Abdul M. Khan et al v. Jeh Johnson et al

Filing 59

MINUTES OF Motion Hearing held before Judge Christina A. Snyder RE: Plaintiff's Motion for Collateral Estoppel 46 ; and Defendant's Cross-Motion for Summary Judgment 49 . The Court construes Plaintiff's motion as a motion for summar y judgment pursuant to Federal Rule of Civil Procedure 56. The Court finds that USCIS is collaterally estopped from denying plaintiff's application for adjustment of status on the grounds that he has engaged in a terrorist activity. The Court, t herefore, GRANTS plaintiff's motion for summary judgment and DENIES defendant's motion for summary judgment. USCIS's denial of plaintiff's application is hereby set aside pursuant to 5 U.S.C. Section 706. Court Reporter: Laura Elias. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:14-CV-06288-CAS(CWx)

Title

JS-6

ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

Present: The Honorable

Date

‘O’

February 1, 2016

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Laura Elias
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Laura Weinstock

Anthony Bianco

Proceedings:

PLAINTIFF’S MOTION FOR COLLATERAL ESTOPPEL (Dkt.
46, filed November 19, 2015)
DEFENDANT’S CROSS-MOTION FOR SUMMARY
JUDGMENT (Dlt. 49, filed December 7, 2015)

I.

INTRODUCTION

On October 6, 2015, plaintiff filed the operative First Amended Complaint
(“FAC”) in this action against defendants Jeh Johnson, in his capacity as the Secretary of
the Department of Homeland Security, Leon Rodriguez, in his capacity as the Director of
the United States Bureau of Citizenship and Immigration, and Susan Curda, in her
capacity as the Director of the Los Angeles office of the United States Citizenship and
Immigration Services (“USCIS”) (collectively, “defendants”). Dkt. 41.
Plaintiff fled Pakistan in 2001 out of fear of persecution for his involvement with a
Pakistani political group the Muhajir Qaumi Movement–Altaf Faction (“MQM–A”). See
Certified Administrative Record (“CAR”), at 442-43. Plaintiff applied for asylum in the
United States and was, eventually, granted asylum in 2006. Id. at 56, 442-43. One year
later, plaintiff applied with USCIS to adjust his citizenship status from asylee to
permanent resident. Id. at 51-55. However, USCIS denied plaintiff’s application. Id. at
1-4. Specifically, USCIS determined that the MQM–A was an “undesignated terrorist
organization” and therefore found that plaintiff was statutorily ineligible for an
adjustment of status to permanent resident because he had provided “material support” to
terrorist activity. Id. In his complaint, plaintiff requests that the Court set aside USCIS’s
denial of his application for adjustment to permanent status. Plaintiff argues that in
granting his application for asylum defendants necessarily determined that plaintiff’s
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ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

involvement with the MQM–A did not constitute “terrorist activity” and thus did not
render him statutorily ineligible for an adjustment of status. Accordingly, plaintiff argues
that, under the doctrine of collateral estoppel, defendants should be precluded from
denying plaintiff’s application for an adjustment of status on the grounds that he has
engaged in terrorist activity.
On November 19, 2015, plaintiff filed a motion for summary judgment. Dkt. 46.1
On December 7, 2015, defendants filed an opposition to plaintiff’s motion and filed their
own motion for summary judgment. Dkt. 49. On January 11, 2016, plaintiff filed an
opposition to defendants’ motion, Dkt. 57, and on January 15, 2016, defendants filed a
reply in support of their motion, Dkt. 58. Having carefully considered the parties’
arguments, the Court finds and concludes as follows.
II.

BACKGROUND

Except where noted, the following facts are undisputed and are taken from the
certified administrative record in this matter, which has been lodged with the court. Dkt.
47.
A.

Statutory Framework

8 U.S.C. § 1158 governs the process by which a foreign national may apply for
asylum. Pursuant to this statute, “[a]ny alien who is physically present in the United
States or who arrives in the United States . . . may apply for asylum.” 8 U.S.C. §
1158(a)(1). In order for an Immigration Judge (“IJ”) to grant an application for asylum,
the applicant must demonstrate that he or she qualifies as a “refugee.” Id. §
1158(b)(1)(A). A refugee is defined as a person who is unable or unwilling to return to
their home country “because of persecution or a well-founded fear of persecution on

1

Plaintiff’s motion is entitled “Motion for Collateral Estoppel.” Dkt. 46. The
Court construes this motion as a motion for summary judgment pursuant to Federal Rule
of Civil Procedure 56. Plaintiff appears to be arguing that based on the administrative
record in this action and the declarations of his attorney, i.e. materials outside of his
pleadings, he is entitled to judgment as a matter of law. Such an inquiry is appropriately
addressed on a motion for summary judgment.
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account of race, religion, nationality, membership in a particular social group, or political
opinion.” Id. § 1101(a)(42)(A). In addition, the IJ must determine there are no statutory
bars that preclude the applicant from obtaining asylum. Id. § 1158(b)(2)(A). As relevant
here, one of those statutory bars is that the applicant has been involved in “terrorist
activity.” Id. § 1158(b)(2)(A)(v).
After an applicant has been granted asylum, 8 U.S.C. § 1159, governs the process
by which an asylee may apply for an adjustment of citizenship status to “permanent
resident.” Under this section, the Secretary of Homeland Security or the Attorney
General may, in their discretion, adjust to permanent resident the status of any alien
granted asylum who, inter alia, “has been physically present in the United States for at
least one year after being granted asylum,” “continues to be a refugee within the meaning
of section 1101(a)(42)(A),” and “is admissible (except as otherwise provided under
subsection (c) of this section) as an immigrant under this chapter at the time of
examination for adjustment of such alien.” Id. § 1159(a)(2)(B)(1)-(5). Subsection (c), in
turn, refers to section 1182, which defines ten categories of individuals who are ineligible
for admission to the United States. As relevant here, one of these categories includes
individuals who are involved in “terrorist activities.” Id. § 1182(a)(3)(B).
B.

