UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA, et al. , Plaintiffs,

v. UNITED STATES DEPARTMENT OF DEFENSE, et al. , Defendants
. Civil Action No. 17-1793(ESH)

MEMORANDUM OPINION Plaintiffs are three non-citizen s serving in the United States Army’s Selected Reserve of the Ready Reserve (“Selected R eserve”) who enlisted under the U nited States Department of Defense’s Military Accessions Vita l to the National Interest (“ MAVNI”) program. Each wants to apply for citizenship pursu ant to 8 U.S.C. § 1440, which pro vides an expedited path to citizenship for soldiers who serve during specified periods of military hostilities. Each, however, has been unable to apply because the military has refused to gi ve them a signed Form N-426, which is a form that certifies an applicant’s qualifying milita ry service and must be submitted to the United States Citizenship and Immigration Services (“USCIS” ) in order to apply for naturalization based on military service. Plaintiffs bring thi s action against the United States Department of Defense (“DOD”) a nd Secretary James Mattis, claim ing that the military’s refusal to issue them N-426 forms is unlaw ful under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Before the Court is plaintiffs ’ motion for preliminary injuncti ve relief, brought on behalf2 of themselves and similarly-situated MAVNI soldiers. For the r easons stated herein, the Court will provisionally cer tify a class and grant the motion for a p reliminary injunction.

BACKGROUND The issues in this case overlap w ith a related case before this Court, Nio v. United States Department of Homeland Security

. See Nio v. United States Dep’t of Homeland Sec. , No. 17-cv0998, 2017 WL 3917006 (D.D.C. Sept. 6, 2017). That case involv es MAVNI enlistees who have already received a complete d Form N-426, but have brought simil ar challenges to DOD’s recent change in its N-426 po licy. In addition, the Nio plaintiffs are challeng ing the Department of Homeland Security’s (“DHS”) and U SCIS’s decision to put their n aturalization applications on hold pending DOD’s completion of t he enhanced security screenin g (“DHS/USCIS Security Screening Requirement”) it now r equires for MAVNI enlistees pri or to initial entry training (“IET”) or active-duty service. The parties concede that filin gs in both the in stant suit and Nio bear on the preliminary injuncti on inquiry before the Court, an d thus, the Court may rely on records in both cases.
I. FACTUAL BACKGROUND
A. Military Service as a Path to Citizenship Since at least the Civil War, s pecial naturalization provisions have applied to non-citizens who serve in the United States military. See USCIS Policy Manual, Vol. 12, Part I, Ch. 3, § A. Currently, the requirements for naturalization based on militar y service are found in Section 328 and 329 of the Immigration and Nationality Act, as amended , 8 U.S.C. § 1101, et seq . Section 328, codified at 8 U.S.C. § 1439, applies during peacetime; Sec tion 329, codified at 8 U.S.C. § 1440, applies during designated “ periods of military hostilit ies.” For present purposes, § 14403 is the only relevant statutory provision because on July 3, 200 2, President George W. Bush signed an Executive Order decl aring that a period of military h ostilities had begun on September 11, 2001, and that Executive Order rema ins in effect as of toda y. See Exec. Order No. 13269, 67 Fed. Reg. 45, 287 (July 3, 2002).
1. Section 1440 Section 1440 applies to “[a] ny person who, while an alien or anoncitizen national of the United States, has served honorabl y as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in t he military, air, or naval forc es of the United States” during a designated period of military hostilities. 8 U.S.C. § 1440(a); see also 8 C.F.R. § 329.2(a). Prior to 2003, § 1440 applied only to persons who had served in an “a ctive-duty status,” but it was amended in 2003 to insert “as a membe r of the Selected Reserve of the Ready Reserve or” after “has served honorably.” 1 National Defense Authoriz ation Act for Fiscal Year 2004, § 17 02, P.L. 108-136, 117 Stat. 1392 (Nov. 24, 2003) (“NDAA”). 2 “[A]ll soldiers enlisted through the Army Reserve Delayed Training Program (DTP) . . . are attached to a unit in the U.S. Army Reserve,”

1 The “reserve components of the a rmed forces” are: (1) The ArmyNational Guard of the United States; (2) The Army Reserve; (3 ) The Navy Reserve; (4) The Mar ine Corps Reserve; (5) The Air National Guard of the United S tates; (6) The Air Force Rese rve; and (7) The Coast Guard Reserve. 10 U.S.C. § 10101. Each res erve component has a “Ready Reserve, a Standby Reserve, and a Retired Reserve.” 10 U .S.C. § 10141. The “Ready Reserve consists of units or Reserves, or both, liable for active duty.” Id. § 10142. The “Selected Reserve ” are units, or Reserves, within the Ready Reserve, “ trained as prescribed.” Id. § 10143. The prescribed training for Selected Reserve status is to “ (1) participate in at least 48 s cheduled drills or t raining periods during each year and serve on act ive duty for training of not l ess than 14 days (exclusive of travel time) during each year,” id. § 10147(a)(1), or to “(1 ) assemble for drill and instruction, including indoor target practice, at least 48 times each year; and (2) participat e in training at encampments, maneuvers, outdoor tar get practice, or other exerc ises, at least 15 days each year.” Id. § 502.
2 At the same time, Congress reduced the period of service requi red for military naturalization based on peacetime service from three years to one year. NDAA § 1701(a), 117 Stat. at 1691.4 and “[t]hey are members of the S elected Reserve of the Ready Re serve.” 3 (Decl. of Alicia M. Glanz Decl., Sept. 21, 2017 (“Glanz Decl.”), ¶ 2 (citing Army R egulation 601-210).) In relevant part, § 1440 provides that persons honorably servi ng in the Selected Reserve or in active-duty status “may be naturalized as provided in thi s section if . . . at the time of enlistment . . . such person shall have been in the United Stat es, . . . whether or not he has been lawfully admitted to the United States for permanent residence. ” 8 U.S.C. § 1440(a). To apply for naturalization under § 1440 requi res compliance with most o f the standard requirements for naturalization, see 8 U.S.C. § 1427; 8 C.F.R. §§ 316.1–316.14, but the path to cit izenship is eased in at least three ways: (1 ) service members may be natura lized “regardless of age”; (2) “no period of residence or specifi ed period of physical presence wi thin the United States or any State or district of the Service in the United States shall be requir ed”; and (3) “no fee shall be charged or collected from the applican t for filing a petition for natur alization or for the issuance of a certificate of naturalization” granted under this section. 8 U .S.C. § 1440(b)(1), (2), (4); see also 8 C.F.R. § 329.2(e). In addition, no minimum period of military service is required.
See 8 U.S.C. § 1440; see also S. Rep. No. 1268-1292, at 5 (2d Sess. 1968) (“the wartime serviceman has no minimum required”). 4

3 The Army Reserve’s Delayed Tra ining Program (“DTP”) “allows . . . members of the Selected Reserve to attend drill periods for pay and benefits, known as Inactive Duty for Training (IDT) during the period prior to assignm ent to initial military train ing (also known as basic training).” (2d Miller Decl. ¶ A4.) While i n the DTP, enlistees are “on a delayed training status and are considered in this status until they have a valid reservation d ate to ship to Initial Active Duty Training (IADT) (Basic Combat Training and Advanced Individual Training).” (Glanz Decl. ¶ 2.) The Army Reserve’s DTP ha s existed since at least 2002. See USAREC Regulation 601-95, Personnel Procurement: Delayed E ntry and Delayed Training Progr ams (Aug. 15, 2002).
4 A DOD regulation requires that “each qualifying alien shall be advised of the liberalized naturalization provision s of [8 U.S.C. 1440], i.e ., that the usual naturalization requirements concerning age, residence, physical presence, cou rt jurisdictio n and waiting periods are not applicable, and will be given appr opriate assistance in process ing his naturaliza tion application . . . .” 32 C.F.R. § 94.4.5 “The executive department under which such person served shall determine whether persons have served honorably,” and such service “shall be prov ed by a duly authenticated certification from the executiv e department under which the app licant served or is serving.” 8 U.S.C. § 1440(a), ( b)(3); 8 C.F.R. §§ 329.1, 329.4. 5 “Citizenship granted pursuant to [§ 1440] 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.” 8 U.S.C. § 1440(c). Since October 1, 2001, USCIS has naturalized 109,321 members of the military. USCIS, Naturaliz ation Through Military Service: Fact Sheet at 3 (June 12, 2017) (“USCIS Fact Sheet”). 6
2. USCIS Form N-426 Although 8 U.S.C. § 1440 applies to persons serving in the mili tary’s Selected Reserve or in an active-duty status, the sta tute is part of the Immigratio n and Nationality Act and it is administered by DHS and USCIS. To determine if an applicant is eligible for naturalization pursuant to § 1440, USCIS requires any such applicant to submit , along with their application for naturalization (Form N-400), a F orm N-426 that certifies their qualifying military service. See 8 C.F.R. § 329.4; USCIS Policy Man ual, Vol. 12, Part I, Ch. 5, § A (“The Request for Certification of Military or Naval Service confirms whether the applicant ser ved honorably in an active duty status or in the Selected Rese rve of the Ready Reserve.”). The N-426 form in effect during the relevant time period include s the following direction: Persons who are serving or have served under specified conditio ns in the U.S.

