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Islam v. Kelley

United States District Court, S.D. Florida, Miami Division

June 28, 2019

JOHN F. KELLEY, et al., Defendants.



         THIS MATTER is before the Court on Plaintiff Mazharul Islam's Objections (DE 29) to Magistrate Judge Jacqueline Becerra's May 16, 2019 Report and Recommendation (DE 28), which recommends that the Court grant Defendants' Motion for Summary Judgment (DE 19) and deny Plaintiffs Cross Motion for Summary Judgment (DE 23).

         I. BACKGROUND

         In 2013, an immigration judge granted Plaintiff asylum in the United States based upon his fear of political persecution in his native country of Bangladesh. See R & R at 3, DE 28. Just over a year later, Plaintiff filed an application with the U.S. Citizenship and Immigration Service (the "USCIS" or the "agency") to adjust his immigration status to "lawful permanent resident." Id. The agency denied Plaintiffs application, citing his involvement with the Bangladesh Nationalist Party ("BNP"), which the agency found to be a "terrorist organization" as defined by the Immigration and Nationality Act. See id. at 3-6; 8 U.S.C. § 1182(a)(3)(B) (barring any alien who is a "member of a terrorist organization" from being admitted to the United States, or, in the case of an application to adjust status pursuant to § 1159(b), from being eligible for such adjustment). Plaintiff now brings this action challenging the USCIS's decision and seeking judicial review under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

         Plaintiffs Amended Complaint raises three challenges to the USCIS's decision. First, Plaintiff claims the agency is collaterally estopped from denying his application under the so-called "terrorism bar," arguing that the immigration judge already decided this issue in Plaintiffs favor during his earlier asylum proceeding. See Am. Compl. 2-4, DE 12. Second, Plaintiff claims the agency's decision is "arbitrary and capricious" under the APA because there was no showing that the BNP itself authorized any acts of violence by individual members of the party. Id. at 4-5. Third, Plaintiff claims the agency's decision should be set aside because the definition of "terrorist organization" is unconstitutionally vague and overbroad. Id. at 6-7.

         On May 16, 2019, the Magistrate Judge entered her Report and Recommendation on the parties' cross-motions for summary judgment. See DE 28. As to collateral estoppel, the Magistrate Judge found that the agency was not barred from denying Plaintiffs adjustment application, because the "terrorist organization" issue was not "actually litigated" in the asylum proceeding. Id. at 14. Specifically, the Magistrate Judge notes that there is "no evidence that either party raised or litigated the applicability of the terrorism bar at the asylum hearing," and "the parties did not raise the issue of Islam's inadmissibility in their briefs or closing arguments to the Immigration Judge." Id. The Magistrate Judge also found that the agency's decision was not "arbitrary and capricious" because the agency "explicitly addressed the fact that BNP's leadership has at least tacitly authorized violence by its members." Id. at 20-21. Finally, the Magistrate Judge rejected Plaintiffs constitutional challenges. Id. at 23-25.

         Plaintiff then timely filed objections to the Report and Recommendation. See DE 29. Plaintiff argues that the Magistrate Judge erred in finding that the terrorism-bar was not "actually litigated" in the asylum proceeding. Id. at 4. Citing the Fifth Circuit's decision in Amrollah v. Napolitano, 710 F.3d 568 (5th Cir. 2013), Plaintiff argues that the issue was indeed "raised, examined and litigated early on in the asylum proceedings," although he concedes it was only "lightly" litigated. See Id. at 6. He also objects to the Magistrate Judge's finding that the agency's decision was not "arbitrary and capricious," claiming that mere "tacit" authorization of violence is insufficient, and "[t]here is no evidence in the record, anywhere, that any BNP leader actually authorized terrorist activity." See Id. at 6-8. Finally, Plaintiff claims the Magistrate Judge erred in finding that the "terrorist organization" bar is not unconstitutionally vague or overbroad and that the Magistrate Judge failed to consider the relevant statutory provisions. Id. at 9-12.


         Summary judgment is appropriate "if the movant shows that 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). "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, agency actions, findings, and conclusions may be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "unsupported by substantial evidence." 5 U.S.C. § 706(2)(A), (E). The standard is "exceedingly deferential." Defenders of Wildlife v. U.S. Dep't of Navy, 733 F.3d 1106, 1115 (1 lth Cir. 2013). "The court's role is to ensure that the agency came to a rational conclusion, not to conduct its own investigation and substitute its own judgment for the administrative agency's decision." Id. (internal quotation marks omitted). In making this determination, the court's review is based strictly on the administrative record "that was before the agency at the time of its decision." See Salmeron-Salmeron v. Spivey, No. 17- 15152, 2019 WL 2461713, at *2 (1 lth Cir. 2019). In that sense, the district court in APA cases "sits as an appellate tribunal," and the '"entire case' on review is a question of law." See Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001).


         A. Collateral Estoppel Does Not Bar The Agency's Decision Because The Terrorism Bar Was Not "Actually Litigated" In The Asylum Proceeding

         The Magistrate Judge properly rejected Plaintiffs collateral estoppel argument. Collateral estoppel only bars the re-litigation of issues that were "actually litigated and determined" in a prior suit. See B & B Hardward, Inc. v. Hargis Industries, Inc., 135 S.Ct. 1293, 1303 (2015) (quoting Restatement (Second) of Judgments § 27 (1980)); see alsoBaloco v. Drummond Co., Inc., 767 F.3d 1229, 1251 (11th Cir. 2014). By contrast, collateral estoppel generally does not apply to issues that were uncontested in an earlier proceeding. See Tampa Bay Water v. HDR Eng'g, Inc., 731 F.3d 1171, 1179 (1 lth Cir. 2013), overruled on other grounds by CSX Tramp., Inc. v. Gen. Mills, Inc., 846 F.3d 1333, 1340 (11th Cir. 2017) (finding collateral estoppel inapplicable because prior decision "was not based on a factfinder's determination of causation after an adversarial proceeding but rather on a set of joint stipulations").

         The Magistrate Judge correctly ruled that the terrorism-bar issue was not "actually litigated" in the earlier asylum proceeding. Indeed, Plaintiffs Objections concede that the USCIS did not "actively" or "verbally contest" this issue in the asylum proceeding, and that the issue was only "lightly" litigated there. See DE 29 at 5-6. This alone forecloses any argument that the issue was "actually litigated" for collateral estoppel purposes. Moreover, there was no evidence or argument presented at the asylum hearing regarding whether the BNP was a terrorist organization, and the immigration judge's one-page order granting asylum "contains no mention of the terrorism inadmissibility bar." See R & R at 3. While Plaintiff points to portions of the administrative record where he claims the terrorism-bar was "raised, explored, and litigated," ...

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