U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17-cv-00998-ESH-RMM

NIO et al v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY et al Assigned to: Judge Ellen S. Huvelle Referred to: Magistrate Judge Robin M. Meriweather Cause: 28:1331 Fed. Question

Date Filed: 05/24/2017 Date Terminated: 08/20/2020 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Cases: 1:17-cv-01833-ESH

1:18-cv-01551-ESH

1:17-cv-01793-ESH-GMH

1:19-mc-00034-BAH

1:20-cv-01104-ESH

1:19-cv-03351-ESH

1:19-cv-03698-ESH

Plaintiff KUSUMA NIO

represented by Douglas W. Baruch MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 (202) 739-5219 Fax: (202) 739-3001 Email: douglas.baruch@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer M. Wollenberg MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 (202) 739 5313 Fax: (202) 739 3001 Email: jennifer.wollenberg@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff WANJING LI

Neaha P Raol MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 (202) 739-5702 Fax: (202) 739-3001 Email: neaha.raol@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP 801 17th Street, NW Washington, DC 20006 (202) 639-7493 Fax: (202) 639-7003 Email: joseph.lobue@friedfrank.com TERMINATED: 10/03/2018
Kayla M.S. Kaplan MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004-2541 (202) 739-5736 Fax: 202-739-3001 Email: kayla.kaplan@morganlewis.com TERMINATED: 08/16/2019
represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAE SEONG PARK
Plaintiff HAENDEL CRIST CALISTO ALVES DE ALMEIDA

Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018
Kayla M.S. Kaplan (See above for address) TERMINATED: 08/16/2019
represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018
Kayla M.S. Kaplan (See above for address) TERMINATED: 08/16/2019
represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol

Plaintiff PRASHANTH BATCHU
Plaintiff LUCAS CALIXTO

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018
Kayla M.S. Kaplan (See above for address) TERMINATED: 08/16/2019
represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018
Kayla M.S. Kaplan (See above for address) TERMINATED: 08/16/2019
represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY

Plaintiff SHU CHENG
Plaintiff SEUNG JOO HONG

ATTORNEY TO BE NOTICED
Neaha P Raol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018
Kayla M.S. Kaplan (See above for address) TERMINATED: 08/16/2019
represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018
Kayla M.S. Kaplan (See above for address) TERMINATED: 08/16/2019
represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff YE LIU
Plaintiff

Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018
Kayla M.S. Kaplan (See above for address) TERMINATED: 08/16/2019
represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018
Kayla M.S. Kaplan (See above for address) TERMINATED: 08/16/2019

EMEKA UDEIGWE

represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018
Kayla M.S. Kaplan (See above for address) TERMINATED: 08/16/2019

V.

Defendant
UNITED STATES DEPARTMENT OF HOMELAND SECURITY

represented by Elianis N. Perez U.S. DEPARTMENT OF JUSTICE Ben Franklin Station P.O. Box 868 Washington, DC 20044 (202) 616-9124 Fax: (202) 305-7000 Email: elianis.perez@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth A. Adebonojo U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2562 Fax: (202) 252-2599 Email: kenneth.adebonojo@usdoj.gov

Defendant
JOHN KELLY TERMINATED: 10/20/2017

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlton Frederick Shefﬁeld U.S. DEPARTMENT OF JUSTICE Immigration Litigation Ben Franklin Station P.O. Box 868 Washington, DC 20044 (202) 532-4737 Fax: (202) 616-4975 Email: carlton.f.shefﬁeld@usdoj.gov ATTORNEY TO BE NOTICED
Colin Abbott Kisor UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Ofﬁce of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, DC 20044 (202) 532-4331 Email: colin.kisor@usdoj.gov ATTORNEY TO BE NOTICED
Sarah Lake Vuong U.S. DEPARTMENT OF JUSTICE Civil Division, Ofﬁce of Immigration Litigation 450 Fifth Street, NW Washington, DC 20001 (202) 532-4281 Email: sarah.l.vuong@usdoj.gov TERMINATED: 09/14/2018
represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlton Frederick Shefﬁeld (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Defendant
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES

Sarah Lake Vuong (See above for address) TERMINATED: 09/14/2018
represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlton Frederick Shefﬁeld (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Sarah Lake Vuong (See above for address) TERMINATED: 09/14/2018

Defendant
JAMES MCCAMENT in his ofﬁcial capacity as Acting Director of the United States Citizenship and Immigration Services TERMINATED: 10/20/2017

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlton Frederick Shefﬁeld (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF DEFENSE

Sarah Lake Vuong (See above for address) TERMINATED: 09/14/2018
represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlton Frederick Shefﬁeld (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Sarah Lake Vuong (See above for address) TERMINATED: 09/14/2018

Defendant
JAMES N. MATTIS in his ofﬁcial capacity as Secretary of Defense of the United States Department of Defense

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlton Frederick Shefﬁeld (See above for address) ATTORNEY TO BE NOTICED
Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED
Sarah Lake Vuong (See above for address) TERMINATED: 09/14/2018

Defendant
ELAINE DUKE in her ofﬁcial capacity as Secretary of the U.S. Department of Homeland Security (Acting)

represented by Colin Abbott Kisor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlton Frederick Shefﬁeld (See above for address) ATTORNEY TO BE NOTICED

Defendant
L. FRANCIS CISSNA in his ofﬁcial capacity as Acting Director of the United States Citizenship and Immigration Services

represented by Colin Abbott Kisor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlton Frederick Shefﬁeld (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/24/2017
05/25/2017 05/25/2017 05/26/2017 05/26/2017 05/26/2017

# Docket Text
1 COMPLAINT (INCLUDING CLASS ACTION) FOR DECLARATORY, PRELIMINARY AND PERMANENT INJUNCTIVE, ADMINISTRATIVE PROCEDURE ACT, AND MANDAMUS RELIEF against JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 0090-4965078) ﬁled by LUCAS CALIXTO, JAE SEONG PARK, SHU CHENG, YE LIU, WANJING LI, SEUNG JOO HONG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, KUSUMA NIO, EMEKA UDEIGWE, PRASHANTH BATCHU. (Attachments: # 1 Civil Cover Sheet, # 2 Summons UNITED STATES DEPARTMENT OF HOMELAND SECURITY, # 3 Summons JOHN KELLY, # 4 Summons UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, # 5 Summons JAMES MCCAMENT, # 6 Summons UNITED STATES DEPARTMENT OF DEFENSE, # 7 Summons JAMES MATTIS, # 8 Summons JEFF SESSIONS, UNITED STATES ATTORNEY GENERAL, # 9 Summons CHANNING D. PHILLIPS, UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA)(LoBue, Joseph) (Entered: 05/24/2017)
Case Assigned to Judge Ellen S. Huvelle. (zsb) (Entered: 05/25/2017)
2 SUMMONS (8) Issued Electronically as to JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(zsb) (Entered: 05/25/2017)
3 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JOHN KELLY served on 5/25/2017 (LoBue, Joseph) (Entered: 05/26/2017)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 5/25/2017 (LoBue, Joseph) (Entered: 05/26/2017)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF DEFENSE served on 5/25/2017 (LoBue, Joseph) (Entered: 05/26/2017)

05/26/2017
05/26/2017
05/26/2017 05/26/2017 05/26/2017 06/01/2017 06/01/2017 06/01/2017 06/01/2017 06/05/2017 06/26/2017

6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/25/2017. Answer due for ALL FEDERAL DEFENDANTS by 7/24/2017. (LoBue, Joseph) (Entered: 05/26/2017)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 05/25/2017. (LoBue, Joseph) (Entered: 05/26/2017)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES served on 5/25/2017 (LoBue, Joseph) (Entered: 05/26/2017)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JAMES MATTIS served on 5/25/2017 (LoBue, Joseph) (Entered: 05/26/2017)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. (LoBue, Joseph) (Entered: 05/26/2017)
11 NOTICE of Appearance by Elianis N. Perez on behalf of All Defendants (Perez, Elianis) (Entered: 06/01/2017)
12 NOTICE of Appearance by Sarah Lake Vuong on behalf of All Defendants (Vuong, Sarah) (Entered: 06/01/2017)
13 NOTICE of Appearance by Douglas W. Baruch on behalf of All Plaintiffs (Baruch, Douglas) (Entered: 06/01/2017)
14 NOTICE of Appearance by Jennifer M. Wollenberg on behalf of All Plaintiffs (Wollenberg, Jennifer) (Entered: 06/01/2017)
15 NOTICE of Appearance by Kenneth A. Adebonojo on behalf of All Defendants (Adebonojo, Kenneth) (Entered: 06/05/2017)
16 Unopposed MOTION for Relief Under Federal Rule of CIvil Procedure 5.2(c) by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Text of Proposed Order)(LoBue, Joseph) (Entered: 06/26/2017)

06/27/2017 06/28/2017 06/30/2017

MINUTE ORDER granting 16 Motion for Relief Under Federal Rule of Civil Procedure 5.2(c): Upon consideration of Plaintiffs' unopposed motion for relief under Federal Rule Civil Procedure 5.2(c) respectfully requesting (1) an Order from this Court instructing the Clerk of the Court to remove the remote electronic access limitations to the case ﬁle imposed by Rule 5.2(c); or in the alternative (2) an Order from this Court instructing the Clerk to re-designate the "Nature of Suit" to "Other Statutes: 890 Other Statutory Action," such that Rule 5.2(c) is not applicable, and defendants having no objection to the requested relief, and for good cause appearing, it is hereby ORDERED that the Plaintiffs' motion is GRANTED; and the Clerk of the Court is instructed to remove the remote electronic access limitations to the case ﬁle imposed by Rule 5.2(c). Signed by Judge Ellen S. Huvelle on June 27, 2017. (AG) (Entered: 06/27/2017)
17 MOTION for Preliminary Injunction by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Declaration of Ye Liu, # 34 Declaration of Emeka Udeigwe, # 35 Declaration of Haendel Crist Calisto Alves De Almeida, # 36 Declaration of Prashanth Batchu, # 37 Declaration of Lucas Augusto Calixto, # 38 Declaration of Shu Cheng, # 39 Declaration of Seung Joo Hong, # 40 Declaration of Wanjing Li, # 41 Declaration of Jennifer M. Wollenberg, # 42 Text of Proposed Order)(LoBue, Joseph) Modiﬁed on 6/29/2017 to correct docket text (jf). (Entered: 06/28/2017)
18 ORDER re: plaintiffs' 17 Motion for Preliminary Injunction: defendants' opposition due by 5:00 p.m. on 7/7/17; plaintiffs' reply due by 5:00 p.m. on 7/12/17; Hearing set for 2:00 p.m. on 7/19/2017 in Courtroom 23A. The parties shall notify the Court consistent with LCvR 65.1(d) if they intend to offer live testimony at the hearing. See Order for details. Signed by Judge Ellen S. Huvelle on June 30, 2017. (lcesh1) (Main Document 18 replaced on 6/30/2017) (ztnr). (Entered: 06/30/2017)

07/07/2017
07/10/2017 07/12/2017 07/14/2017 07/14/2017 07/17/2017
07/19/2017 07/19/2017

19 RESPONSE re 17 MOTION for Preliminary Injunction In Opposition ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1 - 2016 DoD Memo, # 2 Exhibit 2 - 2010 DoD Memo, # 3 Exhibit 3 - 2012 DoD Memo, # 4 Exhibit 4 - 2015 DoD Memo, # 5 Exhibit 5 - MAVNI Contract, # 6 Exhibit 6 - Renaud Declaration, # 7 Exhibit 7 - Miller Declaration, # 8 Exhibit 8 - Canty Declaration) (Perez, Elianis) (Entered: 07/07/2017)
20 NOTICE of Appearance by Colin Abbott Kisor on behalf of All Defendants (Kisor, Colin) (Entered: 07/10/2017)
21 REPLY to opposition to motion re 17 MOTION for Preliminary Injunction ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE. (LoBue, Joseph) (Entered: 07/12/2017)
22 ORDER directing defendants to ﬁle copies of certain documents by Monday, July 17, 2017, at 10 a.m. See order for details. Signed by Judge Ellen S. Huvelle on July 14, 2017. (AG) (Entered: 07/14/2017)
Set/Reset Deadlines: Defendant shall ﬁle copies of any written documentation of the actions described in 23-26 of the Renaud Declaration due by 7/17/2017, by 10:00 AM. (gdf) (Entered: 07/14/2017)
23 RESPONSE TO ORDER OF THE COURT re 22 Order ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Vuong, Sarah) (Entered: 07/17/2017)
24 ORDER setting schedule for ﬁling supplemental papers and setting status conference for August 23, 2017, at 2:00 p.m. See order for details. Signed by Judge Ellen S. Huvelle on July 18, 2017. (AG) (Entered: 07/19/2017)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Motion Hearing held on 7/19/2017 re 17 MOTION for Preliminary Injunction. Oral argument heard and motion taken under advisement. Status Conference set for 8/23/2017 at 2:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporter Lisa Grifﬁth) (gdf) (Entered: 07/20/2017)

07/20/2017 07/28/2017
08/04/2017 08/04/2017 08/04/2017 08/08/2017 08/11/2017

Set/Reset Deadlines/Hearings: Declaration due by 7/28/2017. Amended Complaint by 8/4/2017. Response due by 8/14/2017 Reply due by 8/18/2017. Status Conference set for 8/23/2017 at 02:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (gdf) (Entered: 07/20/2017)
25 RESPONSE TO ORDER OF THE COURT re 24 Order ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - Renaud Declaration, # 2 Exhibit B - Miller Declaration, # 3 Exhibit C - Canty Declaration)(Perez, Elianis) (Entered: 07/28/2017)
26 NOTICE of Supplemental Documentation by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 24 Order (Perez, Elianis) (Entered: 08/04/2017)
27 AMENDED COMPLAINT against All Defendants ﬁled by LUCAS CALIXTO, JAE SEONG PARK, SHU CHENG, YE LIU, WANJING LI, SEUNG JOO HONG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, KUSUMA NIO, EMEKA UDEIGWE, PRASHANTH BATCHU.(LoBue, Joseph) (Entered: 08/04/2017)
28 RESPONSE TO ORDER OF THE COURT re 24 Order to File Revised Statement of Preliminary Relief ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE. (LoBue, Joseph) (Entered: 08/04/2017)
29 ORDER re 25 defendants' Response to Order of the Court, directing defendants to supplement answers. See order for details. Signed by Judge Ellen S. Huvelle on August 8, 2017. (AG) (Entered: 08/08/2017)
30 MOTION to Certify Class , MOTION to Appoint Counsel for Class by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE (Attachments: # 1 Memorandum in Support of Motion for Class Certiﬁcation and Appointment of Class Counsel, # 2 Exhibit 1, # 3 Declaration of Douglas Baruch, # 4 Text of Proposed Order)(LoBue, Joseph) (Entered: 08/11/2017)

08/14/2017 08/18/2017 08/18/2017 08/21/2017

31 Supplemental Memorandum in opposition to re 17 MOTION for Preliminary Injunction ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - ICE DECLARATION, # 2 Exhibit B - 7.27.17 USCIS EMAIL)(Perez, Elianis) Modiﬁed event title on 8/15/2017 (nmw). (Entered: 08/14/2017)
32 MOTION for Extension of Time to File Response/Reply as to 30 MOTION to Certify Class MOTION to Appoint Counsel for Class by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit A - Pages 109 to 116 from 7/19/17 Hearing Transcript)(Perez, Elianis) (Entered: 08/18/2017)
33 SUPPLEMENTAL MEMORANDUM to re 17 MOTION for Preliminary Injunction ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(LoBue, Joseph) (Entered: 08/18/2017)
34 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 7-19-17; Page Numbers: 1-114. Date of Issuance:8-21-17. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

08/23/2017 08/23/2017 08/24/2017
08/24/2017
08/24/2017

Redaction Request due 9/11/2017. Redacted Transcript Deadline set for 9/21/2017. Release of Transcript Restriction set for 11/19/2017.(Grifﬁth, Lisa) (Entered: 08/21/2017)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 8/23/2017. Continuance oral argument heard on the 17 Motion for Preliminary Injunction, heard and taken under advisement. Order to be entered by chambers. (Court Reporter: Jeff Hook) (kh) (Entered: 08/23/2017)
35 Plaintiff's exhibit list. (jl) (Entered: 08/23/2017)
MINUTE ORDER granting 32 defendants' Motion for Extension of Time to File Response re 30 plaintiffs' MOTION to Certify Class and Appoint Class Counsel: As stated in open court on August 23, 2017, it is hereby ORDERED that the motion is GRANTED; it is further ORDERED that defendants' response is due by September 15, 2017; and it is further ORDERED that plaintiffs shall ﬁle their reply by 9/22/2017. Signed by Judge Ellen S. Huvelle on August 24, 2017. (AG) (Entered: 08/24/2017)
36 ORDER setting deadlines and brieﬁng schedule. Supplemental ﬁlings due from defendants on August 30, 2017. Motion to dismiss due by September 15, 2017; opposition due by 9/29/2017; reply due by October 6, 2017. Weekly status reports due from defendants starting on September 1, 2017. See order for details. Signed by Judge Ellen S. Huvelle on August 24, 2017. (AG) (Entered: 08/24/2017)
37 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on August 23, 2017. Page Numbers: 1 - 108. Date of Issuance: August 24, 2017. Court Reporter: Jeff Hook. Contact Information: 202-354-3373 / jeff_hook@dcd.uscourts.gov. Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purch ased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve

08/24/2017 08/30/2017 08/30/2017
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personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 9/14/2017. Redacted Transcript Deadline set for 9/24/2017. Release of Transcript Restriction set for 11/22/2017.(Hook, Jeff) (Entered: 08/24/2017)
Set/Reset Deadlines: Supplemental ﬁlings by 8/30/2017. Motion due by 9/15/2017. Response due by 9/29/2017 Reply due by 10/6/2017. Status Report due by 9/1/2017. (gdf) (Entered: 08/24/2017)
38 NOTICE of Compliance by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 36 Order, (Vuong, Sarah) (Entered: 08/30/2017)
39 RESPONSE TO ORDER OF THE COURT re 36 Order, of August 24, 2017 ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Perez, Elianis) (Entered: 08/30/2017)
40 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 1:17-cv-01793. (LoBue, Joseph) (Entered: 09/01/2017)
41 RESPONSE TO ORDER OF THE COURT re 36 Order, Weekly Status Report ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 09/01/2017)
42 RESPONSE TO ORDER OF THE COURT re 36 Order, Amended Status Report ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 09/05/2017)
43 ORDER denying 17 Plaintiffs' Motion for Preliminary Injunction for the reasons stated in an accompanying Memorandum Opinion (ECF No. 44 ). Signed by Judge Ellen S. Huvelle on September 6, 2017. (lcesh1, ) (Entered: 09/06/2017)

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44 MEMORANDUM OPINION supporting Order 43 denying Plaintiffs' motion for preliminary injunctive relief. Signed by Judge Ellen S. Huvelle on September 6, 2017. (lcesh1, ) (Entered: 09/06/2017)
45 RESPONSE TO ORDER OF THE COURT re 43 Order on Motion for Preliminary Injunction, 36 Order, ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 09/08/2017)
46 ORDER directing defendants to respond to inquiries by September 22, 2017, see ORDER for details. Signed by Judge Ellen S. Huvelle on September 15, 2017.(lcesh1,) (Entered: 09/15/2017)
47 RESPONSE TO ORDER OF THE COURT re 43 Order on Motion for Preliminary Injunction, 36 Order, 9-15-17 WEEKLY REPORT ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 09/15/2017)
48 Memorandum in opposition to re 30 MOTION to Certify Class MOTION to Appoint Counsel for Class ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Kisor, Colin) (Entered: 09/15/2017)
49 MOTION to Dismiss Plaintiffs' Amended Complaint by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Perez, Elianis) (Entered: 09/15/2017)
Set/Reset Deadlines: Responses due by 9/22/2017 (gdf) (Entered: 09/17/2017)
50 RESPONSE TO ORDER OF THE COURT re 43 Order on Motion for Preliminary Injunction, 36 Order, Defendants' Amended Weekly Status Report ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 09/18/2017)

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51 RESPONSE TO ORDER OF THE COURT re 43 Order on Motion for Preliminary Injunction, 46 Order, 36 Order, Weekly Status Report ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 09/22/2017)
52 REPLY to opposition to motion re 30 MOTION to Certify Class MOTION to Appoint Counsel for Class ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE. (Attachments: # 1 Exhibit A, # 2 Declaration of Douglas W. Baruch)(LoBue, Joseph) (Entered: 09/22/2017)
53 NOTICE of similar cases in other judicial districts by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 52 Reply to opposition to Motion, (Kisor, Colin) (Entered: 09/25/2017)
NOTICE OF ERROR re 51 Response to Order of the Court; emailed to elianis.perez@usdoj.gov, cc'd 16 associated attorneys -- The PDF ﬁle you docketed contained errors: 1. Incorrect event used, 2. In the future, begin using the event STATUS REPORT instead of Response to Order of the Court. (znmw, ) (Entered: 09/25/2017)
54 STATUS REPORT by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Vuong, Sarah) (Entered: 09/29/2017)
55 Memorandum in opposition to re 49 MOTION to Dismiss Plaintiffs' Amended Complaint ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Text of Proposed Order)(LoBue, Joseph) (Entered: 09/29/2017)

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56 STATUS REPORT by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 10/06/2017)
57 REPLY to opposition to motion re 49 MOTION to Dismiss Plaintiffs' Amended Complaint ﬁled by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 10/06/2017)
58 STATUS REPORT by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Perez, Elianis) (Entered: 10/13/2017)
59 RESPONSE re 58 Status Report, ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE. (LoBue, Joseph) (Entered: 10/16/2017)
MINUTE ORDER: It is hereby ORDERED that a status conference will be scheduled on October 18, 2017 at 2:30 PM in Courtroom 23A to discuss plaintiffs' request for permission to renew their Motion for Preliminary Injunction, at least in part, based on changed circumstances. Signed by Judge Ellen S. Huvelle on October 16, 2017. (lcesh1) (Entered: 10/16/2017)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 10/18/2017. Scheduling order to be entered via chambers. (Court Reporter Janice Dickman) (jl) (Entered: 10/18/2017)
60 ORDER setting brieﬁng schedule discussed at Court's October 18, 2017 Hearing. See Order for details. Signed by Judge Ellen S. Huvelle on October 18, 2017. (lcesh1) (Entered: 10/18/2017)
Set/Reset Deadlines: Amended Pleadings due by 10/20/2017. Motion for Preliminary Injunction due by 10/20/2017. Response due by 10/24/2017 Reply due by 10/26/2017. (gdf) (Entered: 10/19/2017)

10/20/2017 10/20/2017 10/20/2017 10/20/2017

61 AMENDED COMPLAINT SECOND against JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY ﬁled by LUCAS CALIXTO, JAE SEONG PARK, SHU CHENG, YE LIU, WANJING LI, SEUNG JOO HONG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, KUSUMA NIO, EMEKA UDEIGWE, PRASHANTH BATCHU.(LoBue, Joseph) (Entered: 10/20/2017)
62 Amended MOTION to Certify Class and Appointment of Class Counsel by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE (Attachments: # 1 Text of Proposed Order)(LoBue, Joseph) Modiﬁed on 10/20/2017 (zrdj). Modiﬁed to correct text on 10/20/2017 (ztd). Added MOTION to Appoint Class Counsel on 10/23/2017 (znmw). (Entered: 10/20/2017)
63 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(LoBue, Joseph) (Entered: 10/20/2017)
64 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on October 18, 2017; Page Numbers: 1-41. Date of Issuance: October 20, 2017. Court Reporter/Transcriber Janice Dickman, Telephone number 202-354-3267, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

10/20/2017 10/24/2017 10/24/2017 10/24/2017 10/26/2017 10/26/2017

Redaction Request due 11/10/2017. Redacted Transcript Deadline set for 11/20/2017. Release of Transcript Restriction set for 1/18/2018.(Dickman, Janice) (Entered: 10/20/2017)
65 STATUS REPORT by JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 10/20/2017)
66 SUPPLEMENTAL MEMORANDUM to re 48 Memorandum in Opposition, to certify a class ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Kisor, Colin) (Entered: 10/24/2017)
67 RESPONSE re 63 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1, Renaud Declaration)(Perez, Elianis) (Entered: 10/24/2017)
MINUTE ORDER Setting Hearing on Motion: It is hereby ORDERED that a hearing on 63 plaintiffs' motion for a temporary restraining order/ preliminary injunction is set for 10/27/2017 at 11:00 AM in Courtroom 23A before Judge Ellen S. Huvelle. Signed by Judge Ellen S. Huvelle on October 24, 2017. (AG) (Entered: 10/24/2017)
68 REPLY to opposition to motion re 63 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE. (LoBue, Joseph) (Entered: 10/26/2017)
69 NOTICE of Supplemental Documentation by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 67 Response to motion, (Attachments: # 1 Exhibit 2, Second Asher Declaration)(Perez, Elianis) (Entered: 10/26/2017)

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70 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 10/27/2017)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Motion Hearing held on 10/27/2017 re 30 MOTION to Certify Class; 17 MOTION for Preliminary Injunction; 63 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction . Order to follow. (Court Reporter: Catherine Jones.) (tj) (Entered: 10/27/2017)
71 ORDER setting 11/17/2017 as deadline for defendants to respond to the 61 Second Amended Complaint; denying as moot 30 plaintiffs' ﬁrst Motion to Certify Class and 49 defendants' Motion to Dismiss the ﬁrst amended complaint. Signed by Judge Ellen S. Huvelle on October 27, 2017. (AG) (Entered: 10/27/2017)
72 ORDER granting 62 Motion to Certify Class; granting 62 Motion to Appoint Counsel, See ORDER for details. Signed by Judge Ellen S. Huvelle on October 27, 2017. (lcesh1) (Entered: 10/27/2017)
73 MEMORANDUM OPINION granting class certiﬁcation and appointing counsel. See Opinion and Accompanying Order, ECF No. 72 for details. Signed by Judge Ellen S. Huvelle on October 27, 2017. (lcesh1) (Entered: 10/27/2017)
74 ORDER denying 63 Motion for TRO as moot, and granting 63 Motion for Preliminary Injunction. See ORDER for details. Signed by Judge Ellen S. Huvelle on October 27, 2017. (lcesh1) (Entered: 10/27/2017)
75 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on October 27, 2017; Page Numbers: 1 - 86. Court Reporter/Transcriber Cathryn Jones, Telephone number 2023543246, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request toredact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER

without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

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Redaction Request due 11/21/2017. Redacted Transcript Deadline set for 12/1/2017. Release of Transcript Restriction set for 1/29/2018.(Jones, Cathryn) (Entered: 10/31/2017)
76 NOTICE of correction by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 64 Transcript,,,,, (Kisor, Colin) (Entered: 10/31/2017)
77 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 11/03/2017)
78 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 11/09/2017)
79 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 11/17/2017)
80 MOTION to Dismiss For Failure to State a Claim by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Perez, Elianis) (Entered: 11/17/2017)
81 ADMINISTRATIVE RECORD INDEX by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 11/17/2017)

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82 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 11/24/2017)
83 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 12/01/2017)
MINUTE ORDER: It is hereby ORDERED that for all motions or brieﬁngs exceeding 25 pages, or otherwise including exhibits, counsel shall provide Chambers with two courtesy paper copies. All courtesy copies should be in 3-ring binders with tabbed exhibits and an exhibit list/ table of contents. Signed by Judge Ellen S. Huvelle on December 1, 2017. (lcesh1) (Entered: 12/01/2017)
84 Memorandum in opposition to re 80 MOTION to Dismiss For Failure to State a Claim ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Text of Proposed Order)(LoBue, Joseph) (Entered: 12/01/2017)
85 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 12/08/2017)
86 REPLY to opposition to motion re 80 MOTION to Dismiss For Failure to State a Claim ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 12/08/2017)
87 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 12/15/2017)

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88 ORDER re defendants' status reports. See ORDER for details. Signed by Judge Ellen S. Huvelle on December 15, 2017. (lcesh1) (Main Document 88 replaced on 12/22/2017) (jf). (Entered: 12/15/2017)
Set/Reset Deadlines: Status Report due by 1/3/2018. (gdf) (Entered: 12/19/2017)
89 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Vuong, Sarah) (Entered: 01/03/2018)
90 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 01/17/2018)
91 ORDER: setting status conference for January 23, 2018 at a time to be later determined by the Court. See ORDER for details. Signed by Judge Ellen S. Huvelle on January 17, 2018. (Attachments: # 1 Plaintiffs' Email) (lcesh1) (Entered: 01/17/2018)
92 Amended STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 01/17/2018)
MINUTE ORDER re 91 Order: It is hereby ORDERED that the Court will hold a status conference on January 23, 2018 at 3:00 PM in Courtroom 23A. Signed by Judge Ellen S. Huvelle on January 17, 2018. (lcesh1) (Entered: 01/17/2018)
93 RESPONSE TO ORDER OF THE COURT re 91 Order ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1 - Email String, # 2 Exhibit 2 Email with Decl., # 3 Exhibit 3 - USCIS Decl., # 4 Exhibit 4 - DoD Decl.) (Perez, Elianis) (Entered: 01/22/2018)

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01/23/2018 01/31/2018

94 NOTICE of Filing of Declarations and Documents in Support of Plaintiffs' Request for Relief by YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE re 91 Order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Declaration 1, # 4 Declaration 2, # 5 Declaration 3, # 6 Declaration 4, # 7 Declaration 5)(LoBue, Joseph) Modiﬁed on 2/5/2018 (to add additional parties jf). (Entered: 01/23/2018)
96 RESPONSE TO ORDER OF THE COURT re 91 Order ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1 - Renaud Decl.)(Perez, Elianis) (Entered: 01/23/2018)
97 ORDER REFERRING CASE for Case Management to Magistrate Judge Robin Meriweather: See ORDER for details. Signed by Judge Ellen S. Huvelle on January 23, 2018. (lcesh1) Modiﬁed on 1/24/2018 (AG). (Entered: 01/23/2018)
98 ORDER denying 80 Motion to Dismiss: See ORDER for details. Signed by Judge Ellen S. Huvelle on January 23, 2018. (lcesh1) (Entered: 01/23/2018)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 1/23/2018. Denying without prejudice 80 Motion to Dismiss. Index of the administrative record due by 3/1/2018. Motion to dismiss, or in the alternative for summary judgment due by 3/16/2018. Response due by 4/6/2018, Reply due by 4/20/2018. Scheduling Order to be entered by Chambers. (Court Reporter: Lisa Grifﬁth) (zgdf) (Entered: 01/24/2018)
CASE DIRECTLY REFERRED to Magistrate Judge Robin M. Meriweather for full case management. (zmd) (Entered: 01/25/2018)
99 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 01/31/2018)

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100 ANSWER to 61 Amended Complaint, by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Perez, Elianis) (Entered: 02/02/2018)

02/05/2018

101 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 1-23-18; Page Numbers: 1-93. Date of Issuance:2-5-18. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 2/26/2018. Redacted Transcript Deadline set for 3/8/2018. Release of Transcript Restriction set for 5/6/2018.(Grifﬁth, Lisa) (Entered: 02/05/2018)

02/07/2018

102 MOTION for Hearing A CONFERENCE WITH THE MAGISTRATE JUDGE IN ACCORDANCE WITH THE COURT'S REFERRAL ORDER by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Text of Proposed Order)(LoBue, Joseph) Modiﬁed event title on 2/8/2018 (znmw). (Entered: 02/07/2018)

02/08/2018 103 ORDER granting Plaintiffs' Motion for Hearing. See Order for details. Signed by Magistrate Judge Robin M. Meriweather on 02/08/2018. (lcrm1) (Entered: 02/08/2018)

02/14/2018

104 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 02/14/2018)

02/14/2018

105 NOTICE of Filing Joint Proposal Pursuant to the Court's Order of February 8, 2018 by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE re 103 Order, Set Deadlines/Hearings (LoBue, Joseph) (Entered: 02/14/2018)

02/16/2018

Minute Entry for proceedings held before Magistrate Judge Robin M. Meriweather: Miscellaneous Hearing held on 2/16/2018. All arguments will be taken under advisement and an Order will be issued by the Court. Court Reporter Patricia Kaneshiro-Miller; FTR Time Frame: Ctrm 7 [12:39:49 - 1:45:00]; Plaintiff's Attorneys: Douglas Baruch, Jennifer Wollenberg, Joseph LoBue, Webster Beary, Neaha Raol, Shaun Gates, and Katherine St. Romaine; Defense Attorneys: Elianis Perez, Colin Kisor, and Sarah Vuong. (cal) (Entered: 02/16/2018)

02/20/2018

MINUTE ORDER: It is hereby ORDERED that, on or before February 28, 2018, Defendants shall prepare and ﬁle one or more declarations informing the Court of the amount of time it would take to gather and report the following information, partially identiﬁed on page 3 of the parties' 105 Joint Proposal, for each individual class member: (1) Status (DTP, Holdover, Discharge, Other); (2) Enlistment date; (3) How long the DoD enhanced background investigation has been pending and when the investigation began; (4) CAF adjudication date; (5) MSSD determination result; (6) Date DoD notiﬁed USCIS and class member of MSSD completion; (7) Date USCIS-ordered FBI background checks began; (8) Date Notice to Appear issued / removal or deportation proceedings initiated. Defendants shall also inform the Court of the amount of time it would take to gather and report the total number of naturalizations of class members since July 7, 2017. When identifying the amount of time needed, Defendants shall presume that its employees are working expeditiously to gather and report the requested information. Signed by Magistrate Judge Robin M. Meriweather on 02/20/2018. (lcrm1) (Entered: 02/20/2018)

02/23/2018

106 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Robin M. Meriweather held on February 16m 2018; Page Numbers: 1-43. Date of Issuance:February 23, 2018. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_Kaneshiro-Miller@dcd.uscourts.gov. Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 3/16/2018. Redacted Transcript Deadline set for 3/26/2018. Release of Transcript Restriction set for 5/24/2018.(pk) (Entered: 02/23/2018)

02/28/2018

107 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 02/28/2018)

02/28/2018

108 RESPONSE TO ORDER OF THE COURT re Order,,,,, Set Deadlines,,,, ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1 - Arendt Decl., # 2 Exhibit 2 - Wright Decl., # 3 Exhibit 3 - Hoefer Decl., # 4 Exhibit 4 Bennett Decl.)(Perez, Elianis) (Entered: 02/28/2018)

02/28/2018

109 RESPONSE TO ORDER OF THE COURT re 98 Order on Motion to Dismiss ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3SEALED PER COUNSEL Exhibit C)(Perez, Elianis). Modiﬁed on 3/1/2018 (td). (Entered: 02/28/2018)

03/01/2018

110 REDACTED DOCUMENT- Exhibit to 109 Response to Order of the Court, by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 03/01/2018)

03/01/2018

111 ADMINISTRATIVE RECORD Index by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Kisor, Colin) (Entered: 03/01/2018)

03/07/2018

112 RESPONSE re 108 Response to Order of the Court, ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (LoBue, Joseph) (Entered: 03/07/2018)

03/09/2018

MINUTE ORDER: It is hereby ORDERED that Defendants shall prepare and ﬁle one or more supplemental declarations on or before March 16, 2018 informing the Court of the amount of time it would take to gather and report the following information for each individual class member: (1) the class member's enlistment date; (2) the date the class member's N-400 form was ﬁled; (3) the date the class member's case was referred to USCIS; and (4) the class member's naturalization date. Defendants' response should provide a breakdown of the amount of time it would take to gather and report on each individual category identiﬁed, as well as the amount of total time required for all four categories. Signed by Magistrate Judge Robin M. Meriweather on 03/09/2018. (lcrm1) (Entered: 03/09/2018)

03/14/2018

113 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 03/14/2018)

03/14/2018

114 MOTION for Protective Order OPPOSED by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order Proposed Protective Order)(Kisor, Colin) (Entered: 03/14/2018)

03/14/2018

115 MOTION for Leave to File THIRD AMENDED COMPLAINT by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Third Amended Complaint, # 2 Text of Proposed Order)(LoBue, Joseph) (Entered: 03/14/2018)

03/15/2018

116 MOTION to Dismiss Second Amended Complaint, MOTION for Summary Judgment by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Memorandum in Support) (Perez, Elianis) (Entered: 03/15/2018)

03/15/2018

117 Memorandum in opposition to re 115 MOTION for Leave to File THIRD AMENDED COMPLAINT ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1)(Kisor, Colin) (Entered: 03/15/2018)

03/16/2018

118 RESPONSE TO ORDER OF THE COURT re Order,,,, Set Deadlines,,, ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Perez, Elianis) (Entered: 03/16/2018)

03/16/2018

119 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, EMEKA UDEIGWE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Declaration A, # 38 Declaration B, # 39 Declaration C, # 40 Declaration D, # 41 Declaration E, # 42 Declaration F, # 43 Declaration G, # 44 Declaration H, # 45 Declaration I, # 46 Declaration J, # 47 Declaration K, # 48 Declaration L, # 49 Declaration M, # 50 Declaration N, # 51 Declaration O, # 52 Declaration P, # 53 Declaration Q, # 54 Declaration R, # 55 Declaration S, # 56 Declaration T, # 57 Declaration U, # 58 Declaration V, # 59 Declaration W, # 60 Declaration X, # 61 Declaration Y, # 62 Declaration Z, # 63 Declaration AA, # 64 Declaration Shu Cheng, # 65 Declaration Jennifer M. Wollenberg, # 66 Text of Proposed Order)(LoBue, Joseph) (Entered: 03/17/2018)

03/20/2018

120 REPLY to opposition to motion re 115 MOTION for Leave to File THIRD AMENDED COMPLAINT ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (LoBue, Joseph) (Entered: 03/20/2018)

03/22/2018

121 RESPONSE re 118 Response to Order of the Court, ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(LoBue, Joseph) (Entered: 03/22/2018)

03/26/2018

122 RESPONSE re 114 MOTION for Protective Order OPPOSED ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(LoBue, Joseph) (Entered: 03/26/2018)

03/26/2018 123 ORDER granting 114 Motion for Protective Order: See ORDER for details. Signed by Judge Ellen S. Huvelle on March 26, 2018. (lcesh1) (Entered: 03/26/2018)

03/26/2018 124 ORDER re Conference Call held on March 26, 2018. See ORDER for details. Signed by Judge Ellen S. Huvelle on March 26, 2018. (lcesh1) (Entered: 03/26/2018)

03/26/2018

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone Conference held in Chambers on 3/26/2018. (Court Reporter: Lisa Grifﬁth) (gdf) (Entered: 03/26/2018)

03/27/2018

Set/Reset Hearings: Preliminary Injunction Hearing set for 4/11/2018 at 02:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (gdf) (Entered: 03/27/2018)

03/28/2018

125 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 03/28/2018)

03/29/2018

126 RESPONSE TO ORDER OF THE COURT re 124 Order ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Track-Changes Complaint) (LoBue, Joseph) (Entered: 03/29/2018)

04/02/2018

MINUTE ORDER: It is hereby ORDERED that, to the extent any disputes remain about the administrative record after the parties confer, plaintiffs shall ﬁle a motion to supplement and/or object to the administrative record on or before April 10, 2018 at 12:00 PM as opposed to the earlier-set deadline of April 11, 2018 at 12:00 PM; and it is further ORDERED that the Court will hold a hearing on plaintiffs' motion for leave to ﬁle an amended complaint and plaintiffs' motion for a preliminary injunction at 1:30 PM, Wednesday April 11, 2018 as opposed to the earlier-set time of 2:00 PM.SO ORDERED. Signed by Judge Ellen S. Huvelle on April 2, 2018. (lcesh1) (Entered: 04/02/2018)

04/02/2018

127 NOTICE of Filing Statement of Material Facts by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 116 MOTION to Dismiss Second Amended Complaint MOTION for Summary Judgment (Attachments: # 1 Statement of Facts)(Perez, Elianis) (Entered: 04/02/2018)

04/03/2018

128 RESPONSE re 119 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1, Renaud Decl., # 2 Exhibit 2, Arendt Decl., # 3 Exhibit 3, Pages from 2.16.18 Hearing)(Perez, Elianis) (Entered: 04/03/2018)

04/03/2018

129 RESPONSE TO ORDER OF THE COURT 124 Order by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A, DoD Report, # 2 Exhibit B, USCIS Report)(Perez, Elianis) Modiﬁed event title on 4/4/2018 (znmw). (Entered: 04/03/2018)

04/04/2018

130 Amended RESPONSE TO ORDER OF THE COURT 124 Order by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) Modiﬁed event title on 4/4/2018 (znmw). (Entered: 04/04/2018)

04/06/2018

131 REPLY to opposition to motion re 119 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (LoBue, Joseph) (Entered: 04/06/2018)

04/09/2018

MINUTE ORDER: it is hereby ORDERED that the clerk shall seal ECF Nos. 119-37 through 119-63. Signed by Judge Ellen S. Huvelle on April 9, 2018. (lcesh1) (Entered: 04/09/2018)

04/09/2018

132 NOTICE of Appearance by Carlton Frederick Shefﬁeld on behalf of L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Shefﬁeld, Carlton) (Entered: 04/09/2018)

04/10/2018

133 MOTION Regarding Defendants' Certiﬁed Administrative Record for the July 7 Policy by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Text of Proposed Order) (LoBue, Joseph) (Entered: 04/10/2018)

04/11/2018

134 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 04/11/2018)

04/11/2018

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Preliminary Injunction held on 4/11/2018. Order forthcoming via Chambers. (Court Reporter: Tim Miller) (gdf) (Entered: 04/16/2018)

04/11/2018 136 Exhibit List (Court). (gdf) (Entered: 04/16/2018)

04/12/2018

135 ORDER denying 115 Motion for Leave to File third proposed amended complaint; denying 119 Motion for TRO; denying 119 Motion for Preliminary Injunction; granting in part and denying in part 133 plaintiffs' Motion re administrative record; referring the case to Magistrate Judge Meriweather for the purposes listed in the ORDER; ordering defendants' to ﬁle supplements to the administrative record on or before April 25, 2018, at 12:00 PM; ordering regular reporting beginning May 9, 2018, at 12:00 PM: For the reasons stated at the April 11, 2018 hearing. See ORDER for further details. Signed by Judge Ellen S. Huvelle on April 12, 2018. (lcesh1) (Entered: 04/12/2018)

04/19/2018

MINUTE ORDER: Judge Huvelle's 135 April 12, 2018 Order referred this matter to Magistrate Judge Robin M. Meriweather, in part, to resolve the admissibility of Defendants' USCIS CAR at 7 regarding attorney-client privilege and deliberative privilege. It is hereby ORDERED that the parties shall confer and submit a joint proposed schedule for brieﬁng this issue on or before April 23, 2018. Signed by Magistrate Judge Robin M. Meriweather on 04/19/2018. (lcrm1) (Entered: 04/19/2018)

04/20/2018

MINUTE ORDER: It is hereby ORDERED that the parties shall appear telephonically before Magistrate Judge Robin M. Meriweather on 04/30/18 at 2:00 PM for a Telephone Conference. Counsel will be provided with a call-in telephone number prior to the Telephone Conference. Signed by Magistrate Judge Robin M. Meriweather on 04/20/2018. (lcrm1) (Entered: 04/20/2018)

04/20/2018

137 TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING before Judge Ellen S. Huvelle held on 4-11-18; Page Numbers: 1 through 150; Date of Issuance: 4-20-18; Court Reporter: Timothy R. Miller, Telephone number (202) 354-3111. Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court repor ter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 5/11/2018. Redacted Transcript Deadline set for 5/21/2018. Release of Transcript Restriction set for 7/19/2018.(Miller, Timothy) (Entered: 04/20/2018)

04/23/2018

138 PROPOSED BRIEFING SCHEDULE re Order,, Set Deadlines, (Joint Proposal) by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (LoBue, Joseph) (Entered: 04/23/2018)

04/23/2018

MINUTE ORDER: In response to the 138 Joint Proposed Brieﬁng Schedule submitted to the Court, it is hereby ORDERED that Plaintiffs' Motion regarding Defendants' USCIS CAR at 7 shall be ﬁled on or before May 7, 2018; Defendants' Response shall be ﬁled on or before May 21, 2018; and Plaintiffs' Reply shall be ﬁled on or before May 28, 2018. Signed by Magistrate Judge Robin M. Meriweather on 04/23/2018. (lcrm1) (Entered: 04/23/2018)

04/25/2018

139 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 04/25/2018)

04/25/2018

140 Amended STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 04/25/2018)

04/30/2018

Minute Entry for proceedings held before Magistrate Judge Robin M. Meriweather on 4/30/18 : Telephone Conference held. Minute order to be issued. Further Telephone Conference set for 5/14/18 at 2:30 PM in Courtroom 7 before Magistrate Judge Robin M. Meriweather. Court Reporter: FTR Gold - Ctrm. 7; FTR Time Frame: 2:07:52 - 3:15:14. Plaintiffs' Counsel: Jennifer Wollenberg, Joseph LoBue and Douglas Baruch; Defendants' Counsel: Colin Kisor, Elianis Perez, Carlton Shefﬁeld and Sarah Vuong. (kk) (Entered: 04/30/2018)

04/30/2018

MINUTE ORDER: It is hereby ORDERED that that the parties shall appear before the undersigned on May 14, 2018 at 2:30 PM for a Telephone Conference. It is further ORDERED that, in the interim, counsel for Defendants shall: (1) follow up with the FBI General Counsel's ofﬁce, and confer with U.S. Citizenship and Immigration Services ("USCIS") and the Department of Defense ("the DOD"), to attempt to identify procedures that could be used to avoid the need for two FBI background checks; (2) work with USCIS and the DOD to assess the feasibility of designating and using liaisons in each agency to minimize delays between when the DOD completes a Military Services Suitability Determination ("MSSD") and uploads it to the portal shared with USCIS, and in turn, when USCIS utilizes the uploaded MSSD and undertakes the remaining steps of the naturalization process; (3) work with USCIS and the DOD to assess the feasibility of using liaisons in each agency, and/or establishing email inboxes at each agency, for communications between the agencies and class counsel regarding delays in the naturalization of the Nio class members; (4) coordinate with the DOD and USCIS regarding practices that could facilitate the naturalization of MAVNIs with completed MSSDs before they ship to basic training, including without limitation exploring whether the DOD could provide USCIS with a projected ship date for each class member who has successfully completed the DOD process and whether USCIS's receipt of that information would

facilitate the expeditious scheduling of a naturalization interview. It is further ORDERED that, in the interim, the parties shall continue to confer regarding the issues and potential solutions discussed at the April 30, 2018 Telephone Conference, including without limitation the topics identiﬁed above. Signed by Magistrate Judge Robin M. Meriweather on 04/30/2018. (lcrm1) (Entered: 04/30/2018)

05/07/2018

141 MOTION to Compel Details Regarding Defendants' Redactions within USCIS CAR at 7 by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Text of Proposed Order) (LoBue, Joseph) (Entered: 05/07/2018)

05/09/2018

142 STATUS REPORT MONTHLY by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - DoD Report, # 2 Exhibit B USCIS Report)(Perez, Elianis) (Entered: 05/09/2018)

05/09/2018

143 STATUS REPORT Bi-Weekly by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 05/09/2018)

05/14/2018

Minute Entry for proceedings held before Magistrate Judge Robin M. Meriweather on 5/14/18 : Telephone Conference held and further Telephone Conference set for 5/21/18 at 2:00 PM in Courtroom 7 before Magistrate Judge Robin M. Meriweather. Minute Order to be issued. Court Reporter: FTR Gold - Ctrm. 7; FTR Time Frame: 2:31:15 - 3:56:01. Plaintiffs' Counsel: Jennifer Wollenberg, Joseph LoBue and Douglas Baruch; Defendants' Counsel: Colin Kisor, Elianis Perez and Carlton Shefﬁeld. (kk) (Entered: 05/15/2018)

