United States District Court, E.D. Kentucky, Central Division
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
matter is before the Court on Plaintiff Mehrdad
Hosseini's motion for summary judgment. (DE 24). For the
reasons explained below, the Court denies Plaintiff's
motion for summary judgment and affirms USCIS's decision
denying Hosseini's adjustment of status application.
1999, Hosseini's wife, an Iranian citizen, and their two
children were granted asylum by an Immigration Judge (IJ).
(DE 21-1, at 114, 122-23). In her affidavit supporting her
asylum application, Hosseini's wife stated that her fear
of persecution and prosecution were based, in part, on the
arrest of Hosseini by the Iranian Revolutionary Guard for his
past anti-revolutionary activities with the Mujahadin-e Khalq
Organization (“MeK”). (DE 21-1, at 124-27).
Hosseini's wife described his involvement with the MeK
during the 1980s as “minimal, occasional, and  mostly
in the form of providing copying and telefax services to
facilitate distribution of political leaflets and articles at
the request of his brothers who were active in the
organization.” (DE 21-1, at 127).
Hosseini was not in the United States at the time of his
wife's asylum application, he was not a party to those
proceedings. Instead, shortly after her application was
granted, Hosseini's wife submitted a Form I-730
Refugee/Asylee Relative Petition seeking asylum status for
Hosseini as a derivative beneficiary spouse. (DE 21-1, at
111-13); see 8 U.S.C. § 1158(b)(3)(A) (“A
spouse . . . of an alien who is granted asylum under this
subsection may, if not otherwise eligible for asylum under
this section, be granted the same status as the alien if . .
. following to join, such alien.”). Hosseini's
derivative beneficiary application was granted by a U.S.
Citizenship and Immigration Services (“USCIS”)
adjudicator on December 1, 1999. The adjudicator, however,
did not review Hosseini's wife's file and did not
interview Hosseini or his wife. (DE 21-1, at
After his wife's application was granted, Hosseini claims
he appeared at the U.S. consul in the United Arab Emirates
where he executed an application to enter the United States,
in which he stated that he was never affiliated with a
foreign terrorist organization
(“FTO”). (DE 18, at ¶ 40).
little more than one year after entering the United States as
an asylee, Hosseini filed a Form I-485 application to adjust
his status to a lawful permanent resident on April 19, 2001.
(DE 21-1, 91-94). In that application, Hosseini stated that
he joined “a political organization called Fadaeian
Khalgh [sic] from 1979 to 1982 in Iran.” (DE 21-1, at 92).
More than six years after submitting his status adjustment
application, Hossieni received a request for evidence from
USCIS noting the discrepancy between his wife's asylum
file, which indicated membership with the MeK, and his Form
I-485, which only listed membership in the FeK. USCIS
requested that Hosseini submit an affidavit explaining the
discrepancy, and indicating all groups with which he had been
involved. (DE 21-1, at 71-72).
affidavit, Hosseini stated that he “began reading and
distributing literature from various sources, two of which
were from MEK and the Fadaian.” (DE 21-1, at 49). He
claimed that the literature “exposed the [Iranian]
government's oppressive actions throughout the country,
particularly the crack-down on demonstrations by women,
students, workers, and the corruption in government that led
to waste and inefficiency.” (DE 21-1, at 49-50). He
stated that he had heard “rumors” that the MeK
and other groups had engaged in terrorist attacks, but
claimed that the information was unreliable at the time due
to misinformation spread by the Irian government. (DE 21-1,
at 50). He claimed that while he distributed literature, he
was never affiliated with or a member of the MeK (DE 21-1, at
45). He stated that he ceased distributing political
literature in 1985 due to his fear of persecution for being a
member of an opposition group. (DE 21-1, at 53). And,
finally, he claimed that he was never a member of the FeK,
although he supported their political goals and attended
their meetings. (DE 21-1, at 54).
application went unadjudicated for another six years and, in
March 2013, he filed a pro se complaint in federal
district court seeking to compel USCIS to decide his
application. The court issued an order on April 3, 2014
requiring USCIS to adjudicate Hosseini's application
within 60 days. Hosseini v. Napolitano, 12 F.Supp.3d
1027 (E.D. Ky. 2014). On May 5, 2014, USCIS issued a notice
of intent to deny Hosseini's application to adjust status
on the basis that he was inadmissible under 8 U.S.C. §
1182(a)(3)(B)(i)(I) because his distribution of literature
for the FeK and MeK constituted engaging in terrorist
activities under § 1182(a)(3)(B)(iv)(VI)(dd). (DE 21-1,
at 36-38). Hosseini filed a timely response to the notice of
intent to deny, arguing that he was not inadmissible because
he was not a member of the FeK or MeK, he lacked knowledge of
their terrorist activities, and his actions did not
constitute material support of the organizations. He also
argued that USCIS was collaterally estopped from denying his
application because of its previous finding that he was an
admissible asylee. (DE 21-1, at 7-11). On July 18, 2014, a
decision was entered addressing Hosseini's response and
denying his application for permanent resident status. (DE
21-1, at 2-6).
