Volume 36
Issue
3
Date
2022

Naturalizing Through Military Service: Who Decides?

by Christopher Clifton

Congress enacted 8 U.S.C. § 1440 to provide noncitizens serving in the U.S. armed forces with an expedited path to naturalization during periods of hostility. Congress expressly required the executive to make two threshold determinations before a military member can be considered for naturalization under this statute. First, the executive must certify that an applicant has “served honorably.” Second, the President must designate by executive order that the armed forces are “engaged in military operations involving armed conflict with a hostile foreign force.” Since the War on Terrorism began in 2001, the military had authorized any noncitizen serving in the military to qualify for expedited naturalization by certifying their service as “honorable” after just one day in the military. However, in 2017, the Trump administration implemented new regulations that required noncitizens to serve for at least six months prior to the military certifying their service as “honorable.” This policy spurred a number of legal challenges, creating a court split over the justiciability of the executive’s determination of “honorable service.” This court split not only renews critical questions on the scope of judicial review over matters of military affairs, but it also provides an important preview into the amount of discretion that may be afforded to the executive to determine whether the U.S. remains in “a period of armed conflict with a hostile foreign force.”

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