Memos to Mark: Deported Veterans
The following is the third in a series of real legislative policy memos written for Congressman Mark Takano by his staff. The series will give you an inside glimpse of what comes across the Congressman’s desk on a daily basis.
To: Mark Takano
From: Staff
Re: Deported Veterans
Date: 02/14/2018
Overview
Not everyone who serves in our military is a citizen, and many of those who served have been expelled from the country they risked their lives to defend. Various reports from the American Civil Liberties Union, national and local news sources, and firsthand accounts from Members of Congress have confirmed that hundreds, if not thousands of veterans have been deported for committing certain crimes, many non-violent and substance abuse related, after serving their country. Many have been sent to countries they have not known since early childhood. Many live in Mexico, along the US border, to remain close to loved ones and support networks. The overwhelming majority of deported veterans who have been interviewed consider the US their home. Adjusting to life away in what they see as a foreign country has been difficult for a significant number of them, especially considering the barriers they face receiving VA benefits abroad. Deported veterans face the same hardships all veterans face, but they do so in a foreign land away from friends, family, and the country they once defended.
This memo will cover veterans deported by the United States after their service. It will include:
· Historical and legislative background
· Non-citizens role in the military
· Statistics on the deported veterans and their further study
· Benefits that are and are not available to deported veterans
· Avenues for repatriation
· Legislative action and next steps
Background
Approximately 35,000 legal permanent residents, or green card holders, serve on active duty and 8,000 join the military every year.[1] Between 2009 and 2016, the Military Accessions Vital to the National Interest Program (MAVNI) allowed approximately 10,400 non-citizens to join the military and lend critical language and medical skills to our country’s defense.[2]
There is currently an expedited process for these people to naturalize that waives certain residency time requirements. Generally, a veteran must have served one year during peacetime and been honorably discharged to have the five-year residency requirement waived. Much of the current expedited process for naturalization was established by the Second War Powers Act of 1942. The National Defense Authorization Act for Fiscal Year 2004 amended existing military naturalization statutes by reducing the period of service required for naturalization based on peacetime service from three years to one year.[3] In 1968, the Immigration and Naturalization Act was amended to allow the president to designate periods of hostility during which a non-citizen could naturalize for one day of active duty service.
In 2002, President Bush designated the War on Terrorism beginning on September 11, 2001, as a period of hostilities. However, all veterans must meet a “good moral character” standard. This is not a judgement call made by an immigration official, it is a legal standard enumerated in both statute and regulation.[4] Honorably discharged veterans who have committed certain felonies fail to meet the “good moral character” standard. Immigration authorities are forced to reject naturalization applications, making them vulnerable to deportation.
Many veterans have been deported due to changes in the law that eliminated discretion and reclassified many low-level offenses as automatic bars to citizenship. The Immigration Act of 1990, the Immigration and Nationality Technical Correction Act of 1994, and the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, progressively expanded the list of aggravated felonies that could have someone deported and reduced or eliminated judicial discretion to stop deportations. These crimes range from serious offenses - such as murder and rape - to thefts that result in at least a one year prison sentence. Tax evasion in excess of $10,000, forging or altering a passport, or a failure to appear in court can also lead to deportation. Based on interviews, two of the most common categories of crimes committed by deported veterans are substance abuse and domestic violence related. None of these lesser crimes, included in the 1994 law, have to be violent in nature to block a veteran from becoming a citizen and expose them to the threat of deportation.
Many deported veterans said they believed their service automatically conferred citizenship upon them. The service members and their advocates believe the military did not do enough to inform its non-citizen members that they qualified for an expedited naturalization process, and it was typically left to the soldier to pursue it with little assistance or guidance. Those same deported veterans were not aware that many non-violent crimes would trigger their deportation and keep them from ever becoming citizens.
MAVNI
The MAVNI program has recruited thousands of foreign-born people who want to serve in the US military and have a vital skill to lend toward our national defense. In exchange for their service, program participants are eligible for citizenship through their service. However, the future of the program is unclear as the military processes a backlog of security checks for thousands of potential service members.
Beginning in 2013, the Department of Defense (DOD) started encountering security anomalies in the program. At that time, the background check for citizens, legal permanent residents, and MAVNI recruits was the same. While citizens and legal permanent residents could ship off to basic training while their background checks were processing, MAVNI recruits received waivers to move forward in their training. The Office of Personnel Management, which conducts the military background checks along with the Federal Bureau of Investigation, was encountering problems verifying information on MAVNI recruits because they were foreign born. This led to recruits who were identified by the counter intelligence community as national security concerns being sent to basic training. In late 2016, the program was put on hiatus due to these security concerns. As of September 30, 2016, MAVNI recruits were required to undergo a more stringent review than citizens and legal permanent residents. This has created a backlog while the military implements its updated vetting process. Approximately 1,600 MAVNI recruits have had their visas expire while waiting to finish their enhanced background check. The DOD and the Department of Homeland Security have reached an agreement to suspend deportation action on these applicants as long as they remain in the MAVNI program and do not commit any crimes. The Secretary of Defense is reviewing the program and has yet to make a determination to continue, change, or terminate it.
