Mann v. Heinauer et al

Filing 41

ORDER signed by Judge Garland E. Burrell, Jr on 7/2/14 DENYING 16 Motion for Partial Summary Judgment; GRANTING 20 Cross-Motion for Partial Summary Judgment. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PRITPAL SINGH MANN,

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Plaintiff,

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No. 2:13-cv-703-GEB-EFB

v.

ORDER DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT AND
GRANTING DEFENDANTS’ CROSSMOTION FOR PARTIAL SUMMARY
JUDGMENT

GERARD HEINAUER, Director,
USCIS Nebraska Service
Center; ALEJANDRO MAYORKAS,
Director, USCIS; U.S.
CITIZENSHIP AND IMMIGRATION
SERVICES; JANET NAPOLITANO,
Secretary, U.S. Department of
Homeland Security; ERIC H.
HOLDER, JR., U.S. Attorney
General,
Defendants.

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18

Pending are what the parties have labeled cross-motions

19

for summary judgment. However, each motion only addresses the

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first

21

Complaint:

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(“APA”); and 2) violation of the Fifth Amendment Due Process

23

Clause.

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partial summary judgment on only the APA claim.

of

the
1)

following

two

violation

Therefore,

each

of

claims

the

motion

alleged

in

Administrative

is

construed

as

Plaintiff’s

Procedure

a

motion

Act

for

I. LEGAL STANDARD

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A party seeking summary judgment under Federal Rule of

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27

Civil

Procedure

(“Rule”)

56

bears

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demonstrating the absence of a genuine issue of material fact for
1

the

initial

burden

of

1

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A

2

fact is ‘material’ when, under the governing substantive law, it

3

could affect the outcome of the case.” Thrifty Oil Co. v. Bank of

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Am. Nat’l Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003)

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(quoting

Anderson

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(1986)).

An

7

evidence is such that a reasonable jury could return a verdict

8

for the nonmoving party.’” Id. (quoting Anderson, 477 U.S. at

9

248).

10

If

v.

issue

the

Liberty

of

Lobby,

material

movant

fact

satisfies

Inc.,
is

its

477

U.S.

“genuine”

“initial

242,

when

burden,”

248

“‘the

“the

11

nonmoving party must set forth, by affidavit or as otherwise

12

provided in Rule 56, ‘specific facts showing that there is a

13

genuine issue for trial.’” T.W. Elec. Serv., Inc. v. Pac. Elec.

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Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting

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former Fed. R. Civ. P. 56(e)). “A party asserting that a fact

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cannot be or is genuinely disputed must support the assertion by

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citing to particular parts of material in the record . . . or

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showing that the materials cited do not establish the absence or

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presence of a genuine dispute, or that an adverse party cannot

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produce admissible evidence to support the fact.” Fed. R. Civ. P.

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56(c)(1). Summary judgment “evidence must be viewed in the light

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most

23

inferences must be drawn in favor of that party.” Sec. & Exch.

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Comm’n v. Todd, 642 F.3d 1207, 1215 (9th Cir. 2011) (citing

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Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222,

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1227 (9th Cir. 2001)).

favorable

to

the

nonmoving

party,

and

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Further, Local Rule 260(b) prescribes:

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Any

all

party

opposing

a
2

motion

for

summary

reasonable

1

judgment
or
summary
adjudication
[must]
reproduce the itemized facts in the [moving
party’s] Statement of Undisputed Facts and
admit those facts that are undisputed and
deny those that are disputed, including with
each denial a citation to the particular
portions
of
any
pleading,
affidavit,
deposition, interrogatory answer, admission,
or other document relied upon in support of
that denial.

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If

the

nonmovant

does

not

“specifically

.

.

.

[controvert duly supported] facts identified in the [movant’s]
statement of undisputed facts,” the nonmovant “is deemed to have
admitted the validity of the facts contained in the [movant’s]
statement.” Beard v. Banks, 548 U.S. 521, 527 (2006).

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Because a district court has no independent
duty “to scour the record in search of a
genuine issue of triable fact,” and may “rely
on the nonmoving party to identify with
reasonable particularity the evidence that
precludes
summary
judgment,”
. . .
the
district court . . . [is] under no obligation
to undertake a cumbersome review of the
record on the [nonmoving party’s] behalf.

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Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.

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2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

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1996));

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consider only the cited materials, but it may consider other

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materials in the record.”).

see

also

Fed.

Civ.

P.

56(c)(3)

(“The

court

need

II. UNCONTROVERTED FACTS

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The following facts are uncontroverted in the summary

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24

R.

judgment record.

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“[Plaintiff] applied for asylum . . . on September 16,

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1991.” (Defs.’ Resp. to Pl.’s Statement of Undisputed Facts ¶ 1,

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ECF

28

application

No.

31.)
to

“[The
an

government]

referred

immigration

judge

3

[Plaintiff]’s

and

commenced

asylum
removal

1

proceedings against him.” (Defs.’ Statement of Undisputed Facts

2

(“Defs.’

3

Statement of Undisputed Facts (“Pl.’s Resp.”) 1:27-2:1, ECF No.

