Opinion
For Abdul Qubadi, Plaintiff: David M Sturman, LEAD ATTORNEY, David M Sturman Law Offices, Encino, CA.
For Mark Hazuda, Director, U.S. Citizenship and Immigration Services, Nebraska Service Center, Defendant: Anthony Daniel Bianco, LEAD ATTORNEY, U.S. Department of Justice, Civil Division - Office of Immigration Litigation, Washington, DC; OIL-DCS Trial Attorney, LEAD ATTORNEY, Office of Immigration Litigation, District Court Section, Washington, DC.
ORDER GRANTING RECONSIDERATION; DENYING DEFENDANT'S MOTION TO DISMISS; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE.
On August 12, 2014, Abdul Qubadi filed this action against Mark Hazuda, the Director of the Nebraska Service Center of the United States Citizenship and Immigration Services (" USCIS"). The complaint alleges that USCIS's denial of Qubadi's application for adjustment of status was improper and illegal. It seeks a declaration that the application was improperly denied on the basis of an erroneous finding that Qubadi engaged in terrorist activities. On October 14, 2014, Hazuda filed a motion to dismiss the action for lack of subject matter jurisdiction, or, alternatively, for summary judgment. On May 5, 2015, the court granted Hazuda's motion to dismiss for lack of subject matter jurisdiction, and entered judgment in Hazuda's favor the same day.
Complaint, Docket No. 1 (Aug. 12, 2014).
Id., PP 20-23.
Motion to Dismiss or for Summary Judgment (" Motion"), Docket No. 12 (Oct. 14, 2014).
Order Granting Motion to Dismiss, Docket No. 25 (April 30, 2015).
On June 1, 2015, Hazuda filed a motion for reconsideration. On June 16, 2015, Qubadi filed a brief in support of Hazuda's motion.
Motion for Reconsideration (" Reconsideration"), Docket No. 27 (June 1, 2015).
Plaintiff's Response in Support of Reconsideration, Docket No. 28 (June 16, 2015).
I. FACTUAL BACKGROUND
Qubadi is a native and citizen of Afghanistan. On September 8, 1995, he applied for asylum in the United States. In his asylum application, he stated that he had joined the Afghan Mujahideen in 1985 and continued his affiliation with the group until 1989. Qudabi noted that he cleaned dishes and weapons and transported food, medicine, and weapons to Mujahideen fighters. During his asylum interview, the immigration officer recorded in his notes that Qubadi said he had fired a weapon at a Soviet tank; although Qubadi disputes having made that comment, he has never disputed that members of the Mujahideen fired weapons at the tank. His application for asylum was granted on February 8, 1996.
Certified Administrative Record (" CAR"), Docket No. 14 (Oct. 17, 2014) at 25.
Id. at 45-51.
CAR at 48, 85, 88.
Id. at 12, 23, 85, 88.
Id. at 88; see also id. at 23 (denying that he shot a gun but noting that " someone else in the group" did).
Id. at 82-83.
On August 31, 1998, Qudabi allegedly filed an I-485 Application to Register Permanent Residence or Adjust Status. After USCIS failed to take action on the application for nearly a decade, Qubadi filed a complaint on February 13, 2008, seeking a writ of mandamus directing that USCIS adjudicate the application. In response, USCIS purportedly exercised its discretion to deny the application. Qubadi filed a motion for reconsideration on July 15, 2008, which was denied on February 4, 2009.
Complaint, P 8.
Id., P 9.
Id., P 10.
Id., PP 11-12.
On September 1, 2009, Qubadi filed a second I-485 application. While this application was pending, on April 28, 2010, USCIS issued a Notice of Intent to Terminate Asylum Status and requested that Qubadi appear for an interview with a USCIS officer on June 8, 2010. At the June 8, 2010 interview, Qudabi gave USCIS a signed statement acknowledging that at the time he filed his asylum application, he was not " completely sure of what was stated in the application" and that " [s]ome things were stated incorrectly." On July 13, 2013, USCIS issued a notice that it would not terminate Qubadi's asylum status.
