MAVNI FEDERAL CLASS ACTION LITIGATION
Kirwa, et al. v. United States Department of Defense, et al., Civil Action No. 17-1793
Nio, et al. v. United States Department of Homeland Security, et al., Civil Action No. 17-0998
U.S. District Court for the District of Columbia
If you are a service member who has served or is serving in the Selected Reserve of the Ready Reserve (the “Selected Reserve”), who enlisted through the MAVNI program, and who has not yet become a naturalized U.S. citizen, you may be affected by ongoing litigation in the United States District Court for the District of Columbia (the “Court”). Several MAVNI soldiers brought two lawsuits (the Kirwa litigation and the Nio litigation) against the United States Department of Defense (“DoD”), the United States Department of Homeland Security (“DHS”), the United States Citizenship and Immigration Services (“USCIS”), and certain government officials challenging the lawfulness of Defendants’ policies affecting naturalization.
Please read this website carefully if you are a MAVNI service member who has not been naturalized.
Kirwa, et al. v. United States
Are you a member of the Kirwa class?
You are a member of the certified Kirwa class if you:
If you are a member of the Kirwa class you should know the following:
On October 25, 2017, the Court issued a preliminary injunction against the Secretary of Defense and DoD enjoining DoD from refusing to issue N-426 forms and refusing to certify honorable service for MAVNI service members who enlisted prior to October 13, 2017 and who have served one day or more in the Selected Reserve. The Court further ordered DoD to use its best efforts to issue signed Form N-426s within two business days from the date the request is submitted. If you submitted an N-426 prior to October 25, 2017, you will need to resubmit your N-426 request to the military to take advantage of the Court’s Order. Requests should be directed to an O-6 in the service member’s chain of command. That Order, as amended/clarified on October 27, 2017, can be found HERE.
UPDATE (DECEMBER 14, 2017): If you are a Selected Reserve MAVNI who has served for one day or more (e.g., through attendance at one drill) and you have not received a completed and signed Form N-426 from a military official and thus do not have a pending N-400 naturalization application, IMMEDIATELY review the Notice provided in the link below.
Once you receive a copy of the completed N-426 per the Notice linked above, do not delay the submission of your N-400 application. Copies are accepted by USCIS, per the attached Notice. Also, please take care to submit your N-400 to the correct address per the directions for military applications on the USCIS website, and maintain a copy of your full N-400 application for your own records.
Nio, et al. v. United States
Are you a member of the certified Nio class?
You are a member of the certified Nio class if you:
If you are a member of the Nio class you should know the following:
Pursuant to the Court’s October 27, 2017 Order found HERE, your N-426 may not be revoked. The litigation with respect to the lawfulness of Defendants’ policies affecting naturalization is on-going — please use the Nio Schedule tab to see select dates from the litigation calendar.
UPDATE (May 31, 2019): The Court has granted summary judgment in favor of the MAVNI class. Please review the decision through this link.
UPDATE (May 31, 2019): We have learned that some Army units and recruiters are distributing a document entitled “Voluntary Waiver of Notification of Adverse Military Service Suitability Recommendation” to MAVNI soldiers who are still waiting for final MSSDs. An example of that document can be viewed through this link.
We understand that some soldiers received this MSSR Waiver Notification even though they did not request it or speak with anyone in the Army about it in advance of receiving it.
The last page of the MSSR Waiver Notification is an “Acknowledgement of Notice and Election” form. The document instructs soldiers to fill out this form and return in to the Army.
If you have received this document, and if you do not want to waive your right to be informed of the basis for your unfavorable MSSR or the opportunity to refute your unfavorable MSSR, you should check the space next to “I elect not to waive receipt” paragraph on the Election Form before returning it the Army. That is the paragraph immediately above the “Name” line on the Form. In addition, if you did not ask to waive your MSSR notification and rebuttal rights, you may want to add the following comment next to your signature on the form: ”I am acknowledging receipt of this form only, but I am not acknowledging the accuracy of statements within the notification because I did not make either of the requests referred to in the second sentence of Part 3 on page 2. I am reserving all of my rights.”
Paragraph 6 of the document identifies an Army “Point of Contact” to whom you can direct questions. If you received this document and are considering checking the “I voluntarily elect to waive” option on the Election Form, you may wish to consider gathering more information before making that selection. For example, you may want to ask the Army to answer the following questions:
- What rights exactly are being waived? And, what rights are not being waived?
- If I select “waive,” which is likely to lead to my discharge from the military, how long does the discharge process take and what does it entail?
- What kind of discharge will I receive?
- How could such a waiver (and discharge) negatively affect me, not only with respect to my military career, but also with respect to any immigration matters, military and veterans’ benefits, reputation, and civilian jobs and clearances?
- How does this waiver relate to the MAVNI litigations pending in federal court in Washington, DC?
- In the Nio class action, the district court recently decided that USCIS had to move forward with MAVNI naturalization applications even if MSSRs and MSSDs remain pending, so what are the benefits (if any) and disadvantages of “waiving” my MSSR/MSSD challenge rights if that leads to my discharge from the military?
- Can I speak with a JAG lawyer about the potential waiver, my rights, and how such a waiver may affect me? If “yes,” how do I get assigned a JAG lawyer to help me?
- Will I be given time to speak with a lawyer?
- What happens if 15 days pass and I haven’t responded to the notification?
If you are unable to obtain adequate answers from the Army right now or advice from a lawyer, you may want to select “I elect not to waive receipt” until you have the answers and information you need to make a more informed decision.
The District Court in the Calixto litigation has been informed about the MSSR Waiver Notification. A copy of that filing is available through this link.
Please check back periodically as Fried, Frank, Harris, Shriver & Jacobson LLP (“Fried Frank”), counsel for the Kirwa class and the Nio class, will be adding and updating documents and information found on this Site.
This website and the materials provided herein are made available by Fried Frank to provide publicly available information regarding the Kirwa and Nio class actions. Nothing on this website creates or establishes any attorney client relationships between Fried Frank and any persons or entities. Your use of the Site is conditioned on your understanding and acknowledgement that (1) the material and information on the Site is not offered as and does not provide legal advice on any matter and should not be used as a substitute for seeking legal advice, and (2) Fried Frank is not and will not be responsible for any errors or omissions on this website or any action or failure to act in reliance upon information on the Site.