Thanks for your service... now get out of my country

Friedrich von Steuben, a Prussian military officer, was granted American citizenship for his service during the Revolutionary War. A citizen of France, the Marquis de Lafayette fought alongside George Washington in the same war. During the Civil War, more than 20% of those who served for the North were foreign born. About 18% of our troops in World War I were immigrants. Over 300,000 immigrants served in the U.S. forces during World War II. And so it has continued throughout our seemingly never ending wars. By 2016, there were approximately 511,000 foreign-born veterans.

When there are not enough U.S. citizen recruits to meet the military's demands, foreigners often fill critical roles, providing cultural, language and other skills vital to military operations. More than 20% of persons who received the Congressional Medal of Honor have been immigrants.

The Veterans Naturalization Assistance Program estimates there are over 100,000 noncitizen veterans in the U.S. No one seems to know exactly how many persons who served in our armed forces have been deported after they were discharged from the armed forces. But the estimates are in the thousands. U.S. Immigration and Customs Enforcement sometimes waits for troops to return from deployment and separate from the military, then meets them at the airport when they're on their way home, and places the new veterans into removal proceedings.

This is not the America we know and love.

Some don't realize they aren't citizens

At a symposium on deported veterans presented by the University of Southern California and the Center for Law and Military Policy in March, one of the speakers, attorney Margaret Stock, a woman the Washington Times wrote was "the foremost authority on military veterans facing deportation," said that recruiters often tell noncitizens they will become citizens when they take the military oath.

It is not surprising that noncitizen recruits believe what the recruiters tell them. The oath of enlistment states: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."

The oath of citizenship states in part: "I hereby declare, on oath, that I ... I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God."

Senator Tammy Duckworth spoke at the symposium. She described one former soldier who didn't realize he wasn't a citizen. He had twice been deployed to combat zones. He was on his way to the doctor for treatment of his post-traumatic stress disorder when he was arrested, placed in a holding cell and then deported.

The D-word for citizen versus noncitizen veterans

When veterans who are United States citizens return to civilian life and get on the wrong side of the law, we recognize the perils of combat on those warriors. We have created a whole new court system for the sole purpose of guiding them back to being the law-abiding persons they were before enlistment. Our courts have partnered with the United States Department of Veterans Affairs, and the veterans are provided treatment instead of punishment. The D-word for them is Diversion.

Circumstances are very different for the noncitizen veterans who commit the exact same crime as the citizen veterans. Regardless of any essential help they provided to the military, and no matter their heroism, dedication, patriotism or love of America, the D-word for noncitizen veterans is Deportation.

Deported veterans helping each other

At the symposium, Stock told us that both the Department of Defense and the Department of Homeland Security continue to oppose benefits for deported veterans. The documentary film "Ready for War," about the impossible situations of deported veterans, has some scenes in a shelter in Tijuana, officially called Deported Veterans Support House, but commonly known as The Bunker. An upside-down American flag, signifying distress in the military, is painted on the wall. The names of deported veterans are listed next to it.

The impact of the denial of veteran medical care to our noncitizen veterans in one scene is heartbreaking. One deported vet at The Bunker, who worked with prosthetics in the military, is shown trying to fit another deported veteran, who lost his foot, with a prosthetic. As the impression of the stump is taken, one can see the angry pink skin just below the ankle.

At The Bunker, they also try to protect each other from drug cartels. These deported veterans have extensive training in combat. Once those who are deported to Mexico get there, the cartels immediately try to recruit them, telling them: "You got weapons training, military training, in in the United States. You're going to work for us." They sometimes end up being reluctantly recruited because they are threatened with death.

Path to citizenship for those who serve in the armed forces

Servicemembers and some veterans of the armed forces are eligible to become citizens of the U.S. under the Immigration and Nationality Act. There are two main paths.

Those who provided peacetime service are eligible to naturalize after an aggregate period of one year of honorable service. They must, however, be a lawful permanent resident [have a green card]. They may be eligible to naturalize despite being subject to deportation. 8 U.S.C. Section 1439

A separate wartime law covers those persons who have served during certain periods of conflict designated by Congress or the president. Through the years, various presidents have designated the periods of hostility. In 2002, for example, President George W. Bush issued Executive Order 13269, designating the period of war against terrorists of global reach, beginning Sept. 11, 2001, as one such period. An individual serving during wartime need not serve for any particular time in the military and can in some circumstances obtain naturalization while in boot camp or basic training. The person need not have a green card to obtain U.S. citizenship under the wartime law. 8 U.S.C. Section 1440

Except for bureaucracy, the process seems simple enough. At the symposium, however, Sen. Duckworth explained how difficult the process actually is for active duty service members. Importantly, while overseas, there is no easy access to political representatives. But even when they untangle the bureaucratic knots, service members face other barriers to their supposed paths to citizenship. A four-page Oct. 13, 2017, memorandum from the office of the undersecretary of defense is mind boggling in its detail of how a service member goes about to just establish the simple fact of honorable service. Even a forgotten parking ticket can prevent a finding of honorable service.

