to Defendants/Public Interest/Balance of the Equities
Finally, the Court cannot conclude that the balance of equities strongly favors plaintiffs.
Plaintiffs correctly note that the DHS Security Screening Requirement is causing them
irreparable harm. While their plight is regrettable, it cannot be concluded at this time that it is
sufficient to override national security concerns. See Trump v. Int’l Refugee Assistance Project,
137 S. Ct. 2080, 2087–88 (2017); Adams, 570 F.2d at 954–55; see also Wayte v. United States,
470 U.S. 598, 611 (1985) (noting the importance of the government’s interest in ensuring
national security). Therefore, the Court concludes that this factor does not necessarily favor
plaintiffs.
CONCLUSION
For the reasons stated above, plaintiffs’ motion for a preliminary injunction is denied
without prejudice. A separate Order, ECF No. 43, accompanies this Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: September 6, 2017
26