Khan’s Application for Asylum

Khan is a citizen of Pakistan who entered the United States on November 14, 2001
with his wife and two of his children. CAR, at 51, 442-43. On November 6, 2002, Khan
filed an application for asylum on behalf of himself, his wife, and his children, with the
former Immigration and Naturalization Services (“INS”).2 CAR, at 441-49. Khan
submitted his application via an INS form I-589, Application for Asylum and for
Withholding of Removal. Id. In response to several of the questions on the I-589 form,
Khan referred to his membership with the MQM–A. For example, one of the questions
asks: “Do you fear harm or mistreatment if you return to your home country?” Id. at 445.
Khan responded: “I am in fear of returning to my home country, where I would be
detained and beaten, and possibly killed by the police because of my membership with

2

On March 1, 2003, the INS was dissolved and many of its relevant functions were
transferred to the newly created Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 110 Stat. 2135 (Nov. 25, 2002).
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the M.Q.M.” Id. Another question asks: “Are you afraid of being subjected to torture in
your home country or any other country to which you may be returned?” Id. at 446.
Khan responded: “I am afraid that I will be harassed by the military police, as I was
detained and beaten because of my membership in the M.Q.M., and threatened by death.”
Id. at 446. In addition, Khan attached a declaration to his I-589 form in which he
admitted that he joined the MQM–A in September of 1996, and that his responsibilities
with the group included distributing leaflets and helping Mohajirs in Pakistan to find
housing, employment, and utility services. Id. at 452.
In May of 2003, an asylum officer in the INS’s Los Angeles Asylum Office
interviewed Khan regarding his asylum application. Id. at 427. The asylum officer
denied Khan’s application because he found that Khan’s testimony was “not credible
because it contained material discrepancies within itself and with evidence [Khan]
brought to his interview.” Id. The asylum officer also prepared an “assessment” of Khan
based upon Khan’s interview. Id. at 429-31. In this assessment, the asylum officer made
frequent reference to Khan’s involvement with the MQM–A. See, e.g., id. at 429
(“[Khan] related that he has been an active member in the MQM–Altaf party since
September 1996 and was still a member at the time of his asylum interview.”); id. at 430
(“The applicant presented, at the time of his interview, a letter from the MQM–A dated
February 05, 2002, which indicates that he has been a member of this party since 1996”).
The asylum officer also noted, in his assessment, that he questioned Khan regarding
allegations that the MQM–A was a violent group. Id. at 431. Specifically, the asylum
officer stated:
The applicant was asked if MQM–A was not a violent group or
accused of this. He replied that his party had never done acts of
violence, and that it was the rival MQM–H[aqiqi] which had
committed the violent acts. However, credible country conditions
indicate that the MQM–A has engaged in numerous acts of violence
and torture during the 1990’s against off duty police officers and their
families; Mohajirs who choose to join political parties other than the
MQM have been intimidated or attacked by MQM loyalist[s]; and the
MQM has attacked and intimidated news agencies critical of it. The
leadership [of] the MQM know which of its members commit
terrorists activities [sic], but chooses not to expel them because they
are deemed to be useful.
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Id. The asylum officer noted Khan’s testimony that the MQM–A was a non-violent
organization as one of the discrepancies that made his testimony not credible. Id.
As a result of the asylum officer’s findings, the INS did not grant Khan’s asylum
application, and issued him a Notice to Appear ordering him to appear before an
Immigration Judge (“IJ”) for removal proceedings on June 23, 2003, as well as for a de
novo consideration of his asylum claim. Id. 424-25. Khan appeared before an IJ on June
23, 2003, and renewed his asylum claim. Id. at 162. Khan’s asylum hearing was held on
July 21, 2004. Id. at 165.
During his asylum hearing, Khan was asked whether he was a member of any
political party or organization in Pakistan. Id. at 178. In response to this question, Khan
informed the IJ that he was a member of the MQM–A and had been a member since
September of 1996. Id. Khan was also asked why he had joined the MQM–A and what
services he provided for that organization. Id. at 179. He responded that he had joined
the MQM–A “for the benefit of the Muhajirs” who face difficulties finding employment
and gaining access to utilities and other services in Pakistan. Id. Khan was asked to be
more specific regarding his activities on behalf of the MQM–A. Id. He elaborated that
his activities had also included fundraising, recruitment, and the “resolution of people’s
complaints.” Id. Khan was then asked follow-up questions regarding what he meant by
“resolution of people’s complaints” and Khan explained that various members of the
MQM–A would complain that they were having difficulty obtaining access to water and
public utilities and finding jobs, and Khan would help resolve these complaints. Id. at
179-80.
Ultimately, the IJ determined that Khan lacked credibility and denied his
application for asylum on July 22, 2004. Id. at 152-56. The IJ issued a formal order in
which he explained that he was denying Khan’s application because he found that Khan
had failed to sufficiently establish that he was a refugee with a credible fear of
persecution. Id. In this order, the IJ also briefly referred to Khan’s testimony that he was
a member of the MQM–A and had performed various tasks for that organization. See id.
at 147 (“The respondent paraphrased that he acted as an ombudsman and as a figure head
for the MQM by advocating better housing, utilities, and employment, as well as
resolving disputes and fundraising on behalf of the Muhajirs.”).
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ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

