Ndom v. Nielsen
| Decision Date | 28 January 2019 |
| Docket Number | Civil Action No. 3:16-CV-3432-D |
| Parties | MAMADOU NDOM, Plaintiff, v. KIRSTJEN NIELSEN, et al., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
In this declaratory judgment action, plaintiff Mamadou Ndom ("Ndom"), a native citizen of Senegal, seeks review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, and the federal Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201, of a decision of United States Citizenship and Immigration Services ("USCIS")1 to deny his application for adjustment of status. Concluding that the doctrine of collateral estoppel does not preclude USCIS' denial of Ndom's application and that USCIS did not act arbitrarily and capriciously in concluding that Ndom was inadmissible under the statute, the court deniesNdom's motion for summary judgment, grants USCIS's motion for summary judgment, and dismisses this action by judgment filed today.
Before the court discusses the factual and procedural history of this case, it sets out the relevant legal framework of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101 et seq., which governs applications for asylum and adjustment of status of refugees.
Ndom was granted asylum under 8 U.S.C. § 1158, which permits refugees to seek asylum when "race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." 8 U.S.C. § 1158(b)(1)(B)(i). The statute prohibits the government from granting asylum, however, to any alien who has "engaged in a terrorist activity," which under the current version of the statute2 includes providing material support to a Tier III terrorist organization,3 "unless theactor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization." 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).
An alien who has been granted asylum is eligible for an adjustment in status to that of permanent resident if, after being physically present in the United States for at least one year, he is otherwise "admissible . . . as an immigrant under this chapter at the time of examination for adjustment." 8 U.S.C. § 1159(b). But aliens who engage in terrorist activities, as defined under the same statute used in asylum proceedings, are not admissible. See id. at § 1182(a)(3)(B)(i)(I). "In other words, both 8 U.S.C. § 1158 () and 8 U.S.C. § 1159 (), look to 8 U.S.C. § 1182 () to determine whether an alien is eligible for relief." Amrollah v. Napolitano, 710 F.3d 568, 571 (5th Cir. 2013) .
Ndom is from the Casamance region of southern Senegal.4 In 1990, when he was 15years old, Ndom joined the Mouvement des forces démocratiques de Casamance (in English, the "Movement of Casamance Democratic Forces") ("MFDC"), which had in May of that year launched a campaign of armed opposition to the Senegalese government. Ndom contends that he joined MFDC "because he believed it was involved in a peaceful struggle to gain Casamance independence." P. 5/7/18 Br. 3.
During the period of his membership in MFDC, Ndom regularly attended MFDC meetings, and he understood that, as a member of MFDC, it was his duty to "follow orders." Id. On one occasion in 1992, Ndom and others were asked to carry bags to a bridge that linked two areas of Casamance and then to run home. Ndom contends that he did not know what was inside the bags, that he "couldn't say no," and that he later discovered that the bag that he had transported contained dynamite and that MFDC had intended to blow up the bridge. Id. Ndom remained a member of MFDC until the end of 1993, when he left the organization because it had renounced its prior non-violent approach to secession and was increasingly killing civilians, including children and some of Ndom's acquaintances.
Ndom was twice arrested by the Senegalese authorities, once in December 1994 and once in March 1995. He maintains that both arrests were because the Senegalese government suspected that he was a member of MFDC. In April 1997 Ndom was seriously injured when a land mine exploded near him. After his release from the hospital, Ndom resolved to leave Senegal and seek asylum in the United States. He sold his family farm and livestock to payfor a forged passport and passage to Canada, and from there he entered the United States.
In early 1998 Ndom applied for asylum in the United States. His application stated that he had a well-founded fear of future persecution on account of his political opinion and his membership in a social group.5 After interviewing Ndom, an Immigration and Naturalization Service ("INS")6 asylum officer determined that he was ineligible for asylum and referred his claim to the immigration court. Following several hearings, the immigration judge ("IJ") denied Ndom's asylum application, holding:
this Court is not satisfied that on this record the Respondent was persecuted on these occasions [(i.e., the December 1994 and March 1995 arrests)], but was the victim of civil and military strife in the area. Therefore he has not established that he was persecuted on account of any one or more of the five factors for consideration in Senegal.
R. 515. Ndom appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), which affirmed the IJ's denial of asylum without opinion on November 25, 2002.
Ndom then petitioned the Ninth Circuit for review. The Ninth Circuit concluded that Ndom's treatment by the Senegalese armed forces constituted persecution "at least in part on account of imputed political opinion," and held that Ndom "is eligible for asylum." Ndomv. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004). The panel remanded the case to the BIA "for a determination of whether Ndom should be granted asylum." Id. On March 2, 2005 the BIA entered an order granting Ndom asylum in the United States.7
On March 27, 2006 Ndom filed an I-485 Application to Register Permanent Residence or Adjust Status ("Application") with USCIS. More than ten years later, Ndom filed this lawsuit seeking an order mandating that the defendants immediately adjudicate his Application, which Ndom maintained had been unlawfully delayed for ten years. On June 9, 2017 USCIS issued Ndom a notice of intent to deny ("NOID") the Application based on his membership in, and material support of, a Tier III undesignated terrorist organization under 8 U.S.C. § 1182(a)(3)(B). In his response to the NOID, Ndom argued, inter alia, that the issue of his inadmissibility had been previously decided when the immigration court granted him asylum; that by granting his application for asylum, the immigration court hadnecessarily determined that he was not inadmissible under any paragraph of 8 U.S.C. § 1182(a)(3)(B)(i); and that USCIS was bound by the immigration court's decision under principles of collateral estoppel. USCIS, however, rejected these arguments, issuing a decision denying Ndom's Application based on evidence that he was a member of, and provided material support to, MFDC, which USCIS concluded met the definition of an undesignated terrorist organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III).8
Ndom then amended his complaint to challenge USCIS's denial of his Application. In his amended complaint, Ndom alleges that USCIS's denial of his Application violates established principles of collateral estoppel and is arbitrary, capricious, and contrary to established law, and that it should be set aside under the APA. Both sides move for summary judgment.
Each movant's summary judgment burden depends on whether he or it is moving for relief on a claim or defense for which he or it will have the burden of proof at trial. To beentitled to summary judgment on a claim or defense for which the movant will have the burden of proof, the moving party "must establish 'beyond peradventure all of the essential elements of the claim or defense.'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). This means that the moving party must demonstrate that there are no genuine and material fact disputes and that the moving party is entitled to summary judgment as a matter of law. See Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003). "The court has noted that the 'beyond peradventure' standard is 'heavy.'" Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 923-24 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont'l Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)).
When the summary judgment movant will not have the burden of proof at trial on a claim or defense, the moving party need only point the court to the absence of evidence of any essential element of the opposing party's claim or defense. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmovant must go beyond his or its pleadings and designate specific facts demonstrating that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant's failure to produce proof as to any essential element renders all other facts immaterial. TruGreen Landcare, L.L.C. v. Scott, 512F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory where the nonmoving party fails to meet this burden. Little, 37 F.3d at 1076.
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