997 F.3d 1333
11th Cir.2021Background
- Mazharul Islam, a Bangladeshi national and long‑time member of the Bangladesh Nationalist Party (BNP), obtained U.S. asylum and later applied to adjust status to lawful permanent resident.
- USCIS denied adjustment, finding Islam inadmissible under the INA terrorism bar both because the BNP qualified as a Tier III terrorist organization and because Islam personally provided material support (tea shop used as BNP meeting place; distributing flyers; posting posters).
- Islam had been BNP publicity secretary locally (2011); he was assaulted by political opponents in Bangladesh and fled; at his asylum proceeding the IJ granted asylum and the government did not appeal; the asylum hearing did not address the terrorism bar.
- Islam sued, arguing (1) issue preclusion barred USCIS from relitigating terrorism findings after the asylum grant, (2) the Tier III and “terrorist activity” definitions are vague/overbroad, and (3) USCIS’s Tier III determination was arbitrary and capricious. The district court granted summary judgment to the government.
- The Eleventh Circuit affirmed: issue preclusion did not apply; overbreadth and one vagueness claim were abandoned/waived; the Tier III statutory definition, as construed to require authorization (express or tacit) by leadership, is not unconstitutionally vague; and USCIS’s BNP Tier III finding was not arbitrary and capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether issue preclusion bars USCIS from applying the INA terrorism bar after an asylum grant | Islam: asylum adjudication resolved admissibility; USCIS cannot relitigate terrorism findings | Government: terrorism/inadmissibility were not raised or actually litigated in asylum proceeding | No — not actually litigated; preclusion fails |
| Whether the Tier III definition and “terrorist activity” are unconstitutionally overbroad or vague | Islam: definitions are vague/overbroad and fail to give fair notice (and lack limits like self‑defense) | Government: plaintiff abandoned/waived overbreadth and the terrorist‑activity challenge; definitions can be applied to facts | Overbreadth abandoned; Tier III definition not unconstitutionally vague; terrorist‑activity challenge waived |
| Whether the statutory text requires direct leader authorization or permits tacit authorization for Tier III classification | Islam: only explicit orders provide fair, clear standard | Government: law allows inference of authorization from patterns, leadership conduct or failure to curtail | Court: authorization may be explicit or tacit; tacit authorization is a permissible, ascertainable standard |
| Whether USCIS’s Tier III finding re: BNP was arbitrary and capricious under the APA | Islam: record lacks proof BNP leadership authorized members’ violent acts | Government: record (HRW, Reuters, CPJ, Jane’s and other reports) shows frequent violent acts and leadership’s failure to curtail, supporting tacit authorization | Court: USCIS’s decision was rationally supported and not arbitrary or capricious; affirmed |
Key Cases Cited
- Uddin v. Att’y Gen. U.S., 870 F.3d 282 (3d Cir. 2017) (Tier III status assessed case‑by‑case; leadership authorization—express or tacit—required to impute organization responsibility)
- Janjua v. Neufeld, 933 F.3d 1061 (9th Cir. 2019) (asylum proceedings that do not raise terrorism/inadmissibility issues do not actually litigate those issues for preclusion)
- Amrollah v. Napolitano, 710 F.3d 568 (5th Cir. 2013) (issue preclusion satisfied where government cross‑examined and IJ expressly addressed support for armed activity)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (context for evaluating statutes involving material support and terrorism definitions)
- Hussain v. Mukasey, 518 F.3d 534 (7th Cir. 2008) (organization not liable absent authorization; authorization may be inferred in some contexts)
- Khan v. Holder, 766 F.3d 689 (7th Cir. 2014) (organization does not automatically become terrorist because some members act violently; focus is on authorization)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (APA arbitrary and capricious standard requires rational connection between facts and agency action)
- United States v. Lanier, 520 U.S. 259 (1997) (vagueness standard: fair notice and prevention of arbitrary enforcement)
- Sierra Club v. Van Antwerp, 526 F.3d 1353 (11th Cir. 2008) (courts review whether agency reached a rational conclusion under the APA)