Khan v. Johnson

• Decision Date: 01 February 2016
• Docket Number: Case No. 2:14-CV-06288-CAS(CWx)
• Citation: 160 F.Supp.3d 1199
• Parties: Abdul M. Khan et al., v. Jeh Johnson, et al.
• Court: U.S. District Court — Central District of California

160 F.Supp.3d 1199

Abdul M. Khan et al.,

v.Jeh Johnson, et al.

Case No. 2:14-CV-06288-CAS(CWx)

United States District Court, C.D. California.

Signed February 1, 2016

Attorneys Present for Plaintiffs: Laura Weinstock.

Attorneys Present for Defendants: Anthony Bianco.

Proceedings: PLAINTIFF'S MOTION FOR COLLATERAL ESTOPPEL (Dkt. 46, filed November 19, 2015)

DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT (Dlt. 49, filed December 7, 2015)

The Honorable CHRISTINA A. SNYDER, Judge

I. INTRODUCTION

On October 6, 2015, plaintiff filed the operative First Amended Complaint (“FAC”) in this action against defendants Jeh Johnson, in his capacity as the Secretary of the Department of Homeland Security, Leon Rodriguez, in his capacity as the Director of the United States Bureau of Citizenship and Immigration, and Susan Curda, in her capacity as the Director of the Los Angeles office of the United States Citizenship and Immigration Services (“USCIS”) (collectively, “defendants”). Dkt. 41.

Plaintiff fled Pakistan in 2001 out of fear of persecution for his involvement with a Pakistani political group the Muhajir Qaumi Movement—Altaf Faction (“MQM—A”). See Certified Administrative Record (“CAR”), at 442-43. Plaintiff applied for asylum in the United States and was, eventually, granted asylum in 2006. Id. at 56, 442-43. One year later, plaintiff applied with USCIS to adjust his citizenship status from asylee to permanent resident. Id. at 51-55. However, USCIS denied plaintiff's application. Id. at 1-4. Specifically, USCIS determined that the MQM—A was an “undesignated terrorist organization” and therefore found that plaintiff was statutorily ineligible for an adjustment of status to permanent resident because he had provided “material support” to terrorist activity. Id. In his complaint, plaintiff requests that the Court set aside USCIS's denial of his application for adjustment to permanent status. Plaintiff argues that in granting his application for asylum defendants necessarily determined that plaintiff's involvement with the MQM—A did not constitute “terrorist activity” and thus did not render him statutorily ineligible for an adjustment of status. Accordingly, plaintiff argues that, under the doctrine of collateral estoppel, defendants should be precluded from denying plaintiff's application for an adjustment of status on the grounds that he has engaged in terrorist activity.

On November 19, 2015, plaintiff filed a motion for summary judgment. Dkt. 46.¹ On December 7, 2015, defendants filed an opposition to plaintiff's motion and filed their own motion for summary judgment. Dkt. 49. On January 11, 2016, plaintiff filed an opposition to defendants' motion, Dkt. 57, and on January 15, 2016, defendants filed a reply in support of their motion, Dkt. 58. Having carefully considered the parties' arguments, the Court finds and concludes as follows.

II. BACKGROUND

Except where noted, the following facts are undisputed and are taken from the certified administrative record in this matter, which has been lodged with the court. Dkt. 47.

A. Statutory Framework

8 U.S.C. § 1158 governs the process by which a foreign national may apply for asylum. Pursuant to this statute, “[a]ny alien who is physically present in the United States or who arrives in the United States ... may apply for asylum.” 8 U.S.C. § 1158(a)(1). In order for an Immigration Judge (“IJ”) to grant an application for asylum, the applicant must demonstrate that he or she qualifies as a “refugee.” Id. § 1158(b)(1)(A). A refugee is defined as a person who is unable or unwilling to return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). In addition, the IJ must determine there are no statutory bars that preclude the applicant from obtaining asylum. Id. § 1158(b)(2)(A). As relevant here, one of those statutory bars is that the applicant has been involved in “terrorist activity.” Id. § 1158(b)(2)(A)(v).

After an applicant has been granted asylum, 8 U.S.C. § 1159, governs the process by which an asylee may apply for an adjustment of citizenship status to “permanent resident.” Under this section, the Secretary of Homeland Security or the Attorney General may, in their discretion, adjust to permanent resident the status of any alien granted asylum who, inter alia , “has been physically present in the United States for at least one year after being granted asylum,” “continues to be a refugee within the meaning of section 1101(a)(42)(A),” and “is admissible (except as otherwise provided under subsection (c) of this section) as an immigrant under this chapter at the time of examination for adjustment of such alien.” Id. § 1159(a)(2)(B)(1)–(5). Subsection (c), in turn, refers to section 1182, which defines ten categories of individuals who are ineligible for admission to the United States. As relevant here, one of these categories includes individuals who are involved in “terrorist activities.” Id. § 1182(a)(3)(B).