Id., P 13. See also CAR at 25-29.
CAR at 78. USCIS issued the Notice of Intent to Terminate Asylum Status in response to evidence suggesting fraud in connection with Qudabi's asylum application. (See id. ) None of the fraud indicators concerned Qudabi's association with the Mujahideen.
Id. at 44.
Id. at 42.
In the interim, on August 10, 2011, Qubadi filed a complaint in federal district court seeking a writ of mandamus directing that his September 1, 2009 permanent resident application be adjudicated and that his status be adjusted. On October 28, 2011, the court granted in part and denied in part USCIS's motion to dismiss for lack of jurisdiction. The court found that it lacked jurisdiction to order USCIS to adjust Qudabi's immigration status, but concluded that it had jurisdiction to enjoin USCIS from unreasonably delaying adjudication of the application. The court nonetheless granted USCIS's motion for summary judgment, finding that, although there was a point at which the delay in ruling on Qubadi's I-485 application would become unreasonable, " based on the existing record, that time ha[d] not yet come."
Complaint, Case No. 11-06560 MMM, Docket No. 1 (Aug. 10, 2011).
Order Granting in Part and Denying in Part Defendant's Motion to Dismiss; Granting Defendant's Motion for Summary Judgment, Case No. 11-06560 MMM, Docket No. 11 (Jan. 6, 2012) at 12-17.
Id. at 25.
Quabadi filed a second complaint seeking a writ of mandamus on May 10, 2013. In response, USCIS interviewed him on July 9, 2013. At the interview, Qubadi affirmed that he had been a member of a Mujahideen group that fought the Soviets. He denied having fired a weapon, but stated that he had cleaned weapons. When questioned about his earlier statement that he fired at a Soviet tank, Qubadi said that the asylum officer must have misunderstood him, and that someone else fired at the tank, not him.
Complaint, Case No. 13-03345 MMM, Docket No. 1 (May 10, 2013).
Complaint, P 15. See also CAR at 23.
CAR at 23.
Id.
Id.
On August 14, 2013, USCIS issued a Notice of Intent to Deny Qubadi's I-485 application. On September 10, 2013, Qubadi conceded that he assisted the Mujahideen. He argued, however, that he had done so " through non-combat activities" and that he had " never used a weapon of any type in any way." On October 16, 2013, USCIS denied Qubadi's I-485 application. It cited two alternative bases for its denial. First, it concluded that Qubadi could not adjust his status due to inadmissibility under 8 U.S.C. § 1182(a)(3)(B)(i)(I) because he had engaged in terrorist activity as defined in § 1182(a)(3)(B)(iii)(V)(b); this finding was based on the fact that he had " engaged in combat by firing [his] gun and fighting alongside other Mujahideen fighters." USCIS also concluded Qudabi was inadmissible under § 1182(a)(3)(B)(i)(I) because he had provided material support to the Mujahideen as defined in § 1182(a)(3)(B)(iv)(VI)(dd) by transporting food, medicine, and weapons, and by cleaning weapons. Qudabi voluntarily dismissed the May 10, 2013 complaint seeking a writ of mandamus on November 22, 2013.
Id. at 17.
Id. at 2-5.
Id. at 4.
Id.
Notice of Voluntary Dismissal, Case No. 13-03345 MMM, Docket No. 14 (Nov. 22, 2013).
In this action, Qubadi seeks a judgment: (1) directing Hazuda to adjudicate his application for status adjustment within thirty days of the court's order; (2) declaring that he is not subject to Section 212(a)(3)(B) of the INA, 8 U.S.C. § 1182(a)(3)(B); (3) declaring that his application for adjustment of status must be approved; and (4) ordering Hazuda to pay reasonable attorneys' fees and costs.
This prayer for relief appears at odds with Qubadi's assertion that his application for adjustment of status has been denied.
Complaint, PP 1-4 (prayer).
