     Case: 12-50357   Document: 00512162463     Page: 1   Date Filed: 03/04/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                 FILED
                                                                March 4, 2013

                                 No. 12-50357                   Lyle W. Cayce
                                                                     Clerk

TOM AMROLLAH, also known as Mohammad Hassan Amrollah-Majdabadi,

             Plaintiff - Appellant

v.

JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY; ALEJANDRO MAYORKAS, Director of Citizenship and
Immigration Services; GERARD HEINAUER, Director of the Nebraska
Service Center for Citizenship and Immigration Services; ROBERT
MUELLER, Director of the Federal Bureau of Investigation; ERIC H.
HOLDER, JR., U.S. ATTORNEY GENERAL,

             Defendants - Appellees



                Appeal from the United States District Court
                     for the Western District of Texas


Before STEWART, Chief Judge, and DAVIS and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Tom Amrollah fled Iran in 1998 for the United States with his wife and
two children. After receiving a grant of asylum, Amrollah and his family filed
an application to obtain lawful permanent residence status with the United
States Citizenship and Immigration Services (“USCIS”). Ten years later, USCIS
denied Amrollah’s application. Amrollah filed suit in the Western District of
Texas seeking relief under the Administrative Procedures Act (“APA”) and the
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Declaratory Judgment Act.            The parties filed cross-motions for summary
judgment and the district court granted judgment in favor of the government.
For the following reasons, we REVERSE.
                           FACTS AND PROCEEDINGS
       Tom Amrollah (formerly known as Mohammad Hassan Amrollah-
Majdabadi) is a citizen and national of Iran. In 1979, Amrollah was working as
a pharmacist in Iran when he began providing medical assistance in the form of
prescription medications and bandages to the mujahedeen movement.1
Amrollah never formally joined the mujahedeen, but he was arrested for his
support of the movement in 1982, and sentenced to a year in prison and 30
lashes. Upon his release from prison, Amrollah continued to support the
movement by providing prescriptions as well as money for printing pamphlets.
In 1996, Amrollah was arrested a second time and sentenced to six months in
prison. He claims that this was the last time he provided any support to the
mujahedeen movement.
       Two years after his 1996 arrest, Amrollah once again received a subpoena
to appear before an Iranian religious court. In response, Amrollah, his wife, and
their two children decided to flee Iran for the United States, entering near Eagle
Pass, Texas on July 8, 1998.           Amrollah admitted to entering the country
illegally, but sought asylum on the basis of his persecution in Iran. Amrollah
acknowledged his support of the mujahedeen movement in his petition and in
an asylum hearing before the Immigration Judge (“IJ”).                    The IJ granted


       1
           The government contends that the mujahedeen movement is indistinguishable from
Mojahedin-e-Khalq (“MeK”), a revolutionary Iranian organization. The United States
Department of State designated MeK a Tier I Foreign Terrorist Organization in 1997, but this
designation was lifted on September 28, 2012, after multiple appeals from MeK that it had
disarmed and been non-violent since at least 2003. The government argues that regardless
of this de-designation, the mujahedeen movement qualified as a Tier III terrorist organization
during the time that Amrollah provided support. As discussed below, we need not reach this
question.

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Amrollah and his family asylum, noting that he found Amrollah to be generally
credible and that “[a]lthough the Service attorney hints, or hinted that
Respondent’s support of the Mujahedeen indicated violent activity which might
disqualify the Respondent from being eligible for asylum,” the IJ “conclude[d]
that Respondent’s testimony showed he did not commit any violent act,” and that
he was therefore eligible for asylum under 8 U.S.C. § 1158. The government did
not appeal this decision.
      One year later, Amrollah and his family applied for lawful permanent
residence status. His children’s applications were approved in 2004 and 2005,
but Amrollah and his wife’s applications remained pending until 2009. Amrollah
filed his original complaint on December 1, 2009, seeking a writ of mandamus
to compel agency action on his and his wife’s applications. The government
proceeded to grant Amrollah’s wife’s application, but denied Amrollah’s
application without a hearing, based on the support he had provided to the
mujahedeen movement.
      Amrollah filed an amended complaint, arguing that the government
wrongly denied his application for permanent residence status and requesting
relief under the APA, 5 U.S.C. §§ 704 and 706, and the Declaratory Judgment
Act, 28 U.S.C. § 2201(a). The district court found that the agency’s decision was
supported by substantial evidence and that collateral estoppel did not bar
USCIS from denying Amrollah’s application. Amrollah timely appealed.
                            STANDARD OF REVIEW
      This court reviews a grant of summary judgment de novo, applying the
same standards as the district court. Tex. Clinical Labs, Inc. v. Sebelius, 612
F.3d 771, 774 (5th Cir. 2010). The APA “allows a federal court to overturn an
agency’s ruling ‘only if it is arbitrary, capricious, an abuse of discretion, not in
accordance with law, or unsupported by substantial evidence on the record taken
as a whole.’” Buffalo Marine Servs. Inc. v. United States, 663 F.3d 750, 753 (5th