5 Earlier versions of military natu ralization statutes required that military service “shall be proven by duly authenticated copie s of records of the executive departments having custody of the records of such service. ” The Nationality Act of 1940, Pub . L. No. 76-853, § 324, 54 Stat. 1137, 1149–1150 (1940).
6 Available at https://www.uscis .gov/news/fact-sheets/naturaliza tion-through-military-servicefact-sheet.6 Armed Forces are granted certai n exemptions from the general re quirements for naturalization. To establish eligi bility, the law requires the department with custody of the service record to c ertify whether the service me mber served honorably, and whether each separat ion from the service was und er honorable conditions. USCIS requests certif ication of the service member ’s military service. (Pls.’ Mot. for a Preliminary Injunction (“PI Mot.”) Ex. 3, Sep t. 19, 2017, ECF No. 11.) 7 The applicant fills out and signs the first part of the N-426, which asks for personal information; enlistment date and location; and all periods of m ilitary service, by branch, dates of service, and “type of ser vice”—either “Active Duty” or “Selected Reserve of the Ready Reserve.” (PI Mot. Ex. 3.); see also USCIS Policy Manual , Vol. 12, Part I, Ch. 3, § B (“Qualifying military service is honorable service in the S elected Reserve of the Ready Reserve or active dut y service . . . .”). “One day of qu alifying service is sufficient in establishing eligibility.” U SCIS Policy Manual, Vol. 12, Pa rt I, Ch. 3, § A. A “certifying official” must t hen complete the second part of the form, indicating, by checking either “Yes” or “No,” “wh ether the requestor served ho norably or is cu rrently serving honorably for each period of militar y service the requestor ser ved.” (PI Mot. Ex. 3.) If the answer is “No,” the certifying o fficial is directed to provide details in the “Remarks” section, specifically to “[p]rovide any derogatory information in your records rela ting to the service member’s character, loyalty to t he United States, disciplinary action, convictions, other than honorable discharges, or other matters concerning his or her fi tness for citizenship.” (PI Mot. Ex. 3.) Once a noncitizen soldi er obtains an executed N-426 an d submits an application for naturalization, it is t he policy of the Bureau of Immigration a nd Customs Enforcement (“ICE”) not to initiate removal proceed ings solely based on a lack of l awful status. ( Nio , Decl. of

7 The N-426 Form used during the period of time relevant to the present litigation expired on August 31, 2017. (PI Mot. Ex. 3.) The current version, which is essentially the same, expires on July 31, 2019. (PI Mot. Ex. 4.)7 Nathalie R. Asher, Aug. 10, 2017, ECF No. 31-1 (“Asher Decl.”), ¶ 5; Tr. of PI Hr’g at 57, Oct. 18, 2017, ECF No. 27 (“10/18/2017 Tr. ”) at 57–58.) In a May 23 , 2016 guidance document from ICE, ICE reiterated its pos ition that “submitting this [MA VNI] application provides the enlistee continued lawful presence in the United States while t he application is pending.” (PI Mot. Ex. 14, at 2.) Until very recently, DOD had no o fficial guidance that appliedto the execution of N426s. (10/18/2017 Tr. at 16–17, 24, 45, 66.) However, since at least 2005 and through April 2017, the United States Army Hum an Resources Command published a document entitled “The Soldier’s Guide to Citizenship A pplication,” which “explains th e procedures for Soldiers to apply for citizenship,” noting t hat “[t]he goal is to streamlin e and expedite the handling of their applications.” (Pls.’ Reply re PI Mot., ECF No. 22 (“PI Reply” ), Ex. 7, at 4 (2017 version); see also id . Ex. 8 (2011 version); id . Ex. 9 (2005 version).) In tha t publication, it states: As a general rule, a Soldier i s considered to be serving honora bly unless a decision has been made, either by t he Soldier’s commander or a court martial, to discharge him/her under less than honorable conditions. In the rare cases where the char acter of a Soldier’s service is questionable, ONLY the Soldier’s commander can decide this issue, and the sole cri terion for the decision is: If the Soldier we re being discharged today, based on his/her record, what type of discharge would the S oldier receive? If Honorable or General or Under Honorable Conditions, the c haracter of service on the N-4 26 will read “honorable”. If Under Less than Honorable Conditions, the N-42 6 character of service item will NOT read “honorable”. (PI Reply Ex. 7, at 11; see also id . Ex. 8, at 11; id . Ex. 9, at 10.) The Army publication also provides that the N-426 service data can be verified and the fo rm signed by someone in a Military Personnel Division or M ilitary Personnel Offices. (PI Reply Ex. 7, at 11; see also id

. Ex. 8, at 11; id . Ex. 9, at 10; PI Mot. Ex. 5 (USCI S letter dated March 31, 201 7, to plaintiff advising him that he had not prope rly signed his N-426, and tha t once he did that, he should8 “[t]ake the N-426 to your personnel office, administrative unit , command, or human resources department where your service r ecord can be verified and certif ied”).) The Navy has a similar publication, entitled “U.S. Navy G uide to Natura lization Applic ations Based upon Qualifying Military Service.” (PI Reply E x. 12.) It instructs applicants to “submit the partially competed Form N-426 to their local servi ce record holder,” and then instructs that the certifying official “must complete all pertinent bloc ks” and “MUST sign” the docume nt. (PI Reply Ex. 12 at 3–4.) In another publication, the Navy i nstructs the “local service r ecord holder” to certify the N-426 after checking existing and past s ervice records. (PI Reply Ex . 11.) Similar presentations by the Army to health care professiona ls who enlisted in MAVNI instruc ted them to have their chain of command sign their N-426 “after 1 d rill is completed.” (PI Mot . Ex. 7.) The unrebutted evidence of DOD’s past practice in certifying N- 426s demonstrates that the honorable service determina tion consisted of a cursory reco rds check to determine if the enlistee (1) was in t he active duty or the Selected Reserves, ( 2) had valid dates of service, and (3) had no immediately apparent past derogatory information in his service record. Thus, DOD’s past practice was to determine whether a person had served hono rably based on an examination of his service record at the time the N-426 was submitted for e xecution. This conclusion was further confirmed by the informa tion relevant to the length of time the certification process took for seven of the named Nio plaintiffs, each of whom had their N-426s certified within one day after they submitted the forms. ( Nio , PI Mot., June 28, 2017, ECF No. 17, Exs. 26–32.)
3. USCIS’s Naturalization at Basic Training Initiative In August 2009, USCIS, in conj unction with the Army, adopted a “Naturalization at Basic Training Initiative” in orde r to provide expedited proces sing of naturalization applications9 for non-citizen enlistees once they arrived at IET. 8 See USCIS Fact Sheet at 2; 9 ( see also Nio , Decl. of Daniel Renaud, ECF N o. 19-6, July 7, 2017 (“1st Renaud Decl.”), ¶ 13.) “Under this initiative, USCIS conducts all na turalization processing includ ing the capture of biometrics, the naturalization intervi ew, and administra tion of the Oath of All egiance on the military base.” USCIS Fact Sheet at 2. The goal , which was generally achieved, was for the naturalization process to be completed by the e nd of IET. (Decl. of Stephanie P. Miller, July 7, 2017 (“1st Miller Decl.”), ¶ 9; Nio , 1st Renaud Decl. ¶ 13.)
B. The MAVNI Program
1. Establishment In 2008, pursuant to 10 U.S.C. § 504( b)(2), the Secretary of D efense authorized the creation of the MAVNI Pilot Progra m, which allowed non-citizens who were not lawful permanent residents to enlist in the United States military if it was determined that enlistment would be vital to the national in terest because they were “heal th care professionals” in certain specialties or possessed “critic al foreign language skills.” (1 st Miller Decl. ¶ 4; Secretary of Defense Memorandum dated Nov. 25, 2008 (cited in PI Mot. Ex. 6) .) The program was reauthorized several times, most recently in September 2016, wh en it was extended through September 30, 2017. ( See Nio , PI Mot. Ex. 10, ECF No. 17-10 (“9/30/2016 DOD Memorandum”).)
2. Enhanced Security Screenin g (9/30/2016 DOD Memorandum) Over the years of the MAVNI progr am, DOD increased the securit y screening