05/15/2018

MINUTE ORDER: It is hereby ORDERED that the parties shall appear for a Telephone Conference on May 21, 2018 at 2:00 PM. It is further ORDERED that Defendants and their counsel shall: (1) continue to work with the FBI's Ofﬁce of General Counsel and other relevant agencies to explore ways to avoid the need for two FBI background checks; (2) have further discussions with USCIS about whether the proposal to create an email inbox designated for concerns regarding individual class members' pending applications could also be used to identify and resolve class-wide concerns such as minimizing the delay between when USCIS learns that a MSSD has been uploaded to the portal and when USCIS begins to

undertake the remaining steps of the naturalization process; (3) have further discussions with USCIS and DOD about whether designating one or more persons as a liaison would be likely to redress the class-wide concern of minimizing the delay between when USCIS learns that a MSSD has been uploaded to the portal and when USCIS begins to undertake the remaining steps of the naturalization process; (4) follow up with U.S. Army Counsel to determine whether the basic training ship date can be added to the portal, shared between DOD and USCIS, at the time the MSSD is uploaded; (5) discuss with USCIS whether knowledge of the basic training ship date would help USCIS naturalize MAVNIs with completed MSSDs before they ship to basic training. Signed by Magistrate Judge Robin M. Meriweather on 05/15/2018. (lcrm1) (Entered: 05/15/2018)

05/16/2018

144 TRANSCRIPT OF TELEPHONE CONFERENCE before Magistrate Judge Robin M. Meriweather, held on 4/30/18. Page Numbers: 1-40. Date of Issuance: 5/16/18. Court Reporter/Transcriber: Sara Wick, Telephone number 202-354-3284. Tape Number: N/A. Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 6/6/2018. Redacted Transcript Deadline set for 6/16/2018. Release of Transcript Restriction set for 8/14/2018.(Wick, Sara) (Entered: 05/16/2018)

05/18/2018

145 Supplemental RESPONSE to Court's 135 Order by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1 - Former Class Members, # 2 Exhibit 2 - Amended DoD Report, # 3 Exhibit 3 - Amended USCIS Report)(Perez, Elianis) Modiﬁed on 5/21/2018 to correct docket text (jf). (Entered: 05/18/2018)

05/21/2018

146 RESPONSE re 141 MOTION to Compel Details Regarding Defendants' Redactions within USCIS CAR at 7 ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Renaud Declaration)(Shefﬁeld, Carlton) (Entered: 05/21/2018)

05/21/2018

Minute Entry for proceedings held before Magistrate Judge Robin M. Meriweather on 5/21/18 : Telephone Conference held. Further Telephone Conference set for 5/31/18 at 10:30 AM in Courtroom 7 before Magistrate Judge Robin M. Meriweather. Minute order to be issued. Court Reporter: FTR Gold - Ctrm. 7; FTR Time Frame: 2:09:56 - 3:11:50. Plaintiffs' Counsel: Jennifer Wollenberg, Joseph LoBue and Douglas Baruch; Defendants' Counsel: Colin Kisor, Elianis Perez and Carlton Shefﬁeld. (kk) (Entered: 05/21/2018)

05/22/2018

MINUTE ORDER: It is hereby ORDERED that the parties shall appear for a Telephone Conference on May 31, 2018 at 2:00 PM. It is further ORDERED that Defendants and their counsel shall: (1) continue to work with the DOD and USCIS to explore ways to avoid the need for two FBI background checks; (2) seek further information from USCIS sufﬁcient to enable counsel to explain to the Court why providing USCIS with MANVI ship dates would not help USCIS to more efﬁciently schedule naturalization interviews; (3) confer with USCIS about drafting an email or other communication from the ﬁeld directorate to the ﬁeld ofﬁces that reinforces the July 7th Policy and reiterates that the processing of naturalization applications, including scheduling naturalization interviews for MANVIs, should not be delayed; and (4) respond to Plaintiffs' counsel regarding the solutions proposed in Plaintiffs' May 21, 2018 email to Chambers in an effort to work towards mutually agreeable solutions. Signed by Magistrate Judge Robin M. Meriweather on 05/22/2018. (lcrm1) (Entered: 05/22/2018)

05/23/2018

147 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 05/23/2018)

05/24/2018

CORRECTED MINUTE ORDER: It is hereby ORDERED that the parties shall appear for a Telephone Conference on May 31, 2018 at 10:30 AM. It is further ORDERED that Defendants and their counsel shall: (1) continue to work with the DOD and USCIS to explore ways to avoid the need for two FBI background checks; (2) seek further information from USCIS sufﬁcient to enable counsel to explain to the Court why providing USCIS with MANVI ship dates would not help USCIS to more efﬁciently schedule naturalization interviews; (3) confer with USCIS about drafting an email or other communication from the ﬁeld directorate to the ﬁeld ofﬁces that reinforces the July 7th Policy and reiterates that the processing of naturalization applications, including scheduling naturalization interviews for MANVIs, should not be delayed; and (4) respond to Plaintiffs' counsel regarding the solutions proposed in Plaintiffs' May 21, 2018 email to Chambers in an effort to work towards mutually agreeable solutions. Signed by Magistrate Judge Robin M. Meriweather on 05/24/2018. (lcrm1) (Entered: 05/24/2018)

05/29/2018

148 REPLY to opposition to motion re 141 MOTION to Compel Details Regarding Defendants' Redactions within USCIS CAR at 7 ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (LoBue, Joseph) (Entered: 05/29/2018)

05/31/2018

149 TRANSCRIPT OF AUDIO-RECORDED TELEPHONE CONFERENCE PROCEEDINGS before Magistrate Judge Robin M. Meriweather held on May 21, 2018; Page Numbers: 1-45. Date of Issuance: May 31, 2018. Court Reporter/Transcriber: William Zaremba; Telephone number: (202) 354-3249. Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, PDF or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 6/21/2018. Redacted Transcript Deadline set for

7/1/2018. Release of Transcript Restriction set for 8/29/2018.(wz) (Entered: 05/31/2018)

05/31/2018

Minute Entry for proceedings held before Magistrate Judge Robin M. Meriweather on 5/31/18 : Telephone Conference held. Minute order to be issued. Plaintiffs' Counsel: Jennifer Wollenberg, Joseph LoBue and Douglas Baruch; Defendants' Counsel: Colin Kisor, Elianis Perez and Carlton Shefﬁeld. Court Reporter: FTR Gold - Ctrm. 7; FTR Time Frame: 10:41:33 - 11:24:44. (kk) (Entered: 05/31/2018)

05/31/2018

MINUTE ORDER: It is hereby ORDERED that, by close of business on June 1, 2018, Defendants shall submit by electronic mail to the Meriweather Chambers account responses to the following questions: (1) Is there any information in Defendants' May 31, 2018 email to chambers that would prevent it from being ﬁled on the public record without redactions, and if so, how much time would defense counsel need to work with the relevant agencies to redact that information so that it can be ﬁled on the public record?; and (2) What privileges or other protections does Defendant USCIS rely upon in refusing to disclose the May 17, 2018 internal Guidance (identiﬁed in Defendants' May 31, 2018 email to chambers) to Plaintiffs and/or Plaintiffs' counsel, given the 123 Protective Order already entered in this case? Signed by Magistrate Judge Robin M. Meriweather on 05/31/2018. (lcrm1) (Entered: 05/31/2018)

06/04/2018

150 ORDER: ORDER setting a status conference for June 20, 2018 at 2:15 p.m. in Courtroom 23A, setting a brieﬁng schedule for the status conference, and referring matters to Magistrate Judge Meriweather as part of the pending referral, ECF No. 135 . See ORDER for details. Signed by Judge Ellen S. Huvelle on June 4, 2018. (lcesh1) (Entered: 06/04/2018)

06/04/2018

Set/Reset Deadlines/Hearings: Memorandum due by 6/11/2018 at 12:00 p.m. Response due by 6/14/2018 at 12:00 p.m. Status Conference set for 6/20/2018 at 2:15 PM in Courtroom 23A before Judge Ellen S. Huvelle. (gdf) (Entered: 06/04/2018)

06/05/2018

MINUTE ORDER: It is hereby ORDERED that, by close of business on June 7, 2018, Defendants shall submit an unredacted copy of USCIS CAR at 7 to chambers for in camera review. It is further ORDERED that Plaintiffs, on June 6, 2018, shall ﬁle, as a supplement to their 148 Reply to Defendants' Opposition to Plaintiffs' Motion to Compel Details Regarding Defendants Redactions Within USCIS CAR at 7, the full text of the email thread that is quoted on pages 2 and 3 of their Reply. Signed by Magistrate Judge Robin M. Meriweather on 06/06/2018. (lcrm1) (Entered: 06/05/2018)

06/06/2018

151 SUPPLEMENTAL MEMORANDUM to re 148 Reply to opposition to Motion, ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Exhibit 1)(LoBue, Joseph) (Entered: 06/06/2018)

06/06/2018

Set/Reset Deadlines: Defendants' In-Camera Submission due by 6/7/18. (kk) (Entered: 06/06/2018)

06/06/2018

152 ENTERED IN ERROR.....STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) Modiﬁed on 7/2/2018, document was reﬁled with exhibits as 153 (zrdj). (Entered: 06/06/2018)

06/06/2018

153 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A, Class Members, # 2 Exhibit B, Naturalized Former Class Members)(Perez, Elianis) (Entered: 06/06/2018)

06/06/2018

MINUTE ORDER: It is hereby ordered that, on or before June 11, 2018, Defendants shall submit the portions of the USCIS May 17, 2018 Guidance that relate to the processing of MAVNI applications to the Court for in camera review, including without limitation the portions of the Guidance that were paraphrased in Defendants' May 31, 2018 email to chambers. Signed by Magistrate Judge Robin M. Meriweather on 06/06/2018. (lcrm1) (Entered: 06/06/2018)

06/11/2018

154 RESPONSE TO ORDER OF THE COURT re 150 Order, ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(LoBue, Joseph) (Entered: 06/11/2018)

06/11/2018

155 ERRATA by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE 154 Response to Order of the Court, ﬁled by SHU CHENG, WANJING LI, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, PRASHANTH BATCHU, LUCAS CALIXTO, KUSUMA NIO, JAE SEONG PARK, YE LIU, EMEKA UDEIGWE, SEUNG JOO HONG. (LoBue, Joseph) (Entered: 06/11/2018)

06/14/2018

156 RESPONSE TO ORDER OF THE COURT re 150 Order, ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 06/14/2018)

06/15/2018

157 ERRATA to Defendants' Response (ECF No. 156) by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY 156 Response to Order of the Court, ﬁled by JAMES MCCAMENT, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, JAMES MATTIS, ELAINE DUKE, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, L. FRANCIS CISSNA, UNITED STATES DEPARTMENT OF DEFENSE, JOHN KELLY. (Shefﬁeld, Carlton) (Entered: 06/15/2018)

06/19/2018

MINUTE ORDER: It is hereby ORDERED that Plaintiffs' 141 Motion to Compel Details is DENIED. Having considered the parties' submissions and applicable law, and after reviewing in camera an unredacted version of page 7 of the USCIS Certiﬁed Administrative Record (CAR), the Court ﬁnds that Defendants have provided sufﬁcient information to demonstrate that the attorney client privilege justiﬁes Defendants' redaction of portions of paragraphs 4 and 5 of CAR at 7. The Court will further explain the basis for its ruling in a memorandum opinion, which will be issued at a later date. SO ORDERED. Signed by Magistrate Judge Robin M. Meriweather on 06/19/2018. (lcrm1) (Entered: 06/19/2018)

06/20/2018

158 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 06/20/2018)

06/20/2018

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 6/20/2018. Oral Order denying without prejudice 116 MOTION to Dismiss Second Amended Complaint, MOTION for Summary Judgment. Plaintiffs' summary judgment motion due by 8/13/2018. Defendants' cross motion and response to motion for summary judgment due by 9/14/2018. Plaintiffs' response to cross motion and reply to motion for summary judgment due by 10/12/2018. Defendants' reply to cross motion due by 11/4/2018. Order forthcoming via Chambers. (Court Reporter: Lisa Moreira) (gdf) (Entered: 06/20/2018)

06/20/2018 159 ORDER denying 116 Motion to Dismiss; denying 116 Motion for Summary Judgment: See ORDER for details. Signed by Judge Ellen S. Huvelle on June 20, 2018. (lcesh1) (Entered: 06/20/2018)

06/20/2018

Set/Reset Deadlines: Defendants ﬁle a notice with Court explaining form equivalent to a Form DD-214 by 7/20/2018. (gdf) (Entered: 06/21/2018)

06/21/2018

MINUTE ORDER: It is hereby ORDERED that, on or before June 27, 2018, Defendants shall ﬁle a memorandum setting out their position on the admissibility of the May 17, 2018 USCIS Guidance as an appendix to Plaintiffs' Motion for Summary Judgement. This memorandum shall speciﬁcally assert which privileges, in any, Defendants contend protect the May 17, 2018 USCIS Guidance from disclosure to Plaintiffs' counsel. Plaintiffs shall ﬁle their response to Defendants' memorandum on or before July 3, 2018 at 5:00 PM. No reply is authorized. Signed by Magistrate Judge Robin M. Meriweather on 06/21/2018. (lcrm1) (Entered: 06/21/2018)

06/21/2018

Set/Reset Deadlines: Plaintiffs' Response to Defendants' Memorandum regarding admissibility due by 5:00 PM on 7/3/18. (kk) (Entered: 07/03/2018)

06/22/2018

160 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Robin M. Meriweather held on 5-14-2018; Page Numbers: 1 - 48. Date of Issuance: 6-22-2018. Court Reporter/Transcriber Elizabeth SaintLoth, Telephone number 202-354-3242, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court re porter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 7/13/2018. Redacted Transcript Deadline set for 7/23/2018. Release of Transcript Restriction set for 9/20/2018.(Saint-Loth, Elizabeth) (Entered: 06/22/2018)

06/26/2018

161 TRANSCRIPT OF STATUS CONFERENCE before Judge Ellen S. Huvelle held on June 20, 2018; Page Numbers: 1-87. Date of Issuance:June 26, 2018. Court Reporter/Transcriber Lisa A. Moreira, RDR, CRR, Telephone number (202) 354-3187, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the cour t reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 7/17/2018. Redacted Transcript Deadline set for 7/27/2018. Release of Transcript Restriction set for 9/24/2018.(Moreira, Lisa) (Entered: 06/26/2018)

06/27/2018

162 RESPONSE TO ORDER OF THE COURT re Order,,, Set Deadlines,, regarding USCIS May 2018 guidance ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Kisor, Colin) (Entered: 06/27/2018)

06/28/2018

MINUTE ORDER: Defendants' 162 Memorandum Regarding the Admissibility of the May 17, 2018 Internal Guidance notes that if the Court orders that the Guidance be disclosed to Plaintiffs, signiﬁcant portions of the document would need to be redacted due to various privileges; Defendants fail to indicate with speciﬁcity which sections would require redactions or which privileges would apply. As the existence and scope of privileges is germane to the Court's assessment of whether the Guidance should be disclosed to Plaintiffs, the Court needs additional information to resolve the referred issue. It is therefore ORDERED that, on or before July 9, 2018, Defendants shall submit to the chambers of Magistrate Judge Meriweather, for in camera review, a new copy of the May 17th Guidance that includes precise annotations identifying which sections of the document Defendants believe should be redacted and clearly identiﬁes the privilege(s) on which each proposed redaction is based. It is further ORDERED that Defendants shall also submit for in camera review, on or before July 9, 2018, any declaration or other documents necessary to formally assert the relevant privilege(s); if the declaration contains privileged information, Defendants shall prepare a redacted version for service upon Plaintiffs. SO ORDERED. Signed by Magistrate Judge Robin M. Meriweather on 06/28/2018. (lcrm1) (Entered: 06/28/2018)

06/28/2018

Set/Reset Deadlines: Plaintiffs' and Defendants' In-Camera Submissions due by 7/9/18. (kk) (Entered: 07/03/2018)

06/29/2018

MINUTE ORDER: Plaintiffs' Response to Defendants' 162 Memorandum Regarding the Admissibility of the May 17, 2018 Internal Guidance shall remain due on July 3, 2018. The Court will evaluate whether Plaintiffs should submit additional brieﬁng after it reviews Defendants' July 9, 2018 in camera submission and any accompanying declaration(s). SO ORDERED. Signed by Magistrate Judge Robin M. Meriweather on 06/29/2018. (lcrm1) (Entered: 06/29/2018)

06/30/2018

163 NOTICE OF RELATED CASE by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. Case related to Case No. 1:18-cv-01551. (LoBue, Joseph) (Entered: 06/30/2018)

07/03/2018

164 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 07/03/2018)

07/03/2018

165 RESPONSE TO ORDER OF THE COURT re Order,,, Set Deadlines,, Order, ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (LoBue, Joseph) (Entered: 07/03/2018)

07/11/2018

MINUTE ORDER: It is hereby ORDERED that Defendants shall ﬁle on the public docket the PDF ﬁle attached to Defendants' May 31, 2018 email to chambers, as well as the declaration attached to Defendants' July 9, 2018 email to chambers, on or before July 13, 2018. If the declaration contains privileged information, Defendants may ﬁle the redacted version served upon Plaintiffs. Signed by Magistrate Judge Robin M. Meriweather on 07/11/2018. (lcrm1) (Entered: 07/11/2018)

07/12/2018

166 RESPONSE TO ORDER OF THE COURT re Order,, Set Deadlines, ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Perez, Elianis) (Entered: 07/12/2018)

07/12/2018

MINUTE ORDER: The Court previously ordered Defendants to produce for in camera review a copy of a May 2018 USCIS internal guidance, and to annotate that guidance to identify the basis for any proposed redactions or assertions of privilege. The original and annotated copies of that guidance provided to the Court include redactions of information that USCIS has deemed "not relevant." As Defendants' briefs, declaration, and privilege log do not fully explain why the redacted text is not relevant to the instant litigation, and recognizing that Defendants' assessment of relevance may differ from the Court's, it is hereby ORDERED that Defendants shall submit a wholly unredacted copy of the updated version of the May 2018 USCIS Guidance to the chambers of Magistrate Judge Meriweather, on or before July 13, 2018, for in camera review. Signed by Magistrate Judge Robin M. Meriweather on 07/12/2018. (lcrm1) Modiﬁed on 7/12/18 (kk). (Entered: 07/12/2018)

07/12/2018

NOTICE OF CORRECTED DOCKET ENTRY: The 7/12/18 entry on the docket regarding an in camera submission to be made by Defendants to Magistrate Judge Meriweather's Chambers by 7/13/18 was corrected to reﬂect that it was a "Minute Order". (kk) (Entered: 07/12/2018)

07/16/2018 167 MEMORANDUM OPINION, signed by Magistrate Judge Robin M. Meriweather on 07/16/2018. (lcrm1) (Entered: 07/16/2018)

07/16/2018 168 ORDER re Admissibility of May 18, 2018 Guidance. See Order for details. Signed by Magistrate Judge Robin M. Meriweather on 07/16/2018. (lcrm1) (Entered: 07/16/2018)

07/17/2018

MINUTE ORDER: Judge Huvelle's 150 June 4, 2018 Order referred this matter to Magistrate Judge Robin M. Meriweather, in part, to address speciﬁc issues relating to Defendants' monthly reporting. It is therefore ORDERED that the parties shall ﬁle memoranda which concisely set forth their positions regarding (1) the completeness and accuracy of Defendants' monthly reporting with regards to Nio class members Plaintiffs believe are being omitted from the monthly reports, and (2) the completeness and accuracy of Defendants' monthly reporting with regards to Defendants' equating the MSSD completion date with the date DOD uploads an MSSD completion date to the shared portal with USCIS; and (3) what changes to the current monthly reporting system are necessary to ensure that the reports reﬂect an exact number of Nio class members who, since Defendants' last monthly report, have naturalized, been scheduled for a USCIS naturalization interview, and/or received an MSSD determination uploaded to the shared portal with USCIS. Plaintiffs' memorandum shall be due on or before July 23, 2018, and Defendants' Response shall be due on or before July 30, 2018. No reply is authorized. SO ORDERED. Signed by Magistrate Judge Robin M. Meriweather on 07/17/2018. (lcrm1) (Entered: 07/17/2018)

07/17/2018

MINUTE ORDER: It is hereby ORDERED that Plaintiffs may reply to Defendants' 166 written responses to Plaintiffs' proposals to limit the alleged delay in processing MAVNI applicants. Plaintiffs shall ﬁle their reply on or before July 25, 2018. Defendants may ﬁle a response within 5 days of Plaintiffs' ﬁling. The ﬁlings shall be made through CM/ECF. Signed by Magistrate Judge Robin M. Meriweather on 07/17/2018. (lcrm1) (Entered: 07/17/2018)

07/18/2018

169 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 07/18/2018)

07/18/2018

Set/Reset Deadlines : Plaintiffs' Reply to Defendants' Responses to Plaintiffs' proposals regarding processing of MAVNI applicants due by 7/25/18. (kk) (Entered: 07/18/2018)

07/20/2018

170 STATUS REPORT 7.20.18 REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 07/20/2018)

07/23/2018

171 NOTICE ordered by the Court by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 159 Order on Motion to Dismiss, Order on Motion for Summary Judgment (Attachments: # 1 Appendix army regulation, # 2 Appendix discharge order)(Kisor, Colin) (Entered: 07/23/2018)

07/23/2018

172 RESPONSE TO ORDER OF THE COURT re Order,,,,,, Set Deadlines,,,,, ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (LoBue, Joseph) (Entered: 07/23/2018)

07/25/2018

173 RESPONSE TO ORDER OF THE COURT re Order,, Set Deadlines, ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(LoBue, Joseph) (Entered: 07/25/2018)

07/30/2018

174 RESPONSE re 172 Response to Order of the Court, 173 Response to Order of the Court, ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Perez, Elianis) (Entered: 07/30/2018)

08/01/2018

175 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 08/01/2018)

08/13/2018

176 NOTICE of Appearance by Kayla M.S. Kaplan on behalf of PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Kaplan, Kayla) (Entered: 08/13/2018)

08/13/2018

MINUTE ORDER: It is hereby ORDERED that a telephone conference call is set for Wednesday, August 15, 2018, at 1:00 pm. Signed by Judge Ellen S. Huvelle on August 13, 2018. (lcesh1) (Entered: 08/13/2018)

08/13/2018

177 MOTION for Partial Summary Judgment by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Text of Proposed Order)(Baruch, Douglas) Modiﬁed event title on 8/14/2018 (znmw). (Entered: 08/13/2018)

08/15/2018

178 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 08/15/2018)

08/15/2018

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone Conference held in Chambers on 8/15/2018. (Court Reporter: Lisa Grifﬁth) (gdf) (Entered: 08/15/2018)

08/15/2018

MINUTE ORDER: It is hereby ORDERED that the deadline for defendants to ﬁle their next six-week report in accordance with this Court's June 20, 2018 Order, ECF No. 159 , shall be extended until September 6, 2018. It is further ORDERED that beginning on September 6, 2018, defendants' six-week reports shall include the following additional information: 1) for each class member whose MSSD has been completed, the defendants shall report whether those results were favorable or unfavorable, and 2) for each class member who has been issued a discharge order from the U.S. Army Recruiting Command (USAREC) and/or U.S. Army Reserve Command (USARC), defendants shall report the effective date of their discharge order(s) and if their discharge order(s) have been or will be revoked. Defendants' other reporting requirements shall continue in accordance with this Court's prior orders. Signed by Judge Ellen S. Huvelle on August 15, 2018. (lcesh1) (Entered: 08/15/2018)

08/16/2018

Set/Reset Deadlines: Six week report due by 9/6/2018 (gdf) (Entered: 08/16/2018)

08/29/2018

179 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 08/29/2018)

09/05/2018

180 MOTION for Extension of Time to File Monthly Status Report, MOTION for Protective Order Expand (ECF No. 123) by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Perez, Elianis) (Entered: 09/05/2018)

09/05/2018

MINUTE ORDER: It is hereby ORDERED that a hearing regarding the pending motions in the following three matters is scheduled for Wednesday, October 3, 2018 at 2:30 p.m. in Courtroom 23A: Nio v. United States Department of Homeland Security, No. 1:17-cv-00998ESH-RMM; Calixto v. United States Department of the Army, No. 1:18cv-01551-ESH; and Kirwa v. United States Department of Defense, No. 1:17-cv-01793-ESH-RMM. It is further ORDERED that in advance of this hearing, the parties in Nio and Calixto shall meet and confer to reach agreement upon a protective order to govern the use of the information reported by defendants in those matters. Signed by Judge Ellen S. Huvelle on September 5, 2018. (lcesh1) (Entered: 09/05/2018)

09/06/2018

181 RESPONSE re 180 MOTION for Extension of Time to File Monthly Status Report MOTION for Protective Order Expand (ECF No. 123) ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Baruch, Douglas) (Entered: 09/06/2018)

09/06/2018

MINUTE ORDER granting in part 180 Motion for Extension of Time to File. It is hereby ORDERED that defendants have until September 13, 2018 at 12:00 p.m. to ﬁle their monthly report. Signed by Judge Ellen S. Huvelle on September 6, 2018. (lcesh1) (Entered: 09/06/2018)

09/07/2018

Set/Reset Deadlines/Hearings: Status Report due by 9/13/2018 Motion Hearing set for 10/3/2018 at 02:30 PM in Courtroom 23A before Judge Ellen S. Huvelle. (tj) (Entered: 09/07/2018)

09/12/2018

182 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 09/12/2018)

09/12/2018

183 MOTION for Leave to File PORTIONS OF THE SIX-WEEK REPORT EX PARTE, FOR REVIEW IN CAMERA by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Perez, Elianis) Modiﬁed event title on 9/13/2018 (znmw). (Entered: 09/12/2018)

09/13/2018

184 STATUS REPORT September 13, 2018 by ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 09/13/2018)

09/14/2018

185 NOTICE OF WITHDRAWAL OF APPEARANCE as to L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. Attorney Sarah Lake Vuong terminated. (Vuong, Sarah) (Entered: 09/14/2018)

09/14/2018

186 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Shefﬁeld, Carlton) (Entered: 09/14/2018)

09/14/2018

187 Memorandum in opposition to re 177 MOTION for Partial Summary Judgment ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (See docket entry no. 186 to view document.) (ztd) (Entered: 09/18/2018)

09/19/2018

188 RESPONSE re 184 Status Report to Defendants' September 13, 2018 Ex Parte Communication ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Baruch, Douglas) (Entered: 09/19/2018)

09/19/2018

MINUTE ORDER: Plaintiffs have opposed 183 defendants' request to ﬁle portions of the six-week report ex parte for in camera review. Plaintiffs request that, prior to the Court's scheduled 10/3/18 hearing, defendants provide a version of the 9/13/18 six-week report that identiﬁes the total numbers of favorable and unfavorable MSSDs, the total number of discharges, and the total number of discharges that have not been revoked and will not be revoked (and the effective discharge dates that correspond with those unrevoked discharges). (Defendants notiﬁed the Court today via email that the names of class members who have naturalized were inadvertently omitted and that information has been provided to plaintiffs.) No later than 5:00 PM on 9/21/2018, defendants are directed to indicate in a notice ﬁled on the docket whether they object to producing the requested information prior to the 10/3/18 hearing before the Court. If no objection is ﬁled, that information shall be ﬁled no later than 12:00 PM on 9/26/18. Signed by Judge Ellen S. Huvelle on 9/19/18. (lcesh2) Modiﬁed on 9/19/2018 to correct typographical errors (AG). (Entered: 09/19/2018)

09/19/2018

189 Memorandum in opposition to re 180 MOTION for Extension of Time to File Monthly Status Report MOTION for Protective Order Expand (ECF No. 123) ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Exhibit 1)(Baruch, Douglas) (Entered: 09/19/2018)

09/19/2018

Set/Reset Deadlines: Notice by 9/21/18. (gdf) (Entered: 09/20/2018)

09/21/2018

190 NOTICE DEFENDANTS NOTICE RE: SEPTEMBER 19, 2018, MINUTE ORDER by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 183 MOTION for Leave to File (Shefﬁeld, Carlton) (Entered: 09/21/2018)

09/25/2018

191 RESPONSE re 190 Notice (Other), ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Baruch, Douglas) (Entered: 09/25/2018)

09/26/2018

192 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 09/26/2018)

09/26/2018

193 RESPONSE TO ORDER OF THE COURT re Order,,,, ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 09/26/2018)

10/02/2018

194 NOTICE OF (1) PROPOSED PROTECTIVE ORDER LANGUAGE AND (2) UPDATES FOR OCTOBER 3 CONFERENCE by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(Baruch, Douglas) (Entered: 10/02/2018)

10/03/2018

195 NOTICE OF WITHDRAWAL OF APPEARANCE as to PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. Attorney Joseph J. LoBue terminated. (Baruch, Douglas) (Entered: 10/03/2018)

10/03/2018

MINUTE ORDER amending brieﬁng schedule set forth in 159 the Court's Order. As discussed at the Court's hearing held on 10/3/2018, plaintiffs' opposition and reply is due 10/19/18. Defendants' reply is due 11/13/18. Signed by Judge Ellen S. Huvelle on 10/3/18. (lcesh2) (Entered: 10/03/2018)

10/03/2018

Set/Reset Deadlines: Plaintiff's opposition and reply due by 10/19/2018. Defendants' reply due by 11/13/2018. (gdf) (Entered: 10/04/2018)

10/05/2018

196 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 8-15-18; Page Numbers: 1-16. Date of Issuance:10-5-18. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 10/26/2018. Redacted Transcript Deadline set for 11/5/2018. Release of Transcript Restriction set for 1/3/2019.(Grifﬁth, Lisa) (Entered: 10/05/2018)

10/05/2018

197 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 10-3-18; Page Numbers: 1-69. Date of Issuance:10-5-18. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 10/26/2018. Redacted Transcript Deadline set for 11/5/2018. Release of Transcript Restriction set for 1/3/2019.(Grifﬁth, Lisa) (Entered: 10/05/2018)

10/05/2018

198 ORDER. Defendants' 183 motion for leave to ﬁle portions of the six-week report ex parte for in camera review is DENIED as moot. Defendants' 180 motion to expand the protective order is DENIED as moot. See Order for further details and ﬁling deadlines. Signed by Judge Ellen S. Huvelle on October 5, 2018. (lcesh1) (Entered: 10/05/2018)

10/05/2018 199 PROTECTIVE ORDER regarding court-ordered reporting. Signed by Judge Ellen S. Huvelle on October 5, 2018. (lcesh1) (Entered: 10/05/2018)

10/05/2018

Set/Reset Deadlines: Status Report due by 10/25/2018 (gdf) (Entered: 10/09/2018)

10/09/2018

200 ENTERED IN ERROR.....TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 8-15-18; Page Numbers: 1-16. Date of Issuance:10-9-18. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 10/30/2018. Redacted Transcript Deadline set for 11/9/2018. Release of Transcript Restriction set for 1/7/2019.(Grifﬁth, Lisa) Modiﬁed on 10/9/2018 document was duplicate of docket entry number 196 (rj). (Entered: 10/09/2018)

10/10/2018

201 STATUS REPORT Bi-Weekly by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 10/10/2018)

10/10/2018

202 Monthly STATUS REPORT 9.13.18 Redacted Report by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - Summary, # 2 Exhibit B - Pending Applications, # 3 Exhibit C- Naturalized Class Members, # 4 Exhibit D- Denied Applications, # 5 Exhibit E Administratively Closed)(Perez, Elianis) (Entered: 10/10/2018)

10/10/2018

203 RESPONSE TO ORDER OF THE COURT re 198 Order on Motion for Protective Order,, Order on Motion for Leave to File, ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 10/10/2018)

10/19/2018

204 MOTION to Strike 186 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Text of Proposed Order)(Baruch, Douglas) (Entered: 10/19/2018)

10/19/2018

205 REPLY to opposition to motion re 177 MOTION for Partial Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Text of Proposed Order) (Baruch, Douglas) Modiﬁed link on 10/23/2018 (znmw). (Entered: 10/19/2018)

10/19/2018

206 Memorandum in opposition to re 186 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (See Docket Entry 205 to view document). (znmw) (Entered: 10/23/2018)

10/23/2018

207 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 3-26-18; Page Numbers: 1-34. Date of Issuance:10-23-18. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 11/13/2018. Redacted Transcript Deadline set for 11/23/2018. Release of Transcript Restriction set for 1/21/2019.(Grifﬁth, Lisa) (Entered: 10/23/2018)

10/24/2018

208 STATUS REPORT Bi-Weekly by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 10/24/2018)

10/24/2018

209 RESPONSE re 204 MOTION to Strike 186 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 10/24/2018)

10/25/2018

210 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - Summary of Statistics, # 2 Exhibit B- Pending N-400 Applications, # 3 Exhibit C - Naturalized Class Members, # 4 Exhibit D Denied N-400 Applications)(Perez, Elianis) (Entered: 10/25/2018)

10/29/2018

211 REPLY to opposition to motion re 204 MOTION to Strike 186 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Baruch, Douglas) (Entered: 10/29/2018)

10/30/2018

212 Amended STATUS REPORT 10.25.18 by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - Summary of Statistics, # 2 Exhibit B- Pending N-400 Applications, # 3 Exhibit C - Naturalized Class Members, # 4 Exhibit D - Denied N-400 Applications)(Perez, Elianis) (Entered: 10/30/2018)

10/31/2018

213 NOTICE Of DoD Memorandum by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit A - Memo)(Perez, Elianis) (Entered: 10/31/2018)

11/07/2018

214 STATUS REPORT 11.7.18 Bi-Weekly by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 11/07/2018)

11/08/2018

215 ORDER granting in part 204 Motion to Strike. No later than 11/9/18 plaintiffs shall ﬁle on the docket an updated index to the USCIS administrative record in this case. No later than 11/21/18 defendants shall re-ﬁle 186 their cross-motion and opposition, including a statement of facts consistent with Local Civil Rule 7(h)(2). If plaintiffs wish to reﬁle 205 their opposition and reply they must do so no later than 11/30/18. The deadline for defendants' reply is extended to 12/7/18. See order for details. Signed by Judge Ellen S. Huvelle on 11/8/18. (lcesh2) (Entered: 11/08/2018)

11/09/2018

Set/Reset Deadlines:Updated index due by 11/9/2018. Cross Motion and Response due by 11/21/2018. Response to Cross Motion and Reply due by 11/30/2018. Reply to Cross Motions due by 12/7/2018. (gdf) (Entered: 11/09/2018)

11/09/2018

216 NOTICE OF FILING by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE re 215 Order on Motion to Strike,,, Set/Reset Deadlines,, (Attachments: # 1 Index of Administrative Record, # 2 Index of Plaintiffs' Appendix)(Baruch, Douglas) (Entered: 11/09/2018)

11/13/2018

MINUTE ORDER: It is hereby ORDERED that a status conference is scheduled for Wednesday, November 14, 2018 at 3:00 p.m. in Courtroom 23A to discuss the parties' summary judgment pleadings in Nio v. U.S. Dep't of Homeland Security, No. 17-cv-998, and plaintiffs' motion for clariﬁcation, ECF No. 51, in Calixto v U.S. Dep't of the Army, No. 18cv-1551. Signed by Judge Ellen S. Huvelle on 11/13/18. (lcesh2) (Entered: 11/13/2018)

11/14/2018

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 11/14/2018. Order forthcoming via chambers. (Court Reporter Lisa Grifﬁth) (gdf) (Entered: 11/14/2018)

11/15/2018

217 ORDER amending 215 the Court's order of 11/8/18. Defendants shall ﬁle their cross-motion and opposition on or before 11/30/18. Plaintiffs shall ﬁle their opposition and reply on or before 12/21/18. Defendants shall ﬁle their reply on or before 1/9/19. The deadline for defendants' next six-week report is extended to 12/13/18. See order for details. Signed by Judge Ellen S. Huvelle on 11/15/18. (lcesh2) (Entered: 11/15/2018)

11/15/2018

Set/Reset Deadlines: Cross Motion and response due by 11/30/2018. Response to Cross Motion and Reply due by 12/21/2018. Reply to Cross Motions due by 1/9/2019. (gdf) (Entered: 11/16/2018)

11/21/2018

218 STATUS REPORT 11.21.18 Bi-Weekly by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 11/21/2018)

11/30/2018

219 Cross MOTION for Summary Judgment by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Shefﬁeld, Carlton) Modiﬁed on 12/3/2018 to correct docket text (jf). (Entered: 11/30/2018)

11/30/2018

220 Memorandum in opposition to re 177 MOTION for Partial Summary Judgment ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (See Docket Entry 219 to view document) (jf) (Entered: 12/03/2018)

12/05/2018

221 STATUS REPORT 12.5.2018 - Bi-Weekly by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 12/05/2018)

12/12/2018

222 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 11-14-18; Page Numbers: 1-96. Date of Issuance:12-12-18. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 1/2/2019. Redacted Transcript Deadline set for 1/12/2019. Release of Transcript Restriction set for 3/12/2019.(Grifﬁth, Lisa) (Entered: 12/12/2018)

12/12/2018

223 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 11-7-18; Page Numbers: 1-47. Date of Issuance:12-12-18. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 1/2/2019. Redacted Transcript Deadline set for 1/12/2019. Release of Transcript Restriction set for 3/12/2019.(Grifﬁth, Lisa) (Entered: 12/12/2018)

12/13/2018

224 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - Summary of Statistics, # 2 Exhibit B- Pending N-400 Applications, # 3 Exhibit C - Naturalized Class Members, # 4 Exhibit D Denied Applications)(Perez, Elianis) (Entered: 12/13/2018)

12/19/2018

225 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Perez, Elianis) (Entered: 12/19/2018)

12/21/2018

226 MOTION to Strike 219 Cross MOTION for Summary Judgment (Portions) by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Text of Proposed Order)(Baruch, Douglas) (Entered: 12/21/2018)

12/21/2018

227 REPLY to opposition to motion re 177 MOTION for Partial Summary Judgment and Oppositon to 219 Defendants' Cross Motion for Summary Judgment ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Attachments: # 1 Text of Proposed Order) (Baruch, Douglas) (Entered: 12/21/2018)

12/21/2018

229 Memorandum in opposition to re 219 Cross MOTION for Summary Judgment ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (See docket entry no. 227 to view.) (ztd) Modiﬁed ﬁled date on 12/28/2018 (znmw). (Entered: 12/27/2018)

12/26/2018

228 MOTION to Stay re 226 MOTION to Strike 219 Cross MOTION for Summary Judgment (Portions) , MOTION for Extension of Time to File Opposition (ECF No. 226) by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Perez, Elianis) (Entered: 12/26/2018)

12/27/2018

MINUTE ORDER granting 228 Defendants' Motion for a Stay of Defendants' Opposition to 226 Plaintiffs' Motion to Strike. The deadline for defendants to oppose the motion to strike, currently January 4, 2019, is hereby extended commensurate with the duration of the lapse in government appropriations to the Department of Justice. Sua sponte, the Court also hereby extends the deadline for the government's ﬁnal reply brief in support of its 219 Cross-Motion for Summary Judgment, currently due January 9, 2019, commensurate with the duration of the lapse in appropriations. Signed by Judge Ellen S. Huvelle on 12/27/18. (lcesh2) (Entered: 12/27/2018)

01/02/2019

230 MOTION for Extension of Time to File Bi-Weekly Report, MOTION to Stay Lapse in Appropriations by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE (Perez, Elianis) (Entered: 01/02/2019)

01/02/2019

231 Memorandum in opposition to re 230 MOTION for Extension of Time to File Bi-Weekly Report MOTION to Stay Lapse in Appropriations ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Baruch, Douglas) (Entered: 01/02/2019)

01/02/2019

MINUTE ORDER. Having considered 230 defendants' application for a stay in light of lapse of appropriations, and 231 plaintiffs' opposition thereto, the Court hereby grants 230 defendants' motion. Signed by Judge Ellen S. Huvelle on 1/2/19. (lcesh2) (Entered: 01/02/2019)

01/08/2019 232 ORDER regarding defendants' status reports. See Order for details. Signed by Judge Ellen S. Huvelle on 1/8/19. (lcesh2) (Entered: 01/08/2019)

01/08/2019

Set/Reset Deadlines: Status Report due by 1/18/2019 by 12:00 PM. (gdf) (Entered: 01/09/2019)

01/25/2019

MINUTE ORDER. In light of the expected imminent reopening of the federal government, the Court hereby clariﬁes the deadlines for defendants' outstanding pleadings and report, which the Court had stayed in its minute orders of 12/27/18 and 1/2/19 given the recent lapse in government appropriations. The new deadline for defendants to oppose 226 plaintiffs' motion to strike and to ﬁle their ﬁnal reply brief in support of their 219 cross-motion for summary judgment is Friday Feb. 15, 2019. The report described in 232 the Court's Order of Jan. 8, 2019 is due on or before Friday, Feb. 8, 2019 at 12:00 PM. Signed by Judge Ellen S. Huvelle on 1/25/19. (lcesh2) (Entered: 01/25/2019)

01/25/2019

Set/Reset Deadlines: Reply to Cross Motions due by 2/15/2019. Report due by 2/8/2019. Responses due by 2/15/2019 (gdf) (Entered: 01/28/2019)

02/05/2019

233 NOTICE OF SUPPLEMENTAL AUTHORITY by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Exhibit 1)(Baruch, Douglas) (Entered: 02/05/2019)

02/08/2019

234 STATUS REPORT FEBRUARY 8, 2019 by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - SUMMARY, # 2 Exhibit BREDACTED REPORT, # 3 Exhibit C - CODES)(Perez, Elianis) (Entered: 02/08/2019)

02/08/2019

235 ERRATA EXHIBIT C by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY 234 Status Report, ﬁled by L. FRANCIS CISSNA, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, JAMES MATTIS, ELAINE DUKE. (Attachments: # 1 Exhibit C- CODES)(Perez, Elianis) (Entered: 02/08/2019)

02/15/2019

236 Supplemental STATUS REPORT (FEBRUARY 8, 2019 REPORT) by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - ARENDT DECL.)(Perez, Elianis) (Entered: 02/15/2019)

02/15/2019

237 REPLY to opposition to motion re 219 Cross MOTION for Summary Judgment ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 02/15/2019)

02/15/2019

238 RESPONSE re 228 MOTION to Stay re 226 MOTION to Strike 219 Cross MOTION for Summary Judgment (Portions) MOTION for Extension of Time to File Opposition (ECF No. 226) ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 02/15/2019)

02/21/2019 239 ORDER regarding 234 defendants' status report and directing the parties to produce additional documents. See Order for details. Signed by Judge Ellen S. Huvelle on 2/21/19. (lcesh2) (Entered: 02/21/2019)

02/21/2019

ORDER Setting Hearing on Motion. It is hereby ORDERED that a hearing on 219 Cross Motion for Summary Judgment and 177 MOTION for Partial Summary Judgment is set for 3/20/2019 at 01:30 PM in Courtroom 23A before Judge Ellen S. Huvelle. Signed by Judge Ellen S. Huvelle on 2/21/19. (lcesh2) (Entered: 02/21/2019)

02/21/2019

Set/Reset Deadlines: Protective Order due by 3/8/2019. (gdf) (Entered: 02/22/2019)

03/04/2019

240 MEMORANDUM OPINION AND ORDER denying 226 Motion to Strike. See Order for details. Signed by Judge Ellen S. Huvelle on 3/4/19. (lcesh2) Modiﬁed on 3/5/2019, to change document type to Opinion.(gdf). (Entered: 03/04/2019)

03/08/2019

241 NOTICE and Production of Documents in Compliance with February 21, 2019 Court Order by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE re 239 Order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Baruch, Douglas) (Entered: 03/08/2019)

03/08/2019

242 NOTICE of Compliance with Court's February 21, 2019 Order by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 239 Order (Shefﬁeld, Carlton) (Entered: 03/08/2019)

03/14/2019

243 NOTICE of Supplement to Defendants' Notice of Compliance with February 21, 2019 Order by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 242 Notice (Other), 239 Order (Shefﬁeld, Carlton) (Entered: 03/14/2019)

03/20/2019

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Motion Hearing held on 3/20/2019, re 177 MOTION for Partial Summary Judgment and, 219 Cross MOTION for Summary Judgment. (Court Reporter Lisa Grifﬁth) (gdf) (Entered: 03/22/2019)

03/21/2019

MINUTE ORDER. Defendants shall ﬁle a status report no later than April 3, 2019 at 12:00 p.m. providing an update as to defense counsels' consultation with their clients regarding the provision to USCIS of information about MAVNI enlistees. Signed by Judge Ellen S. Huvelle on 3/21/19. (lcesh2) (Entered: 03/21/2019)

03/21/2019

Set/Reset Deadlines: Status Report due by 4/3/2019. (gdf) (Entered: 03/21/2019)

03/24/2019

244 NOTICE of Plaintiffs Notice and Filing of Documents in Compliance with Court Instruction by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5, # 6 Attachment 6, # 7 Attachment 7, # 8 Attachment 8)(Baruch, Douglas) (Entered: 03/24/2019)

04/03/2019

245 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 3-20-19; Page Numbers: 1-110. Date of Issuance:4-3-19. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 4/24/2019. Redacted Transcript Deadline set for 5/4/2019. Release of Transcript Restriction set for 7/2/2019.(Grifﬁth, Lisa) (Entered: 04/03/2019)

04/03/2019

246 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Kisor, Colin) (Entered: 04/03/2019)

04/19/2019

MINUTE ORDER. Defendants are directed to resume the previously ordered six-week, class-wide reporting in this case. The next report is due on or before 12:00 p.m. on Monday, May 6, 2019, and every six weeks thereafter until further notice from the Court. The format should follow the most recent class-wide report, the updated chart ﬁled by defendants on March 8, 2019. Signed by Judge Ellen S. Huvelle on 4/19/19. (lcesh2) (Entered: 04/19/2019)

04/19/2019

Set/Reset Deadlines: Status Report due by 5/6/2019. (gdf) (Entered: 04/21/2019)

05/06/2019

247 STATUS REPORT Six-week report by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Report Summary, # 2 Exhibit Report, # 3 Exhibit Separation Codes)(Shefﬁeld, Carlton) (Entered: 05/06/2019)

05/09/2019

248 Supplemental STATUS REPORT Six-week report by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Report Summary, # 2 Exhibit Report, # 3 Exhibit Separation Codes)(Shefﬁeld, Carlton) (Entered: 05/09/2019)

05/22/2019 249 MEMORANDUM OPINION. Signed by Judge Ellen S. Huvelle on 5/22/19. (lcesh2) (Entered: 05/22/2019)

05/22/2019

250 ORDER granting in part 177 Plaintiffs' Motion for Partial Summary Judgment; denying 219 Defendants' Motion for Summary Judgment; and vacating the MSSD Requirement portion of USCIS's July 7 Guidance. A status conference is set for 6/17/19 at 1:30 p.m. The parties shall meet and confer and ﬁle a joint status report by close of business 6/11/19. See Order for details. Signed by Judge Ellen S. Huvelle on 5/22/19. (lcesh2) (Entered: 05/22/2019)

05/22/2019

Set/Reset Deadlines/Hearings: Status Report due by 6/11/2019 Status Conference set for 6/17/2019 at 1:30 PM in Courtroom 23A before Judg. e Ellen S. Huvelle. (gdf) (Entered: 05/23/2019)

05/23/2019

MINUTE ORDER. Defendants' next six-week report, following the same format as the May 9, 2019 report, is due by 12:00 p.m. on June 14, 2019. Signed by Judge Ellen S. Huvelle on 5/23/19. (lcesh2) (Entered: 05/23/2019)

05/23/2019

Set/Reset Deadlines: Status Report due by 6/14/2019. (zgdf) (Entered: 05/29/2019)

06/11/2019

251 STATUS REPORT of Defendants in response to the Court's May 22, 2019 Order by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 06/11/2019)

06/11/2019

252 NOTICE AND PROPOSAL REGARDING IMPLEMENTATION OF THE COURT'S MEMORANDUM OPINION (DKT. 249) by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Baruch, Douglas) (Entered: 06/11/2019)

06/13/2019

253 Supplemental STATUS REPORT by Defendants in response to the Court's May 22, 2019 Order by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 06/13/2019)

06/14/2019

254 STATUS REPORT Six Week Report by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Report Summary, # 2 Exhibit Report, # 3 Exhibit Separation Codes)(Shefﬁeld, Carlton) (Entered: 06/14/2019)

06/15/2019

255 RESPONSE re 253 Status Report, ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Baruch, Douglas) (Entered: 06/15/2019)

