SAN FRANCISCO – Two lawful permanent residents have failed a suit in federal court alleging that the U.S. military’s new policy discriminates against immigrant lawful permanent residents (LPRs) by imposing longer background investigations than those for U.S. citizens, preventing immigrants from serving.
The complaint filed June 21 in the U.S. District Court for the Northern District of California against the Department of Defense and Secretary of Defense James Mattis states that plaintiffs, who are lawful permanent residents, “want to defend and give back to their adopted country, but they are being prevented from doing so by an unlawful and discriminatory new policy instituted by the United States Department of Defense and Secretary of Defense James Mattis” enacted following a memo in October 2017.
The complaint further states that there is no “legitimate justification for defendants’ refusal to allow LPRs to serve in the military…defendants’ conduct epitomizes the very kind of arbitrary and capricious government action that the Due Process Clause forbids.”
The plaintiffs, Chinese immigrant Jiahao Kuang and Jamaican immigrant Deron Cook, allege that they have been placed on Delayed Entry Programs after they enlisted in the U.S. Navy and U.S. Air Force, respectively. The delays are for unidentified background checks and investigations regarding the “suitability to serve in the military” and are alleged to take 350 days on average, the suit states.
The plaintiffs allege LPRs who enlisted are left “in limbo” as they could be shipped out for basic training at any time and cannot plan for their future and worry they may age out of certain military positions or become ineligible for benefits such as the military paying for applications for U.S. citizenship. Kuang and Cook state this policy makes them feel unwanted and unwelcome in the United States and the United States military.
The complaint states that the October 2017 memo “facially discriminates against LPRs based on their alienage and violates plaintiffs’ right to equal protection under the Fifth Amendment” and violates Congress’ Enlistment Statute as well as the Department of Defense’s own regulations to “treat applicants to the U.S. military equally and without discrimination.”
The complaint seeks for the October memo to be found unconstitutional and illegal, a preliminary and permanent injunction enjoining the defendants from enforcing the new policy, as well as costs and fees.
The plaintiffs are represented by Latham Watkins LLP in San Francisco, San Diego and Chicago, Illinois; the ACLU Foundation for Southern California in Los Angeles; and ACLU Foundation for Northern California in San Francisco.
U.S. District Court for the Northern District of California case number 3:18-cv-3698