Khan appealed the IJ’s denial of his application to the Board of Immigration
Appeals (“BIA”). Id. 293. Khan argued on appeal that the IJ’s credibility determinations
were unsupported by the facts in the record and articulated by the IJ during Khan’s
asylum hearing. Id. at 120. On October 27, 2005, the BIA sustained Khan’s appeal and
found that it could not uphold the IJ’s negative credibility finding. Id. at 58-60.
Specifically, the BIA reasoned that under the law of the Ninth Circuit, the “Immigration
Judge’s speculation that the respondent was not fleeing persecution when he arrived in
the United States in 2001” could not support a negative credibility finding, and noted that
the “Ninth Circuit has often stated that an Immigration Judge may not deny an asylum
application based simply upon his or her perception that an alien’s testimony is
implausible.” Id. at 59. In its order, the BIA also noted Khan’s testimony that he had
fled Pakistan in 2001 after he was arrested and detained for his support of the MQM–A
party. Id. The BIA suggested that this testimony supported Khan’s assertion that he had
a reasonable fear of persecution if he returned to Pakistan. Id. Accordingly, the BIA
ordered that Khan was statutorily eligible for asylum and that he was not “undeserving of
such relief as a matter of discretion.” Id. at 60.3
The BIA remanded Khan’s asylum application to the IJ, id. at 60, and the IJ
granted Khan, and his family, asylum status on June 5, 2006, id. at 56.
C.

Khan’s Application for Adjustment of Status

On June 8, 2007, Khan filed an application for adjustment of status with USCIS
requesting that he, and his family, be made permanent residents of the United States.
CAR, at 51-55. Khan submitted his application via a USCIS form I-485, Application to
Register Permanent Resident or Adjust Status. Id. On June 24, 2009, USCIS sent Khan a
letter conveying that he appeared to be ineligible for admission to the United States. See
Dkt. 1, Compl. Ex. D. USCIS stated that the grounds for Khan’s ineligibility was his
affiliation with the MQM–A, an organization USCIS contends is a terrorist organization.
Id. Nonetheless, rather than denying Khan’s application, USCIS stated that it was
“holding adjudication in abeyance” while the Department of Homeland Security
considered policies that might enable USCIS to approve Khan’s application in the future.
3

The BIA did not, however, make an express determination regarding whether
Khan’s involvement with the MQM–A constituted “terrorist activity.”
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Id. More specifically, beginning in March 2008, USCIS enacted a policy that, in cases
where an applicant was inadmissible for terrorist-related activities, USCIS would place
an application on hold in order to await the possible exercise of the Secretary of
Homeland Security’s discretionary authority to create exemptions to the inadmissibility
bars, such that the applicant could receive a favorable adjudication. Dkt. 11-1, Canaan
Decl., at 5-9. Khan and his family’s applications were placed on hold pursuant to this
policy.
On August 11, 2014, Khan and his family filed a complaint in this Court claiming
that defendants had unreasonably delayed adjudicating their applications to adjust status.
Dkt. 1, Compl. By the time Khan filed his complaint, his and his family’s I-485
applications had been pending for over seven years. On April 17, 2015, the Court held a
telephonic status conference. Dkt. 24. During this conference, defendants represented
that, although the I-485 applications of the other members of Khan’s family had been
adjudicated in those person’s favor, defendants would not adjudicate Khan’s application
unless ordered to do so by the Court. See Dkt. 25, at 2. Accordingly, the Court, on its
own motion, ordered defendants to adjudicate Khan’s I-485 application within sixty days.
Id.
On April 28, 2015, USCIS issued Khan a Notice of Intent to Deny (“NOID”) on
the grounds that plaintiff had engaged in terrorist activities by providing material support
to the MQM–A. CAR, at 15-17. In the NOID, USCIS noted that Khan had stated on his
asylum application that he was a member of the MQM–A and, as a member, had
“distributed leaflets, collected money and persuaded others to join the group.” Id. at 16.
USCIS then went on to explain why it considered the MQM–A to be a terrorist
organization, as that term is defined under the Immigration and Naturalization Act (the
“INA”). Id. at 16-17.4 Specifically, USCIS stated that “[a]ccording to widely available
4

The INA sets forth three categories of terrorist organizations referred to as Tier I,
II, and III organizations. See 8 U.S.C. § 1182(a)(3)(B)(vi). Tier I and II organization are
formally designated as terrorist organization either by statute under the INA itself (Tier I)
or by the Secretary of State in consultation with the Attorney General or the Secretary of
Homeland Security (Tier II). Id. § 1182(a)(3)(B)(vi)(I)-(II). By contrast, Tier III
organizations, referred to as “undesignated terrorist organizations,” need not be formally
designated. Id. § 1182(a)(3)(B)(vi)(III). Instead, Tier III organizations are defined as “a
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ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

public information, the MQM–A engaged in numerous violent activities, including
killings, in Pakistan during the 1990s.” Id. at 16. Based on these acts, USCIS explained
that it considered the MQM–A to meet the definition of an “undesignated terrorist
organization” under the INA. Id. at 17.
On May 26, 2015, Khan, through his counsel, filed a response to the NOID. Id. at
9-10. In this response, Khan noted that at no time during his asylum proceedings was he
ever found to have been involved in “terrorist activity.” Id. at 9. Khan also noted that the
MQM–A had never been designated as either a Tier I or Tier II organization, and that the
NOID represented the first time in this case in which USCIS had designated the MQM–A
as a terrorist organization. Id. Finally, Khan challenged USCIS’s finding that his
services on behalf of the MQM–A constituted “material support” for terrorist activities
and argued that USCIS had failed to establish that Khan knew or should have known that
his actions might constitute material support for terrorist activities. Id. at 9-10.
On June 11, 2015, USCIS formally denied Khan’s application, finding him to be
ineligible for admission to the United States on the basis of his activities with the
MQM–A. Id. at 1-4. On October 6, 2015, Khan filed an amended complaint with this
Court requesting that the Court set aside USCIS’s denial of his application.
III.