06/17/2019

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 6/17/2019. Order Forthcoming. (Court Reporter Lisa Grifﬁth.) (mac) (Entered: 06/17/2019)

06/17/2019

MINUTE ORDER. The Court will hold a status conference in this case on Monday, 7/15/19, at 2:00 p.m. No later than Thursday, 7/11/19, at 12:00 p.m., defendants are hereby ORDERED to ﬁle a report as to the status of information sharing between USCIS and DOD and USCIS's processing of class members' outstanding naturalization applications. The report shall address the following questions: (1) Of the class members with pending MSSDs, how many CI Report ﬁles have been reviewed by the Army; (2) Of that number, how many ﬁles have been provided to USCIS; (3) Of that number, how many ﬁles could not be or have not been provided to USCIS and why; (4) How many of the ﬁles that were reviewed by the Army contain redactions of third-party classiﬁed information; (5) How many MSSR Reports has DOD CAF provided to USCIS; (6) How many of the ﬁles that were reviewed by the Army have been reviewed by USCIS; and (7) How many of these class members has USCIS scheduled for

interview? Signed by Judge Ellen S. Huvelle on 6/17/19. (lcesh2) (Entered: 06/17/2019)

06/17/2019

Set/Reset Deadlines/Hearings: Status Report due by 7/11/2019. Status Conference set for 7/15/2019 at 02:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (gdf) (Entered: 06/18/2019)

07/05/2019

256 NOTICE REGARDING IMPLEMENTATION OF THE COURTS PARTIAL SUMMARY JUDGMENT DECISION by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Baruch, Douglas) (Entered: 07/05/2019)

07/07/2019

MINUTE ORDER. On 6/17/19, following a status conference, the Court issued a Minute Order requiring defendants to ﬁle a status report containing certain information on or before 7/11/19. In light of 256 Plaintiffs' Notice Regarding Implementation of the Court's Partial Summary Judgment Decision, ﬁled on 7/5/19, defendants are HEREBY ORDERED to also include in that 7/11/19 status report the following additional information: (1) defendants' response to plaintiffs' proposal described in 256 plaintiffs' notice; (2) the number of MSSR notiﬁcation letters that have gone out to MAVNIs to date; (3) of the MSSR notiﬁcation letters sent to MAVNIs, the number to Nio class members; (4) ﬁled separately under seal, the name and identiﬁcation number of each Nio class member who received an MSSR notiﬁcation letter and the corresponding date each letter was sent. Signed by Judge Ellen S. Huvelle on 7/7/19.(lcesh2) (Entered: 07/07/2019)

07/11/2019

257 STATUS REPORT in accordance with the Court's Minute Orders of June 17, 2019 and July 7, 2019 by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 07/11/2019)

07/11/2019

258 SEALED DOCUMENT ﬁled by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit List of individuals who have received an MSSR Notiﬁcation)(Shefﬁeld, Carlton) (Entered: 07/11/2019)

07/15/2019

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 7/15/2019. Status Report due by 8/7/2019. Status Conference set for 8/14/2019 at 2:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. Scheduling Order forthcoming via Chambers (Court Reporter Scott Wallace) (jch) (Entered: 07/15/2019)

07/15/2019

259 ORDER regarding defendants' six-week status reports and amending reporting requirements. The next report is due 8/7/19 at 12:00 p.m. and a status hearings is set for 8/14/19 at 2:00 p.m. See Order for details. Signed by Judge Ellen S. Huvelle on 7/15/19. (lcesh2) (Entered: 07/15/2019)

07/19/2019

260 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 6-17-19; Page Numbers: 1-59. Date of Issuance:7-19-19. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 8/9/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/17/2019.(Grifﬁth, Lisa) (Entered: 07/19/2019)

07/22/2019 261 NOTICE of Change of Address by Jennifer M. Wollenberg (Wollenberg, Jennifer) (Entered: 07/22/2019)

07/22/2019 262 NOTICE of Change of Address by Douglas W. Baruch (Baruch, Douglas) (Entered: 07/22/2019)

07/24/2019

263 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 7-15-19; Page Numbers: 1-82. Date of Issuance:7-24-19. Court Reporter/Transcriber Scott L. Wallace, Telephone number 202-354-3196, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 8/14/2019. Redacted Transcript Deadline set for 8/24/2019. Release of Transcript Restriction set for 10/22/2019.(Wallace, Scott) (Entered: 07/24/2019)

08/07/2019

264 STATUS REPORT by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - COMPLETE REPORT, # 2 Exhibit B - FLOW CHART, # 3 Exhibit C - HEARING TRANSCRIPT)(Perez, Elianis) (Entered: 08/07/2019)

08/13/2019

265 RESPONSE re 264 Status Report PLAINTIFFS' RESPONSE TO DEFENDANTS' AUGUST 7, 2019 REPORT TO THE COURT by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Wollenberg, Jennifer) Modiﬁed event title and link on 8/14/2019 (znmw). (Entered: 08/13/2019)

08/14/2019

Minute Entry for Status Conference held before Judge Ellen S. Huvelle on 8/14/2019. Status Report addressing the status of plaintiffs Li and Dai as well as applicants who were denied naturalization based on discharge due by 9/4/2019. Defendant's oral motion for Judge to make ruling regarding the remainder of the claims heard. Status Conference set for 9/23/2019 at 2:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. Court Reporter Lisa Grifﬁth. (jch) (Entered: 08/14/2019)

08/14/2019

266 ORDER. A status hearing is set for 9/23/19 at 2:00 p.m. Defendants' next Six-Week Report is due 9/18/19 at 12:00 p.m. Counsel for the parties are to meet and confer regarding speciﬁc areas of confusion or disagreement. On or before 9/4/19 at 12:00 p.m., defendants shall ﬁle a status report addressing questions raised during the Court's hearing. See Order for details. Signed by Judge Ellen S. Huvelle on 8/14/19. (lcesh2) (Entered: 08/14/2019)

08/14/2019

Set/Reset Deadlines: Six Week Report due by 9/18/2019. Status Report due by 9/4/2019. (gdf) (Entered: 08/18/2019)

08/16/2019

Set/Reset Deadlines: Status Report due by 9/4/2019; Set/Reset Hearings:Status Conference set for 9/23/2019 at 02:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (tj) (Entered: 08/16/2019)

08/16/2019

267 NOTICE OF WITHDRAWAL OF APPEARANCE as to PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. Attorney Kayla M.S. Kaplan terminated. (Kaplan, Kayla) (Entered: 08/16/2019)

08/27/2019

268 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 8-14-19; Page Numbers: 1-67. Date of Issuance:8-27-19. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 9/17/2019. Redacted Transcript Deadline set for 9/27/2019. Release of Transcript Restriction set for 11/25/2019.(Grifﬁth, Lisa) (Entered: 08/27/2019)

09/03/2019 269 NOTICE of Appearance by Kayla M.S. Kaplan on behalf of All Plaintiffs (Kaplan, Kayla) (Entered: 09/03/2019)

09/04/2019

270 ENTERED IN ERROR.....STATUS REPORT in accordance with the Court's Order of August 14, 2019 by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) Modiﬁed on 9/4/2019 (jf). (Entered: 09/04/2019)

09/04/2019

NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 270 Status Report, was entered in error at the request of counsel and will be reﬁled with a corrected version. (jf) (Entered: 09/04/2019)

09/04/2019

271 STATUS REPORT in accordance with the Court's Order of August 14, 2019 by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 09/04/2019)

09/05/2019 272 NOTICE of Appearance by Neaha P. Raol on behalf of All Plaintiffs (Raol, Neaha) (Entered: 09/05/2019)

09/18/2019

273 STATUS REPORT Six Week Report by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Report)(Shefﬁeld, Carlton) (Entered: 09/18/2019)

09/23/2019

274 RESPONSE re 273 Status Report PLAINTIFFS' RESPONSE TO DEFENDANTS' SEPTEMBER 18 2019 REPORT TO THE COURT by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE (Wollenberg, Jennifer) Modiﬁed event title and added link on 9/25/2019 (znmw). (Entered: 09/23/2019)

09/23/2019

Minute Entry for Status Conference held on 9/23/2019 before Judge Ellen S. Huvelle. Court orders clarity from the defendant on the status of two individuals speciﬁed by the plaintiff. Court orders a list of DTP individuals who have been discharged. Order to be issued from chambers. Status Conference set for 11-20-19 @ 2:00 pm before Judge Ellen S.

Huvelle in Courtroom 23A. Six (6) week status report due 10-30-19. Response deadline due 11-15-19. (Court Reporter Lisa Grifﬁth) (zjch) (Entered: 09/25/2019)

09/24/2019

275 ORDER directing defendants to provide certain information to plaintiffs and setting ﬁling deadlines, as discussed at the September 23, 2019, status conference. The next status conference is set for November 20, 2019 at 2:00 p.m. in Courtroom 23A before Judge Ellen S. Huvelle. See Order for further dates and details. Signed by Judge Ellen S. Huvelle on September 24, 2019. (lcesh1) (Entered: 09/24/2019)

09/24/2019

Set/Reset Deadlines/Hearings: Six-Week Report due by 10/30/2019. Response to report due by 11/15/2019. Status Conference set for 11/20/2019 at 2:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (zgdf) (Entered: 09/25/2019)

09/27/2019

276 NOTICE of Compliance by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 275 Order, (Shefﬁeld, Carlton) (Entered: 09/27/2019)

09/30/2019

277 NOTICE of Compliance by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 275 Order, (Shefﬁeld, Carlton) (Entered: 09/30/2019)

10/10/2019

278 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 9-23-19; Page Numbers: 1-87. Date of Issuance:10-10-19. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 10/31/2019. Redacted Transcript Deadline set for 11/10/2019. Release of Transcript Restriction set for 1/8/2020.(Grifﬁth, Lisa) (Entered: 10/10/2019)

10/21/2019

279 ORDER. As originally scheduled, a status conference is set for Wednesday, November 20, 2019, at 2:00 p.m. in Courtroom 23A. A joint status conference with Case No. 18-cv-1551 is set for Tuesday, January 21, 2020, at 10:30 a.m. in Courtroom 23A. See order for details. Signed by Judge Ellen S. Huvelle on 10/21/2019. (Maginnis, Mary) (Entered: 10/21/2019)

10/21/2019

Set/Reset Hearings: Status Conference set for 11/20/2019 at 2:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. Status Conference set for 1/21/2020 at 10:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. (zgdf) (Entered: 10/24/2019)

10/30/2019

280 STATUS REPORT Defendants' Six Week Report by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Six-Week Report) (Shefﬁeld, Carlton) (Entered: 10/30/2019)

11/07/2019 281 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 1:19-cv-3351. (Wollenberg, Jennifer) (Entered: 11/07/2019)

11/13/2019

282 ORDER. Defendants shall provide updated information regarding the status of the plaintiffs in Case No. 19-cv-3351 on November 20, 2019. See Order for details. Signed by Judge Ellen S. Huvelle on November 13, 2019. (lcmm) (Entered: 11/13/2019)

11/15/2019

283 RESPONSE re 280 Status Report, Plaintiffs' Response to Defendants' October 30, 2019 Report to the Court ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Wollenberg, Jennifer) (Entered: 11/15/2019)

11/15/2019

284 ORDER. Defendants shall respond by Tuesday, November 19, 2019, to the issues raised in paragraphs I, II, III, and VII of plaintiffs' response to defendants' October 30, 2019, status report 283 and shall be prepared to address all remaining issues at the hearing set for Wednesday, November 20, 2019. See Order for details. Signed by Judge Ellen S. Huvelle on November 15, 2019. (lcmm) (Entered: 11/15/2019)

11/19/2019

285 STATUS REPORT in accordance with the Court's November 15, 2019 Order, by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 11/19/2019)

11/20/2019

Minute Entry for Status Conference held on 11/20/2019 before Judge Ellen S. Huvelle. Court orders normal ﬁling by 12/11/19 and an updated report on the predetermined 18 participants. Court Orders a joint proposal for case resolution by 1/10/2020. Court to issue Minute Order. Court Reporter Lisa Grifﬁth. (zjch) (Entered: 11/20/2019)

11/20/2019

286 VACATED PURSUANT TO MINUTE ORDER FILED ON 1/2/20.....ORDER setting ﬁling deadlines, directing defendants to provide certain information to plaintiffs, and directing the parties to ﬁle a joint proposal and timetable for resolving the case, as discussed at the November 20, 2019, status conference. The next status conference, with Case Nos. 17-cv-1793 and 18-cv-1551, is set for January 21, 2020, at 10:30 a.m. in Courtroom 23A before Judge Ellen S. Huvelle. See Order for further dates and details. Signed by Judge Ellen S. Huvelle on November 20, 2019. (lcmm) Modiﬁed on 1/3/2020, to vacate. (zgdf). (Entered: 11/20/2019)

11/20/2019

Set/Reset Deadlines/Hearings: Defendants Six-Week Report due by 12/11/2019. Joint Status Report due by 1/10/2020. Status Conference set for 1/21/2020 at 10:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. (zjch) (Entered: 12/09/2019)

11/26/2019

287 Supplemental STATUS REPORT (supplementing Defendants' November 19, 2019 ﬁling) by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Declaration of Claudia Young)(Shefﬁeld, Carlton) (Entered: 11/26/2019)

12/11/2019

288 Unopposed MOTION for Extension of Time to Defendants' Six Week Report by L. FRANCIS CISSNA, ELAINE DUKE, JOHN KELLY, JAMES MATTIS, JAMES MCCAMENT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order) (Shefﬁeld, Carlton) (Entered: 12/11/2019)

12/11/2019

MINUTE ORDER granting 288 Motion for Extension of Time: It is hereby ORDERED that Defendants' motion for a 24-hour extension of time in which to ﬁle the next Six-Week Report is GRANTED. Defendants shall ﬁle the next Six-Week Report by December 12, 2019, no later than 5:00 p.m. Signed by Judge Ellen S. Huvelle on December 11, 2019. (lcmm) (Entered: 12/11/2019)

12/12/2019

Set/Reset Deadlines: Status Report due by 12/12/2019 (zgdf) (Entered: 12/12/2019)

12/12/2019

289 STATUS REPORT Defendants' Six Week Report by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Six-Week Report) (Shefﬁeld, Carlton) (Entered: 12/12/2019)

12/13/2019

MINUTE ORDER REFERRING CASE for Mediation to Magistrate Judge Michael Harvey: It is hereby ORDERED that this matter is referred to Magistrate Judge Harvey for mediation. On any ﬁling related to the mediation, the parties shall place the initials of Judge Ellen Segal Huvelle and the initials of Magistrate Judge Harvey following the case number in the caption. On any other ﬁlings in this case, the parties shall only place the initials of Judge Ellen Segal Huvelle after the case number. Signed by Judge Ellen S. Huvelle on December 13, 2019. (AG) (Entered: 12/13/2019)

12/13/2019

CASE DIRECTLY REFERRED to Magistrate Judge G. Michael Harvey for mediation. (zsb) (Entered: 12/16/2019)

12/16/2019

290 ORDER Status Conference set for 1/13/2020 at 11:00 AM in Courtroom 6 before Magistrate Judge G. Michael Harvey. Signed by Magistrate Judge G. Michael Harvey on 12/16/19. (MFB) Modiﬁed on 12/16/2019 (zldc). (Entered: 12/16/2019)

12/20/2019

291 Supplemental STATUS REPORT (Second Supplement to Defendants' November 19, 2019 ﬁling) by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 12/20/2019)

01/02/2020

MINUTE ORDER: With the parties consent, it is hereby ORDERED that the requirement that the parties ﬁle a joint status report setting forth their joint proposal and timetable for resolving this case, contained in the Courts November 20, 2019, Order (ECF No. 286), is hereby VACATED. Signed by Judge Ellen S. Huvelle on January 2, 2020. (lcmm) (Entered: 01/02/2020)

01/13/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Status Conference held on 1/13/2020. Minute Order to be issued by the Court stating future hearings and deadlines. Court Reporter: N/A Hearing was not on record. Plaintiffs' Counsel: Douglas Baruch, Jennifer Wollenberg, Kayla Kaplan, Neaha Raol, and Ben Mendelson. Defendants' Counsel: Michael Fucci, Sarah Vuong, and Carlton Shefﬁeld. (zpt) (Entered: 01/13/2020)

01/13/2020

292 ORDER. See Order for additional deadlines and instructions. Settlement Conference set for 2/24/2020 at 10:00 AM in Courtroom 6 before Magistrate Judge G. Michael Harvey. Telephone Conference set for 1/17/2020 at 04:00 PM in Courtroom 6 before Magistrate Judge G. Michael Harvey. Settlement Conference set for 3/3/2020 at 10:00 AM in Courtroom 6 before Magistrate Judge G. Michael Harvey. Settlement Conference set for 3/5/2020 at 10:00 AM in Courtroom 6 before Magistrate Judge G. Michael Harvey.. Signed by Magistrate Judge G. Michael Harvey on 1/13/20. (MFB) (Entered: 01/13/2020)

01/15/2020

MINUTE ORDER: With the parties' consent, it is hereby ORDERED that the status hearing scheduled on January 21, 2020, is hereby VACATED. Signed by Judge Ellen S. Huvelle on January 15, 2020. (lcmm) (Entered: 01/15/2020)

01/16/2020

MINUTE ORDER: It is hereby ORDERED that a status hearing is set for Tuesday, January 21, 2020, at 10:30 a.m. in Courtroom 23A. Signed by Judge Ellen S. Huvelle on January 16, 2020. (lcmm) (Entered: 01/16/2020)

01/17/2020

Set/Reset Hearings: Status Conference set for 1/21/2020 at 10:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. (hs) (Entered: 01/17/2020)

01/21/2020

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 1/21/2020. Scheduling order forthcoming. Status Conference set for 3/9/2020 at 11:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporter: Bryan Wayne) (zgdf) (Entered: 01/21/2020)

01/21/2020

293 ORDER. Defendants' next reporting deadline is February 19, 2020. A status hearing is set for Monday, March 9, 2020, at 11:30 a.m. in Courtroom 23A. See order for details. Signed by Judge Ellen S. Huvelle on January 21, 2020. (lcmm) (Entered: 01/21/2020)

01/21/2020

Set/Reset Deadlines: Status Report due by 2/19/2020. (zgdf) (Entered: 01/21/2020)

01/27/2020

294 TRANSCRIPT OF 1/21/20 STATUS HEARING before Judge Ellen S. Huvelle held on January 21, 2020; Page Numbers: 1-49. Date of Issuance: 1/27/20. Court Reporter: Bryan A. Wayne. Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the tra nscript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 2/17/2020. Redacted Transcript Deadline set for 2/27/2020. Release of Transcript Restriction set for 4/26/2020.(Wayne, Bryan) (Entered: 01/27/2020)

02/18/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Telephone Conference held on 2/18/2020. (MFB) (Entered: 02/18/2020)

02/19/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Telephone Conference held on 2/19/2020. (MFB) (Entered: 02/19/2020)

02/19/2020

295 STATUS REPORT Defendants' Six-Week Report for February 19, 2020 by L. FRANCIS CISSNA, ELAINE DUKE, JAMES MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit February 19, 2020 Report)(Shefﬁeld, Carlton) (Entered: 02/19/2020)

03/05/2020

Set/Reset Hearings: Settlement Conference set for 3/13/2020 at 10:00 AM in Courtroom 6 before Magistrate Judge G. Michael Harvey. (MFB) (Entered: 03/05/2020)

03/09/2020

Minute Entry for Status Conference proceedings held on 3/9/2020 before Judge Ellen S. Huvelle. Scheduling Order to be entered by Chambers. Status Conference set for 5/18/2020 at 2:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporter Lisa Grifﬁth) (zgdf) (Entered: 03/09/2020)

03/09/2020

296 ORDER setting defendants' next reporting deadlines. A status hearing is set for Monday, May 18, 2020, at 2:00 p.m. in Courtroom 23A. See order for details. Signed by Judge Ellen S. Huvelle on March 9, 2020. (lcmm) (Entered: 03/09/2020)

03/13/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Settlement Conference held on 3/13/2020. (MFB) (Entered: 03/16/2020)

04/20/2020

297 ORDER revising defendants' reporting deadline and continuing status hearing. Defendants shall ﬁle their next Six-Week Report by June 1, 2020. The next status hearing is set for Monday, June 8, 2020, at 11 a.m. See Order for details. Signed by Judge Ellen S. Huvelle on April 20, 2020. (lcmm) (Entered: 04/20/2020)

04/20/2020

Set/Reset Hearings: Status Conference rescheduled for 6/8/2020 at 11:00 AM in Courtroom 23A before Judge Ellen S. Huvelle. (zgdf) (Entered: 04/21/2020)

05/20/2020

MINUTE ORDER: It is hereby ORDERED that the Status Conference set for June 8, 2020, at 11:00 a.m. will be conducted by video and teleconference. Instructions for the public and media to listen to the hearing by telephone can be found at https://www.dcd.uscourts.gov/ public-and-media-access-to-court-proceedings-during-covid-19emergency. Participants will be provided access instructions by the Court. Signed by Judge Ellen S. Huvelle on May 20, 2020. (AG) (Entered: 05/20/2020)

06/01/2020

298 STATUS REPORT Defendants' Report for June 1, 2020 by L. FRANCIS CISSNA, ELAINE DUKE, JAMES N. MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit June 1 2020 Report)(Shefﬁeld, Carlton) (Entered: 06/01/2020)

06/04/2020

299 Amended STATUS REPORT Defendants' Report for June 1, 2020 by L. FRANCIS CISSNA, ELAINE DUKE, JAMES N. MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit June 1 2020 Report)(Shefﬁeld, Carlton) (Entered: 06/04/2020)

06/08/2020

Minute Entry for Telephonic/Video Status Conference proceedings held 6/8/2020 before Judge Ellen S. Huvelle. Order forthcoming via Chambers. Status Conference set for 8/5/2020 at 2:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporter: Lisa Grifﬁth) (zgdf) (Entered: 06/08/2020)

06/08/2020

300 ORDER amending defendants' reporting requirements, setting the next report deadline for July 27, 2020, and setting the next status conference for August 5, 2020, at 2 p.m. See Order for details. Signed by Judge Ellen S. Huvelle on June 8, 2020. (lcmm) (Entered: 06/08/2020)

06/08/2020

Set/Reset Deadlines: Status Report due by 7/27/2020. (zgdf) (Entered: 06/10/2020)

07/27/2020

301 STATUS REPORT (Defendants' July 27, 2020 Report pursuant to ECF 300) by L. FRANCIS CISSNA, ELAINE DUKE, JAMES N. MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit July 27 2020 Report)(Shefﬁeld, Carlton) (Entered: 07/27/2020)

07/28/2020

302 RESPONSE re 301 Status Report, Plaintiffs' Response to Defendants' July 27, 2020 Report to the Court ﬁled by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Wollenberg, Jennifer) (Entered: 07/28/2020)

07/29/2020

Minute Entry for Video/Telephonic Status Conference proceedings held 7/29/2020, before Judge Ellen S. Huvelle. Notiﬁcation and Joint Status Report due by 8/12/2020. (Court Reporter Lisa Grifﬁth) (zgdf) (Entered: 07/29/2020)

07/29/2020

303 ORDER setting ﬁling deadlines. Defendants shall provide updated information on Y.Y. and D.W. by Wednesday, August 12, 2020. The parties shall ﬁle a joint status report setting for their joint proposal for case resolution by Wednesday, August 12, 2020. See Order for details. Signed by Judge Ellen S. Huvelle on July 29, 2020. (lcmm) (Entered: 07/29/2020)

08/07/2020

304 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 7-29-2020; Page Numbers: 1-32. Date of Issuance:8-7-2020. Court Reporter/Transcriber Lisa W Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced abo ve. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 8/28/2020. Redacted Transcript Deadline set for 9/7/2020. Release of Transcript Restriction set for 11/5/2020.(Grifﬁth, Lisa) (Entered: 08/07/2020)

08/12/2020

305 STATUS REPORT of Defendants concerning speciﬁc cases about which the Court inquired by L. FRANCIS CISSNA, ELAINE DUKE, JAMES N. MATTIS, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Shefﬁeld, Carlton) (Entered: 08/12/2020)

08/12/2020

306 Joint STATUS REPORT by PRASHANTH BATCHU, LUCAS CALIXTO, SHU CHENG, HAENDEL CRIST CALISTO ALVES DE ALMEIDA, SEUNG JOO HONG, WANJING LI, YE LIU, KUSUMA NIO, JAE SEONG PARK, EMEKA UDEIGWE. (Wollenberg, Jennifer) (Entered: 08/12/2020)

08/20/2020

307 JUDGMENT: The Court hereby converts the preliminary injunction set forth in the Courts October 27, 2017 Order (ECF No. 74 ) into a permanent injunction. The notice and comment and unreasonable delay claims contained in Count III, and Count V of plaintiffs Second Amended Complaint are DISMISSED WITH PREJUDICE as to the named plaintiffs and on behalf of the class (as opposed to any individual claims of unnamed class members). All other claims in Count III and all remaining Counts are DISMISSED WITH PREJUDICE. The Court will

retain jurisdiction to enforce the permanent injunction set forth herein as well as the Courts May 22, 2019 Order granting partial summary judgment to plaintiffs and vacating the MSSD Requirement (ECF No. 250 ). See Order for details. Signed by Judge Ellen S. Huvelle on August 20, 2020. (lcmm) (Entered: 08/20/2020)

 
 Case 1:17-cv-00998-ESH Document 1 Filed 05/24/17 Page 1 of 31

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KUSUMA NIO 2400 Checkerberry Lane Springfield, Illinois 62711,
WANJING LI 5855 Washington Boulevard, Apt. 2C St. Louis, Missouri 63112,
JAE SEONG PARK 5482 Jackson Boulevard, A CO 1-13th Fort Jackson Columbia, South Carolina 29207,
HAENDEL CRIST CALISTO ALVES DE ALMEIDA 115-117 66th Street West New York, New Jersey 07093,
PRASHANTH BATCHU 809 22nd Street, Apt. 1104 Union City, New Jersey 07087,
LUCAS CALIXTO 21 Franklin Street, Apt. 15 Somerville, Massachusetts 02145,
SHU CHENG 5438 Baldwin Avenue Tempe City, California 91780,
SEUNG JOO HONG 18921 Highstream Drive Germantown, Maryland 20874,
YE LIU 1892 Willoway Circle S. Columbus, Ohio 43220,

) ) ) ) ) ) ) ) ) ) ) No. ) ) ) COMPLAINT AND PRAYER FOR ) DECLARATORY, PRELIMINARY ) AND PERMANENT INJUNCTIVE, ) ADMINISTRATIVE PROCEDURE ) ACT, AND MANDAMUS RELIEF ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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Case 1:17-cv-00998-ESH Document 1 Filed 05/24/17 Page 2 of 31

EMEKA UDEIGWE

)

13855 Superior Road, Apt. 2410

)

Cleveland, Ohio 44118,

)

)

on behalf of themselves and those similarly

)

situated,

)

)

PLAINTIFFS,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY

)

3801 Nebraska Avenue, NW

)

Washington, DC 20016,

)

)

JOHN KELLY, in his official capacity as

)

Secretary of the United States Department of

)

Homeland Security

)

3801 Nebraska Avenue, NW

)

Washington, DC 20016,

)

)

UNITED STATES CITIZENSHIP AND

)

IMMIGRATION SERVICES

)

20 Massachusetts Avenue, NW

)

Washington, DC 20008,

)

)

JAMES MCCAMENT, in his official capacity as )

Acting Director of the United States Citizenship )

and Immigration Services

)

20 Massachusetts Avenue, NW

)

Washington, DC 20008,

)

)

UNITED STATES DEPARTMENT OF

)

DEFENSE

)

1000 Defense Pentagon

)

Washington, DC 20301,

)

)

JAMES MATTIS, in his official capacity as

)

Secretary of Defense of the United States

)

Department of Defense

)

1000 Defense Pentagon

)

Washington, DC 20301,

)

)

DEFENDANTS.

)

