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Deported Immigrant Veterans And The Failed Promises Of Military Citizenship

– Posted in: Immigration Law, Policy & Politics | Citizenship And Naturalization

When it comes to immigration, quite often, the more things change, the more they remain the same.

For instance, over ten years ago, in my capacity as a citizenship and naturalization lawyer, I wrote a series of articles that explained why Congress should pass legislation approving waivers for immigrant veterans who committed certain offenses, related to mental illnesses caused by their military service, making them subject to automatic deportation.

I was shocked to learn about the number of immigrant veterans, facing removal, who were incarcerated at the El Centro, California Dentention Facility, alongside individuals whom I represented.  Thus, I endeavored to tell their story, the story of expedited citizenship which never materialized for them.

Obama was president then.  Trump is president now.

The issue persists.

As a result, the Military Times, a military-based newspaper, was compelled to recently ask, “Should Deported Veterans Be Allowed To Come Back To America?

Unfortunately, the topic is as clouded today by the same type of xenophobic rhetoric as ten years ago.

Why Military Veterans Face Deportation After Honorable Discharge

In order to adequately address the circumstances surrounding deported military veterans, four factors need to be explored:

  • The historical role and significance of immigrants in the armed services
  • The unique paths to citizenship for military registrants created by Congress
  • The relationship between disabilities suffered during service and crimes committed after discharge
  • The impact of immigration laws written over two decades ago regarding punishment for commission of drug-related offenses

The History Of Immigrants In The Military

Under the current administration, the presence of immigrants serving in the armed forces  has been largely portrayed in a negative light.

Yet, immigrants have long played a major role in the military history of this nation.

According to USCIS, foreign-born recruits composed half of all military personnel as far back in the 1840s and constituted 20 percent of the 1.5 million service members of the Union Army during the Civil War.

More recently, a study by the Migration Policy Institute has shown there are about 511,000 individuals, born outside the United States, who are members of the armed services.

Based on place of birth, the largest contingencies are immigrants born in Mexico (83,000) and the Philippines (68,000).  These are followed by individuals from Germany, Canada, Haiti, India, the United Kingdom, the Dominican Republic, China, and Italy.

Of currently enlisted immigrants, 40.9 % are in the Navy, 22.9 % in the Army, 20.7% in the Air Force, and 15.5% in the Marine Corps.

There are another 1.5 million individuals in the service today whose parents are not U.S. citizens.  Combined, that totals over two million active members of the military with deep immigrant roots.

Further, 20% of all Congressional Medals of Honor have been given to immigrants in the service for their contributions beyond the call of duty.

What Is Expedited Naturalization Through Military Service?

When immigrants join the military, they are put on a path of expedited citizenship. If they serve honorably for one year during a period of peacetime, they are eligible to apply for naturalization under INA section 328.

Under INA section 329, those who serve honorably during a designated period of hostility are able to submit their application after one day of honorable service.

This means applicants do not have to wait the normal statutory period of 3 – 5 years after becoming a lawful permanent resident before seeking to become U.S. citizens.

Of course, the expedited process does not guarantee they will be granted citizenship.  But if they meet all the other naturalization requirements, immigrants in the military are entitled to the benefits of U.S. citizenship despite the shorter waiting period in green card status.

Flawed Procedures Or Flawed Commitment To Immigrants?

According to a Government Accountability Office report issued on June 6, 2019, the 75th anniversary of D-Day Normandy landings, the U.S. Custom and Enforcement (ICE) did not consistently follow its policies involving veterans who were placed in removal proceedings from fiscal years 2013 through 2018.

The report also noted, to date, ICE does not have procedures in place to identify military veterans it encounters as part of the deportation process.  Equally disturbing, ICE does not know how many immigrant veterans have been deported.

Although the exact number of deportees is unknown, it is estimated that there have been 3,000 immigrant veterans, born in 34 different countries, for whom the process of military citizenship was never completed.