8 IET encompasses “basic traini ng,” also referred to as “basic c ombat training” (BCT). DOD considers IET to be activ e duty. (10/18/2017 Tr. at 28–29.)
9 Since 2009, USCIS has expanded t he initiative to the Navy, Air Force, and in 2013, to the Marine Corps, giving enlistees of all branches an equal opportu nity to leave IET as U.S. citizens. USCIS Fact Sheet at 2.10 requirements for MAVNI enlist ees. (1st Miller Decl. ¶¶ 12–17.) 10 From June to September 2016, DOD engaged in a review of t he MAVNI program that led it to conclude MAVNI screening “was not being implement ed adequately.” (1st Miller Decl. ¶ 15; see also id. ¶¶ 15– 17.) On September 30, 2016, citing na tional security concerns, DOD implemented enhanced security screening requirements for MAVNIs and required that th e screening be successfully completed before a MAVNI enlistee would get a “military suitabi lity determination” and be allowed to go to IET. (9/30/2016 DOD Memorandum, attach. 1, at 3; 1st Miller Decl. ¶¶ 10, 14– 18; Nio , Tr. of PI Hr’g (Part I), July 19, 2017, ECF No. 34 (“ Nio , 7/19/2017 Tr.”) at 21–22.) DOD’s enhanced security screening for MAVNI enlistees included: (1) a Tier 3 or Tier 5 background investigation—Tier 5 was formerly known as a Single Scope Background Investigation (“SSBI”); (2) a Nat ional Intelligence Agency Chec k (“NIAC”); (3) a counterintelligence focused security review (“CI Review”); and (4) an “issue-oriented i nterview and/or issue-oriented polygraph, if need ed to resolve any foreign infl uences or foreign preference concerns.” (1st Miller Decl. ¶ 14; 9/30/2016 DOD Memorandum, a ttach. 1, at 3–5.) Despite the reference to the possibility of aTier 3 background investigati on for some MAVNIs (a much less in-depth and time-consuming endeavor ( see Decl. of Stephanie P . Miller, July 28, 2017 (“2d Miller Decl.”), ¶ A2), DOD’ s current position is that allMAVNIs are subjected to a Tier 5

10 In 2014, the Army Reserve published a MAVNI Information Paper which advised MAVNI foreign language recruits that As a condition for participati on in the MAVNI program, all MAVN I applicants will be subject to enhanced security screening measures which will occu r while you are in the Army Reserve Delayed Training Program (DTP) before you ship to BCT. You will be required to remain in the DTP f or at least 180 days to allow fo r the completion of the security checks. If results ar e not returned prior to ship dat e, the ship date will be renegotiated. (PI Opp. Ex. 4, at 7 (“MAVNI Information Paper”).)11 investigation because “every MAVNI applicant inherently has der ogatory information” due to the fact they are citizens of foreign governments. (10/18/2017 Tr. at 11–12.) Currently, the estimated time for completion of the Tier 5 investigation is ov er 400 days, and that is just one part of the enhanced securit y screening. (10/18/2017 Tr. at 13 ; 2d Miller Decl. ¶ A2.) If the investigation reveals unmitigable derogatory informatio n—such as “undue foreign influence”—the military suitabi lity determination will be unfav orable and DOD can discharge the MAVNI enlistee under “othe r than honorable conditions,” suc h as an “uncharacterized” discharge. ( Nio , Tr. of PI Hr’g (Part II), Aug. 23, 2017, ECF No. 37 (“ Nio , 8/23/2017 Tr.”) at 37–38.); PI Mot. Ex. 9 (“May 2017 Acti on Memo”); 1st Miller Dec l. ¶ 14 (negative outcome “could result in an applicant’s ad ministrative discharge from t he Armed Forces under any administrative characterizati on of service, including ‘other th an honorable’ conditions”); 2d Miller Decl. ¶ A5; Nio , Defs.’ Resp. to the Court’s Aug. 24, 2017 Order Exs. A & B, A ug. 30, 2017, ECF No. 39.) An uncharacterized discharge also means tha t the individual would no longer be eligible to beco me a naturalized citizen. ( Nio , 8/23/2017 Tr. at 24–25.)
C. MAVNI Program in the Army Reserve The Army Reserve began imple menting the MAVNI Program in 2009 due to “critical shortages of high-quality, multi- lingual, ethnically and cultur ally diverse recruits, and healthcare professionals . . . .” (PI Mot. E x. 6 (Army Memorandum dated 3 /24/2009 re “AR [MAVNI] Pilot Program Implementation Guidance”).) 11 This litigation concerns MAVNIs who enlisted in the Army Reserve’s Selected Res erve of the Ready Reserve and wh o are in the DTP.

11 When it was first adopted, only he alth care professionals were allowed to enlist in the Army Reserve; all applicants with for eign language skills had to enl ist in the regular Army. (PI Mot. Ex. 6, at 2.)12 1. Path to Citizenship MAVNIs in the Army Reserve’s Sel ected Reserve a re eligible for naturalization under § 1440. Indeed, the standard enlistm ent contract for a MAVNI e nlistee in the Army Reserve’s Selected Reserve includes an a ddendum, signed by the enlistee a nd a DOD official, which states: “[i]n exchange for being permitted to enlist in the Army, I agr ee to apply for U.S. citizenship as soon as the Army has certified my honorable service.” ( See, e.g ., Defs.’ Notice of Supp. Filing Exs. 1–3, attach. 1, at 3, Oct . 19, 2017, ECF No. 25-1 (copy of plaintiff Kirwa’s enlistment contract).) But, their path t o citizenship has been dramatical ly prolonged by DOD’s enhanced security screening requirements.

a. Before 9/30/2016 From the inception of the MAVNI Program until September 30, 201 6, what typically happened to a MAVNI in the Army’s Selected Reserve is that the enlistee would sign the enlistment contract and go to IET in approximately 180 days. ( 10/18/2017 Tr. at 32, 108; see also MAVNI Information Paper (“you w ill apply for citizenship durin g Basic Combat Training (BCT). The Army, along with USCIS has implemented expedited ci tizenship processing for all non-citizens at each of the Army’ s BCT. DO NOT MAIL YOUR CITIZ ENSHIP PACKET BEFORE YOU SHIP TO BCT. All doc umentation including the N-426 will be signed at BCT. Your recruiter or Reserve com mander does not need to sign or ma il anything for you.”) If MAVNIs did not have certified N-4 26s before they entered IET, t hey would receive one and apply for citizenship at I ET. (10/18/2017 Tr. at 22–23.) IET would be completed in ten to twelve weeks, and by the end of IET , USCIS would have adjudicat ed their N-400 naturalization applications, and the MAVNIs w ould be granted citizenship. (1s t Miller Decl. ¶ 9; 1st Renaud Decl. ¶ 13.)13 b. After 9/30/2016 After the 9/30/2016 DOD Memorandu m, MAVNIs in the DTP began to experience significant delays in being sen t to IET. (10/18/2017 Tr. at 32 (statement by DOD counsel: “I think it’s pretty clear that the process as it was originally c ontemplated was intended to move more quickly than what it curren tly does.”).) In fact, the enh anced screenings were taking so long that MAVNIs were starting to be discharged because they ha d exceeded the allowable time of two years in the DTP. ( See, e.g ., Nio , Pls.’ Supp. Reply Ex. 2, Aug. 18, 2017, ECF No. 33-2.) On July 27, 2017, in an attempt to ameliorate this problem, the then-Acting Secretary of the Army issued a memorandum that w aived the requirement to attend IET within 24 months of accession and extended the period to 36 months for the 2,513 so ldiers then in the DTP on the ground that the “waiver is necessa ry to accommodate the additio nal security screening.” ( Nio , Defs.’ Notice of Supp. Documentation, ECF No. 26.) Not having any idea how long it mi ght take to get to IET, at l east 500 MAVNIs in the DTP sought and received signed N -426s before starting IET and s ubmitted naturalization applications. ( See 10/18/2017 Tr. at 21–22; see also May 2017 Action Memo at 2.) But USCIS has refused to process their immigration applications until DOD ’s enhanced security screening is completed. See Nio , 2017 WL 3917006, at *4. However, starting sometime i n the spring of 2017, the Army beg an to change its practice and began to decline requests f or N-426s to MAVNIs still in the DTP on the ground that they were not serving on “active duty.” ( See, e.g. , PI Mot. Ex. 13 (email to MAVNIs from Army Reserve administrator stati ng “I have found out that we cannot certify [an N-426] unless you are on Active Duty”).) On July 7, 2017, DOD told this Court that i t was “undertaking a review of . . . the standards for certifyi ng approximately 400 existing N-426 s” (the Nio plaintiffs), and that it was “not certifying any new MAVNI N-426s” (the Kirwa plaintiffs) because it “viewed IET14 [active duty] as a necessar y precondition of an honorable servi ce determination.” (1st Miller Decl. ¶¶ 19–20; 2d Miller Decl . ¶ A4.) On August 17, 2017, the Army formerly ordered that no more N-426s were to be issued w hile its review was ongoing unle ss the person had served on “active duty.” (PI Mot. Ex. 10 (Aug. 17, 2017 Department of th e Army Memorandum) (“Effective immediately, I withhold authority to certify the ho norable service (N- 426) of Soldiers who have not yet attended Initial E ntry Training.”).) That lef t MAVNIs who were currently drilling in the DTP—approximate ly 2000—unable to receive an N-4 26 and, as a consequence, they are ineligible to a pply for naturalization.
2. October 13, 2017 N-426 Guidance On October 13, 2017, DOD issued its “ new” and “first” “formal policy guidance” pertaining to the “ce rtification of honorable service of member s of the Selected Reserve of the Ready Reserve . . . for purposes of naturalization” under § 144 0 in the form of a memorandum from the Office of the Secretar y of Defense to the Secretaries of the Military Departments. (Defs.’ Opp. to PI Mot., ECF No. 20 (“PI Opp.”) Ex. 3 (“10/13/2 017 Guidance”); 10/18/2017 Tr. at 17.) Section II of the memora ndum applies to persons who en listed prior October 13, 2017, who do not already have an N-426 (the Kirwa plaintiffs). It stat es the following: Standards and Procedures Applicable to Cases in which the Date of the Member’s Enlistment or A ccession in either the Active or Reserve Component was Prior to the Date of this Memorandum