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Case 1:17-cv-00998-ESH Document 1 Filed 05/24/17 Page 3 of 31
COMPLAINT 1. Plaintiffs are enlisted non-citizen United States Army soldiers who are serving honorably in the Selected Reserve of the Ready Reserve (“Selected Reserve”). Defendants are depriving Plaintiffs of their lawful opportunity and right to become naturalized United States citizens. As set forth below, by virtue of their honorable service in the Selected Reserve, federal law, including 8 U.S.C. § 1440, specifies that each Plaintiff-soldier is entitled to prompt processing of his/her application to become a naturalized United States citizen. Yet, Defendants are not processing these naturalization applications as required by law. Instead, via improper inter-agency instructions and other unlawful means, Defendants are impeding and delaying the naturalization of these soldiers by imposing on them additional citizenship qualifications/criteria which have no lawful basis. And, by so doing, Defendants are acting unlawfully and depriving Plaintiffs of the valuable rights due to them under the law. Through this action, on behalf of themselves and all similarly situated United States soldiers, Plaintiffs seek injunctive, declaratory, and other relief from this Court in order to compel and enjoin Defendants as necessary to allow for the processing of Plaintiffs’ naturalization applications as required by law. 2. The United States recruited and enlisted each Plaintiff into the Armed Forces of the United States under the Military Accessions Vital to the National Interest (“MAVNI”) program, a program touted by Defendant United States Department of Defense (“DoD”) as “vital to the national interest,” under which certain non-U.S. citizens with critical language skills and/or specialized medical training enlist and serve in the United States Armed Forces. DoD recruits individuals into the MAVNI program by, among other things, representing that enlistees will be granted an “expedited” path to U.S. citizenship via naturalization. Indeed, DoD mandates – via
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written enlistment contracts – that Plaintiffs and other MAVNI recruits apply for U.S. citizenship as soon as the service branch (e.g., the Army) has certified their honorable service.
3. Each Plaintiff-soldier has kept his/her end of the bargain. Equipped with the specialized skills – such as medical training and foreign language capabilities – sought by military leaders to fill critical personnel needs, each Plaintiff (a) enlisted in the Army, (b) is serving honorably, and (c) has applied for naturalization with Defendant United States Department of Homeland Security (“DHS”). As enlisted soldiers in the Selected Reserve, Plaintiffs are obliged to serve and proudly stand ready to be called to active duty in the service of this Nation at the direction of their military commanders.
4. However, in violation of federal law, including 8 U.S.C. § 1440, Defendants have reneged on the representations made to these soldiers and are failing to process their naturalization applications as the law requires. Thus, Defendants are blocking and delaying the valuable benefit afforded by law to these highly sought after military enlistees – namely, the prospect of expedited United States citizenship.
5. Among other actions, DoD improperly has instructed DHS and its component agency, Defendant United States Citizenship and Immigration Services (“USCIS”), to place Plaintiffs’ naturalization applications on “hold” pending the successful completion of specialized background investigations done by the military for DoD purposes (and not required by the laws governing naturalization). There is no lawful basis for DoD’s instruction and interference, nor is there any legal basis for DHS to permit or acquiesce in such interference. On information and belief, the military security clearance criteria being applied to Plaintiffs’ naturalization applications have never before been applied to citizenship applications. In fact, this new and additional screening being imposed by DoD (and enabled by DHS) has nothing to do with
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citizenship eligibility, but instead is reserved for persons applying for high-level governmental security clearances. In other words, there is no U.S. law that conditions naturalization on an applicant’s ability to obtain a high-level security clearance, yet Defendants are imposing – or, at a minimum, acquiescing in the imposition of – that condition on Plaintiffs. As a result of this unlawful conduct, Plaintiffs are facing irreparable harm due to the delayed and uncertain processing of their naturalization applications.
6. On information and belief and for the reasons alleged herein, the enhanced scrutiny and interference by Defendants are not unique to the named Plaintiffs, nor does the conduct arise out of any particular security or other concern specific to these Plaintiffs; indeed, each Plaintiff believes that he/she is eligible to be naturalized and would be naturalized but for the Defendants’ “hold” on the processing of their applications. Instead, Defendants’ conduct appears to be a recent policy change applicable to MAVNI recruits who have applied for – or are eligible to apply for – naturalization but have not yet been granted citizenship. Accordingly, Plaintiffs bring this civil action on behalf of themselves in their individual capacities, and on behalf of a class of all similarly-situated individuals, to obtain Administrative Procedure Act (“APA”), mandamus, declaratory, and preliminary and permanent injunctive relief to compel and enjoin Defendants so that they comply with their statutory obligations pursuant to federal law, including 8 U.S.C. § 1440, to properly and timely act upon, and to otherwise cease interfering with, the processing of Plaintiffs’ naturalization applications.
JURISDICTION 7. This action arises under the Immigration and Nationality Act of 1952 (“INA”) at 8 U.S.C. § 1440. This Court has jurisdiction over this action under 28 U.S.C. § 1346 (United
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States as defendant); 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 2201 (declaratory judgment); and the Mandamus Act, 28 U.S.C. § 1361.
VENUE 8. Venue is proper in the Court under 28 U.S.C. § 1391(e) because Defendants John Kelly, James McCament, and James Mattis are officers of the United States acting in their official capacities, and the United States Department of Homeland Security, the United States Citizenship and Immigration Services, and the United States Department of Defense are all present in this district. Further, Gen. Kelly, Mr. McCament, and Gen. Mattis perform official duties in Washington, D.C.
PARTIES 9. Plaintiff Dr. Kusuma Nio resides in Springfield, Illinois. Dr. Nio enlisted in the Selected Reserve through the MAVNI program in August 2015 and serves with the 1st Forward Surgical Team in Fort Hamilton, New York. 10. Plaintiff Wanjing Li resides in St. Louis, Missouri. Ms. Li enlisted in the Selected Reserve through the MAVNI program in February 2016 and serves with the 325th Combat Support Hospital. 11. Plaintiff Jae Seong Park resides in Fort Jackson, South Carolina. Mr. Park enlisted in the Selected Reserve through the MAVNI program in October 2015, completed Basic Combat Training (“BCT”) at Fort Jackson, South Carolina in December 2016, and remains on active-duty status at Fort Jackson awaiting assignment to further training. 12. Plaintiff Haendel Crist Calisto Alves de Almeida resides in West New York, New Jersey. Mr. Almeida enlisted in the Selected Reserve through the MAVNI program in May 2016 and serves with the 405th Combat Support Hospital located in West Hartford, Connecticut.
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13. Plaintiff Prashanth Batchu resides in Union City, New Jersey. Mr. Batchu enlisted in the Selected Reserve through the MAVNI program in June 2016 and serves with 419th Transportation Company.
14. Plaintiff Lucas Calixto resides in Somerville, Massachusetts. Mr. Calixto enlisted in the Selected Reserve through the MAVNI program in February 2016 and serves with the 743rd Transportation Company in Roslindale, Massachusetts.
15. Plaintiff Shu Cheng resides in Temple City, California. Ms. Cheng enlisted in the Selected Reserve through the MAVNI program in February of 2016 and serves with the 349th Combat Support Hospital in Bell, California.
16. Plaintiff Seung Joo “Josh” Hong resides in Germantown, Maryland. Mr. Hong enlisted in the Selected Reserve through the MAVNI program in May 2016 and serves with the 392nd Signal Battalion.
17. Plaintiff Ye Liu resides in Columbus, Ohio. Mr. Liu enlisted in the Selected Reserve through the MAVNI program in March 2016 and serves with the 1001st Quartermaster Company in Columbus, Ohio.
18. Plaintiff Emeka Udeigwe resides in Cleveland, Ohio. Mr. Udeigwe enlisted in the Selected Reserve through the MAVNI program in March 2016 and serves with the 463rd Engineer Battalion unit in Wheeling, West Virginia.
19. Defendant United States Department of Homeland Security is responsible for the administration and enforcement of immigration laws of the United States.
20. Defendant John Kelly is sued in his official capacity as Secretary of the United States Department of Homeland Security. As Secretary of DHS, Gen. Kelly is responsible for the administration and enforcement of immigration laws of the United States.
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21. Defendant United States Citizenship and Immigration Services is responsible for the overall administration and the implementation of the immigration laws of the United States.
22. Defendant James McCament is sued in his official capacity as Director of the United States Department of Homeland Security, United States Citizenship and Immigration Services (Acting). As Acting Director of USCIS, Mr. McCament is responsible for the overall administration of USCIS and the implementation of the immigration laws of the United States.
23. Defendants DHS, Gen. Kelly, USCIS, and Mr. McCament are collectively referred to as the “DHS Defendants.”
24. Defendant United States Department of Defense is responsible for the overall administration of military policy, which includes the MAVNI program.
25. Defendant James Mattis is sued in his official capacity as Secretary of Defense of the United States Department of Defense. As Secretary of Defense, Gen. Mattis is responsible for the overall administration of DoD, which includes the MAVNI program.
26. Defendants DoD and Gen. Mattis are collectively referred to as the “DoD Defendants.”
BACKGROUND AND FACTS The MAVNI Program and Plaintiffs’ Service Commitments 27. Typically, U.S. Armed Forces enlistees must meet U.S. citizenship or permanent residence requirements. 10 U.S.C. § 504(b). However, 10 U.S.C. § 504(b)(2) authorizes the Secretary of Defense and the Secretaries of the military service departments to enlist certain non-U.S. citizens and non-permanent residents if enlistment of such individuals is “vital to the national interest.” Under this authority, DoD initiated the MAVNI program in 2008.
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28. The MAVNI program is designed to attract two types of recruits into the military: (a) health care professionals and (b) individuals who possess critical foreign language skills. DoD officials acknowledge that soldiers with these skills “are necessary to sustain effective military operations.” The MAVNI pilot program was initiated in 2008, and operated from 2009 through the present, with brief interruptions and enlistment suspension periods.
29. Under MAVNI, DoD encouraged qualified individuals to enlist, in large part, by touting the opportunity of an “expedited” path to U.S. citizenship, and, DoD even has contractually mandated that MAVNI enlistees – including Plaintiffs – apply for citizenship “as soon as the [service branch (e.g., the Army)] has certified [the MAVNI recruit’s] honorable service.” This citizenship opportunity was a powerful enticement to Plaintiffs and other such qualified individuals who contemplated MAVNI enlistment.
30. Plaintiffs are soldiers who possess the skills deemed vital by the DoD, enlisted under the MAVNI program, signed MAVNI enlistment contracts, and are serving honorably in the Selected Reserve. Each Plaintiff has taken the military service oath. Each Plaintiff’s enlistment contract obligates him/her to eight years of service in the Army Reserve, six years of which must be served in the Selected Reserve. Each Plaintiff has been assigned to a U.S. Army Selected Reserve unit and each has served with his/her unit by participating in multiple Selected Reserve drill periods or by serving in an active-duty status. Finally, a responsible and authorized Army official has executed a Form N-426 for each Plaintiff, certifying his/her honorable service in the military as a member of the Selected Reserve.
31. The commitment that each Plaintiff has undertaken to serve as a soldier in the U.S. Army Reserve is serious and substantial. As the standard MAVNI Army Reserve enlistment contract states, an agreement to enlist “is more than an employment agreement. It
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effects a change in status from civilian to military member of the Armed Forces.” As such, per the Enlistment/Reenlistment Document Armed Forces of the United States (DD Form 4/1), each soldier (a) is “[r]equired to obey all lawful orders and perform all assigned duties,” (b) is “[s]ubject to the military justice system” and, among other things, “may be tried by military courts-martial,” (c) may be “[r]equired upon order to serve in combat or other hazardous situations,” and (d) must otherwise “meet acceptable military standards” such that any failure to meet their service obligations as Selected Reservists can result in demotion and/or discharge from the service under other than honorable conditions.
32. As a member of the Army Reserve, each soldier “may at any time, and without [his/her] consent, be ordered to active duty to complete a total of 24 months of active duty.” In times of war or national emergency declared by Congress, these soldiers “may, without [his/her] consent, be ordered to serve on active duty for the entire period of the war or emergency and for six (6) months after its end.” As members of the Selected Reserve, these soldiers may, without their consent, be ordered to 365 days of consecutive active duty whenever “the President determines that it is necessary to augment the active forces for any operational mission or for certain emergencies.”
33. Finally, as members of the U.S. military, Plaintiffs may be required to compromise individual liberties that are considered fundamental in ordinary American society. As their enlistment contracts provide, a service member’s freedom of religious expression may be curtailed: “I understand that the Army cannot guarantee accommodation of religious practices, and that religious accommodations may be modified or revoked based on changes in military necessity.” A service member’s freedom of speech, expression, and association also may be curtailed. Consequently, prior to enlistment, the Army provides recruits with
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USMEPCOM Form 601-23-4 – “Restrictions on Personal Conduct in the Armed Forces” –
which specifies that military service entails behavioral limitations not applicable to civilians in
America:
Military life is fundamentally different from civilian life. The military has its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society. These are necessary because military units and personnel must maintain high standards for morale, good order and discipline, and unit cohesion that are essential for combat effectiveness.
The Statutory and Regulatory Framework Applicable to Plaintiffs’ Naturalization Applications
34. The statutory and regulatory framework applicable to Plaintiffs is plain and
simple. The INA, at 8 U.S.C. § 1440(a), provides that
[a]ny person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States . . . during any . . . period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force . . . may be naturalized as provided in this section . . . . 35. On July 3, 2002, the President determined by Executive Order that the military is
engaged in armed conflict for the purposes of 8 U.S.C. § 1440. Exec. Order No. 13269, 67 Fed.
Reg. 45,287 (July 3, 2002). Executive Order No. 13269 has remained in effect through the
present.
36. The purpose of Section 1440 is to ease the path to U.S. citizenship for those
willing to volunteer to serve in the Selected Reserve or on active duty in the United States Armed
Forces during a time of armed conflict. A service member qualifies for naturalization under this
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section with honorable service “as a member of the Selected Reserve of the Ready Reserve or in an active-duty status.” 8 U.S.C. § 1440 (emphasis added). This disjunctive language of the statute is clear and unequivocal: Selected Reserve status alone qualifies a person to naturalize, and citizenship is not dependent on an individual performing active-duty service.
37. The statute eases the path to citizenship in at least three specific 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.” 8 U.S.C. § 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. 8 U.S.C. § 1440(b)(4).
38. The military’s role under the statute is wholly ministerial. The service member’s executive department (i.e., service branch) merely certifies to DHS – the agency responsible for conferring citizenship – the service member’s honorable service.
39. The service member’s statutory obligation to serve honorably does not terminate upon gaining U.S. citizenship. On the contrary, the statute contains an express revocation provision that provides, in pertinent part, the following: “Citizenship granted pursuant to this section may be revoked in accordance with section 1451 of this title if the person is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years.” 8 U.S.C. § 1440(c). Thus, service members granted citizenship under 8 U.S.C. § 1440 must continue to honorably meet their
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service obligations for a period of at least five years, or their citizenship is subject to potential revocation.
40. The regulations implementing 8 U.S.C. § 1440 are located at 8 C.F.R Part 329, entitled “SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: PERSONS WITH ACTIVE DUTY OR CERTAIN READY RESERVE SERVICE IN THE UNITED STATES ARMED FORCES DURING SPECIFIED PERIODS OF HOSTILITIES.” Section 329.2 provides that a service member is eligible for naturalization under 8 U.S.C. § 1440 upon establishing that he or she has “served honorably in the Armed Forces of the United States as a member of the Selected Reserve of the Ready Reserve or in an active duty status in the Armed Forces of the United States during . . . [a]ny other period as may be designated by the President in an Executive Order pursuant to section 329(a) of the Act . . . .” Like the statute, the disjunctive language of the implementing regulations makes clear that “active duty service” is not required if the soldier has served in the Selected Reserve.
41. Volume 12 of the USCIS Policy Manual, the agency’s centralized repository for USCIS’s immigration policies, explains the laws and policies that govern United States citizenship and naturalization, and further confirms that service in the Selected Reserve counts as qualifying service; indeed, “[o]ne day of qualifying service is sufficient in establishing eligibility.” USCIS Policy Manual Volume 12, Part I, Chapter 3, dated January 5, 2017.
42. The regulations also confirm that the honorable service requirement can be satisfied either through current service that is honorable or a separation from military service under honorable conditions: “[h]onorable service and separation means service and separation from service which the executive department under which the applicant served determines to be honorable . . . .” 8 C.F.R 329.1 (emphasis in original). The service department “under which the
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applicant served or is serving” certifies the member’s honorable service to USCIS officials. 8
C.F.R. 329.4.
43. USCIS has established an official form for this purpose – USCIS Form N-426
(Request for Certification of Military or Naval Service) – wherein the military service branch
certifies whether or not the applicant is serving or has served honorably.
44. Notably, the Army recited the statutory framework for citizenship in the standard
enlistment contract that each Plaintiff signed:
3. I understand that I am enlisting under a federal law that allows the Secretary of the Army to authorize the enlistment of certain non-citizens of the United States (10 U.S.C. 504(b)(2)). I also understand that I am enlisting during a period of time in which any alien who serves honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air or naval forces of the United States may apply for United States Citizenship (8 U.S.C. 1440). 4. In exchange for being permitted to enlist in the Army, I agree to apply for U.S. citizenship as soon as the Army has certified my honorable service. I understand that the Army does not grant U.S. citizenship, and the Army does not guarantee that my application for U.S. citizenship will be approved.
Defendants’ Violations of Applicable Law 45. Plaintiffs have upheld their end of the bargain under the law and their enlistment
contracts. They possess the language and/or medical skills deemed critical by DoD. They
enlisted as members of the Selected Reserve during a period of armed conflict, thereby serving a
“vital national interest.” They are serving honorably. And, they have applied to become
naturalized United States citizens.
46. Defendants have failed to fulfill their statutory and regulatory duties. Instead of
providing an “expedited” path to citizenship, DoD (as described below) improperly has
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instructed DHS to suspend the processing of Plaintiffs’ naturalization applications. This instruction is unlawful because it exceeds DoD’s lawful authority and interferes with DHS’s duties. In fact, DoD’s (and its military service departments’) sole role in Plaintiffs’ naturalization process is ministerial. The relevant military department simply certifies whether the service member seeking naturalization is serving, or has served, honorably.
47. For each Plaintiff, the Army already has performed this ministerial function by executing N-426 forms confirming that each Plaintiff has fulfilled the honorable service requirement. DoD has no further role in the naturalization application process. DoD may not direct DHS to suspend or “hold” Plaintiffs’ naturalization applications to impose additional military conditions or requirements for naturalization.
48. On September 30, 2016, the Under Secretary of Defense for Personnel and Readiness (Acting) promulgated policy guidance directing the military departments to delay orders to active-duty training for MAVNI enlistees until DoD completed security clearance investigations, such as Tier 5 (formerly known as SSBI) investigations and Counterintelligence Security Interviews, for such enlistees. And, notwithstanding its sharply limited role in the naturalization process for Plaintiffs per statute – i.e., the confirmation of honorable service – in an improper attempt to insert itself into the naturalization process, DoD (and its service branch, the Army) instructed DHS to stop processing MAVNI Applications for Naturalization pending completion of the security clearance investigations. For its part, DHS complied with, or acquiesced in, DoD’s improper instruction and halted the processing of all MAVNI naturalization applications contrary to its duties under law. The result has been a cessation and delay in the processing of Plaintiffs’ naturalization applications for an impermissible and unlawful reason. On information and belief, prior to September 30, 2016, the naturalization
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applications of MAVNI service members were processed to completion, and citizenship was conferred, without such DoD security clearance investigations.
49. Since September 2016, numerous officials (from both DoD and USCIS) have admitted that DHS has implemented this “hold” pursuant to DoD’s instruction. For example, in response to a Congressional inquiry on behalf of a MAVNI service member whose naturalization application had been delayed, a USCIS field office reported on March 14, 2017 that “Ms. [X’s] case is pending due to military background checks required by the Department of Defense. USCIS is unable to render a decision on Ms. [X’s] application at this time.” Another Supervisor at a USCIS field office confirmed on April 2017 that there was a “new DoD memo” issued in recent months stating that all applications from MAVNI soldiers who have not started initial active-duty training are “now on hold.”
50. USCIS representatives on the “military hotline” likewise have informed MAVNI service members – including some of the Plaintiffs – that MAVNI naturalization applications have been placed on “hold” pending completion of the extensive, military-specific background investigations being imposed by DoD. These communications from USCIS have taken place over the course of the last several months, including February, March, April, and May 2017.
51. On February 6, 2017, a U.S. Army Human Resources Command official – who claims to have consulted with “senior DoD officials” – stated that “[t]he Army does not have any plans of letting a USAR [i.e., U.S. Army Reserve] MAVNI get naturalized” before he/she is ordered to initial active-duty training upon completion of the extensive, military-specific background investigations being imposed by DoD.
52. Neither the Army nor DoD has any legal authority to “let” or “not let” MAVNI soldiers serving honorably as members of the Selected Reserve “get naturalized.” Under the law,
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the Army’s role merely is to certify whether the MAVNI service member is serving, or has served, honorably. The Army already has made that certification, in writing, for each Plaintiff.
53. DoD’s imposition of a military-specific, uber-investigation on MAVNI soldiers is improper to the extent that it is affecting those soldiers’ ability to naturalize. On information and belief, the investigative protocol being imposed on the naturalization process for MAVNIs never before has been applied to any type of application for naturalization. Rather, the investigative protocol being imposed typically has been used only in connection with granting security clearances, a process separate and distinct from naturalization conditions.
54. 8 U.S.C. § 1440 does not impose security clearance screenings as part of the naturalization process for Selected Reserve or active duty soldiers. If Congress had intended to mandate such an additional requirement for naturalization, it could have done so. In fact, Congress did the opposite, by enacting a statute that eases the naturalization requirements and processing time for soldiers serving honorably during periods of armed conflict. DoD’s improper instruction, and DHS’s unlawful compliance with that instruction, are contrary to the plain language and clear purpose of the statute.
Plaintiffs’ Honorable Service and Applications for Naturalization 55. Plaintiff Dr. Kusuma Nio enlisted in the Selected Reserve through the MAVNI program in August 2015. Dr. Nio is a surgeon by occupation. Dr. Nio took his service oath on August 12, 2015. Dr. Nio began serving with the 1st Forward Surgical Team in Fort Hamilton, New York, as a Specialist (E-4) in August 2016, and has since participated in multiple Selected Reserve drill periods with his unit. Dr. Nio submitted his N-400 Application for Naturalization in September 2016, and USCIS received his application on September 19, 2016. Dr. Nio’s
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Company Commander signed Form N-426 certifying Dr. Nio’s honorable service in the Selected Reserve.
56. After an unexplained, lengthy delay, Dr. Nio was given a naturalization interview on April 10, 2017. Upon completion of that interview, he was recommended for approval, was provided documentation to that effect, and was scheduled for a citizenship oath ceremony on May 5, 2017. However, on April 13, 2017, Dr. Nio received a “de-scheduling notice” informing him that his oath ceremony had been canceled. Dr. Nio met with immigration officers at the St. Louis Service Center, including a Field Officer Supervisor, to inquire about the reason for the cancellation of his oath ceremony and was informed that the DoD had instructed USCIS that naturalization applications for MAVNI service members such as Dr. Nio were put on hold. Following these communications, on May 7, 2017, Dr. Nio contacted his United States Senators and Representative. A staff member from United States Senator Tammy Duckworth’s office inquired into the status of Dr. Nio’s application and USCIS confirmed that, “Dr. Nio’s case is currently pending due to military background checks required by the Department of Defense. USCIS is unable to render a decision on Dr. Nio’s application at this time. Once the background checks have been completed, his case will continue through the immigration process.”
57. Plaintiff Wanjing Li enlisted in the Selected Reserve through the MAVNI program in February 2016. Ms. Li took her service oath on February 5, 2016. Ms. Li began serving with the 325th Combat Support Hospital as a Specialist (E-4) on March 19, 2016 and has since participated in multiple Selected Reserve drill periods with her unit. Ms. Li submitted her N-400 Application for Naturalization on August 17, 2016, and USCIS received her application on August 19, 2016. An authorized supervisor signed Ms. Li’s Form N-426 certifying Ms. Li’s honorable service in the Selected Reserve.
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58. After a lengthy delay, Ms. Li was scheduled for a naturalization interview on March 13, 2017. Upon completing the interview, Ms. Li was informed by the USCIS officer conducting the interview that her application was recommended for approval. Ms. Li has since been told by USCIS that her naturalization application has been put on hold, as have all other such applications by MAVNI service members.
59. Plaintiff Jae Seong Park enlisted in the Selected Reserve through the MAVNI program in October 2015. Mr. Park was sent to BCT at Fort Jackson, South Carolina, in May 2016. Mr. Park successfully completed BCT on December 15, 2016. Mr. Park has been retained on active-duty status at Fort Jackson awaiting assignment to further training, which has not been provided due to pending military background checks. Mr. Park’s command at Fort Jackson executed Form N-426 certifying Mr. Park’s honorable service as a member of the Selected Reserve.
60. Mr. Park completed most of his naturalization requirements in May 2016, including his naturalization interview at the local USCIS office at Fort Jackson. Despite his one-year long service on active duty, Mr. Park’s naturalization application was placed on hold. Mr. Park has checked on the status of his naturalization application and was told by USCIS, through the military hotline, on February 22, 2017, that he would need to speak with local office representatives to ascertain his status. The local USCIS office at Fort Jackson informed him on May 4, 2017 that his application has been put on hold pending the completion of a military background check.
61. Plaintiff Haendel Crist Calisto Alves de Almeida enlisted in the Selected Reserve through the MAVNI program in May 2016. Mr. Almeida took his service oath on May 26, 2016. Mr. Almeida began serving with the 405th Combat Support Hospital located in West Hartford,
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Connecticut as a Private (E-2) in August 2016 and since has participated in multiple Selected Reserve drill periods with his unit. Mr. Almeida submitted his N-400 Application for Naturalization in February 2017 and USCIS received his application that same month. Mr. Almeida’s Company Commander signed his Form N-426 certifying Mr. Almeida’s honorable service in the Selected Reserve.
62. Mr. Almeida’s ship date to BCT has been postponed indefinitely by direction of the DoD. Mr. Almeida has checked on the status of his naturalization application and was informed by USCIS that his and other MAVNI applications have been put on hold pending additional background investigations by the DoD.
63. Plaintiff Prashanth Batchu enlisted in the Selected Reserve through the MAVNI program in June 2016. Mr. Batchu took his service oath on June 7, 2016. Mr. Batchu began serving with the 419th Transportation Company as a Specialist (E-4) in September 2016 and has participated in multiple Selected Reserve drill periods with his unit. Mr. Batchu submitted his N400 Application for Naturalization in March 2017 and USCIS received his application shortly thereafter. Mr. Batchu’s Commander signed Form N-426 certifying Mr. Batchu’s honorable service in the Selected Reserve.
64. Mr. Batchu’s ship date to BCT has been postponed indefinitely by direction of the DoD. Mr. Batchu has checked on the status of his naturalization application and was told by USCIS that his application has been put on hold pending additional security screening by the DoD and that all other similar MAVNI applications are subject to the same hold.
65. Plaintiff Lucas Calixto enlisted in the Selected Reserve through the MAVNI program in February 2016. Mr. Calixto took his service oath on March 16, 2016. Mr. Calixto began serving with the 743rd Transportation Company in Roslindale, Massachusetts as a Private
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(E-1) in April 2016 and has since participated in multiple Selected Reserve drill periods with his unit. Mr. Calixto submitted his N-400 Application for Naturalization in March 2017, and USCIS received his application on March 7, 2017. An authorized command official signed Form N-426 certifying Mr. Calixto’s honorable service in the Selected Reserve. On April 14, 2017 USCIS requested that Mr. Calixto arrange for his command to issue another N-426, which he subsequently obtained and sent to USCIS on April 15, 2017. USCIS confirmed receipt and informed Mr. Calixto that they did not need anything else from him at that time to process his application.
66. Mr. Calixto’s ship date to BCT has been postponed indefinitely by DoD, presumably pending completion of military background checks. Mr. Calixto has inquired about the status of his naturalization application and was informed by a USCIS officer that his case was put on hold pursuant to an instruction from DoD to not process applications for MAVNI service members who have not attended BCT.
67. Plaintiff Shu Cheng enlisted in the Selected Reserve through the MAVNI program in February 2016. Ms. Cheng took her service oath on February 23, 2016. Ms. Cheng began serving with the 349th Combat Support Hospital as a Specialist (E-4) in May 2016 and has since participated in multiple Selected Reserve drills periods with her unit. Ms. Cheng submitted her N-400 Application for Naturalization on February 27, 2017, and USCIS received her application on March 2, 2017. Ms. Cheng’s Company Commander signed Form N-426 certifying Ms. Cheng’s honorable service in the Selected Reserve.
68. Ms. Cheng has inquired about the status of her naturalization application, including by calling the Military Helpline. On May 3, 2017, the Military Helpline confirmed that
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Ms. Cheng’s naturalization application was still “pending” because her military background check had not been completed.
69. Plaintiff Seung Joo “Josh” Hong enlisted in the Selected Reserve through the MAVNI program in May 2016. Mr. Hong took his service oath on May 13, 2016. Mr. Hong began serving with the 392nd Signal Battalion at Fort Meade as a Private First Class (E-3) in August 2016 and has participated in multiple Selected Reserve drill periods with his unit. Mr. Hong submitted his N-400 Application for Naturalization in February 2017, and USCIS received his application on February 28, 2017. Mr. Hong’s command signed Form N-426 certifying Mr. Hong’s honorable service in the Selected Reserve.
70. Mr. Hong’s ship date to BCT has been postponed indefinitely by direction of the DoD. Mr. Hong has checked on the status of his naturalization application and was told by USCIS that his application and all other MAVNI applications have been put on hold pending additional background investigations by the DoD.
71. Plaintiff Ye Liu enlisted in the Selected Reserve through the MAVNI program in March 2016. Mr. Liu took his service oath on March 16, 2016. Mr. Liu began serving with the 1001st Quartermaster Company in Columbus, Ohio, as a Specialist (E-4) in April 2016 and has since participated in multiple Selected Reserve drill periods with his unit. Mr. Liu submitted his N-400 Application for Naturalization in September 2016, and USCIS received his application on September 30, 2016. An authorized command official signed Form N-426 certifying Mr. Liu’s honorable service in the Selected Reserve.
72. On multiple occasions, DoD postponed Mr. Liu’s ship dates to BCT. Mr. Liu has checked on the status of his naturalization application and has been informed by USCIS that his
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application has now been put on hold until he reports to BCT, and he will not be permitted to report to BCT until completion of the newly-ordered DoD background investigations.
73. Plaintiff Emeka Udeigwe enlisted in the Selected Reserve through the MAVNI program in March 2016. Mr. Udeigwe took his service oath on March 17, 2016. Mr. Udeigwe began serving with the 463rd Engineer Battalion located in Wheeling, West Virginia, as a Specialist (E-4) in January 2017 and has since participated in multiple Selected Reserve drill periods with his unit. Mr. Udeigwe submitted his N-400 Application for Naturalization in January 2017, and USCIS received his application that same month. Mr. Udeigwe’s command signed Form N-426 certifying Mr. Udeigwe’s honorable service in the Selected Reserve.
74. Mr. Udeigwe’s ship date to BCT has been postponed indefinitely by direction of the DoD. Mr. Udeigwe has inquired about the status of his naturalization application and has been told by USCIS that his application and all other MAVNI applications have been put on hold pending additional DoD background investigations.
Defendants’ Unlawful Conduct Has Caused, and Will Continue to Cause, Substantial and Irreparable Harm to Plaintiffs
75. Plaintiffs are suffering and will continue to suffer irreparable harm if the requested relief is not immediately granted. Depriving U.S. service members of their opportunity to become naturalized citizens, an opportunity earned through their honorable military service and guaranteed by statute, is an ongoing and mounting harm for which there is no recompense.
76. Furthermore, the imposition of new and impermissible naturalization requirements has led to financial distress and hardship for many Plaintiffs. The legal immigration status of many Plaintiffs has been jeopardized by their enlistment in the U.S. military combined with the unlawful delay in naturalization. Without the ability to obtain a job,
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a driver’s license, a passport (which has prevented certain Plaintiffs from visiting loved ones, including ill family members), additional educational opportunities, and the myriad of other privileges that naturalization would afford, many of these Plaintiff soldiers and their families are suffering. Further, the new uncertainty associated with their military careers, and concomitantly their legal status, is causing anguish and is particularly unconscionable given that each Plaintiff is serving during a period of armed conflict and has sworn an oath to protect and defend the United States.
CLASS ACTION ALLEGATIONS 77. The named Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and all other persons similarly situated. The named Plaintiffs seek to represent the following class: 78. Class: All individuals who have: (i) enlisted in the Selected Reserve through the MAVNI program; (ii) served honorably with a Selected Reserve unit through participation in drill periods or served in an active-duty status; (iii) submitted N-400 Applications for Naturalization; (iv) been issued Form N-426s certifying honorable service as a member of the Selected Reserve or in active-duty status; and (v) had the processing of their naturalization applications improperly placed on hold by the Defendants as described above. 79. The members of the Plaintiffs’ class warrant class action treatment because they fulfill the certifying requirements under Rule 23(a) of the Federal Rules of Civil Procedure (“Rule 23(a)”). While the exact number of class members is unknown to Plaintiffs at this time and can be ascertained only through appropriate discovery, Plaintiffs believe that there are hundreds or thousands of members in the proposed class. One DoD official has stated that as many as 10,000 individuals have been recruited through the MAVNI program.
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80. The proposed class meets the numerosity requirement of Rule 23(a)(1) because the members of the class are so numerous that joinder of all members is impractical.
81. The proposed class meets the commonality requirement of Rule 23(a)(2) because there are questions of law and fact common to the class. Among the questions of law and fact common to the class is whether USCIS is acting contrary to the pertinent statute and regulations by suspending processing of MAVNI applications for naturalization pending special background investigations imposed by DoD.
82. The proposed class meets the typicality requirement of Rule 23(a)(3) because the claims of the named Plaintiffs are typical of the claims of each of the class members. Class members similarly are affected by Defendants’ wrongful conduct in violation of federal law, including 8 U.S.C. § 1440, that is described herein.
83. The named Plaintiffs will fairly and adequately protect the interests of the class as required by Rule 23(a)(4) because their interests are identical to those of the other members of the classes. Fair and adequate protection of the interests of the class will be further ensured because the named Plaintiffs are represented by competent legal counsel who are experienced in federal litigation, are undertaking representation on a pro bono basis, and have adequate resources and commitment to represent the class as a whole.
84. Furthermore, as contemplated by Rule 23(b)(1), if the ten individual members of the class were to bring separate suits to address Defendants’ policies, practices, and actions and inactions, Defendants may address the cases of the named Plaintiffs but ignore the naturalization applications and concerns of the remaining class members, thereby exacerbating Defendants’ violations of the law. Resolving this matter as a class action also would serve the Court’s interest in judicial economy, by avoiding overburdening the Court with individual lawsuits
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brought by each of the many enlistees recruited through the MAVNI program whose naturalization applications are, or will be, subject to DoD’s unlawful “hold.”
CLAIMS FOR RELIEF Count I: Declaratory Judgment 85. Plaintiffs re-allege paragraphs one through eighty-four as if fully set forth herein. 86. 28 U.S.C. § 2201 authorizes a court, “[i]n a case of actual controversy within its jurisdiction . . . upon the filing of an appropriate pleading” to “declare the rights and other legal relations of any interested party seeking such declaration.” 87. 8 U.S.C. § 1440 establishes a clear, limited role for DoD in the naturalization process. DoD’s role simply is to verify, by way of Form N-426, whether a service member has served or is serving honorably. 88. DoD’s limited role in the naturalization process does not include performing military-specific background checks, including an SSBI/Tier 5 background investigation, as a pre-requisite to naturalization. Notwithstanding this limited role, Defendants have halted the processing of Plaintiffs’ naturalization applications on the erroneous basis that naturalization pursuant to 8 U.S.C. § 1440 is dependent on the results of a military-specific DoD background check. 89. Accordingly, Plaintiffs seek declaratory judgment that: (i) DoD’s role pursuant to 8 U.S.C. § 1440 is limited to executing Form N-426 confirming whether a service member has served or is serving honorably; (ii) the DoD background checks, including the SSBI/Tier 5, are not part of the requirements for naturalization set forth in 8 U.S.C. § 1440; and (iii) DHS may not, on the basis of DoD instruction, suspend, delay, or hold the processing of the naturalization
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applications of MAVNIs with honorable service (as may be confirmed by a MAVNI’s commander on Form N-426).
Count II: Preliminary and Permanent Injunctive Relief 90. Plaintiffs re-allege paragraphs one through eighty-four as if fully set forth herein. 91. DoD Defendants unlawfully and improperly have instructed DHS Defendants to suspend the processing of Plaintiffs’ N-400 Applications for Naturalization, and have otherwise unlawfully interfered with the processing of such applications, contrary to applicable law. 92. DHS Defendants unlawfully and improperly have complied with DoD’s instruction and have failed to process Plaintiffs’ N-400 Applications for Naturalization in accordance with their obligations under law. 93. Plaintiffs have been, and will continue to be, substantially and irreparably harmed by Defendants’ unlawful and improper actions, for which there is no adequate remedy at law. Under the facts and circumstances of this case, the balance of the equities clearly favors Plaintiffs, and injunctive relief is in the public interest. 94. Accordingly, Plaintiffs seek preliminary and permanent injunctive relief against the DHS Defendants: (i) to compel the DHS Defendants to comply with their statutory obligations pursuant to 8 U.S.C. § 1440 to process without further delay the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class; and (ii) to compel the DHS Defendants to grant priority to, and expedite, the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class to avoid further harm as the harm that has been caused by the unlawful processing suspension that has been imposed on such applications to date.
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95. Plaintiffs seek preliminary and permanent injunctive relief against the DoD Defendants enjoining the DoD Defendants from interfering with the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class.
96. Plaintiffs further seek preliminary and permanent injunctive relief against the Defendants enjoining them from taking any retaliatory actions against the Plaintiffs and the Class.
Count III: Relief Pursuant to the Administrative Procedure Act 97. Plaintiffs re-allege paragraphs one through eighty-four as if fully set forth herein. 98. 5 U.S.C. § 706(1) authorizes a court to “compel agency action unlawfully withheld or unreasonably delayed.” DHS Defendants have unlawfully withheld and/or unreasonably delayed the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the class contrary to the requirements of applicable law including 8 U.S.C. § 1440. 99. Plaintiffs have a clear right to apply for naturalization pursuant to 8 U.S.C. § 1440, which provides an expedited pathway to citizenship. Defendants have interfered with that right and the only adequate remedy is to order DHS Defendants to resume processing Plaintiffs’ applications solely in accordance with existing naturalization criteria, law, and regulations. 100. Accordingly, Plaintiffs seek an order from the Court pursuant to 5 U.S.C. § 706(1) compelling DHS Defendants: (i) to comply with their statutory obligations pursuant to 8 U.S.C. § 1440 to immediately act upon and process without further delay the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class; and (ii) to grant priority to, and expedite, the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class to
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avoid further harm as the harm that has been caused by the unlawful processing suspension that has been imposed on such applications to date.
Count IV: Mandamus 101. Plaintiffs re-allege paragraphs one through eighty-four as if fully set forth herein. 102. DHS Defendants unlawfully and improperly have failed to process the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class in accordance with their obligations under law. 103. 28 U.S.C. § 1361 authorizes a court to “compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff” if the plaintiff can demonstrate that: (1) the plaintiff seeking mandamus has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available. 104. Plaintiffs have a clear right to apply for naturalization pursuant to 8 U.S.C. § 1440, which provides an expedited pathway to citizenship. Defendants have interfered with that right and the only adequate remedy is to order DHS Defendants to resume processing Plaintiffs’ applications solely in accordance with existing naturalization criteria, law, and regulations. 105. Accordingly, Plaintiffs seek issuance of a writ of mandamus compelling DHS Defendants: (i) to comply with their statutory obligations pursuant to 8 U.S.C. § 1440 to immediately act upon and process without further delay the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class; and (ii) to grant priority to, and expedite, the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class to
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avoid further harm as the harm that has been caused by the unlawful processing suspension that has been imposed on such applications to date.
PRAYER FOR RELIEF Wherefore, Plaintiffs, on behalf of themselves and the class, respectfully request that this Court: 1. Assume jurisdiction over this action; 2. Issue the declaratory judgment requested in Count I of this Complaint; 3. Grant the preliminary and permanent injunctive relief requested in Count II of this
Complaint; 4. Grant the relief requested pursuant to the APA (Count III of this Complaint); 5. Issue the mandamus requested in Count IV of this Complaint; 6. Award Plaintiffs and the Class reasonable costs and attorneys’ fees, including under
the Equal Access to Justice Act; 7. Award such further relief as the Court deems just or appropriate.
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Respectfully submitted this 24th day of May, 2017.
/s/ Joseph J. LoBue Joseph J. LoBue (D.C. Bar No. 484097) Douglas W. Baruch (D.C. Bar No. 414354) Jennifer M. Wollenberg (D.C. Bar No. 494895) Neaha P. Raol* (D.C. Bar No. 1005816) Webster R. M. Beary* (D.C. Bar No. 1041653) Shaun A. Gates* (D.C. Bar No. 1034196) Katherine L. St. Romain* (D.C. Bar No. 1035008) Fried, Frank, Harris, Shriver & Jacobson LLP 801 17th Street, NW Washington, D.C. 20006 Telephone: (202) 639-7000 Facsimile: (202) 639-7003 E-mail: joseph.lobue@friedfrank.com Counsel for Plaintiffs *Application for admission to the bar of the United States District Court for the District of Columbia pending
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 Case 1:17-cv-00998-ESH-RMM Document 61 Filed 10/20/17 Page 1 of 65

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

)

KUSUMA NIO, et al.,

)

)

PLAINTIFFS,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY; UNITED STATES )

CITIZENSHIP AND IMMIGRATION

)

SERVICES: ELAINE DUKE, in her official

)

capacity as Secretary of the U.S. Department of )

Homeland Security (Acting); L. FRANCIS

)

CISSNA, in his official capacity as Director of )

United States Citizenship and Immigration

)

Services; UNITED STATES DEPARTMENT )

OF DEFENSE; and JAMES MATTIS, in his

)

official capacity as Secretary, U.S. Department of )

Defense.

)

)

DEFENDANTS.

)

No. 1:17-cv-00998-ESH
SECOND AMENDED CLASS ACTION COMPLAINT AND PRAYER FOR DECLARATORY, TEMPORARY, PRELIMINARY AND PERMANENT INJUNCTIVE, ADMINISTRATIVE PROCEDURE ACT, AND MANDAMUS RELIEF

COMPLAINT 1. On behalf of a group of United States soldiers who deserve much more, this action seeks to restore honor, transparency, and the rule of law to a once-orderly naturalization process that has become plagued by dishonor, irrationality, and lawlessness. Until the actions complained of herein began, naturalization of military enlistees was swift and straightforward, as Congress intended and specified. Eligible enlistees sought and obtained certifications of their honorable service, immigration officials expedited the paperwork, and immigration personnel rendered eligibility determinations based on the same fundamental citizenship factors that apply to all persons seeking to be naturalized. Indeed, naturalization for those soldiers who apply and satisfy the eligibility requirements is mandatory – the naturalization at issue here is not a
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discretionary immigration benefit. That orderly and fair process – applied to thousands of soldiers – came to a screeching halt within the last year. Since then, even though they otherwise satisfy the necessary eligibility criteria and are serving honorably in the military, hundreds of enlistees have had their naturalization applications placed on “hold” – and their lives upended – as a result of ill-considered and ultimately unlawful policy decisions by agency bureaucrats. The conduct complained of herein is a disservice to these soldiers, who have sworn allegiance to the United States and committed to defend this Nation during a time of military conflict – and it is well past time for this unlawful conduct to end.
2. Plaintiffs are enlisted non-citizen United States Army soldiers who are serving honorably in the Selected Reserve of the Ready Reserve (“Selected Reserve”). By virtue of their honorable service in the Selected Reserve, federal law, including 8 U.S.C. § 1440, entitles each Plaintiff-soldier to apply to become a naturalized United States citizen and it requires immigration officials to adjudicate those applications in accordance with the law. Plaintiffs have upheld their end of the bargain. Defendants have not.
3. Instead, via improper inter-agency instructions, unlawful agency guidance and final agency actions, and other unlawful means, Defendants are impeding and delaying the naturalization of these soldiers by imposing on them additional citizenship qualifications/criteria which have no lawful basis. And, by so doing, Defendants are acting unlawfully and depriving Plaintiffs of the valuable rights due to them under the law. Through this action, on behalf of themselves and all similarly-situated United States soldiers, Plaintiffs seek injunctive, declaratory, and other relief from this Court in order to compel and enjoin Defendants as necessary to process and adjudicate Plaintiffs’ naturalization applications as required by law.
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4. The United States recruited and enlisted each Plaintiff into the Armed Forces of the United States under the Military Accessions Vital to the National Interest (“MAVNI”) program, a program touted by Defendant United States Department of Defense (“DoD”) as “vital to the national interest,” under which certain non-U.S. citizens with critical language skills and/or specialized medical training enlist and serve in the United States Armed Forces. DoD recruits individuals into the MAVNI program by, among other things, representing that enlistees will be granted an “expedited” path to U.S. citizenship via naturalization. Indeed, DoD mandates – via written enlistment contracts – that Plaintiffs and other MAVNI recruits apply for U.S. citizenship as soon as the service branch (e.g., the Army) has certified their honorable service.
5. Each Plaintiff-soldier has kept his/her end of the bargain. Equipped with the specialized skills – such as medical training and foreign language capabilities – sought by military leaders to fill critical personnel needs, each Plaintiff (a) enlisted in the Army, (b) is serving honorably and has obtained from DoD a duly-issued N-426 Form confirming his/her honorable service in the Selected Reserve, and (c) has applied for naturalization with Defendant United States Department of Homeland Security (“DHS”). As enlisted soldiers in the Selected Reserve, Plaintiffs are and have been serving in the United States military, have sworn an oath to support and defend the Constitution of the United States and are obliged to serve this Nation at the direction of their military commanders.
6. However, in violation of federal law, including 8 U.S.C. § 1440, Defendants have reneged on the representations made to these soldiers and are failing to process their naturalization applications as the law requires. Thus, Defendants are blocking and delaying the valuable benefit afforded by law to these highly sought after military enlistees – namely, the prospect of expedited United States citizenship.
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7. Among other actions, DoD improperly instructed DHS and its component agency, Defendant United States Citizenship and Immigration Services (“USCIS”), to place Plaintiffs’ naturalization applications on “hold” pending the successful completion of specialized background investigations done by the military for DoD purposes (and not required by the laws governing naturalization). DHS and USCIS acquiesced and unlawfully placed Plaintiffs’ naturalization applications on “hold” pending completion of these military background investigations. There is no lawful basis for DoD’s instruction and interference, nor is there any legal basis for DHS and USCIS to permit or acquiesce in such interference or to impose the “hold.” The military security clearance criteria being applied to Plaintiffs’ naturalization applications have never before been applied to citizenship applications and are not found in any naturalization statute. In fact, this new and additional screening being imposed by DoD (and enabled and adopted by DHS) has nothing to do with citizenship eligibility, but instead is reserved for persons applying for high-level governmental security clearances. In other words, there is no U.S. law that conditions naturalization on an applicant’s ability to obtain a high-level security clearance, yet Defendants are imposing that condition on Plaintiffs. As a result of this unlawful conduct, Plaintiffs are facing imminent and irreparable harm due to the withholding of and/or delay in the processing of their naturalization applications.
8. The enhanced scrutiny and interference by Defendants are not unique to the named Plaintiffs, nor does the conduct arise out of any particular security or other concern specific to these Plaintiffs; indeed, each Plaintiff believes that he/she is eligible to be naturalized and would be naturalized but for the hold and the new, unlawful, and extra-statutory preconditions to naturalization that Defendants have imposed on Plaintiffs as described herein.
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Defendants’ policies apply to certain MAVNI enlistees who have applied for – or are eligible to apply for – naturalization but have not yet been granted citizenship.
9. Incredibly, to make matters worse, DoD recently has adopted new policies precluding the certification of honorable service of members of the Selected Reserve until these soldiers serve in an active duty status and/or satisfy other preconditions to naturalization established by DoD. DoD’s policies – and naturalization conditions – are contrary to the plain language of 8 U.S.C. § 1440 and implementing regulations. Compounding the impact of this illconsidered and unlawful policy, pursuant to a final DoD policy implemented on October 13, 2017, DoD is revoking or decertifying previously-issued N-426 honorable service certifications for Selected Reserve MAVNIs, including Plaintiffs. Upon information and belief, DoD’s policies with respect to these honorable service certifications has been undertaken in whole or in part in order to further delay, interfere with, and/or prevent the naturalization of Selected Reserve MAVNIs and, ultimately, to facilitate their discharge from the military. Simply put, DoD wants to set its own conditions for naturalization for these soldiers. For its part, DHS is facilitating this DoD conduct, including by continuing to “hold” the final adjudication of naturalization applications pending DoD’s implementation of these policies.
10. Accordingly, Plaintiffs bring this civil action on behalf of themselves in their individual capacities, and on behalf of a class of all similarly-situated individuals (“the Class”), to obtain Administrative Procedure Act (“APA”), mandamus, declaratory, due process, and temporary, preliminary, and permanent injunctive relief to compel and enjoin Defendants so that they comply with their obligations pursuant to the Constitution and the mandates and directions specified in federal law, including 8 U.S.C. §§ 1440 and 1571, to properly and timely act upon, and to otherwise cease interfering with, the processing of Plaintiffs’ naturalization applications.
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JURISDICTION 11. This action arises under the Immigration and Nationality Act of 1952 (“INA”) and the U.S. Constitution. This Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal question) and the APA, 5 U.S.C. § 701 et seq.
VENUE 12. Venue is proper in the Court under 28 U.S.C. § 1391(e) because the individual Defendants are officers of the United States acting in their official capacities, and the United States Department of Homeland Security, the United States Citizenship and Immigration Services, and the United States Department of Defense are all present in this district. Further, the individual Defendants perform official duties in Washington, D.C.
PARTIES1 13. Plaintiff Dr. Kusuma Nio resides in Springfield, Illinois. Dr. Nio enlisted in the Selected Reserve through the MAVNI program in August 2015 and serves with the 1st Forward Surgical Team in Fort Hamilton, New York. Plaintiff Wanjing Li resides in St. Louis, Missouri. Ms. Li enlisted in the Selected Reserve through the MAVNI program in February 2016 and serves with the 325th Combat Support Hospital.

1

Following the initiation of this action, as previously acknowledged in Court filings,

Plaintiffs Nio and Park became naturalized United States citizens. As such they no longer are

seeking some of the relief they originally sought, namely related to the final processing of their

naturalization applications, and the allegations by “Plaintiffs” in this Second Amended

Complaint with respect to such relief should not be deemed to include them. For the same

reasons, these two plaintiffs did not join in Plaintiffs’ original Motion for Preliminary Injunction

or the renewed Motion for Temporary and Preliminary Injunctive Relief, filed

contemporaneously with this Second Amended Complaint. Plaintiffs remain in this case in order

to obtain the benefit of all other relief sought in this action that remains available to them.

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14. Plaintiff Jae Seong Park resides in Fort Jackson, South Carolina. Mr. Park enlisted in the Selected Reserve through the MAVNI program in October 2015, completed Basic Combat Training (“BCT”) at Fort Jackson, South Carolina in December 2016, and remains on active-duty status at Fort Jackson awaiting assignment to further training.
15. Plaintiff Haendel Crist Calisto Alves de Almeida resides in West New York, New Jersey. Mr. Almeida enlisted in the Selected Reserve through the MAVNI program in May 2016 and serves with the 405th Combat Support Hospital located in West Hartford, Connecticut.
16. Plaintiff Prashanth Batchu resides in Union City, New Jersey. Mr. Batchu enlisted in the Selected Reserve through the MAVNI program in June 2016 and serves with 419th Transportation Company.
17. Plaintiff Lucas Calixto resides in Somerville, Massachusetts. Mr. Calixto enlisted in the Selected Reserve through the MAVNI program in February 2016 and serves with the 743rd Transportation Company in Roslindale, Massachusetts.
18. Plaintiff Shu Cheng resides in Temple City, California. Ms. Cheng enlisted in the Selected Reserve through the MAVNI program in February of 2016 and serves with the 349th Combat Support Hospital in Bell, California.
19. Plaintiff Seung Joo “Josh” Hong resides in Germantown, Maryland. Mr. Hong enlisted in the Selected Reserve through the MAVNI program in May 2016 and serves with the 392nd Signal Battalion.
20. Plaintiff Ye Liu resides in Dearborn, Michigan. Mr. Liu enlisted in the Selected Reserve through the MAVNI program in March 2016 and serves with the 1001st Quartermaster Company in Columbus, Ohio.
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21. Plaintiff Emeka Udeigwe resides in Cleveland, Ohio. Mr. Udeigwe enlisted in the Selected Reserve through the MAVNI program in March 2016 and serves with the 463rd Engineer Battalion unit in Wheeling, West Virginia.
22. Defendant United States Department of Homeland Security is responsible for the administration and enforcement of immigration laws of the United States.
23. Defendant Elaine Duke is sued in her official capacity as Acting Secretary of the United States Department of Homeland Security.2 The Secretary of DHS is responsible for the administration and enforcement of immigration laws of the United States.
24. Defendant United States Citizenship and Immigration Services is responsible for the overall administration and the implementation of the immigration laws of the United States.
25. Defendant L. Francis Cissna is sued in his official capacity as Director of the United States Department of Homeland Security, United States Citizenship and Immigration Services. The Director of USCIS is responsible for the overall administration of USCIS and the implementation of the immigration laws of the United States.
26. Defendants DHS, Ms. Duke, USCIS, and Mr. Cissna are collectively referred to as the “DHS Defendants.”
27. Defendant United States Department of Defense is responsible for the overall administration of military policy, which includes the MAVNI program.

2

Following the commencement of this action, Gen. John Kelly transitioned to a new

position. As Gen. Kelly was sued solely in his official capacity based on his official duties as

DHS Secretary, it is appropriate that Ms. Duke, or her successor – acting or permanent – is

substituted as the “DHS Secretary” party to this action. Similarly, on October 8, 2017, L. Francis

Cissna was confirmed as Director of USCIS and, as such, he should be substituted for Mr.

McCament.

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28. Defendant James Mattis is sued in his official capacity as Secretary of Defense of the United States Department of Defense. As Secretary of Defense, Gen. Mattis is responsible for the overall administration of DoD, which includes the MAVNI program.
29. Defendants DoD and Gen. Mattis are collectively referred to as the “DoD Defendants.”
BACKGROUND AND FACTS The MAVNI Program and Plaintiffs’ Service Commitments 30. Typically, U.S. Armed Forces enlistees must meet U.S. citizenship or permanent residence requirements. 10 U.S.C. § 504(b). However, 10 U.S.C. § 504(b)(2) authorizes the Secretary of Defense and the Secretaries of the military service departments to enlist certain non-U.S. citizens and non-permanent residents if enlistment of such individuals is “vital to the national interest.” Under this authority, DoD initiated the MAVNI program in 2008. 31. The MAVNI program is designed to attract two types of recruits into the military: (a) health care professionals and (b) individuals who possess critical foreign language skills. DoD officials acknowledge that soldiers with these skills “are necessary to sustain effective military operations.” The MAVNI pilot program was initiated in 2008, and operated from 2009 through the present, with brief interruptions and enlistment suspension periods. 32. Under MAVNI, DoD encouraged qualified individuals to enlist, in large part, by touting the opportunity of an “expedited” path to U.S. citizenship, and, DoD even has contractually mandated that MAVNI enlistees – including Plaintiffs – apply for citizenship “as soon as the [service branch (e.g., the Army)] has certified [the MAVNI recruit’s] honorable service.” This citizenship opportunity was a powerful enticement to Plaintiffs and other such qualified individuals who contemplated MAVNI enlistment.
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33. Plaintiffs are soldiers who possess the skills that DoD has deemed “vital to the national interest.” They enlisted under the MAVNI program, signed MAVNI enlistment contracts, and are serving honorably in the Selected Reserve. Each Plaintiff has taken the military service oath. Each Plaintiff’s enlistment contract obligates him/her to eight years of service in the Army Reserve, six years of which must be served in the Selected Reserve. Each Plaintiff is assigned to a U.S. Army Selected Reserve unit and each has served with his/her unit by participating in multiple Selected Reserve drill periods or by serving in an active-duty status. Finally, a responsible and authorized Army official has executed a Form N-426 for each Plaintiff, certifying his/her honorable service in the military as a member of the Selected Reserve.
34. The commitment that each Plaintiff has undertaken to serve as a soldier in the U.S. Army Reserve is serious and substantial. As the standard MAVNI Army Reserve enlistment contract states, an agreement to enlist “is more than an employment agreement. It effects a change in status from civilian to military member of the Armed Forces.” As such, per the Enlistment/Reenlistment Document Armed Forces of the United States (DD Form 4/1), each soldier (a) is “[r]equired to obey all lawful orders and perform all assigned duties,” (b) is “[s]ubject to the military justice system” and, among other things, “may be tried by military courts-martial,” (c) may be “[r]equired upon order to serve in combat or other hazardous situations,” and (d) must otherwise “meet acceptable military standards” such that any failure to meet their service obligations as Selected Reservists can result in demotion and/or discharge from the service under other than honorable conditions.
35. As a member of the Army Reserve, each soldier “may at any time, and without [his/her] consent, be ordered to active duty to complete a total of 24 months of active duty.” In times of war or national emergency declared by Congress, these soldiers “may, without [his/her]
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consent, be ordered to serve on active duty for the entire period of the war or emergency and for six (6) months after its end.” As members of the Selected Reserve, these soldiers may, without their consent, be ordered to 365 days of consecutive active duty whenever “the President determines that it is necessary to augment the active forces for any operational mission or for certain emergencies.”
36. Finally, as members of the U.S. military, Plaintiffs may be required to compromise individual liberties that are considered fundamental in ordinary American society. As their enlistment contracts provide, a service member’s freedom of religious expression may be curtailed: “I understand that the Army cannot guarantee accommodation of religious practices, and that religious accommodations may be modified or revoked based on changes in military necessity.” A service member’s freedom of speech, expression, and association also may be curtailed. Consequently, prior to enlistment, the Army provides recruits with USMEPCOM Form 601-23-4 – “Restrictions on Personal Conduct in the Armed Forces” – which specifies that military service entails behavioral limitations not applicable to civilians in America:
Military life is fundamentally different from civilian life. The military has its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society. These are necessary because military units and personnel must maintain high standards for morale, good order and discipline, and unit cohesion that are essential for combat effectiveness.
The Statutory and Regulatory Framework Applicable to Plaintiffs’ Naturalization Applications
37. The Constitution confers upon Congress the power to establish a uniform Rule of Naturalization. U.S. Constitution, Art. I, Sect. 8, Cl. 4. One naturalization statute enacted by
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Congress pursuant to its Constitutional authority and applicable to Plaintiffs here is plain and simple. The INA, at 8 U.S.C. § 1440(a), provides that:
[a]ny person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States . . . during any . . . period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force . . . may be naturalized as provided in this section . . . . 38. On July 3, 2002, the President determined by Executive Order that the military is engaged in armed conflict for the purposes of 8 U.S.C. § 1440. Exec. Order No. 13269, 67 Fed. Reg. 45,287 (July 3, 2002). Executive Order No. 13269 has remained in effect through the present. 39. Section 1440 eases the path to U.S. citizenship for certain non-U.S. citizens who serve in the Selected Reserve or on active duty in the United States Armed Forces during a time of armed conflict. Such service members qualify for naturalization under this section with honorable service “as a member of the Selected Reserve of the Ready Reserve or in an activeduty status.” 8 U.S.C. § 1440 (emphasis added). This disjunctive language of the statute is clear and unequivocal: Selected Reserve service alone qualifies a person to naturalize, and citizenship is not dependent on an individual performing active-duty service. 40. The statute eases the path to citizenship in at least three specific 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
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be required.” 8 U.S.C. § 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. 8 U.S.C. § 1440(b)(4).
41. DoD’s role under this statute is limited, ministerial, and non-discretionary. The service member’s executive department (i.e., service branch) merely certifies to DHS – the agency responsible for adjudicating and conferring citizenship – the service member’s service and whether it is honorable.
42. The statute contains an express revocation provision that provides, in pertinent part, the following: “Citizenship granted pursuant to this section may be revoked in accordance with section 1451 of this title if the person is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years.” 8 U.S.C. § 1440(c).
43. The regulations implementing 8 U.S.C. § 1440 are located at 8 C.F.R Part 329, entitled “SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: PERSONS WITH ACTIVE DUTY OR CERTAIN READY RESERVE SERVICE IN THE UNITED STATES ARMED FORCES DURING SPECIFIED PERIODS OF HOSTILITIES.” Section 329.2 provides that a service member is eligible for naturalization under 8 U.S.C. § 1440 upon establishing that he or she has “served honorably in the Armed Forces of the United States as a member of the Selected Reserve of the Ready Reserve or in an active duty status in the Armed Forces of the United States during . . . [a]ny other period as may be designated by the President in an Executive Order pursuant to section 329(a) of the Act . . . .” Like the statute, the disjunctive language of the implementing regulations makes clear that “active duty service” is not required if the soldier has served in the Selected Reserve.
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44. Volume 12 of the USCIS Policy Manual, the agency’s centralized repository for USCIS’s immigration policies, explains the laws and policies that govern United States citizenship and naturalization, and further confirms that service in the Selected Reserve counts as qualifying service; indeed, “[o]ne day of qualifying service is sufficient in establishing eligibility.” USCIS Policy Manual Volume 12, Part I, Chapter 3, current as of July 26, 2017 (emphasis added).
45. The regulations also confirm that the honorable service requirement can be satisfied either through current service that is honorable or a separation from military service under honorable conditions: “[h]onorable service and separation means service and separation from service which the executive department under which the applicant served determines to be honorable . . . .” 8 C.F.R 329.1 (emphasis in original). See also 10 U.S.C § 12685; Army Regulation 135-178 (“Army National Guard and Reserve, Enlisted Administrative Separations”). The service department “under which the applicant served or is serving” certifies the member’s honorable service to USCIS officials. 8 C.F.R. 329.4.
46. USCIS has established an official form for this purpose – “USCIS Form N-426: Request for Certification of Military or Naval Service” – wherein the military service branch certifies whether or not the applicant is serving or has served honorably.
47. Notably, the Army recited the statutory framework for citizenship in the standard enlistment contract that each Plaintiff signed, confirming the Army’s limited role in certifying the service under Section 1440 and making clear that the actual citizenship determinations are not made by the military:
3. I understand that I am enlisting under a federal law that allows the Secretary of the Army to authorize the enlistment of certain non-citizens of the United States (10 U.S.C. 504(b)(2)). I also understand that I am enlisting during a period of time in which any
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alien who serves honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air or naval forces of the United States may apply for United States Citizenship (8 U.S.C. 1440). 4. In exchange for being permitted to enlist in the Army, I agree to apply for U.S. citizenship as soon as the Army has certified my honorable service. I understand that the Army does not grant U.S. citizenship, and the Army does not guarantee that my application for U.S. citizenship will be approved.
Defendants’ Violations of Applicable Law 48. Plaintiffs have fulfilled their obligations under the law and their enlistment contracts. They possess the language and/or medical skills deemed “vital” by DoD. They enlisted as members of the Selected Reserve during a period of armed conflict, thereby serving a “vital national interest.” They are serving honorably. They obtained N-426 certifications from DoD confirming their honorable service. And, they have applied to become naturalized United States citizens. 49. Defendants have failed to fulfill their statutory and regulatory duties and are improperly and unlawfully interfering with and/or delaying the lawful naturalization adjudication process.
DoD’s Improper Interference in the Naturalization Process 50. Impeding Plaintiffs’ “expedited” path to citizenship, DoD (as described below) improperly instructed DHS to suspend the processing of Plaintiffs’ naturalization applications. This instruction is improper and unlawful because it exceeds DoD’s lawful authority and interferes with DHS’s duties. In fact, DoD’s (and its military service departments’) sole role in Plaintiffs’ naturalization process is ministerial and non-discretionary. The relevant military department simply certifies whether the service member seeking naturalization is serving, or has served, honorably. That task is simple, objective, and quick. It involves no investigation,
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security screenings, research, or subjectivity. Filled out by the soldier’s immediate command authority who have direct knowledge of the soldier’s service status and/or access to the soldier’s service record, it routinely is accomplished in minutes.
51. For each Plaintiff, the Army already has performed this ministerial function by executing N-426 forms confirming that each Plaintiff has fulfilled the honorable service requirement. Even if DoD cannot confirm a Selected Reservist’s honorable service, DoD nevertheless is obligated to complete the N-426 Form, verifying the period of service and stating – in the block provided on the Form for this very purpose – the reasons why the service was not honorable, if applicable. DoD has no further role in the naturalization application process. DoD has no legal authority to refuse to provide N-426 certifications to MAVNIs who request them, to de-certify, recall, or revoke N-426 certifications, or to direct or request DHS to suspend or “hold” final adjudication of Plaintiffs’ naturalization applications or impose additional military conditions or requirements for naturalization.
52. On September 30, 2016, the Under Secretary of Defense for Personnel and Readiness (Acting) promulgated policy guidance directing the military departments to delay orders to active-duty training for MAVNI enlistees until DoD completed security clearance investigations, such as Tier 5 (formerly known as SSBI) investigations and Counterintelligence Security Interviews (“CI”), for such enlistees. And, notwithstanding its sharply limited and purely ministerial role in the naturalization process for Plaintiffs per statute – i.e., the confirmation of honorable service – in an improper attempt to delay or prevent the final adjudication of their applications, DoD (and its service branch, the Army) instructed DHS to stop processing MAVNI applications for naturalization pending completion of the security clearance investigations. For their part, DHS and USCIS complied with, or acquiesced in DoD’s improper
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instruction, or otherwise agreed, and halted the full processing of all MAVNI naturalization applications contrary to its duties under law. The result has been a cessation and delay in the processing and final adjudication of Plaintiffs’ naturalization applications for impermissible and unlawful reasons. Prior to September 30, 2016, the naturalization applications of MAVNI service members were processed to completion, and citizenship was conferred, without such DoD security clearance investigations.
53. Since September 2016, numerous officials (from both DoD and USCIS) have admitted that DHS and USCIS have implemented this “hold” pursuant to DoD’s instruction. For example, on March 14, 2017, in response to a Congressional inquiry on behalf of a MAVNI service member whose naturalization application had been delayed, a USCIS field office reported that “Ms. [X’s] case is pending due to military background checks required by the Department of Defense. USCIS is unable to render a decision on Ms. [X’s] application at this time.” In April 2017, another USCIS field office supervisor confirmed that there was a “new DoD memo” issued in recent months stating that all applications from MAVNI soldiers who have not started initial active-duty training are “now on hold.”
54. USCIS representatives on the “military hotline” likewise have informed MAVNI service members – including some of the Plaintiffs – that MAVNI naturalization applications have been placed on “hold” pending completion of the extensive, military-specific background investigations being imposed by DoD. These communications from USCIS have taken place over the course of the last several months, including February, March, April, and May 2017.
55. On February 6, 2017, a U.S. Army Human Resources Command official – who claims to have consulted with “senior DoD officials” – stated that “[t]he Army does not have any plans of letting a USAR [i.e., U.S. Army Reserve] MAVNI get naturalized” before he/she is
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ordered to initial active-duty training upon completion of the extensive, military-specific

background investigations being imposed by DoD.

56. Neither the Army nor DoD has any legal authority to “let” or “not let” MAVNI

soldiers serving honorably as members of the Selected Reserve “get naturalized.” Under the law,

the Army’s role merely is to certify whether the MAVNI service member is serving, or has

served, honorably. Indeed, Defendant officials recently have admitted that DoD serves only “a

ministerial role in determining if an individual is serving honorably” through the issuance of a

Form N-426: “The submission of this form confirms whether the applicant served honorably as a

member of the SRRR [Selected Reserve of the Ready Reserve] or in an active-duty status.” The

Army already has made that certification, in writing, for each Plaintiff through duly issued N-

426s.