LEGAL STANDARD
A.

Motion for Summary Judgment

Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the initial burden of identifying relevant portions of the
record that demonstrate the absence of a fact or facts necessary for one or more essential
group of two or more individuals, whether organized or not, which engages in, or has a
subgroup which engages in, [terrorist activity].” Id. The INA then sets forth a series of
criteria regarding what constitutes “terrorist activity.” Id. § 1182(a)(3)(B)(iv)(I)-(IV).
Decision makers, such as Immigration Judges, may then find, based on the facts of a
given case, and in light of the criteria set forth in the INA, that a particular group is an
undesignated terrorist organization. Id.
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elements of each claim upon which the moving party seeks judgment. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the opposing party must then set out
specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c), (e). The
nonmoving party must not simply rely on the pleadings and must do more than make
“conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for
the moving party if the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322; see also Abromson v. Am.
Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).
In light of the evidence presented by the nonmoving party, along with any
undisputed facts, the Court must decide whether the moving party is entitled to judgment
as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the
inferences to be drawn from the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat’l Bank of Ariz. v. A.E.
Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving
party is proper when a rational trier of fact would not be able to find for the nonmoving
party on the claims at issue. See Matsushita, 475 U.S. at 587.
B.

Standard of Review under the Administrative Procedure Act

A reviewing court may set aside agency action if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), or if
the agency acts without observing “procedure required by law,” 5 U.S.C. § 706(2)(D). A
reviewing court must examine the administrative record to determine whether the agency
has “articulated a rational relationship between its factual findings and its decision . . .
[and whether] its decision was based on relevant factors and does not constitute a clear
error of judgment.” Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1132
(9th Cir. 2010). In regards to the USCIS in particular, it is “an abuse of discretion for the
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Service to act if there is no evidence to support the decision or if the decision was based
on an improper understanding of the law.” Kazarian v. U.S. Citizenship & Immigration
Services, 596 F.3d 1115, 1118 (9th Cir. 2010). In addition, when an agency offers
multiple, independent and adequate grounds for its decision, a court should “affirm the
agency so long as any one of the grounds is valid, unless it is demonstrated that the
agency would not have acted on that basis if the alternative grounds were unavailable.”
BDPCS, Inc. v. F.C.C., 351 F.3d 1177, 1183 (D.C. Cir. 2003).
IV.

ANALYSIS

Khan argues that USCIS should be collaterally estopped from denying his
application for adjustment of status on the grounds that he has engaged in terrorist
activity with the MQM–A. Defendants argue that the Court should reject this argument
for two reasons: First, they argue that the doctrine of collateral estoppel does not apply to
USCIS’s determination of an applicant’s eligibility for admission to the United States.
Second, they argue that, even applying the doctrine of collateral estoppel, Khan has failed
to satisfy all of the elements of collateral estoppel. The Court addresses each of these
arguments in turn.
A.

Whether Collateral Estoppel Applies to USCIS’s Adjudication of an
Adjustment of Status Application

“Congress is understood to legislate against a background of common-law
adjudicatory principles.” Astoria Fed. Sav. & Loan Ass’n. v. Solimino, 501 U.S. 104,
108 (1991). Accordingly, the Supreme Court has held that there is a presumption that
Congress intended for well-established common-law principles, such as collateral
estoppel, to apply to the decisions of administrative agencies. Id. (“[W]here a commonlaw principle is well established, as are the rules of preclusion, the courts may take it as
given that Congress has legislated with an expectation that the principle will apply”)
(citations omitted); see also Univ. of Tenn. v. Elliott, 478 U.S. 788, 798 (1986) (“We
have previously recognized that it is sound policy to apply principles of issue preclusion
to the factfinding of administrative bodies acting in a judicial capacity.”). This
presumption applies “except when a statutory purpose to the contrary is evident.”
Astoria, 501 U.S. at 108. In other words, absent a legislative intent to the contrary, the
Court should presume that common-law principles such as collateral estoppel, apply to
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the decisions of USCIS. The Supreme Court has also noted that the legislative intent to
bar application of collateral estoppel does not require a “clear statement” to that effect;
rather, it can be inferred from the plain language of the statute. Id., 501 U.S. at 108.
Defendants concede that the governing statute in this case––the INA––does not
contain an express provision requiring USCIS to adopt any particular preclusion
principles. However, they argue that it is apparent from the plain language of the INA
that Congress did not intend for administrative collateral estoppel to apply. In particular,
they note that 8 U.S.C. § 1159(b)(5) states that, in adjudicating an application for
adjustment of status, USCIS must determine whether an applicant is eligible for
admission to the United States “at the time of examination for adjustment.” (emphasis
added). Defendants argue that, regardless of any earlier asylum proceedings, the
language “at the time” requires USCIS to conduct an entirely new inquiry into the
asylee’s admissibility when he or she applies to become a permanent resident.
Defendants contend that if the IJ’s findings in the asylum proceeding were to have
preclusive effect, that would limit the efficacy of having USCIS conduct a second and
new inquiry when the applicant applies for permanent residency.
Defendants are correct that the INA envisions a two-step inquiry whereby an
applicant’s admissibility to the United States is evaluated both when they apply for
asylum and when they apply for permanent residency. However, that Congress intended
for applicants to be evaluated twice does not, in and of itself, suggest that Congress
intended to bar the application of collateral estoppel––particularly given that there is a
presumption that collateral estoppel should apply to the decisions of administrative
agencies.
Moreover, the purpose of having a two-step inquiry is not to give the government
two bites at the apple. Rather, as Khan argues, the purpose of the second inquiry is to
evaluate any new circumstances that may have arisen or any new facts that have come to
light during the one year period applicants are required to wait between when they are
granted asylum and when they apply for permanent residency. As one court recently
described it: “the two step process is not indicative of the legislative intent to bar
collateral estoppel . . . The one year wait time is a trial period to allow the government to
assess how an asylee adjusts to the United States. The second step is to evaluate any new
information or problems that may have arisen in that year.” Islam v. Department of
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Title

