United States District Court, S.D. Florida
REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR
JACQUELINE BECERRA UNITED STATES MAGISTRATE JUDGE
CAUSE came before the Court upon Defendants'
Motion for Summary Judgment, ECF No. , and Plaintiff
Mazharul Islam's Cross Motion for Summary Judgment, ECF
No. . Plaintiff and Defendants have filed their
respective Responses, ECF Nos. , , but only
Defendants filed a Reply, ECF No. . The parties'
motions are now ripe for disposition.
careful review of the motions, the relevant authorities, the
record, and for the reasons discussed below, the undersigned
RECOMMENDS that Defendants' Motion for
Summary Judgment, ECF No. , be GRANTED,
and that Plaintiff's Cross Motion for Summary Judgment,
ECF No. , be DENIED.
UNDISPUTED FACTS 
Mazharul Islam (“Islam”) is a native and citizen
of Bangladesh. ECF Nos. [19-1] ¶ 1, [18-1] at 17, 28,
30. On December 12, 2011, Islam entered the United States
without inspection and was subsequently apprehended by the
U.S. Border Patrol. ECF Nos. [19-1] ¶ 1, [18-8] at
62-64. On January 4, 2012, Islam made a sworn statement to a
United States Citizenship and Immigration Services
(“USCIS”) Asylum Officer indicating that he was a
member of the Bangladesh Nationalist Party
(“BNP”). ECF Nos. [19-1] ¶ 1, [18-8] at 56.
Islam stated that he had been assaulted in 1997 and in 2011
by members of the Awami League (“AL”), a rival
political party to the BNP, because of his association with
the BNP. ECF Nos. [19-1] ¶ 1, [18-8] at 55-56.
Pursuant to the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1158, the Asylum Officer
determined that Islam had a credible fear of returning to his
native country based upon past persecution. ECF Nos. [19-1]
¶ 1, [18-8] at 51. The Asylum Officer also determined
that Islam did not “appear to be subject to a bar(s) to
asylum or withholding of removal.” ECF No. [18-8] at
51. Accordingly, Islam was placed in removal proceedings and
permitted to apply for a full hearing on his application for
asylum. ECF No. [19-1] ¶ 1.
August 2, 2012, in accordance with 8 U.S.C. § 1158,
Islam filed an application for asylum and for withholding of
removal. ECF Nos. [19-1] ¶ 2, [18-6] at 17-31. According
to evidence submitted with Islam's Form I-589, he became
a member of the Chatra Dal (the student wing of the BNP) in
1995. ECF Nos. [19-1] ¶ 2, [18-6] at 58. During his time
in the Chatra Dal, Islam attended meetings and
demonstrations. ECF Nos. [19-1] ¶ 2, [18-6] at 27. In
January 2001, he became a member of the BNP. ECF Nos. [19-1]
¶ 2, [18-6] at 54. From 2001 to 2011, Islam owned a
small tea shop, which he routinely used as a meeting place
for the BNP. ECF Nos. [19-1] ¶ 2, [18-6] at 28. Islam
also posted flyers on behalf of the BNP. ECF Nos. [19-1]
¶ 2, [18-6] at 27. On August 1, 2011, Islam became the
Publicity Secretary for the local BNP organization. ECF Nos.
[19-1] ¶ 2, [18-6] at 28. As Publicity Secretary, Islam
was responsible for putting up posters in the local area that
advertised BNP-sponsored events. Id.
was no evidence introduced or argument raised at the 2013
asylum hearing regarding whether BNP was a terrorist
organization. ECF No. [19-1] ¶ 13 n.12. On November 12,
2013, an Immigration Judge issued a one-page order granting
asylum to Islam. ECF Nos. [19-1] ¶ 3, [18-1] at 29. The
Immigration Judge's order contains no mention of the
terrorism inadmissibility bar. ECF No. [19-1] ¶ 13 n.12,
[18-1] at 29.
January 13, 2015, Islam filed an I-485 Application to
Register Permanent Residence or Adjust Status
(“Application to Adjust Status”), pursuant to 8
U.S.C. § 1159 and 8 C.F.R. § 209.2. ECF No. [19-1]
¶ 4. Islam indicated on his Application to Adjust Status
that he was a member of the BNP from 1995 to the present. ECF
Nos. [19-1] ¶ 4, [18-1] at 19. On April 6, 2016, USCIS
sent Islam a Request for Evidence (“RFE”). ECF
Nos. [19-1] ¶ 8, [18-1] at 39-40. Specifically, the RFE
requested additional details about Islam's involvement
with the BNP. Id.
response to the RFE indicated that as part of his involvement
with the BNP, he disseminated written information about the
BNP. ECF Nos. [19-1] ¶ 8, [18-1] at 46. Islam also
encouraged people to vote for BNP candidates. Id.
