Year In Review 2018

The Mason Veterans and Servicemembers Legal Clinic (“M-VETS”) completed another successful year in 2018, expanding its community outreach and achieving tangible, positive results for its clients, accomplishing both its pedagogical and access to justice objectives in meaningful ways. Through the hard work of our Student Advisors, M-VETS provided over 2,000 hours of pro bono legal services to its clients, equating to a private market value of over $500,000.00. M-VETS Student Advisors completed nearly 5,500 total hours of both client and clinic work during the year. Notably in 2018, M-VETS surpassed the $3 million mark with regard to the total private market value of pro bono legal services provided since its inception in 2004. With additional opportunities for growth and continued dedication to serving the military community locally and worldwide, M-VETS looks forward to an exciting 2019!


M-VETS Prevails In Securing Judgment For Veteran’s Security Deposit

Casey Hunt and Michael Vlcek

In October of 2018, the M-VETS represented a veteran and his wife at trial in General District Court to recover their $2,000 security deposit held by their former landlords. In a nearly five-hour long trial, M-VETS Student Advisors Casey Hunt and Michael Vlcek conducted an opening statement, direct and cross examinations, and a closing argument culminating in judgment for the full amount sought by the clinic’s clients.

“Michael and Casey did an excellent job through full trial preparations and ultimately securing a favorable judgment for our clients,” Leigh Winstead, M-VETS Assistant Director said. “Like many of our civil matters, this is a case where the attorneys’ fees required to litigate would have outweighed the potential recovery; M-VETS’s representation allowed this veteran and his family to pursue their legal remedies with the assistance of counsel and recover what was rightfully theirs,” Winstead said.

“To say that M-VETS is an amazing resource to the Veteran Community is a massive understatement,” said the veteran client. “Without this service we would have had no choice but to abandon our legal case. Their professionalism, dedication and work ethic are in line with the highest ethos we were all instilled with in the US military,” said the veteran.

M-VETS mission is to provide free legal representation to active-duty members of the armed forces, veterans, and their families while offering law students the opportunity to receive supervised, practical legal experience by advocating for those who serve or have served in our United States armed forces. M-VETS provides representation in a variety of matters including Virginia civil litigation matters, uncontested divorces, consumer protection matters, wills and powers of attorney, as well as assisting with matters before the VA and various administrative boards, including discharge upgrades, record corrections, military pay and entitlement matters, and VA disability benefit appeals.

M-VETS Provides Pro Bono Wills For Veterans at American Legion Post 139 Over Veterans Day Weekend

Group Photo
Pictured: Chris Babic, Jessica O’Connell, Leigh Winstead, Casey Hunt

The Antonin Scalia Law School M-VETS inaugural “Wills for Veterans” program was hosted by American Legion Post 139 in Arlington, Virginia on 10-11 November 2018. Along with M-VETS staff and Adjunct Faculty, Jessica O’Connell, M-VETS student-advisors Casey Hunt, Quinn Kahsay, Chris Babic, Katie Stegmuller and Brandon Howell represented Scalia Law School and the M-VETS program by assisting in the drafting of wills, powers of attorney, and living wills for veterans and their dependents.

The M-VETS Wills for Veterans program was created by M-VETS Assistant Director Leigh M. Winstead and Director Timothy M. MacArthur in an effort to provide these much-needed legal services to veterans and their dependents while increasing awareness of the pro bono legal services M-VETS is able to provide to this community. MacArthur believes outreach to organizations like the American Legion is essential in promoting the M-VETS program. “These outreach opportunities provide a valuable learning experience to the student-advisors as they are able to assist in providing legal services directly to our clients while also learning about veteran culture through first-hand experience,” MacArthur said.