II. DISCUSSION
A. Legal Standard Governing Motions for Reconsideration
Hazuda moves for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure and Local Rule 7-18. Rule 59(e) permits a district court to reconsider and amend a prior order as an " extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). " [A] motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Id. Moreover, such motions " may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Id.
Similarly, a motion for reconsideration under Local Rule 7-18 may be made on only the following grounds:
(a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or
(b) the emergence of new material facts or a change of law occurring after the time of such decision, or
(c) a manifest showing of a failure to consider material facts presented to the Court before such decision. CA CD L.R. 7-18.
See In re Countrywide Fin. Corp. Mortgage-Backed Sec. Litig., 966 F.Supp.2d 1031, 1036 (C.D. Cal. 2013).
" Motions for reconsideration are disfavored and rarely granted." Brown v. United States, Nos. CV 09-8168 ABC, CR 03-847 ABC, 2011 WL 333380, *2 (C.D. Cal. Jan. 31, 2011). " Whether to grant a motion for reconsideration under Local Rule 7-18 is a matter within the court's discretion." Daghlian v. DeVry Univ., Inc., 582 F.Supp.2d 1231, 1251 (C.D. Cal. 2007). See Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003) (" We review a district court's decision on a Rule 59(e) motion to amend a judgment for abuse of discretion").
B. Whether the Court Should Reconsider Its Prior Order Granting Hazuda's Motion to Dismiss
Hazuda argues that the court incorrectly summarized his dismissal argument as asserting that § 1252(a)(2)(B) precluded all judicial review of asylum adjustment of status applications. He contends that his position was not, as the court characterized it, that § 1252(a)(2)(B) precludes review of decisions pertaining to statutory eligibility for discretionary relief. Rather, he contends that he argued that while § 1252(a)(2)(B) does not preclude review of denials based solely on questions of statutorily eligibility, it does preclude review of discretionary denials of adjustment of status and discretionary exemptions on terrorist-related grounds.
The court did not mischaracterize Hazuda's original argument. In his original motion and his reply in support of that motion, Hazuda argued that " [u]nder 8 U.S.C. § 1252(a)(2)(B)(ii), th[e] court lack[ed] subject matter jurisdiction over discretionary decisions under 8 U.S.C. § 1182(d)(3)(B)(I) to exempt plaintiff from terrorist activity[-]based inadmissibility provisions." He asserted that the court " should dismiss the [c]omplaint on this basis for lack of subject-matter jurisdiction." Hazuda at no time cited Mamigonian v. Biggs, 710 F.3d 936, 946 (9th Cir. 2013), the only published decision on which he now relies in asserting that the court can exercise jurisdiction in this case. The court held a hearing on the original motion, and prepared a tentative order that was substantially identical to the order Hazuda now seeks to have reconsidered. Hazuda did not state at the hearing that the court had misconstrued his argument, or that it was otherwise incorrect concerning the law. Rather, he argued, consistent with the order he now assails, that the court lacked jurisdiction.
Motion at 13. See also id. at 14 (" the Secretary's determination of whether or not to exempt a person or group from the INA's terrorist activity-based inadmissibility provisions is wholly discretionary and judicially unreviewable").
Motion at 16.
Hazuda now tacitly concedes that the argument he presented to the court was incorrect, stating: " Since USCIS denied Qubadi's adjustment of status application based solely on statutory eligibility grounds, [Hazuda] maintains his decision in this case to deny adjustment is reviewable." His motion for reconsideration asks that the court reach the opposite the conclusion for which he earlier argued, find that it has subject matter jurisdiction to hear the case, and then enter summary judgment in his favor on the basis that he did not abuse his discretion in finding, based on evidence in the administrative record, that Qubadi had provided material support to the Mujahideen. After the court has accepted jurisdiction and granted summary judgment -- things the original motion to dismiss argued the court could not do -- Hazuda asserts the court should determine that it cannot exercise jurisdiction over the only remaining form of relief, i.e., discretionary relief from a finding of inadmissibility under 8 U.S.C. § 1182(d)(3)(B)(I). As discussed in greater detail infra, Qubadi does not request relief under § 1182(d)(3)(B)(I), and the administrative record does not indicate that he ever did.
