Broken Promises: Deported veterans struggle to access entitled benefits

"Immigrant service members could take the initial steps toward becoming citizens at their basic training site. However, bureaucratic and logistical obstacles prevent many from ever completing the process."

- Berkeley Law Students

It was delightful and encouraging to read a report recently issued by the law students at Berkeley Law under the auspices of Professor Rose Goldberg who oversees Berkeley's Veterans Law Practicum. The title of the report is "BROKEN PROMISES: How America Deports its Veterans and Deprives Them of Healthcare and Benefits." It wasn't the content of the report that caused me to feel delighted and encouraged. It was the fact that future lawyers appear to be already committed to working hard to right some of the wrongs our veterans face.

But it's the content of the report I discuss here as the students identify serious problems noncitizen veterans face and call for specific solutions. In 2021, the Veterans Naturalization Assistance Program estimated there are over 100,000 noncitizen veterans in the United States. The Berkeley report makes it clear that no one knows how many veterans who protected us while serving in the United States military have been deported, often to countries they haven't seen since they were babies. The report has specific references to veterans from Canada, El Salvador, Haiti, Honduras, Jamaica, Kenya and Mexico who were deported.

Recruiters

At a 2021 symposium on deported veterans presented by the University of Southern California and the Center for Law and Military Policy, one of the speakers, attorney Margaret Stock, said that recruiters often tell noncitizens they will become citizens if they take the military oath. Citing a 2022 personal account of a deported veteran, the Berkeley students agree, stating that military recruiters lie to immigrant enlistees by falsely asserting that military service automatically confers citizenship.

In one instance, a citizen of Kenya, who served in both the U.S. Army and U.S. Air Force, was promised military enlistment would make him eligible for naturalization and veteran benefits. But the recruiter did not inform him that his student visa made him ineligible to enlist. After several years of military service, his student visa status was discovered and he was deported.

It is not surprising that noncitizen recruits believe what recruiters tell them. The oath of enlistment is very similar to the oath of citizenship. The oath of enlistment states: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." The oath of citizenship states: "I hereby declare, on oath, that ... I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God."

In fact, most noncitizens who serve in the United States military are eligible to become citizens. But the Berkeley law students point out that bureaucratic and logistical obstacles, both within and outside the military, prevent many from completing the citizenship process.

Post-traumatic stress disorder

The law students' report states that more than 20% of veterans with post-traumatic stress disorder, PTSD, also have a substance abuse disorder because they self-medicate to cope with their symptoms. The report further says that the use of illegal drugs results in a heightened risk of exposure to the criminal justice system, and that the increased risk is magnified for noncitizen veterans. It adds that veterans with PTSD have a 61% higher likelihood of criminal system involvement than veterans without PTSD. Berkeley students opine that often the root cause of veterans' deportations is PTSD resulting from military service, after the veterans suffer a conviction as a result of that condition.

Indeed, the law students are right to be concerned. Citizen veterans and noncitizen veterans receive much different treatment in California. When veterans who are United States citizens return to civilian life and get on the wrong side of the law, we recognize the perils of combat on those warriors. We have created a whole new court system for the sole purpose of guiding them back to being the law-abiding persons they were before enlistment. Those courts provide treatment to veterans instead of incarceration. Our courts have partnered with the United States Department of Veterans Affairs, and the veterans are provided treatment for their PTSD, instead of punishment. The D-word for them is Diversion.

Circumstances are very different for the noncitizen veterans who commit the exact same crime as the citizen veterans. Regardless of any essential help they provided to the military, and no matter their heroism, dedication, patriotism or love of America, they are deported rather than diverted from prosecution. The D-word for them is Deportation.

Benefits

Berkeley law students report that on paper a veteran living in exile is eligible for benefits provided by the VA, but that in reality, numerous obstacles prevent noncitizen veterans from accessing those benefits. The students use disability benefits as an example. Veterans who sustained a disability while serving can apply to the VA for compensation for that injury. The disability application generally requires medical evidence of the condition, submission of documentation, rounds of correspondence with the VA, evaluation by a clinician of the VA's choosing, and sometimes an adjudicative hearing. This process is often insurmountable for deported veterans, who cannot easily access in-person VA evaluations or otherwise meet bureaucratic application requirements.

