Kakar v. USCIS, 29 F.4th 129

Mohamed Qaseem Kakar, an Afghan national, was granted asylum by an Immigration Judge in 2000 based on Taliban persecution after being abducted, forced to perform camp duties, and — according to his account — forced at gunpoint to fight for the Taliban before escaping.
Kakar applied to adjust to lawful permanent resident status in 2006; the Taliban was designated a Foreign Terrorist Organization by Congress in 2007.
In 2013–2016 USCIS issued a Notice of Intent to Deny and then a final denial, finding Kakar inadmissible under the INA’s "weapons bar" (8 U.S.C. § 1182(a)(3)(B)(iii)(V)) and a material-support bar.
USCIS’s weapons-bar conclusion rested on its finding that Kakar used a weapon on behalf of the Taliban with "intent to endanger," and the agency noted but did not analyze Kakar’s claim that he acted under duress.
Kakar sued under the APA; the district court upheld USCIS on the weapons bar. The Second Circuit vacated and remanded, concluding USCIS’s decision was arbitrary and capricious because the agency failed to address whether Kakar’s conduct was unlawful under U.S. or Afghan law and failed to show it considered his duress defense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether USCIS adequately found Kakar’s acts were "unlawful" under the laws of the place committed or would be unlawful in the U.S. (an element of the weapons bar)	Kakar: USCIS did not make the required finding and therefore its weapons-bar determination is arbitrary and capricious.	USCIS: The facts (use of a weapon to oppress for religious ends) plainly satisfy unlawfulness; deferential review should sustain the decision even if not perfectly worded.	Court: Vacated; USCIS failed to articulate a contemporaneous finding on unlawfulness—remand required.
Whether USCIS considered Kakar’s duress defense in evaluating unlawfulness	Kakar: He was forced at gunpoint; duress could negate unlawfulness and was not addressed.	USCIS: No Secretary-level duress exemption exists for the weapons bar; the agency treated the facts as showing intent to endanger.	Court: Vacated; record does not show whether or how USCIS evaluated duress—remand for explicit consideration.
Whether a court may accept post-hoc rationalizations supplied during litigation to uphold the agency	Kakar: Agency’s later explanations cannot substitute for contemporaneous reasoning.	USCIS/District Ct.: Post-hoc explanations show the unlawfulness requirement is satisfied and should be upheld under APA deference.	Court: Rejected post-hoc rationalizations; must rely on agency’s contemporaneous explanation.

Nat. Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91 (2d Cir. 2001) (standard for reviewing agency action under the APA)
Henley v. Food & Drug Admin., 77 F.3d 616 (2d Cir. 1996) (describing APA’s narrow, deferential review)
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974) (agency action review and deference principles)
Garland v. Ming Dai, 141 S. Ct. 1669 (2021) (courts must assess agency action based on contemporaneous explanations, citing Chenery)
Brodsky v. U.S. Nuclear Regul. Comm’n, 704 F.3d 113 (2d Cir. 2013) (courts cannot supply reasons the agency did not give)
Pub. Citizen, Inc. v. Mineta, 340 F.3d 39 (2d Cir. 2003) (rejecting post-hoc rationalizations for agency action)
Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) (limiting review to the agency’s contemporaneous explanation)
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency must articulate rational connection between facts and decision)
United States v. Zayac, 765 F.3d 112 (2d Cir. 2014) (duress can negate culpability and is an affirmative defense to consider)
Dixon v. United States, 548 U.S. 1 (2006) (discussing duress as affecting criminal culpability)