57. Nevertheless, the evidence is overwhelming that DoD further insinuated itself into

the naturalization process by instigating, directing, and driving the unlawful naturalization

“hold.” Some of the additional evidence on this point is summarized in the table below:

Feb. 2017 Feb. 2017 Apr. 2017
Apr. 2017

A USCIS official states: “If any field office has MAVNI Select Reserve of the Ready Reserve who are drilling and have no ship date for Basic Training, please hold the case as we are awaiting guidance from DOD regarding what constitutes serving in the armed forces.”
A USCIS official states: “We are working with OCC to determine what to do with MAVNI N-400s who are on hold pending the DOD enhanced BGC while in Basic Training.”
A DoD official admits that: “Knowing that …failure of these background checks could lead to discharge from the military and make an individual unable to meet the honorable service requirements that the N-426 certifies, a strategic pause was prudent with respect to the MAVNI pilot program. As a result, DoD and USCIS mutually agreed that USCIS would slow down the Form N-400 adjudication of the MAVNI pilot program applicants.”
A USCIS official states: “These cases should also be placed on hold pending the OSD [Office of the Secretary of Defense] response. Please advise field offices of the hold. Once we receive guidance from OSD, CB will forward it ASAP as we understand the extensive impact the hold has on both the USCIS Field and

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Apr. 2017 Apr. 2017
May 2017 May 2017

the DOD Field.”
A USCIS Congressional Liaison informs the Office of Senator Sheldon Whitehouse of the following: “On April 13, 2017, we received guidance from our Headquarter to place a temporary hold on certain military cases pending further guidance from the Office of the Secretary of Defense.”
A MAVNI doctor relays to Army personnel what USCIS informed him about the hold on his N-400 application, including the following: “All MAVNI applications are currently on hold [because] the office has become aware of ambiguities in the law, which they believe indicates the need for soldiers to do at least a day of active duty, such as attending Basic training.... [and] they couldn’t move forward until the secretary of defense clarified what constituted active duty.”
A news organization comments on the DoD hold and also references an Army document which explains the immigration status predicament that the DoD hold is causing: “His citizenship oath was postponed indefinitely April 13 by the United States Citizenship Immigration Service, who told him the Defense Department has suspended all applications from foreign-born recruits looking to serve.”
The Department of the Army informs Congressman Jeff Duncan of the following: “[Your constituent’s] naturalization application cannot be forwarded to [USCIS] at this time. Current US Army policy states that [MAVNI] applicants will be processed for expedited naturalization upon arrival at their Basic Combat Training unit…. In addition to the required SSBI, a National Intelligence Agency Check and a Counterintelligence Interview must also be performed and with favorable results prior to permitting these applicants to depart for active duty. These required actions can take 8-24 months to complete and render a decision.”

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May 2017
May 2017 June 2017 July 2017 July 2017 July 2017 July 2017

A USCIS Congressional Liaison relayed the following information to the Office of Senator Sheldon Whitehouse: “[USCIS officials] are certainly aware of [the MAVNI naturalization applicant’s] situation and that of others but they are unfortunately stuck at a standstill until they receive word from DoD that it is ok to go forth in processing [the MAVNI naturalization applicant’s] N-400….The reason DoD is in a standstill is because there are various types of MAVNI cases, each with different specialties. When the DoD decides when/which certain specialties are needed, they will process those security clearances and coordinate with USCIS. [USCIS] unfortunately cannot give a timeframe on this for now.”
A USCIS official states that “USCIS is currently working with DOD on the intent of the MAVNI extension memo as it relates to these cases, With the memo in mind, the following N-400 applications should be held until we receive further guidance on these cases.”
A news article quotes a USCIS spokesperson: “USCIS spokeswoman Jane Cowley said …the agency is ‘reviewing’ the policy on whether service before basic training counts toward eligibility for citizenship. ‘The current hold (on the MAVNI program) applies to all recruits who have not attended basic training or whose security or suitability screening requirements have not been completed’….”
A DoD official admits that “[o]n or around April of 2017, senior leaders from DoD’s USD (P&R) 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.”
A DoD official admits that “DoD and USCIS mutually agreed that USCIS would slow down the Form N-400 adjudications.”
A DoD official admits that “DOD and USCIS jointly determined that it was in the best interest of the United States to ensure the naturalization decision of USCIS was informed by the outcome of the completed OPM background investigation and the DoD counterintelligence security review.”
A DoD official states that DoD “actually call[ed] up USCIS” to “tell them to slow down the process” for the MAVNI naturalization applications.

DHS Accepts and Adopts the Unlawful Naturalization “Hold” 58. Beginning in at least February 2017, and at the behest of DoD, USCIS’s Field Operations Directorate (“USCIS FOD”) issued a string of directives to USCIS field offices providing “final agency guidance” and “setting national policies regarding the processing of N400 applications filed by MAVNI recruits.” These directives established a series of “holds” on

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the processing and final adjudication of naturalization applications filed by MAVNI Selected Reserve soldiers.
59. On February 28, 2017, USCIS FOD verbally instructed field offices to “hold” the processing of naturalization applications filed by “MAVNI Select Reserve of the Ready Reserve who are drilling and have no ship date for Basic Training” pending “guidance from DOD regarding what constitutes serving in the armed forces.” This “hold” was unlawfully, improperly, and irrationally applied to Plaintiffs (and the members of the Class) because DoD already has issued each of the Plaintiffs (and each member of the Class) an N-426 certifying their honorable service for naturalization under 8 U.S.C. § 1440.
60. On April 13, 2017, via e-mail, USCIS FOD issued a directive entitled “Reservist N-400 Hold.” The directive stated that the National Benefits Center had imposed a “hold” on applications from members of the Selected Reserve of the Ready Reserve “at such time as the cases become interview ready” and instructed the field offices to do the same. The fact that such cases had become “interview ready” establishes that any and all necessary USCIS background investigations required for naturalization had been completed as to these applicants. Nevertheless, USCIS directed that the processing of “[t]hese cases should be placed on hold pending the OSD [Office of the Secretary of Defense] response” regarding the definition of “active duty.” USCIS applied the hold to Plaintiffs (as well as Class members) even though the directive otherwise acknowledged that, with respect to already-signed N-426s, “USCIS field offices should proceed as ‘business as usual’ unless suspicion of abuse of authority {e.g. Academy cadets are not eligible under 328 or 329} is suspected.” This “hold” was unlawfully, improperly, and irrationally applied to Plaintiffs (and other members of the Class) who already had obtained duly and properly issued N-426 certifying their honorable service.
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61. On May 19, 2017, via email, USCIS FOD issued a directive entitled “MAVNI Hold.” This directive reiterated that a hold was in place on the processing of naturalization applications filed by members of the Selected Reserve of the Ready Reserve in the Delayed Training Program who had not yet been to basic combat training.
62. On May 25, 2017, via email, USCIS FOD repeated its directive to field offices that “N-400 applications should be held” on cases for “MAVNI SRRR recruits who have attended drill but have not attended Basic per the September 30, 2016 [DoD] memo.” USCIS applied the hold to Plaintiffs (as well as the members of the Class) even though this directive likewise acknowledged that: “The N-426 should be completed by the commanding officer or a person authorized to sign on his/her behalf. Only if the form is blank or signed by someone obviously not performing in the capacity of a commander or acting for the commander should we make a call or R[equest] F[or] E[vidence].” This “hold” was unlawfully, improperly, and irrationally applied to Plaintiffs (and other members of the Class) who had a duly and properly issued N-426 certifying their honorable service.
63. On July 7, 2017, after the filing of the original Complaint in this action, USCIS FOD issued another directive to field offices:
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. 64. According to statements by Defendant officials, the newly-required “enhanced DoD security checks” include a Tier 5 (formerly SSBI) investigation, a National Intelligence Agency Check (“NIAC”), a CI review, and a CI interview. Defendant officials also asserted the possibility of “an issue-oriented interview and/or issue-oriented polygraph.” USCIS directed its
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field offices “not to complete naturalization adjudications under section 329(a), 8 U.S.C. § 1440(a), for MAVNI recruits until after these checks have been completed.” USCIS has made clear that this directive applies to “all currently pending and future MAVNI naturalization applicants applying for naturalization under section 329(a), 8 U.S.C. § 1440(a),” which includes Plaintiffs and the members of the Class.
65. The “enhanced DoD security checks” being imposed on MAVNI soldiers conflict with existing USCIS background investigation guidelines. The published USCIS Policy Manual sets forth the background checks required for military members who apply for naturalization, specifying that military applicants require only those background checks that are required for “all applicants for naturalization” as well as a “Defense Clearance Investigative Index (DCII) query.” At least as late as May 25, 2017, USCIS followed its published guidance (in this respect, while holding the naturalization applications for a different unlawful reason) as USCIS officials acknowledged that “USCIS should not request SSBI results for any military naturalization applications . . . [and that] USCIS should proceed with the standard background and security checks we currently run.” And Defendant officials have admitted in filings with the Court that USCIS’s “longstanding policy” with respect to military background checks has been limited to DCII queries. Thus, the USCIS July 7, 2017 directive conflicts with USCIS’s own published guidance and longstanding prior practice. Moreover, on information and belief, USCIS (including in particular the USCIS official who issued the July 7, 2017 “hold” directive) did not have an understanding of what a Tier 5 or Tier 3 background check covers or entails or how that check differs from the DCII query already called for in the USCIS published guidance.
66. Defendants’ “hold” on the processing of MAVNI applications adversely has impacted Plaintiffs. USCIS representatives have admitted to members of Congress that “all
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military applications” for naturalization are supposed to be expedited. Moreover, recent data published by USCIS in its May and June 2017 National Performance Reports show that the “estimated average gross cycle time” for applications for naturalization filed by military members (including MAVNI soldiers) ranges from 3.8 months (May report) to 4.4 months (June report). The data further show that “estimated average active case cycle time” for military applications (including applications by MAVNI soldiers) ranges from 3.7 months (May report) to 4.2 months (June report). Furthermore, to the extent that these data do not account for the fact that the “hold” was in place by at least February 2017, the reported cycle times may be inflated. Yet, even accepting the accuracy of the reported data, Plaintiffs’ naturalization applications already have been pending far longer than any of these figures with no end in sight. Indeed, Defendant officials have stated that Tier 5 background investigations for MAVNI applicants have “taken on average 422 days” to complete. This figure does not include any additional time it would take to complete the NIAC, CI review, CI interview, and so-called “issue-oriented interview and/or issue-oriented polygraph.” Defendant officials have admitted that they cannot estimate the amount of time it will take to complete all of these requirements. Further, these applicationpending periods are far in excess of the length Congress intended: The INA specifically states: “It is the sense of Congress that the processing of an immigration benefit application [defined to include naturalization applications] should be completed not later than 180 days after the initial filing of the application.” 8 U.S.C. §1571(b).
The MAVNI Naturalization “Hold” Is Unlawful, Irrational, and Contrary to the Statute 67. Defendants’ imposition of a military-specific, uber-investigation condition on MAVNI soldiers’ naturalization is improper. The DHS Defendants’ application of the hold to Plaintiffs and the members of the Class is unlawful, irrational, and contrary to the INA. The
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investigative protocol being imposed on the naturalization process for MAVNIs never before has been applied to any type of application for naturalization. Rather, the investigative protocol being imposed typically has been used only in connection with granting security clearances, a process separate and distinct from naturalization conditions. As one DoD official explained: “Per the Federal Investigative Standards, established by the Office of Personnel Management (OPM), Tier 5 investigations are required for positions designated as critical sensitive, special sensitive, or access to Top Secret or Sensitive Compartmented Information (SCI).”
68. Defendants have imposed a new, substantive, eligibility condition for naturalization not set forth in the law. The Constitution specifies that Congress – not the Executive – has the power to set forth naturalization law. U.S. Constitution, Art. I, Sec. 8, Cl. 4. As relevant here, naturalization preconditions are set forth in 8 U.S.C. § 1440. In that statute, Congress did not impose security clearance screenings as part of the naturalization process for Selected Reserve or active duty soldiers, and nothing in the statute authorizes DHS or DoD to impose this or any other additional substantive requirement. If Congress had intended to mandate such additional requirements for naturalization, it could have done so. In fact, Congress did the opposite, by enacting a statute that eases the naturalization requirements and processing time for soldiers serving honorably during periods of armed conflict.
69. In enacting Section 1440, Congress intended to reward MAVNI soldiers for voluntarily answering our Nation’s call to service, not to punish and disadvantage them. Defendant officials have admitted as much by acknowledging that “Section 1440(a) relaxes the preconditions for naturalization established in Section 1427.” Yet, through their unlawful actions, Defendants have imposed on Plaintiffs one of the most onerous requirements for naturalization that one could imagine — a rigorous investigation for top-level security clearance.
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Accordingly, DoD’s improper instruction, and DHS’s unlawful compliance with that instruction, are contrary to the plain language and clear purpose of the statute. And, even if DHS pretends that it established this new condition on its own, without any outside influence, it would remain unlawful.
70. Furthermore, Section 1440 specifically and expressly removed and eliminated the length-of-residency requirement normally required for naturalization for this class of individuals — i.e., those willing to volunteer to serve during periods of armed conflict. However, Defendants have attempted to justify the imposition of the “enhanced DoD background checks” on MAVNI soldiers on the grounds that these soldiers purportedly have not resided in the United States as long as legal permanent resident soldiers. As one DoD official asserted, Tier 5 investigations include “certain valuable checks for foreign born recruits, such as developed reference interviews, which are necessary in the case of personnel whose lack of extended presence in the U.S. will cause their investigation to be short of scope.”
71. However, Congress already has made the policy determination on this point for this class of individuals — i.e. those willing to volunteer to serve during periods of armed conflict — and determined that these individuals should not be disadvantaged in relation to naturalization based on length of residency. Specifically, Section 1440(b)(2) commands that, for naturalization of such individuals, “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.” 8 U.S.C. § 1440(b)(2). Thus, in defiance of the law, Defendants’ “hold” effectively reinstates the very residency requirement that the statute expressly eliminated.
72. Defendant officials also have attempted to justify the hold on the grounds that “the background checks may result in the recruit receiving an other-than-honorable discharge from the
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military.” But Congress has already made the policy determination on this point as well. Section 1440(c) expressly provides that an individual’s citizenship may be “revoked . . . if the person is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years.” Thus, the statute directly addresses this issue and provides the process for dealing with the situation where a service member, otherwise qualified for naturalization, subsequently is discharged under other-thanhonorable conditions. The statute gives this class of individuals — i.e., those volunteering to serve during a period of armed conflict — the benefit of the doubt, allowing them to naturalize in the first instance and providing for revocation in the event of an unfavorable subsequent discharge. Thus, the DHS Defendants’ action is directly contrary to the statute in this respect as well.
73. In addition, Defendants’ application of the “hold” to Plaintiffs and the members of the Class is arbitrary, capricious, and irrational for numerous independent reasons. First, most of the Plaintiffs, consistent with the broader MAVNI population, have resided in the U.S. for longer than the period required for naturalization of legal permanent residents (typically three or five years, but in some cases shorter periods of residency or no residency at all). In fact, some of the Plaintiffs have resided in the United States since childhood. Thus, it is arbitrary and irrational to apply the enhanced DoD background investigation requirement to them based on Defendants’ length-of-residency rationale, while at the same time imposing no such requirement on legal permanent residents with little or no history in the U.S. The “hold” directive is thus untethered to the issue that the agency claims to be addressing (length of residency). Instead, the “hold” punishes MAVNIs simply for being MAVNIs regardless of how long they have resided in the United States.
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74. Second, USCIS’s “enhanced DoD security check” hold was plainly arbitrary, capricious, and irrational as promulgated. Specifically, on July 7, 2017, USCIS issued its hold directive to field offices 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.” However, at the time USCIS issued this directive, DoD had stated its intention to discharge the soldiers in question without conducting any of these “enhanced DoD security checks.”
75. In particular, on or about May 19, 2017, DoD officials issued an action memo (“DoD Action Memo”) detailing DoD’s plans regarding Selected Reserve MAVNIs. The DoD Action Memo made clear: (i) that DoD had no intention of conducting the “enhanced DoD security checks” on which USCIS later claimed it was waiting; (ii) that DoD did not have the resources to conduct such security checks; and (iii) that DoD instead intended to discharge these MAVNI Selected Reserve soldiers without performing such security checks.
Group 3: [Selected Reserve MAVNIs] . . .  Approx. 500 Group 3 MAVNIs have received command
endorsement [i.e., N-426 “honorable service” certifications] and applied for naturalization based on having “performed creditable service” in the form of two weekend drills. These citizenship applications are under review by [USCIS].  Action: The heightened risk associated with Groups 1/2, and the application of resources needed to mitigate that risk, render it infeasible to continue to process [Group 3] MAVNIs. Except for individual cases deemed vital to the national interest, Group 3 will be separated by Secretarial plenary authority.
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76. The DoD Action Memo specified that the plans set forth therein would be executed in the absence of a countermanding directive by the Secretary of Defense. USCIS was fully aware of the DoD Action Memo no later than June 28, 2017 (and likely far earlier). Thus, USCIS issued its July 7, 2017 field directive to “hold” MAVNI applications pending completion of “enhanced DoD security checks” with express knowledge that DoD had no intention of performing those security checks. One can scarcely conceive of a more arbitrary, capricious, and irrational agency action. While DoD recently claimed that the Secretary of Defense “verbally … modif[ied] the proposed course of action” with respect to Selected Reserve MAVNIs, Defendants failed to produce any written record of these supposed orders, notwithstanding a July 19, 2017 Court order that it produce any such information. No written record of this purported modification has been identified or provided to the Court or Plaintiffs. In all events, any purported subsequent verbal modification of the May 19, 2017 DoD Action Memo would in no way alter the sham nature of USCIS’s July 7, 2017 directive.
77. Defendants’ “hold” is arbitrary, capricious, and contrary to law for the further reason that it treats similarly-situated individuals differently in two separate respects. Prior to instituting the present “hold,” USCIS naturalized thousands of MAVNI soldiers without “enhanced DoD security checks.” USCIS will apply the “enhanced DoD security check” procedure only to a portion of the MAVNI population. Moreover, many (if not most) MAVNIs have resided in the United States at least as long as the period required for naturalization of permanent residents. Yet, despite their similarly-situated residence status, USCIS is applying enhanced background checks only to MAVNI applications for naturalization.
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DoD’s Unlawful N-426 Policies 78. In mid-2017, DoD adopted a policy precluding the certification of honorable service for members serving in the Selected Reserve until such service members serve in an active duty status. Pursuant to that policy, according to Defendant officials, “DoD is not certifying any new MAVNI N-426s” and it is reserving the right, in furtherance of the policy, to rescind the honorable service certifications that Selected Reserve MAVNIs, including Plaintiffs, who have received them without active duty service. Defendant officials stated that N-426s issued to “individuals without creditable active duty service could be considered signed in error and may be decertified upon completion of a review of the existing standards . . . .” 79. On September 6, 2017, the Court in this case issued a decision denying without prejudice Plaintiffs’ Motion for Preliminary Injunction. Dkt. 44. In that decision, the Court indicated that it was “puzzled” by Defendants’ legal position that Section 1440 required active duty service. Dkt. 44 at 16. The Court did not decide the question, however, because the active duty policy had not been applied to any of the Plaintiffs. 80. On September 1, 2017, certain MAVNI Selected Reservists filed a related action against DoD. See Kirwa v. Dept. of Defense, et al., Case. No. 1:17-cv-01793-ESH (D.D.C.) (“Kirwa action”). In the Kirwa action, plaintiffs alleged that the unlawful active duty policy was being applied to them, and they moved for a preliminary injunction to obtain relief from that unlawful policy, which the court converted to a summary judgment motion. 81. On October 13, 2017, on the eve of a hearing and decision in that case, in an attempt to avoid an adverse ruling, and without rescinding its prior policy, DoD issued a new policy, referred to herein as the “New DoD N-426 Policy.” On its face, the New DoD N-426 Policy imposes an active duty service requirement and other unlawful conditions on the issuance
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of N-426s to new enlistees who want to apply for naturalization. DoD understands that, without an N-426, DHS will not accept and begin to process the service member’s application for naturalization.
82. The New DoD N-426 Policy specifies that for soldiers who previously obtained N-426s but who had not yet naturalized by October 13, 2017 (i.e., including Plaintiffs), DoD would be recalling, revoking or decertifying the N-426s. The Policy further states that soldiers in this circumstance may receive a new N-426 certification only after DoD determines that the service member has completed certain DoD “background investigation and suitability vetting.”
83. These N-426 policies are intended to disrupt and interfere with the naturalization processing of MAVNIs, including Plaintiffs, since DHS cannot or does not process or adjudicate Section 1440 naturalization applications without a duly executed N-426. For its part, DHS is facilitating this DoD conduct by continuing to “hold” the final adjudication of naturalization applications pending DoD’s implementation of these policies.
84. DoD’s policies and DHS’s hold are contrary to the plain language of the statute and implementing regulations. For example, in unambiguous fashion, Section 1440 provides that a service member with honorable service “as a member of the Selected Reserve of the Ready Reserve or in an active-duty status” is eligible for naturalization as a U.S. citizen. 8 U.S.C. § 1440(a) (emphasis added). Indeed, whereas the prior version of the statute limited naturalization to those serving in an active duty status, the National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, 117 Stat. 1392, 1693 (2003) amended the statute to add those serving as members of the Selected Reserve. Therefore, contrary to the position expressed in the DoD policy, Congress made clear that naturalization is available based on either service as a member of the Selected Reserve or service in active duty status.
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85. The regulations implementing 8 U.S.C. § 1440 are to the same effect. 8 C.F.R. §
329.2 provides that a service member is eligible for naturalization under 8 U.S.C. § 1440 upon
establishing that he or she has “served honorably in the Armed Forces of the United States as a
member of the Selected Reserve of the Ready Reserve or in an active duty status in the Armed
Forces of the United States . . . .” 8 C.F.R. § 329.2 (emphasis added). Like the statute, the
disjunctive language of the regulations makes clear that active duty service is not required for
naturalization if the soldier has served in the Selected Reserve. Thus, in promulgating its final
rule on this provision, DHS explained:
In conformance with the expansion of eligibility made by the NDAA [National Defense Authorization Act for Fiscal Year 2004] (see section 329(a) of the INA, 8 U.S.C. 1440(a)), this final rule extends eligibility for naturalization to include those individuals who have served honorably in the U.S. Armed Forces either in an active duty status or as a member of the Selected Reserve of the Ready Reserve. See revised 8 CFR 329.2(a). In addition, this rule amends the title 8 CFR part 329 to include service in the Selected Reserve of the Ready Reserve. Currently, the title only lists active duty service as a basis for naturalization where service occurred during specified periods of hostilities.
75 Fed. Reg. 2785, [FR 3-10] (Jan. 19, 2010) (emphasis added).
86. The USCIS Policy Manual provides and confirms that service in the Selected
Reserve qualifies an individual for naturalization under Section 1440 and that “[o]ne day of
qualifying service is sufficient in establishing eligibility.” In fact, prior to formulating their
“active duty” service requirement, and consistent with the law, regulation, and Policy Manual,
Defendant officials admitted in their court filings that:
As members of the U.S. Armed Forces during a period of hostilities, MAVNI recruits are eligible to apply for naturalization under Section 1440 once they join the military, they begin serving as a member of the SRRR [Selected Reserve of the Ready Reserve] or in an active-duty status.
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87. Moreover, under Section 1440, USCIS has naturalized members of the Selected Reserve who had not previously served in any active duty status, and, on information and belief, continues to do so for those Selected Reservists who are medical professionals. In short, DoD’s N-426 policies appear to be little more than hastily assembled litigation positions aimed at further manipulating the naturalization process.
88. The active duty service requirement, and other extra-statutory preconditions to naturalization set forth in the DoD N-426 policies are contrary to law as applied to Selected Reservists. Moreover, separate and apart from these unlawful conditions – which permeate the New DoD N-426 Policy and should render it unlawful in its entirety, the portion of the New DoD N-426 Policy that purports to revoke, recall, or decertify previously issued N-426s to Plaintiffs and the Class is unlawful. Nothing in the statute authorizes such revocation, recall, or decertification, and nothing in the statute authorizes DoD to withhold new certifications from otherwise statutorily eligible Selected Reservist naturalization applicants. To the contrary, pursuant to the law, DoD “shall determine whether” Plaintiffs – currently serving enlistees – have served honorably in the Selected Reserve. DoD’s policies, as applied to Plaintiffs and the Class, are contrary to the plain and unambiguous terms of the governing statute and regulations.
Plaintiffs’ Honorable Service and Applications for Naturalization 89. Plaintiff Dr. Kusuma Nio enlisted in the Selected Reserve through the MAVNI program in August 2015. Dr. Nio is a surgeon by occupation. Dr. Nio took his service oath on August 12, 2015. Dr. Nio began serving with the 1st Forward Surgical Team in Fort Hamilton, New York, as a Specialist (E-4) in August 2016, and has since participated in multiple Selected Reserve drill periods with his unit. Dr. Nio submitted his N-400 Application for Naturalization in September 2016, and USCIS received his application on September 19, 2016. Dr. Nio’s
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Company Commander signed Form N-426 certifying Dr. Nio’s honorable service in the Selected Reserve.
90. After an unexplained, lengthy delay, Dr. Nio was given a naturalization interview on April 10, 2017. Upon completion of that interview, he was recommended for approval, was provided documentation to that effect, and was scheduled for a citizenship oath ceremony on May 5, 2017. However, on April 13, 2017, Dr. Nio received a “de-scheduling notice” informing him that his oath ceremony had been canceled. Dr. Nio met with immigration officers at the St. Louis Service Center, including a Field Officer Supervisor, to inquire about the reason for the cancellation of his oath ceremony and was informed that the DoD had instructed USCIS that naturalization applications for MAVNI service members such as Dr. Nio were put on hold. Following these communications, on May 7, 2017, Dr. Nio contacted his United States Senators and Representative. A staff member from United States Senator Tammy Duckworth’s office inquired into the status of Dr. Nio’s application and USCIS confirmed that, “Dr. Nio’s case is currently pending due to military background checks required by the Department of Defense. USCIS is unable to render a decision on Dr. Nio’s application at this time. Once the background checks have been completed, his case will continue through the immigration process.”
91. After Plaintiffs filed the original Complaint in this matter, Dr. Nio was naturalized as a United States citizen. A CI interview was not completed for Dr. Nio prior to his naturalization. Dr. Nio had not served in an active duty status with the Army at any time prior to his naturalization.
92. Plaintiff Wanjing Li enlisted in the Selected Reserve through the MAVNI program in February 2016. Ms. Li took her service oath on February 5, 2016. Ms. Li began serving with the 325th Combat Support Hospital as a Specialist (E-4) on March 19, 2016 and has
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since participated in multiple Selected Reserve drill periods with her unit. Ms. Li submitted her N-400 Application for Naturalization on August 17, 2016, and USCIS received her application on August 19, 2016. An authorized supervisor signed Ms. Li’s Form N-426 certifying Ms. Li’s honorable service in the Selected Reserve.
93. After a lengthy delay, Ms. Li was scheduled for a naturalization interview on March 13, 2017. Upon completing the interview, Ms. Li was informed by the USCIS officer conducting the interview that her application was recommended for approval. USCIS officials have admitted that Ms. Li’s application for naturalization was approved on May 3, 2017. However, Ms. Li subsequently was told by USCIS that her naturalization application has been put on hold, as have all other such applications by MAVNI service members.
94. USCIS officials have admitted that all USCIS requirements for processing Ms. Li’s naturalization application are complete but that “further processing” of the application “awaits the completion of her DoD enhanced background investigation.” Ms. Li’s naturalization application has been pending since August 17, 2016. DoD officials have stated that Ms. Li’s Tier 5/SSBI investigation is complete and was completed in 530 days. Ms. Li’s CI Focused Review and CI Interview were completed on September 22, 2017. .
95. Plaintiff Jae Seong Park enlisted in the Selected Reserve through the MAVNI program in October 2015. Mr. Park was sent to BCT at Fort Jackson, South Carolina, in May 2016. Mr. Park successfully completed BCT on December 15, 2016. Mr. Park has been retained on active-duty status at Fort Jackson awaiting assignment to further training, which has not been provided due to pending military background checks. Mr. Park’s command at Fort Jackson executed Form N-426 certifying Mr. Park’s honorable service as a member of the Selected Reserve.
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96. Mr. Park completed most of his naturalization requirements in May 2016, including his naturalization interview at the local USCIS office at Fort Jackson. Despite his one-year long service on active duty, Mr. Park’s naturalization application was placed on hold. Mr. Park has checked on the status of his naturalization application and was told by USCIS, through the military hotline, on February 22, 2017, that he would need to speak with local office representatives to ascertain his status. The local USCIS office at Fort Jackson informed him on May 4, 2017 that his application has been put on hold pending the completion of a military background check. After Plaintiffs filed the original Complaint in this matter, Mr. Park was naturalized as a United States citizen.
97. Plaintiff Haendel Crist Calisto Alves de Almeida enlisted in the Selected Reserve through the MAVNI program in May 2016. Mr. Almeida took his service oath on May 26, 2016. Mr. Almeida began serving with the 405th Combat Support Hospital located in West Hartford, Connecticut as a Private (E-2) in August 2016 and since has participated in multiple Selected Reserve drill periods with his unit. Mr. Almeida submitted his N-400 Application for Naturalization in February 2017 and USCIS received his application that same month. Mr. Almeida’s Company Commander signed his Form N-426 certifying Mr. Almeida’s honorable service in the Selected Reserve.
98. Mr. Almeida’s ship date to BCT has been postponed indefinitely by direction of the DoD. Mr. Almeida has checked on the status of his naturalization application and was informed by USCIS that his and other MAVNI applications have been put on hold pending additional background investigations by the DoD.
99. USCIS officials have admitted that all USCIS background checks required for processing Mr. Almeida’s naturalization application were completed by June 2017 but that
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“further processing” of the application “awaits the completion of his DoD enhanced background investigation.” Mr. Almeida’s naturalization application has been pending since February 6, 2017. DoD officials have stated that Mr. Almeida’s Tier 5/SSBI investigation is complete and was completed in 373 days. Mr. Almeida’s CI Focused Review and CI Interview were completed on September 12, 2017
100. Plaintiff Prashanth Batchu enlisted in the Selected Reserve through the MAVNI program in June 2016. Mr. Batchu took his service oath on June 7, 2016. Mr. Batchu began serving with the 419th Transportation Company as a Specialist (E-4) in September 2016 and has participated in multiple Selected Reserve drill periods with his unit. Mr. Batchu submitted his N400 Application for Naturalization in March 2017 and USCIS received his application shortly thereafter. Mr. Batchu’s Commander signed Form N-426 certifying Mr. Batchu’s honorable service in the Selected Reserve.
101. Mr. Batchu’s ship date to BCT has been postponed indefinitely by direction of the DoD. Mr. Batchu has checked on the status of his naturalization application and was told by USCIS that his application has been put on hold pending additional security screening by the DoD and that all other similar MAVNI applications are subject to the same hold.
102. USCIS officials have stated that Mr. Batchu’s application awaits the completion of his DoD enhanced background investigation. Mr. Batchu’s naturalization application has been pending since March 23, 2017. DoD officials have stated that Mr. Batchu’s Tier 5/SSBI is complete and was completed in 475 days. Mr. Batchu’s CI interview is still pending.
103. Plaintiff Lucas Calixto enlisted in the Selected Reserve through the MAVNI program in February 2016. Mr. Calixto took his service oath on March 16, 2016. Mr. Calixto began serving with the 743rd Transportation Company in Roslindale, Massachusetts as a Private
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(E-1) in April 2016 and has since participated in multiple Selected Reserve drill periods with his unit. Mr. Calixto submitted his N-400 Application for Naturalization in March 2017, and USCIS received his application on March 7, 2017. An authorized command official signed Form N-426 certifying Mr. Calixto’s honorable service in the Selected Reserve. On April 14, 2017 USCIS requested that Mr. Calixto arrange for his command to issue another N-426, which he subsequently obtained and sent to USCIS on April 15, 2017. USCIS confirmed receipt and informed Mr. Calixto that they did not need anything else from him at that time to process his application.
104. Mr. Calixto’s ship date to BCT has been postponed indefinitely by DoD, presumably pending completion of military background checks. Mr. Calixto has inquired about the status of his naturalization application and was informed by a USCIS officer that his case was put on hold pursuant to an instruction from DoD to not process applications for MAVNI service members who have not attended BCT.
105. USCIS officials have stated that Mr. Calixto’s application awaits the completion of his DoD enhanced background investigation. Mr. Calixto’s naturalization application has been pending since March 7, 2017. DoD officials have stated that Mr. Calixto’s Tier 5/SSBI investigation is complete and was completed in 405 days. Mr. Calixto’s CI Focused Review and CI Interview were complete on September 26, 2017
106. Plaintiff Shu Cheng enlisted in the Selected Reserve through the MAVNI program in February 2016. Ms. Cheng took her service oath on February 23, 2016. Ms. Cheng began serving with the 349th Combat Support Hospital as a Specialist (E-4) in May 2016 and has since participated in multiple Selected Reserve drills periods with her unit. Ms. Cheng submitted her N-400 Application for Naturalization on February 27, 2017, and USCIS received her application
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on March 2, 2017. Ms. Cheng’s Company Commander signed Form N-426 certifying Ms. Cheng’s honorable service in the Selected Reserve.
107. Ms. Cheng has inquired about the status of her naturalization application, including by calling the Military Helpline. On May 3, 2017, the Military Helpline confirmed that Ms. Cheng’s naturalization application was still “pending” because her military background check had not been completed.
108. USCIS officials have admitted that all USCIS background checks required for processing Ms. Cheng’s naturalization application were completed by May 2017 but that “further processing” of the application “awaits the completion of her DoD enhanced background investigation.” Ms. Cheng’s naturalization application has been pending since February 27, 2017. DoD officials have stated that Ms. Cheng’s Tier 5/SSBI investigation is complete and was completed in 517 days. Ms. Cheng’s CI Focused Review and CI Interview were completed on September 12, 2017. Plaintiff Seung Joo “Josh” Hong enlisted in the Selected Reserve through the MAVNI program in May 2016. Mr. Hong took his service oath on May 13, 2016. Mr. Hong began serving with the 392nd Signal Battalion at Fort Meade as a Private First Class (E-3) in August 2016 and has participated in multiple Selected Reserve drill periods with his unit. Mr. Hong submitted his N-400 Application for Naturalization in February 2017, and USCIS received his application on February 28, 2017. Mr. Hong’s command signed Form N-426 certifying Mr. Hong’s honorable service in the Selected Reserve.
109. Mr. Hong’s ship date to BCT has been postponed indefinitely by direction of the DoD. Mr. Hong has checked on the status of his naturalization application and was told by USCIS that his application and all other MAVNI applications have been put on hold pending additional background investigations by the DoD.
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110. USCIS officials have stated that Mr. Hong’s application awaits the completion of his DoD enhanced background investigation. Mr. Hong’s naturalization application has been pending since February 28, 2017. DoD officials have stated that Mr. Hong’s Tier 5/SSBI investigation is still pending and has been pending since May 17, 2016. . Mr. Hong’s CI interview also is still pending.
111. Plaintiff Ye Liu enlisted in the Selected Reserve through the MAVNI program in March 2016. Mr. Liu took his service oath on March 16, 2016. Mr. Liu began serving with the 1001st Quartermaster Company in Columbus, Ohio, as a Specialist (E-4) in April 2016 and has since participated in multiple Selected Reserve drill periods with his unit. Mr. Liu submitted his N-400 Application for Naturalization in September 2016, and USCIS received his application on September 30, 2016. An authorized command official signed Form N-426 certifying Mr. Liu’s honorable service in the Selected Reserve.
112. On multiple occasions, DoD postponed Mr. Liu’s ship dates to BCT. Mr. Liu has checked on the status of his naturalization application and has been informed by USCIS that his application has now been put on hold until he reports to BCT, and he will not be permitted to report to BCT until completion of the newly-ordered DoD background investigations.
113. USCIS officials have admitted that all USCIS background checks required for processing Mr. Liu’s naturalization application were completed by March 2017, but that “further processing” of the application “awaits the completion of his DoD enhanced background investigation.” Mr. Liu’s naturalization application has been pending since September 30, 2016. DoD officials have stated that Mr. Liu’s Tier 5/SSBI investigation is still pending and, as of October 13, 2017, has been pending for over 575 days. Mr. Liu’s CI Focused review and CI Focused Security Interview was completed on September 27, 2017. DoD officials have admitted
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that they cannot estimate the additional time that it will take to complete these background checks.
114. Plaintiff Emeka Udeigwe enlisted in the Selected Reserve through the MAVNI program in March 2016. Mr. Udeigwe took his service oath on March 17, 2016. Mr. Udeigwe began serving with the 463rd Engineer Battalion located in Wheeling, West Virginia, as a Specialist (E-4) in January 2017 and has since participated in multiple Selected Reserve drill periods with his unit. Mr. Udeigwe submitted his N-400 Application for Naturalization in January 2017, and USCIS received his application that same month. Mr. Udeigwe’s command signed Form N-426 certifying Mr. Udeigwe’s honorable service in the Selected Reserve.
115. Mr. Udeigwe’s ship date to BCT has been postponed indefinitely by direction of the DoD. Mr. Udeigwe has inquired about the status of his naturalization application and has been told by USCIS that his application and all other MAVNI applications have been put on hold pending additional DoD background investigations.
116. USCIS officials have admitted that all USCIS background checks required for processing Mr. Udeigwe’s naturalization application were completed by June 2017 but that “further processing” of the application “awaits the completion of his DoD enhanced background investigation.” Mr. Udeigwe’s naturalization application has been pending since January 13, 2017. DoD officials have stated that Mr. Udeigwe’s Tier 5/SSBI investigation is complete and was completed in 162 days. Mr. Udeigwe’s CI Focused review and CI Focused Security Interview was completed on September 28, 2017. DoD officials have admitted that they cannot estimate the additional time that it will take to complete these background checks.
117. Each Plaintiff has a completed NIAC.
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118. USCIS officials have admitted that all regular USCIS background checks, including the FBI checks, required for processing the Plaintiffs’ naturalization applications are complete.
119. Despite representing to this Court that USCIS “has only required that adjudicators collect and consider evidence obtained from DoD to the same degree that they collect and consider evidence obtained from other federal government entities such as the FBI,” there is no indication that USCIS has obtained, collected, and begun/or is considering any of the Tier 5/SSBI, NIAC, and/or CI results that are complete for the Plaintiffs.
120. DoD officials have admitted that they cannot estimate the additional time that it will take to complete the elements of the background checks that are not yet complete.
Defendants’ Unlawful Conduct Has Caused, and Will Continue to Cause, Substantial and Irreparable Harm to Plaintiffs
121. Plaintiffs are suffering and will continue to suffer irreparable harm if the requested relief is not immediately granted. The right to acquire United States citizenship is a precious one. The benefits of U.S. citizenship are priceless, and the consequences of a lost or unlawfully delayed opportunity to acquire citizenship are dire. Depriving U.S. service members of their lawful right to apply to become naturalized citizens, an entitlement earned through their honorable military service and guaranteed by statute, is an ongoing and mounting harm for which there is no recompense.
122. Defendants’ conduct is unlawfully depriving Plaintiffs of the opportunity to realize fundamental rights and benefits that come along with citizenship including the right to vote, protection from deportation, work or school authorization, the right to travel outside of this country and return to the United States, the ability to meet personal, family and professional obligations, and peace of mind regarding their legal status to remain in the United States. This
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deprivation of citizenship opportunities continues with each passing day. And every day of lost citizenship rights and benefits is a day that these Plaintiffs can never recover or be recompensed for losing.
123. Defendants’ conduct is unlawfully depriving Plaintiffs of the right to timely adjudication of their naturalization applications as well as to adjudication of their applications under the criteria established by law. And if Plaintiffs’ N-426 certifications are revoked by DoD pursuant to the New DoD N-426 Policy, adjudication of Plaintiffs’ pending naturalization applications will be halted altogether, since DHS requires that form in order to process Plaintiffs’ applications. Defendants’ conduct has placed Plaintiffs in a state of limbo and left them to languish indefinitely in that state.
124. Furthermore, the imposition of new and impermissible naturalization requirements has led to financial distress and hardship for many Plaintiffs. The legal immigration status of many Plaintiffs has been jeopardized by their enlistment in the U.S. military combined with the unlawful delay in naturalization. DHS officials have stated that, in the agency’s view, those Plaintiffs and members of the Class who entered the United States on F or M nonimmigrant visas are subject to removal because of their enlistment in the U.S. Army. According to the agency, these U.S. Army soldiers remain “lawfully presen[t]” in the United States only “at the discretion of the agency” and only “for so long as DHS continues to forbear” removal proceeding against them. Furthermore, current DHS guidance relating to F and M nonimmigrant visas provides that if a MAVNI Selected Reserve soldier receives “compensation during Reserve duty, this marks the beginning of employment and the [Designated School Officials] must terminate the student SEVIS record.” While DHS officials state that, at least for now, the agency “will not enforce the requirement that designated school officials terminate the
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Student and Exchange Visitor Information System (SEVIS) record of a student solely because he or she accepts compensation for participating in Reserve duty,” the “requirement” still exists and this representation affords no comfort whatsoever to MAVNI soldiers whose enrollment already has been terminated or will yet be terminated by school officials in compliance with this DHS requirement. Moreover, upon revocation of their existing N-426 certifications pursuant to the New DoD N-426 Policy, Plaintiffs will lose the modicum of protection and assurance against removal and deportation afforded to them by virtue of having a pending naturalization application.
125. Indeed, Defendants’ irrational policies have placed Plaintiffs and the members of the Class in an impossible situation. On the one hand, Defendants maintain that, by volunteering to serve as MAVNI soldiers and applying for citizenship (which is expressly required of MAVNI soldiers), Plaintiffs and the members of the Class have demonstrated “immigrant intent” and thus cannot maintain or renew their legal non-immigrant status. On the other hand, Plaintiffs and the members of the Class are being faulted, as MAVNIs, for not maintaining their legal nonimmigrant status.
126. Without the ability to obtain a job, a driver’s license, a passport (which has prevented certain Plaintiffs from visiting loved ones, including ill family members), additional educational opportunities, and the myriad of other privileges that naturalization would afford, many of these Plaintiff soldiers and their families are suffering. Further, the new uncertainty associated with their military careers, and concomitantly their legal status, is causing anguish and is particularly unconscionable given that each Plaintiff is serving during a period of armed conflict and has sworn an oath to protect and defend the United States.
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127. Finally, any loss of the opportunity to become U.S. citizens on the part of Plaintiffs or the members of the Class, after already having volunteered to serve in the United States military, could subject these individuals to extreme peril. These individuals would be subject to deportation to countries of origin such as, for example, China, where they could face prosecution and imprisonment because of their decision to enlist in the U.S. Army and to swear their allegiance to the United States and the Constitution.
CLASS ACTION ALLEGATIONS 128. The named Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and all other persons similarly situated. The named Plaintiffs seek to represent the following class: 129. Class: All individuals who have: (i) enlisted in the Selected Reserve through the MAVNI program; (ii) have served honorably in the U.S. military through participation in at least one Selected Reserve drill period or in an active-duty status; (iii) have received from the U.S. military executed Form N-426s certifying their honorable service as members of the Selected Reserve or in active-duty status; (iv) have submitted N-400 Applications for Naturalization to USCIS; and (v) have had the processing or final adjudication of their naturalization applications (including naturalization itself) withheld or delayed because of (a) a final USCIS processing hold for MAVNIs, (b) a United States Department of Defense N-426 policy review, (c) a DoD N-426 recall/decertification policy, (d) enhanced DoD security screenings, (e) a DoD Consolidated Adjudications Facility (“CAF”) adjudication, (f) a so-called national security determination, and/or (g) a so-called military service suitability vetting or determination.. 130. The members of the Plaintiffs’ class warrant class action treatment because they fulfill the certifying requirements under Rule 23(a) of the Federal Rules of Civil Procedure
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(“Rule 23(a)”). One DoD official has stated that as many as 10,000 individuals have been recruited through the MAVNI program. While the exact number of class members is unknown to Plaintiffs at this time and can be ascertained only through appropriate discovery, Plaintiffs believe that there currently are hundreds of members in the proposed class. The May 19, 2017 DoD Action Memo indicates that, as of the date that information was compiled, there were at least 500 current members of the proposed class. Plaintiffs expect the proposed class to grow during the pendency of this litigation and even perhaps after the conclusion of the litigation as additional MAVNI soldiers who have been serving honorably with the U.S. military through participation in Selected Reserve drill periods or in an active-duty status receive their unlawfully withheld N-426 Forms, enabling them to apply for naturalization pursuant to 8 U.S.C. § 1440. Once those individuals meet the class characteristics described herein, they should be allowed to join the class and obtain any relief granted to the class.
131. The proposed class meets the numerosity requirement of Rule 23(a)(1) because the members of the class are so numerous that joinder of all members is impractical.
132. The proposed class meets the commonality requirement of Rule 23(a)(2) because there are questions of law and fact common to the class. The questions of law and fact common to the class include, for example: whether the DHS Defendants are acting contrary to the pertinent statute and regulations by suspending processing of MAVNI applications for naturalization pending special background investigations imposed by DoD; whether the DHS Defendants’ actions are arbitrary, capricious, and/or irrational; and whether DoD’s N-426 policies are contrary to law.
133. The proposed class meets the typicality requirement of Rule 23(a)(3) because the claims of the named Plaintiffs are typical of the claims of each of the class members. Class
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members similarly are affected by Defendants’ wrongful conduct in violation of federal law, including 8 U.S.C. § 1440, that is described herein.
134. The named Plaintiffs will fairly and adequately protect the interests of the class as required by Rule 23(a)(4) because their interests are identical to those of the other members of the classes. Fair and adequate protection of the interests of the class will be further ensured because the named Plaintiffs are represented by competent legal counsel who are experienced in federal litigation, are undertaking representation on a pro bono basis, and have adequate resources and commitment to represent the class as a whole.
135. Furthermore, as contemplated by Rule 23(b)(1), if the individual members of the class were to bring separate suits to address Defendants’ policies, practices, and actions and inactions, Defendants may address the cases of the named Plaintiffs but ignore the naturalization applications and concerns of the remaining class members, thereby exacerbating Defendants’ violations of the law. Resolving this matter as a class action also would serve the Court’s interest in judicial economy, by avoiding overburdening the Court with individual lawsuits brought by each of the many enlistees recruited through the MAVNI program whose naturalization applications are, or will be, subject to DoD’s and DHS’s unlawful policies.
136. Alternatively, this case qualifies for class action treatment under Rule 23(b)(2) because Plaintiffs seek final injunctive and declaratory relief. This relief is appropriate for the whole class as Defendants’ actions and/or refusals to act apply generally to the class as a whole.
CLAIMS FOR RELIEF Count I: Declaratory Judgment 137. Plaintiffs re-allege paragraphs one through one hundred thirty-seven as if fully set forth herein.
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138. 28 U.S.C. § 2201 authorizes a court, “[i]n a case of actual controversy within its jurisdiction . . . upon the filing of an appropriate pleading” to “declare the rights and other legal relations of any interested party seeking such declaration.”
139. 8 U.S.C. § 1440 establishes a clear, limited, and purely ministerial role for DoD in the naturalization process. DoD’s role simply is to verify, by way of Form N-426, whether a service member has served or is serving honorably.
140. DoD’s limited role in the naturalization process does not include performing military-specific background checks, including an SSBI/Tier 5 background investigation, CI review or interview, NIAC, and “issue-oriented interview and/or issue-oriented polygraph” checks as a pre-requisite to naturalization. Notwithstanding this limited role, Defendants have halted the processing of Plaintiffs’ naturalization applications on the erroneous basis that naturalization pursuant to 8 U.S.C. § 1440 is dependent on the completion and results of a military-specific DoD background check and/or post-enlistment military suitability vetting, DHS Defendants have implemented a policy to stop the processing of MAVNI naturalization applications pending completion of such “enhanced DoD security checks” and suitability vetting, and DHS Defendants have applied that policy to halt the processing and/or final adjudication of Plaintiffs’ naturalization applications.
141. 8 U.S.C. § 1440 and the implementing regulations promulgated thereunder further provide that service members with honorable service either as a member of the Selected Reserve of the Ready Reserve or in an active-duty status are eligible for naturalization under Section 1440. Service in an active duty status is not required. In contradiction to the plain and clear language of the statute and regulations, DoD has adopted policies precluding the certification of honorable service for members serving in the Selected Reserve until such service members serve
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in an active duty status. Moreover, the New DoD N-426 Policy, issued on October 13, 2017,

purports to revoke, recall, or decertify the existing N-426 certifications of honorable service

already issued to Plaintiffs and the Class and to withhold issuance of new certifications pending a

determination that these soldiers successfully completed a “background investigation and

suitability vetting.” DoD has no such revocation, recall, or decertification authority under the

law, nor may it impose these additional requirements as a condition to keeping or obtaining an N-

426.

