Using Collateral Estoppel Against the United States Government in Immigration Matters

Collateral estoppel is a legal doctrine that precludes subsequent litigation of legal determinations of fact and law that have already resulted in final judgments. The rationale behind collateral estoppel is to prevent abuse of limited judicial resources and harassment. Collateral estoppel can only be applied in circumstances where (1) the issue sought to be relitigated is identical to the issue decided during a prior proceeding; (2) the prior proceeding ended with a final determination on the merits; and (3) the party against whom collateral estoppel is being asserted was a party to the prior proceeding. See Hydranautics v. FilmTec Corp.[PDF version], 204 F.3d 880, 885 (9th Cir. 2000). Collateral estoppel is applicable to administrative decision where the administrative agency “act[ed] in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate”, United States v. Utah Const. & Mining Co.[PDF version], 384 U.S. 394, 421-422 (1966). The United States District Court for the Northern District of California recently concluded collateral estoppel precluded U.S. Citizenship and Immigration Services (“USCIS”) from denying an asylee's application for adjustment of status to lawful permanent resident based upon terrorist activity that he engaged in prior to being granted asylum by an immigration judge (“IJ”). See Mohammad Sher Islam v. U.S. Department of Homeland Security, et. al.[PDF version], 14-cv-05326-RS.

Before discussing why the United States District Court for the Northern District of California found collateral estoppel was applicable in Mohammad Sher Islam v. U.S. Department of Homeland Security, et. al., it is important to understand that the Immigration and Nationality Act (“INA”) broadly defines the phrase “engage in terrorist activity” to include more than the use of acts violence or threats to intimidate or coerce. Under the INA the phrase “engaged in terrorist activity” is defined as follows:

• (I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;
• (II) to prepare or plan a terrorist activity;
• (III) to gather information on potential targets for terrorist activity;
• (IV) to solicit funds or other things of value for-
  • (aa) a terrorist activity;
  • (bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or
  • (cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization;
• (V) to solicit any individual-
  • (aa) to engage in conduct otherwise described in this subsection;
  • (bb) for membership in a terrorist organization described in clause (vi)(I) or (vi)(II); or
  • (cc) for membership in a terrorist organization described in clause (vi)(III) unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization; or
• (VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training-
  • (aa) for the commission of a terrorist activity;
  • (bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
  • (cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or
  • (dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.

INA § 212(a)(3)(B)(i)(I)-(VI) [PDF version]. The terrorism bar is even applicable to aliens who engaged in the above-referenced activity under duress or coercion.

Mohammad Islam previously sought asylum in the United States after fleeing Pakistan in 2000 out of fear of persecution. An alien may be granted asylum if he/she is unable or unwilling to return to his/her native country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A). The asylum applicant must also demonstrate none of the statutory bars would prohibit a grant of asylum. One of the five statutory bars prohibits a grant of asylum to an alien who has engaged in terrorist activity as defined in subsections (I), (II), (III), (IV), (V), and (VI) of INA § 212(a)(3)(B)(i). An IJ simply cannot grant asylum to an alien who has engaged in terrorist activity no matter how compelling the alien's claim.

The IJ initially denied Mr. Islam's asylum application based upon an adverse credibility determination. This denial was reversed by the Board of Immigration Appeals (“BIA”) who remanded the matter to the IJ for further consideration. Mohammad Sher Islam v. U.S. Department of Homeland Security, et. al., 14-cv-05326-RS. On remand, the IJ granted Mr. Islam's asylum application. Id. A year after Mr. Islam was granted asylum he applied for adjustment of status to a lawful permanent resident (“LPR”). Id. USCIS denied Mr. Islam's Form I-485, Application to Register Permanent Residence or Adjust Status based upon a conclusion that he previously engaged in terrorist activity and thus, was ineligible for permanent residence. Id. According to USCIS, Mr. Islam engaged in terrorist activity by providing material support and financial support as described in INA § 212(a)(3)(B)(i)(VI)(dd) and solicited money for a Tier III terrorist group as described in INA § 212(a)(3)(B)(i)(IV)(cc). Mr. Islam sought judicial review of USCIS's decision under the Administrative Procedure Act.