Reconsideration at 5.
Reconsideration at 5-6. Section 1182(d)(3)(B)(I) provides: " The Secretary of State, after consultation with the Attorney General and the Secretary of Homeland Security, or the Secretary of Homeland Security, after consultation with the Secretary of State and the Attorney General, may determine in such Secretary's sole unreviewable discretion that subsection (a)(3)(B) of this section shall not apply with respect to an alien within the scope of that subsection or that subsection (a)(3)(B)(vi)(III) of this section shall not apply to a group within the scope of that subsection."
In sum, the court simply does not agree with Hazuda that it failed to consider arguments he presented in the original motion. It would appear, instead, that Hazuda took an incorrect and misleading position in his motion and reply, which he did not seek to correct when the court distributed a tentative order proposing to dismiss the complaint for lack of subject matter jurisdiction.
It does appear, however, that based on Hazuda's prompting, the court misinterpreted Ninth Circuit precedent. Reconsideration is warranted where a district court " committed clear error or the initial decision was manifestly unjust." Circuit City Stores, Inc. v. Mantor, 417 F.3d 1060, 1063 n. 1 (9th Cir. 2005). To the extent the court found it could not exercise jurisdiction when in fact it could, the result is manifestly unjust. The court will therefore reconsider its prior order.
1. Legal Standard Governing Rule 12(b)(1) Motions to Dismiss
A defendant who seeks dismissal of a complaint for lack of subject matter jurisdiction under Rule 12(b)(1) can facially challenge the sufficiency of the jurisdictional allegations in the complaint; when this type of attack is mounted, the court must accept as true all well-pleaded facts and draw all reasonable inferences in favor of the plaintiff. Ass'n of American Medical Colleges v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000). Alternatively, the party challenging subject matter jurisdiction can proffer evidence extrinsic to the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where extrinsic evidence is submitted, the uncontroverted allegations in the complaint must be taken as true, and " conflicts between the facts contained in the parties' affidavits must be resolved in [plaintiff's] favor. . . ." AT& T Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (citing WNS, Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir. 1989)). Whatever the nature of the challenge, the party seeking to sue in federal court bears the burden of burden of establishing that the court has subject matter jurisdiction to hear the action. Ass'n of Am. Med. Coll., 217 F.3d at 778-79.
In support of his original motion, Hazuda proffered extrinsic evidence in the form of the administrative record. He cited portions of the record -- in particular, USCIS's decision denying Qubadi's I-485 application -- in arguing that the court lacked subject matter jurisdiction. Accordingly, the court construed the motion as an extrinsic attack on subject matter jurisdiction.
2. Whether the Court Must Dismiss for Lack of Subject Matter Jurisdiction
As noted, Hazuda concedes that because " USCIS denied Qubadi's adjustment of status application based solely on statutory eligibility grounds, . . . his decision . . . to deny adjustment is reviewable." The Ninth Circuit's decision in Mamigonian, confirms that the court has jurisdiction to review the non-discretionary determination that Qubadi is inadmissible under 8 U.S.C. § 1182(a)(3)(B). Mamigonian, 710 F.3d at 946 (" Thus, § 1252(a)(2)(D) authorizes courts of appeals to conduct review of legal or constitutional claims respecting final orders of removal via petition (and, indeed, makes such a petition the only avenue of review for such cases), while § 1252(a)(2)(B)(I) permits courts to conduct review of nondiscretionary determinations in other enumerated situations, such as adjustment-of-status denials. . . . We therefore conclude that district courts maintain jurisdiction to hear cases under the APA challenging final agency determinations respecting eligibility for the immigration benefits enumerated in § 1252(a)(2)(B)(I) made on nondiscretionary grounds when there are no pending removal proceedings at which the alien could seek those benefits"); see Aldarwich v. Hazuda, 593 Fed.Appx. 654, 655 (9th Cir. Feb. 11, 2015) (Unpub. Disp.) (" Aldarwich argues that a live controversy exists because he also sought review of the USCIS's underlying non-discretionary determination that he was inadmissible pursuant to 8 U.S.C. § 1182(a)(3)(B). Mamigonian clarified that 8 U.S.C. § 1252(a)(2)(D) does not strip the district courts of jurisdiction to review non-discretionary inadmissibility findings outside the context of a petition for review"). The court therefore denies Hazuda's motion to dismiss to the extent it asserts that the court lacks jurisdiction to review USCIS's non-discretionary determination that he was inadmissible under 8 U.S.C. § 1182(a)(3)(B).