Currently, 515 Delayed Action for Childhood Arrival (DACA) recipients are serving across Active, Reserve, or Delayed Entry. They are primarily of Korean, Chinese, and Russian descent reflecting the programs focus on critical language skills.
Who Has Been Deported
An exact picture of this population is difficult to develop due to the fact that these people are not in the country and do not have contact with the VA. However, veteran and immigration advocates estimate there are more than 3,000 veteran deportation cases.
The Deported Veteran Support House (DVSH) in Tijuana, Mexico, keeps detailed records of the veterans they serve. However, their data collection is limited to in-person and phone interviews. The DVSH requests documents on behalf of veterans from the Department of Defense and the VA. They have faced difficulties obtaining criminal records, which must be requested by the person in question. There are plans to launch a web-based record keeping site, which will allow veterans to more easily submit information to the Support House. Currently, the DVSH serves:
· 323 veterans
· From 42 different countries
· Who lived in 40 different counties in the US, with most of those surveyed living in California or Texas before deportation
· 144 were born in Mexico
While information on their service and discharges are not complete, the DVSH has:
· 1 record of dishonorable discharge
· 100 honorable discharges
· 101 Army veterans
· 68 Marine Corps veterans
· 22 Navy veterans
· 4 Air Force veterans
· 1 Coast Guard veteran
While these figures are not exhaustive, they help us understand how this population of veterans is similar to populations of veterans across the US.
Government Accountability Office (GAO) Study
After receiving a letter led by Rep. Vargas, Rep. Walz, Rep. Takano, and Rep. Coffman, the GAO has agreed to fill in many of our information gaps regarding deported veterans. Much of the information on deported veterans has been gathered ad hoc and consists primarily of anecdotal accounts. While advocates like the DVSH do a good job of gathering what data they can, their records are incomplete. The GAO study will aim to include the total number of deported veterans, the number of non-citizen veterans in prison, and how many veterans are in the process of being deported. They will attempt to answer questions regarding the number of dismembered or paralyzed veterans, the crimes committed by deported veterans, and the mental health issues suffered by deported veterans. In an official acceptance letter dated November 1, 2017, they anticipated beginning their research sometime in late February or early March of 2018. While we do not yet have an estimated completion date, GAO reports can often take a year or more to complete.
Disability Compensation Claims
Veterans, no matter where they live or their immigration status, can receive compensation for a service-connected disability. To file a claim for disability, veterans living outside the US go through Federal Benefits Units (FBU) located at various consulates and embassies. In Mexico, these units handle veterans’ benefits claims in Guadalajara, Mexico City, and Ciudad Juarez. Claims are initiated in these offices and forwarded to the VA Regional Benefit Office in Pittsburgh for processing. Any exams needed for the VA to make their determination are covered by VA. Until recently those exams could only be conducted in Ciudad Juarez, Guadalajara, or Mexico City, which is hundreds, if not thousands of miles from where many deported veterans live in Tijuana.
The process is meant to proceed as follows:
1. Appointments are made online at https://mx.usembassy.gov/u-s-citizen-services/social-security/fbu-inquiry-form/
2. Deported veterans’ applications are filed with the FBU office nearest them for disability claims. Mexico City services the areas in red, Guadalajara white, and Ciudad Juarez green. Until recently, these exams were not available in Tijuana.
The local FBU then sets the appointment for a VA disability examination after filing the claim with the VA Pittsburgh Regional Benefits Office.
1. Exams are paid for by the Embassy and reimbursed by the VA through a lengthy process.
2. The FBUs can connect deported veterans with a medical care provider, but the veteran must first be rated for a service-connected condition.
That care can be paid for by the veteran up front or billed to the Foreign Medical Program (FMP)[5] if the care is service connected.
Compensation and Pension Exams Now Available in Tijuana
On September 28, 2017, the Mandatory Contract Examination Program Office (MCEPO) in Pittsburgh became aware through an abundance of claims that a concentration of deported veterans were living in Tijuana, Mexico, who may be eligible for VA disability benefits. The MCEPO met with Veterans Evaluation Services (VES), a contract vendor that provides C&P examinations in the US, and asked them to contract a provider in the Tijuana area.
On November 20, 2017, the contract vendor established an examination location in Tijuana, at the Consultorio Medico in Plaza San Jorge, a 20-minute drive from the DVSH. This location is equipped to provide General Medical, Psychology, and Audiology C&P examinations. Deported veterans have already been to see these examiners and further exams are being scheduled.