The United States District Court for the Northern District of California concluded collateral estoppel precluded USCIS from denying Mr. Islam's application for adjustment of status to lawful permanent resident based upon terrorist activity that he engaged in prior to being granted asylum. Mohammad Sher Islam v. U.S. Department of Homeland Security, et. al., 14-cv-05326-RS. The first prong of the collateral estoppel test was met as there was no dispute that the same parties appeared in the removal proceedings where Mr. Islam was granted asylum and the adjustment of status proceedings. Id. The United States government was represented by the Department of Homeland Security (“DHS”) in Mr. Islam's removal proceedings. Id. Mr. Islam's application for adjustment of status to lawful permanent resident was adjudicated by USCIS, which is a sub-agency of DHS. Id.

The second prong of the collateral estoppel test was also satisfied as the issue was actually litigated during Mr. Islam's removal proceedings. Id. To satisfy the second prong, the party asserting collateral estoppel must demonstrate the “issue is identical to an issue already litigated and that the issue [was] decided in the first case.” Id. See also Steen v. John Hancock Mut. Life Ins. Co.[PDF version], 106 F.3d 904, 912 (9th Cir. 1997). The United States District Court for the Northern District of California found “[t]he question of whether [Mr. Islam] was inadmissible for adjustment of status based on terrorist activities under 8 U.S.C. § 1182(a)(3)(B)(i) is the same issue that was decided in [Mr. Islam's] 2007 asylum proceedings when it was actually litigated.” Id. Both the statue governing eligibility for asylum (i.e. INA § 208 [PDF version]) and adjustment of status of asylees to lawful permanent residents (i.e. INA § 209 [PDF version]) refer to INA § 212 to determine whether an alien is eligible for said immigration benefits. Whether Mr. Islam engaged in terrorist activity was actually litigated during his removal proceedings. Id. DHS cross-examined Mr. Islam during his removal proceedings about his involvement in terrorist activities. Id. Mr. Islam and DHS both addressed whether Mr. Islam engaged in terrorist activities during their respective closing arguments. Even though the IJ did not expressly mention INA § 212(a)(3)(B)(i) in the decision granting Mr. Islam's asylum application, collateral estoppel applied “[b]ecause the IJ was statutorily barred from granting Islam asylum if he was found to have participated in terrorist activity”, Id., and “that issue was necessarily decided when the IJ did in fact grant Islam asylum.” Id.

The third prong of the collateral estoppel test was satisfied as the finding of whether Mr. Islam was inadmissible for engaging in terrorist activity was essential to the prior grant of asylum. Id. Both Mr. Islam and DHS argued the issue of whether Mr. Islam engaged in terrorist activity. Id. The IJ denied Mr. Islam's asylum application based upon an adverse credibility determination. Id. On appeal, the BIA reversed the IJ's adverse credibility finding and remanded the matter to the IJ. Id. The BIA had the full administrative record, but did not find Mr. Islam was barred from asylum for engaging in terrorist activities. Id. The IJ subsequently granted Mr. Islam's asylum application on remand, “which by necessity meant the judge found the terrorism bar did not apply.” Id.

In addition, the United States District Court for the Northern District of California concluded the plain language of the statute indicates a legislative intent to allow the application of the collateral estoppel doctrine. Id. DHS had argued language of the statute “that an asylee be admissible as a permanent resident 'at the time of examination for adjustment' contemplate[d] an entirely new inquiry into the asylee's admissibility regardless of the prior asylum proceeding.” Id. See also INA § 209(a)(2); and INA § 209(b)(5). While acknowledging that Congress created a two-step process through which an asylee becomes a lawful permanent resident, the United States District Court for the Northern District of California concluded Congress did not intend to bar application of the collateral estoppel doctrine. Rather, the two-step process was created “to (1) account for changes in facts and circumstances that might make an asylee ineligible for admissibility and (2) to adjudicate the separate statutory bars that exist for permanent residency, but that do not exist for asylum applicants.” Id.

The United States District Court for the Northern District of California reversed USCIS's decision denying Mr. Islam's application for adjustment of status to lawful permanent resident, because the agency acted contrary to law. Mr. Islam's case highlights how a skilled legal argument can help overcome a seemingly insurmountable denial. It is important to have an experienced immigration attorney promptly review any denial before conceding defeat.