Held over Veterans Day weekend, the M-VETS Wills for Veterans program assisted approximately 20 veterans and their dependents during the two-day event. M-VETS was joined by the Arlington County Bar Association Young Lawyers Division which sponsored the Wills for Heroes Program and provided wills to first responders and their dependents. Leigh Winstead was the M-VETS attorney providing legal services for the Will for Veterans program. “We are very grateful to American Legion Post 139 for hosting two great days of appreciation for our veterans and first responders. The fact that many veterans decided to spend part of their Veterans Day with us was very rewarding. We were also able to celebrate the 100-year anniversary of the end of World War I and pay our respects to those veterans.” Winstead said.

Student-Advisor Chris Babic commented: “I was honored to take part in the Wills for Veterans program. Assisting military veterans with legal services has been the most fulfilling experience of my time at Scalia Law School. M-VETS makes a valuable contribution to the military community while giving student advisors invaluable hands-on experience.”

Community Partnerships

M-VETS Finalizing Plans To Staff Student Advisors With Prince William County Veterans Treatment Docket

As the first clinical program in the Commonwealth of Virginia to provide Student Advisor volunteers to the Fairfax County Veterans Treatment Docket, M-VETS is looking to expand upon its involvement with these important specialty courts gaining traction throughout Virginia. Prince William County initiated its version of this specialized docket in 2017, which is dedicated to providing support and services to veterans charged in the General District Court whose alleged crime had a substance abuse or mental health component. The docket is geared toward providing veterans with support services needed for recovery, rehabilitation and reintegration into society. Judge William Jarvis of the Prince William County General District Court presides over the docket and was a driving force in its creation. M-VETS will look to provide Student Advisors to staff the docket, assisting in legal and administrative capacities, in 2019.

M-VETS Partners With LSNV to Support Veterans Law Project

After formalizing its partnership with Legal Services of Northern Virginia’s Veterans Law Project, M-VETS Student Advisors began supporting the project in 2018 by screening potential clients and cases. The Veterans Law Project launched by LSNV in 2015 focuses on assisting at-risk and homeless veterans in removing barriers to housing, employment, and self-sufficiency and providing legal representation in a wide array of legal matters, including landlord-tenant matters, family law issues, consumer and medical debt, driver’s license reinstatement, expungements, veterans benefits and discharge upgrades. Beginning in September of 2018, the Project began holding walk-in hours at the Alexandria Vet Center, where several M-VETS Student Advisors volunteered their time during the fall semester assisting in interviewing and screening cases to identify and create a holistic approach to serving the veteran’s legal needs.

Student Blog Highlights

Missing in Action: Will We Ever Know the Truth Behind the Vietnam Live-POW Claims?

By Spring 2018 M-VETS Student-Advisor Steven Brantley

In February of 1994, almost 20 years after the end of American involvement in the Vietnam War, President Bill Clinton lifted the decades-old trade embargo that the United States of America had in place on the Socialist Republic of Vietnam. Shortly thereafter, in August 1995, President Clinton officially restored full diplomatic relations between the two nations. Although these moves were praised by many American companies eager to do business in Vietnam, as well as some Vietnam Veterans, including a few prominent politicians from both sides of the political aisle, the move was largely opposed by scores of other Vietnam Veterans, their families, congressmen, and veterans’ organizations such as the American Legion. Central to this opposition were the many unresolved questions surrounding the fate of thousands of American servicemen still listed by the Pentagon as Missing in Action (“MIA”) or Prisoners of War (“POWs”) during the Vietnam War. Those opposed to President Clinton’s restoration of full ties with Vietnam did not believe that this longtime foe had been fully honest and forthcoming in accounting for the fate of all American POWs believed to be in Vietnamese hands at the time of the American military’s withdraw from Vietnam. Further, many contended that hundreds of American POWs were never released at the end of the War, and continued to be held in Vietnamese captivity for years after.

