United States District Court, S.D. Florida, Miami Division
ORDER AFFIRMING MAGISTRATE'S REPORT AND
RECOMMENDATION AND GRANTING DEFENDANTS' MOTION FOR
LAWRENCE KING UNITED STATES DISTRICT JUDGE
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).
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.
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.
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.
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.
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).
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).
Collateral Estoppel Does Not Bar The Agency's Decision
Because The Terrorism Bar Was Not "Actually
Litigated" In The Asylum Proceeding
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
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