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February 1, 2016

ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

Homeland Security, ---F. Supp. 3d ---, 2015 WL 5653548, at *5 (N.D. Cal. 2015).
Accordingly, were new circumstances to arise during the year after Khan was granted
asylum, USCIS could consider those circumstances in ruling on his application for
permanent residency. For example, if new evidence were to come to light regarding
Khan’s involvement with the MQM–A and his purported support of terrorist activities,
USCIS might have cause to reevaluate Khan’s admissibility.
However, in cases such as this, where the parties appear to concede that no
material facts have changed since the applicant was granted asylum, permitting the same
issue to be adjudicated twice would only cause inefficiency and potentially result in
inconsistent decisions. These are exactly the harms collateral estoppel is intended to
prevent––i.e., wasting judicial resources, unfairness to parties who have already fully
litigated an issue, and inconsistent decisions. See also Elliott, 478 U.S. at 798 (“Th[e]
value [of collateral estoppel], which encompasses both the parties’ interest in avoiding
the cost and vexation of repetitive litigation and the public’s interest in conserving
judicial resources, is equally implicated whether factfinding is done by a federal or state
agency.”) (citations omitted).
Defendants’ argument is also undermined by the fact that USCIS’s evaluation of an
application for adjustment of status involves a number of bars to admissibility that do not
apply when an applicant applies for asylum. Specifically, section 1158––which governs
applications for asylum––contains six statutory bars for which an IJ must deny an
application for asylum. These include: (1) if the alien has participated in the persecution
of any person; (2) if the alien has been convicted of a particularly serious crime; (3) if
there are reasons for believing that the alien has committed a serious nonpolitical crime
outside the United States; (4) if there are reasonable grounds for regarding the alien as a
danger to the security of the United States; (5) if the alien has engaged in terrorist
activity; and (6) if the alien was firmly resettled in another country prior to arriving in the
United States. 8 U.S.C. § 1158(b)(2)(A)(i)-(vi).
By contrast, section 1158––which governs applications for adjustment of status––
incorporates section 1182, which is the INA’s general provision regarding the classes of
aliens who are ineligible for visas or admission to the United States. 8 U.S.C. § 1159(c).
Section 1182 sets forth multiple expansive categories under which an alien may be
deemed inadmissible to the United States. These categories include, inter alia, healthCV-90 (06/04)

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ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

related grounds, criminal-related grounds, persons who are likely to become a public
charge, and a host of “miscellaneous” grounds. 8 U.S.C. § 1182(a)(1)-(10). Notably, for
purposes of this action, under section 1182, “terrorist activities” is listed as only one basis
for inadmissibility within the broader category of “Security and related grounds.” Id. §
1182(a)(3)(B). While none of these grounds are implicated in the instant case,
theoretically, USCIS can consider each of these additional bars to admissibility when an
applicant applies for an adjustment of statute.
Accordingly, the INA envisions a much more expansive inquiry when an applicant
applies for an adjustment of status to permanent resident. Thus, even if the IJ’s findings
during the asylum proceedings are given preclusive effect, that does not defeat the
purpose of the two-step inquiry because USCIS can still consider the numerous other
grounds for admissibility that do not apply when an applicant applies for asylum. And,
as already stated, USCIS can consider whether any new circumstances have arisen or any
new evidence has come to light since the applicant was granted asylum.
Finally, other courts have applied principles of collateral estoppel to administrative
decisions under sections 1158 and 1159. See Amrollah v. Napolitano, 710 F.3d 568 (5th
Cir. 2013) (applying collateral estoppel and holding that IJ’s decision to grant asylum
application precluded USCIS from denying application for adjustment of status on
grounds of engaging in terrorist activities.); Sile v. Napolitano, 2010 WL 1912645, at *34 (N.D. Ill. May 12, 2010) (holding that, USCIS was “collaterally estopped in classifying
[applicant] as ineligible for adjustment of status on the ground of firm resettlement” when
issue of “firm resettlement” had already been adjudicated in an earlier asylum
proceeding). And, as a general matter, the Ninth Circuit has held that “[i]ssue preclusion
applies to immigration proceedings.” Belayneh v. I.N.S., 213 F.3d 488, 492 (9th Cir.
2000).
Accordingly, the Court finds that neither the plain language of sections 1158 and
1159, nor the statutory framework of the INA, indicates a congressional intent to bar the
application of collateral estoppel. The Court will, therefore, evaluate whether collateral
estoppel can apply in light of the facts of this case.5
5

Lastly, the Court notes the decision in Mugomoke v. Hazuda, 2014 WL 4472743
(E.D. Cal. Sept. 11, 2014). In that case, the court determined that, in light of the two-step
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ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

B.

Date

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The Elements of Collateral Estoppel

“Collateral estoppel applies to a question, issue, or fact when four conditions are
met: (1) the issue at stake was identical in both proceedings; (2) the issue was actually
litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to
litigate the issue; and (4) the issue was necessary to decide the merits.” Oyeniran v.
Holder, 672 F.3d 800, 806 (9th Cir. 2012) (citing Montana v. United States, 440 U.S.
147, 153–54 (1979)). Here, defendants only dispute whether Khan has established the
first two elements of collateral estoppel.
1.