Then, in 2016, while on a state visit to Hanoi, Vietnam, then-President Barack Obama announced that his administration was lifting the nearly five-decades-old U.S. arms embargo on Vietnam. The lifting of this embargo allowed the communist government of Vietnam, with whom the United States fought a prolonged, bloody war in the not too distant past, to purchase the same high-tech American military aircraft, ships, and other weaponry available to longtime American allies in the region such as The Philippines, Singapore, and Taiwan. In fact, defense industry sources have already reported that Vietnam is very interested in acquiring surplus American F-16 fighter jets and Orion sub-hunter aircraft. When the decision to lift the arms embargo was announced, there was palpable concern among many members of Congress, who would be called upon to approve any such future arms sales to this foe turned friend. Several members of Congress expressed concern that, with the lifting of the arms embargo, President Obama had removed America’s one remaining bargaining chip to force Vietnam’s government to improve its human rights record, which has been at best questionable since the end of the Vietnam War. Largely missing from this congressional discussion however, was any concern over resolving the decades-old claims by many Vietnam-era servicemen and politicians that, when direct American involvement in the Vietnam War came to an end in 1973, hundreds of live American POWs were left to languish in Vietnamese prison camps. Despite this apparent congressional indifference, the mystery of live American POWs left behind in Vietnam, or, rather, held back by the Vietnamese government at the end of the War, has persisted since the end of the War and continues to have a dedicated following among many Vietnam Veterans and their families.

In the early 1990s, just before the normalization of relations between the United States and Vietnam, 2,202 United States servicemen were still officially listed as missing in Southeast Asia as a result of the war fought between the two nations in the 1960s and early 1970s. Among this number were approximately 135 American servicemen who, at the conclusion of American involvement in the Vietnam War in 1973, were listed as being held captive by what was then North Vietnam. Although this number has been somewhat whittled down over the years, the question as to the whereabouts of most of these service members persists to this day.

Inseparable from the question of whether any American servicemen were held back by the Vietnamese government at the end of the War is the question of why the Vietnamese would do such a thing. Practically speaking, it would have been much easier for the Vietnamese to simply release all American POWs in their captivity at the end of the War, or, as tragic as this sounds, quietly kill and bury any POWs that, for whatever reason(s), the Vietnamese did not want to acknowledge holding. One of the most prominent and credible theories for why the Vietnamese might have held onto a select number of POWs is that, after the War, Vietnam planned on seeking war reparations from the Nixon Administration, with some even insinuating that President Nixon secretly promised such reparations-for-prisoners during the Paris Peace Talks that preceded the end of the War. Further, another often-touted theory involves the Vietnamese government sending American POWs to their allies in the Soviet Union, Eastern Europe, and North Korea to share with these allied powers the POWs’ knowledge of American military tactics and weapons systems.

Regardless of the Vietnamese government’s reason for holding back live American POWs after the War’s end, this theory continued to persist well after the War, and even continues to this day. This notion of American POWs left behind in Vietnam has risen to mythical or cult-like status in some circles, even inspiring action movies starring the likes of Sylvester Stallone and Chuck Norris. However, many other people who continue to espouse this belief are arguably both very knowledgeable and credible sources. In the early 1990s, after the fall of the Soviet Union, Russian President Boris Yeltsin confirmed that and undisclosed number of American POWs were shipped to the Soviet Union from Vietnam, and continued to be held in Soviet prisons long after the end of the Vietnam War. This claim by the Russian president added credibility, because, at the time, many high-ranking U.S. government officials already acknowledged that the Soviet Union had done this with Americans captured in other Cold War hot spots, such as the Korean Peninsula. Additionally, Command Sergeant Major (ret.) Eric L. Haney, a founding member of the elite U.S. Army Delta Force special operations group and current highly-regarded security and international affairs consultant, shared publicly that he believes American POWs were left behind in Vietnam after the War’s end. Haney stated that in the early 1980s he and his fellow Delta Force operators had reliable intelligence on the location of American POWs still alive in Vietnam, and were, on several occasions, days or even hours away from launching a rescue operation, only for the mission to be scrubbed at the last minute each time. Further, Haney has even stated that, long after the War’s end and these abandoned rescue attempts, he was asked very candidly by a senior Vietnamese politician why the Americans never tried to secure the release of their remaining POWs after the War. Finally, in the early 1990s, two United States Senators, John Kerry (D-MA) and Bob Smith (R-NH), both Vietnam Veterans themselves, each stated publically that there was strong evidence American POWs had remained in Vietnamese captivity after the War. The senators made these statements after being part of an intense Senate investigation into the Vietnam POW/MIA issue, in which a senate select committee issued a detailed report that “held out the possibility that some U.S. soldiers had languished in [Vietnamese] hands for at least a period of time after the hostilities ended.” Senator Smith even went so far as to say that he believed “that POWs and MIAs have been alive, or were alive [in Vietnam], up through 1989.”