. The Military Department concer ned may certify such a Service Me mber’s service as honorable for purposes of supporting the member’s naturaliza tion application only if all of the followi ng criteria are met: 1. Legal and Disciplinary Matters : The Service Member is not th e subject of pending disciplinary action or pendi ng adverse admi nistrative a ction or proceedings, and is not the subject of a law enforcement or com mand investigation; AND 2. Background Investigation and Suita bility Vetting: The Servic e member has completed applicable screening and s uitability requirements as set forth in Section15 I, paragraph 2 above; AND 3. Military Training and Required Service: The Service Member h as served in a capacity, for a period of time, a nd in a manner that permits aninformed determination that the member has served honorably as a member of the Selected Reserve of the Ready Reserve or m ember of an active component o f a military or naval force of the United State s, as determined by the Secretar y of the Military Department concerned. (10/13/2017 Guidance at 3.) For M AVNIs, the “screening and sui tability requirements” are set forth in Section I, paragraph 2( a) and are as follows: a completed National Intelligen ce Agency Check (NIAC); Tier 3 o r Tier 5 Background Investigation, as applic able; counterintelligence-f ocused security review; counterintelligence int erview; and a Military Service Suitability Determination (MSSD), favorabl y adjudicated in accordance with Office of the Under Secretary of Defense for P ersonnel and Readiness (OUSD(P& R)) memorandum of September 30, 2016, Mili tary Accessions Vital to the National Interest Pilot Program Extension, and OUSD(P&R) memorandum of O ctober 13, 2017, Military Accessions Vital to t he National Interest Pilot Program. (10/13/2017 Guidance at 2.) 12
D. Plaintiffs Plaintiffs each enlisted in the A rmy Reserve’s Selected Reserve of the Ready Reserve via the MAVNI Program before September 30, 2016. (Defs.’ Notice of Supp. Filing Exs. 1–3, Oct. 19, 2017, ECF No. 25 (Enlistment Ks).) Plaintiff Kirwa enliste d on December 7, 2015 (ECF No. 25-1); plaintiff Meenhallimath enlisted on February 4, 2016 (EC F No. 25-2); and plaintiff Viswanathan enlisted on J une 24, 2016 (ECF No. 25-3). Each sig ned a contract in which they agreed to apply for citizenshi p “as soon as the Army has certif ied my honorable service.” ( See,

e.g. , ECF No. 25-1.) None has completed the enhanced screening req uired after September 30,

12 According to the 10/13/2017 Guida nce, any N-426s already issue d to a person who “has not completed all applicab le screening and suitability requirements as set forth in Section I, paragraph 2” will be “recall[ed] and decertif[ied].” (10/13/20 17 Guidance at 4.) This applies to the Nio plaintiffs.16 2016, so none has been assigned a date for their IET. 13 (Decl. of Mahlon Kirwa, Sept. 12, 2017 (“Kirwa Decl.”), ¶ 6; Decl. of Santhosh Meenhallimath, Sept. 11 , 2017 (“Meenhallimath Decl.”), ¶ 8; Decl. of Ashok Viswanathan, Sept. 11, 2017 (“Viswanathan D ecl.”), ¶ 12.) Each is currently serving in the Army Res erve DTP and has attended Rese rve training since 2016, or January 2017, in the case of plaint iff Meenhallimath. (Kirwa D ecl. ¶ 5; Meenhallimath Decl. ¶ 5; Viswanathan Decl. ¶ 5; Glanz Decl. ¶ 4.) Each has filled ou t and signed their part of an N-426 form, but the military has refused to complete the form. (Kirw a Decl. ¶¶ 8–9; Meenhallimath Decl. ¶¶ 6–10; Viswanathan D ecl. ¶¶ 7–11; PI Mot. Exs. 12–13.) Initially, the refusal to execute plaintiffs’ N-426 forms was a ttributable to DOD’s hold during i ts N-426 policy review ( see 1st Miller Decl. ¶¶ 19–20; PI Mot. Ex. 5; Compl. ¶ 5), 14 but the refusal is now mandated by DOD’s October 13th Guidance. Plaintiffs’ inability to obtai n signed N-426s means that they cannot apply for naturalization, which i n turn deprives them of any benefit from ICE’s policy of not instituting removal proceedings against MAVNIs in the DTP with pending natu ralization applications. In addition, DOD’s action extends pla intiffs’ time of living in a period of uncertain immigration status—with the concomitant lim itations that places on their ac tions—and delays t heir ability to realize the benefits of citi zenship. (Kirwa Decl. ¶¶ 13–18; Me enhallimath Decl. ¶¶ 12–22; Viswanathan Decl. ¶¶ 13–21; see also Nio , 2017 WL 3917006, at *8–9 (findi ng that the hold on

13 DOD has represented to the Cour t that their scr eenings are “un derway” but has not provided any further information. (10/18/2017 Tr. at 29.)
14 On September 6, 2017, the Court issued its opinion denying the preliminary injunction in Nio

. As to DOD, the Court refused to gr ant a prelimin ary injunction against DOD for its N-426 review because DOD had yet to revoke any of the Nio plaintiffs N-426s, a nd thus, “plaintiffs failed to establish that they w[ ould] suffer any irreparable ha rm absent an injunction.” Nio , 2017 WL 3917006, at *8. That situati on has now changed and the Nio plaintiffs have renewed their motion for a preliminary injunction.17 processing of citizenship applications was causing irreparable harm). The parties agree that there are approximately 2000 MAVNIs in the same situation as the thre e named Kirwa plaintiffs. 15 (10/18/2017 Tr. at 114.)
II. PROCEDURAL HISTORY Plaintiffs filed a complai nt on September 1, 2017, challenging DOD’s refusal to complete their N-426 Forms and certify the ir honorable service in the Se lected Reserve as unlawfully imposing an “active-duty” requirement in violation of § 1440. 8 U.S.C. § 1440(a) (non-citizen is eligible for citizenship if he “ has served honorably as a membe r of the Selected Reserve of the Ready Reserve or in an active-duty status” (emph asis added)). Plaintiffs bring substantive claims under the APA, 5 U.S.C. § 70 6(1) and (2) (Count III), an d for mandamus, 28 U.S.C. § 1361 (Count IV). 16 (Compl. ¶¶ 82–105.) On September 19, 2017, plaintiffs m oved for a preliminary injun ction on their own behalf and on behalf of similarly-situat ed MAVNIs. (PI Mot. at 1.) S imultaneously, they filed a motion for class certification, s eeking to certify a class that would include: (1) MAVNI enlistees, (2) who have served in the Selec ted Reserve, and (3) who have n ot received a completed Form N-426. (Pls.’ Mot. for Class Certification, Sept. 19, 2017, EC F No. 12.) For purposes of the preliminary injunction motion, pl aintiffs seek provisional cert ification of the class. During a conference call on Sep tember 25, 2017, the parties agr eed that, given DOD’s position that “active duty” was r equired for certification of h onorable service on an N-426, there