And Stock described how much worse it gets when the service member tries to comply with the requirements of another agency, the Department of Homeland Security. One woman stationed in Korea had to come back to U.S. on her own dime, using leave time. She was quarantined for 14 days. She then showed up for her DHS appointment to become a citizen, but when she got there on her 15th day of leave, she was told they had a computer glitch and she'd have to come back another day. Months later, she was contacted and told to return. She had to do the same thing again. Eventually, she did become a citizen.

Duckworth said at the symposium that she asked for a State Department official to cover the military bases to give soldiers access to their path to citizenship, and the Trump administration refused. She recently asked the same of the Biden administration.

The senator's letter to President Joseph Biden reads in part: "Immigrant servicemembers possess critical skills that enhance military readiness, strengthen national security and protect our homeland. That is why, for over 200 years, Congress has provided servicemembers an expedited path to citizenship and both Democratic and Republican administrations have worked to streamline the naturalization process for servicemembers. In a period of armed conflict, such as now, Congress specifically intended for servicemembers to naturalize as soon as they entered service and prior to deployment. [¶] As your administration begins working to improve our Nation's immigration system, I ask you to prioritize military and Veteran naturalizations as well as bringing deported Veterans home to the United States where they belong. The United States relies on immigrant servicemembers in all sectors within the military, and it is clear that the government must better support and protect them. Thank you in advance for your consideration of this request."

Why deported veterans can't get home again

Most deported veterans were honorably discharged, suffered from PTSD, got convicted of a crime and were removed from the country. Their channels to get home again, while always few, have gotten fewer during the last couple of decades.

For a deported veteran, the only sure way back home is to die. An article in Military.com reports about the flag-draped casket of a veteran, Lance Corporal Enrique Salas. He "made it home the only way he could." The Persian Gulf War veteran, was deported to Mexico in 2006, and buried with military honors in Fresno County in 2018. The director of The Bunker, Hector Barajas, who became a citizen after Gov. Jerry Brown granted him a pardon, attended the funeral.

Senator Duckworth explained that much could be done to prevent deportation of our veterans without legislation. Agency willingness and interagency cooperation could accomplish a lot. For example, a person's veteran status is not even included in the paperwork for the Department of Homeland Security. So DHS personnel sometimes don't even realize they are deporting someone who served to protect our country.

Executive orders can also help. In fact, on Feb. 2, President Biden issued EO-14012. In it, he ordered the secretaries of state and homeland security and the attorney general to develop a plan to eliminate barriers and facilitate naturalization for eligible members of the military. One can only hope the Secretaries of the Department of Defense and the Department of Veterans Affairs are somehow looped into the process.

Sometimes, but rarely, a state might be able to help a veteran facing deportation. As already noted, a pardon from a governor has proved successful. Since someone from a state's National Guard is often on a governor's cabinet, the Guard may be able to provide assistance. Prior to 1990, sentencing judges had the discretion to recommend against deportation within 30 days of sentence. Known as Judicial Recommendation Against Deportation or JRAD, formerly 8 U.S.C. 1251(b)(2), federal or state judges familiar with the facts could take mitigating factors, such as veteran status, into account in making recommendations against deportation. But the Immigration Act of 1990, Pub. L 101-649, abolished the sentencing court's discretion to grant a JRAD.

Adding to the blockades in the noncitizen veteran's path to stay home or get back home is that in addition to lost judicial discretion to grant a JRAD, there was also a curtailment of U.S. attorney general discretion with the passage of the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, IIRIRA. Pub. L. 104-208, Section 604 et seq. Thus, if the government were inclined to give a veteran a break, it no longer has the discretion to do so.

Also in 1996, the Anti-terrorism and Effective Death Penalty Act was enacted. Pub. L. No. 104-132 AEDPA greatly expanded the realm of criminal offenses for which a noncitizen may be removed from the country, and eliminated the traditional judicial review of final removal orders.

Conclusion

A study of veterans who served in Iraq and Afghanistan revealed that 300,000 suffer from PTSD. 14 SCHOLAR 767. It is a familiar scenario to many of us in the law. A veteran self-medicates for PTSD or some other condition incurred as a result of military service. The veteran is arrested for breaking the law, usually a narcotics offense. And that's where the difference between being a citizen and not being a citizen is critical. The citizen is shepherded into a treatment program. The noncitizen is taken to a detention center, imprisoned and then deported.

As matters stand, the noncitizen veteran must maneuver through the requirements of a specific military branch, the Department of Defense, the Department of Homeland Security, the attorney general and the Department of Veterans Affairs. Each has its own requirements, and usually one agency doesn't speak with the other about a noncitizen veteran's situation.

This is not the way America ought to be treating its veterans.

On May 7, Veterans Naturalization Assistance Program will conduct a naturalization clinic that is free to all U.S. veterans, from any rank, country and financial background. Email Nicqelle Godfrey at vnap@vetsprobono.org for more information.