Actually Litigated and Decided

During Khan’s asylum proceeding, neither the IJ, nor the BIA, made an express
finding regarding whether Khan was statutorily ineligible on the basis of engaging in a
terrorist activity. Defendants argue that this prevents the Court from applying collateral
estoppel in this case. However, under Ninth Circuit case law, collateral estoppel may still
apply, even when there has not been an express finding, “if the court in the prior
proceeding necessarily decided the issue.” In re Harmon, 250 F.3d 1240, 1247 (9th Cir.
2001); See also Clark v. Bear Stearns & Co., 966 F.2d 1318, 1321 (9th Cir. 1992)
(“When the issue for which preclusion is sought is the only rational one the factfinder
could have found, then that issue is considered foreclosed, even if no explicit finding of
that issue has been made.”) (emphasis added); Stoehr v. Mohamed, 244 F.3d 206, 208
(1st Cir. 2001) (“An issue may be ‘actually’ decided even if it is not explicitly decided,
for it may have constituted, logically or practically, a necessary component of the
decision reached in the prior litigation.”).

evaluation process for obtaining permanent residency, it would “contravene the legislated
process” to apply collateral estoppel to decisions made pursuant to sections 1158 and
1159. Id. at *7. While the Court recognizes Mugomoke as contrary authority, ultimately
the Court finds the reasoning in Islam and Amrollah more persuasive. Accordingly, for
the reasons stated supra the Court finds that the application of collateral estoppel to
sections 1158 and 1159 does not contradict the legislative purpose in having a two-step
evaluation process for obtaining permanent residency.
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February 1, 2016

ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

Here, while neither the IJ nor the BIA made an express finding regarding whether
Khan had engaged in terrorist activity, that issue was “necessarily” decided during
Khan’s asylum proceeding. As explained above, under the statutory framework of the
INA, before an IJ may grant asylum he or she must determine that none of the statutory
bars to admissibility applies to the applicant. See 8 U.S.C. § 1158(b)(2). One of these
statutory bars applies if the applicant has engaged in “terrorist activity.” 8 U.S.C. §
1158(b)(2)(A)(v). Accordingly, before the IJ could grant Khan’s application for asylum
he was required to determine that Khan had not engaged in a terrorist activity. Had he
determined that Khan’s involvement with the MQM-A constituted a terrorist activity, the
IJ would have been statutorily precluded from granting Khan asylum. Therefore, this
issue was necessarily litigated and decided during Khan’s asylum proceeding.
Under similar circumstances, at least two other courts have reached the same
conclusion. In Amrollah, the plaintiff fled Iran in 1998 and applied for asylum in the
United States. 710 F.3d at 570. In his application for asylum and during his asylum
hearing, the plaintiff acknowledged that he had provided support for the mujahedeen
movement in Iran. Id. An IJ granted the plaintiff’s application for asylum in 1999. Id.
A year later, the plaintiff applied for an adjustment of status to permanent resident. Id.
After several delays, the government denied the plaintiff’s application on the grounds that
he had engaged in a terrorist activity, namely, his support for the mujahedeen movement
in Iran. Id.
On appeal, the plaintiff argued that the government should have been collaterally
estopped from denying his application, because the IJ had already, and necessarily,
determined that his support for the mujahedeen movement did not constitute terrorist
activity when he granted the plaintiff’s application for asylum. Id. at 571. The Fifth
Circuit agreed. The court stated that, under these circumstances, the actually litigated
prong was “easily satisfied.” Id. They explained that:
[T]he immigration judge was not permitted to grant asylum to [the
plaintiff] if he satisfied any of [the] exceptions to admissibility under
§ 1182, including providing material support to any individual or
organization that engaged in terrorist activities. In other words, the
IJ’s ruling that [the plaintiff] was admissible necessarily included,
under the structure of the statute, a finding that [plaintiff] did not
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provide support to an individual or organization that engaged in
terrorist activities.

Id. 572 (emphasis in original).
Similarly, in Islam, the plaintiff fled Pakistan in 2000 and applied for asylum in the
United States. 2015 WL 5653548, at *1. During his asylum proceedings, the plaintiff
acknowledged that, like Khan, he was a member of the MQM–A. Id. An IJ ultimately
granted the plaintiff’s application for asylum. Id. A year later, the plaintiff applied with
USCIS for an adjustment of status to permanent resident. Id. However, USCIS
determined that the plaintiff was ineligible because he had engaged in a terrorist
activity––his involvement with the MQM–A. Id.
The plaintiff appealed that denial and argued that USCIS should be collaterally
estopped from denying his application on the grounds that he had engaged in a terrorist
activity. Id. at *2. The defendants argued, however, that “the IJ’s opinion never
mentioned the relevant statute, 8 U.S.C. § 1182 [which defines ‘terrorist activity’]” and
“neither the IJ nor the BIA in granting [the plaintiff] asylum relied on the absence of any
terrorist activity.” Id. at *3. Therefore, the defendants contended, the issue has not been
actually litigated. Id. The court rejected this argument and found for the plaintiff.
Specifically, the court reasoned that, “[b]ecause the IJ was statutorily barred from
granting [the plaintiff] asylum if he was found to have participated in terrorist activity,
that issue was necessarily decided when the IJ did in fact grant [the plaintiff] asylum.”
Id. Therefore, the court found that it was not necessary for the IJ to have made an
express finding that the plaintiff did not engage in terrorist activity, because under the
statutory framework such a finding was inherent in the decision to grant asylum. Id. The
Court finds the reasoning in these cases persuasive.
Nonetheless, defendants argue that these cases are distinguishable. Specifically,
they argue that in Islam the court noted that the Department of Homeland Security crossexamined the plaintiff about his involvement with MQM-A, and that during closing
arguments both the Department of Homeland Security and the plaintiff’s counsel
addressed his involvement in terrorist activity. Id. Similarly, in Amrollah, the Fifth
Circuit noted that the “government cross-examined [the plaintiff] extensively about his
support of the mujahedeen movement.” 710 F.3d at 571. Defendants argue that, unlike
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in these cases, the issue of Khan’s involvement in terrorist activity was not significantly
addressed during his asylum proceedings. However, it is not clear that this factor was
essential to the decisions in either Islam or Amrollah. Rather, both of those courts
explained in great detail how, under the statutory framework of the INA, the decision to
grant an application for asylum necessarily entails a determination that the applicant has
not engaged in terrorist activity.
Moreover, contrary to defendants’ assertion, the issue of Khan’s involvement with
the MQM–A was significantly addressed during his asylum proceedings. Khan
referenced the MQM–A in multiple questions on his application for asylum and
submitted a declaration admitting that he had joined the MQM–A in September of 1996
and describing the group’s activities. CAR, at 445-46, 451-52. In fact, the basis for
Khan’s application for asylum was that he feared persecution in Pakistan because of his
membership with the MQM–A. See id at 441-49. The immigration officer also
addressed the MQM–A in Khan’s assessment. Id. at 429-31. Most significantly, in his
assessment, the immigration officer noted as one of the discrepancies in Khan’s
testimony that he had described the MQM–A as a non-violent organization when, in fact,
publicly available documents indicated that the organization had engaged in violent
activities and that its leaders had condoned terrorist activities. Id. at 431. In addition,
during his asylum hearing before the IJ, Khan was asked a number of questions about his
activities on behalf of the MQM–A and the IJ referenced these questions in his order
denying Khan’s application. Id. at 147, 178-80. Finally, the BIA mentioned Khan’s
membership in the MQM–A in its order reversing the decision of the IJ. Id. at 59.
Accordingly, the issue of Khan’s involvement with the MQM–A was raised at every
stage of Khan’s asylum proceeding.6
6

