Mazharul Islam v. Secretary, Department of Homeland SecurityMazharul Islam v. Secretary, Department of Homeland Security
Appeal from the United States District Court for the Southern District of Florida
(May 20, 2021)
Before WILLIAM PRYOR, Chief Judge, and JORDAN and MARCUS, Circuit Judges.
The so-called “terrorism bar” in the
After he left Bangladesh, Mazharul Islam obtained asylum in the United States. He later sought to adjust his status to lawful permanent resident. United States Citizenship and Immigration Services ruled, however, that he was ineligible for adjustment of status due to his membership in a Tier III terrorist organization—the Bangladesh Nationalist Party—and his personal engagement in terrorist activity.
Mr. Islam unsuccessfully challenged USCIS’ decision in the district court. He now appeals the district court‘s grant of summary judgment in favor of the government. Following a review of the record, and with the benefit of oral argument, we affirm.
I
We summarize the facts in the light most favorable to Mr. Islam. See Warshauer v. Solis, 577 F.3d 1330, 1335 (11th Cir. 2009).
A
The Bangladesh Nationalist Party, or BNP, is one of the two largest political parties in Bangladesh. The other is the Awami League, or AL.
From 1982 to 1991, a military regime governed Bangladesh. Public uprisings beginning in 1990 led to the fall of the military regime and the restoration of democracy in 1991. Since then, the BNP and the AL have alternated periods of government control. Despite their participation in the Bangladeshi democratic process, both parties have also resorted to violence, corruption, and other illegal means to obtain, maintain, and consolidate political power.
Mr. Islam is a native and citizen of Bangladesh, and he has been a member of the BNP or its student organization since 1995. Around that time he started “to get really active in BNP political activities . . . [including] working with local BNP youth groups, going to meetings, and passing out BNP flyers.” D.E. 18-6 at 27. When he began his college studies, he “became even more active than before in BNP politics.” Id.
After college, Mr. Islam bought a tea shop, which he operated from 2001 to 2011. The tea shop served as a BNP meeting place, and he posted BNP flyers there and campaigned for BNP political candidates. On August 1, 2011, Mr. Islam became the publicity secretary for his local BNP chapter and was responsible for putting up posters advertising BNP events in the local area.
On August 20, 2011, while closing his tea shop for the day, Mr. Islam was assaulted by a group of AL members. Aware of his involvement with the BNP, the group beat him with hockey sticks and threw Molotov cocktails at his tea shop.
Mr. Islam escaped with the help of local villagers, but not before suffering burns and a broken finger. Because he tried to report the attack to the police, AL members ransacked his parents’ house and threatened to kill him. As a result, the
Three months later, Mr. Islam entered the United States without inspection, crossing the border at Hidalgo, Texas. He was detained by U.S. Border Patrol shortly thereafter.
An asylum officer conducted a credible fear interview to determine whether Mr. Islam was eligible to apply for asylum. During the interview, the asylum officer asked a series of questions related to his background, the reasons he left Bangladesh, his political affiliations, and his entry into the United States. As relevant here, the asylum officer asked Mr. Islam if he had ever belonged to a group accused of using violence. He responded “no.” The asylum officer found that Mr. Islam had established a credible fear of persecution, and that he did not appear to be subject to any bars to asylum or withholding of removal.
In August of 2012, Mr. Islam filed an application for asylum with USCIS. He confirmed that he belonged to the BNP and denied ever ordering, inciting, or assisting in causing harm to any persons because of their political opinions. He also attached an affidavit to his asylum application, in which he detailed his involvement with the BNP and the reasons he left Bangladesh.
At the asylum hearing, neither the parties nor the immigration judge discussed whether Mr. Islam was a member of a terrorist organization or had engaged in terrorist activity. The immigration judge granted asylum to Mr. Islam, and the government did not appeal.
B
In January of 2015, Mr. Islam filed an application with USCIS to adjust his status to lawful permanent resident. USCIS sent him a request for evidence, asking for information about his involvement with the BNP—including whether he had contributed financially, held official positions, received military-type training, or participated in armed conflict on its behalf.
