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Hosseini v. Duke

United States District Court, E.D. Kentucky, Central Division

November 27, 2017

ELAINE C. DUKE, et al., [1]Defendants.



         This 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.

         I. Background

         In May 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”).[2] (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).

         Because 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 5).[3] 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”).[4] (DE 18, at ¶ 40).

         A 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.”[5] (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).

         In his 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).

         Hosseini's 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).

         Hosseini 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.

         II. Standard of Review

         A party 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.”[6] 5 U.S.C. § 706(2)(A). An agency's decision is arbitrary or capricious when:

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.

         III. Analysis

         USCIS 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.

         Hosseini 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.

         A. Collateral estoppel did not apply to Hosseini's adjustment of status application

         Hosseini's 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 ...

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