PHOENIX – Late last week the Obama administration announced a major change to immigration policy with regard to the military.
Now military spouses and children who are in the country illegally can be eligible to stay here without fear of deportation and eventually may earn permanent legal status. But this new policy appears contradictory to an increasingly common practice in many branches of the military that explicitly bans enlistment by people who have unauthorized immigrant dependents.
Margaret Stock, an immigration lawyer in Alaska and an expert in military immigration issues, has been getting calls from military applicants who are married to immigrants without papers and are told they can’t enlist as a result.
She received one such call from an Army applicant earlier this month.
“He was quite upset because he was planning to join the military,” Stock said. “And he can’t provide the proof of his wife’s status that the recruiter is demanding he provide.”
The Navy, Marine Corps and Army appear to have had these enlistment policies in place for at least three to five years.
Stock finds those enlistment bars surprising though, because during that same period, officials with the Department of Homeland Security have been working out the details of a policy to help unauthorized immigrant spouses, children and parents of Armed Services personnel remain in the country legally.
That policy for immigrant military relatives, known as “parole in place” had existed for a number of years already but was formalized in a policy memorandum last week.
“That program obviates the need for any bar to enlistment,” Stock said. “So it doesn't make any sense for them to be enforcing this rule now. It is almost as though the people doing this don't understand what has been going on out there.”
Kathleen Welker, a spokeswoman for the Army Recruiting Command, confirmed the Army enlistment policy bars applicants who have spouses or children who are in the country illegally. The latest legal opinion from the command was formulated in 2010, according to Welker.
“When an applicant shows that his dependents or her dependents do not have proper documentation, that is a red flag to a recruiter that the applicant in this case is harboring an illegal alien,” Welker said.
Welker said the reasoning is based on a federal statute known as 8 USC 1324 that makes it a crime to harbor or conceal someone who is in the country illegally.
“And that means that the applicant then is breaking the law and may be subject to arrest,” Welker said. “Well, that is not what we are about in the U.S. Army.”
Welker said it is simply a question of following the current law.
“If and when the law is changed, recruiting policies will follow suit," she said.
The harboring statute Welker is referencing was written more than 50 years ago. But the interpretation of it she cited is controversial.
“That is a totally untenable reading of the law,” said Omar Jadwat, an attorney with the American Civil Liberties Union's Immigrant Rights Project. “It’s just wrong.”
According to Jadwat, the case law around the harboring statute doesn’t support the Army Recruiting Command’s legal analysis.
“Multiple federal courts of appeals have specifically rejected the notion that cohabitation with somebody who lacks immigration status is harboring,” Jadwat said.
In fact, a spokesperson for Immigration and Customs Enforcement said the agency itself doesn’t enforce the harboring statute to arrest relatives of unauthorized immigrants unless there is some other criminal activity or aggravating circumstances.
“I think it is up to the Pentagon to quickly correct this error,” Jadwat said.
Enlistment policies are determined by each branch, according to Department of Defense spokesman Nate Christensen.
Christensen said the services have adopted enlistment bars for applicants with unauthorized dependents due to “administrative and security concerns.”
One concern, Christensen said, is that military dependents in the country illegally lack the required identity documents needed to get military I.D. cards.
Armed Forces personnel who successfully enlist and then later marry a spouse without papers can also face hurdles.
Fronteras Desk spoke with one American citizen in the U.S. Coast Guard who asked for his name to be withheld so as to not jeopardize his military career.
He enlisted when he was 18 and then married a Central American woman who didn’t have papers.
“I was under the impression that when a U.S. citizen marries anybody they would automatically get their residence card,” he said.
Instead, his wife faced a possible 10-year ban from the U.S. if she tried to legalize. So she remained in the country without status.
He was then stripped of his security clearance as a consequence. He was told he had not done enough to fix his wife’s immigration status, thereby participating in her illegal activity.
“I felt bad," he said. "I don't feel right, you know, in some ways it is sort of like discrimination."
Without security clearance, he couldn’t do the job he was trained to do. He spent thousands of dollars trying to get legal help.
“There were lawyers that I went and saw that told me, 'If you want your security clearance back, you have to get divorced,'” he said.
He has refused.
Recently, his wife got a work permit and permission to be in the country through an earlier phase of the parole in place program.
But this man doesn’t expect to get his security clearance back until she gets a green card, which will still take time.
In the meantime, he wonders how much diversity and talent the military is losing by banning future applicants with mixed-status families like his.