Understanding that USCIS’ request evinced a concern with his membership in the BNP, Mr. Islam responded with three main arguments. First, the doctrine of issue preclusion barred USCIS from making any finding that would contradict the immigration judge‘s asylum order. Second, USCIS did not have any lawful basis to find that the BNP met the definition of a Tier III terrorist organization under
USCIS then sent Mr. Islam a notice of intent to deny his application for adjustment of status. It explained that it was considering denying the application under
Mr. Islam replied to the notice with the same arguments he had presented in his response to the request for evidence. He asserted that none of the evidence cited in USCIS’ notice credibly demonstrated that the BNP or its leadership had authorized, condoned, or sanctioned any violence; that the doctrine of issue preclusion barred USCIS
USCIS denied Mr. Islam‘s application for adjustment of status on two grounds. USCIS found that Mr. Islam was a member of a Tier III terrorist organization, i.e., the BNP. It also found that Mr. Islam had himself engaged in terrorist activity by providing material support to the BNP.2
While the administrative process was ongoing, Mr. Islam filed a petition for a writ of mandamus requesting that the district court compel USCIS to adjudicate his application for adjustment of status. After USCIS issued its decision, Mr. Islam filed an amended complaint in the district court, requesting a declaratory judgment holding (1) that USCIS was barred by the doctrine of issue preclusion from applying the INA‘s terrorism bar to him, (2) that USCIS erred in finding that the BNP was a Tier III terrorist organization, and (3) that the statutory definition of a Tier III terrorist organization was vague and overbroad.
The parties subsequently filed cross-motions for summary judgment. The government sought summary judgment on each count of Mr. Islam‘s complaint. A magistrate judge issued a report recommending that the district court grant the government‘s motion and deny Mr. Islam‘s motion. In response, Mr. Islam filed objections to the report and recommendation.
The district court issued an order adopting and affirming the magistrate judge‘s report and recommendation. The court first rejected the issue preclusion argument, concluding that whether the terrorism bar applied to Mr. Islam had not been “actually litigated” in the asylum proceeding. The court also ruled that USCIS’ determination that Mr. Islam was ineligible to adjust his status—due his being a member of the BNP, a Tier III terrorist organization, and to his provision of material support to the BNP—was supported by substantial evidence and was not arbitrary or capricious. Finally, the court held that the definition of a Tier III terrorist organization was not unconstitutionally vague or overbroad.
II
The INA is a complex statutory scheme, operating through numerous interlocking, primary, subordinate, and/or cross-referencing sections and subsections. Due to that nesting-doll structure, we consider it helpful to begin by identifying the INA provisions that are relevant to Mr. Islam‘s case, and explaining how they correlate and were applied by USCIS.
The INA permits the Secretary of Homeland Security or the Attorney General to adjust the status of an alien who has been granted asylum to that of lawful permanent resident, so long as the asylee meets certain requirements. See
Certain classes of aliens are considered inadmissible under the INA. One of those classes consists of aliens encompassed by the INA‘s terrorism bar. See
use of any . . . . explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property . . . . [and] [a] threat, attempt, or conspiracy to do any of the foregoing.
Relying on the evidence cited in its notice of intent to deny, USCIS determined that over many years BNP members had engaged in frequent and widespread acts of violence that constituted terrorist activity as defined in
Second, USCIS found Mr. Islam inadmissible for having personally engaged in terrorist activity. See
Under
III
On appeal, Mr. Islam argues that the district court erred in granting summary judgment in favor of the government. Our review is, except where noted, plenary. See Salmeron-Salmeron v. Spivey, 926 F.3d 1283, 1286 (11th Cir. 2019).
IV
Mr. Islam first argues that issue preclusion barred USCIS from determining that he was inadmissible under the INA‘s terrorism bar. The district court concluded that this issue had not been “actually litigated” in the asylum proceeding because it had not been contested, debated, or raised there. As a result, issue preclusion did not bar USCIS from adjudicating the application of the terrorism bar. We agree with the district court.