142. Accordingly, Plaintiffs seek declaratory judgment that:

(i)

DoD’s role pursuant to 8 U.S.C. § 1440 is limited to executing Form N-426

confirming whether a service member has served or is serving honorably;

(ii)

Congress has not imposed post-enlistment DoD background checks, including the

SSBI/Tier 5, CI review or interview, NIAC, and “issue-oriented interview and/or

issue-oriented polygraph” checks, and/or suitability vetting as naturalization

conditions for persons applying for naturalization under 8 U.S.C. § 1440;

(iii)

DHS and USCIS may not, on the basis of DoD instruction or otherwise, stop,

suspend, delay, or hold the processing or final adjudication of the naturalization

applications of MAVNIs with honorable service (as may be confirmed by a

MAVNI’s commander on Form N-426) pending completion of any SSBI/Tier 5,

CI, NIAC, “issue-oriented interview and/or issue-oriented polygraph” checks, or

other military- or DoD-specific background investigations other than the DCII;

and

(iv)

DoD may not (a) refuse to issue or withhold Form N-426s, (b) refuse to certify

honorable service, and/or (c) revoke, rescind, or invalidate previously issued N-

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426 certifications, for members of the Selected Reserve on the basis that such service members have not served in an active duty status or pending postenlistment background investigations or suitability vetting. Count II: Temporary, Preliminary and Permanent Injunctive Relief 143. Plaintiffs re-allege paragraphs one through one hundred forty-three as if fully set forth herein. 144. DoD Defendants unlawfully and improperly have instructed DHS Defendants to suspend the processing or final adjudication of Plaintiffs’ N-400 Applications for Naturalization, and have otherwise unlawfully interfered with the processing of such applications, contrary to applicable law. 145. DHS Defendants unlawfully and improperly have complied with DoD’s instruction and have failed to process Plaintiffs’ N-400 Applications for Naturalization in accordance with their obligations under law, affirmatively have implemented a policy to prevent the final adjudication of MAVNI naturalization applications pending completion of “enhanced DoD security checks,” and have applied that policy to halt the processing of Plaintiffs’ naturalization applications in this case. 146. Plaintiffs have been, and will continue to be, substantially and irreparably harmed by Defendants’ unlawful and improper actions, for which there is no adequate remedy at law. Under the facts and circumstances of this case, the balance of the equities clearly favors Plaintiffs, and injunctive relief is in the public interest. 147. Accordingly, Plaintiffs seek preliminary injunctive relief against the DHS Defendants: (i) to place and maintain the parties in the pre-dispute status quo;
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(ii) to preliminarily set aside the DHS Defendants’ “hold” on the processing and final adjudication of Plaintiffs’ N-400 Applications for Naturalization;
(iii) to preliminarily compel the DHS Defendants to immediately resume adjudicating Plaintiffs’ N-400 Applications for Naturalization to decision (and citizenship oath if warranted) without awaiting (a) any “enhanced DoD security checks,” (b) any review or re-evaluation by DoD of already-issued Form N-426s, or (c) any revocation, recall, or decertification of Plaintiffs’ existing N-426 honorable service certifications; and
(iv) to compel the DHS Defendants to provide weekly reports to the Court and Plaintiffs of the status of the adjudication of Plaintiffs’ and the Class’ N-400 Applications for Naturalization.
148. Plaintiffs seek permanent injunctive relief against the DHS Defendants: (i) to set aside the DHS Defendants’ “hold” on the processing and final adjudication of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class; (ii) to compel the DHS Defendants to adjudicate to decision (including oath if warranted) the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class without awaiting (a) any “enhanced DoD security checks,” (b) any review or re-evaluation by DoD of already-issued Form N-426s, or (c) any revocation, recall, or decertification of Plaintiffs’ existing N-426 honorable service certifications; (iii) to compel the DHS Defendants to comply with their statutory obligations pursuant to 8 U.S.C. § 1440 and to process without further delay and
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without imposing any additional requirements for naturalization the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class; and (iv) to compel the DHS Defendants to grant priority to, and expedite, the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class to avoid further harm as the harm that has been caused by the unlawful processing suspension that has been imposed on such applications to date. 149. Plaintiffs seek temporary and/or preliminary injunctive relief against the DoD Defendants: (i) to place and maintain the parties in the pre-dispute status quo; (ii) to temporarily and preliminarily set aside the application to Plaintiffs and the Class of any policy of DoD Defendants that requires service in an active duty status for certification of honorable service under 8 U.S.C. § 1440(a); (iii) to temporarily and preliminarily restrain the DoD Defendants from decertifying, rescinding, recalling, revoking, or otherwise invalidating Plaintiffs’ existing and duly issued Form N-426s pursuant to the New DoD N-426 Policy or otherwise, except as related to the conduct of an individual Plaintiff and based on sufficient grounds generally applicable to members of the military for re-characterization of service; and (iv) to temporarily and preliminarily restrain the DoD Defendants from discharging Plaintiffs pending adjudication of their N-400 Applications for Naturalization, except as related to the conduct of an individual Plaintiff and
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based on sufficient grounds generally applicable to members of the military for discharge from service. 150. Plaintiffs seek permanent injunctive relief against the DoD Defendants: (i) to enjoin the DoD Defendants from interfering with the processing and adjudication of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class; (ii) to set aside the application to Plaintiffs and the Class of any policy of DoD Defendants that requires service in an active duty status for certification of honorable service under 8 U.S.C. § 1440(a); (iii) to restrain the DoD Defendants from decertifying, rescinding, revoking, or otherwise invalidating the existing and duly issued Form N-426s of Plaintiffs and the Class pursuant to the New DoD N-426 Policy or otherwise, except as related to the conduct of an individual Plaintiff or member of the Class and based on sufficient grounds generally applicable to members of the military for re-characterization of service; and (iv) to restrain the DoD Defendants from discharging Plaintiffs or members of the Class pending final adjudication of their N-400 Applications for Naturalization, except as related to the conduct of an individual Plaintiff or member of the Class and based on sufficient grounds generally applicable to members of the military for discharge from service. 151. Plaintiffs further seek temporary, preliminary, and permanent injunctive relief, as necessary, against the Defendants enjoining them from taking any retaliatory actions against the Plaintiffs and the Class.
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Count III: Relief Pursuant to the Administrative Procedure Act 152. Plaintiffs re-allege paragraphs one through one hundred fifty-two as if fully set forth herein.
Relief Pursuant to 5 U.S.C. § 706(1) 153. 5 U.S.C. § 706(1) authorizes a court to “compel agency action unlawfully withheld or unreasonably delayed.” Reviewable agency action includes an agency’s failure to act. DHS Defendants unlawfully have withheld and/or unreasonably delayed the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class contrary to the requirements of applicable law including 8 U.S.C. § 1440. 154. Plaintiffs have a clear right to apply for naturalization pursuant to 8 U.S.C. § 1440, which provides an expedited pathway to citizenship. Defendants have interfered with that right and the only adequate remedy is to order DHS Defendants to resume processing Plaintiffs’ applications solely in accordance with existing naturalization criteria, law, and regulations. 155. Specifically, Plaintiffs and members of the Class have a clear right under the law to adjudication of their naturalization applications without the additional requirement being imposed by DHS Defendants of “enhanced DoD security checks.” Notwithstanding this clear right to immediate adjudication on the present record, DHS Defendants have refused to adjudicate the N-400 Applications for Naturalization duly filed by Plaintiffs and members of the Class pending completion of an additional requirement that is contrary to law. DHS Defendants have unlawfully withheld action required by law — i.e., adjudication of the N-400 Applications
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of Plaintiffs and the members of the Class on the present record — entitling Plaintiffs and the Class to relief under 5 U.S.C. § 706(1).
156. Plaintiffs and the members of the Class have the further right to reasonably timely adjudication of their N-400 Applications for Naturalization. Plaintiffs’ applications for naturalization already have been pending in excess of DHS’s average processing time for military applications. Moreover, pursuant to 8 U.S.C. § 1571(b), Congress has made clear that processing of naturalization applications – in the normal course (not taking into account the “expedited” processing contemplated by 8 U.S.C. § 1440 or for military applications generally), should take no longer than 180 days from the date of the filing of the naturalization application. Defendant officials further admit that they cannot even estimate the additional time it would take to complete the “enhanced DoD security checks” that DHS has (unlawfully) imposed on these applications. This already unreasonable delay was compounded by DoD’s improper N-426 policy review, and DHS’s action to further “hold” the processing of MAVNI applications pending that N-426 policy review. DHS Defendants have placed Plaintiffs and the members of the Class in a state of limbo and left them to languish there indefinitely. DHS Defendants unreasonably have delayed, and continue to unreasonably delay, the adjudication of the N-400 Applications for Naturalization duly filed by Plaintiffs and the members of the Class, further entitling Plaintiffs and the Class to relief under 5 U.S.C. § 706(1).
157. Accordingly, Plaintiffs seek an order from the Court pursuant to 5 U.S.C. § 706(1) compelling DHS Defendants: (i) to comply with their statutory obligations pursuant to 8 U.S.C. § 1440 and otherwise to immediately act upon and process without further delay the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class; and (ii) to grant priority to,
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and expedite, the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class to avoid further harm.
Relief Pursuant to 5 U.S.C. § 706(2) 158. 5 U.S.C. § 706(2) authorizes a court to hold unlawful and set aside final agency action found to be arbitrary, capricious, an abuse of discretion (e.g. irrational), or otherwise not in accordance with law, in excess of statutory jurisdiction or authority, or without observance of procedure required by law. 159. DHS Defendants have imposed a new requirement on MAVNI applicants for naturalization that mandates completion of “enhanced DoD security checks” that have never before been applied to any type of applicant for naturalization and which previously has been used only in connection with granting high-level security clearances. DHS Defendants have implemented a policy to stop the processing of MAVNI naturalization applications pending completion of such “enhanced DoD security checks.” And DHS Defendants have applied that policy to halt the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the members of the Class. 160. DHS Defendants have imposed a new substantive requirement for naturalization that is not in accordance with law. 8 U.S.C. § 1440 does not impose security clearance screenings as part of the naturalization process and nothing in the statute authorizes Defendants to impose this additional substantive requirement. On the contrary, in enacting Section 1440, Congress intended to reward Plaintiffs and the Class for answering the call to service during periods of armed conflict by “relax[ing] the preconditions for naturalization established in Section 1427.” And the statute otherwise makes clear that no additional requirements for naturalization should be placed on this class of individuals that are not generally required for
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naturalization by providing that “[a] person filing an application under . . . this section shall comply in all other respects with the requirements of this subchapter [relating to naturalization generally].” Yet, DHS Defendants have punished and disadvantaged these soldiers, and only these soldiers, by imposing one of the most onerous requirements for naturalization that one could imagine — successful completion of a rigorous investigation for top-level security clearance.
161. Furthermore, Section 1440 was enacted specifically to eliminate the length-ofresidency requirement normally required for naturalization for this class of individuals — i.e., those willing to volunteer to serve during periods of armed conflict. However, through DHS’s new requirement and its justification, DHS Defendants effectively have reinstated the length-ofresidency requirement that Congress expressly eliminated.
162. DHS Defendants’ action is arbitrary, capricious, and irrational. On July 7, 2017, USCIS issued its “hold” directive to field offices 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.” However, at the time USCIS issued this directive, it understood that: (i) DoD had no intention of conducting the “enhanced DoD security checks”; (ii) DoD did not have the resources to conduct such security checks; and (iii) that DoD instead intended to discharge these MAVNI Selected Reserve soldiers without performing such security checks.
163. Yet, even assuming that DoD now has the intention and resources to conduct the “enhanced DoD security checks” in question, DHS Defendants’ action nonetheless is arbitrary, capricious, and irrational because it is divorced from DHS’s stated rationale for the action. Most
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of the Plaintiffs, including likely most MAVNIs generally, have resided in the U.S. for longer than the period required for naturalization of legal permanent residents (typically three to five years, or less). Some of the Plaintiffs have resided in the United States since childhood. There is no valid basis to apply the “enhanced DoD security check” requirement to them under the agency’s stated rationale for the requirement, which relates to otherwise allegedly inadequate investigatory “scope” resulting from lack of sufficient U.S. residency duration. The agency’s action is particularly unreasonable in light of the agency decision makers’ lack of understanding of what Tier 3 and Tier 5 investigations entail at the time the directive was implemented.
164. Importantly, if DHS Defendants merely wanted to await the results of the DoD background investigations in order to use those background materials to make their own independent assessment of good moral character or attachment to the Constitution, DHS Defendants would have insisted that the product of those investigations be sent to them for review, without awaiting for DoD’s assessment of whether the applicant met the criteria necessary to receive a Top Secret security clearance. Yet, even though the background investigations have been completed for several of the Plaintiffs and, on information and belief, other members of the Class, DHS has not requested or received the background information they say they will use to inform their naturalization decision.
165. In all events, DHS Defendants’ “hold” is arbitrary and capricious for the further reason that it treats similarly-situated individuals differently both in relation to the thousands of MAVNI soldiers that have naturalized without “enhanced DoD security checks” and in relation to the thousands of other individuals who have naturalized with equal or less residency time in the United States than most of the Plaintiffs and other members of the Class.
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166. DHS Defendants’ action has been undertaken and applied to Plaintiffs and the Class without observance of procedure required by law. DHS Defendants have imposed a new substantive legal requirement on MAVNI applications for naturalization that requires completion of “enhanced DoD security checks” as a pre-condition for adjudication. This new requirement is not a mere interpretation of the “good moral character” requirement set forth in the statute and regulations (or any other term, for that matter). The existing regulations already extensively define what constitutes “good moral character” and what does not. Further, the existing regulations provide that the scope of the good moral character investigation for these applicants need cover only one-year prior to the date of application, see 8 C.F.R § 329.2(d), whereas the agency’s justification for the “enhanced DoD background check” requirement is that such investigations cover many prior years. DHS Defendants’ action is thus a new substantive legal requirement that is subject to the notice and comment requirements of 5 U.S.C. § 553 prior to implementation. DHS Defendants failed to comply with such requirements before issuing their “hold” directive and applying that directive to Plaintiffs’ applications.
167. Alternatively, DHS Defendants failed to comply with the publication requirements of 5 U.S.C. § 552, which requires publication in the Federal Register of all “rules of procedure” and “statements of general policy or interpretations of general applicability formulated and adopted by the agency.” DHS Defendants have made clear that their “hold” directive applies to “all currently pending and future MAVNI naturalization applicants applying for naturalization under section 329(a), 8 U.S.C. § 1440(a).” Thus, the directive is one of general applicability subject to the publication requirements of 5 U.S.C. § 552.
168. Section 552 further provides that, “[e]xcept to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or
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be adversely affected by, a matter required to be published in the Federal Register and not so published.” Plaintiffs and the members of the Class had no actual notice of DHS Defendants’ “hold” directive and were adversely affected by the agency’s failure to timely publish that directive. Among other things, had Plaintiffs known prior to enlistment that these lengthy background checks would be a pre-requisite to naturalization, that they would risk losing their then-existing legal immigration status because of the extensive delays, that they would face the risk of discharge prior to naturalization because of such delays, and that they would face the risk of deportation back to their countries of origin (such as, for example, China) after having volunteered to serve in the US armed forces and sworn allegiance to the United States, then Plaintiffs and the members of the Class would have followed a different path and arranged their affairs differently. DHS Defendants’ failure to timely publish their “hold” directive precludes DHS Defendants from retroactively applying the directive to the naturalization applications filed by Plaintiffs and the members of the Class.
169. DHS Defendants’ action is arbitrary, capricious, irrational, otherwise not in accordance with law, and without observance of procedure required by law, entitling Plaintiffs and the Class to relief under 5 U.S.C. § 706(2).
170. Accordingly, Plaintiffs seek an order: (i) holding unlawful and setting aside DHS Defendants’ directive requiring the completion of “enhanced DoD security checks” as a prerequisite to adjudication of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class; (ii) declaring such directive arbitrary, capricious, otherwise not in accordance with law and without observance of procedure required by law; and (iii) enjoining DHS Defendants from applying such directive to the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class.
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171. In mid-2017, DoD Defendants implemented a policy precluding the certification of honorable service under Section 1440 for members serving in the Selected Reserve until such service members serve in an active duty status. DoD Defendants’ policy is contrary to the plain language of the statute and implementing regulations, which unambiguously provide that service members with honorable service either as a member of the Selected Reserve of the Ready Reserve or in an active-duty status are eligible for naturalization. DoD Defendants’ policy also is directly contrary to the decision by Congress to amend Section 1440 to broaden the statute’s scope specifically to include service by members of the Selected Reserve. Finally, DoD “activeduty” service requirement is facially incompatible with the statute because, according to DoD officials, it applies only to language MAVNI Selected Reservists and not to medical MAVNI Selected Reservists, while the statute makes no reference whatsoever to skill or occupation. DoD Defendants’ policy is not in accordance with law entitling Plaintiffs and the Class to relief under 5 U.S.C. § 706(2).
172. On October 13, 2017, without rescinding the prior N-426 policy which requires active duty service, DoD implemented the New DoD N-426 Policy. Like the mid-2017 policy, the New DoD N-426 Policy expressly maintains the unlawful active duty service requirement at least for any post-October 13, 2017 enlistments or accessions. The New DoD N-426 Policy specifies that the N-426 Forms previously issued to Plaintiffs and the Class will be recalled and decertified. Thereafter, according to the policy, Plaintiffs and the Class will not be eligible to receive a new N-426 Form until, at a minimum, following a DoD “background investigation and suitability vetting.” The purported N-426 recall and new N-426 eligibility conditions are contrary to law, arbitrary, capricious, irrational, an abuse of discretion, and the result of DoD acting outside of its authority, entitling Plaintiffs and the Class to relief under 5 U.S.C. § 706(2).
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173. Accordingly, Plaintiffs seek an order: (i) holding unlawful and setting aside DoD Defendants’ N-426 policy precluding the certification of honorable service for members of the Selected Reserve who have not served in an active duty status; (ii) declaring such policy not in accordance with law; (iii) enjoining DoD Defendants from revoking or withholding issuance of N-426s or certifications of honorable service on the basis of the mid-2017 policy or New DoD N426 Policy; and (iv) enjoining DoD Defendants from applying these policies to Plaintiffs and the Class.
Count IV: Mandamus 174. Plaintiffs re-allege paragraphs one through one hundred seventy-four as if fully set forth herein. 175. DHS Defendants unlawfully and improperly have failed to process the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class in accordance with their obligations under law. 176. 28 U.S.C. § 1361 authorizes a court to “compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff” if the plaintiff can demonstrate that: (1) the plaintiff seeking mandamus has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available. 177. Plaintiffs have a clear right to apply for naturalization pursuant to 8 U.S.C. § 1440, which provides an expedited pathway to citizenship, and to have their N-400 Applications for Naturalization immediately adjudicated on the present record. Defendants have interfered with that right and the only adequate remedy is to order DHS Defendants to resume
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processing Plaintiffs’ applications solely in accordance with existing naturalization criteria, law, and regulations.
178. Accordingly, Plaintiffs seek issuance of a writ of mandamus compelling DHS Defendants: (i) to comply with their statutory obligations pursuant to 8 U.S.C. § 1440 to immediately act upon and process without further delay the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class; and (ii) to grant priority to, and expedite, the processing of the N-400 Applications for Naturalization duly filed by Plaintiffs and the Class to avoid further harm as the harm that has been caused by the unlawful processing suspension that has been imposed on such applications to date.
Count V: Constitutional Violations 179. Plaintiffs re-allege paragraphs one through one hundred seventy-nine as if fully set forth herein. 180. Under the Constitution, namely, the “Uniform Rule of Naturalization” clause, Congress has the sole power to establish criteria for naturalization. 181. By enacting 8 U.S.C. § 1440, Congress has specified the naturalization eligibility conditions for Selected Reservists such as Plaintiffs and the Class. 182. Congress did not specify that persons seeking naturalization under Section 1440 must first complete enhanced military background investigations – including the Tier 5/SSBI requirements being imposed on Plaintiffs and the Class – nor did Congress make it a condition of naturalization that such persons – already serving in the military – undergo any further suitability vetting. The unlawful policies and practices here therefore constitute additional, non-statutory, substantive pre-conditions to naturalization that are being imposed by Defendants. As such, they
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violate the Constitution with resulting harm to Plaintiffs and the Class, and effectively deprive them of their right to pursue naturalization under the law.
183. Plaintiffs and the Class are eligible and entitled by law – namely, 8 U.S.C. § 1440 – to apply for naturalization as Selected Reservists serving honorably in the U.S. military during wartime. If Plaintiffs and the Class are statutorily eligible to become naturalized under this statute (as they so allege), DHS must grant their applications; DHS has no discretion to deny naturalization to a person who satisfies the criteria established by Congress for naturalization. Defendants’ imposition of unauthorized, unlawful, and arbitrary conditions on Plaintiffs’ ability to apply for and have timely adjudicated their applications for naturalization violates Plaintiffs’ right to due process under the Fifth Amendment to the U.S. Constitution because these soldiers cannot lawfully be denied immigration benefits – namely naturalization – for which they are eligible and are seeking.
184. Plaintiffs request that the Court grant appropriate equitable relief on the forgoing basis.
PRAYER FOR RELIEF Wherefore, Plaintiffs, on behalf of themselves and the class, respectfully request that this Court: 1. Assume jurisdiction over this action; 2. Issue the declaratory judgment requested in Count I of this Complaint; 3. Grant the preliminary and permanent injunctive relief requested in Count II of this
Complaint; 4. Grant the relief requested pursuant to the APA (Count III of this Complaint); 5. Issue the mandamus requested in Count IV of this Complaint;
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6. Grant the relief requested pursuant to Count V of this Complaint; 7. Award Plaintiffs and the Class reasonable costs and attorneys’ fees, including under
the Equal Access to Justice Act; 8. Award such further relief as the Court deems just or appropriate. Respectfully submitted this 20th day of October 2017.
/s/ Joseph J. LoBue Joseph J. LoBue (D.C. Bar No. 484097) Douglas W. Baruch (D.C. Bar No. 414354) Jennifer M. Wollenberg (D.C. Bar No. 494895) Neaha P. Raol (D.C. Bar No. 1005816) Shaun A. Gates (D.C. Bar No. 1034196) Katherine L. St. Romain (D.C. Bar No. 1035008) Webster R. M. Beary (D.C. Bar No. 1041653) Fried, Frank, Harris, Shriver & Jacobson LLP 801 17th Street, NW Washington, D.C. 20006 Telephone: (202) 639-7000 Facsimile: (202) 639-7003 Email: joseph.lobue@friedfrank.com Email: douglas.baruch@friedfrank.com Email: jennifer.wollenberg@friedfrank.com Counsel for Plaintiffs
65

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KUSUMA NIO, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 17-998 (ESH)

MEMORANDUM OPINION Before the Court is plaintiffs’ amended motion for class certification. Plaintiffs are noncitizens 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 hostilities. 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”). Plaintiffs bring multiple claims under the Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, seeking mandamus, declaratory relief, and injunctive relief. Plaintiffs challenge (1) DHS’s/USCIS’s decision to await DOD’s completion of the enhanced security screening of MAVNI enlistees

prior to their shipment to basic training or active-duty service (“DHS/USCIS Security Screening Requirement”), see Nio v. United States Dep’t of Homeland Sec., No. 17-cv-998, 2017 WL 3917006, at *1–5 (D.D.C. Sept. 6, 2017), and (2) DOD’s October 13th Guidance that required the recall and de-certification of USCIS Form N-426, which is a form necessary for a MAVNI’s naturalization application under 8 U.S.C. § 1440. (Defs.’ Weekly Status Report, Oct. 13, 2017, ECF No. 58, Ex. 1 (“10/13/2017 Guidance”) at 4.) Plaintiffs seek to certify a class, under Federal Rule of Civil Procedure 23(b)(1) or (2), consisting of all persons who (1) enlisted in the Selected Reserve, (2) have served honorably in the military “through participation in at least one Selected Reserve drill period or in an active-duty status,” (3) have received a Form N-426 certifying their honorable service, (4) have submitted N-400 Applications for Naturalization to USCIS, and (5) are being subjected to the DHS/USCIS Security Screening Requirement and Section III of DOD’s October 13, 2017 Guidance regarding N-426s. (Pls.’ Am. Mot. For Class Certification and Appointment of Class Counsel, Oct. 20, 2017, ECF No. 62, (“Class Mot.”) at 1.)1 For the reasons stated herein, the motion is granted with a modified class definition.
BACKGROUND The factual background and procedural history in this case has been set out in detail in the Court’s previous September 6, 2017 Memorandum Opinion denying plaintiffs’ request for a preliminary injunction, Nio, 2017 WL 3917006, at *7–8, and the Court’s previous October 25, 2017 Memorandum Opinion in the related case of Kirwa v. Dep’t of Def., 17-cv-1793, ECF No. 29, granting those plaintiffs’ request for a preliminary injunction. The only factual development
1 Two of the named plaintiffs have been naturalized, but that does not render the claims of the class moot. See Thorpe v. D.C., 916 F. Supp. 2d 65, 66 (D.D.C. 2013).
2

relevant to the class-action inquiry is DOD’s release of the October 13th Guidance. In that
document, DOD sets forth criteria in Section III as follows:
Decertification and Recertification. The Military Department concerned will recall and de-certify the Form N-426 for a Service Member described below:
1. The Service Member’s accession was prior to the date of this memorandum; AND
2. The Service Member has submitted to the USCIS a complete application for naturalization that includes both a Form N-400 and a Form N-426, certifying the member’s honorable service for purposes of naturalization, signed by a representative of the Military Department concerned, and USCIS has not adjudicated such application, or, if USCIS has granted such application, the member has not yet naturalized; AND
3. The Service Member has not completed all applicable screening and suitability requirements as set forth in Section 1, paragraph 2 above [the enhanced security screening that is the subject of the DHS/USCIS Security Screening Requirement].

(10/13/2017 Guidance at 4.) Following issuance of the October 13th Guidance, this Court issued

an order granting plaintiffs leave to file an amended complaint, an amended motion for class

certification, and a motion for preliminary injunctive relief confined to the issue of DOD’s

position regarding N-426s outlined in Section III of the October 13th Guidance. (Order, October

18, 2017, ECF No. 60.) Having received the parties’ arguments on class certification at a

hearing on October 27, 2017, the Court is now ready to rule.

I. LEGAL STANDARD

ANALYSIS

A plaintiff seeking class certification must meet the two requirements set forth in Federal

Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); Garcia v.

Johanns, 444 F.3d 625, 631 (D.C. Cir. 2006). First, under Rule 23(a), all class actions must

satisfy the four requirements of numerosity, commonality, typicality, and adequacy. Second, the

suit must fit into one of the three types of class actions outlined in Rule 23(b)(1), (b)(2), and

3

(b)(3). The Court finds that this suit satisfies the Rule 23(a) requirements and that a class should be certified under Rule 23(b)(1)(A) and Rule 23(b)(2). II. CLASS DEFINITION
Plaintiffs define their proposed class as all persons who: (i) have enlisted in the Selected Reserve of the Ready Reserve (“Selected Reserve”) through the Military Accessions Vital to the National Interest (“MAVNI”) program; (ii) have served honorably in the U.S. military through participation in at least one Selected Reserve drill period or in an active-duty status; (iii) have received from the U.S. military executed Form N-426s certifying their honorable service as members of the Selected Reserve or in active-duty status; (iv) have submitted N-400 Applications for Naturalization to United States Citizenship and Immigration Services (“USCIS”); and (v) have had the processing or final adjudication of their naturalization applications (including naturalization itself) withheld or delayed because of (a) a final USCIS processing hold for MAVNIs, (b) a United States Department of Defense (“DoD”) N-426 policy review, (c) a DoD N-426 recall/decertification policy, (d) enhanced DoD security screenings, (e) a DoD Consolidated Adjudications Facility (“CAF”) adjudication, (f) a . . . national security determination, and/or (g) a . . . military service suitability vetting or determination. (Class Mot. At 1–2.) The proposed class, at a minimum, consists of between 400 and 500 MAVNI soldiers. (Class Mot. at 2.) Because DOD’s October 13th Guidance applies different standards to MAVNI enlistees who enlisted before Oct 13, 2017, the Court will limit the class to those who enlisted before October 13, 2017.
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III. RULE 23(a) REQUIREMENTS Defendants contend that plaintiffs’ proposed class fails to exhibit commonality,
typicality, or adequacy. However, based on the record before the Court, it is satisfied that plaintiffs meet all of Rule 23(a)’s requirements.
A. Numerosity The numerosity inquiry turns on whether it would be too impracticable to join all members of the class individually and litigate the claims of each claims member on an individualized basis. Nat’l Veterans Legal Servs. Program v. United States, 235 F. Supp. 3d 32, 39 (D.D.C. 2017). Defendants do not dispute numerosity, and, based on the record before the Court, it is satisfied that the proposed class is sufficiently numerous. Id. at 40; see also McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984). B. Commonality The commonality requirement is met when “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2); see also Wal-Mart Stores, 564 U.S. at 350. Plaintiffs’ claims “must depend upon a common contention . . . of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Individuals in the proposed class share key factual characteristics that make this case amenable to class-wide resolution: All are members enlisted in the Selected Reserve through the MAVNI program, are serving honorably, have a valid N-426, have an outstanding application for naturalization being delayed by the DHS/USCIS Security Screening Requirement, and are subject to some or all of DOD’s October 13th Guidance. Plaintiffs’ legal claims involve the validity of the DHS/USCIS Security Screening Requirement and the October 13th Guidance, both of which are “uniform
5

polic[ies] or practice[s] that affect[] all class members.” DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013); see also R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 181 (D.D.C. 2015).
Defendants assert that a multitude of factual differences prevent class certification: active-duty enlistees will likely have passed DOD’s enhanced security screening, whereas Selected Reservists may still have security screenings pending; some members of the class could have improperly certified N-426s; DOD’s background checks involve individualized and factspecific inquiries; etc. Defendants also point out that plaintiffs’ unreasonable-delay claim under 5 U.S.C. § 706(1) involves fact-specific inquiries and class members may have naturalization applications pending for varying amounts of time.
“However, ‘factual variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members.’” Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 8 (D.D.C. 2010) (citation omitted). The Court acknowledges the factual variations among class members, but finds that they do not impact the overarching questions common to the class: (1) Do defendants have the legal authority to implement these policies and practices? (2) Did defendants implement their new policies and practices in accordance with the strictures of the APA? and (3) Do these policies and practices otherwise violate the Constitution, the APA, or other applicable law? As the Supreme Court has explained, even a single common question can satisfy the commonality requirement. See Wal-Mart Stores, 564 U.S. at 350, 359.2
2 Although class members’ naturalization applications may have applications with varying times of delay that could influence the type of relief this Court could grant, courts routinely certify classes in unreasonable-delay cases where a common issue exists regarding the legality of the government’s policies and practices that serve as the reason for delay. Kaplan v. Chertoff, No. 06-cv-5304, 2008 WL 200108, at *7 (E.D. Pa. Jan. 24, 2008) (unpublished); Santillan v. Ashcroft, No. C 04-2686, 2004 WL 2297990, at *10, 12 (N.D. Cal. Oct. 12, 2004) (unpublished).
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C. Typicality
As to typicality, defendants make the same arguments concerning factual variations that
the Court has already rejected. As defendants themselves acknowledge, the
commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.
Wal-Mart Stores, 564 U.S. at 349 n.5 (citation omitted). Furthermore,
[t]he facts and claims of each class member do not have to be identical to support a finding of typicality; rather, “[t]ypicality refers to the nature of the claims of the representative, not the individual characteristics of the plaintiff.” The typicality requirement is satisfied “if each class member’s claim arises from the same course of events that led to the claims of the representative parties and each class member makes similar legal arguments to prove the defendant’s liability.”
Radosti v. Envision EMI, LLC, 717 F. Supp. 2d 37, 52 (D.D.C. 2010) (second alteration in
original) (internal citations omitted). Defendants are applying standardized, across-the-board
policies to the class. The Court is not adjudicating naturalization applications or making
individual N-426 determinations, it will merely decide (1) whether DHS/USCIS can postpone
adjudication of naturalization applications pending completion of DOD’s enhanced security
screening, and (2) whether DOD can apply its October 13th Guidance to recall or de-certify N-
426s that had previously been granted to members of the class.
D. Adequacy and Appointment of Class Counsel
“Two criteria for determining the adequacy of representation are generally recognized:
1) the named representative must not have antagonistic or conflicting interests with the unnamed
members of the class, and 2) the representative must appear able to vigorously prosecute the
interests of the class through qualified counsel.” Twelve John Does v. District of Columbia, 117
7

F.3d 571, 575 (D.C. Cir. 1997) (citation omitted). In addition, under Rule 23(g), a court must consider the following factors in appointing class counsel:
(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1). Defendants make two main arguments regarding adequacy and appointment of class counsel. First, defendants repeat their argument that factual differences between the named plaintiffs and the proposed class defeat adequacy. This argument fails for the same reasons that it does regarding commonality and typicality. See Wal-Mart Stores, 564 U.S. at 349 n.5; Harris v. Koenig, 271 F.R.D. 383, 390–91 (D.D.C. 2010) (finding that the defendants’ argument about differences between named plaintiffs and class members failed to defeat commonality, typicality, or adequacy and noting that a district court has discretion to later consider creating subclasses should a conflict arise). Second, without any legal support, defendants boldly assert that plaintiffs’ counsel cannot adequately represent the class because plaintiffs’ counsel has not demonstrated that they have handled plaintiffs’ immigration matters in the class action context. Rule 23 does not require prospective class counsel to have such specific experience. See Fed. R. Civ. P. 23, Committee Notes on Rules—2003 Amendment (“In evaluating prospective class counsel, the court should weigh all pertinent factors. No single factor should necessarily be determinative in a given case.”) Plaintiffs’ counsel consists of a team of attorneys with experience in immigration law, military law, complex civil litigation, federal court litigation, and class-actions—representing both plaintiffs and defendants. (See 1st Baruch Decl., Aug. 11, 2017, ECF No. 30-3; 2d Baruch
8

Decl., Sept. 22, 2017, ECF No. 52-2.) Furthermore, plaintiffs’ counsel has contributed extensive time and resources to representation of plaintiffs and the proposed class and are part of a large global law firm that has committed to contributing extensive time and resources to representing plaintiffs and the proposed class. (See 1st Baruch Decl., Aug. 11, 2017, ECF No. 30-3; 2d Baruch Decl., Sept. 22, 2017, ECF No. 52-2.) Given counsel’s knowledge, experience, resources, and commendable work already done in the case, the Court has no doubt that plaintiffs’ counsel can adequately represent the class. See Encinas, 265 F.R.D. at 9; Vista Healthplan, Inc. v. Warner Holdings Co. III, 246 F.R.D. 349, 358 (D.D.C. 2007); see also Greenberg v. Colvin, 63 F. Supp. 3d 37, 46–47 (D.D.C. 2014). IV. RULE 23(b) REQUIREMENTS
Rule 23(b)(1)(A) permits a class action to proceed when “prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class . . .” Fed. R. Civ. P. 23(b)(1)(A). “Rule 23(b)(1)(A) certification is appropriate when the class seeks injunctive or declaratory relief to change an alleged ongoing course of conduct that is either legal or illegal as to all members of the class.” Adair v. England, 209 F.R.D. 5, 12 (D.D.C. 2002). In their opposition to plaintiffs’ initial motion for class certification and in their supplemental opposition to plaintiffs’ amended class certification motion, defendants failed to respond to plaintiffs’ argument that the Court should certify the proposed class under Rule 23(b)(1)(A), and thus, defendants have conceded that class certification is appropriate under Rule 23(b)(1)(A). See Day v. D.C. Dep’t of Consumer & Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002); Bancoult v.
9

McNamara, 227 F. Supp. 2d 144, 149 (D.D.C. 2002).3 Upon review of the record, the Court is
also independently satisfied that plaintiffs’ proposed class meets the requirements of Rule
23(b)(1)(A).
The Court is also satisfied that plaintiffs’ proposed class meets the requirements of Rule
23(b)(2). A class action may be maintained under Rule 23(b)(2) if “the party opposing the class
has acted or refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.
Civ. P. 23(b)(2). Rule 23(b)(2) applies “when a single injunction or declaratory judgment would
provide relief to each member of the class.” Wal-Mart Stores, 564 U.S. at 360. Defendants
object to certification under Rule 23(b)(2) on similar grounds to their objections regarding
commonality and typicality: there can be no final injunctive or declaratory relief appropriate for
the class as a whole regarding the DHS/USCIS Security Screening Requirement or DOD’s N-
3 In their supplemental opposition to plaintiffs’ amended class certification motion, defendants make one passing reference to Rule 23(b)(1)(B):
[U]nless USCIS’s decision to wait to schedule a MAVNI soldier for an N-400 interview until after DoD completes enhanced background checks is illegal under 8 U.S.C. §1440, which it is not, this Court will, at the conclusion of this case, ultimately deny class-wide relief on that claim. Such denial could impair a future putative Nio class member’s ability to file his or her own lawsuit to challenge an individualized delay based on his or her own circumstances. See Fed. R. Civ. P. 23(b)(1)(B).
(Defs.’ Supp. Opp. to Pls.’ Mot. for Class Certification, Oct. 24, 2017, ECF No. 66, at 4–5.) This argument is irrelevant because the Court is not certifying the class under Rule 23(b)(1)(B), but even if it were relevant, the argument would be misguided because plaintiffs have represented that “the individualized assessments or particular circumstances of Plaintiffs or individual class members are not relevant here, [to plaintiffs’ unreasonable-delay claims] where Plaintiffs are challenging Defendants’ standardized, across-the-board policies that generally apply to the class.” (Reply in Support of Pls.’ Mot. for Class Certification and Appointment of Class Counsel, Sept. 22, 2017, ECF No. 52, at 9 n.7; see also id. at 11 (“Because Plaintiffs are seeking systemic relief, an individualized analysis of ‘every naturalization application’ is neither appropriate nor necessary.”).)
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426 policy because both involve individualized determinations about an enlistee’s fitness. Again, plaintiffs are only challenging the application of standardized policies that generally apply to the class: (1) Can USCIS hold applications pending the outcome of DOD’s screening? and (2) Can DOD rescind N-426s based on its October 13th Guidance? Enjoining these broad policies or declaring them unlawful is appropriate relief under Rule 23(b)(2).
CONCLUSION For the reasons stated above the Court grants plaintiffs’ amended motion for class certification and appointment of class counsel as further detailed in the Court’s accompanying Order, ECF No. 72.
/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge Date: October 27, 2017
11

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KUSUMA NIO, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

) ) ) ) ) ) Civil Action No. 17-00998 (ESH/RMM) ) ) ) ) ) )

MEMORANDUM OPINION

Pending before the Court is Plaintiffs’ request that the Court order Defendant United

States Citizenship and Immigration Service (“USCIS”) to produce a May 17, 2018 USCIS internal guidance (“May 2018 Guidance”)1 regarding military naturalization adjudication

procedures, and that the Court permit Plaintiffs to use the May 2018 Guidance as an exhibit to

their motion for summary judgment. USCIS objects to that request, arguing that the May 2018

Guidance is not admissible because it is outside the scope of the administrative record, and that

the May 2018 Guidance contains sensitive and privileged information that should not be

disclosed to Plaintiffs or their counsel. Judge Ellen S. Huvelle referred the parties’ dispute

regarding the admissibility of the Guidance to the undersigned magistrate judge. See 6/20/2018

Order, ECF No. 159. Having reviewed the May 2018 Guidance in camera and after considering

the parties’ submissions and applicable law, the undersigned concludes, for the reasons set forth

1 USCIS has advised the Court that the May 2018 Guidance has been updated; the Court’s references to the May 2018 Guidance in this opinion pertain to the most recent version of that guidance.

below, that Plaintiffs are entitled to receive a redacted copy of the May 2018 Guidance for use in connection with summary judgment briefing.
BACKGROUND The complex factual background of the underlying action is set forth in detail in the Court’s September 6, 2017 Memorandum Opinion denying Plaintiffs’ request for a preliminary injunction. See Nio v. U.S. Dep’t of Homeland Sec., 270 F. Supp. 3d 49 (D.D.C. 2017). The undersigned will, however, briefly summarize the portions of the background and procedural history that are relevant to the pending dispute regarding the admissibility of the Guidance. Plaintiffs are non-citizens who enlisted in the United States Army’s Selected Reserve of the Ready Reserve through the United States Department of Defense’s Military Accessions Vital to the National Interest (“MAVNI”) program and have pending applications for naturalization. See id. at 49. They have sued USCIS and its Director, the Department of Homeland Security and its Acting Secretary, and the United States Department of Defense (“DOD”) and its Secretary, raising a variety of claims under the Administrative Procedure Act (“APA”). See 2d Am. Compl., ECF No. 61. Plaintiffs allege, inter alia, that: (1) USCIS has acted arbitrarily and capriciously by requiring MAVNI applicants to undergo enhanced security screening prior to the adjudication of their naturalization applications; and (2) USCIS has unreasonably delayed its investigation, examination, and adjudication of MAVNI naturalization applications, in violation of Section 706(1) of the APA. See Nio, 270 F. Supp. 3d at 66; 2d Am. Compl. ¶¶ 152-73. In response to a Court Order, USCIS filed a copy of a July 7, 2017 internal USCIS email, titled “Updated MAVNI N-400 Guidance,” (“July 2017 Guidance”), that advised USCIS Field Offices that “pending and future MAVNI cases may not proceed to interview, approval, or oath until confirmation that all enhanced DoD security checks are completed.” Decl. and Doc.
2

Produc. of Daniel Renaud (“July 2017 Renaud Decl.”) at 25, ECF No. 23-1 ; see also 7/14/2017 Order, ECF No. 22 (ordering production of documents referenced in prior declaration). USCIS submitted the July 2017 Guidance as part of “a compilation of all final agency guidance provided to the USCIS Field Offices and/or to the National Benefits Center by [Field Operations Directorate] headquarters from February 28, 2017, through the present, setting national policies regarding the processing of N-400 applications filed by MAVNI recruits.” July 2017 Renaud Decl. at 3-4. The July 2017 Guidance was filed on the public docket, and the body of that Guidance contains no redactions.2
The Court has referred several issues to the undersigned for resolution, including a referral to “work with the parties to minimize the delay between when DOD completes an MSSD [military security suitability determination] and uploads it to the portal to share with USCIS, and when USCIS begins to undertake the remaining steps of the naturalization process.” 4/12/2018 Order, ECF No. 135. As part of that referral, the undersigned ordered Defendants and their counsel to “confer with USCIS about drafting an email or other communication from the field directorate to the field offices that reinforces the July 7th Policy and reiterates that the processing of naturalization applications, including scheduling naturalization interview for MAVNIs, should not be delayed.” 5/22/2018 Minute Order. At a subsequent hearing on May 31, 2018, Defendants asserted that such an email communication would be redundant and unnecessary, because USCIS had recently circulated further guidance (the May 2018 Guidance) to USCIS Field Offices. See 7/13/2018 Resp. to Order of the Ct., ECF No. 166-1. Defendants described the May 2018 Guidance as a document that “addresses the processing of naturalization
2 Portions of the “to” and “from” lines of the emails forwarding and distributing the guidance were redacted.
3

applications,” and explained that “[f]or all military naturalization cases, the guidance states that the offices will schedule naturalization interviews to occur within thirty days of the date on which all USCIS background checks are complete.” Id. At that hearing, Plaintiffs sought the production of the May 2018 Guidance, and USCIS indicated that it would not provide the document to Plaintiffs absent a Court Order.
As a result of the issues raised at the May 31, 2018 hearing before the undersigned, by Order dated June 20, 2018, Judge Huvelle referred to the undersigned the parties’ dispute regarding “the May 17, 2018 USCIS Guidance’s admissibility as an appendix to plaintiffs’ motion for summary judgment.” 6/20/2018 Order, ECF No. 159. The undersigned requested briefing on the issue. See 6/21/2018 Minute Order. Defendants contend that: (1) Plaintiffs are not entitled to receive the May 2018 Guidance because it postdates and was not part of the decision-making process regarding the formulation of the July 2017 Guidance; (2) there is no basis to allow discovery or otherwise require USCIS to disclose non-record materials; and (3) the May 2018 Guidance contains privileged material that should not be disclosed to Plaintiffs. See Defs.’ Mem. Regarding the Admissibility of the May 17, 2018 Internal Guidance Doc., ECF No. 162; Decl. of Daniel M. Renaud in Support of USCIS’s Privilege Assertions Re Internal May 17, 2018 USCIS Guidance (“July 2018 Renaud Decl.”), ECF No. 166-2. Plaintiffs assert that the May 2018 Guidance is relevant to several of their claims, including Plaintiffs’ assertion that USCIS took arbitrary and capricious agency action, Plaintiffs’ APA unreasonable delay claims, and Plaintiffs’ constitutional claims. See Pls.’ Resp. Regarding the Admissibility of the USCIS May 17, 2018 Internal Guidance Doc. (“Pls.’ Resp.”) at 6-10, ECF No. 165. Plaintiffs also challenge the adequacy of Defendants’ privilege assertions and contend that any applicable privilege was likely waived. See id. at 10-12.
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ANALYSIS Plaintiffs’ challenge to USCIS’s failure to complete the adjudication of their naturalization applications pursuant to APA Section 706(1), on the grounds that it constitutes unreasonably delayed agency action, entitles Plaintiffs to rely upon material that is outside the scope of the administrative record. Determining whether USCIS has unreasonably delayed the investigation, examination, and adjudication of Plaintiffs’ naturalization applications will require the Court to conduct “a fact intensive inquiry,” applying the factors set forth in Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984). See Nio, 270 F. Supp. 3d at 66; see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (“Resolution of a claim of unreasonable delay is ordinarily a complicated and nuanced task requiring consideration of the particular facts and circumstances before the court.”); Hamandi v. Chertoff, 550 F. Supp. 2d 46, 54 (D.D.C. 2008) (noting that “the determination of whether an agency’s delay is unreasonable is a fact specific inquiry”). Judicial review of such claims “is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record.” Nat’l Law Ctr. on Homelessness and Poverty v. U.S. Dep’t of Veterans Affairs, 842 F. Supp. 2d 127, 130 (D.D.C. 2012). Accordingly, the fact that the May 2018 Guidance will not be included in the administrative record does not render it inadmissible as an exhibit to Plaintiffs’ motion for summary judgment. The May 2018 Guidance contains information that may be germane to the Court’s analysis of Plaintiffs’ unreasonable delay claim. Evaluating the reasonableness of any delay in agency action “will depend in large part . . . upon the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency.”
5

Mashpee Wampanoag Tribal Council, Inc., 336 F.3d at 1102. Defendants acknowledge that the May 2018 Guidance articulates policies and procedures governing the processing of MAVNI naturalization applications. Therefore, the May 2018 Guidance should shed light upon “the complexity of the task at hand,” id., and provide context for the parties’ arguments regarding the reasonableness of USCIS processing times. Further, given that the July 2017 Guidance already is part of the record, reviewing the May 2018 Guidance will allow Plaintiffs and the Court to ascertain whether the more recent Guidance modifies or provides further details regarding the processing and adjudication requirements applicable to MAVNI naturalization applications or supersedes the July 2017 Guidance in any respect. Consequently, the May 2018 Guidance is precisely the type of document that Plaintiffs should be permitted to rely upon as support for their motion for summary judgment.
Notwithstanding its clear relevance to the APA unreasonable delay claim, the May 2018 Guidance could be withheld from Plaintiffs, and provided only to the Court for in camera review, if a privilege precludes its disclosure. USCIS asserts that the law enforcement privilege shields portions of the May 2018 Guidance from disclosure to Plaintiffs or the public. See July 2018 Renaud Decl. ¶¶ 6-12. In connection with that assertion of privilege, USCIS has submitted for in camera review a privilege log and annotated copy of the May 2018 Guidance reflecting the specific text over which it asserts the law enforcement privilege.3 See id. ¶ 8; 6/28/2018 Minute Order (directing Defendants to submit additional documents asserting the privilege).
3 Plaintiffs requested permission to file a response to the July 2018 Renaud Declaration, given that Defendants’ initial filing did not indicate with specificity to what extent, and on what basis, USCIS asserted the law enforcement privilege. However, the undersigned declined to permit Plaintiffs to file an additional brief because the Court’s in camera review of the relevant documents provided adequate information to evaluate USCIS’s assertion of the law enforcement privilege.
6

The law enforcement privilege is a qualified privilege that allows the federal government to withhold “information that would be contrary to the public interest in the effective functioning of law enforcement.” A.N.S.W.E.R. Coal. v. Jewell, 292 F.R.D. 44, 50 (D.D.C. 2013) (quoting Tuite v. Henry, 181 F.R.D. 175, 176 (D.D.C. 1998)). The privilege “serves to protect ‘the integrity of law enforcement techniques and confidential sources, protects witnesses and law enforcement personnel, safeguards the privacy of individuals under investigation, and prevents interference with investigations.’” Id.; see also In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d 150, 159 (D.D.C. 2017). To successfully invoke that privilege: (1) “the head of the department having control over the requested information” must formally assert the privilege; (2) the assertion of privilege must be based upon the official’s “actual personal consideration” of the relevant documents; and (3) the official must specify in detail “the information for which the privilege is claimed, with an explanation why it properly falls within the scope of the privilege.” Landry v. F.D.I.C., 204 F.3d 1125, 1135 (D.C. Cir. 2000) (internal quotes omitted).
USCIS has formally asserted the law enforcement privilege by submitting the declaration of Daniel M. Renaud, Associate Director of the Field Operations Directorate at USCIS. Although Mr. Renaud is not the head of USCIS, he reports directly to the Director and has been delegated the authority to assert the law enforcement privilege on his behalf. See July 2018 Renaud Decl. ¶¶ 1-2. Mr. Renaud also is personally familiar with the May 2018 Guidance and the policies and procedures discussed therein. See id. ¶¶ 3-5. Accordingly, USCIS has established that Mr. Renaud is an official with sufficient responsibility to assert the privilege, and that he has based that assertion of privilege upon his personal consideration of the May 2018 Guidance. See Landry, 204 F.3d at 1135-36 (concluding head of regional division had “sufficient rank” to assert law enforcement privilege and declining to require that agency head
7

directly assert the privilege). The declaration, privilege log, and proposed redactions provide
sufficient detail for the Court to evaluate USCIS’s assertion of the law enforcement privilege.
Determining whether the law enforcement privilege protects the information the
government seeks to withhold requires courts to “weigh the public interest in nondisclosure
against the [requesting party’s] need for access to the privileged information.’” Tuite v. Henry,
98 F.3d 1411, 1418 (D.C. Cir. 1996) (quoting In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir.
1988)) (internal quotation marks and modifications omitted). That analysis involves
consideration of factors such as:
(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiff's case.
In re Sealed Case, 856 F.2d at 272. The government bears the burden of proving that the
balance favors nondisclosure. See In re Anthem, 236 F. Supp. 3d at 166.
Turning to the balancing test, USCIS has demonstrated that the public interest in
nondisclosure outweighs Plaintiffs’ need for access to some, but not all, of the information that
USCIS proposes to redact. The disputed text describes aspects of the naturalization adjudication
process including law enforcement techniques and processes such as: the types of information
revealed through certain security checks; the external databases that are searched as part of the
background screening process; questions USCIS employees may ask applicants in order to detect
fraud and evaluate applicants’ eligibility for immigration benefits; and information about the 8

techniques and procedures USCIS uses to perform security checks while processing naturalization applications. See July 2018 Renaud Decl. ¶¶ 7-11. As USCIS notes, disclosing such information “will risk circumvention or evasion of the law,” id. ¶ 7, and could “provide an applicant for an immigration benefit a roadmap to evade such processes and procedures and conceal information that would otherwise make the applicant ineligible for the immigration benefit sought.” Id. Given that Plaintiffs have pending naturalization applications, disclosing that information to them carries some of the same risks as disclosing information about pending investigations to the defendant in a criminal case, which would implicate concerns like those at issue in the fifth and sixth Sealed Case factors. See generally Sealed Case, 856 F.2d at 273. On the other hand, Plaintiffs have brought a “non-frivolous action” in good faith, the case is likely to be resolved on dispositive motions without discovery, and, to advance their APA unreasonable delay claim, Plaintiffs need to know information about the USCIS process for investigating, evaluating, and adjudicating MAVNI naturalization applications. See id. (recommending that courts consider such issues under factors eight through ten).
Having weighed the relevant factors, the Court concludes that the law enforcement privilege protects all information that would identify the document path or link to the internal USCIS network location at which the May 2018 Guidance resides. USCIS has asserted that privilege to justify withholding the single line of text that appears at the bottom of each page of the May 2018 Guidance. See Privilege Log (submitted in camera). Disclosing these internal network links risks compromising USCIS’s systems, and Plaintiffs have no cognizable interest in receiving that information. Therefore, the balance clearly favors nondisclosure.
Evaluating the privilege claim for the remaining proposed redactions of information that is relevant to Plaintiffs’ claims requires a page-by-page assessment of the respective interests of
9

Plaintiffs and Defendants. The chart below reflects the conclusions the Court has drawn after conducting that analysis. Each finding that the law enforcement privilege applies is based on a determination that disclosing the relevant text would risk harm to USCIS and its law enforcement partners that outweighs Plaintiffs’ need to receive the withheld information. Given that the May 2018 Guidance is a non-public document that describes internal agency procedures for evaluating and adjudicating naturalization applications, the Court will designate the entire document as “Protected Material” and subject to the limitations on the use and distribution of “Protected Material” that are set forth in the Protective Order governing this case. See Order Granting Mot. for Protective Order, ECF No. 123. Where Plaintiffs’ needs outweigh the public interest in protecting sensitive law enforcement information contained within the May 2018 Guidance, the “Protected Material” designation will mitigate the risks of disclosure.