15 The Army “maintain[s] a roster that accounts for the assignmen t and duty status of all individuals enlisted und er the MAVNI program.” (Glanz Decl. ¶ 1.)
16 Count I is a claim under the Declaratory Judgment Act, 28 U.S. C. § 2201, which is not a stand-alone cause of action. Malek v. Flagstar Bank , 70 F. Supp. 3d 23, 28 (D.D.C. 2014). Count II is a claim for prelimin ary and permanent injunctive re lief, but it does not include a distinct cause of action.18 were no facts in dispute, and the C ourt could collapse the prel iminary injunction into a hearing on the merits. (10/18/2017 Tr. a t 4–5.) Accordingly, the Cour t directed defendants to respond only to the merits of plaintiffs’ substantive claims, set a hea ring on the merits for October 18, 2017, and deferred defendants’ obli gation to respond to the mot ion for class certification. (Order, Sept. 25, 2017, ECF No. 16.) On October 10, 2017, defe ndants filed their response and a cross-motion for summary judgmen t on the “active duty” issue. ( See Defs.’ Summ. J. Opp. and Cross-Motion, Oct. 10, 2017, ECF Nos. 17 & 18). Plaintiffs fil ed a reply on October 13, 2017. (Pls.’ Summ. J. Reply, Oct. 13, 2017, ECF No. 19.) In the meantime, the legal lands cape shifted dramatically. As the Court learned from the weekly status report filed in Nio at the end of the day on October 13, 2017 ( see Nio , ECF No. 58), DOD had just issued its new N-426 policies for when it wou ld certify that a MAVNI currently in the Selected Reser ve was “serving ho norably;” it r etreated from any express requirement of “active-duty” serv ice, but instead imposed the n umerous additional requirements set forth in its October 13th G uidance. In light of this signi ficant and abrupt change by DOD, the case was no longer about a single legal issue. The Court there fore concluded that it could no longer collapse the preliminar y injunction hearing with the hea ring on the merits. (10/18/2017 Tr. at 6.) Accordingly, it orde red full briefing on the prelim inary injunction motion to be completed by October 17, 2017 ( see Minute Order, Oct. 14, 2017), s o that it could hold the hearing as scheduled on Oct ober 18, 2017. In response to the Co urt’s request at the October 18th hearing, the parties filed additional materials on October 19, 2017. ( See Notices of Supplemental Filing, ECF Nos. 23–25.) The Court is now in a position to rul e on the plaintiffs’ motion for preliminary inj unctive relief.19 ANALYSIS
I. LEGAL STANDARD A preliminary injunction grants “ intermediate relief of the sam e character as that which may be granted finally.” De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945). It is an extraordinary remedy only “awarded upon a clear showing t hat the plaintiff is entitled” to it. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must esta blish that he is likely to succ eed on the merits, that he is likely to suffer irreparable harm in the a bsence of preliminary relief, t hat the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. Where the government is the opposing party, as here, these final two factors merge. Nken v. Holder , 556 U.S. 418, 435 (2009); Pursuing America’s Greatness v. Fed. Election Comm’n , 831 F.3d 500, 511 (D.C. Cir. 2016). Finding that plaintiffs have carried their burden as to all requirements, the Court grants plaintiffs’ motion for prelim inary injunctive relief.
II. THE MERITS Plaintiffs bring claims under the APA and also a mandamus claim

. “Where multiple causes of action are alleged, pl aintiff need only show likeliho od of success on one claim to justify injunctive relief.” McNeil-PPC, Inc. v. Granutec, Inc. , 919 F. Supp. 198, 201 (E.D.N.C. 1995); s ee also Cuomo v. U.S. Nuclear Regulatory Comm’n , 772 F.2d 972, 974 (D.C. Cir. 1985)

. A. Reviewability of Defendants’ N-426 Policy Defendants argue that plaintiffs’ claims under the APA fail as a matter of law because DOD’s decision about whether and when to certify honorable serv ice is a decision committed to agency discretion by law or because 8 U.S.C. § 1440 otherwise p recludes judicial review. The20 Court disagrees. The APA does withdraw judicial rev iew to the extent that “statu tes preclude judicial review,” 5 U.S.C. § 701(a)(1), a nd where “an agency action is c ommitted to agency discretion by law,” id. § 701(a)(2 ). “Whether and to what extent a particular statute precludes judicial review is determined not only from its e xpress language, but also from the structure of the statutory scheme, its objectives, its legisl ative history, and the nature of the administrative action involved.” Block v. Cmty. Nutrition Inst. , 467 U.S. 340, 345 (1984). To determine “whether a matter has been committed solely to agency discretion, we consi der both the nature of the administrative action at issue and the language and structure o f the statute that supplies the applicable legal standards for reviewing that action.” Sec’y of Labor v. Twentymile Coal Co. , 456 F.3d 151, 156 (D.C. Cir. 2006) (citation omitted). “ [I]f the statute is drawn so that a court would have no meaningful standar d against which to judge the ag ency’s exercise of discretion,” then it is unreviewable. Heckler v. Chaney , 470 U.S. 821, 830 (1985). But “there is a strong presumption that agency action is reviewable,” and Congress rar ely draws statutes in terms so broad that there is no meaningful standard. Twentymile Coal Co. , 456 F.3d at 156. Here, the nature of the adminis trative action i nvolved, as well as 8 U.S.C. § 1440’s statutory and regulatory regime , provide a meaningful standard for judging DOD’s N-426 certification decisions. See Block , 467 U.S. at 345; Twentymile Coal Co. , 456 F.3d at 156. The statute covers “[a]ny person who . . . has served honorably as a member of the Selected Reserve of the Ready Reserve or in an act ive-duty status in the militar y.” 8 U.S.C. § 1440(a). This specifically refers to past service , not to DOD’s possible future suitability determinations. Moreover, the statute provides fo r revocation should “the perso n [be] separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period21 or periods aggregating five years.” Id. § 1440(c). And, under the applicable regulations, DOD is to certify honorable service for Se lected Reserve members basedon past service. See 8 C.F.R. § 329.2. Therefore, eligibility for naturalization under the M AVNI program, means that an applicant is eligible if, inter alia , he or she “ [h]as 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.” 8 C.F.R. § 329.2(a) (emphasis added). Until the spring of 2017, DOD’s practi ce aligned with these dic tates. MAVNI enlistees had Form N-426s certified within days of submission. The certi fying official confirmed that the enlistee (1) was serving, or ha d served in the Selected Reserve s or in active duty, and (2) had at least one day of qualifying service , such as attendance at a dr ill. (PI Mot. Ex. 3.) The certifying official checked “yes” or “no” t o “[s]tate whether the [enliste e] served honorably or is currently serving honorably for each period of military service the reque stor served.” (PI Mot. Ex. 3 at 2.) From the unrebutted evidence the Court can conclude that DOD of ficials were making the certification dete rmination based on an e nlistee’s service record as it existed on the day he submitted the N-426. Again, in “The Soldier’s Guide to Citizen ship Application”—a document used by U.S. Army Human Resources Command to assist MAVNI enlis tees in completing their naturalization applica tions—the Army clearly explained the mean ing of “honorable”: As a general rule, a Soldier i s considered to be serving honora bly unless a decision has been made, either by t he Soldier’s commander or a court martial, to discharge him/her under less than honorable conditions. In the rare cases where the char acter of a Soldier’s service is questionable, ONLY the Soldier’s commander can decide this issue, and the sole cri terion for the decision is: If the Soldier we re being discharged today, based on his/her record, what type of discharge would the S oldier receive? If Honorable or General or Under Honorable Conditions, the c haracter of service on the N-4 26 will read “honorable”. If Under Less than Honorable Conditions, the N-42 6 character of service item will NOT read “honorable”.22 (PI Reply Ex. 7, at 11.) The military has multiple regulations to judge an enlistee’s honorable service, which make clear that th e determination concerns an an alysis of the existing military record. For instance, Arm y Regulation 135-178 states: The characterization of service upon separation is of great sig nificance to the Solider. It must accurately reflect the nature of service perf ormed. . . . The type of discharge and character of service will be determined solely by the military recording during the current en listment or period of service