As noted above, we generally review de novo a district court‘s grant of summary judgment. See, e.g., Barnett v. MacArthur, 956 F.3d 1291, 1296 (11th Cir. 2020). But where the summary judgment order addressed issue preclusion, we review for clear error the court‘s factual determination as to whether an issue was
“A final decision by an immigration judge has a preclusive effect on future litigation and agency decisions.” Amrollah v. Napolitano, 710 F.3d 568, 571 (5th Cir. 2013). See also Astoria v. Fed. Sav. & Loan Ass‘n v. Solimino, 501 U.S. 104, 108 (1991) (“[W]here a common-law principle is well established, as are the rules of preclusion, the courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.“) (citations and internal quotation marks omitted). The federal doctrine of issue preclusion “forecloses relitigation of an issue of fact or law that has been litigated and decided in a prior suit.” CSX Transp., Inc. v. Brotherhood of Maint. of Way Emps., 327 F.3d 1309, 1317 (11th Cir. 2003) (internal quotation marks omitted). For federal issue preclusion to bar relitigation of a particular issue, (1) the relevant issue must be identical to the one involved in the prior proceeding, (2) the issue must have been actually litigated in the prior proceeding, (3) the determination of the issue must have been a critical and necessary part of the judgment in the prior proceeding, and (4) the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding. See id.
Mr. Islam argues that whether the BNP is a Tier III terrorist organization—and thus whether he is a member of, or provided material support to, such an organization—was actually litigated in the asylum proceeding. In support, he points to statements he made in his asylum application, affidavit, and credible fear interview, as well as to the asylum officer‘s finding that there did not appear to be a bar to asylum. According to Mr. Islam, that evidence “amounted to ‘litigation.‘” Appellant‘s Br. at 18. We are not persuaded.
A matter is actually litigated for purposes of issue preclusion when it is “properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.” Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998) (quoting Restatement (Second) of Judgments § 27 cmt. d (1982)). Accord Janjua v. Neufeld, 933 F.3d 1061, 1066 (9th Cir. 2019); Raspanti v. Keaty (In re Keaty), 397 F.3d 264, 272 (5th Cir. 2005); McLaughlin v. Bradlee, 803 F.2d 1197, 1202 (D.C. Cir. 1986). In analyzing whether Mr. Islam‘s inadmissibility under the terrorism bar was actually litigated in the asylum proceeding, we find the Ninth Circuit‘s reasoning in Janjua persuasive.
In Janjua, an alien sought asylum due to persecution he had suffered in Pakistan because of his membership in a particular organization. See Janjua, 933 F.3d at 1063. At one point during the asylum hearing, the government asked about the organization‘s reputation for violence and cited to some supporting documents. See id. But the issue of whether the organization qualified as a terrorist organization was never raised or discussed. See id. The immigration judge granted the alien asylum, but when he applied for adjustment of status, USCIS declared him inadmissible for having provided material support to a terrorist organization. See id. at 1064. The alien argued that whether he was inadmissible under the terrorism bar had been decided in his asylum proceeding, and that the doctrine of issue preclusion therefore barred USCIS from re-adjudicating the issue. See id.
The Ninth Circuit, however, held that issue preclusion did not apply because the alien‘s inadmissibility under the terrorism
As in Janjua, no one raised or submitted for determination at Mr. Islam‘s asylum hearing whether the BNP qualified as a Tier III terrorist organization, let alone whether Mr. Islam had provided material support to such an organization. Mr. Islam, moreover, points to nothing in the record indicating that evidence relevant to those subjects was discussed during the asylum hearing. Instead, the statements that he relies on were ones he or the asylum officer made prior to the hearing. To the extent that the immigration judge considered those statements during the asylum proceeding, he did so only to determine whether Mr. Islam had a credible fear of persecution.