Access to VA Medical Care
Currently, deported veterans are unable to utilize Veterans Affairs (VA) facilities for treatment due to their inability to enter the US. There are no VA medical facilities in Mexico. Ciudad Juarez, Guadalajara, and Mexico City have examiners contracted to perform C&P exams, however, they do not provide medical care. Deported veterans have access to reimbursement for service-connected medical care through the Foreign Medical Program (FMP) based in Denver, Colorado.
The FMP is a reimbursement program for veterans to pay for private, non-VA care. Deported veterans who have been rated through the previously described compensation process, can see a doctor for care related to specific service-connected issues, and they or the provider can be reimbursed through the FMP. In most cases, the veteran seeks reimbursement after they have paid for the care. Neither veterans, nor care providers, can submit bills directly to an embassy or consulate. It is important to note, the FMP only covers service-connected care and does not cover comprehensive medical care.
FMP Reimbursement Process
Veterans can but are not required to pre-register for the FMP before moving abroad. However, veterans who are permanently relocated to a country under the FMP Office’s jurisdiction are encouraged to notify the FMP Office upon establishing a permanent foreign mailing address (address and telephone number). At that time, arrangements will be made for FMP registration and the mailing of detailed program material. Included in the program material will be an FMP Program Guide, which provides detailed information on benefit coverage and limitations, how to select health care providers and claim filing instructions.
Registration form — FMP Registration Form, VA Form 10–7959f-1
To apply for reimbursement a veteran or the provider must send their full name, mailing address, address of residence (including country), US Social Security number (the FMP manual does not list citizenship as a qualifying requirement, will update) and VA claim number to:
VHA Office of Community Care
Foreign Medical Program (FMP)
P.O. Box 469061
Denver, CO 80246
FMP claim form — FMP Claim Cover Sheet, VA Form 10–7959f-2
They will confirm service-connected disabilities and a benefits authorization letter, which outlines the medical conditions covered.
Telehealth
On October 2, 2017, the VA published a proposed rule to allow VA providers to care for veterans across state lines. The proposed rule does not include authority for telehealth abroad.
The VA is reviewing the authorities they would need to establish a telehealth program abroad. However, broad authority for many countries would likely be difficult. A variety of obstacles include, tort concerns, IT encryption, interaction with the Controlled Substance Act, and any other laws regulating medical practice in the country where the veteran is located. The VA has said that if a solution was developed for Mexico, Canada, and the Pacific Islands it would resolve the telehealth accessibility issue for “99 percent” of veterans abroad.
Reinstatement of Legal Status and Readmission to the US
On April 15, 2017, Governor Jerry Brown issued 72 pardons, including 3 for Erasmo Apodaca, Hector Barajas, and Marco Antonio Chavez-Medina, all deported veterans who had previously lived in California. On November 28, 2017, Marco Antonio Chavez-Medina, a Marine, had his legal permanent residence status reinstated, 2002 order of removal vacated, and removal proceedings terminated. Consequently, he was permitted to reenter the United States and has since returned to California. This case, and hopefully the other two cases, will prove to be precedents for certain veterans to return to the US.
Marco Antonio Chavez-Medina had lived in California since his parents brought him to the US in 1973 when he was just a year old. He received a green card through the Reagan amnesty of 1989. He graduated from high school in Los Angeles and served four years in the Marine Corps. In 1997, he was convicted of cruelty to animals, which carries a sentence of two years in prison. His conviction of a crime of violence with a term of imprisonment of one year or more meant he was deportable under the Immigration and Nationality Act. In April 2002, his removal proceedings ended and Mr. Chavez-Medina was deported to Mexico. When Governor Brown pardoned Mr. Chavez-Medina in 2017, he used this new “evidence” to reopen his case. The law requires individuals to present evidence in their removal proceedings within 90 days of the order of their removal. As Mr. Chavez’s new evidence, his pardon, had come 15 years after his removal order, his circumstances were special and unique. The immigration judge in the case agreed these were special circumstances and the unconditional pardon for his 1997 offense expunged the “only charge of removability. As a result of the pardon, [Chavez-Medina] is no longer subject to removal.”
For deported veterans who have committed certain deportable offenses, for which their state’s governor is willing to pardon them, this California case may prove essential. In addition, many deported veterans who currently live in Tijuana lived in California before their expulsion. This makes for an especially important precedent for the 46 deported veterans at the DVSH who come from that state. However, it is important to note that this is a narrow avenue for return, even for those deported veterans who meet this criteria. It requires the governor of the deported veteran’s state to pardon all of the deportable crimes committed by the individual, the deported veteran to have legal representation, the appropriate filing to reopen their removal order within 90 days of receiving their pardon, and an immigration judge’s willingness to hear the case and rule in their favor. Despite those challenges, the legal precedent is important and creates a pathway for some deported veterans to return home.