According to Islam, his only financial contribution to the
BNP was a one-time registration fee. Id. Despite
Islam's initial statement on his Application to Adjust
Status that he was a member of the BNP from 1995 to the
present, Islam responded that his involvement with the BNP
ended around the end of 2013, but that he “did not make
any official announcement about it.” Id.
August 18, 2017, USCIS sent Islam a Notice of Intent to Deny
(“NOID”) his Application to Adjust Status
because, pursuant to section 212(a)(3)(B)(vi)(III) of the
INA, USCIS determined that during the time of Islam's
involvement, the BNP and its youth and student
organizations-the Jubo Dal and the Chatra Dal-met the
definition of an undesignated terrorist organization. ECF
Nos. [19-1] ¶ 5, [18-2] at 24-32. USCIS based its
determination on publicly available sources, including: Human
Rights Watch, ECF Nos. [18-3] at 4-31, [18-9] at 2-84, and
the U.S. Department of State, ECF Nos. [18-2] at 91-100,
[18-3] at 83-100. ECF No. [19-1] ¶¶ 5-6. USCIS also
cited press accounts published in the Daily Mail,
The Guardian, Time, and Crisis
Group. ECF No. [19-1] ¶ 7. These publicly available
sources indicated that the BNP had engaged in terrorist
activities, which included the use of explosives during
protests, setting fire to property during protests, and
threatening journalists. Id.
to the NOID, Islam was inadmissible under section
212(a)(3)(B)(i)(I) of the INA for engaging in terrorist
activities such as providing material support to the BNP by
using his tea shop as a BNP meeting place, passing out BNP
flyers, and putting up posters of events sponsored by the
BNP. ECF Nos. [19-1] ¶ 9, [18-2] at 31. Also, Islam was
still a member of the BNP, which would render him
inadmissible under section 212(a)(3)(B)(i)(VI) of the INA.
Id. Therefore, USCIS concluded that because Islam
was inadmissible, he would not be eligible to adjust his
status to legal permanent resident. ECF Nos. [19-1] ¶ 9,
[18-2] at 31-32. Islam was given thirty (30) days
(thirty-three (33) days if the notice was received by mail)
to submit a rebuttal. ECF Nos. [19-1] ¶ 9, [18-2] at 32.
September 11, 2017, USCIS received Islam's rebuttal. ECF
Nos. [19-1] ¶ 10, [18-5] at 9-13. In his rebuttal, Islam
stated that the BNP is not a Tier III undesignated terrorist
group. ECF Nos. [19-1] ¶ 10, [18-5] at 9-10. Islam also
stated that the acts of violence committed by BNP members
were not sanctioned by the BNP. Id. Islam further
stated that USCIS did not provide any evidence that
demonstrated that the BNP or its leaders authorized,
condoned, sanctioned, or tolerated violence or terrorism.
Id. Islam explained that the Board of Immigration
Appeals (“BIA”), in several of its decisions, had
previously determined that the BNP was not a terrorist
organization because the BNP party did not authorize violent
activity. Id. Islam stated that the BNP's
constitution, which Islam previously submitted to USCIS,
condemns violence. Id.
October 18, 2017, USCIS issued a written decision denying
Islam's Application to Adjust Status. ECF Nos. [19-1]
¶ 12, [18-1] at 5-10. USCIS found that during the time
of Islam's involvement, the BNP and its youth and student
organizations-the Jubo Dal and the Chantra Dal-fell within
the definition of an undesignated terrorist organization in
accordance with section 212(a)(3)(B)(vi)(III) of the INA. ECF
Nos. [19-1] ¶ 7, [18-1] at 7. According to USCIS,
multiple publicly available sources demonstrated that members
of the BNP frequently engaged in terrorist activity,
especially during protests, over a period of many years. ECF
Nos. [19-1] ¶ 11, [18-1] at 7-8. The violence caused by
members of the BNP resulted in “death, injury, and
significant property damage.” ECF Nos. [19-1] ¶
11, [18-1] at 8.
noted that there was no evidence to suggest that the BNP
leadership took steps to prevent this violence or routinely
held members accountable for committing those violent acts,
which qualified as terrorist activity. ECF Nos. [19-1] ¶
11, [18-1] at 8. Indeed, the BNP leadership has repeatedly
called for protests, during which BNP members have engaged in
terrorist activity, and have even participated in or
threatened the use of violence. Id. These acts of
violence by BNP members, coupled with the BNP
leadership's encouragement, indicated to USCIS that the
BNP leadership has at least tacitly authorized violence by
its members. Id. Therefore, USCIS attributed the
widespread and frequent terrorist activity carried out by
members of the BNP over many years to the group and found
that BNP qualified as a Tier III undesignated terrorist
organization during the time of Islam's membership in the
further found that Islam was inadmissible under 8 U.S.C.