Id. at 5.
Hazuda contends, however, that the court lacks jurisdiction to determine whether he ought to have granted Qubadi a discretionary waiver of inadmissibility under § 1182(d)(3)(B)(I). Hazuda is correct that the court lacks jurisdiction to consider such a claim. See Haile v. Holder, 658 F.3d 1122, 1133 (9th Cir. 2011) (" We also lack jurisdiction to address Haile's request that we remand the case for consideration of eligibility for a waiver under § 1182(d)(3)(B)(I) because the waiver issue was not raised before the agency, and because § 1182(d)(3)(B)(I) provides that the Secretary of State or the Secretary of Homeland Security, after appropriate consultation, 'may determine in such Secretary's sole unreviewable discretion' whether to grant a waiver"). Qubadi has never requested a § 1182(d)(3)(B)(I) exemption, however. He does not pray for such relief in his complaint, and expressly disclaims that he seeks it in his opposition. The court therefore declines to address the question, and denies the motion to dismiss in full. Cf. Beyene v. Napolitano, No. CV 12-01149 WHA, 2012 WL 2911838, *7 (N.D. Cal. July 13, 2012) (" To be clear, this order does not consider whether defendants must grant or deny plaintiff's I-485 application because he engaged or did not engage in terrorist-related activity. Such a claim is not alleged in the complaint and this order does not rule on whether there would be jurisdiction to adjudicate that issue"). Having concluded on reconsideration that Qubadi's motion to dismiss must be denied, the court turns to Hazuda's motion for summary judgment, which it did not previously address.
Opposition at 9.
C. Whether Hazuda's Motion for Summary Judgment Must Be Granted
1. Legal Standard Governing Review under the Administrative Procedures Act (" APA")
Under the APA, a reviewing court may set aside a final agency action if it is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). A court " may not substitute its judgment for that of the agency concerning the wisdom or prudence of the agency's action, " River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010), but rather must defer to the agency on matters within its expertise. The only exception to this is where the agency completely failed to address some factor, consideration of which was essential to making an informed decision. Nat'l Wildlife Fed'n v. NMFS, 422 F.3d 782, 798 (9th Cir. 2005). Thus, in conducting an APA review, the court must determine whether the agency's decision is " founded on a rational connection between the facts found and the choices made . . . and whether [the agency] has committed a clear error of judgment." Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1243 (9th Cir. 2001). " The [agency's] action . . . need be only a reasonable, not the best or most reasonable, decision." Nat'l Wildlife Fed. v. Burford, 871 F.2d 849, 855 (9th Cir. 1989).
" [An agency's decision is] arbitrary and capricious if [it] 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." Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
More generally, " [u]nder the APA 'the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'" Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1048 (9th Cir. 2010) (quoting Motor Vehicle Mfrs. Ass'n 463 U.S. at 43). " The reviewing court should not attempt itself to make up for an agency's deficiencies: We may not supply a reasoned basis for the agency's action that the agency itself has not given." Id.
