Illegal Immigration and the U.S. Military: The Challenge of Reconciliation

The Wall Street Journal (WSJ) recently reported the story of decorated soldier Luis Lopez, who served 10 years in the U.S. Army, including deployments to Iraq and Afghanistan.  According to his commander, Mr. Lopez was “a critical part of the success of his unit fighting the global war on terrorism” and has over a dozen awards to prove it. 

Up until last week, the 28-year-old staff sergeant was also an undocumented immigrant.  Mr. Lopez was discharged from the Army in late December after he informed military officials that he applied for U.S. citizenship.  His illegal status—Mr. Lopez arrived from Mexico at the age of 8—prevented him from seeking employment while waiting for immigration officials to review his case.

Amid the national immigration debate, one section of the Immigration and Naturalization Act is often overlooked.  The statute provides that foreign nationals who have “served honorably” during wartime may secure citizenship “whether or not [they have been] lawfully admitted to the United States for permanent residence.”

As the article points out, this highlights the federal government’s “seemingly inconsistent” stance on immigration and the military.  Undocumented immigrants cannot legally enlist in the armed forces, but if they find a way to do so, they are given an opportunity to seek naturalization.

The statute has garnered attention recently during Congressional consideration of the DREAM Act.  Sen. Jeff Sessions (R–AL), an opponent of the legislation, has argued that the DREAM Act is not needed because “there is already a legal process in place for illegal aliens to obtain U.S. citizenship through military service.”  He notes that under 10 U.S.C. § 504, the Secretary of Defense can provide undocumented aliens the authority to enlist.  

The position advanced by Senator Sessions requires that undocumented aliens come forward and seek military enlistment by first getting approval from proper government authorities.  However, obtaining such approval is only possible under the statute if it is determined that the enlistment is “vital to the national interest.”  Short of meeting this arbitrary threshold, such military candidates must essentially falsify official documents, such as birth certificates, thereby breaking the law.  This falls short of providing the solution offered by the DREAM Act, which is a truly legal means of enlisting and securing citizenship. 

Mr. Lopez was granted citizenship after the WSJ began asking immigration authorities questions about his case.  He participated in a naturalization service last week, thereby finalizing the citizenship process.  Unfortunately, Mr. Lopez represents the exception.  Congress must now tackle the issue by giving undocumented men and women who want to serve in the U.S. military an opportunity to do so.

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Larry Banda is a third-year student at Loyola University Chicago School of Law and Treasurer of the National Latina/o Law Student Association.