To this day, these claims remain largely unrefuted. When President Obama announced the lifting of the long-standing arms embargo on Vietnam in 2016, there was noticeable opposition from many Vietnam Veterans and veterans’ organizations, who cited these yet to be resolved POW claims in their opposition to the lifting of the arms embargo. However, as noted in the second paragraph above, opposition over the POW/MIA issue among members of Congress was conspicuously absent. This congressional opposition, or rather lack thereof, is extremely important, as it is members of Congress who are responsible for approving any future arms sales to America’s once bitter foe. Although the anti-Vietnam sentiment in Congress has mostly diminished, having been replaced with the desire to further open up emerging Vietnamese markets to American businesses, and concerns over checking China’s rise as a military power in the region, these new political priorities should not take away from the concerns of those Americans, however few, who still do not have a definitive answer as to the fate of their husbands, sons, brothers, and fellow soldiers. Were these American servicemen really left behind, or was the thought of those left behind eventually returning a way for many to hold onto some hope in what was a lost war? In either case, hopefully, if and when Congress is called upon to approve a major arms sale to the Socialist Republic of Vietnam, Congress will use what little bargaining power it has left and find the courage to finally demand a full accounting for all American servicemen that may have been left behind at the end of the Vietnam War.

Land Of Opportunity? The American Dream Becomes A Nightmare For Deported Military Veterans

By Spring 2018 M-VETS Student-Advisor

U.S. military veterans
U.S. military veterans who have been deported to Mexico are seen honoring fallen soldiers on Memorial Day in Juarez, Mexico. (Herika Martinez/AFP/Getty Images)

The United States of America, a country formed by immigrants, is referred to as the “Land of Opportunity” where dreams of success can come true with hard work and perseverance. The U.S. military is one such opportunity for immigrants. Certain noncitizens are eligible to enlist in the military and are then able to pursue an expedited path to citizenship. However, the potential consequences for veterans who have honorably served but have not been naturalized as citizens can be severe, with countless veterans deported each year. For these individuals, the Land of Opportunity ignores their contributions and service to the United States and forces them to leave the country they swore to defend.

Opportunities for Noncitizens to Join the Military

Section 504 of Title 10 of the United States Code (“U.S.C.”) establishes the citizenship and residency requirements for serving in all branches of the U.S. armed forces. Under 10 U.S.C. § 504(b)(1), a person may join the military if he is a citizen of the United States or a “lawfully admitted permanent resident,” which is also referred to as a permanent resident alien, resident alien permit holder, or Green Card holder.

In addition to lawful permanent residents being eligible to join the U.S. military, in 2008, the Department of Defense (“DoD”) established the Military Accessions Vital to National Interest (“MAVNI”) program. This pilot program authorizes a limited number of “legally present” noncitizens, including refugees, asylees, and those in certain other non-immigrant categories, to join the military if they possess skills deemed critical, including health care skills and expertise in specified foreign languages.

Under the statute and through programs like MAVNI, noncitizens can and do join the U.S. military. In fact, noncitizens have served in the U.S. military dating as far back as the Revolutionary War. About 8,000 noncitizens join each year, and approximately 35,000 noncitizens are currently serving in an active duty status in the U.S. armed forces.

