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Hosseini v. Nielsen

United States Court of Appeals, Sixth Circuit

December 19, 2018

Mehrdad Hosseini, Plaintiff-Appellant,
v.
Kirstjen M. Nielsen, Secretary of the United States Department of Homeland Security; L. Francis Cissna, Director, United States Citizenship and Immigration Services, in his official capacity; Kristine R. Crandall, Director of Nebraska Service Center, United States Citizenship and Immigration Services, in her official capacity, Defendants-Appellees.

          Argued: October 18, 2018

          Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:14-cv-00404-Karen K. Caldwell, Chief District Judge.

         ARGUED:

          Lance Curtright, DE MOTT, MCCHESNEY, CURTRIGHT, ARMENDARIZ, LLP, San Antonio, Texas, for Appellant.

          Joseph Francis Carilli, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

         ON BRIEF:

          Lance Curtright, DE MOTT, MCCHESNEY, CURTRIGHT, ARMENDARIZ, LLP, San Antonio, Texas, for Appellant.

          J. Max Weintraub, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

          Before: KEITH, CLAY, and NALBANDIAN, Circuit Judges.

          OPINION

          NALBANDIAN, CIRCUIT JUDGE.

         Mehrdad Hosseini fled his native Iran and obtained asylum in the United States in 1999. Two years later, he applied to adjust his legal status to become a lawful permanent resident. But the United States Citizenship and Immigration Services ("USCIS") denied that application after concluding that Hosseini provided material support to two Iranian terrorist organizations, rendering him inadmissible to the United States under 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd).

         This case turns on whether Hosseini's copying and distribution of flyers amounts to material support of a terrorist organization. Over an approximate six-year span after the 1979 Iranian Revolution, Hosseini made copies of and distributed flyers from several Iranian nongovernmental organizations, including the Mujahadin-e Khalq ("MeK") and the Fadain-e Khalq ("FeK").[1] Hosseini insists that the flyers he distributed alerted Iranians to the new regime's human rights abuses, including its crackdown on women, students, workers, and other civil dissidents. Nonetheless, USCIS determined that MeK and FeK were terrorist organizations and that Hosseini provided them material support by copying and distributing their flyers. After USCIS denied his application, Hosseini sought relief in federal court, arguing that USCIS's inadmissibility determination was arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201. The district court affirmed USCIS's determination. We AFFIRM.

         I.

         In 1997, Mehrdad Hosseini's wife, Nasrin Abdolrahmani, left Iran with her two children and traveled to the United States on a B-2 tourist visa. Shortly thereafter, Abdolrahmani applied for asylum, noting her genuine fear of persecution were she to return to Iran. Abdolrahmani explained in her affidavit supporting her asylum petition that the government was targeting her family because of her husband's prior ties to MeK, which sought to overthrow the radical Islamic clerics who led the Iranian regime following the 1979 Iranian Revolution. She stated that her husband described his involvement with MeK 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." Nonetheless, Abdolrahmani stated that she threatened to leave Hosseini after the birth of their first child unless he severed his ties to the organization. Hosseini acceded to her demand sometime in the mid-1980s.

         After an immigration judge granted her asylum petition, Abdolrahmani submitted a Form I-730 petition to obtain asylum for her husband as a derivative beneficiary spouse.[2] A USCIS adjudicator granted that petition too, despite the fact that he was unable to review Abdolrahmani's file and therefore lacked knowledge about Hosseini's ties to MeK.

         About one year after obtaining asylum in the United States, Hosseini filed a Form I-485 application to adjust his legal status to that of a lawful permanent resident. The application asked Hosseini to describe his affiliation with any political organization-in the United States or elsewhere-since his 16th birthday. While Hosseini did not mention his connection to MeK, he stated that he "served to the Iranian Army as a soldier since May 1980 to May 1982" and that he "joint [sic: joined] to a political organization called Fadaeian Khalgh from 1979 to 1982 in Iran." In December 2007, USCIS contacted Hosseini to request additional information, noting that it had uncovered a discrepancy between his application and Abdolrahmani's 1997 affidavit. USCIS explained:

A review of your Spouse's file reveals that you were a member of the Mujahedin prior to your marriage in 1984. In fact, your past membership within the Mujahedin was a prominent part of your spouse's asylum claim. You listed membership in Fadeian Khalqh in Part, 3, Section C of your Form I-485 application, but made no mention of the Mujahedin. Please provide an affidavit detailing the reason for this discrepancy or omission.

         Hosseini responded to USCIS's request through a March 2009 affidavit, explaining that he was aware of the contents of his wife's asylum application and that he "[has] nothing to hide and [has] never tried to hide anything." Hossieni stated that his wife's description of his involvement with MeK was accurate and that he believed USCIS would have considered his I-485 application in conjunction with his wife's asylum application.

         In that same affidavit, Hosseini clarified the extent of his involvement with MeK and FeK. He explained that he was a young adult living in Iran in 1979 when radical clerics led by Ayatollah Khomeini toppled Iran's ruling monarch and imposed an Islamic theocracy. After the revolution, Hosseini became increasingly interested in politics and "eagerly sought out information about various political viewpoints." He read literature from different Iranian organizations, ranging from Islamic fundamentalists to women's rights groups. And he began to copy and distribute some of that literature, including literature from MeK and FeK. According to Hosseini, the literature that he distributed informed Iranians about the new government's human rights abuses, particularly its targeting of women, students, workers, and other civil dissidents. Moreover, the literature countered the regime's narrative that it enjoyed widespread public support. As Hosseini explained, the literature allowed Iranians to "find out what was really happening" in their country. Hosseini insisted that he never joined MeK, FeK, or any other Iranian political organization, explaining that his opposition to "a continued Islamic role in the federal government of Iran" would likely have precluded him from attaining membership in MeK. Although Hosseini conceded that he heard "rumors" that MeK engaged in terrorist attacks on the Iranian government, he "emphatically" denied ever learning "any reliable information that would indicate the MeK killed civilians" or American servicemen prior to the Iranian Revolution.

         Six years passed with no response from USCIS. In March 2013, Hosseini filed a pro se complaint in federal district court to compel USCIS to decide his application. The district 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). USCIS then issued a "Notice of Intent to Deny" Hosseini's application, explaining that Hosseini is inadmissible under 8 U.S.C. ยง 1182(a)(3)(B)(i)(I) for having engaged in terrorist activities by providing copying and telefax services to MeK and FeK and distributing their literature. Hosseini filed a timely response to USCIS's Notice of Intent, explaining that he was not a member of MeK or FeK, had no knowledge of the ...


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