Page 3
4
8

Description
Discussion of techniques for screening applicants for fraud.
Discussion of techniques for finding derogatory information including external databases searched. Description of security checks and additional steps applicable to erroneous filings.

LawEnforcement Privileged?
YES
YES
YES

Rationale
Disclosure would risk circumvention of the law and undermine USCIS’s efforts to prevent and detect fraud. Possessing this information would not advance Plaintiffs’ claims. Disclosure would risk circumvention of the law and undermine USCIS’s efforts to identify derogatory information. Possessing this information would not advance Plaintiffs’ claims. Although disclosure carries only minimal risks, Plaintiffs have no need to receive this information, because the information would neither advance nor provide relevant background information for Plaintiffs’ claims.

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Page 10-11 12
12 19 19

Description
Description of steps, including security screenings, that the National Benefits Center (“NBC”) takes to process applications.
Bulleted list of steps involved in Field Office Processing of applications, including security screenings.
Description of review undertaken when applicants have pending removal proceedings.
Description of review and further investigatory steps undertaken in response to security check results
Routing and transmission contact information for requesting external security check

LawEnforcement Privileged?
NO
NO
YES
YES
YES

Rationale
Detailed information regarding NBC processing of applications is essential to Plaintiffs’ unreasonable delay claim. Plaintiffs’ need outweighs the interest in withholding details regarding the types of security screenings performed in this process. The designation as “Protected Material” reduces the risks of disclosure. Detailed information regarding Field Office processing of applications is essential to Plaintiffs’ unreasonable delay claim. Plaintiffs’ need outweighs the interest in withholding details regarding the types of security screenings performed in this process. The designation as “Protected Material” reduces the risks of disclosure. Disclosure would undermine USCIS’s efforts to develop appropriate response to removals. Plaintiffs have no need to receive this information, because the information would neither advance nor provide relevant background information for Plaintiffs’ claims. Disclosure would risk circumvention of law by revealing how USCIS responds to derogatory information and security screening checks. Plaintiffs have no need to receive this information, because the information would neither advance nor provide relevant background information for Plaintiffs’ claims. Although disclosure carries only minimal risks, Plaintiffs have no need to receive this information, because the information would neither advance nor provide relevant background information for Plaintiffs’ claims.

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Page 20-21
21-22
22

Description
Description of fingerprint check procedures (Section C-2)
Description of process used when applicants fail to appear for fingerprinting (Section C-3)
Description of process used when applicants’ fingerprints expire (Section C-4)

LawEnforcement Privileged?
NO
YES
NO

Rationale
Detailed information regarding NBC processing of applications is essential to Plaintiffs’ unreasonable delay claim. Plaintiffs’ need outweighs the interest in withholding details regarding the fingerprinting process. The designation as “Protected Material” reduces the risks of disclosure. Although disclosure carries only minimal risks, Plaintiffs have no need to receive this information. As there is no indication that failure to appear for fingerprinting has affected timing of adjudication of Plaintiffs’ applications, this information would neither advance nor provide relevant background information for Plaintiffs’ claims. Plaintiffs need to know information regarding issues that could delay adjudication of their applications to fully litigate their unreasonable delay claim. That need outweighs the interest in withholding details regarding fingerprinting process. The designation as “Protected Material” reduces the risks of disclosure.

Plaintiffs contend that USCIS may have waived the law enforcement privilege by voluntarily disclosing the existence of the May 2018 Guidance and describing its contents in detail. Pls.’ Resp. at 11. The law enforcement privilege can be waived through “voluntary disclosure of a significant portion of the information claimed to be privileged.” 26A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 5692 (1st ed.); Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1126 (7th Cir. 1997) (“We may assume that like other privileges the [law enforcement] privilege can be ‘waived’” through “a voluntary surrender.”); cf. Peck v. United States, 514 F. Supp. 210, 212 (S.D.N.Y.), on reargument, 522 F. Supp. 245
12

(S.D.N.Y. 1981) (finding the government waived the official information privilege after it released a summary of an investigation that revealed a significant portion of a secret report). However, Defendants’ prior descriptions of the May 2018 Guidance do not disclose the contents of the text that fall within the scope of the law enforcement privilege. Nor did USCIS’s submission of the July 2017 Guidance disclose the substance of the privileged material in the May 2018 Guidance. Finally, the May 2018 Guidance is an internal agency document, and nothing in the record suggests that USCIS has disclosed the otherwise privileged information on its website or through other public means. Therefore, USCIS has not waived the law enforcement privilege.
Finally, USCIS proposes to redact portions of the May 2018 Guidance that are not relevant to Plaintiffs’ claims. This information includes text on pages 2, 5, 9, 10, 17-19, and 2225 of the May 2018 Guidance. The text USCIS seeks to redact addresses topics wholly unrelated to the processing and adjudication of MAVNI naturalization applications. Those redactions are proper because Plaintiffs have no right to review internal USCIS documents that have no bearing on their APA and constitutional claims.4
CONCLUSION For the foregoing reasons, and as set forth in the Order accompanying this Memorandum Opinion, the Court concludes that the May 2018 Guidance is admissible and shall be designated as “Protected Material” and subject to the limitations on the use and distribution of “Protected Material” that are set forth in the Protective Order governing this case, and that USCIS therefore
4 USCIS also asserts that the law enforcement privilege provides an alternative basis for redacting portions of this text. The Court need not evaluate that claim of privilege, because the text is properly redacted in its entirety due to its lack of relevance to Plaintiffs’ claims.
13

must produce to Plaintiffs a copy of the May 2018 Guidance that has been redacted in a manner

consistent with the foregoing analysis.

Digitally signed by Robin M.

Meriweather

Date: July 16, 2018

Date: 2018.07.16 15:49:44 -04'00'

ROBIN M. MERIWEATHER

UNITED STATES MAGISTRATE JUDGE

14

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KUSUMA NIO, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 17-0998 (ESH)

MEMORANDUM OPINION AND ORDER Before the Court is Plaintiffs’ Motion to Strike Portions of Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Cross Motion for Summary Judgment. (Pls.’ Mot. to Strike Cross Mot. for Summ. J. (Portions), Dec. 21, 2018 (ECF No. 226) (“Mot. to Strike”).) Plaintiffs argue that “portions” of defendants’ cross motion for summary judgment (Defs.’ Cross Mot. for Summ. J., Nov. 30, 2018 (ECF No. 219) (“Cross Mot.”)) should be stricken because it (1) cites documents outside the administrative record, (2) incorporates by reference previous pleadings and thereby “circumvent[s] page limits,” and (3) misstates administrative record facts. (Mot. to Strike at 1.) For the reasons stated herein, the motion to strike is denied. Related to the present motion, pending before the Court are the parties’ cross motions for partial summary judgment. (See Pls.’ Mot. for Partial Summ. J., Aug. 13, 2018 (ECF No. 177); Cross Mot.) Plaintiffs challenge policies of U.S. Citizenship and Immigration Services (“USCIS”) relating to the processing of naturalization applications of foreign nationals who enlisted in the U.S. Army via the Military Accessions Vital to the National Interest (“MAVNI”)

program. On July 7, 2017, USCIS issued an internal guidance (the “July 7 Guidance”) instructing that a MAVNI’s naturalization application is not to be processed until the U.S. Department of Defense (“DOD”) has completed all enhanced security checks for MAVNI recruits. (USCIS Administrative Record at 5 (“USCIS AR”).)
Plaintiffs challenge the July 7 Guidance under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 706(2), 553, 552. Accordingly, the Court’s review is restricted in scope. See, e.g., Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981) (“It is well settled that judicial review of agency action is normally confined to the full administrative record before the agency at the time the decision was made.”); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.”). A “noted exception to the general rule” permits courts to look outside the administrative record for certain limited purposes. Envtl. Def. Fund, 657 F.2d at 285. Where there is such a “failure to explain administrative action as to frustrate effective judicial review,” the court may “obtain from the agency, either through affidavits or testimony such additional explanation of the reasons for the agency decision as may prove necessary.” Camp, 411 U.S. at 142-43. Extra-record materials, however, must be “merely explanatory of the original record and should contain no new rationalizations.” Envtl. Def. Fund, 657 F.2d at 285 (citing Bunker Hill Co. v. EPA, 572 F.2d 1286, 1292 (9th Cir. 1977)); see also id. (“If the reviewing court finds it necessary to go outside the administrative record, it should consider evidence relevant to the substantive merits of the agency action only for background information. . . .”) (quoting Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980)).
With these parameters in mind, the Court has already considered and ruled upon the
2

question of whether and for what purposes the parties may cite materials from outside the administrative record.1 Plaintiffs previously filed a remarkably similar motion to strike
defendants’ first opposition and cross motion. (Pls.’ Mot. to Strike, Oct. 19, 2018 (ECF No. 204)
(“First Mot. to Strike”); see also Defs.’ Cross Mot. for Summ. J. & Opp’n to Pls.’ Mot. for
Summ. J., Sept. 14, 2018 (ECF No. 186).) In considering that motion, the Court instructed the
parties that while arguments about the justification for the July 7 Guidance must be based on the
administrative record, other materials could be cited “to rebut some of [plaintiffs’] arguments
that are not focused strictly on what was the rationale for [the July 7 Guidance]. . . . [I]n terms of
justifying what you did on July 7th, you’re limited to the administrative record.” (Tr. of
Teleconference at 37, Nov. 7, 2018 (ECF No. 223).) In its order granting the motion in part, the
Court specified certain extra-record documents that could be cited for these purposes, but in no
way did it mean to imply that these citations were the only ones that could be used as rebuttal:
defendants may cite the July 28, 2017 Miller declaration (ECF No. 25-2) and documents from the DoD administrative record (see ECF No. 81) if necessary to rebut plaintiffs’ arguments. Defendants also may cite any portion of the July 7, 2018 Miller declaration (ECF No. 19-7) if necessary to rebut plaintiffs’ arguments.
(Order, Nov. 15, 2018 (ECF No. 217).)
Defendants subsequently re-filed their cross motion, and plaintiffs have now filed a
second motion to strike essentially complaining about the same issues that they had raised
before. They continue to complain about citations to documents outside the administrative
1 The administrative record for the July 7 Guidance initially was compiled by USCIS. (See Administrative Record Index, Mar. 1, 2018 (ECF No. 111).) Subsequently the Court ordered that certain additional declarations and contemporaneous documents would be considered part of the administrative record, and that plaintiffs also could file other specific documents as appendices to their pleadings. (See Order at 1, Apr. 12, 2018 (ECF No. 135); see also Index of Administrative Record, Nov. 9, 2018 (ECF No. 216-1); Index of Pls.’ Appendix, Nov. 9, 2018 (ECF No. 216-2).)
3

record, but go on to cite examples that are permissible under the Court’s Order. For example, plaintiffs accuse defendants of citing extra-record documents to “try to avoid one of the factors they failed to consider – the DoD ‘time-out’ policy.” (Mot. to Strike at 5.) Contrary to plaintiffs’ argument, in the allegedly offending passages defendants point to extra-record documents to rebut plaintiffs’ argument that USCIS failed to consider the possibility that soldiers would become ineligible to naturalize if they “timed out” of the MAVNI program (i.e., were enlisted through the program for two years before accession) before DOD completed their final Military Security Suitability Determination (“MSSD”). (See Cross Mot. at 33-34 (citing defendants’ filing of June 15, 2018 (ECF No. 157), which responded to, among other things, an inquiry from the Court regarding the possibility of MAVNI soldiers timing out of the program; and the DOD Memo of July 27, 2018 (ECF No. 26), which officially extended the time-out policy from two to three years).) These two documents explain that the time-out policy was extended from two to three years within weeks of the July 7 Guidance, and as a result, no class member was affected by the two-year rule.
Plaintiffs also attempt to restrict defendants’ use of extra-record materials that have been cited as background information. The Court did not previously address specifically the use of documents outside the record for purposes of background, but it is well established that the parties and the Court may look outside the administrative record if necessary to understand the background and context. See Envtl. Def. Fund, 657 F.2d at 285 (explaining that extra-record materials may be cited only as “merely explanatory of the original record”). Here, the Court must rely on certain additional background information to understand the MAVNI program, how it operated both before and after the July 7 Guidance, and the relationship between DOD’s
4

regulatory requirements for MAVNIs and USCIS’s criteria for naturalization.2 Given the complexity of this program, it is not possible to view the July 7 Guidance in isolation. While the parties may not use extra-record documents to provide post-hoc rationalizations for the July 7 Guidance, necessary background information and rebuttal arguments are not limited to the administrative record. See Envtl. Def. Fund, 657 F.2d at 285; see also Order, Nov. 15, 2018 (“Defendants may not cite the March 22, 2018 Renaud declaration (ECF No. 128-1) to explain the USCIS July 7 Policy.”).)3
Plaintiffs next argue that the Court should strike unspecified portions of defendants’ cross motion because they incorporate by reference previously filed briefs, thereby circumventing page limits. (See Mot. to Strike at 6-7.) It is true that a party may not incorporate by reference an argument made at an earlier stage of the litigation in order to “evade word limits.” See AlTamimi v. Adelson, 2019 WL 660919 at *3 (D.C. Cir. Feb. 19, 2019) (citing Gerlich v. DOJ, 711 F.3d 161, 173 (D.C. Cir. 2013); Davis v. PBGC, 734 F.3d 1161, 1167 (D.C. Cir. 2013)). At the same time, motions to strike generally are “disfavored,” Capitol Sprinkler Inspection, Inc. v. Guest Serv., Inc., 630 F.3d 217, 226 (D.C. Cir. 2011) (quoting Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distrib., 647 F.2d 200, 201 (D.C. Cir. 1981)), and without a showing of prejudice, they need not be granted. See, e.g., Phillips v. Mabus, 319 F.R.D. 36, 38-39 (D.D.C.
2 For that reason, contrary to plaintiffs’ argument (see Mot. to Strike at 9 n.3), the Court is not constrained by the administrative record if it needs to consult DOD’s Adjudicative Guidelines or other DOD manuals to understand if DOD’s background checks are relevant to a “MAVNI recruit’s eligibility for naturalization.” (July 7 Guidance at 1 (USCIS AR 4).) 3 Plaintiffs also complain about defendants’ reference to a criminal complaint alleging violations by a MAVNI recruit. (Mot. to Strike at 4 (citing Cross Mot. at 22 n.12).) Defendants agree that this complaint is not part of the administrative record. (See Defs.’ Opp’n to Mot. to Strike at 5, Feb. 15, 2019 (ECF No. 238).) Since defendants do not rely on it as a justification for the July 7 Guidance, there is no reason to strike this reference. The Court knows not to rely on extra-record citations in its analysis of whether defendants’ actions complied with the APA.
5

2016) (denying a motion to strike where doing so would “not result in any undue prejudice” to the moving party).
Plaintiffs point to defendants’ references to “prior filings,” “arguments,” and “the Statutory and Regulatory Backgrounds of the naturalization process” as described in previous briefs. (Mot. to Strike at 6-7 (quoting Cross Mot. at 3, 33-34, 4 n.3, 46 n.23).) These crossreferences do not directly relate to the issue before the Court—the rationale for the July 7 Guidance—so there is no issue of evading page limits. Nor have plaintiffs shown that failure to strike portions of the cross motion would result in any prejudice to them. Furthermore, it is ironic that plaintiffs complain about defendants’ evasion of page limits. Plaintiffs have now filed two motions to strike, totaling 22 pages, that include many arguments that properly belong in their summary judgment pleadings. Plaintiffs’ first motion to strike contained the same argument about incorporations by reference (see First Mot. to Strike at 9-10 (citing the same passages as those cited in the present motion)), and while the Court ultimately ordered defendants to re-file the cross motion omitting citations that were improper for other reasons, the Court did not consider the argument about incorporation by reference to be sufficiently meritorious to warrant comment the first time, and it is no more persuasive this time.
Finally, plaintiffs argue that defendants rely on facts that are not supported by their citations because they constitute material misstatements of the underlying documents. (See Mot. to Strike at 8-10.) Even assuming arguendo that plaintiffs were correct, these are the very arguments that belong in the summary judgment pleadings. Indeed, plaintiffs make the same argument in their reply brief and need not repeat it here. (See Pls.’ Reply to Opp’n to Mot. for Partial Summ. J. & Opp’n to Defs.’ Cross Mot. at 17-19, Dec. 21, 2018 (ECF No. 227).) In addition, plaintiffs contend that “most egregious” among defendants’ purported misstatements of
6

the record is defendants’ argument that the MSSD is the “conclusion” of the “enhanced DoD security check[]” process, rather than a separate adjudicatory step as plaintiffs argue. (Mot. to Strike at 9 (citing the July 7 Guidance).) This is an issue of what is a fair inference based on the record, and as is clear from the pleadings, the parties’ characterization of the record is often diametrically opposed. Thus, contrary to plaintiffs’ argument (see Mot. to Strike at 10), there are often disputes about “facts” in the administrative record or facts are cited as support for a host of conflicting arguments. Apropos, the Court must note that the hypothetical attributed to the Court during a conference call was in no way meant (as plaintiffs suggest (see Mot. to Strike at 9)), to be a finding of a “gaping hole” in the administrative record or an endorsement of plaintiffs’ position that the MSSD was not known to USCIS until after July 7, 2017. Rather, this is a central question on summary judgment, not a matter of misstatement of the record.
In deciding the parties’ summary judgment motions, the Court will disregard any arguments it determines to be unsupported by the USCIS administrative record. To do so, the Court need not strike unspecified portions of defendants’ pleading that plaintiffs argue are contrary to their interpretation of the record.
For the foregoing reasons, it is hereby ORDERED that Plaintiffs’ Motion to Strike, ECF No. 226, is DENIED. SO ORDERED.

Date: March 4, 2019

ELLEN SEGAL HUVELLE United States District Judge

7

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KUSUMA NIO, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 17-0998 (ESH)

MEMORANDUM OPINION Plaintiffs are a class of foreign nationals serving in the United States Army’s Selected Reserve of the Ready Reserve who enlisted through the Military Accessions Vital to the National Interest (“MAVNI”) program. The MAVNI program provides an expedited path to citizenship to foreign nationals who are legally present in the United States, possess critical foreignlanguage or medical skills, and serve honorably during designated periods of hostilities. The question before the Court is whether the U.S. Department of Homeland Security (“DHS”) and its sub-agency U.S. Citizenship and Immigration Services (“USCIS”) acted lawfully when they instituted a policy on July 7, 2017, declining to naturalize MAVNI applicants until the applicant has been determined suitable for service by the U.S. Department of Defense (“DOD”) and the U.S. Army. Because USCIS’s purported reasons for waiting for these military suitability adjudications do not comport with the evidence before the Court, it concludes that the challenged portion of USCIS’s policy is arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2) (“APA”). The Court will therefore vacate that portion of the policy and grant partial summary judgment to plaintiffs.

BACKGROUND I. FACTUAL BACKGROUND
A. Origins of the MAVNI Program 1. DOD Eligibility and Enlistment Requirements
Much of the factual and procedural background relevant to the parties’ cross-motions for summary judgment has been set forth in the Court’s other opinions in this case and in a related case, Kirwa v. DOD, Civ. No. 17-1793.1 However, certain information is necessary to understand the question before the Court.
Generally, enlistees in the Armed Forces must be United States citizens or legal permanent residents. See 10 U.S.C. § 504(b)(1). However, through the MAVNI program, which was first authorized in 2008 and began operating in 2009, non-citizens who are not permanent residents but are lawfully present in the United States may enlist if they have critical foreign language skills or specialized medical training. See id. § 504(b)(2); see also Nio PI Op., 270 F. Supp. 3d at 53. By statute, non-citizens who serve honorably during designated periods of hostilities are afforded an expedited path to citizenship:
Any person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States [during a designated period of hostilities], and who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section[.]
1 See Nio v. DHS, 270 F. Supp. 3d 49 (D.D.C. 2017) (denying preliminary injunction) (“Nio PI Op.”); Nio v. DHS, 323 F.R.D. 28 (D.D.C. 2017) (granting motion for class certification) (“Nio Class Cert. Op.”); Kirwa v. DOD, 285 F. Supp. 3d 257 (D.D.C. 2018) (denying in part defendants’ motion to dismiss or in the alternative for summary judgment); Kirwa v. DOD, 285 F. Supp. 3d 21 (D.D.C. 2017) (granting preliminary injunction).
2

8 U.S.C. § 1440(a).2 Since September 11, 2001, a designated period of hostilities has existed.
See Exec. Order No. 13269, Expedited Naturalization of Aliens and Noncitizen Nationals
Serving in an Active-Duty Status During the War on Terrorism, 67 Fed. Reg. 45,287 (July 3,
2002). Over the course of the MAVNI program, more than 10,000 recruits have joined the
Armed Forces and have become naturalized as United States citizens. See Nio PI Op., 270 F.
Supp. 3d at 55.
All soldiers, including MAVNIs, must meet general enlistment standards in order to
serve. DOD and the individual services of the U.S. Armed Forces, including the Army, impose
requirements ranging from basic eligibility criteria such as age and physical fitness to more
subjective assessments relating to personal character and conduct. See generally Dept. of
Defense Instruction (“DODI”) 1304.26, Qualification Standards for Enlistment, Appointment,
and Induction (Pls.’ Appx. 8 et seq.) (setting forth eligibility criteria for those serving in the military).3
Since its inception, the MAVNI program has raised national-security concerns within
DOD, and as a result, DOD has sought to strengthen the security screening requirements for
2 Section 1440 eases the path to citizenship, as compared with the path for a typical naturalization applicant, by allowing service members to be naturalized “regardless of age,” subjecting them to no “period of residence” or physical presence requirement prior to applying for naturalization, and waiving any filing or naturalization fee. 8 U.S.C. § 1440(b)(1), (2), (4). 3 The operative administrative record (“USCIS AR”) was compiled by USCIS and consists of the record before the agency at the time of the July 7 Guidance. (See Index of Administrative Record, Nov. 9, 2018 (ECF No. 216-1).) Plaintiffs also compiled appendices that may be cited for necessary background or factual rebuttal. (See Index of Plaintiffs’ Appendix, Nov. 9, 2018 (ECF No. 216-2) (“Pls.’ Appx.”).) Additionally, relevant to a DOD policy at issue in the related Kirwa litigation, DOD compiled a separate administrative record which contains useful background information. (See Certification of the Index of the Administrative Record, Nov. 17, 2017 (ECF No. 81) (“DOD AR”).) The administrative record and extra-record evidence relevant to this case are discussed in more detail in Section III.B.
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MAVNI enlistees. See NIO PI Op., 270 F. Supp. 3d at 53-54. (See also Decl. of Stephanie P. Miller ¶¶ 12-17, July 7, 2017 (ECF No. 19-7) (“7/7/17 Miller Decl.”).) In February 2010, James Clapper, then Under Secretary of Defense for Intelligence, issued a memo expressing concern that MAVNI enlistees serving on active duty had not undergone sufficient “counterintelligencefocused screening” and recommending “immediate steps” to correct the oversight. (DOD Memorandum for Under Secretary of Defense for Personnel and Readiness: Military Accessions Vital to the National Interest Personnel (MAVNI), Feb. 17, 2010 (DOD AR 151).) Later that year, DOD imposed enhanced security screening for all current and future MAVNI soldiers, including a “Single Scope Background Investigation” (“SSBI” or “Tier 5” investigation, hereinafter referred to as “Tier 5”), which is a detailed background check conducted by the U.S. Office of Personnel Management (“OPM”) and is typically used to determine whether an individual may receive access to classified information. See Nio PI Op., 270 F. Supp. 3d at 54 n.4 (citing Second Decl. of Stephanie P. Miller in Response to July 19, 2017 Order of the Court at 2-4, July 28, 2017 (ECF No. 25-2) (“7/28/17 Miller Decl.”)). The new DOD policy also required the Service (e.g., the Army) to institute a “comprehensive counterintelligence-focused security review [“CI Review”] and monitoring program for MAVNI recruits.” (DOD Memorandum for Secretaries of the Military Depts.: Two-Year Extension of Military Accessions Vital to National Interest (MAVNI) Pilot Program at 1-2, Aug. 17, 2010 (Pls.’ Appx. 1-2).)
From August 2010 until May 16, 2012, recruitment of new MAVNIs was delayed while these strengthened security measures were implemented. (See Decl. of Stephanie Miller ¶ 6, Nov. 17, 2017 (ECF No. 39-5) (“11/17/17 Miller Decl.”); DOD Memorandum: Reinstatement of Military Accessions Vital to National Interest Pilot Program at 1, May 16, 2012 (DOD AR 136).)
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With subsequent reauthorizations, DOD continued to refine security screening requirements for MAVNIs. In late 2014, DOD specified that all MAVNI applicants would be subject to a “suitability determination” based on a National Intelligence Agency Check (“NIAC”) name search,4 Tier 5, and CI Review, including an issue-oriented CI interview and/or polygraph “as needed to resolve any foreign influence or foreign preference concerns.” (DOD Memorandum: Two-Year Extension of Military Accessions Vital to the National Interest (MAVNI) Pilot Program Implementation Policy at 6, Dec. 19, 2014 (USCIS AR 215).) The 2014 DOD memo provided that “[f]ailure to obtain a favorable NIAC, [Tier 5,] or CI-focused security review will render the applicant ineligible for enlistment or continued military service” and such a result would lead to immediate separation from the military. (Id.)
In 2015, DOD promulgated regulations governing “enlistment, appointment, and induction criteria” for the Armed Forces, including a new provision that “an applicant will be considered ineligible” to enlist if he or she “[r]eceives an unfavorable final determination by the DoD Consolidated Adjudication Facility [‘CAF’] on a completed National Agency Check with Law and Credit (NACLC) or higher-level investigation [i.e., Tier 5], which is adjudicated to the National Security Standards. . . .” 32 C.F.R. § 66.6(b)(8)(iv); Qualification Standards for Enlistment, Appointment, and Induction, 80 Fed. Reg. 16,269-01, 16,273 (Mar. 27, 2015); see also DODI 1304.26, Encl. 3, § 2(h)(6) (Pls.’ Appx. 18) (same requirement).5 The regulation thus
4 The NIAC includes “at a minimum a name check” of several federal databases including CIA, FBI, and the counterintelligence-focused PORTICO system. (DOD Memorandum: Military Accessions Vital to the National Interest Pilot Program Extension, Sept. 30, 2016 (USCIS AR 238).) 5 Although the regulation suggests that some MAVNIs could be subject to a NACLC (now known as a “Tier 3” investigation) rather than the more demanding Tier 5 investigation, DOD’s position is that all MAVNIs are subject to the higher-level Tier 5 investigation. See Kirwa, 285 F. Supp. 3d at 30.
5

imposed an additional step—a “final determination” as to the soldier’s suitability for military service—in addition to the DOD investigations required under the 2014 DOD memo. 32 C.F.R. § 66.6(b)(8)(iv). (See also Tr. of Proceedings at 18:7-20:17, Mar. 20, 2019 (ECF No. 245) (“3/20/19 Tr.”) (Christopher Arendt of DOD describing the process formalized by the regulation).) On September 30, 2016, DOD again addressed investigation and vetting requirements for MAVNIs, as discussed in more detail infra at Section I.B.
2. USCIS Processing of Naturalization Applications Separate from the DOD requirements, MAVNIs who wish to naturalize must apply to USCIS for citizenship, and USCIS must “conduct examinations” of all applicants. 8 U.S.C. § 1446(b); see also 8 C.F.R. § 332.1(a) (designating USCIS officers “to conduct the examination for naturalization required under” the Immigration and Nationality Act or “INA”). Regulations specify that USCIS must review FBI criminal background checks, see 8 C.F.R. § 335.2(b), and for naturalization applicants with military service, USCIS also requests from DOD name check queries of DOD’s Defense Clearance Investigative Index (“DCII”) to see if the applicant has a criminal record on his or her military record. See 12 USCIS Policy Manual, pt. I, ch. 6, § A, https://www.uscis.gov/policy-manual (“USCIS Policy Manual”). Following these checks, an applicant is scheduled for a naturalization interview by a USCIS officer, see 8 C.F.R. § 335.2, and USCIS must adjudicate the application within 120 days of the interview. 8 U.S.C. § 1447(b). An applicant will not be approved for naturalization unless USCIS determines that she or he 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.” 8 U.S.C. § 1427(a). The applicant “bears the burden of demonstrating that, during the statutorily
6

prescribed period, he or she has been and continues to be a person of good moral character.” 8 C.F.R. § 316.10(a)(1). For MAVNI applicants, the relevant statutory period is one year. 8 C.F.R. § 329.2(d).6 USCIS makes this good moral character determination “on a case-by-case basis.” 8 C.F.R. § 316.10(a)(2). Certain criminal and immoral acts are explicitly disqualifying, but otherwise USCIS has discretion to evaluate the applicant’s character in the context of “the standards of the average citizen in the community of residence.” Id.
In 2003, § 1440 was amended to specify that a soldier’s service in the Selected Reserve of the Ready Reserve (“SRRR” or the “Reserves”) is qualifying; the soldier need not have served in active duty. See National Defense Authorization Act for Fiscal Year 2004, § 1702, P.L. No. 108-136, 117 Stat. 1392 (Nov. 24, 2003). In fact, at all times relevant to this litigation, the USCIS Policy Manual provided that “[o]ne day of qualifying service is sufficient in establishing eligibility” for the statutory honorable-service requirement. Kirwa, 285 F. Supp. 3d at 28 (quoting 12 USCIS Policy Manual, pt. I, ch. 3, § A). Further, under § 1440, to naturalize a MAVNI must have “served honorably” during a designated period of hostilities; if the soldier is no longer serving, she or he must have been “separated under honorable conditions.” 8 U.S.C. § 1440(a). When a MAVNI soldier submits to USCIS his or her naturalization application, known as Form N-400, he or she must also submit a certification of honorable service from DOD, known as Form N-426. Form N-426 “is the means by which DoD certifies whether an applicant for citizenship is serving honorably, and if no longer serving, whether they were
6 Earlier conduct can also be used to demonstrate an applicant’s lack of good moral character, if the applicant cannot show that he or she has changed. See 8 C.F.R. § 316.10(a)(2) (“[USCIS] may take into consideration . . . conduct and acts at any time prior to that period, if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period if the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.”).
7

separated under honorable conditions.” (7/7/17 Miller Decl. ¶ 6.) See also 12 USCIS Policy Manual, pt. I, ch. 5, § A (“The Request for Certification of Military or Naval Service confirms whether the applicant served honorably in an active duty status or in the Selected Reserve of the Ready Reserve.”). USCIS’s long-standing interpretation of the honorable-service requirement under § 1440 is that any applicant who is no longer serving must have been separated under “honorable” or “general under honorable” conditions, and that a neutral “uncharacterized” separation is not sufficient. See 12 USCIS Policy Manual, pt. I, ch. 3, § B. (See also 3/20/19 Tr. at 14:1-23.)
Prior to July 2017, information USCIS received from DOD about an applicant was routinely limited to the DCII DOD database check. (See 3/20/19 Tr. at 5:4-8 (to the Court’s question, what information did USCIS receive from DOD other than the DCII index check, DOD’s counsel responded, “none. There was no formal routine process”).) In the past, MAVNI naturalization applicants generally were processed quickly. Indeed, the MAVNI enlistment contract from 2016 indicated that an enlistee could expect to get to Basic Training within 180 days of enlistment. (See Certificate and Acknowledgement, U.S. Army Reserve, Service Requirements and Methods of Fulfillment at 3, § IV(8)(c), Armed Forces of the United States (ECF No. 23-2) (enlistment contract of one of the named plaintiffs).) Under an initiative to expedite processing of applications of enlistees at Basic Training, USCIS also adjudicated the applications of and naturalized MAVNIs by the end of the 10-week Basic Training course. See Nio PI Op., 270 F. Supp. 3d at 55. Overall, as of May 2017, the average USCIS processing time for military naturalization applications (including those filed by MAVNIs) was approximately four months from start to finish. See id. at 56, see also Kirwa, 285 F. Supp. 3d at 31 (describing the MAVNI path to citizenship before September 2016). (See also Decl. of Daniel Renaud ¶ 5,
8

July 28, 2017 (USCIS AR 258-59) (“7/28/17 Renaud Decl.”) (summarizing military application processing times).)
B. DOD’s Sept. 30, 2016 Memorandum When it reauthorized the program on September 30, 2016, DOD again imposed enhanced “eligibility requirements” for MAVNIs, including extensive background investigations. (See DOD Memorandum: Military Accessions Vital to the National Interest Pilot Program Extension, Sept. 30, 2016 (USCIS AR 233-41) (“Sept. 30 Memo”).)7 The Sept. 30 Memo made shipment to Basic Training contingent on (1) completion of these enhanced background investigations and (2) a determination by DOD and the Army that the soldier is suitable for military service. Pursuant to this new policy, a MAVNI’s security screening must include three specific investigative steps: (1) the NIAC database check, (2) the Tier 5 background investigation by OPM, and (3) the CI Review, including interviews and polygraphs as necessary. (See id. at USCIS AR 238.) Each of these investigations (collectively, the “DOD investigatory phase”) generates a report summarizing its findings. (See, e.g., Pls.’ Mem. in Supp. of Pls.’ Mot. for Partial Summ. J. & in Opp’n to Defs.’ Cross Mot. for Summ. J. at 18, Dec. 21, 2018 (ECF No. 227) (“Pls.’ Opp’n & Reply”) (reproducing an excerpt of a DOD document referring to the CI Review report).) The Sept. 30 Memo provides that, after the DOD investigatory phase is complete, and before shipping to Basic Training, the soldier must still await a determination by his or her service (e.g., the Army) that he or she is suitable for military service. This “military suitability determination” has two steps, which together are referred to by plaintiffs as the “adjudicatory
7 The MAVNI program stopped accepting new recruits in June 2016. (See Tr. of TRO/Prelim. Injunction Hearing at 43:7-9, Oct. 27, 2017 (ECF No. 75).)
9

phase” of DOD’s vetting process. First, based on the DOD investigation results, DOD’s Central Adjudication Facility (“DOD CAF”) makes a recommendation (in later documents referred to as a “military service suitability recommendation” or “MSSR”) to the Army. (See Sept. 30 Memo at USCIS AR 238.) Neither DOD CAF nor the Army conducts any additional investigation of the applicant, but rather they rely on the information gathered during the DOD investigatory phase and consider whether any derogatory findings can be “mitigated” by information from the investigations or provided by the applicant. To make this MSSR recommendation, DOD CAF assesses the applicant using as its criteria 13 National Security Adjudicative Guidelines. (See id.; see also DOD Memorandum: Implementation of Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (Dec. 29, 2005), Aug. 30, 2016 (Pls.’ Appx. 93 et seq.) (the “Adjudicative Guidelines”).) The Adjudicative Guidelines provide detailed criteria for evaluating an individual’s background, including how certain information may be mitigable, and are generally used to determine whether an individual may access classified information or hold a national security position. The Adjudicative Guidelines include criteria such as allegiance to the United States, Foreign Influence, Foreign Preference, Personal Conduct, and Criminal Conduct, as well as guidance for determining whether certain conduct or information about an applicant should be disqualifying or can be mitigated. (See generally Adjudicative Guidelines at Pls.’ Appx. 98-121 (describing the criteria for each of the Adjudicative Guidelines).)
Second, once DOD CAF has rendered the MSSR, it is provided to the Army for its review. The Army reviews the recommendation and, if it is not favorable, it also reviews the underlying investigatory results to determine if the “derogatory information” on which the unfavorable MSSR was based can be mitigated. (See Sept. 30 Memo at USCIS AR 238 (“If derogatory information was revealed, the DoD CAF will provide information to the accessing
10

service via the Case Adjudication Tracking System.”).) The service then renders a final “military suitability determination” (commonly referred to as a “military service suitability determination” or “MSSD”) based on DOD CAF’s recommendation and on the service’s own needs: “The accessing service will use this information to then render the final military suitability determination in accordance with DoDI 1304.26 and any service specific policies.” (Id.; see also id. at USCIS AR 234, 239, 241 (additional references to the “suitability determination” for MAVNIs).) It is the MSSD that determines whether a MAVNI may attend Basic Training and then proceed to active duty. If a MAVNI is found suitable for service, he or she ships to Basic Training; if found unsuitable he or she is promptly separated, or discharged, from the military. (See id. at USCIS AR 241 (flow chart depicting separation immediately after “NON FAVORABLE Military Suitability Determination”).)
As a result of the Sept. 30 Memo, MAVNIs have had to wait significantly longer between their dates of enlistment and dates for shipment to Basic Training. In response to this situation, in October and November 2016 the Army began placing MAVNIs in the Army’s Delayed Training Program (“DTP”), where they would remain enlisted and continue to drill as reservists while awaiting shipment to Basic Training. (See Decl. of Daniel Renaud ¶ 21, July 7, 2017 (USCIS AR 249) (“7/7/17 Renaud Decl.”); 7/28/17 Miller Decl. at 6.) Soldiers drilling in DTP are categorized by the Army as “entry level” because they are reservists who have not yet attended Basic Training. See Enlisted Administrative Separations, Army National Guard and Reserve, Army Reg. 135–178, Glossary § II. If a soldier is discharged from entry-level status, the discharge is not characterized as honorable or other than honorable, but rather by the neutral “uncharacterized” classification. See id. § 2–11(a).
Generally, a soldier could remain in DTP for up to two years, after which he or she must
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attend Basic Training or face discharge. (See 7/28/17 Miller Decl. at 10 (quoting National Defense Authorization Act for Fiscal Year 1993, § 1115(c), P.L. No. 102-484 (Oct. 23, 1992)).) Because it was taking so long to become eligible for Basic Training under the new requirements, some MAVNIs exceeded this two-year limit on DTP enlistment and faced discharge. (See id.) To alleviate this problem, DOD “determined that in this instance the [2-year] limitation may be waived if movement to training remains impracticable,” and extended the 2-year DTP timeout deadline by an additional year to permit MAVNIs to remain enlisted while they waited for the results of the DOD investigatory phase and their MSSDs. (See DOD Memorandum: Waiver of Minimum Training Requirements for Certain Military Accessions Vital to the National Interest (MAVNI), Jul. 27, 2017 (ECF No. 26 at 4) (enlarging the DTP timeout deadline to 36 months).)
Another byproduct of the delay was that by early 2017, approximately 500 MAVNIs drilling in DTP sought and received signed N-426s and submitted naturalization applications before having started Basic Training. See Kirwa, 285 F. Supp. 3d at 31 (citing 10/18/2017 Tr. at 21-22). These individuals had not completed their DOD background investigations. (See 7/7/17 Renaud Decl. ¶ 21 (USCIS AR 249).) According to Daniel Renaud, USCIS Associate Director, Field Operations Directorate, “[p]rior to the September 30, 2016 memo, USCIS had received few, if any, applications from MAVNI recruits who were drilling in the DTP. Instead, the recruits usually attended Basic Training soon after enlisting in the Army and waited until they attended Basic Training to apply for naturalization.” (Id.)
Against this backdrop, on May 19, 2017, DOD issued an “Action Memo” addressed to the Secretary of Defense, identifying four primary “MAVNI Risk Groups,” along with mitigation plans for addressing the risks identified with each group. (DOD Action Memo: Military Accessions Vital to the National Interest (MAVNI) Pilot Program at 2, May19, 2017 (Pls.’ Appx.
12