Naturalization Opportunities for Noncitizens in the Military

Joining the military provides several benefits for noncitizens, including a fast-track to citizenship. The Immigration and Nationality Act (“INA”) includes special provisions that permit lawful permanent residents who have served in the U.S. armed forces to be naturalized as U.S. citizens through an expedited process. Under the INA, most naturalization applicants must have continuously resided in the United States as a permanent resident for at least five years. This requirement is waived for those who have served in the military. Further, the INA also waives the requirement that an applicant reside in the state in which the application for naturalization is filed for a minimum of three months. The naturalization process can be further expedited if the individual served honorably during a designated period of hostility, including during the War on Terrorism from September 11, 2001, to the present.

Additionally, the MAVNI program, described above, “allows certain non-citizens legally present in the United States to join the U.S. armed forces in exchange for immediate eligibility for U.S. citizenship.” Individuals who join the military through MAVNI are eligible to apply for U.S. citizenship without first becoming lawful permanent residents. “An individual who joins the armed forces through this program is able to move from nonimmigrant, asylee, refugee, or [Temporary Protected Status] directly to U.S. citizenship.”

Prior to Fiscal Year 2018, one day of service in the military during a designated period of hostility was sufficient for a noncitizen to be eligible for expedited citizenship. However, on October 13, 2017, the DoD issued new policy that requires noncitizen applicants to first obtain a favorable background and security suitability determination, complete basic training, and serve for 180 consecutive days, or one year in a reserve component, and acquire an honorable characterization of service determination. While this is more burdensome than prior to the policy change, it still reflects a more expedited process for noncitizens with military service compared to other noncitizens.

Deportation of Veterans Who Have Not Been Naturalized

Under existing laws and policies, noncitizen veterans risk being permanently expelled from the United States if convicted of a crime. Immigration laws provide for deportation and permanent exile of a noncitizen who is convicted of an “aggravated felony.” While this sounds like it only applies to the most serious of offenses, “an ‘aggravated felony’ does not require the crime to be ‘aggravated’ or a ‘felony’ to apply.” Rather, under the INA, “aggravated felony” covers over 30 crimes – with the list regularly growing – and includes minor drug crimes and many non-violent misdemeanors such as tax evasion and failing to appear in court. Further, if Congress adds a new crime to the list of aggravated felonies, noncitizens who previously have been convicted of such crime become immediately deportable.

The Supreme Court recently weighed in on the aggravated felony provision of the INA in Sessions v. Dimaya. In a 5-4 decision, the Court determined that a “crime of violence” under the aggravated felony provision was unconstitutionally vague. Given the Court’s ruling, noncitizens can no longer be deported for being convicted of a “crime of violence,” defined as a felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The decision seems like a win for noncitizens by limiting the types of crimes that may justify deportation, but it is not likely to have a significant impact on the number of noncitizens removed for committing violent offenses as there are several other violent crimes listed as aggravated felonies. While the case has brought attention to the types of crimes that result in automatic deportation, the Court did not specifically address the less serious, non-violent offenses that are considered aggravated felonies under the INA, so those provisions remain valid.

In addition to being subject to deportation, an aggravated felony conviction also results in the individual becoming ineligible for most forms of relief from deportation, such as cancellation of removal and asylum. Further, noncitizens convicted of aggravated felonies become permanently ineligible from being readmitted into the United States in the future. And there is currently no exemption in the immigration laws and policies related to military service. Therefore, it is possible for a misdemeanor conviction to result in permanent exile from the United States, even for an individual who has demonstrated loyalty to the nation through honorable service in the military.

Ironically, veterans who are deported after being convicted of an aggravated felony can only return to the United States upon their death. The Department of Veterans Affairs (“VA”) provides that all veterans, without regard to citizenship status or deportation, are entitled to burial at a national cemetery with a Government headstone or marker and full military honors. The VA will even contribute up to $300 to return the deportee’s remains to the United States for burial. “Every deported veteran…may be welcomed back and honored as Americans in death, despite being banished from the United States in life.”