2. Legal Standard Governing Summary Judgment Under Rule 56 and the APA
Summary judgment is appropriate when the pleadings and the record demonstrate that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.Proc. 56(a). The moving party bears the initial burden of informing the court of the basis for the motion and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In deciding whether to grant summary judgment in an APA challenge, the district court is " not required to resolve any facts in a review of an administrative proceeding." Occidental Engineering Co. v. Immigration & Naturalization Service, 753 F.2d 766, 769 (9th Cir. 1985); see also Northwest Motorcycle Ass'n v. United States Dep't of Agriculture, 18 F.3d 1468, 1472 (9th Cir. 1994) (" [T]he court's review is limited to the administrative record"). " Certainly, there may be issues of fact before the administrative agency. However, the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Northwest Motorcycle Ass'n, 18 F.3d at 1472.
Thus, " summary judgment becomes the 'mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.'" San Luis & Delta-Mendota Water Auth., 760 F.Supp.2d 855, 868 (E.D. Cal. 2010) (quoting Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006)); see also Occidental Eng'g Co., 753 F.2d at 769 (the purpose of district court review is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did").
3. Whether the Administrative Record Permitted USCIS to Reach the Decision It Did
As noted, USCIS denied Qubadi's I-485 application for adjustment of status on October 16, 2013. It found Qubadi ineligible to adjust status under 8 U.S.C. § 1182(a)(3)(B)(i)(I) because he had engaged in terrorist activity. There were two bases for this conclusion: (1) USCIS concluded that Qubadi had engaged in terrorist activity under § 1182(a)(3)(B)(iii)(V)(b) because he had fired a gun and fought alongside Mujahideen fighters; and (2) he engaged in terrorist activity under § 1182(a)(3)(B)(iv)(VI)(dd) because he provided material support to a terrorist organization by transporting food, medicine and weapons, and cleaning for Mujahideen fighters. Qubadi challenges both grounds for denial.
CAR at 4.
a. Providing Material Support to the Mujahideen under § 1182(a)(3)(B)(iv)(VI)(dd)
Section 1182(a) states that " [e]xcept as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States." 8 U.S.C. § 1182(a). Under § 1182(a)(3)(B)(i)(I), aliens who " ha[ve] engaged in a terrorist activity" are inadmissible. Id., § 1182(a)(3)(B)(i)(I). For purposes of the statute, " [e]ngag[ing] in terrorist activity" includes " [c]ommit[ing] 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 a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor 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." Id., § 1182(a)(3)(B)(iv)(VI)(dd).
(1) Whether the Mujahideen Are a Tier III Terrorist Group
USCIS found, and Qubadi does not dispute, that the Mujahideen are a Tier III terrorist organization. USCIS made this finding based on substantial evidence that the Mujahideen " is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in [terrorist activities] described in subclauses (I) through (VI) of clause (iv)." See id., § 1182(a)(3)(B)(vi)(III). Section 1182(a)(3)(B)(iii)(V) defines as terrorist activity " [t]he use of any . . . 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." Id., § 1182(a)(3)(B)(iii)(V)(b). USCIS's decision cites numerous statements in Qubadi's sworn asylum application that indicate the Mujahideen qualify as a Tier III terrorist organization. He stated that " [a]ll [his] brothers, [his] father and [him] . . . ha[d] been Freedom Fighters in Afghanistan." Specifically, he stated that at the age of 11 he joined the Mujahideen - which means " freedom fighter" or " fighter for justice" in Arabic and Farsi. He also stated that he was captured by the Soviets in 1987 and that when they later released him after torturing him, he rejoined the " resistence fighters." At his asylum interview, he stated that on one occasion when the Russians came to the countryside where he lived in a tank, the Mujahideen group he was affiliated with defended themselves with gunfire. USCIS therefore concluded that " [d]ue to engaging in combat, the violent activities of the Mujahideen match" the definition of a Tier III terrorist organization. This determination was supported by substantial evidence, and Qubadi does not argue otherwise.
Id. at 3.
Id.
Id. at 23.
Id. at 3.