More often than not, this happened due to bureaucratic errors and oversights, leaving these veterans unexpectedly vulnerable to expulsion several years subsequent to their honorable discharge from duty.

The MAVNI Program For Legal Non-Permanent Residents

In 2008, the government hatched a program known as the Military Accessions Vital To The National Interest (MAVNI).

The goal was to recruit immigrants not yet permanent residents – legal non-immigrants, persons who qualified for temporary benefits under programs like Temporary Protected Status (TPS) and Deferred Action For Childhood Arrivals (DACA) – with greatly-needed medical expertise or 30 different strategically important foreign language abilities.

For the vast majority of MAVNI applicants, the promise of expedited citizenship loomed large.  Yet, by 2017, the program was closed due to national security fears.  Increased screening procedures were imposed, leading to the discharge of several enrollees, all without having being able to seek military-based naturalization.

In short, the promises of citizenship made to several hundred legal non-immigrants, as well as to many permanent residents, have been largely unfulfilled.

How Has PTSD Affected Lawful Permanent Resident Veterans? 

The sad truth is that in war, there are no winners.

It’s just a matter of degree.

Both sides lose.  One side loses less.

In particular, those who are assigned to a combat zone, whether on the winning or losing team, suffer setbacks which often last their entire lives.

It is not uncommon for young soldiers, who join the armed forces as carefree, easy-going individuals, upon discharge, come back battle-scarred and struggle to transition back to everyday life.

During my 20+ years as a San Bernardino immigration attorney, I’ve seen far too many instances of this reality.

Studies show one of four veterans, including both immigrants and citizens, return home with mental health, depression, and post traumatic stress disorder (PTSD) infirmities.

Moreover, it is estimated that at least 12% of veterans who served the military in the recent Iraq and Afghanistan conflicts suffer from post traumatic stress disorder (PTSD) but have not yet been formally diagnosed.

Almost all of the 3,000 immigrant veterans who have been deported suffer from PTSD and traumatic brain injury. In the majority of these cases, the war-related injuries cause them to engage in substance abuse for temporary relief. Their  dependency on drugs, in turn, led to legal problems.

Adding Insult To Injury: Mental Trauma, Drug Abuse, And Deportation

For immigrants, most legal problems linked to drugs do not stop with jail time.  As an added consequence, their convictions earns a referral to immigration court, where they must now face deportation charges and separation from their families.

The end result is that 3,000 immigrant military veterans who honorably served the U.S. during wars in Vietnam, Grenada, Libya, Iraq, and Afghanistan have been stripped of their lawful permanent resident status and deported, even though many of the sentences only imposed minimal periods of incarceration.

The roots of such outcomes can be traced back to 1996, when Congress passed the Illegal Immigration Reform And Immigrant Responsibility Act, legislation which blurred the lines between major and minor convictions.

Under IIRAIRA, Congress stripped away a provision allowing lawful permanent residents to show proof of rehabilitation after commission of certain crimes. The old rule was based on a belief that no one is morally perfect. Second chances were possible.

Not any longer.

Second, Congress heightened the classification of particular convictions as they relate to immigration law. Various crimes, including relatively minor and non-violent offenses, were legislatively characterized as aggravated felonies.

And under immigration law, the term “aggravated felonies” is a code word for automatic deportation.

This means, at immigration court hearings, judges cannot weigh whether specific crimes are major or minor. They lack discretion to determine if an immigrant, despite deep family roots, commendable community service, and a small state jail term, should be allowed to remain in the U.S. based on a balancing of their positive equities vis-a-vis their negative blemishes.

The Ordeal Of Fighting Back Against Aggravated Felonies

There have been a few successes in the battle to offset the harshness of IIRAIRA on deported immigrant veterans.  But victories have been few and far between.