While expedited citizenship is an option for noncitizens in the military, many are unaware of this option or commonly have the misconception that their military service automatically confers citizenship. “[T]he federal government failed to ensure that noncitizens in the military received accurate information about military naturalization.” The United States does not track how many noncitizen veterans are deported each year, but it is estimated that hundreds – if not thousands – of veterans have been deported over the course of the last several years. Perhaps if more effort was expended explaining to noncitizens in the military how they may be naturalized and helping those individuals navigate the labyrinth that is the immigration process, deportation of military veterans could be avoided.

The Debate: Which is More Important – Veteran Status or Immigrant Status?

As part of their military service, veterans swore to honor and defend the U.S. Constitution; they risked losing their lives to protect the rest of the nation. Given this commitment and service, should noncitizen veterans be treated as U.S. citizens with respect to criminal sanctions (e.g., charged, convicted, and punished for their crimes, but not deported)? Alternatively, is deportation and ineligibility for readmission to the United States appropriate given the individual’s immigrant status and criminal conviction?

As mentioned, immigration laws related to deportation do not currently provide any kind of waiver or exemption for those with military service. Members of Congress may be unwilling to fight for modification of these laws to protect veterans facing deportation as it could be perceived as advocating for convicted criminals. Similarly, some veterans and veterans’ groups argue that although veterans should be held in high regard, they should also follow the law. Immigrant veterans should not receive sympathy if they have committed a crime, and an honorable discharge should not serve as a “free pass” to prevent deportation.

On the opposite side, this is considered a veterans’ issue, not an immigration issue, and veterans who have honorably defended the United States should be entitled to special treatment for the purpose of immigration law. For instance, Representative Thompson has introduced legislation to amend the INA to protect noncitizen veterans by prohibiting deportation of any noncitizen veteran who has honorably served but has been convicted of an aggravated felony. As Representative Thompson stated, “[i]f someone is willing to put on the uniform of the United States military, the last thing they should have to worry about is their immigration status…we shouldn’t be deporting them.” Similarly, Representative Grijalva proposed to amend the INA to prevent the deportation of veterans who commit non-serious crimes. Under this bill, veterans who commit felonies and serious misdemeanors (including misdemeanors related to domestic violence, sexual assault, and illegal firearms possession, or resulting in a prison term of more than 90 days) would still be subject to deportation. Despite apparent congressional support for modifying the INA to provide greater leniency for noncitizen veterans, these bills have not advanced within Congress.

Rather than tackling complex immigration laws, another perspective emphasizes addressing the factors that may lead a noncitizen veteran to commit a criminal act resulting in deportation. After separating from the military, many noncitizen veterans return to low-income and/or high-crime neighborhoods and struggle with the transition to civilian life. These veterans face obstacles ranging from challenges as basic as finding employment to more complicated matters of dealing with physical and mental injuries related to their military service. The crimes for which deported veterans are convicted may be indicative of the struggles they face with returning to civilian life. For instance, in 2012, over three-quarters of incarcerated veterans had been discharged honorably or under honorable conditions. However, these individuals were more likely than non-veterans to have been convicted of violent offenses. Because there is a requirement that all military enlistees – both citizens and noncitizens – not have a felony criminal conviction before joining the military, some have suggested that this post-military violent criminal behavior indicates a need to provide greater or more effective resources to support veterans separating from the military to prevent this criminal conduct.

As these competing viewpoints may indicate, the future of this debate remains unclear. The current Presidential administration appears focused on tightening immigration laws and policies, but there is some Congressional support for modifying immigration laws to address the deportation rules as they relate to our military veterans. Regardless of the outcome of this debate on the legislative side, there is evidence that greater attention may be warranted in developing more effective policies and programs to support veterans with the unique struggles they face upon transitioning to civilian life to prevent criminal behavior that could lead to deportation. Further, improved assistance with navigating the naturalization process could be provided to noncitizens with military service to avoid the deportation debate entirely.