Defendants also argue that the Ninth Circuit applies a more limited version of
collateral estoppel than that applied by the Fifth Circuit in Amrollah. Specifically, they
argue that “the Ninth Circuit requires an examination of the proceeding and a
determination that the factfinder could not have reached its decision on other grounds.”
Dkt. 49, at 19 (citing Clark, 966 F.2d at 1321 (“We must decide whether a rational
factfinder could have reached a conclusion based upon an issue other than that which the
defendant seeks to foreclose.”)). However, that is precisely what occurred here. As
explained above, the IJ “could not have reached its decision” to grant Khan asylum unless
he determined that Khan had not engaged in a terrorist activity. And, as already stated,
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February 1, 2016

ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

Finally, at oral argument, counsel for defendants cited Kim v. Johnson, 2016 WL
48090 (N.D. Cal. Jan. 5, 2016), a recent decision of the Northern District of California,
which he contends weighs against the application of collateral estoppel in this case. In
Kim, the plaintiff initially applied for permanent residency with USCIS. Id. at *3. On
his application, the plaintiff was asked whether he had ever procured a visa by fraud, to
which he answered, “yes.” Id. Procuring a visa by fraud renders an applicant statutorily
ineligible for permanent residency. 8 U.S.C. § 1182(a)(6)(C)(i). Nonetheless, USCIS
granted the plaintiff’s application for an adjustment of status to permanent resident. Kim,
2016 WL 48090, at *3. The plaintiff then applied for naturalization with USCIS. Id.
One of the requirements for naturalization is that the applicant must have been previously
“lawfully admitted for permanent residence.” 8 U.S.C. § 1427(a). Despite USCIS’s
earlier ruling granting the plaintiff’s application for adjustment of status, USCIS denied
the plaintiff’s application for naturalization. Kim, 2016 WL 48090, at *3 Specifically,
USCIS reasoned that because plaintiff had previously procured a visa by fraud he should
not have been granted permanent resident status. Id.
On appeal before the district court, the plaintiff argued that USCIS should be
deemed to have waived the “fraud” bar to admissibility when it granted his application
for adjustment of status. Id. Specifically, the plaintiff noted that, pursuant to section
1182(i)(1), the Attorney General may exercise his or her discretion to waive application
of the fraud bar to admissibility. Id. at *5. While the plaintiff acknowledged that USCIS
had made no express finding to waive application of the fraud bar, the plaintiff argued
that the court could infer a waiver since his application could not have been granted in the
absence of a waiver of the fraud bar. Id. at *8. The court disagreed and upheld the
decision of USCIS. However, this case is distinguishable from the instant case for
several reasons.
the Ninth Circuit has recognized that an issue may have been necessarily decided by
implication. See Clark, 966 F.2d 1318, 1321 (9th Cir. 1992) (“When the issue for which
preclusion is sought is the only rational one the factfinder could have found, then that
issue is considered foreclosed, even if no explicit finding of that issue has been made.”)
(emphasis added); see also Moore’s Federal Practice—Civil § 132.03[3][e] (Matthew
Bender 3d ed.) (“An issue that was necessarily implicit in a larger determination is given
issue preclusive effect. An issue that is distinctly presented in the pleadings and
necessarily resolved may be reflected in the decision that includes that point, although it
may not be expressly mentioned in the decision.”).
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ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

