UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KUSUMA NIO, et al., Plaintiffs, v. Civil Action No. 17-998 (ESH) UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. MEMORANDUM OPINION Before the Court is plaintiffs’ amended motion for class certification. Plaintiffs are non- citizens serving in the United States Army’s Selected Reserve of the Ready Reserve who enlisted under the United States Department of Defense’s Military Accessions Vital to the National Interest (“MAVNI”) program and who have applied for naturalization pursuant to 8 U.S.C. § 1440, which provides an expedited path to citizenship for soldiers who serve during specified periods of hostilities. They brought this action against (1) the United States Department of Homeland Security (“DHS”) and its Acting Secretary, Elaine C. Duke, the United States Citizen and Immigration Service (“USCIS”) and its Acting Director, James McCament (collectively “DHS Defendants”); and (2) the United States Department of Defense (“DOD”) and its Secretary, James Mattis (collectively “DOD Defendants”). Plaintiffs bring multiple claims under the Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, seeking mandamus, declaratory relief, and injunctive relief. Plaintiffs challenge (1) DHS’s/USCIS’s decision to await DOD’s completion of the enhanced security screening of MAVNI enlistees prior to their shipment to basic training or active-duty service (“DHS/USCIS Security Screening Requirement”), see Nio v. United States Dep’t of Homeland Sec., No. 17-cv-998, 2017 WL 3917006, at *1–5 (D.D.C. Sept. 6, 2017), and (2) DOD’s October 13th Guidance that required the recall and de-certification of USCIS Form N-426, which is a form necessary for a MAVNI’s naturalization application under 8 U.S.C. § 1440. (Defs.’ Weekly Status Report, Oct. 13, 2017, ECF No. 58, Ex. 1 (“10/13/2017 Guidance”) at 4.) Plaintiffs seek to certify a class, under Federal Rule of Civil Procedure 23(b)(1) or (2), consisting of all persons who (1) enlisted in the Selected Reserve, (2) have served honorably in the military “through participation in at least one Selected Reserve drill period or in an active-duty status,” (3) have received a Form N-426 certifying their honorable service, (4) have submitted N-400 Applications for Naturalization to USCIS, and (5) are being subjected to the DHS/USCIS Security Screening Requirement and Section III of DOD’s October 13, 2017 Guidance regarding N-426s. (Pls.’ Am. Mot. For Class Certification and Appointment of Class Counsel, Oct. 20, 2017, ECF No. 62, (“Class Mot.”) at 1.)1 For the reasons stated herein, the motion is granted with a modified class definition. BACKGROUND The factual background and procedural history in this case has been set out in detail in the Court’s previous September 6, 2017 Memorandum Opinion denying plaintiffs’ request for a preliminary injunction, Nio, 2017 WL 3917006, at *7–8, and the Court’s previous October 25, 2017 Memorandum Opinion in the related case of Kirwa v. Dep’t of Def., 17-cv-1793, ECF No. 29, granting those plaintiffs’ request for a preliminary injunction. The only factual development 1 Two of the named plaintiffs have been naturalized, but that does not render the claims of the class moot. See Thorpe v. ...
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