7) (“DOD May 2017 Action Memo”).) Of relevance to the plaintiffs in this case, DOD identified as “Group 3” the approximately 2,400 MAVNIs drilling in DTP whose Tier 5 investigations had not been completed, including the approximately 500 MAVNIs who had received their Form N426s and applied for naturalization. (Id.) The Action Memo recommended that all DTP MAVNIs be discharged using Secretarial plenary authority, “[e]xcept for individual cases deemed vital to the national interest.” (Id.)8
C. USCIS’s July 7, 2017 Guidance As far back as 2016 and into 2017, DOD was communicating to USCIS its growing concerns about the MAVNI program, through both discussions and written materials provided on an ad-hoc basis. (See Decl. of Daniel M. Renaud ¶¶ 3-4, Mar. 5, 2018 (USCIS AR 2-3) (“3/5/18 Renaud Decl.”).) According to Stephanie Miller, Director of DOD’s Accession Policy Directorate, DOD senior leaders informed USCIS officials in April 2017 that DOD “was concerned about the naturalization of individuals whose [Tier 5] background investigation and DoD counterintelligence security review has not yet been completed.” (Miller 7/7/17 Decl. ¶ 18.) Based on these concerns, according to Ms. Miller, 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 [these completed reviews]” and “mutually agreed that USCIS would slow down the Form N-400 adjudications of the MAVNI pilot program applicants.” (Id.) On April 13, 2017, USCIS “issued a written hold” on these soldiers’ naturalization applications. (7/7/2017 Renaud Decl. ¶ 25 (USCIS AR 250-51).) In early May 2017, USCIS learned from DOD about two cases where a MAVNI soldier
8 DOD would later inform the Court that DOD’s May 19, 2017 Action Memo was an “internal, pre-decisional, and deliberative document,” and its recommendations as to discharging Group 3 MAVNIs were not adopted. (7/28/17 Miller Decl. at 8-9.)
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had “naturalized before his or her DoD background checks revealed derogatory information that USCIS would have considered, had it known about the information, in determining whether the individual was eligible to naturalize.” (3/5/18 Renaud Decl. ¶ 3 (USCIS AR 2) (referencing adhoc conversations and emails between DOD and USCIS personnel included at USCIS AR 1113).) USCIS learned from DOD of these two cases during a field visit in May 2017 to Fort Jackson, a military base used by the Army for Basic Training. Follow-up emails between USCIS and DOD personnel who participated in this visit indicate that approximately 21 MAVNI soldiers were already in Basic Training although their Tier 5 investigations were still pending. (See USCIS AR 11-13.) The emails also indicate that two MAVNIS who had already naturalized were “chaptered out unfavorably”—i.e., discharged after being determined ineligible to enlist, one for “bad conduct” and one for “failure to adapt.” (USCIS AR 12-13.) On the same day as the DOD May 2017 Action Memo, USCIS sent another email to the field to clarify that its April 13 written hold on MAVNI N-400 applications affected only DTP MAVNIs who had not yet shipped to Basic Training. (See 7/7/17 Renaud Decl. ¶ 25 (USCIS AR 250-51); see also USCIS Email, MAVNI Hold, May 19, 2017 (ECF No. 23-1 at 10-11).)
Meanwhile, DOD’s Office of the Inspector General (“OIG”) was investigating the MAVNI program, including national security concerns related to soldiers’ potential foreign ties or loyalty to the United States. In June 2017, OIG issued a classified report (the “OIG classified report”) detailing its findings and highlighting these national security concerns. (See 3/5/18 Renaud Decl. ¶ 4 (USCIS AR 2-3); Memo, DHS USCIS MAVNI Program, July 3, 2017 (USCIS AR 7) (“July 3 DHS Memo”).) Then, on July 3, 2017, DHS issued a one-page memo for the Secretary of Homeland Security, titled “DHS USCIS MAVNI Program,” referring to the OIG classified report and other concerns about the processing of MAVNI naturalization applications.
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(See July 3 DHS Memo (USCIS AR 7).) The July 3 DHS Memo stressed “security concerns
regarding MAVNI recruits, informed by a classified DOD Inspector General report,” and stated
that “USCIS views additional background checks at the naturalization stage as necessary and
appropriate in accordance with its general authority to conduct background checks on
naturalization applicants.” (Id.)
On July 7, 2017, Mr. Renaud sent an email containing the USCIS “Guidance” that is the
gravamen of this litigation. The email is just over one page and instructs that a MAVNI
naturalization applicant may not proceed to interview until “all enhanced DoD security checks
are completed.” (See Email from Daniel M. Renaud, Updated MAVNI N-400 Guidance, July 7, 2017 (USCIS AR 4-5) (“July 7 Guidance”).)9 The July 7 Guidance makes clear that the
enhanced security checks referred to are those required under the Sept. 30 Memo:
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 [codified at 8 U.S.C. § 1440], regardless of their active duty or reserve service, until all enhanced DoD security checks are completed.
(July 7 Guidance at 2 (USCIS AR 5).)
The July 7 Guidance constituted a major change in USCIS policy. For the prior
seventeen years, USCIS had basically relied on an FBI background check and a DCII index
check to vet MAVNI applicants, but had not required extensive and lengthy DOD background
investigations or an MSSD adjudication prior to considering a MAVNI’s naturalization
9 Mr. Renaud subsequently described the July 7 Guidance as “final agency guidance.” Nio PI Op., 270 F. Supp. 3d at 56 (quoting 7/17/17 Renaud Decl. ¶¶ 3-4). Defendants acknowledge that it constitutes a final agency action. (See Defs.’ Opp’n & Cross Mot. at 19 n.11.)
15

application. See Nio PI Op., 270 F. Supp. 3d at 65. The July 7 Guidance briefly explains its motivations. First, it summarizes DOD and
USCIS concerns over the prior year and a half, especially “circumstances and instances” of MAVNI enlistees becoming naturalized “before a DoD background check revealed derogatory information suggesting that [the applicant] lacked good moral character or attachment to the U.S. Constitution.” (July 7 Guidance (USCIS AR 5) (noting that investigations had subsequently identified such conduct as “immigration fraud, criminal acts, aggravated felonies, active membership and participation in the Communist Party, and national security concerns”); see also 7/7/17 Renaud Decl. ¶ 17 (USCIS AR 248) (noting the same concerns); 3/5/18 Renaud Decl. ¶¶ 3-4 (USCIS AR 2) (noting the same concerns and citing the OIG classified report and “other classified documents”).) The July 7 Guidance explained: “USCIS has determined that the completion of DOD background checks is relevant to a MAVNI recruit’s eligibility for naturalization. . . . 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.” (July 7 Guidance at 1-2 (USCIS AR 4-5).) II. MAVNI-RELATED LITIGATION
A. Nio v. DHS This action was filed on May 24, 2017, before the July 7 Guidance was issued. (See Compl., May 24, 2017 (ECF No. 1).) Plaintiffs initially alleged that USCIS and DOD were unlawfully delaying the processing of MAVNI naturalization applications due to improper interference in the process by DOD. Plaintiffs sought a preliminary injunction, asking the Court to enjoin DOD from interfering and USCIS from delaying the processing of MAVNI naturalization applications. (Pls.’ Mot. for Prelim. Injunction at 1, June 28, 2017 (ECF No. 17).)
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Shortly thereafter, USCIS issued the July 7 Guidance and plaintiffs sought to challenge it
as part of this litigation. The Court ordered plaintiffs to amend their complaint and revise their
request for preliminary relief. (See Order, July 19, 2017 (ECF No. 24).) Plaintiffs then amended
their complaint to challenge the July 7 Guidance as unlawful. (1st Am. Compl., Aug. 4, 2017
(ECF No. 27).) They complained that DOD had unlawfully interfered in the naturalization
process and USCIS had allowed DOD to do so by agreeing to wait until the “enhanced” checks
were “complete” before processing naturalization applications. Plaintiffs also moved for class
certification. (Pls.’ Mot. to Certify Class, Aug. 11, 2017 (ECF No. 30).) The Court certified the
class and appointed class counsel. The class is defined as
all persons who have (i) enlisted in the Selected Reserve through the MAVNI program prior to October 13, 2017; (ii) served honorably with a Selected Reserve unit through participation in at least one qualifying drill period or served in an active-duty status; (iii) submitted N-400 Applications for Naturalization; (iv) been issued Form N-426s certifying honorable service as a member of the Selected Reserve or in active-duty status; and (v) have had the processing or final adjudication of their naturalization applications (including naturalization itself) withheld or delayed because of (a) a final USCIS processing hold for MAVNIs, (b) a DOD N-426 policy review, (c) a DOD N-426 recall/decertification policy, (d) enhanced DOD security screenings, (e) a DOD CAF adjudication, (f) a national security determination, and/or (g) military service suitability vetting determination[.]
(Order at 1-2, Oct. 27, 2017 (ECF No. 72).)
The Court denied plaintiffs’ motion for a preliminary injunction, finding that although
plaintiffs had shown irreparable harm, they had not shown that they were likely to succeed on the
merits of their claims. See Nio PI Op., 270 F. Supp. 3d at 62-65. Having reviewed in camera
the OIG classified report and other classified documents from the Defense Intelligence Agency,
the Court found that plaintiffs were unlikely to succeed on their claim that the July 7 Guidance
was arbitrary and capricious in light of the national security concerns that had informed it. At
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the time, plaintiffs did not clearly distinguish between the two separate components of DOD’s review—the DOD investigatory phase from which DOD might learn “derogatory information” about an applicant, and the “military suitability determinations” (DOD’s MSSR and the Army’s MSSD) based on that information. The Court found that, while the adoption of the July 7 Guidance constituted a “dramatic change in DHS/USCIS policy,” the new policy was a “respon[se] to present national security concerns” and the need to gather information relevant to those concerns was likely within the discretion of USCIS. Nio PI Op., 270 F. Supp. 3d at 65. Plaintiffs subsequently filed a second amended complaint, which is now the operative complaint. (2d Am. Compl., Oct. 20, 2017 (ECF No. 61).)
The plaintiff class sues DHS, USCIS, DOD, and the Secretary of Homeland Security, Director of USCIS, and Secretary of Defense in their official capacities. (See id. at 1.) In Count I of the complaint plaintiffs seek declaratory relief that defendants’ actions are unlawful. (See id. at 47-50.) In Count II plaintiffs seek injunctive relief including, inter alia, a permanent injunction setting aside the July 7 Guidance, requiring priority processing of class members’ naturalization applications, and preventing DOD from interfering in the naturalization process. (Id. at 50-53.) Count III alleges numerous APA violations including, inter alia, violation of 5 U.S.C. § 706(1) because USCIS has unreasonably delayed the processing of naturalization applications and violations of § 706(2) because the July 7 Guidance is arbitrary and capricious and contrary to law. (Id. at 54-62.) Count IV seeks mandamus relief to compel USCIS to process plaintiffs’ naturalization applications. (Id. at 62-63.) Count V alleges violation of the U.S. Constitution’s “Uniform Rule of Naturalization” clause. (Id. at 63-64.)
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B. Kirwa v. DOD In the related case Kirwa v. DOD, the plaintiff class consists of MAVNI reservists who have not received a certified Form N-426 from the Army and therefore cannot yet apply for naturalization. They challenged a DOD policy issued on October 13, 2017, which would delay certification of a Form N-426 until a MAVNI’s “applicable screening and suitability requirements” had been completed. Kirwa, 285 F. Supp. 3d 257, 264 (D.D.C. 2018) (quoting DOD Guidance of Oct. 13, 2017). Previously, DOD had certified reservists’ honorable service after one qualifying day of drilling, including for those whose background investigations were not yet complete and/or who had not yet shipped to Basic Training. See id. at 263. The Court certified the class and preliminarily enjoined the policy. See Kirwa, 285 F. Supp. 3d 21 (D.D.C. 2017). Shortly thereafter, the Court denied DOD’s motion to dismiss. See Kirwa, 285 F. Supp. 3d 257 (D.D.C. 2018). As a result of the Court’s order requiring that DOD certify honorable service for MAVNIs once they had completed at least one day of drilling with the Reserves, more than 1,600 MAVNI N-426 requests have been granted as of May 22, 2019. (See Defs.’ Status Report at 1, May 22, 2019 (Kirwa, Civ. No. 17-1793, ECF No. 155).) Once a Kirwa class member receives his or her N-426 and applies to USCIS for naturalization, he or she becomes a member of the Nio class. C. Calixto v. U.S. Army In another case pending before the Court, Calixto v. U.S. Dept. of Army, Civ. No. 181551, a putative class of MAVNI soldiers, which partially overlaps with those in the Nio class, allege, inter alia, that in discharging them the Army violated Army and DOD regulations, as well as the soldiers’ procedural due process rights. (See 2d Am. Compl., Jan. 2, 2019 (Calixto, Civ. No. 18-1551, ECF No. 61).) Plaintiffs’ motion for class certification in Calixto is pending.
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(Pls.’ Mot. to Certify Class, Jan. 2, 2019 (Calixto, Civ. No. 18-1551, ECF No. 62).) The proposed class is divided into two sub-classes: those challenging their discharges based on an unsuitable MSSD, and those challenging discharges based on other reasons.
Since the filing of the Calixto litigation, DOD has instituted a process for the review of unsuitable MSSDs and discharges based on unsuitable MSSDs. Under the new process, soldiers who receive a “non-recommend” MSSR are to receive written notice thereof and then have 30 days to submit “matters which may refute, correct, explain, extenuate, mitigate, or update the unfavorable information.” (DOD Memorandum: Resume Separation Actions Pertaining to Members of the Delayed Entry Program (DEP) and Delayed Training Program (DTP) Recruited Through the Military Accessions Vital to National Interest (MAVNI) Pilot Program at 2, Oct. 26, 2018 (Calixto, Civ. No. 18-cv-1551, ECF No. 50-1) (“Oct. 26 DOD Memo”).) The Service must take this mitigating information into account in rendering the final MSSD within 90 days of the original MSSR. (See id.) This new process will lengthen the time between DOD’s recommendation (the MSSR) and the Army’s final determination (the MSSD), and in turn, it will further delay USCIS’s consideration of a MAVNI’s naturalization application. This is particularly true since to date only a handful of notices have been sent to the over 500 Nio class members who have received a non-recommend MSSR. (See Ex. B, Suppl. to Defs.’ May 6, 2019 Report, May 9, 2019 (ECF No. 248-2).)10
10 Other courts have recently enjoined other aspects of the government’s treatment of MAVNIs and other foreign-born soldiers. After a bench trial in late 2018, a district court in Washington State held that naturalized citizens who had enlisted through the MAVNI program had been unconstitutionally discriminated against because they had been subjected to NIAC checks and continuous monitoring for national security concerns on the basis of national origin, even after becoming citizens. See Tiwari v. Mattis, 2019 WL 397160 (W.D. Wash. Jan. 31, 2019). A court in California granted class certification and preliminarily enjoined another DOD policy, which required that lawful permanent residents serving in the Armed Forces complete their background
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III. PROCEDURAL POSTURE On March 14, 2018, plaintiffs moved to file a third amended complaint based on what
they characterized as ongoing violations by defendants. (See Mem. of Points and Auth. in Supp. of Pls.’ Mot. for Leave to File 3d Am. Compl., Mar. 14, 2018 (ECF No. 115).) Plaintiffs sought, inter alia, to challenge defendants’ interpretation of the July 7 Guidance as requiring that USCIS wait not only for the completion of the DOD investigatory phase, but also for the final MSSD (hereinafter referred to as the “MSSD Requirement”).11 (Id. at 5.) The Court denied leave to amend the complaint but informed the parties that it would “consider plaintiffs’ allegations regarding USCIS’s waiting for the results of the MSSD to be part of the second amended complaint,” since their complaint challenged the entirety of the July 7 Guidance. (Order at 1, Apr. 12, 2018 (ECF No. 135).) The Court directed defendants to supplement the administrative record to address “the legality of USCIS waiting on MSSD/NSD determinations from DOD before naturalizing enlistees.” (Id.)
A. Nio Status Reports As required by the Court, defendants periodically provide status reports on the progress of Nio class members’ naturalization applications. As of defendants’ most recent report dated May 6, 2019, there were approximately 2,000 current and former class members, of whom more than 1,200 have naturalized and are no longer members of the class. (See Defs.’ Updated Report, May 6, 2019 (ECF No. 247) (“Defs.’ May 6 Report”).) Of the approximately 750 remaining
checks and suitability determinations before shipping to Basic Training. See Kuang v. DOD, 340 F. Supp. 3d 873 (N.D. Cal. 2018). 11 This Opinion uses the term “MSSD Requirement” to refer to USCIS’s waiting for the completion of the MSSD. This litigation does not challenge the fact that DOD subjects enlistees to either the various DOD investigatory steps or to the Army’s requirement of an MSSD in order to determine eligibility to serve.
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class members, some 160 have received a suitable MSSD. (See id.) Almost all of the 550 remaining class members are still waiting for their final MSSDs. Of these, more than 500 have already received a “non-recommend” MSSR from DOD CAF. (See id.) Approximately 40 still have pending MSSRs, approximately half of whom were previously discharged due to an unsuitable MSSD but have now been offered reinstatement pursuant to the Oct. 26 DOD Memo. (See id.) With few, if any, exceptions, the vast majority of these remaining class members have not gone to Basic Training and are still in “entry level” status while they drill with their reserve units and wait for their MSSDs. (See 3/20/19 Tr. at 109:12-16; id. at 51:10-19.)
B. The Administrative Record USCIS compiled the administrative record for the July 7 Guidance in early March 2018 and included a declaration by Mr. Renaud describing the contents of the record and summarizing USCIS’s reasons for the July 7 Guidance. (See Index of Administrative Record, Mar. 1, 2018 (ECF No. 111); 3/5/18 Renaud Decl. (USCIS AR 1-3).) The record also contains emails and extensive attachments documenting the specific cases of concern that DOD had raised to USCIS during the first half of 2017 (USCIS AR 8-209); the December 19, 2014 DOD memo reauthorizing the MAVNI program (USCIS AR 210-32); the July 3 DHS Memo (USCIS AR 7); and the July 7 Guidance (USCIS AR 4-6). The record was subsequently amended at plaintiffs’ request and by order of the Court to include the Sept. 30 Memo (USCIS AR 233-41) and Mr. Renaud’s declarations of July 7, 2017 and July 28, 2017, which were written at the time of or shortly after the July 7 Guidance. (See USCIS AR 242-86.) Earlier in this litigation, the Court reviewed the June 2017 OIG classified report and other classified documents. See Nio PI Op., 270 F. Supp. 3d at 64. Defendants did not submit any classified materials as part of the administrative record, for Mr. Renaud did not consult these
22

classified documents when issuing the July 7 Guidance. Rather, the record indicates that Mr. Renaud and others at USCIS relied on what DOD told them regarding their concerns about the MAVNI population. (See 3/5/18 Renaud Decl. ¶ 4 (USCIS AR 2-3); July 3 DHS Memo (USCIS AR 7) (referencing “security concerns regarding MAVNI recruits, informed by a classified DOD Inspector General report”).)
This litigation, as well as the Kirwa case, has generated an extensive record beyond the Nio administrative record. As explained above, the Court has ordered ongoing reporting on the status of the Nio class and their class representatives. Additional declarations and other documents have been filed either at the request of the Court or by the parties to support their pleadings at various stages of the litigation. Two declarations by Ms. Miller of DOD are particularly useful in providing background information critical to understanding the programs at issue, although they are not part of the administrative record. (See 7/7/17 Miller Decl.; 7/28/17 Miller Decl.) The Court has held that these declarations may be cited in rebuttal or for necessary background information, but not as justification for the July 7 Guidance. (See Order at 1, Nov. 15, 2018 (ECF No. 217).) Documents in Plaintiffs’ Appendix and the DOD Administrative Record also may be cited for these limited purposes. (See id.)
Of course, the Court is not limited to the administrative record in conducting its legal analysis. While the Court must assess the rationality of USCIS’s MSSD Requirement based on the administrative record, it must take into account relevant legal authority, including statutes, regulations, and agency authority such as DODIs, Army Regulations, and the USCIS Policy Manual.
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C. Pleadings Before the Court Before the Court are the parties’ cross-motions for summary judgment. Plaintiffs filed a motion for partial summary judgment on August 13, 2018. (See Pls.’ Mot. for Partial Summ. J., Aug. 13, 2018 (ECF No. 177) (“Pls.’ Mot. for Summ. J.”).)12 DOD has now completed the DOD investigatory phase for essentially all class members. (See id. at 16 (citing Arendt Decl. ¶ 5 (ECF No. 128-2); Defs.’ July 20, 2018 Status Report (ECF No. 170)).) Therefore, according to plaintiffs, although they originally attacked the entire July 7 Guidance, now any challenge to the portion regarding the DOD investigatory phase is moot. (See Pls.’ Mot. for Summ. J. at 6.) What remains of plaintiffs’ claim as to the July 7 Guidance is their challenge to the MSSD Requirement, which the Court previously indicated could be considered as part of the second amended complaint and, if appropriate, it could be addressed separately. (See Order at 2, Apr. 12, 2018.) Plaintiffs raise a host of arguments challenging the MSSD Requirement. First, they argue that it violates the APA, 5 U.S.C. § 706(2), in various ways. They argue that it is not in accordance with law because it oversteps USCIS’s statutory authority to conduct examinations of applicants, improperly outsourcing to DOD the investigation and assessment of these applicants. They also argue that the MSSD Requirement is arbitrary and capricious in violation of § 706(2)
12 The motion is for partial summary judgment because the Court deferred briefing on plaintiffs’ claim against DHS/USCIS of unreasonable delay under 5 U.S.C. § 706(1). (See Pls.’ Mot. for Summ. J. at 34 n.3; see also 2d Am. Compl. at 54-55 (naming DHS/USCIS, but not DOD, as defendants in this claim).) Any analysis of whether USCIS is unreasonably delaying the processing of MAVNI naturalization applications had to be deferred until the Court could decide the timing of when that obligation is triggered. (See Order at 1, June 20, 2018 (ECF No. 159) (setting briefing schedule and ordering the parties to exclude arguments about plaintiffs’ unreasonable delay claim); Tr. of Status Conference at 59:11-16, June 20, 2018 (ECF No. 161) (“6/20/18 Tr.”) (explaining that the Court’s analysis of plaintiffs’ arbitrary-and-capricious claim would need to occur before consideration of unreasonable delay).)
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because the administrative record does not support the decision to wait for DOD and the Army to make their suitability decisions about applicants, and because USCIS failed to consider important factors, such as the attendant harms that class members will suffer while awaiting the lengthy completion of the MSSD Requirement before USCIS will adjudicate a MAVNI’s naturalization application. Next, plaintiffs argue that the MSSD Requirement violates the APA’s publication and notice-and-comment requirements, 5 U.S.C. §§ 552, 553. Plaintiffs also argue that the MSSD Requirement has been applied retroactively to class members whose naturalization applications should have already been progressing before July 7, 2017. Finally, plaintiffs argue that the July 7 Guidance violates the Naturalization Clause of the Constitution by effectively delegating immigration decisions to DOD and substituting DOD standards for those imposed by Congress.
Defendants filed an opposition and cross-moved for summary judgment. (See Defs.’ Opp’n to Pls.’ Mot. for Partial Summ. J. & Cross Mot. for Summ. J., Nov. 30, 2018 (ECF No. 219) (“Defs.’ Opp’n & Cross Mot.”).) They argue that USCIS was within its power to issue the July 7 Guidance, and that the MSSD Requirement is lawful. Defendants rely on two primary rationales to justify the MSSD Requirement. First, they argue that waiting until the Army renders the MSSD allows USCIS to collect “adverse information that may be relevant to an applicant’s eligibility for naturalization under the statutory requirements imposed by Congress.” (Id. at 20-21.) Second, they claim that the information DOD learns during its process may implicate national-security concerns.
Plaintiffs filed an opposition and reply on December 21, 2018. (See Pls.’ Opp’n & Reply.) Defendants filed a reply on February 15, 2019. (See Defs.’ Reply in Supp. of Cross Mot. for Summ. J., Feb. 15, 2019 (ECF No. 237) (“Defs.’ Reply”).) A hearing was held on
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March 20, 2019. (See 3/20/19 Tr.)

As explained herein, the Court concludes that the MSSD Requirement is arbitrary and

capricious because USCIS’s explanation for it runs counter to the evidence. While defendants’

stated need for more information about naturalization applicants could well justify waiting for

completion of the DOD investigatory phase, that information is essentially irrelevant as long as

the MSSD Requirement remains in effect. For, as is clear from the record, USCIS considers an

applicant’s MSSD determinative of his or her eligibility to naturalize under § 1440, and

therefore, it has no need to review the information from the DOD investigatory phase. Because

the Court finds that the MSSD Requirement is arbitrary and capricious, and it will vacate that

portion of the July 7 Guidance, the Court need not address the many additional claims raised by

plaintiffs.

ANALYSIS

I.

LEGAL STANDARDS

Under the APA, a reviewing court must hold unlawful and set aside a final agency action

if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). The arbitrary-and-capricious standard “obligates the agency to examine all

relevant factors and record evidence, and to articulate a reasoned explanation for its decision.”

Am. Wild Horse Preservation Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017) (citing

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983)). A rule is

arbitrary and capricious if the agency

(1) “has relied on factors which Congress has not intended it to consider,” (2) “entirely failed to consider an important aspect of the problem,” (3) “offered an explanation for its decision that runs counter to the evidence before the agency,” or (4) [offers an explanation that] “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

26

United States Sugar Corp. v. EPA, 830 F.3d 579, 606 (D.C. Cir. 2016) (quoting State Farm, 463 U.S. at 43). The agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Encino Motorcars, LLC, v. Navarro, 136 S. Ct. 2117, 2125 (2016) (quoting State Farm, 463 U.S. at 43). The agency’s explanation must be “sufficient to enable us to conclude that the [agency’s action] was the product of reasoned decisionmaking.” Owner-Operator Indep. Drivers Ass’n, Inc. v. Fed. Motor Carrier Safety Admin., 494 F.3d 188, 203 (D.C. Cir. 2007) (quoting State Farm, 463 U.S. at 52).
A court must not substitute its judgment for the agency’s, but its review nonetheless “must go beyond the agency’s procedures to include the substantive reasonableness of its decision,” and in so doing the court must make a “‘thorough, probing, in-depth review’ to determine if the agency has considered the relevant factors or committed a clear error of judgment.” James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1098 (D.C. Cir. 1996) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971)).
In evaluating agency action under the APA, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam). Courts have, however, recognized limited exceptions to this restriction. One occurs where “there was such a failure to explain administrative action as to frustrate effective judicial review.” Id. at 142-43. In such cases a court may obtain “additional explanation of the reasons for the agency decision as may prove necessary,” id. at 143, but they “should contain no new rationalizations.” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 285 (D.C. Cir. 1981) (citing Bunker Hill Co. v. EPA, 572 F.2d 1286, 1292 (9th Cir. 1977)). A reviewing court should “consider evidence relevant to the
27

substantive merits of the agency action only for background information . . . or for the limited purposes of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds for decision.” Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980).
Post-decisional information may also be considered in certain cases. Thus, the D.C. Circuit has held that events that transpired after the challenged action may be considered if they “bear upon the issues before [the court].” Amoco Oil Co. v. EPA, 501 F.2d 722, 729 (D.C. Cir. 1974). In Amoco Oil, Congressional testimony that post-dated the agency action was admitted because it bore “directly on the plausibility of certain predictions made by the [agency] in promulgating the [challenged regulations].” Id. at 729 n.10. Specifically, the Circuit found that the agency’s reliance on a prediction that certain converters would be in “general use” nationwide in car manufacturing had been “dramatically vindicated by subsequent testimony” of industry executives indicating that the regulated companies planned to “make extensive, nationwide use of converters in the 1975 model year.” Id. at 738. The Court explained, “[r]ulemaking is necessarily forward-looking, and by the time judicial review is secured events may have progressed sufficiently to indicate the truth or falsity of agency predictions. We do not think a court need blind itself to such events. . . .” Id. at 729 n.10. The Tenth Circuit also has found that “new data” may be considered if it is “pertinent to show the validity of” the agency action. Am. Petroleum Inst. v. EPA, 540 F.2d 1023, 1034 (10th Cir. 1976) (citing Amoco Oil Co., 501 F.2d at 729 n. 10); see also Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 812 (9th Cir. 1980) (noting that post-decisional data may be considered if it illuminates the original decision or shows “that the Agency proceeded upon assumptions that were entirely fictional or utterly without scientific support”).
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II.

ANALYSIS

A. The July 7 Guidance

1. The MSSD Requirement

The Court finds that the July 7 Guidance explicitly incorporates by reference the Sept. 30

Memo screening requirements, including the DOD and Army adjudicatory phase that culminates

in the MSSD. Although plaintiffs argue that the July 7 Guidance does not “mention[]” the

MSSD as a precondition for USCIS to process a naturalization application (see Pls.’ Opp’n &

Reply at 8-9), it is clear from the July 7 Guidance that its directive to wait “until all enhanced

DoD security checks are completed” means to wait for the final MSSD. (July 7 Guidance at 2

(USCIS AR 5).) Contrary to their present position, plaintiffs previously recognized that the July

7 Guidance explicitly incorporated the Sept. 30 Memo and its refinements:

[T]he July 7 Policy itself expressly references the September 2016 DoD Memo. In fact, the Policy states that it is being enacted in order to bring USCIS policy “in alignment with” the September 2016 DoD Memo: “[E]ach applicant must receive proper DoD vetting and clearance in alignment with the September 30, 2016 MAVNI extension authorization and restrictions.” As such, it must be the case that the “vetting and clearance” described in the September 2016 DoD Memo is a factor relevant to the July 7 Policy.

(Pls.’ Mem. of Pts. & Auths. in Support of Pls.’ Mot. Re. Defs.’ Certified Admin. Record for the

July 7 Policy at 6, Apr. 10, 2018 (ECF No. 133) (citations omitted).) In turn, the Sept. 30 Memo

clearly describes both the DOD investigatory phase and the MSSD Requirement, as it imposes

“Security and Suitability Screening Requirements” which include the DOD investigatory phase

and a “Military Suitability Determination” by the Service based on a recommendation by DOD

CAF. (See Sept. 30 Memo at USCIS AR 238.)

The Court rejects defendants’ argument that the Court cannot consider the MSSD

Requirement alone, but instead must “consider the legality of the Guidance as a whole.” (Defs.’

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Opp’n & Cross Mot. at 19 n.11.) Courts may “‘set aside’ only the part of a rule found to be invalid” because “[i]t would . . . exceed the statutory scope of review for a court to set aside an entire rule where only a part is invalid. . . .” See Catholic Soc. Serv. v. Shalala, 12 F.3d 1123, 1128 (D.C. Cir. 1994) (quoting 5 U.S.C. § 706(2)). The DOD investigatory phase and the MSSD Requirement are both contemplated by the July 7 Guidance, but they are clearly distinct phases of the process. The DOD investigatory phase involves investigation and informationgathering, while the MSSR and MSSD processes involve, to borrow defense counsel’s characterization, “synthesizing” that information for the specific purpose of assessing military suitability. (3/20/19 Tr. at 27:12.) The reasons that may justify USCIS’s waiting for the DOD investigatory phase do not necessarily support the MSSD Requirement. Waiting for the MSSD also considerably lengthens the time before USCIS can address naturalization applications.13 Furthermore, as plaintiffs argue, their original challenge to the DOD investigatory phase is now moot, given that “the vast majority of class members” have completed the DOD investigatory phase. (Defs.’ Opp’n & Cross Mot. at 19 n.11; see also Defs.’ Reply at 2 n.3.) The Court will therefore review the reasonableness of the MSSD Requirement alone and treat the challenge to the DOD investigatory phase as moot.
2. Defendants’ Position Regarding the July 7 Guidance Defendants argue that the purpose of the MSSD Requirement is to help USCIS gather relevant information from DOD about applicants—to “wait until [DOD’s process is] over. . . . What USCIS knows is that the process generates information. And it is information that could [] potentially be useful.” (3/20/19 Tr. at 30:24-31:8.) They assert that the MSSD Requirement
13 This time lapse between the conclusion of the DOD investigatory phase and the MSSD is likely to be lengthened even more for those MAVNIs who challenge their “non-recommend” MSSRs pursuant to the Oct. 26 DOD Memo adopted in the Calixto litigation.
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ensures that USCIS “may review any information that may have emerged throughout the entire DoD process.” (Defs.’ Reply at 9.) According to defendants, waiting for this information helps USCIS meet its statutory obligation to “ensur[e] that these applicants possess the requisite good moral character and attachment to the Constitution necessary to naturalize.” (Defs.’ Opp’n & Cross Mot. at 35 (citing USCIS AR 2-7).)
Defendants insist that USCIS needs this information even if an applicant receives an unsuitable MSSD and will therefore be deemed ineligible by virtue of the characterization of his or her discharge. They deny that “USCIS mechanically treats adverse MSSDs based on ‘unmitigable derogatory information’ as an automatic disqualifier without analyzing the underlying information itself.” (Defs.’ Reply at 13 n.11.) According to defendants, “USCIS did not issue the July 7 Guidance for the purpose of learning how MAVNI recruits who are separated would be discharged,” so “[t]he import of an ‘uncharacterized’ discharge is not at issue in this case.” (Defs.’ Reply at 14.) But, as explained infra, their position is at odds with the administrative record, the statutory and regulatory framework, and the statements of representatives of USCIS.
3. The Army’s Position Regarding Uncharacterized Discharge Central to the question before the Court is an understanding of the concept of uncharacterized discharge and its importance to MAVNI enlistment in the Army and to MAVNIs’ naturalization applications. Essentially, all Nio class members who have not yet received a final MSSD are drilling in DTP awaiting shipment to Basic Training. (See 3/20/19 Tr. at 38:15-18.)14 Pursuant to Army
14 It is possible that a de minimis number of class members have attended Basic Training (see 3/20/19 Tr. at 51:16-19), but given the mandate of the Sept. 30 Memo, the vast majority of current class members are reservists in DTP and by definition in entry-level status.
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Regulations, the Army categorizes these soldiers as “entry level” because they are reservists who have not yet attended Basic Training. (See Army Reg. 135–178 Glossary § II (defining “[e]ntry level status”).) By default, any entry-level discharge of a MAVNI reservist is labeled as “uncharacterized.” (See id. § 2–11(a).) Defendants view an entry-level, uncharacterized discharge as a neutral classification, neither honorable nor dishonorable. (See 6/20/18 Tr. at 41:9-16 (ECF No. 161).) For most administrative purposes, DOD treats an uncharacterized discharge as honorable or general. See DODI 1332.14, Enlisted Administrative Separations, Encl. 4, § 3c(1)(c) (Pls.’ Appx. 60) (“[For] administrative matters . . . that require a characterization as honorable or general, an entry-level separation will be treated as the required characterization.”). Those with an uncharacterized discharge also are not necessarily barred from receiving certain veterans’ benefits. See 38 C.F.R. § 3.12(k)(1) (eligibility for pension and other benefits is barred by a dishonorable discharge, but entry-level uncharacterized separations “shall be considered under conditions other than dishonorable”).
As soon as a soldier’s MSSD is issued, if the soldier is found unsuitable for service for any reason, he or she is discharged promptly, and the discharge will be “uncharacterized” by virtue of the soldier’s entry-level status. For instance, the Sept. 30 Memo indicates that discharge should be initiated immediately after an individual receives an unsuitable MSSD. (See Sept. 30 Memo at USCIS AR 241; see also Oct. 26 DOD Memo at 2 (providing that when a DTP soldier is to be separated on the basis of “an unfavorable MSSD or NSD, the Army Reserve Command “will initiate administrative separation proceedings”); Defs.’ Status Report, Feb. 8, 2019 (ECF No. 234) (indicating that, of the 24 class members who had been discharged due to an unsuitable MSSD, 22 were effectively discharged within a month or less of the MSSD date).)
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4. USCIS’s Position Regarding Uncharacterized Discharge Regardless of whether a soldier has received an N-426 certification of honorable service from the Army, USCIS’s interpretation of § 1440 is that a MAVNI who is no longer serving is only eligible to naturalize if the Army discharged him or her under honorable or general under honorable conditions. According to USCIS, “an uncharacterized discharge . . . [is] not honorable and it’s not general under honorable. And the way USCIS views 1440 is that you have to fall into one of those first two categories.” (3/20/19 Tr. at 13:7-12.) Defendants explained the same interpretation to the Court shortly after the issuance of the July 7 Guidance: “An uncharacterized discharge . . . means that the individual would no longer be eligible to become a naturalized citizen under the MAVNI program.” Nio PI Op., 270 F. Supp. 3d at 54 (citing 8/23/17 Tr. at 2425). Indeed, as USCIS counsel explained at the Court’s March 20, 2019 hearing, this interpretation has been in the USCIS Policy Manual since at least 2008. (See 3/20/19 Tr. at 13:25-15:2.) See also 12 USCIS Policy Manual, pt. I, ch. 3, § B (“Both ‘Honorable’ and ‘General-Under Honorable Conditions’ discharge types qualify as honorable service for immigration purposes. Other discharge types, such as ‘Other Than Honorable,’ do not qualify as honorable service.”). Defendants nonetheless acknowledge that there are significant differences between the standards for USCIS naturalization adjudications and the DOD/Army standards for military suitability. For example, defendants acknowledge that “some factors considered at the [DOD] CAF may be less relevant in the naturalization context (e.g., financial considerations).” (Defs.’ Opp’n & Cross Mot. at 28; see also Pls.’ Mot. for Partial Summ. J. at 11-13 ¶¶ 7-14.) The 13 Adjudicative Guidelines, on which the DOD and Army suitability decisions are based, require consideration of behavior that could make an individual vulnerable to coercion in the context of
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handling classified information—for example, two of the 13 Adjudicative Guidelines are “Use of
Information Technology Systems” and “Financial Considerations”—but may be less relevant to
a USCIS assessment of the individual’s moral character. (See Adjudicative Guidelines at 1-3
(Pls.’ Appx. 95-97).) Moreover, in rendering an assessment under the Adjudicative Guidelines,
any doubts “will be resolved in favor of the national security.” (Id. at 2 (Pls.’ Appx. 96).) By
contrast, in assessing good moral character USCIS has discretion to evaluate the applicant’s
character in the context of “the standards of the average citizen in the community of residence.”
8 C.F.R. § 316.10(a)(2).
DOD also recognizes these distinctions. As Ms. Miller, Director of DOD’s Accession
Policy Directorate, explained in another MAVNI case, these different standards would be
expected to result in at least some individuals being found “unsuitable” for service, but still
eligible to naturalize under the USCIS requirements:
When we screen someone for the purpose of suitability and security, we’re screening at a fairly high threshold. So an individual who may have a known or unknown relative that works for a foreign defense department or foreign intelligence agency, the individual themselves may have no malicious intent towards the United States or to the government; but we cannot mitigate the fact that they have a direct relative working for a foreign intelligence agency. So, therefore, the individual may not be suitable to hold a national security position [i.e., to serve as a soldier]. But ultimately that may not mean that the individual is not suitable to ultimately become a United States citizen. And we have tried very hard to make that distinguishing factor with our colleagues at Department of Homeland Security and USCIS. So they may not be able to serve [or continue serving] in the military, but that may not bear on [USCIS’s] final determination as to whether that individual should be naturalized.
(Trial Testimony of Stephanie Miller at 152-53, Nov. 28, 2018 (Tiwari v. Mattis, No. C17-
00242-TSZ (W.D. Wash.)), Ex. 8 to Pls.’ Notice, Mar. 24, 2019 (ECF No. 244-8).)
In practice, however, USCIS is making no such independent assessment, because it treats
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an unsuitable MSSD as determinative for purposes of naturalization. The Sept. 30 Memo mandates that any MAVNI who does not yet have a final MSSD from DOD cannot ship to Basic Training and therefore must remain in DTP and thus in an entry-level status. Any of these MAVNIs whose MSSD is unsuitable will be discharged promptly, and that discharge will be uncharacterized. See Army Reg. 135–178 § 2–11(a). USCIS will consider him or her automatically ineligible to naturalize. There is no need to proceed with the application, and no need to review the underlying information from the DOD investigatory phase. Meanwhile, any class member found suitable will proceed to the naturalization process without USCIS considering the results of the DOD investigatory phase, because USCIS does not review the underlying information of those found suitable for service. (See Defs.’ Opp’n & Cross Mot. at 28.)
Defendants note that the MSSD Requirement allows USCIS to “avoid[] having to deploy its resources to review DoD background check information . . . where the MSSD is favorable. Rather, it can reserve its resources for the fewer cases in which the MSSD is unfavorable. . . .” (Id.) However, this contention is belied by the fact that the information is of no consequence because USCIS deems any applicant with an uncharacterized discharge to be ineligible for naturalization under § 1440. According to defendants, if MAVNIs receive from the Army “honorable discharges or general discharges then they will be eligible for naturalization. If they get uncharacterized discharges, the government thinks they won’t. . . . The government thinks that an uncharacterized discharge would not be sufficient to naturalize under 1440.” (Tr. of Motions Hearing at 38:1-25, Oct. 3, 2018 (ECF No. 197) (“10/3/18 Tr.”).) See also Nio PI Op., 270 F. Supp. 3d at 54 (citing Tr. of Status Conf. Hearing Cont’d Oral Argument on Prelim. Injunction Mot. at 24:16-25:24, Aug. 23, 2017 (ECF No. 37) (“8/23/17 Tr.”)). Defendants also
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admit that USCIS “need[s] to find out how [MAVNIs have] been discharged” because an applicant’s uncharacterized discharge “trigger[s]” the statutory honorable-service requirement. (3/20/19 Tr. at 50:3-6.)15
The July 7 Guidance cites as justifications the fact that DOD’s background checks can reveal information relevant to good moral character, attachment to the Constitution, and national security. (See July 7 Guidance at 1-2 (USCIS AR 4-5).) These justifications may well support USCIS waiting until the end of the DOD investigatory phase, when any such information would be discovered. They do not, however, justify the MSSD Requirement. We know, for instance, that USCIS understood the benefits of knowing an applicant’s MSSD and resulting discharge characterization. In a sworn declaration the same day as the July 7 Guidance, its author highlighted the fact that a naturalization applicant would be “ineligible for naturalization” under § 1440 if he or she received a “discharge from the Armed Forces under other than honorable conditions.” (7/7/17 Renaud Decl. ¶ 18 (USCIS AR 248).) The usefulness of this information is also acknowledged by defendants in their pleadings, where they recognize that waiting for the MSSD is “reasonable because an applicant who receives an unfavorable MSSD is subject to discharge, and characterization of discharge has a clear bearing on naturalization eligibility under 8 U.S.C. § 1440(a).” (Defs.’ Reply at 14.)
As noted, the DOD investigatory phase may generate information relevant to good moral
15 Plaintiffs argue strenuously that USCIS’s interpretation of § 1440 is unlawful because by statute and DODI an entry-level uncharacterized discharge must be treated as honorable for these purposes. See 10 U.S.C. § 12685 (“A member of a reserve component who is separated for cause . . . is entitled to a discharge under honorable conditions.”); DODI 1332.14, Encl. 4, § 3c(1)(c) (Pls.’ Appx. 60) (“With respect to administrative matters outside this instruction that require a characterization as honorable or general, an entry-level separation will be treated as the required characterization.”). Whether USCIS’s position is legally correct is not before the Court, but rather the issue here is whether the MSSD Requirement is arbitrary and capricious in violation of the APA.
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character, attachment to the Constitution, and national security. And, as defendants point out,
the administrative record contains references to MAVNIs about whom the DOD investigatory
phase revealed “derogatory information that USCIS would have considered” had the MAVNIs not already been naturalized. (3/5/18 Renaud Decl. ¶ 3 (USCIS AR 2).)16 However, any such
information would be revealed during the DOD investigatory phase. The MSSD Requirement
results in USCIS receiving no new derogatory information, and thus defendants’ need for
information bears no “rational connection” to the MSSD Requirement. Encino Motorcars, 136
S. Ct. at 2125 (quoting State Farm, 463 U.S. at 43). Indeed, the only relevant information
revealed to USCIS is, in the case of an unsuitable MSSD, that the applicant will inevitably and
imminently receive an uncharacterized discharge.
Waiting for the MSSD does not ensure that USCIS receives relevant information; it
obviates USCIS’s need for that information. An unfavorable MSSD is determinative: because it
results in an uncharacterized discharge, USCIS will reject the application as automatically
ineligible. This has been USCIS’s practice since at least 2008, when the USCIS Policy Manual
was adopted. (See 3/20/19 Tr. at 14:22-23.) In a representative case from 2010, a federal court
in Indiana reviewed USCIS’s denial of a naturalization application under § 1440 because the
MAVNI’s entry-level discharge was uncharacterized. See, e.g., Oyebade v. Lee, 2010 WL
16 While the Court need not reach the lawfulness of USCIS waiting for the DOD investigatory phase because that issue is moot, see supra Section II.A.1, the Court recognizes the principle that courts should not second-guess the executive regarding matters of national security. See Nio PI Op., 270 F. Supp. 3d at 65 (citing Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (“Nationalsecurity policy is the prerogative of the Congress and President.”); see also Doe 2 v. Shanahan, 755 F. App’x 19, 24-25 (D.C. Cir. 2019) (collecting cases recognizing the deference courts owe to the executive in military and national-security decision-making). The Court similarly recognizes the limited scope of its review in matters of immigration policy. See Trump v. Hawaii, 138 S. Ct. 2392, 2418-19 (2018). However, any information that could bear on national security is collected before the MSSR/MSSD process and thus cannot justify the MSSD Requirement.
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2927207 at *1, *5 (S.D. Ind. 2010). The Oyebade court noted that the applicant’s uncharacterized discharge denoted a wholly “neutral” classification and the USCIS denial was based on the agency’s long-standing interpretation of that neutrality as insufficient to satisfy the honorable-service requirement under § 1440. See id.
This approach continues to be followed today. Plaintiffs have filed a written decision by USCIS denying a MAVNI soldier’s N-400 application for naturalization. (USCIS Decision, Feb. 14, 2019, Ex. 1 to Pls.’ Notice, Mar. 24, 2019 (ECF No. 244-1).)17 The USCIS decision explains that the denial is based on the applicant’s “uncharacterized” entry-level discharge from the military, which renders the applicant ineligible under § 1440. (See id.) It does not include any discussion of other statutory factors such as good moral character.
In point of fact, the MSSD Requirement allows USCIS to learn the characterization of the applicant’s discharge in contravention of the principle recognized in some cases that USCIS may not delay the processing of naturalization applications so it can wait to see if an applicant becomes disqualified. See, e.g., Al Karim v. Holder, 2010 WL 1254840 at *3 (D. Colo. Mar. 29, 2010) (holding that adjudication of an immigration benefit may not be delayed to see whether the applicant’s “classification . . . may change at some indeterminate point in the future”); see also Jaa v. INS, 779 F.2d 569, 572 (9th Cir. 1986) (suggesting that deliberate delay by the government, in order to see if the applicant became ineligible for an immigrant visa, could be impermissible).
As a result of USCIS’s reading of the honorable-service requirement under § 1440, there is no need for USCIS to conduct its own investigations of eligible applicants, as required by 8
17 Plaintiffs offered the USCIS decision as rebuttal evidence to counter defendants’ contention that the underlying information from the DOD investigatory phase is relevant even when USCIS knows the applicant has received an uncharacterized discharge. (See 3/20/19 Tr. at 110:6-12.)
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U.S.C. § 1446(b), or to independently assess applicants’ good moral character or attachment to the Constitution. In effect, DOD’s and the Army’s decisions as to whether a class member is suitable for service operate as a proxy for USCIS. Given this reality, defendants’ argument that an applicant’s uncharacterized discharge is irrelevant to this case rings hollow. Defendants’ justifications for the MSSD Requirement are also belied by the fact that USCIS learns no new information about naturalization applicants except the resulting MSSD and, if it is unsuitable, that the applicant will receive an uncharacterized discharge. The Court therefore finds that the MSSD Requirement is arbitrary and capricious in violation of § 706(2)(A).
B. Relief The Court will vacate the MSSD Requirement only and it need not reach the validity of the remainder of the July 7 Guidance (i.e., the DOD investigatory phase), to which any challenge is moot. The Court rejects plaintiffs’ argument that the entire July 7 Guidance must be invalidated. Under the APA, a reviewing court may hold unlawful and set aside an “agency action,” 5 U.S.C. § 706(2)(A), and the definition of agency action “includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act. . . .” 5 U.S.C. § 551(13) (emphasis added). The D.C. Circuit has held that courts may reject only “the part of a rule found to be invalid” because “[i]t would . . . exceed the statutory scope of review for a court to set aside an entire rule where only a part is invalid, and where the remaining portion may sensibly be given independent life.” Catholic Soc. Serv. v. Shalala, 12 F.3d 1123, 1128 (D.C. Cir. 1994); see also Wilmina Shipping AS v. DHS, 75 F. Supp. 3d 163, 172-73 (D.D.C. 2014) (finding that a portion of a challenged agency action was severable). The Court also rejects defendants’ argument that the Court should not vacate the MSSD Requirement. (See Defs.’ Reply at 15 n.13.) The APA provides that an agency action that is
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arbitrary and capricious shall be “set aside.” 5 U.S.C. § 706(2)(A). Generally, when a court finds that a challenged action is arbitrary and capricious, the remedy is vacatur. It is true that in certain circumstances courts have discretion to remand to the agency for reconsideration or further explanation. For example, a court may decline to vacate a rule if doing so would be highly disruptive, see N. Air Cargo v. United States Postal Serv., 674 F.3d 852, 860-61 (D.C. Cir. 2012); Allied-Signal, Inc. v. United States Nuclear Regulatory Com’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993), or where the prevailing party’s interests would not be served. See, e.g., Envtl. Def. Fund, Inc. v. EPA, 898 F.2d 183, 190 (D.C. Cir. 1990) (declining to vacate because “to do so would at least temporarily defeat petitioner’s purpose”).
That is not the case here. The DOD investigatory phase is complete for members of the class, so USCIS can proceed to process their naturalization applications. And if the MSSD Requirement remains in effect class members certainly will suffer harm, since their applications may not be evaluated by USCIS based on the standards that govern naturalization, as opposed to suitability for military service. The Court will therefore vacate the MSSD Requirement.
CONCLUSION For the foregoing reasons, plaintiffs’ motion for partial summary judgment will be granted in part and defendants’ cross-motion will be denied. Summary judgment will be entered for plaintiffs as to their argument that the MSSD Requirement is arbitrary and capricious in violation of 5 U.S.C. § 706(2). The MSSD Requirement will be vacated. A separate order incorporates the Court’s conclusion and sets this matter down for a status conference.

Date: May 22, 2019

ELLEN SEGAL HUVELLE United States District Judge
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