Although the record contains written notes from Qubadi's February 8, 1996, asylum interview, which reflect that Qubadi stated he fired a weapon at a Russian tank, i.e., himself engaged in violent activities, he has since asserted that the statement was the result of a translation error and that he never fired a weapon. (CAR at 88 (written notes); id. at 18 (sworn statement from Qubadi asserting that he never made such a statement). The court has not relied on Qubadi's statement that he fired a gun in concluding that USCIS's decision that he provided material support to the Mujahideen is supported by substantial evidence. Indeed, although USCIS found that Qubadi's retraction lacked credibility, it stated unequivocally that " even if [it had] accepted [Qubadi's] retraction as credible, [he would] still [be] inadmissible under [§ 1182](a)(3)(B)(iv)(VI)(dd) for . . . provi[ding] . . . material support to the [Mujahideen]." (CAR at 4.) For purposes of this motion, therefore, the court has treated the administrative record as containing no evidence that Qubadi fired a weapon.
(2) Whether Qubadi Knew or Should Have Known He Was Providing Material Support to the Mujahideen
Qubadi stated in his application for asylum and again in his response to USCIS's notice of intent to deny adjustment of status that he " transported . . . weapons to the 'freedom fighters.'" This comes within the purview of providing material support. See id., § 1182(a)(3)(B)(iv)(VI) (" an act that the actor knows, or reasonably should know, affords material support, including . . . weapons"); Sesay v. AG of the United States, 787 F.3d 215, 222 (3d Cir. 2015) (" carrying weapons and ammunition for a terrorist group" constitutes material support). Qubadi also admitted that he " cleaned dishes and transported food [and] medicine" to the Mujahideen. This too amounts to material support. See Haile, 658 F.3d at 1129 (" The BIA did not err in determining that Haile's activities, . . . supplying the ELF with provisions such as sugar, shoes, and cigarettes, . . . amount in the aggregate to material support. We have previously remarked on the broad scope of the terrorism bars, and the definition of material support is broad enough to cover Haile's activities in this case" (internal quotation marks omitted)); Singh-- Kaur v. Ashcroft, 385 F.3d 293, 299 (3d Cir .2004) (noting that " material support" is a broad concept that is not limited to the enumerated examples and deferring to the BIA's determination that the " provision of food and setting up tents" was within the definition of " material support").
Id. at 12.
Id.
Qubadi does not dispute that his activities fell within these definitions. He contends, however, that as a young child he did not know, and should not reasonably have known, that he was providing material support to a terrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd) (the material support bar does not apply if the alien " 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"). More specifically, he argues that USCIS " failed to consider [his] contention that he did not know he was providing material support and he was unaware the Mujahedeen was a terrorist organization, " and that this alone was an abuse of discretion.
" The failure to consider an important factor or to make a record of considering it constitutes an abuse of discretion." Xiao Fei Zheng v. Holder, 644 F.3d 829, 833 (9th Cir. 2011); Rashtabadi v. I.N.S., 23 F.3d 1562, 1571 (9th Cir. 1994) (same). The record reflects that USCIS considered Qubadi's arguments, however. In its denial, it stated that § 1182(a)(3)(B) does not " contain an explicit exception to inadmissibility due to age, " and concluded there was ample evidence that Qubadi knew he was providing material support to a terrorist group. An agency's factual findings must be upheld if supported by substantial evidence. See Diamond Walnut Growers v. NLRB, 53 F.3d 1085, 1087 (9th Cir. 1995). " Substantial evidence means more than a mere scintilla but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." NRDC v. United States EPA, 735 F.3d 873, 877 (9th Cir. 2013) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995) (internal quotation marks omitted)).
Id. at 2.
The administrative record supports USCIS's conclusion that Qubadi knew he was providing material support to the Mujahideen. The " first knowledge component of clause (VI) requires only knowledge that the alien knew he was rendering material support to the recipient of his support." American Academy of Religion v. Napolitano, 573 F.3d 115, 131 (2d Cir. 2009); see also Khan v. Holder, 766 F.3d 689, 691 (7th Cir. 2014) (" The knowledge requirement only applies to the actor's awareness that he is providing material support"). Qubadi has never disputed that he carried weapons, food, and medicine to the Mujahideen; nor has he ever asserted that his age or lack of mental capacity prevented him from knowing that he was providing weapons and food to the Mujahideen. Thus, the facts within his knowledge satisfy the first knowledge requirement.
