Immigration Law

Immigrant soldier sues Defense Department for discharging him without explanation

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A private in the U.S. Army Reserve has sued the Army for discharging him without warning or explanation, apparently because of his participation in a program for immigrants.

As the Associated Press reported July 5, the U.S. Army has been discharging soldiers who are not U.S. citizens. That includes Lucas Calixto, the private second class who sued the Army on June 28 for his sudden discharge. Calixto’s complaint says he was let go without any stated reason—but under “additional instructions,” the discharge form noted “MAVNI—Military Personnel Security.”

MAVNI is the Military Accessions Vital to the National Interest program, which permits certain immigrants who are not citizens or green card holders to enlist in the military if they have skills the military needs. Such service members were promised an “expedited” path to U.S. citizenship. Calixto, 28, is a Brazilian national who came to the United States at age 12.

“Now the great feeling I had when I enlisted is going down the drain,” Calixto told the AP. “I don’t understand why this is happening.”

Calixto enlisted in the Army Reserve in early 2016 and has not been subject to any discipline or complaints, according to the complaint. In fact, it says, he was promoted to private second class shortly before his discharge. His lawsuit argues that the Army violated its own rules, Department of Defense rules and his due process rights by offering no explanation or chance to respond. Army regulations require that someone who is the subject of an “unfavorable administrative action” should be given a comprehensive, detailed written statement of the reasons for the action, and a chance to respond.

Calixto’s lawsuit asks the court to revoke the discharge order and issue a declaratory judgment saying the Army failed to follow its own rules.

Margaret Stock of Cascadia Cross Border Law Group in Anchorage, Alaska. ABA Journal file photo by the Canadian Press Images/Michael Desjardins.

Calixto’s not alone, according to the AP. The wire service found more than 40 such individuals through talking to immigration attorneys. Margaret Stock, an Anchorage immigration lawyer who is a retired lieutenant colonel in the Army Reserve, told the AP she’d received numerous messages in recent days from immigrant recruits who’d been discharged suddenly. All had enlisted and taken their oaths; many were in the reserve.

Stock, who does not represent Calixto, said soldiers told her the Pentagon had not been able to do an extensive background check. Then, they said, the Army said they had failed their background checks.

“Immigrants have been serving in the Army since 1775,” said Stock, an ABA member who received a MacArthur “genius grant” in 2013 and planned to use it to publicize the benefits of immigration. “We wouldn’t have won the revolution without immigrants. And we’re not going to win the global war on terrorism today without immigrants.”

The MAVNI program—which the AP says Stock helped devise—was an attempt to boost military recruiting and help find personnel with medical skills or fluency in 44 specified languages. Nearly 110,000 members of the Armed Forces have become citizens since 2001, the Defense Department told the AP. A RAND Corp. study found that these recruits were generally more cost-effective than their native-born peers.

But the program has faced political opposition, particularly since former President Barack Obama expanded it to include recipients of the Deferred Action for Childhood Arrivals program. The military responded with more security checks, and the Trump administration added to those, creating a backlog. Congressman Andy Harris, R-Maryland, told the AP he wants to limit MAVNI and “prioritize enlisting American citizens.”

Enlisting American citizens may be tough, as Business Insider reported in March. That’s partly because of low unemployment, which tends to drive down recruiting, and partly because not every American has the necessary medical, educational and criminal-record background.

That article noted that the military ended expedited naturalization after basic training—part of the MAVNI program—at the beginning of 2018, and has closed the offices of U.S. Citizenship and Immigration Services on Army bases that handle basic training.

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