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35.)

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immigration court on the basis that he had provided material

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support

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Khalsa.” (Defs.’ Statement ¶ 8; Pl.’s Resp. 1:27-2:1.) “[T]he

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immigration judge held that the record d[id] not support the

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conclusion that [Plaintiff] is a danger to the security of the

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United States and, therefore, [Plaintiff] [was] not subject to

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the mandatory bar [to asylum] under the [applicable] regulation.”

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(Defs.’ Statement ¶ 12; Pl.’s Resp. 1:27-2:1.) However, “[t]he

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immigration

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after finding” Plaintiff had not adequately demonstrated fear of

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persecution, and “[t]he immigration judge further determined that

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even

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meaning of the [Immigration and Naturalization Act], he did not

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merit a discretionary grant of asylum because Babbar Khalsa had

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been

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period that [Plaintiff] ‘was providing assistance to people that

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he knew . . . belonged to Babbar Khalsa.’” (Defs.’ Statement

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¶¶ 13, 14; Pl.’s Resp. 1:27-2:1.)

Statement”)

“[The

if

government]

to

an

as

a

appeal,

held

that

No.

opposed

denied

[Plaintiff]

On

ECF

undesignated

judge

‘operating

23

¶ 7,

had

31;

Pl.’s

Mann’s

asylum

terrorist

[Plaintiff]’s

experienced

terrorist

“[t]he

[Plaintiff]

Defs.’

application

application

persecution

Babbar

for

asylum

within

during

of

Immigration

a

well-founded

in

the

the

time

Appeals]

24

[(‘BIA’)]

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persecution,” “agreed with the immigration judge that [Plaintiff]

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‘is not a danger to the security of the United States’ under the

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asylum regulation,” prescribed in 8 C.F.R § 1208.13(c)(2)(i)(F),

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and “granted [Plaintiff] asylum.” (Defs.’ Statement ¶¶ 26, 27
4

had

to

organization,

organization’

B[oard

Resp.

fear

of

1

(quoting Not. of Lodging, Cert. Admin. R. (“CAR”) 25, Feb. 16,

2

2005 Dec. of BIA, ECF No. 15), 25; Pl.’s Resp. 1:27-2:1.)

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Subsequently, “[Plaintiff] filed an . . . Application

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to Register Permanent Residence or Adjust Status (‘adjustment

5

application’),”

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Immigration

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permanent

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status . . . .” (Defs.’ Statement ¶ 29; Pl.’s Resp. 1:27-2:1.)

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The USCIS denied Plaintiff’s application for adjustment, stating:

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[Plaintiff] [is] inadmissible [and therefore
ineligible for adjustment of status] under [8
U.S.C.
§ 1182(a)(3)(B)(i)(I)]
for
having
engaged in terrorist activity as defined by
[§ 1182(a)(3)(B)(iv)(VI)(dd)] when [he] gave
material support to members of Babbar Khalsa
by providing them food and shelter on
numerous occasions.

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with

Services

resident

the

United

(“USCIS”),

status

. .

.

States

“seeking
on

the

Citizenship
to

basis

and

obtain

lawful

of

asylee

his

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(CAR 1110, Oct. 7, 2013 Dec. of USCIS.) The USCIS supported its

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decision stating, inter alia, the following:

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In a sworn statement [Plaintiff] made . . .
at
the
San
Francisco
Asylum
Office,
[Plaintiff] stated that [he] willingly gave
food and shelter to two acquaintances of
[his] who [he] knew were members of Babbar
Khalsa . . . about every two weeks from
October, 1990 to March, 1991.
At
[his]
Immigration
Court
hearing, . . . [w]hen asked . . . “Let me
repeat again, after 1990 and until you left
India you did feed, shelter and do laundry
for
two
members
of
Babbar
Khalsa?”
[Plaintiff] answered “yes” . . . .
. . . .
A November 5, 2011 news article in India
Today reported that “The longest-surviving
Khalistani militant group, the Babbar Khalsa
[] . . . , has been responsible for some of
the biggest terrorist strikes including the
mid-air bombing of Air India Flight 182
5

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Kanishka in 1985. . . .

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. . . .

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The United States Department of State
reported in its 1999 Patterns of Global
Terrorism, that Babbar Khalsa was extremely
active until 1992 . . . . Babbar Khalsa
killed indiscriminately from 1984 to 1990,
became dormant in 1992, and was resurrected
when it assassinated an [Indian politician]
in 1995.

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5
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(CAR 1109-10, Oct. 7, 2013 Dec. of USCIS.)
III. DISCUSSION

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Plaintiff argues he should be granted summary judgment

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on

his

APA

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inadmissible to the United States and denying his [adjustment

13

application]

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substantial evidence, and otherwise not in accordance with law.”

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(Pl.’s

16

argument

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“Defendants . . . from re-litigating the issue of terrorism-based

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admissibility.” (Pl.’s Mot. 7:5-6, ECF No. 16.) Specifically,

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Plaintiff argues:

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asylum

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inadmissible

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inadmissibility.” (Id. 7:10-14.)