Mr. Islam cites to Amrollah v. Napolitano, 710 F.3d at 571, where the Fifth Circuit held that an alien‘s inadmissibility under the terrorism bar had been actually litigated in a prior asylum proceeding. The case, however, is distinguishable on its facts. In Amrollah, the Fifth Circuit concluded that the “actually litigated” element of issue preclusion was satisfied as to the terrorism bar because “[t]he government cross-examined [the alien] extensively about his support of the mujahedeen movement and [the relevant organization] during the asylum proceeding.” Id. Additionally, the immigration judge had explicitly found that the alien‘s testimony confirmed that he had not supported any acts of violence that would make him ineligible for asylum, in spite of the government‘s suggestion otherwise. See id. at 570. That record is different than the one before us. Mr. Islam was not cross-examined on his BNP membership or whether he provided material support to the BNP. Nor did the government suggest during the asylum proceeding that he might be inadmissible under the terrorism bar. Finally, unlike the immigration judge in Amrollah, the immigration judge here made no mention of the terrorism bar in his one-page order granting asylum.
We discern no clear error in the district court‘s determination that Mr. Islam‘s inadmissibility under the terrorism bar was not actually litigated during the asylum proceeding, and reject the issue preclusion claim. Given our conclusion, we do not address the other requirements of issue preclusion.
V
Mr. Islam next argues that, in violation of his due process rights under the Fifth Amendment, the definition of a Tier III terrorist organization under
A
It is unclear whether Mr. Islam is asserting that the statutory provisions in question are unconstitutional under the
For starters, Mr. Islam has abandoned any argument that the definition of a Tier III terrorist organization fails under overbreadth principles. He mentions the supposed overbreadth of
“We have long held that an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). Mr. Islam‘s fleeting references to
In addition, Mr. Islam has waived any challenge to the definition of “terrorist activity” under
B
Mr. Islam asserts that the definitions of a Tier III terrorist organization, see
1
A claim that a statute is vague, and therefore unconstitutional, presents a question of law subject to plenary review. See Wilson v. State Bar of Ga., 132 F.3d 1422, 1427 (11th Cir. 1998). A law is unconstitutionally vague when “it fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015). Where, as here, a vagueness challenge does not involve the First Amendment, the statute in question is generally analyzed on an as-applied basis. See Maynard v. Cartwright, 486 U.S. 356, 361 (1988); Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 495 n.7 (1982). The questions for us, then, are whether
As to the definition of a Tier III terrorist organization, Mr. Islam claims that it is unconstitutionally vague because it does not indicate how an organization itself—as opposed to its members or leaders—engages in the prohibited conduct. To recall, a Tier III terrorist organization is defined as “an organization . . . that is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in [certain activities, including ‘terrorist activity.‘]”
We hold that an organization engages in terrorist activity for the purposes of
Our holding does not mean that an organization qualifies as a Tier III terrorist organization if it fails to prevent one or a few terrorist acts by its members or fails to stop a single member from committing terrorist acts. Indeed, “[i]f a single member of the Democratic or Republican Party committed a terrorist act, we would not impute terrorist status to the entire group, absent some showing that party leadership authorized the act.” Id. at 290. See also Khan v. Holder, 766 F.3d 689, 699 (7th Cir. 2014) (“An entire organization does not automatically become a terrorist organization just because some members of the group commit terrorist acts. The question is one of authorization.“). But when the terrorist activity of its members is recurrent and extends over a prolonged period, and leadership‘s failure to curtail that activity is likewise consistent, a trier of fact can reasonably infer that the organization authorized its members’ terrorist activity.
