Kakar v. U.S. Citizenship & Immigration Servs.
| Decision Date | 28 March 2022 |
| Docket Number | August Term, 2021,Docket No. 20-1512-cv |
| Citation | 29 F.4th 129 |
| Parties | Mohamed Qaseem KAKAR, Plaintiff-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael E. Piston, New York, NY, for Plaintiff-Appellant Mohamed Qaseem Kakar.
Layaliza Soloveichik, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, on the brief), for Breon S. Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defendant-Appellee United States Citizenship and Immigration Services.
Before: WALKER, CALABRESI, and LOHIER, Circuit Judges.
Over twenty years ago, an Immigration Judge (IJ) granted Mohamed Qaseem Kakar, an Afghan national, asylum in the United States. When Kakar later applied for lawful permanent residence, the United States Citizenship and Immigration Services (USCIS) denied his application because it found that he had engaged in terrorist activity that rendered him inadmissible. Kakar challenged USCIS's denial as arbitrary and capricious under the Administrative Procedure Act (APA), 5 U.S.C. § 701 – 706. On review, the United States District Court for the Eastern District of New York (Matsumoto, J. ) affirmed the denial under the "weapons bar" of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(3)(B)(iii)(V). The question on appeal is whether USCIS, in denying Kakar's application, adequately explained the unlawfulness of Kakar's acts under United States law, which is a necessary element of the weapons bar, and whether in doing so it considered his claim of duress. As we describe below, we are unable to discern USCIS's full reasoning for denying Kakar's application or to conclude that the agency considered all factors relevant to its decision, and we therefore conclude that its decision was arbitrary and capricious under the APA. We VACATE the judgment and REMAND the case to the District Court with instructions to remand to USCIS for further proceedings consistent with this opinion.
I
Kakar entered the United States from Afghanistan in 1999 and applied for asylum, withholding of removal, and withholding under the Convention Against Torture. To support his application, he alleged that the Taliban had persecuted him for disobeying its religious rules and for being a member of the Shi'a Muslim minority group in Afghanistan. He claimed that Taliban members abducted him from his home, detained him at a Taliban base, and forced him to cook, clean, and wash their clothes. The Taliban once forced him to take a gun and fight against the opposition forces of Ahmad Shah Massoud, the leader of an armed group fighting the Taliban. After being held by the Taliban for roughly one month, Kakar escaped as soon as "[he] had an opportunity" and fled from Afghanistan to the United States. Certified Administrative Record ("CAR") 153, 158.
On March 28, 2000, an IJ granted Kakar asylum. On January 12, 2006, Kakar applied to adjust to lawful permanent resident status. See 8 U.S.C. § 1159. While Kakar's application was pending, in December 2007 Congress designated the Taliban as a terrorist organization. See Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, § 691(d), 121 Stat. 2365 (2007). Several years later, in 2013, USCIS sent Kakar a Notice of Intent to Deny, which stated that he was inadmissible for lawful permanent resident status because he had engaged in "terrorist activities" related to the Taliban. CAR 9–11. Following up in 2016, the agency issued a final decision denying Kakar's application for two reasons. First, USCIS determined that Kakar's use of a weapon on the Taliban's behalf as described above rendered him inadmissible under the "weapons bar," 8 U.S.C. § 1182(a)(3)(B)(iii)(V), because he used the weapon with "intent to endanger one or more individuals." CAR 2. USCIS acknowledged that Kakar had advanced a defense based on duress, but it said that the Secretaries of State and of Homeland Security had not created a duress exception to the weapons bar. Second, USCIS found that the services Kakar provided to the Taliban — cleaning, cooking, and washing clothes — constituted material support to a terrorist organization, rendering him inadmissible under the "material support bar," 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). CAR 2.