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Cir. 2011) (quoting Tex. Clinical Labs, 612 F.3d at 775); see also 5 U.S.C.
§ 706(2)(A). Courts start from “a presumption that the agency’s decision is valid,
and the plaintiff has the burden to overcome that presumption by showing that
the decision was erroneous.” Bd. of Miss. Levee Comm’rs v. EPA, 674 F.3d 409,
417 (5th Cir. 2012) (quoting Buffalo Marine, 663 F.3d at 753).
                                 DISCUSSION
      Amrollah received his grant of asylum in 1999 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). This statute also prohibits the government from granting
asylum to aliens who participate in terrorist activity as defined by 8 U.S.C.
§ 1182(a)(3)(B)(i) or 8 U.S.C. § 1227(a)(4)(B), including aliens who provide
material support to any individual, organization, or government conducting
terrorist activity. Id. at § 1158(b)(2)(A)(v) (1999); see also id. at
§ 1182(a)(3)(B)(iii)(III) (1999) (discussing the prohibition against material
support).
      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.” Id.
at § 1159(a)(2)(b). 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 (the statute governing
petitions for asylum) and 8 U.S.C. § 1159 (the statute governing petitions for
permanent resident status), look to 8 U.S.C. § 1182 (the statute governing
inadmissible aliens) to determine whether an alien is eligible for relief.



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      The government denied Amrollah’s application for permanent resident
status after it concluded that Amrollah had engaged in terrorist activity under
8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd) (2010) by providing material support to a
Tier III terrorist organization or the member of such an organization. Amrollah
argues that the government was collaterally estopped from finding that he
engaged in terrorist activity under this statute, because his grant of asylum
necessarily included a determination that he did not provide material support
to a terrorist organization or member of such organization. We agree.
      A final decision by an immigration judge has a preclusive effect on future
litigation and agency decisions. See Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104, 107-08 (1991); Medina v. INS, 993 F.2d 499, 503-04, 503 n.15 (5th
Cir. 1993). Issue preclusion, also known as collateral estoppel, applies when “(1)
the identical issue was previously adjudicated; (2) the issue was actually
litigated; and (3) the previous determination was necessary to the decision.”
Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th Cir. 2005) (en banc).
      Prongs two and three of this test are easily satisfied. The government
cross-examined Amrollah extensively about his support of the mujahedeen
movement and MeK during the asylum proceeding. In addition, as explained
above, the immigration judge was not permitted to grant asylum to Amrollah if
he satisfied any of exceptions to admissibility under § 1182, including providing
material support to any individual or organization that engaged in terrorist
activities.   8 U.S.C. § 1158(b)(2)(A)(v) (1999) (stating that an alien is not
admissible for asylum if “the alien is described in subclause (I), (II), (III), (IV),
or (VI) of section 1182(a)(3)(B)(i) of this title”). In other words, the IJ’s ruling
that Amrollah was admissible necessarily included, under the structure of the
statute, a finding that Amrollah did not provide support to an individual or
organization that engaged in terrorist activities.