B. Khan's Application for Asylum

Khan is a citizen of Pakistan who entered the United States on November 14, 2001 with his wife and two of his children. CAR, at 51, 442-43. On November 6, 2002, Khan filed an application for asylum on behalf of himself, his wife, and his children, with the former Immigration and Naturalization Services (“INS”).² CAR, at 441-49. Khan submitted his application via an INS form I-589, Application for Asylum and for Withholding of Removal. Id. In response to several of the questions on the I-589 form, Khan referred to his membership with the MQM—A. For example, one of the questions asks: “Do you fear harm or mistreatment if you return to your home country?” Id. at 445. Khan responded: “I am in fear of returning to my home country, where I would be detained and beaten, and possibly killed by the police because of my membership with the M.Q.M.” Id. Another question asks: “Are you afraid of being subjected to torture in your home country or any other country to which you may be returned?” Id. at 446. Khan responded: “I am afraid that I will be harassed by the military police, as I was detained and beaten because of my membership in the M.Q.M., and threatened by death.” Id. at 446. In addition, Khan attached a declaration to his I-589 form in which he admitted that he joined the MQM—A in September of 1996, and that his responsibilities with the group included distributing leaflets and helping Mohajirs in Pakistan to find housing, employment, and utility services. Id. at 452.

In May of 2003, an asylum officer in the INS's Los Angeles Asylum Office interviewed Khan regarding his asylum application. Id. at 427. The asylum officer denied Khan's application because he found that Khan's testimony was “not credible because it contained material discrepancies within itself and with evidence [Khan] brought to his interview.” Id. The asylum officer also prepared an “assessment” of Khan based upon Khan's interview. Id. at 429-31. In this assessment, the asylum officer made frequent reference to Khan's involvement with the MQM—A. See, e.g., id. at 429 (“[Khan] related that he has been an active member in the MQM—Altaf party since September 1996 and was still a member at the time of his asylum interview.”); id. at 430 (“The applicant presented, at the time of his interview, a letter from the MQM—A dated February 05, 2002, which indicates that he has been a member of this party since 1996”). The asylum officer also noted, in his assessment, that he questioned Khan regarding allegations that the MQM—A was a violent group. Id. at 431. Specifically, the asylum officer stated:

The applicant was asked if MQM—A was not a violent group or accused of this. He replied that his party had never done acts of violence, and that it was the rival MQM–H[aqiqi] which had committed the violent acts. However, credible country conditions indicate that the MQM—A has engaged in numerous acts of violence and torture during the 1990's against off duty police officers and their families; Mohajirs who choose to join political parties other than the MQM have been intimidated or attacked by MQM loyalist[s]; and the MQM has attacked and intimidated news agencies critical of it. The leadership [of] the MQM know which of its members commit terrorists activities [sic], but chooses not to expel them because they are deemed to be useful.

Id. The asylum officer noted Khan's testimony that the MQM—A was a non-violent organization as one of the discrepancies that made his testimony not credible. Id.

As a result of the asylum officer's findings, the INS did not grant Khan's asylum application, and issued him a Notice to Appear ordering him to appear before an Immigration Judge (“IJ”) for removal proceedings on June 23, 2003, as well as for a de novo consideration of his asylum claim. Id. 424-25. Khan appeared before an IJ on June 23, 2003, and renewed his asylum claim. Id. at 162. Khan's asylum hearing was held on July 21, 2004. Id. at 165.

During his asylum hearing, Khan was asked whether he was a member of any political party or organization in Pakistan. Id. at 178. In response to this question, Khan informed the IJ that he was a member of the MQM—A and had been a member since September of 1996. Id. Khan was also asked why he had joined the MQM—A and what services he provided for that organization. Id. at 179. He responded that he had joined the MQM—A “for the benefit of the Muhajirs” who face difficulties finding employment and gaining access to utilities and other services in Pakistan. Id. Khan was asked to be more specific regarding his activities on behalf of the MQM—A. Id. He elaborated that his activities had also included fundraising, recruitment, and the “resolution of people's complaints.” Id. Khan was then asked follow-up questions regarding what he meant by “resolution of people's complaints” and Khan explained that various members of the...