Governor Pardons Three Immigrant Veterans With Exemplary Proof Of Rehabilitation

In April 2017, California Governor Jerry Brown granted three immigrant veterans pardons for crimes they committed.  Since these crimes were the basis of the deportation orders against them, the pardons restored them to a position of citizenship eligibility.

Two of the pardoned veterans, Marco A. Chavez and Erasmo Apodaca, had been in the Marines. The third person, Hector Barajas-Varela, served in the Army.

In his official statement, the governor emphasized that “A pardon is usually granted to individuals who have demonstrated exemplary behavior and have lived productive and law-abiding lives following their conviction.”

The pardons were sparked by Discharged, Then Discarded, a report published by the American Civil Liberties Union.

New State Law Enables New Motions To Reduce Classification Of Convictions

In September 2018, Fabian Rebolledo was able to return to the United States after being deported in 2012. He was convicted for trying to cash a forged check for $750.00 dollars, which had been paid to him for work he performed.

At the time, his conviction was a felony under California law. At immigration court, his conviction fell under the aggravated felony conviction provisions. Hence, he was ordered removed to Mexico.

In 2015, California Proposition 47 went into effect, reducing nonserious and nonviolent property and drug crimes from felonies to misdemeanors. After Rebolledo’s offense was reduced in state court, a motion to reopen his removal case was filed with the Board of Immigration Appeals.

When that motion was granted, his case was returned to the immigration court where his permanent resident status was restored, allowing him to lawfully return to the United States.

A Glimmer Of Hope: Deported Veterans Legislation

There is some good news.

Two recent pieces of legislation offer a glimmer of hope.

Veterans Visa And Protection Act (Senate Bill 1704)

Introduced by Illinois Senator Tammy Duckworth, S. 1704 would ban the deportation of veterans who have not been convicted of crimes of violence or crimes which endanger national security for which the term of punishment was less than five years in prison.

Waivers may be granted for humanitarian, family unity, public interest, or exceptional military service.

Repatriate Our Patriots Act (House of Representatives Bill 3429)

Under H.R. 3429, sponsored by Alaskan Congressman Don Young, immigrant veterans  honorably discharged from military service would be defined as “special immigrants” for immigration purposes.

For those designed as special veterans, the Department of Homeland Security would be required to rescind any orders of removal and any finding that the individual is subject to deportation or inadmissibility  Additionally, special veterans would be reinstated to the status of permanent residents.

However, they would be excluded from special immigrant immigration protections if they have been convicted of voluntary manslaughter, murder, rape, sexual abuse of a minor, terrorism-related offenses, or determined to be a child abuser or pedophile.

Although S. 1704 and H.R. 3429 are steps in the right direction, both measures focus on the legal consequences, not the medical causes.

A comprehensive solution would address situations were the commission of the more serious offenses might, too, be the product of mental health issues.

Under such an approach, state courts would implement drug and mental health treatment centers to evaluate the seriousness of mental health, depression, and post traumatic stress disorder illnesses.

Nonetheless, immigrant advocates should support both bills without hesitation.

What Will It Take For Congress To Protect Deported Immigrant Veterans?

Is it realistic to expect their passage?

Probably not . . .  . . yet.

During the interim six years since I last wrote about the need to create a special immigrant military veterans waiver, little legislative progress has occurred.  Immigrant veterans have continued to be deported without any options for relief and separated from their families.

On the public level, negative attitudes towards immigrants have heightened,  The voices of prejudice, racism, and xenophobia have grown louder.

But a positive difference now is that the issue of deported veterans is out of the closet.

Despite not being a major part of the everyday media radar, the matter is on the legislative agenda in Washington.    .

With your support, and those you know, it is possible that passage could occur, if not now, possibly in the relatively near future.

So make noise, spread the word, and help reunite the families and restore dignity to the lives of deported immigrant veterans who should have been accorded citizenship status long ago.

In other words, some things have changed for veterans facing removal from the United States. But it’s our role to ensure the results don’t remain the same.

By Carlos Batara, Immigration Law, Policy, And Politics