§ 1182(a)(3)(B)(i)(I) for having engaged in terrorist
activities, namely, providing material support under 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI)(dd) to the BNP by using his tea
shop as a BNP meeting place, passing out BNP flyers, and
putting up posters of events sponsored by the BNP. ECF Nos.
[19-1] ¶ 12, [18-1] at 9-10. Finally, USCIS determined
that Islam was not eligible for the Secretary's
discretionary exemption authority under 8 U.S.C. §
1182(d)(3)(B)(i). ECF Nos. [19-1] ¶ 12, [18-1] at 10.
15, 2017, while his Application to Adjust Status was pending,
Islam filed a Complaint for Writ of Mandamus. ECF No. .
Islam sought to compel USCIS to adjudicate his pending
Application to Adjust Status. Id. ¶ 1. On
October 19, 2017, Defendants moved to dismiss Islam's
Complaint on the grounds that the Complaint had been rendered
moot by the October 18, 2017 denial of Islam's
Application to Adjust Status. ECF No. . Therefore,
Defendants argued that the Complaint should be dismissed.
Id. ¶ 2.
November 9, 2017, Islam filed an Amended Complaint for
judicial review brought pursuant to the Administrative
Procedure Act (“APA”), 5 U.S.C. § 701 et
seq., and the Declaratory Judgment Act, 28 U.S.C. §
2201. ECF No. . In his Amended Complaint, Islam raises
several legal challenges to Defendants' denial of his
Application to Adjust Status to legal permanent
resident. Id. at 1. First, Islam alleges
that Defendants are “collaterally estopped” from
denying his application to adjust status to legal permanent
resident because when he was previously granted asylum, the
Immigration Judge “necessarily” decided that he
was not barred from admission. Id. Second, Islam
alleges that even if 8 U.S.C. § 1182(a)(3)(B)(iv)(III)
is to be applied, the BNP does not meet the definition of a
Tier III “terrorist organization.” Id.
Third, Islam alleges that 8 U.S.C. §
1182(a)(3)(B)(vi)(III) is unconstitutionally vague, and was
applied over-broadly in his case, in violation of the Fifth
and Fourteenth Amendments. Id.
then filed their Motion for Summary Judgment. ECF No. .
Defendants contend that they were not collaterally estopped
from applying the terrorism bar to Islam's Application to
Adjust Status because they were required to determine whether
Islam was admissible at the time of its filing and because
they considered additional evidence that was not presented,
considered, or relied upon at Islam's asylum hearing.
Id. at 2. Moreover, Defendants argue that there is
substantial evidence in the record to demonstrate that Islam
was a BNP member from 1995 through 2015, during which the BNP
was engaged in terrorist activity. Id. Defendants
also contend that the terrorism bar is not unconstitutionally
vague, nor has it been applied over-broadly to Islam.
judgment is appropriate where there is “no genuine
issue as to any material fact [such] that the moving party is
entitled to judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); see
also Fed. R. Civ. P. 56(a). A genuine issue of material
fact exists when “a reasonable jury could return a
verdict for the non-moving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“For factual issues to be considered genuine, they must
have a real basis in the record.” Mann v. Taser
Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009)
(citation omitted). Speculation or conjecture cannot create a
genuine issue of material fact sufficient to defeat a
well-supported motion for summary judgment. Cordoba v.
Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir.
2005). The evidence is to be viewed in the light most
favorable to the non-moving party. Augusta Iron and Steel
Works, Inc. v. Emp'r Ins. v. Wausau, 835 F.2d 855,
856 (11th Cir. 1988).
even in the context of summary judgment, an agency action is
entitled to great deference.” Preserve Endangered
Areas of Cobb's History, Inc. v. U.S. Army Corps of
Eng'rs, 87 F.3d 1242, 1246 (11th Cir. 1996). Under
the APA, a court shall set aside an agency's action where
it is arbitrary, capricious, or an abuse of discretion. 5
U.S.C. § 706(2)(A). The arbitrary and capricious
standard requires the court to consider whether an
agency's decision “was based on a consideration of
the relevant factors and whether there has been a clear error
of judgment.” Sierra Club v. Johnson, 436 F.3d
1269, 1273-74 (11th Cir. 2006) (quotation omitted).
Additionally, the Court must consider whether the agency has
“articulate[d] a satisfactory explanation for [its]
action including a rational connection between the facts
found and the choice made.” Shays v. Fed. Election
Com'n, 414 F.3d 76, 97 (D.C. Cir. 2005) (quoting
Burlington Truck Lines, Inc. v. United States, 371
U.S. 156, 168 (1962)). The reviewing court is not to
“conduct its own investigation and substitute its own
judgment for the administrative agency's decision.”
Cobb's History, 87 F.3d at 1246. Rather, the
court will “decide, on the basis of the record the
agency provides, whether the action passes muster under the
appropriate APA standard of review.” Id.
Collateral Estoppel Applies To USCIS' Adjudication Of