Impact of Recent Changes in American Immigration Policy
Recently, Military.com ran an Associated Press story about the Army quietly discharging immigrant recruits. I found this story particularly troubling both because immigration is a hot-button political issue impacting families all over this country and the idea of a pathway to citizenship for those who demonstrate their loyalty through service is, in my humble opinion, a just and honorable thing.
That said, it is important to understand exactly how the Department of Defense is implementing these separations and how these things could impact military members in all branches.
Who’s being impacted most?
This may seem like a pretty straight forward question but, after doing some research, the answer has become less than obvious. Currently it appears that the primary group impacted are those who have signed a contract but not yet made it to boot camp. Less impacted are those members that have completed boot camp and are currently serving (although they can still be impacted as I will explain shortly).
Security Clearance seems to be the key!
Immigration status is still important but not as important as you may think. First, let us remember that all members of the military must have a security clearance. This is nothing new. That requirement has been in place for many years and, at least historically, it has been relatively easy (much easier than a civilian) to get the proper CAF (Central Adjudication Facility) to sign-off on that clearance. Part of the inquiry required for that sign-off has to do with one’s allegiance to the United States as well as their Foreign Contacts. Basically, adjudicators must decide if there is any evidence that might lead one to have concerns regarding a recruit’s ability to be trusted with sensitive or classified information. How does this have anything to do with immigration? Well…
Let’s assume you are here seeking citizenship from Pakistan. You enlist in the Military prior to the repeal to the Military Accessions Vital to the National Interest (MAVNI) program. Now you are being vetted for your security clearance and, lo and behold, you have significant family and other foreign contacts in Pakistan. Not a big surprise, right? The military surely knew that when you went in to see the recruiter, so why do they have an issue with it now? The answer seems to be “technically” the military doesn’t have an issue but the Department of Defense Central Adjudication Facility does.
So, ultimately, it is the denial of the security clearance that is resulting in the separation and not a direct action on the part of the particular service. Being “cleared” is a requirement for service and deployment eligibility. Failure to obtain or maintain a clearance makes a service member non-deployable and potentially subjects them to administrative separation.
What can we do?
Appeal…aggressively and routinely. Regardless of the basis for the ADSEP there are several ways you can challenge it. The Discharge Review Boards and the Boards of Corrections are great places to start. These boards generally have the ability to review the discharge action and correct mistakes. Also, there is the possibility to appeal the security clearance adjudication. Although these opportunities are rare, a positive response to the Adjudicators may just put their concerns at ease.
Overall, it is important if you find yourself in this situation, that you contact someone who is familiar with these processes. There is no doubt that this issue is going to get worse. The important part is to keep fighting for what is right. Giving up and letting the government win is not the answer. If you or someone you know is facing separation based upon immigration status or citizenship, or any other reason, give us a call, we can help.