Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Islam v. McAleenan

United States District Court, S.D. Florida

May 15, 2019

MAZHARUL ISLAM, Plaintiff,
v.
KEVIN MCALEENAN, in his capacity as Acting United States Secretary of Homeland Security, et al., Defendants.[1]

          REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT

          JACQUELINE BECERRA UNITED STATES MAGISTRATE JUDGE

         THIS CAUSE came before the Court upon Defendants' Motion for Summary Judgment, ECF No. [19], and Plaintiff Mazharul Islam's Cross Motion for Summary Judgment, ECF No. [22].[2] Plaintiff and Defendants have filed their respective Responses, ECF Nos. [22], [26], but only Defendants filed a Reply, ECF No. [25]. The parties' motions are now ripe for disposition.

         After careful review of the motions, the relevant authorities, the record, and for the reasons discussed below, the undersigned RECOMMENDS[3] that Defendants' Motion for Summary Judgment, ECF No. [19], be GRANTED, and that Plaintiff's Cross Motion for Summary Judgment, ECF No. [22], be DENIED.

         I. UNDISPUTED FACTS [4]

         Plaintiff 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.

         On 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.

         There 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.

         On 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.

         Islam's 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.

         On 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.

         According 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.

         On 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.

         On 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.

         USCIS 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 BNP. Id.

         USCIS 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.

         II. PROCEDURAL HISTORY

         On June 15, 2017, while his Application to Adjust Status was pending, Islam filed a Complaint for Writ of Mandamus. ECF No. [1]. 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. [8]. Therefore, Defendants argued that the Complaint should be dismissed. Id. ¶ 2.

         On 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. [12]. In his Amended Complaint, Islam raises several legal challenges to Defendants' denial of his Application to Adjust Status to legal permanent resident.[5] 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.

         Defendants then filed their Motion for Summary Judgment. ECF No. [19]. 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. Id.

         III. LEGAL STANDARDS

         Summary 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).

         “However, 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. (citation omitted).

         IV. ANALYSIS

         A. Collateral Estoppel Applies To USCIS' Adjudication Of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.