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       Nevertheless, “relitigation of an issue is not precluded unless the facts and
the legal standard used to assess them are the same in both proceedings.” Pace,
403 F.3d at 290. The government did not hold a hearing prior to denying
Amrollah’s petition for adjustment in status or present any additional facts
which would make the IJ’s ruling distinguishable. However, “[i]ssues of fact are
not ‘identical’ or ‘the same,’ and therefore not preclusive, if the legal standards
governing their resolution are ‘significantly different,’” Pace, 403 F.3d at 290
(quoting 18 JAMES WM. MOORE ET AL., MOORE’S FED. PRACTICE 132.02[2][h] (3d
ed. 2001)), or create a “demonstrable difference” in legal standards. Talcott v.
Allahabad Bank, Ltd., 444 F.2d 451, 459 n.8 (5th Cir. 1971). The question
presented in this appeal is whether the definition of “engag[ing] in terrorist
activity” under the 2010 version of the statute is “significantly different” or
creates a “demonstrable difference” from the standard in place in 1999, sufficient
to preclude collateral estoppel.
       The government argues, and the district court held, that collateral
estoppel does not apply to Amrollah’s petition because the statute governing the
admissibility of aliens was altered by, among other things, passage of the USA
PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2011).2 In April 1999,
when Amrollah petitioned for asylum, “engaging in terrorist activity” was
defined as follows:
       [T]o commit, in an individual capacity or as a member of an
       organization, an act which the actor knows, or reasonably should
       know, affords material support to any individual, organization, or
       government in conducting a terrorist activity at any time, including
       . . . [t]he providing of any type of material support, including a safe
       house, transportation, communications, funds, false documentation

       2
         Although this statute was passed after Amrollah filed his petition for permanent
resident status, it is retroactive to “actions taken by an alien before, on, or after such date.”
Pub. L. No. 107-56, §411(c)(1). Furthermore, 8 U.S.C. § 1159(b) looks to whether an alien is
admissible “at the time of examination for adjustment” of status, which in this case was in
2010.

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      or identification, weapons, explosives, or training, to any individual
      the actor knows or has reason to believe has committed or plans to
      commit a terrorist activity.

8 U.S.C. § 1182(a)(3)(B)(iii) (1999) (emphasis added).           When Amrollah’s
application for adjustment in status was finally adjudicated in 2010, the
definition of “engaging in terrorist activity” was defined as:
      [I]n an individual capacity or as a member of an organization . . . to
      commit an act that the actor knows, or reasonably should know,
      affords material support, including a safe house, transportation,
      communications, funds, transfer of funds or other material financial
      benefit, false documentation or identification, weapons (including
      chemical, biological, or radiological weapons), explosives, or
      training. . . to any individual who the actor knows, or reasonably
      should know, has committed or plans to commit a terrorist activity
      . . . or to a terrorist organization described in clause (vi)(III), or to
      any member of such an organization unless the solicitor can
      demonstrate by clear and convincing evidence that he 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) (2010) (emphasis added).
      By finding Amrollah admissible to the United States in 1999, the
immigration judge necessarily decided that Amrollah did not afford material
support to any: (i) individual, (ii) organization, or (iii) government in conducting
a terrorist activity at any time. The government argues on appeal that Amrollah
is inadmissible under the expanded 2010 statute for providing material support
to a Tier III terrorist organization—defined as         “a group of two or more
individuals, whether organized or not, which engages in, or has a subgroup that
engages in” terrorist activity. 8 U.S.C. § 1182(a)(3)(B)(vi)(III) (2010). Although
the government’s claim could be successful under different circumstances, as
applied to Amrollah, this proscription does not provide a separate and distinct



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ground upon which the government can now deny his application.3 Under a
plain reading of the text of the statute and the facts of this case, the IJ’s 1999
finding that Amrollah did not provide material support to any “individual” or
“organization” in conducting a terrorist activity has a preclusive effect against
a subsequent finding that Amrollah provided material support to “a group of two
or more individuals” engaged in terrorist activity. The government has provided
this court with no reason, whether by legislative history or any other source, to
reject this reading.
       Because the government has not demonstrated a significant change in the
law between 1999 and 2010 as applied to Amrollah’s petition for permanent
resident status, USCIS is collaterally estopped from concluding that Amrollah
is ineligible for an adjustment to permanent resident status on the basis of his
provision of support to the mujahedeen movement. USCIS’s denial of Amrollah’s
application is set aside under 5 U.S.C. § 706.
                                     CONCLUSION
       We REVERSE the decision of the district court granting summary
judgment to defendants, RENDER summary judgment for Amrollah, and
REMAND this case to the agency for proceedings not inconsistent with this
opinion.




       3
         Although it would not significantly alter the analysis, we note that the government
does not argue, nor does the record support, that Amrollah qualified for asylum because he did
not know or have reason to believe that the organization he supported had committed or
planned to commit a terrorist activity.

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