. . . . AR 135-178, § 2-8 “General considerations”; see also generally 10 U.S.C. § 12685 (defining character of a Selected Reservist’s discharge); AR 135-178; AR 600-8-24; AR 635-200. In addition to the statutory and r egulatory regime and DOD’s pa st practice, one court has reviewed how DOD has treated past service in certifying Form N-426s. In Cody v. Casterisano , the court reviewed issues surr ounding a petitioner-enlistee’s F orm N-426 where, the government purported to (1) rescind and nulli fy a previously-issued Form N -426 certifying honorable service for a foreign student attending the U.S. Naval Academy on the g rounds of administrative error because the student’s service did not truly qualify as active-d uty service; and then (2) issue a new N-426 after litigation commence d stating that the student had n ot served honorably because the service did not qualify as ac tive-duty service. No. 09-cv-0068 7, at *1–4, 9–13 (D. Md. May 12, 2009) (unpublished). The federal d istrict court, finding that the petitioner-enlistee was eligible for naturalization, did not defe r to the N-426 issued after the beginning of litigation, but instead it concluded that it could eith er (1) consider itself bound by the N-426 issued prior to litigation, or (2) consider the petitioner’s f actual circumstances in light of 8 U.S.C. § 1440 and relevant regulations/policy guidance to fi nd that the plaintiff was elig ible for naturalization. Id. at 13–16. The government protested that th e petitioner could not have ser ved honorably for naturalization purposes because he was not induc ted into active duty, but the court noted that it could find the plaintiff to “have been ‘constr uctively inducted’ into active-d uty in the Navy based on his rank23 of ‘midshipman’ and his performi ng the duties of a service memb er.” Id. at 13. Thus, the court independently determined the peti tioner’s honorable service und er 8 U.S.C. § 1440(a) for naturalization purposes , even if the Navy’s views differed. 17 See also Petition of Delgado , 57 F. Supp. 460, 461–62 (N.D. Cal. 1944) (conc luding that a non-citiz en Coast Guard Reservist was “serving honorably in the naval fo rces of the United States, [w as] properly vouched for as provided by law, and [was] therefo re entitled t o citizenship”). Finally, because it is a minis terial duty, certification of hon orable service for purposes of immigration and naturalization is unlikely to be committed to D OD’s sole discretion or to be otherwise unreviewable. See, e.g. , Norton v. S. Utah Wilderness All. , 542 U.S. 55, 64 (2004) (referring to courts’ power to c ompel an agency to perform a mi nisterial act); Kitchen v. CSX Transp., Inc. , 6 F.3d 727, 732 (11th Cir. 1993) (“A min isterial act is one t hat is simple, absolute, and definite, arising under conditions admitted or proved to ex ist, and requiring merely the execution of a specific duty.”) (i nternal quotation marks omitt ed). Indeed, DOD has conceded that certifying Form N-426s is merely ministerial. Counsel for DOD in Nio represented to the Court that “DOD serves a ministe rial role in determining if an individual is serving honorably.” ( Nio v. United States Dep’t of Homeland Sec. , Defs.’ Resp. to Pls.’ Mot. for a Prelim. Inj., June 7, 2017, ECF No. 19, at 36.) 18 Accordingly, DOD’s N-426 policy i s subject to review as a ministerial task not committed to agency discretion, for there are meaningful standards by which

17 The government did not appeal thi s portion of the district cou rt’s decision, but the petitioner later appealed the district cour t’s denial of his motion for at torney’s fees. Cody v. Caterisano , 631 F.3d 136, 141 (4th Cir. 2011). The Fourth Circuit appeared to recognize that the district court could make a meaningful determination of petitioner’s pas t honorable service for purposes of naturalization by analyzing applic able statutes, regulations , the factual circumstances of the case, and analogous cases. See id. at 142–144. 18 DOD is arguably judicially est opped from changing its position based on a change in litigation interests. See New Hampshire v. Maine , 532 U.S. 742, 749–51 (2001).24 the Court can judge agency action in this context. B. Claims under APA § 706(2) Because plaintiffs have establish ed that DOD’s actions are revi ewable, the Court will proceed to consider whether plaintiffs can demonstrate a likeli hood of success in showing that DOD’s October 13th Guidance is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 19 1. Arbitrary and Capricious DOD concedes that prior to its O ctober 13th Guidance, it had no formal written guidance on the meaning of “honorable servi ce” for purposes of certifyin g N-426s. (10/18/2017 Tr. at 16– 17, 24, 45, 66.) In the past, some DOD officials appear to hav e waited until enlis tees entered IET to certify N-426s, while oth ers certified N-426s before IET based on a Selected Reservist’s qualifying drill periods. But i n all cases, certification deci sions were based on enlistees’ service as of the time they submitted an N-426. Early in the Nio and Kirwa litigation, DOD represented to this Court that it planne d to change its N-426 policy to onl y permit certification for MAVNI enlistees who were se rving in an active-duty status. On the ev e of the October 18th hearing, DOD, facing the probability that such a policy would be found t o violate 8 U.S.C. § 1440(a), changed course yet again, offeri ng a new set of criteria that w ould allow it to further prolong certification of Selected Reservists’ N-426s. DOD offered no reasoned explanation f or this change, thereby su ggesting that DOD’s decision was an arbitrary and capricious one. See, e.g. , Am. Wild Horse Pres. Campaign v.
Perdue , No. 15-5332, 2017 WL 4385259, at *5–10 (D.C. Cir. Sept. 29, 2 017); Jicarilla Apache

19 Defendants do not contest that DOD’s current N-426 policy repr esents final a gency action. 5 U.S.C. § 704.25 Nation v. U.S. Dep’t of Interior , 613 F.3d 1112, 1120 (D.C. Cir. 2010) (“[W]e have never approved an agency’s decision to c ompletely ignore relevant pre cedent”). “A central principle of administrative law is that, whe n an agency decides to depart fr om decades-long past practices and official policies, the agency must at a minimum acknowledge the change and offer a reasoned explanat ion for it.” Am. Wild Horse Pres. Campaign , 2017 WL 4385259, at *5. Specifically, the D.C. Circuit has long required a “reasoned analysis indica ting that prior policies and standards are being deliber ately changed, not casually igno red.” Lone Mountain Processing, Inc. v. Sec’y of Labor , 709 F.3d 1161, 1164 (D.C. Cir. 2013) (citation omitted). “Fa iling to supply such analysis renders the agency’s action arbitrary and capricious.” Id

. At the October 18th hearing, defend ants made the curious argume nt that its October 13th Guidance was not subject to judi cial review and required no exp lanation because no formal policy existed before Octobe r 13, 2017. (10/18/2017 Tr. at 41, 45.) On the contrary, “the agency must show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 515 (2009). For purposes of arbitrary-and-capric ious review, the APA “makes no distinction . . . between i nitial agency action and subsequent agency action undoing or revising that action.” Id. ; see also Loving v. IRS , 742 F.3d 1013, 1021 (D.C. Cir. 2014) (an agency’s “interpretation [of a statute] , whether old or new, must be con sistent with the statute”); Handley v. Chapman , 587 F.3d 273, 282 (5th Cir. 2009) (expl aining that courts rev iew a policy change under the same standards as a “ policy drafted on a blank slate” ). Whether DOD is taking an initial agency action or cha nging a longstanding policy, or pra ctice, it still must provide a reasoned explanati on for its action. In an attempt to explain the cha nge, defendants’ counsel repeat ed the now-familiar refrain that DOD has ma de the change for “national security” pu rposes. (10/18/2017 Tr. at 60–26 61.) But DOD’s Guidance is notjustified by any national securi ty concerns. As the Court recognized in Nio , national security issues may justify enhanced s ecurity screening, see Nio , 2017 WL 3917006, at *8, 11, 13, but N-426 certification is not related to that process. Importantly, DHS/USCIS is holdi ng all MAVNI naturalization appl ications pending DOD’s enhanced security screening so no MAVNI enlistee will naturaliz e until DOD completes the screening. And, even if a MAVNI e nlistee were to slip through the cracks and obtain citizenship before screening had been compl eted, 8 U.S.C. § 1440(c) provide s for revocation of citizenship if a person is separated under other than honorable conditions. Moreover, DOD fully controls what these enlistees do and have access to before the enhanced security screening is complete. Therefore, DOD has given no reas oned justification why certifyi ng a form N-426 for immigration and naturalization purposes implicates our national security. Furthermore, despite its asser tions to the contrary, DOD does n ot control the naturalizatio n process. ( See PI Opp. at 38 (“DOD’s new polic y marks an effort to . . . set standards for a naturalization p rocess that has been greatly ch allenged by nati onal security threats.”).) So DOD’s unfounded a ttempt to control criteria fo r naturalization does not constitute a reasonable explanation for the October 13, 2017 policy change here. 2. Retroactivity The October 13th Guidance also su ffers from another potential f law: It retroactively changes standards and procedures applicable to service members who enlisted prior to October 13, 2017. When plaintiffs enlisted, the government told them t hat they would receive N-426s either after just one day of qualifying service (e.g., a drill with their Selecte d Reserve unit), or within around 180 days when they s hipped to basic training. Atthat point, they would be able to apply for naturalization. The pr ocess to receive an N-426 was to take approximately 180 days.27 Now, DOD says that it will cert ify plaintiffs as having served honorably only if three new conditions are met: (1) they a re not the subject of any pending disciplinary action or pending adverse administrative action o r proceeding, and are not the su bject of a law enforcement or command investigation; (2) they h ave completed applicable scree ning and suitability requirements; and (3) they have s erved in a capacity, for a per iod of time, that permits DOD to make “an informed determination” as to whether such service was honorable. (10/13/2017 Guidance at 3.) These open-e nded requirements will double and possibly even triple the time it takes for plaintiffs to receive N-426s, for the Tier 5 investig ation, just one step in the screening process, will take over 400 days . DOD represented to plaintiff s that they would naturalize, or at least have the protection of be ing in the process of pursuing expedited citizenship, shortly after enlistment. Instead, the Octobe r 13th Guidance stands in stark contrast since the new projected timetable deprives the enlistees of their right to apply for an expedited path to citizenship. 20 Admittedly, the jurisprudence relevant to retroactivity in the context of administrative law involves either rulemaki ng by notice and comment or adjudic ations, but the principles that govern these cases are also rel evant to DOD’s Guidance. DOD ha s consummated its decisionmaking process and seeks to apply its decision in a con crete way that determines legal