A documentary film "Ready for War," about the impossible situations of deported veterans, has some scenes in a shelter in Tijuana, officially called Deported Veterans Support House, but commonly known as The Bunker. An upside-down American flag, signifying distress in the military, is painted on the wall. The names of deported veterans are listed next to it.

The impact of the denial of veteran medical care to our noncitizen veterans in one scene is heartbreaking. One deported vet at The Bunker, who worked with prosthetics in the military, is shown trying to fit another deported veteran, who lost his foot while serving, with a prosthetic. As the impression of the stump is taken at The Bunker, one can see the angry pink skin just below the ankle.

The Berkeley students report about another deported veteran who was dying from pulmonary fibrosis and urgently needed a lung transplant. A lung was available for the veteran here in the U.S.A., but the Department of Homeland Security, DHS, was so slow in permitting the veteran entry back into the country, he died before the transplant could be performed.

DHS's slowness resulted in the death of another deported veteran who was in Juarez, Mexico, and needed surgery at a veterans' hospital in El Paso, Texas, a little over seven and a half miles away. Permission to enter the U.S. came too late for the surgery. But the veteran's body was permitted into the country for a military burial.

The Foreign Medical Program

The Foreign Medical Program, FMP, is a VA program available to veterans residing in or visiting foreign countries, regardless of their citizenship status. To be deemed eligible for reimbursement, the veteran must show the VA the services rendered were medically necessary. The students' report states many deported veterans face barriers to filing claims because FMP is a catch-22 for them. Obtaining medical care requires deported veterans to establish their condition is service-connected, but getting such documentation requires medical care, which they need at the VA. Even when deported veterans manage to get their conditions recognized as service-connected by the VA, FMP excludes certain treatments altogether, such as home care and long-term inpatient psychiatric care.

Executive Order 14012

In 2021, President Joseph Biden signed Executive Order 14012, which mandates that specific government agencies review immigration-related policies and submit plans for change. As a result of the EO, DHS and the VA launched ImmVets in July 2021. ImmVets is tasked with halting and reversing the deportation of veterans and ensuring that those veterans already deported receive the benefits they earned.

The Berkeley law students applaud the attempt at a humanitarian program but charge that ImmVets skimps on its promises. Compared to other humanitarian programs, such as the ones enacted to assist Ukrainian and Afghan displaced persons, ImmVets cuts grants of humanitarian parole short for noncitizen veterans of the United States military. Nor does ImmVets provide much assistance to noncitizen veterans in attaining permanent immigration status. According to the students' report, only 93 deported veterans have returned to the U.S. through ImmVets.

Veteran Service Recognition Act

Pending in Congress is the Veteran Service Recognition Act, H.R. 4569. If enacted, it would allow noncitizen servicemembers to apply for naturalization during basic training, establish a review process for those who are in removal proceedings, and provide an opportunity for noncitizen veterans who have been removed and who have not been convicted of serious crimes to obtain legal permanent residence status. About the proposed statute, California Representative Mark Takano, Ranking Member of the House Committee on Veterans' Affairs, stated: "I have been fighting to prevent noncitizen veterans from falling through the cracks of our broken immigration system for years because it is shameful that they are being exiled from the same country they risked their lives to protect and defend."

The students' recommendations

Berkeley law students provided several recommendations in their report. They include a recommendation that the FMP program should be expanded to cover non-service-connected conditions and that it stop requiring upfront payment for medical services. The students also want Congress to enact the Veteran Service Recognition Act because it would help advance matters for deported veterans in many ways. It would also establish a DHS protocol to identify veterans facing deportation.

Conclusion

Berkeley law students recognize the injustice noncitizen veterans face. They realize that many deported veterans face huge barriers to health care, primarily for conditions they suffer as a result of serving in the U.S. military.

Hopefully, these students will continue their work on behalf of veterans once they enter the Bar. A huge thanks to Berkeley's Veterans Law Practicum and Professor Goldberg!