Kakar appealed USCIS's decision to the District Court, raising several challenges under the APA. As most relevant here, he argued that USCIS's application of the weapons bar was arbitrary and capricious because the bar's precondition — that his acts must have been unlawful under Afghan or U.S. law — had not been met. USCIS countered that fighting for the Taliban as part of a campaign of religious oppression would have been unlawful under federal law. Even if the agency's decision that Kakar is inadmissible under the weapons bar was "not perfectly clear," the agency submitted, it must still be upheld under the APA's deferential review standard because the "facts found" by the agency bore a "rational connection" to the decision. Record on Appeal ("ROA") doc. 27 at 17 (quotation marks omitted) (citing Karpova v. Snow, 497 F.3d 262, 268 (2d Cir. 2007) ).
Kakar and USCIS cross-moved for summary judgment. In resolving the motions in USCIS's favor, the District Court characterized Kakar's illegal conduct as "the use of a military-grade weapon to oppress a religious group, or to advance one religion in order to suppress another," and it concluded that USCIS "properly deemed [Kakar] inadmissible" because that conduct "would be manifestly unlawful under the laws of the United States." Kakar v. U.S. Citizenship & Immigr. Servs., No. 16-cv-5032, 2020 WL 1545422, at *8 (E.D.N.Y. Mar. 31, 2020). Because it found that the weapons bar provided a sufficient basis for finding Kakar inadmissible, the District Court did not address the material support bar.
On appeal, Kakar contends that USCIS's application of the weapons bar was arbitrary and capricious and unsupported by substantial evidence, in violation of the APA. He further asserts that USCIS failed to consider at the time it denied his application whether his acts would have been illegal under United States or Afghan law and offered only a post hoc rationalization of its decision, which the District Court accepted.
"This court reviews a district court's review of an agency action de novo." Nat. Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91, 96 (2d Cir. 2001). Under the APA, our review is "narrow and deferential," Henley v. Food & Drug Admin., 77 F.3d 616, 620 (2d Cir. 1996) ; see also Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), and "limited to examining the administrative record to determine whether the agency decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment," Muszynski, 268 F.3d at 97 (cleaned up). Thus, "[u]nder the APA, we may set aside an agency action that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ " Alzokari v. Pompeo, 973 F.3d 65, 70 (2d Cir. 2020) (quoting 5 U.S.C. § 706(2)(A) ). "An agency action is arbitrary and capricious if 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." Id. (quotation marks omitted).
In reviewing the agency's decision, we "remain bound by traditional administrative law principles, including the rule that judges generally must assess the lawfulness of an agency's action in light of the explanations the agency offered for it rather than any ex post rationales a court can devise." Garland v. Ming Dai, ––– U.S. ––––, 141 S. Ct. 1669, 1679, 210 L.Ed.2d 11 (2021) (citing SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ). Thus, a court "may not itself supply a reasoned basis for the agency's action that the agency itself has not given." Brodsky v. U.S. Nuclear Regul. Comm'n, 704 F.3d 113, 119 (2d Cir. 2013) (quotation marks omitted). This reflects the "settled proposition[ ]" that "in reviewing agency action, a court is ordinarily limited to evaluating the agency's contemporaneous explanation in light of the existing administrative record." Dep't of Com. v. New York, ––– U.S. ––––, 139 S. Ct. 2551, 2573, 204 L.Ed.2d 978 (2019). Further, in justifying its decision the agency need not "provide written findings about every piece of evidence that it consider[s]." Dibble v. Fenimore, 545 F.3d 208, 219 (2d Cir. 2008) (quotation marks omitted). A court can thus "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Id. (quotation marks omitted).
USCIS determined that Kakar was ineligible to be admitted into the United States in part because, it found, he had engaged in "terrorist activity" as that term is defined in 8 U.S.C. § 1182(a)(3)(B)(iii), which includes the weapons bar. USCIS's finding that Kakar is inadmissible under the weapons bar was arbitrary and capricious because the agency failed to "consider an important aspect" of the issue, Alzokari, 973 F.3d at 70, namely, whether Kakar's actions would have been unlawful under the laws of Afghanistan or the United States.
As directly relevant to this appeal, the INA defines "terrorist activity" as:
[A]ny activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves ... the use of any ... firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with...
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