20 In exchange for enlisting in t he military for a total of 8 yea rs’ service, DOD promised MAVNI enlistees the right to apply f or an expedited path to citizensh ip. The MAVNI Information Paper, signed by plaintiffs and a DOD official at the time of enlistme nt, provided that “The Army, along with [USCIS] has implemented expedited citizenship processing.” ( MAVNI Information Paper at 3 (emphasis added).) Furtherm ore, the legislative history t o 8 U.S.C. § 1440 explains that it was meant to “provide[] expedite d naturalization for members of the Selected Reserves during military conflicts.” National De fense Authorization Act for Fi scal Year 2004, Pub. L. No. 108- 136, 117 Stat 1443, S7280 (2003). USCIS’s Policy Guidance confi rms this. See USCIS Policy Manual, Vol. 12, Part I, Ch. 1, § A (“Members of the U.S. armed forces and their families are eligible for natura lization and ensure th at qualified applicant s are naturalize d expeditiously through the military provisions.”) Therefore, DOD is depriving enlistees of their lawful right to apply for expedited citizenship.28 rights and obligations of plain tiffs and similarly-situated ind ividuals. See Bennett v. Spear , 520 U.S. 154, 177–78 (1997). “Generally, an agency may not prom ulgate retroactive rules with out express congressional authorization.” Arkema, Inc. v. EPA , 618 F.3d 1, 7 (D.C. Cir. 2010). At the very least, precedent explains that a retroactive agency action is i mpermissible if it is arbitrary and capricious. Nat’l Petrochemical & Refiners Ass’n v. EPA , 630 F.3d 145, 159 (D.C. Cir. 2010). As previously explained, plain tiffs are likely to succeed in pr oving that the October 13th Guidance is arbitrary and capricious. 21 In arguing against retroactiv ity, defendants claim that they ha ve only interpreted 8 U.S.C. § 1440. However, even interpretati ons can be impermissibly ret roactive if they “change[] the legal landscape.” Arkema , 618 F.3d at 7; see also Nat’l Min. Ass’n v. Dep’t of Labor , 292 F.3d 849, 860 (D.C. Cir. 2002). Under D.C. Circuit precedent, a new rule or policy changes the legal landscape if it “is ‘substantivel y inconsistent’ with a prior a gency practice and a ttaches new legal consequences to events comple ted before its enactment.” Arkema , 618 F.3d at 7 (citation omitted). “E ven where a rule merely narrows ‘a range of possi ble interpreta tions’ to a single ‘precise interpretation,’ it ma y change the legal landscape in a way that is impermissibly retroactive.” Id. ; see also Nat’l Min. Ass’n , 292 F.3d at 859. Put another way, if the new rule

21 As now Justice Gorsuch explained, [T]he more an agency acts like a legislator—announcing new rule s of general applicability—the clo ser it comes to the norm of legislation an d the stronger the case becomes for limiting application of the agency’s decision to future conduct. The presumption of prospectivit y attaches to Congress’s own wor k unless it plainly indicates an intention t o act retroactively. That same presumption, we think, should attach when Congress’ s delegates seek to exercise delegated legislative policymaking author ity: their rules too should be p resumed prospective in operation unless Congress has clearly authorized retroactive application. De Niz Robles v. Lynch , 803 F.3d 1165, 1172 (10th Cir. 2015).29 “effects a substantive change from the agency’s prior regulatio n or practice,” then it is impermissibly retroactive. Ne. Hosp. Corp. v. Sebelius , 657 F.3d 1, 14 (D.C. Cir. 2011) (citation omitted). There can be no dispute that the October 13th Guidan ce changes the legal landscape: DOD has never applied the crite ria listed therein to MAVNI enli stees before now. By promulgating the October 13th Guida nce, DOD attaches new legal meaning to the concept of honorable service in the S elected Reserve. Assuming arguendo that DOD has authorization to interpret an immigration statut e, DOD’s “interpretation” of 8 U .S.C. § 1440 clearly marks a substantive change from its pa st practice of certifying a Form N-426 based on an enlistee’s past service at the time he submits the N-426 for certification. Furthermore, “if the separati on of powers doesn’t forbid this f orm of decisionmaking outright, . . . second- order constitutional prot ections sounding in due process and equal protection, as embodied in our longstanding traditions an d precedents addressing retroactivity in the law” might otherwise constrain retroactive application. De Niz Robles v. Lynch , 803 F.3d 1165, 1171–72 (10th Cir. 2015) (Gorsuch, J.). Any re troactive policy must have “sufficiently significant statut ory interests” to counterbalanc e any “resulting ine quities” from the retroactive agency action. Chadmoore Commc’ns, Inc. v. FCC , 113 F.3d 235, 240 (D.C. Cir. 1997); see also Garvey v. Nat’l Transp. Safety Bd. , 190 F.3d 571, 584 (D.C. Cir. 1999) (“An agency is also barred from applyi ng a new rule in the adjudicat ion in which it is announced if doing so would work a ‘manifest i njustice.’”) (citation omitted ). Before the October 13th Guidance MAVNI enlistees had a r ight to apply for an expedited path to citizenship and DOD’s new procedures rob plain tiffs of this opportunity. The Court is therefore convinced that DOD’s application of the October 13th G uidance could result in seriou s inequities that are not30 counterbalanced by any signifi cant statutory interests. C. Claims under APA § 706(1) Plaintiffs also claim DOD’s N -426 policy violates 5 U.S.C. § 70 6(1), which authorizes a reviewing court to “compel age ncy action unlawfully withheld or unreasonably delayed.” Id. To show that DOD has unlawfully wit hheld issuance of the N-426s, p laintiffs must demonstrate that DOD “failed to take a discrete agency action that it is required to take .” Norton , 542 U.S. at 64. “This standard reflects the comm on law writ of mandamus, which the APA ‘carried forward’ in § 706(1).” Anglers Conservation Network v. Pritzker , 809 F.3d 664, 670 (D.C. Cir. 2016) (citing Norton , 542 U.S. at 63). “Thus, § 706(1) gra nts judicial review only if a federal agency has a ‘ministerial or non-discr etionary’ duty amounting to ‘a s pecific, unequivocal command.’”
Id. (citing Norton , 542 U.S. at 63–64). As explained in Part III.A, defendants have a ministerial duty to certify Form N-426s. Under 8 U.S.C. § 1440, certification of Form N-426s is a non-di scretionary duty to the extent that it references past honorable service. 8 U.S.C. § 1440(a); see Meina Xie v. Kerry , 780 F.3d 405, 408 (D.C. Cir. 2015). Defendants have refused to take any action on plaintiffs’ N-426s. Based on the record and for the r easons discussed herein, the C ourt concludes that plaintiffs are likely to succeed in proving—at l east for MAVNI enlistees who h ave enlisted prior to October 13, 2017, and who completed sufficient service in the Selected Reserve—DOD must expeditiously certify or deny t heir N-426s based on their exist ing military records.
D. Claim under Mandamus Act “To show entitlement to mandamus , plaintiffs must demonstrate ( 1) a clear and indisputable right to relief, ( 2) that the government agency or official is viola ting a clear duty to act, and (3) that no adequate a lternative remedy exists.” Am. Hosp. Ass’n v. Burwell , 812 F.3d31 183, 189 (D.C. Cir. 2016). Having found that plaintiffs are li kely to succeed on the merits of at least one of their APA claims, the Court need not reach plainti ffs’ mandamus claim. See Cheney v. U.S. Dist. Court for D.C. , 542 U.S. 367, 379 (2004) (noting that “mandamus may not issue so long as alternative avenues of relief remain available”).
III. IRREPARABLE HARM Irreparable harm requires “sufficient evidence that the [movant ’s] purported injury is certain, great, actual, immi nent, and beyond remediation.” Save Jobs USA v. U.S. Dep’t of
Homeland Sec. , 105 F. Supp. 3d 108, 112–13 (D.D.C. 2015); see also Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 297 (D.C. Cir. 2006) (desc ribing the standard f or irreparable harm). The record shows that DOD’s N-426 policy is causing irr eparable harm to plaintiffs. Prior to 2017, DOD certified N-426s for MAVNI enlistees on the same day, or the day after, the N-426s were filed. ( See Nio PI Exs. 26–32.) With N-426 in hand, MAVNI enlistees could pursue their promised pat h to expedited citizenship. Eac h named plaintiff is a MAVNI enlistee, serving in the Selecte d Reserve, who has attended dri lls with their units, and been compensated for that particip ation. (Kirwa Decl. ¶ 5; Meenhall imath Decl. ¶ 5; Viswanathan Decl. ¶ 5.) Since April 2017, plaint iffs have requested that D OD certify their Form N-426s, but DOD has refused. (Kirwa Decl. ¶¶ 8–9; Meenhallimath Decl. ¶¶ 6 –10; Viswanathan Decl. ¶¶ 7– 11; PI Mot. Exs. 12–13.) DOD cannot indefinitely delay certifi cation of plaintiffs’ Form N-426s without lawful justification, which, as discussed supra Part II.A, they have not provided. As held in Nio , delaying naturalizatio n applications after applicants have be en promised an expedited path to citizenshi p constitutes irreparable harm. Nio , 2017 WL 3917006, at *9; see also Hamandi v. Chertoff , 550 F. Supp. 2d 46, 51 (D.D.C. 2008); Vargas v. Meese , 682 F. Supp. 591, 595 (D.D.C. 1987). And, this Cour t is not the only one to reco gnize that undue delay in the32 naturalization cont ext is harmful. See, e.g. , Roshandel v. Chertoff , 554 F. Supp. 2d 1194, 1200– 01 (W.D. Wash. 2008) (granting cla ss certification of a class o f naturalization applicants seeking injunctive relief to end delay i n application processing arisin g from pending FBI name checks, and noting that plaintiffs were statutorily “entitled to a natu ralization decision by USCIS”), amended in part , No. C07-1739, 2008 WL 2275558 (W. D. Wash. June 3, 2008). 22 Defendants argue that plaintiffs are not harmed because they can still fil e for naturalization a fter they receive their N-426s. This argument is nothing short of illogical. Th e government represented to plaintiffs that, in exchange for 8 years of military service, t hey would be able to pursue an expedited path to citizenship shortly after enlistm ent. Now that time has been e xtended by two or three years. Furthermore, every day of dela y leaves plaintiffs in limbo and in fear of removal. (Compl. ¶¶ 8–9.) 23 Plaintiffs live in constant fear that they will lose their wo rk or student visas, 24