As applied to Mr. Islam and the BNP,
Mr. Islam argues in his reply brief that “only direct authorization, such as verbal or written permission, orders, or instructions to carry out terrorist activity,” can lead to a Tier III terrorist organization classification because “[s]uch [a] definition is clear; it is just; it is rational; and it can be proved or disproved.” Appellant‘s Reply Br. at 14–15. Establishing the existence (or lack thereof) of explicit authorization may be more straightforward than establishing the existence (or lack thereof) of tacit authorization, but this does not make
2
That leaves Mr. Islam‘s vagueness challenge to the definition of “terrorist activity.” That, term, again, is defined as “any activity which is unlawful” and which involves the use of explosives, firearms, weapons, or dangerous devices—“other than for mere personal monetary gain“—“with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property,” as well as a “threat, attempt, or conspiracy” to do any of these acts. See
This definition is problematic, says Mr. Islam, because it encompasses actions that no reasonable person would define as terrorist activities. He argues, for example, that there is no self-defense exception. And he insists that it is irrational to use such a broad definition when someone in his position may be associated with a terrorist organization just because others in the organization may have committed prohibited acts. See Appellant‘s Br. at 31.
Mr. Islam‘s vagueness challenge to
VI
As to USCIS’ substantive determination that the BNP qualified as a Tier III terrorist
In conducting de novo review of the district court‘s grant of summary judgment, we apply the same underlying standard used by the district court. See Gerling Glob. Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233 (11th Cir. 2001). The relevant provision of the Administrative Procedure Act,
USCIS determined that the BNP qualified as a Tier III terrorist organization, finding (1) that over many years BNP members had engaged in frequent and widespread conduct that constituted terrorist activity, (2) that BNP leadership sometimes participated in or threatened the use of violence, and (3) that there was no evidence that BNP leadership took steps to prevent members from engaging in terrorist activity or routinely sanctioned members for doing so. Consequently, USCIS determined that the BNP had at least tacitly authorized its members’ terrorist activity, thereby itself engaging in terrorist activity.
We conclude that USCIS rationally found that BNP members had engaged in conduct that constituted “terrorist activity” under
USCIS’ determination that BNP leaders had tacitly authorized its members’ terrorist activity was also rational. Here too, the 1996 Human Rights Watch report explained that, after that year‘s election, “neither the BNP nor the [AL] ha[d] taken affirmative steps to ensure that their supporters and party cadres desist[ed] from the kind of violence that characterized their earlier political feuding.” D.E. 18-3 at 4. After the 1999 attack on a local newspaper, the newspaper‘s editor stated that the attack had been spearheaded by the BNP‘s press advisor. In addition, other journalists had reported being threatened by local BNP leaders to not publish reports critical of the BNP. Against this backdrop, USCIS explained that there was no evidence in the record that BNP leadership had routinely or systematically sanctioned members for engaging in terrorist activity. Given the frequent and widespread nature of the terrorist activity perpetrated by BNP members, all of this evidence was sufficient to render rational USCIS’ determination that the BNP had tacitly authorized its members’ terrorist activity.
Mr. Islam presents a series of factual arguments that, while individually accurate, do not change the outcome. For example, he correctly points out that the BNP has denied involvement in intimidation and violence. Yet if we were to re-weigh that fact (and others) along with the evidence supporting USCIS’ tacit authorization finding, we would be engaging in precisely the type of investigation and substitution of judgment that we cannot undertake under
We recognize that there is evidence demonstrating that the AL, when in power, persecuted the BNP and its members. But though that evidence may suggest that the AL is itself a Tier III terrorist organization, it does not exempt the BNP from such classification.
Mr. Islam also contends that USCIS and the district court failed to fully address his argument that he did not know and should not reasonably have known that the BNP qualified as a Tier III terrorist organization. We agree with the government, however, that Mr. Islam has forfeited his lack-of-knowledge argument by not raising it in the district court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). In any event, USCIS did explain its conclusion that Mr. Islam had not met his burden of proving that he did not know and should not reasonably have known that the BNP qualified as a Tier III terrorist organization. See D.E. 18-1 at 9. Mr. Islam‘s argument on appeal—which does not identify any substantive error in USCIS’ analysis—is perfunctory and therefore insufficient. See Sapuppo, 739 F.3d at 681. Thus, we leave for another day what a person must show to establish that he “did not know, and should not reasonably have known, that the organization was a terrorist organization.”
Applying the “exceedingly deferential” standard of review under
VII
We affirm the district court‘s grant of summary judgment in favor of the government on Mr. Islam‘s claims.
AFFIRMED.