filed the present action seeking review of USCIS's denial
of his legal permanent residence application on October 28,
2014. The Sixth Circuit determined that this Court has
subject matter jurisdiction over Hosseini's claim and
that USCIS's denial of Hosseini's application was a
“final agency action” within the meaning of the
Administrative Procedure Act (“APA”).
Hosseini v. Johnson, 826 F.3d 354 (6th Cir. 2016).
Hosseini filed a motion for summary judgement on February 1,
2017 (DE 24) that is now ripe for review.
Standard of Review
is entitled to summary judgment 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). Under the APA, review of a final agency
action is limited to whether the decision was
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). An agency's decision is arbitrary or
the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.
City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th
Cir. 2007) (quoting Motor Vehicles Mfrs. Assoc. v. State
Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An
agency action is not in accordance with the law “when
it is in conflict with the language of the statute relied
upon by the agency.” Id. The scope of this
standard of review is narrow and the Court is not permitted
to substitute its judgment for the agency's expertise.
State Farm, 463 at 43.
determined that Hosseini was not eligible for an adjustment
of status because he was not admissible at the time of his
application. 8 U.S.C. § 1159(b)(5) (“The Secretary
of Homeland Security . . . may adjust to the status of an
alien lawfully admitted for permanent residence the status of
any alien granted asylum who . . . (5) is admissible . . . as
an immigrant under this chapter at the time of examination
for adjustment of such alien.”). The classes of
inadmissible aliens are set forth in 8 U.S.C. § 1182.
Hosseini was found to be inadmissible as an alien who
“has engaged in a terrorist activity.” 8 U.S.C.
§ 1182(a)(3)(B)(i)(I). More specifically, USCIS
determined that Hosseini “engage[d] in terrorist
activity” by committing “an act that the actor
knows, or reasonably should know, affords material support .
. . to a terrorist organization.” §
1182(a)(3)(B)(iv)(VI)(dd). USCIS found the MeK and FeK to be
“Tier III” or “undesignated” FTOs,
defined as “a group of two or more individuals whether
organized or not, which engages in, or has a subgroup which
engages in” terrorist activities, §
1182(a)(3)(B)(vi)(III), and determined that Hosseini's
act of distributing literature on their behalf constituted
providing material support.
makes four principal arguments in support of his motion for
summary judgment. First, that USCIS was collaterally estopped
from reaching a second conclusion on inadmissibility that was
contrary to the first. Second, that USCIS's determination
that the MeK and FeK were engaged in terrorist activities was
arbitrary and capricious. Third, that Hosseini presented
clear and convincing evidence that he did not know, and
should not have known, that the MeK and FeK were engaged in
terrorist activities. And fourth, the alleged support that
Hosseini provided to the MeK and FeK was not
“material.” These arguments and their subparts
are addressed in turn.
Collateral estoppel did not apply to Hosseini's
adjustment of status application
first argument is that USCIS was collaterally estopped from
finding that he was inadmissible based on its prior decision
granting him asylum status. Collateral estoppel, also known
as issue preclusion, “refers to the effect of a
judgment in foreclosing relitigation of a matter that has
been litigated and decided.” Migra v. Warren City
School Dist. Bd. Of Educ., 465 U.S. 75, 77 n.1 (1984)
(citing Restatement (Second) of Judgments § 27 (Am. Law
Inst. 1982)). The doctrine of collateral estoppel has been
extended to administrative agencies when they act in a
judicial capacity. See United States v. Utah Const. &
Min. Co., 384 U.S. 394, 421 (1966) (“When an
administrative agency is acting in a judicial capacity and
resolved disputed issues of fact properly before it which the
parties have had an adequate opportunity to litigate, the
courts have not hesitated to apply res judicata to enforce
repose.”). The purpose of applying collateral estoppel
to final agency determinations is “the sound and
obvious principle of judicial policy that a losing litigant
deserves no rematch after a defeat fairly suffered, in
adversarial proceedings, on an issue identical in substance
to the one he subsequently seeks to raise.” Astoria
Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S.
104, 108 (1991). Collateral estoppel applies to an agency
adjudication if the following four conditions are satisfied:
1) the precise issued raised in the present case must have
been raised and actually litigated in the prior proceeding;
2) determination of the issue must have been necessary to the
outcome of the ...