22 In the context of constitutional deprivations, irreparable har m may be presumed simply because of a delay in the ability to exercise constitutional ri ghts. Aziz v. Trump , 234 F. Supp. 3d 724, 737 (E.D. Va. 2017) (“As a matte r of law, the threat of an Establishment Clause violation in and of itself constitutes i rreparable harm.”) (citing Newsom v. Albermarle Cnty. Sch. Bd. , 354 F.3d 249, 261 (4th Cir. 2003)); Hill v. Williams , No. 16-cv-02627, 2016 WL 8667798, *9 (D. Col. Nov. 4, 2016) (unpublished) (“Where First Amendment rights are at issue, ‘the loss of First Amendment freedoms, for even minimal periods of time, unquestio nably constitute s irreparable injury.’”) (quoting Elrod v. Burns , 427 U.S. 347, 373–74 (1976)). “[I]t is well-established that acts by Government agencies in de rogation of statutory rights o f the public or certain individual members of the public can constitute irreparable injury.” Gates v. Schlesinger , 366 F. Supp. 797, 800 (D.D.C. 1973). Here the delay “vi olates a statutory right to timely decision making,” see Mexichem Specialty Resins, Inc. v. EPA , 787 F.3d 544, 557 (D.C. Cir. 2015), and that delay cannot be repaired by damages award ed later or by further adjud ication.
23 DOD has informed MAVNI enlist ees “[i]f you are discharged from the Army before you become a citizen you may no longer have a valid immigration sta tus.” (PI Mot. Ex. 15, at 2.)
24 Defendants do not dispute that military enlistment exhibits an intent to immigrate, which can jeopardize any non-immigrant visastatus. For example, Current DHS guidance indicates that “compensation during Reserve dut y . . . marks the beginning of employment and the [Designated School Officials] must terminate the [Student and Exchange Visi tor Information System] SEVIS record.” (PI Mot. Ex. 14, at 3; see also Kirwa Decl. ¶ 2 (entered US on a student visa).)33 or be discharged, deported, and subj ect to harsh punishment in their country of origin for joining a foreign military. (Compl. ¶ 72.) Defendants maintain that a fear of deportation is too speculative to establis h irreparable harm. It is true that som e courts have found, in some circumstances, that a risk of deportation is t oo speculative to show irreparable harm, see Carlsson v. U.S. Citizenship & Imm. Servs. , No. 12-7893, 2012 WL 4758118, at *9 (C.D. Cal. Oct. 3, 2012) (unpublished), but that is not the issue here for plaintiffs suffer from more than mere fear. See Vargas , 682 F. Supp. at 595 (“[T]o deny plaintiffs the right of filin g in this country is to deny them of the be nefits of protection from depo rtation and work authorization, as well as the right to travel outsi de this country w ithout forfei ting these benefits.”) DOD is blocking access to an existing leg al avenue for avoiding remova l. See Santillan v. Ashcroft , No. 04-2686, 2004 WL 2297990, at *12 (N. D. Cal. Oct. 12, 2004) (unp ublished) (granting class certification to persons pursuing l awful permanent resident sta tus “to whom USCIS ha[d] failed to issue evidence of r egistration”). By prev enting plaintiffs from submitting valid naturalization applications to USCIS, defendants are depriving plaintiffs of “ lawful presence” for purposes of ICE enforcement. ( See Nio , Declaration of Rachel Can ty, July 28, 2017, ECF No. 25-3, ¶ 6 (explaining that lawful presence “describes the result of notif ying an alien that DHS has made a non-binding decision to forbear fro m pursuing his removal for a period of time.”).) Pretending otherwise ignores ICE’s own repre sentations: (1) “Generally ICE does not initiate removal proceedings against individuals i n the [MAVNI] program if they have no valid immigration status, so long as they can demonstrate active partic ipation in the MAVNI program and have a naturalization applicati on pending with [USCIS] ,” (Asher Decl. ¶ 5 (empha sis added)), and the submission of a MAVNI “applicatio n provides the enlistee continued lawful presence in the United States while the applic ation is pending.” (PI Mot. Ex. 14, at 2.) While it is true that34 plaintiffs are not guaranteed that they will not be discharged before attaining citizenship, the threat of removal proceedings, w hich plaintiffs face without ce rtified N-426s, is a serious one. See Padilla v. Kentucky , 559 U.S. 356, 373 (2010) (describing “[t]he severity of depor tation” as “the equivalent of bani shment or exile”). In sum, defendants’ refusal to certify plaintiffs’ N-426s based on their past honorable service causes irreparable in jury to plaintiffs and the propose d class.
IV. HARM TO DEFENDANTS/PUBLIC IN TEREST/BALANCE OF THE EQUITIES Finally, the Court concludes th at the balance of equities favor s plaintiffs. As explained in Part III, plaintiffs are suffering, and will continue to suffer , irreparable harm due to DOD’s inaction, and as explained supra Part II.B.1, defendants have not o ffered sufficient justificati on for their policy change.
V. PROVISIONAL CLASS CERTIFICAITON For purposes of preliminary injunc tive relief, plaintiffs seek provisional cla ss certification of a proposed class of (1) MAVNI e nlistees, (2) who have served in the Selected Reserve, and (3) have not received a completed Form N-426. See R.I.L-R v. Johnson , 80 F. Supp. 3d 164, 179–80 (D.D.C. 2015). In granting provi sional class certificat ion “the Court must still satisfy itself that the requirements of Rule 23 have been met. Its ana lysis is tempered, however, by the understanding that ‘such certifi cations may be altered or amend ed before the decision on the merits.’” Id. at 180 (internal citations omitted) . After reviewing the recor d, the Court has concluded that the requireme nts of Rule 23 have been met, and d efendants have failed to offer any meritorious reasons as to w hy provisional class certificati on is not appropriate. The Court will, however, modify the class t o only include MAVNI enlistees who enlisted before October 13, 2017 because the October 13th Gui dance has different criter ia for MAVNI enlistees who35 enlisted on October 13, 2017 and after.
CONCLUSION For the reasons stated above, the Court grants plaintiffs’ mot ion for a preliminary injunction and provisional class ce rtification. A separate ord er, ECF No. 28, accompanies this Memorandum Opinion.

/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge

Date: October 25, 2017