Mot.
is

is

claim

is

since

the

arbitrary,

“USCIS’s

capricious,

4:15-17,

ECF

that

doctrine

the]

the

decision

No.

16.)
of

wholly

The
issue

gist

finding

[him]

unsupported

of

by

Plaintiff’s

preclusion

precludes

“Necessarily implicit in [the BIA’s grant of
conclusion

based

on

. . .

the

that

terrorism

[Plaintiff]
related

was

grounds

not
of

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Defendants counter that the issue preclusion doctrine

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does not apply to the USCIS’s adjustment application decision

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since, inter alia, “[Plaintiff] cannot show that the material

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support [for terrorism] ground was necessary to decide the merits

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of [Plaintiff]’s asylum claim.”

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No.

20.)

Defendants

also

(Defs.’ Cross-Mot. 21:9-10, ECF

argue:
6

“The

record

. . .

supports

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UCSIS’s determination that Plaintiff provided material support to

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[the terrorist group] Babbar Khalsa” and “[t]hus, as a matter of

3

law, USCIS’s [denial of Plaintiff’s adjustment application] is

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not arbitrary or capricious, and it should not be disturbed.”

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(Id. 23:23-24, 24:10-11.)

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The APA prescribes:

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[a] reviewing court shall . . . hold unlawful
and set aside agency action, findings, and
conclusions found to be . . . arbitrary,
capricious, an
abuse of discretion, or
otherwise not in accordance with law.

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5 U.S.C. § 706(2)(A).

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The “issue preclusion [doctrine] . . . binds [] parties

12

in a subsequent action, whether on the same or a different claim,

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when an issue of fact or law [has been] actually litigated and

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resolved by a valid final judgment.” Fischel v. Equitable Life

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Assur. Soc’y of U.S., 307 F.3d 997, 1005 n.5 (9th Cir. 2002)

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(quoting Baker v. Gen Motors Corp., 522 U.S. 222, 233 n.5 (1998))

17

(internal quotation marks omitted). This doctrine

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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 the
merits.

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Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012). Here, only

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the

25

. . . decided in the prior proceeding[]” —need be addressed to

26

resolve each motion.

second

27
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Since
September

16,

requirement—that

Plaintiff
1991,

the

filed

“the

his

following
7

issue

asylum

was

actually

application

regulation

governed

on
his

1

application:

2

An immigration judge or asylum officer shall
not grant asylum to any applicant who filed
his or her application before April 1, 1997,
if the alien:

3
4

. . . .

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(F) Is described within[, inter alia, 8
U.S.C.
§ 1182(a)(3)(B)(i)(I)
as
“an
alien who . . . has engaged in a
terrorist activity”] . . . , unless it
is
determined
that
there
are
no
reasonable grounds to believe that the
individual is a danger to the security
of the United States.

6
7
8
9
10

8 C.F.R. § 1208.13(c)(2)(i). The BIA decided Plaintiff’s asylum

11

application under the portion of § 1208.13(c)(2)(i) that concerns

12

whether Plaintiff was a “danger to the security of the United

13

States.” Because of this decision, the record does not support a

14

finding

15

proceeding[],” Oyeniran, 672 F.3d at 806, that Plaintiff “ha[d]

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not engaged in a terrorist activity” as prescribed in the first

17

portion of § 1208.13(c)(2)(i)(F). Accordingly, the BIA’s decision

18

had no preclusive effect over the UCSIS’s subsequent holding that

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Plaintiff was ineligible for adjustment of status “[since he]

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engaged in terrorist activity.” (CAR 1110, Oct. 7, 2013 Dec. of

21

USCIS.) Nor did the BIA’s determination that Plaintiff “[was] not

22

a danger to the United States” have preclusive effect on the

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USCIS’s

24

governing

25

U.S.C. § 1159, does not contain an exception to the terrorist-

26

activity bar for applicants who do not present a danger to the

27

security

28

Resp. 1:27-2:1.)

that

the

denial

BIA

of

adjustment

Plaintiff’s

of

the

“actually

of

adjustment

United

. . .

States.

8

decided

status

since

application,

(Defs.’

in

the

the

statute

prescribed

Statement

prior

¶ 27;

in

8

Pl.’s

1

Therefore,
denying

Defendants

shown

engaged

4

support to members of Babbar Khalsa by providing them food and

5

shelter on numerous occasions,” (CAR 1109-10, Oct. 7, 2013 Dec.

6

of

7

discretion, or otherwise not in accordance with law.” 5 U.S.C.

8

§ 706(2)(A).

USCIS),

was

not

9

. . .

“arbitrary,

when

status

USCIS’s

3

activity

of

the

decision

terrorist

adjustment

that

2

in

Plaintiff

have

[he]

capricious,

“[since
gave

an

he]

material

abuse

of

IV. CONCLUSION

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For the stated reasons, Plaintiff’s motion for partial

11

summary

judgment

is

DENIED,

and

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partial summary judgment is GRANTED.

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Dated:

July 2, 2014

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Defendants’

cross-motion

for