First, Kim involves a different immigration proceeding than the present case––i.e.,
an application for naturalization as opposed to an application for adjustment of status.
Second, Kim did not involve the application of collateral estoppel. Rather, in Kim the
court addressed whether the Attorney General’s discretionary right to waive bars to
admissibility for certain applicants could be exercised implicitly, and whether such an
implicit waiver could bind USCIS in a subsequent proceeding.
However, most significantly, in Kim the defendants presented evidence that
USCIS’s initial decision to grant the plaintiff permanent residency constituted a legal
error. Specifically, while the INA grants the Attorney General the discretion to waive
bars to admissibility in certain cases, USCIS has promulgated regulations regarding the
process by which the Attorney General may exercise that discretion. See 8 C.F.R. §
212.7. In particular, an applicant is required to submit a formal application requesting a
waiver and pay a fee. Id. § 212.(7)(a)(1). Unless an applicant complies with these
regulations, USCIS is not permitted to waive the applicant’s bar to admissibility. See 8
C.F.R. § 245.1(f) (“an application [for a waiver] under this part shall be the sole method
of requesting the exercise of discretion under section [1182(i)] as [it] relate[s] to the
inadmissibility of an alien in the United States.”). In Kim, it was undisputed that the
plaintiff had not complied with USCIS’s regulations. 2016 WL 48090, at *8. Thus, the
court reasoned:
Plaintiff argues that USCIS waived his bar to admissibility de facto
and sub silencio. There is no evidence to support that finding.
USCIS’s regulations make clear that Plaintiff was required to
affirmatively apply for a waiver of his bar to admissibility when he
applied for adjustment of status by completing a designated form and
paying a certain fee. See 8 C.F.R. §§ 212.7(a)(1) and 245.1(a). It is
undisputed that Plaintiff never did so. The Court cannot find a silent
waiver-in-fact given these express application requirements.
Id.
Accordingly, in Kim, when USCIS granted the plaintiff’s application for
permanent residence, it lacked the legal authority to waive the fraud bar because the
plaintiff had not formally requested a waiver. By contrast, here, there can be no question
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that the IJ had the legal authority to consider the evidence of Khan’s involvement with
the MQM–A and find that this involvement did not constitute “terrorist activity.”
Moreover, what USCIS is attempting to do in this case is reevaluate the same evidence
considered by the IJ in order to reach a different conclusion. While, USCIS may not
agree with the findings of the IJ, that does not constitute a legal error. Thus, there is no
evidence of a legal error by the IJ during Khan’s asylum proceeding, and this case is,
therefore, readily distinguishable from Kim.
For all of the foregoing reasons, the Court finds that the issue of Khan’s
involvement in terrorist activity was actually litigated and decided during his asylum
proceeding.
2.

Identical Issues

Defendants argue that the issues at stake in Khan’s asylum and adjustment of status
applications are not identical. More specifically, they argue that applications for asylum
and for adjustment of status are entirely different applications that provide an applicant
with different benefits. For example, defendants note that “while an asylum grant
provides an asylee with a lawful status and the right to work,” an “adjustment of status
provides the asylee with the right to live permanently in the United States.” Dkt. 49, at
20-21. Defendants’ argument misses the mark.
The relevant inquiry is not whether Khan would have received different benefits
from his application for asylum and his application for adjustment of status. Rather, the
question for the Court is whether the IJ and USCIS relied upon the same facts and legal
standard when determining whether Khan was statutorily ineligible on the grounds that
he had engaged in terrorist activity.
Thus, in Amrollah, the court evaluated whether the definition of “terrorist activity”
had changed between 1999, when the plaintiff was granted asylum, and 2010, when the
plaintiff applied for an adjustment of status, and after Congress had enacted the
PATRIOT Act. 710 F.3d at 572-73. The Fifth Circuit found that the PATRIOT Act had
not altered the definition of “terrorist activity” in any material respect and that the
Government had not presented “any additional facts which would make the IJ’s ruling
distinguishable.” Id. Accordingly, the court found that the issues were identical in both
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ABDUL M. KHAN, ET AL. V. JEH JOHNSON, ET AL.

plaintiff’s application for asylum and his application for adjustment of status. Id. at 57173(citing Pace v. Bogalusa City Sch. Bd., 403 F.3d 727, 290 (5th Cir. 2005)
(“[R]elitigation of an issue is not precluded unless the facts and the legal standard used to
assess them are the same in both proceedings.”).
Similarly, here, the parties agree that Khan’s last involvement with the MQM–A
occurred before he came to the United States in November of 2001. Accordingly, both
the IJ and USCIS considered the same factual record when evaluating whether Khan was
statutorily barred on the grounds of engaging in terrorist activity. Moreover, the
definition of “terrorist activity” is the same when adjudicating an application for asylum
and an application for adjustment of status. Both sections 1158 and 1159 incorporate the
definition of “terrorist activities” set forth under 8 U.S.C. § 1182(a)(3)(B)(i). See also
Amrollah, 710 F.3d at 571 (“In other words, both 8 U.S.C. § 1158 (the statute governing
petitions for asylum) and 8 U.S.C. § 1159 (the statute governing petitions for permanent
resident status), look to 8 U.S.C. § 1182 (the statute governing inadmissible aliens) to
determine whether an alien is eligible for relief.”). Accordingly, when adjudicating
Khan’s respective applications, the IJ and USCIS relied upon the same factual record and
applied an identical legal standard to determine whether Khan was statutorily ineligible
on the grounds that he had engaged in terrorist activity. The issues were therefore
identical in both of Khan’s proceedings.
Therefore, because Khan has established that all of the elements of collateral
estoppel are satisfied, the Court finds that defendants are collaterally estopped from
concluding that Khan is ineligible for an adjustment to permanent resident on the grounds
that he has engaged in terrorist activity.
V.

CONCLUSION

In accordance with the foregoing, the Court finds that USCIS is collaterally
estopped from denying plaintiff’s application for adjustment of status on the grounds that
he has engaged in a terrorist activity. The Court, therefore, GRANTS plaintiff’s motion

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for summary judgment and DENIES defendant’s motion for summary judgment.
USCIS’s denial of plaintiff’s application is hereby set aside pursuant to 5 U.S.C. § 706.
IT IS SO ORDERED.
00
Initials of Preparer

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18

CMJ

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