Legislative Action
HR 1405: Veterans Visa and Protection Act of 2017
Raul Grijalva (AZ) Introduced 03/07/2017 (60 Cosponsors)
Referred to the House Armed Services, House Veterans Affairs, and House Judiciary Committees
Allows deported veterans to enter the US as lawful permanent residents. Grants them access to the existing naturalization process for military service and access to veteran benefits. Stops the deportation of eligible veterans currently in removal proceedings.
HR 1470: Restoring Respect for Immigrant Service in Uniform Act
Ruben Gallego (AZ) Introduced 03/09/2017 (2 Cosponsors)
Referred to the House Judiciary Committee
Expresses the sense of Congress that the Department of Homeland Security should exercise discretion to admit certain deported veterans.
HR 2759: The Naturalization at Training Sites (NATS) Act
Juan Vargas (CA) Introduced 05/26/2017 (14 Cosponsors)
Referred to the House Armed Services
Ensures that non-citizen service members are well informed of the naturalization options available to them. Directs the military branches to establish naturalization offices at their initial training sites.
HR 2760: The Immigrant Veterans Eligibility Tracking System (I-VETS) Act
Juan Vargas (CA) Introduced 05/26/2017 (13 Cosponsors)
Referred to the House Judiciary Committee
Directs the DHS Secretary to identify non-citizens who have served in the armed forces when applying for immigration benefits or when placed in immigration enforcement proceedings. “Fast tracks” veterans and service members who are applying for naturalization, allows for prosecutorial discretion, if appropriate.
HR 2761: The Health Care Opportunities for Patriots in Exile (HOPE) Act
Juan Vargas (CA) Introduced 05/26/2017 (15 Cosponsors)
Referred to the House Judiciary Committee
Allow deported veterans to temporarily parole back into the US to seek care from a VA facility.
HR 3429: The Repatriate Our Patriots Act
Vicente Gonzalez (TX) Introduced 07/26/2017 (3 Cosponsors)
Referred to the House Armed Services, House Veterans Affairs, and House Judiciary Committees
Provides a pathway for certain deported veterans to be naturalized abroad and allows the cancelation of removal orders. Allows deported veterans to return to the US and reestablishes their military and veteran’s benefits.
HR 3563: Veterans’ Pathway to Citizenship Act of 2017
Nanette Barragan (CA) Introduced 7/28/2017 (6 Cosponsors)
Referred to the House Judiciary Committee
Eases residency requirements for veterans. Allows pardons for veterans who committed certain crimes and are ineligible for admission. Provides notice of service members’ right to naturalize upon enlistment and discharge.
HR 3352 Second Chance for Service Act
Mark Takano (CA) Introduced 07/20/17 (6 Cosponsors)
Referred to the House Judiciary Committee
Would allow immigration officials to weigh an honorably discharged veterans’ service against certain crimes committed when considering their application for citizenship.
Next Steps
Over the past year, significant strides have been made to improve deported veterans’ access to benefits and the likelihood that some may return to the US. Fortunately, the deportation of veterans is likely on the decline. Anecdotal evidence from deported veterans suggests the military is doing a better job of naturalizing non-citizen soldiers. The GAO study will confirm a trend either way, but we must ensure the DOD is properly identifying and serving its non-citizen soldiers. Changes to the telehealth program would allow for a significant portion of deported veterans to access some form of healthcare no matter where they live, but this may require legislation. Congressional oversight of the FMP will be crucial to ensuring that deported veterans have access to the only VA healthcare currently available to them. While the FMP is not direct VA care, it gives them access to care addressing service-connected issues. Going forward, Congress must continue to monitor the delivery of VA benefits that deported veterans have earned and push for legislation to bring them home.
[1] U.S. military helps naturalize non-citizens. The American Legion. https://www.legion.org/citizenship/218049/us-military-helps-naturalize-non-citizens
[2] Fact Sheet: Military Accessions Vital to the National Interest (MAVNI). National Immigration Forum. http://immigrationforum.org/wp-content/uploads/2017/07/The-MAVNI-Program-Fact-Sheet-Final.pdf
[3] Expedited Citizenship Through Military Service. CRS. http://www.crs.gov/reports/pdf/RL31884
[4] § Sec. 316.10 Good moral character. USCIS. https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-30960/0-0-0-31086.html#0-0-0-19583
[5] Foreign Medical Program (FMP) Claim Cover Sheet. VA. https://www.va.gov/vaforms/medical/pdf/10-7959f-2-fill_012317.pdf