" The knowledge required with respect to a group's status as a terrorist organization depends on how it[ is] categorized." Khan, 766 F.3d at 691. " Terrorist organizations are divided into three tiers: Tier [I] and [II] organizations are determined by the Secretary of State and published in the Federal Register, while Tier [III] organizations are any others that engage in terrorist activities." Id. " If an alien gave material support to a Tier [I] or Tier [II] organization, he is barred from entry regardless of whether he knew it was a terrorist organization." Id. at 691-92. Where, as here, " a group is in Tier [III], the alien has an opportunity to 'demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization. This is known as the 'knowledge exception' to the material support bar." Id. (quoting 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd)). As noted, Qubadi noted in his sworn asylum application that, as a member of the Mujahideen, he " battled soviet troops which had invaded [his] country"; he specifically stated that on one occasion when the Russians came to the countryside where he lived in a tank, someone from the Mujahideen group with which he was affiliated fired a gun at the Russians. He therefore admitted having knowledge that the Mujahideen " use[d] [ ] a[ ] . . . 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." Id., § 1182(a)(3)(B)(iii)(V)(b).
CAR at 95.
Id. at 2, 4.
USCIS noted Qubadi's argument concerning his knowledge as a young person, and rejected it, stating: " While there is an exception for lack of knowledge . . . it is clear from your description of the [Mujahideen] group you were with that you were aware they engaged in combat with Soviet troops." The question is whether this conclusion is supported by " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, " even if, as Qubadi alleges, due to his age, " it is possible to draw two inconsistent conclusions from the evidence." Natural Resources Defense Council, 735 F.3d at 877. The court is compelled to conclude that it is. Based on Qubadi's statement that members of the Mujahideen group he was a member of " battled soviet troops" and defended themselves against the Russians by firing guns, the record contained substantial evidence from which USCIS could have concluded that Qubadi knew the Mujahideen were engaged in terrorist activities. Indeed, although there is little case law addressing the issue, a recent Third Circuit decision supports this conclusion. See Dinssa v. AG of the United States, 555 Fed. Appx., 182, 185 (3d Cir. Feb. 10, 2014) (Unpub. Disp.) (" Dinssa asserts that the IJ and BIA incorrectly found that he did not satisfy the 'knowledge exception' to the material support bar, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). Dinssa contends that his testimony proves by clear and convincing evidence that he qualifies for the 'knowledge exception, ' since 'he repeatedly stated that he has never supported violent activities and that he would never knowingly support violent activities.' However, Dinssa testified on cross examination that he knew the OLF had 'an army wing of fighters' which undermines his claim that he did not knowingly support the OLF's violent activities. Based on the record, a reasonable factfinder would not be compelled to conclude that Dinssa met his burden of demonstrating that he qualified for the 'knowledge exception.' Therefore, we affirm the agency's findings as supported by substantial evidence").
Id. at 2.
Qubadi disputes this, arguing that youth is a mitigating factor that must be taken into account in assessing knowledge. Cf. J. D. B. v. North Carolina, 131 S.Ct. 2394, 2397, 180 L.Ed.2d 310 (2011) (" The law has historically reflected the same assumption that children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them"). Citing the Sixth Circuit's decision in Daneshvar v. Ashcroft, 355 F.3d 615, 628 (6th Cir. 2004), he contends USCIS failed to consider his state of mind as an 11 to 15-year-old. In Daneshvar, the Sixth Circuit held that the BIA had abused its discretion in concluding that petitioner was inadmissible on the basis that he had solicited membership in a terrorist organization by selling newspapers. Id. The BIA found petitioner inadmissible because the organization for which he was selling newspapers was designated a Tier I/Tier II terrorist organization by the Department of State. Id. at 626. The Sixth Circuit agreed that the organization was a designated terrorist organization at the time Daneshvar applied for adjustment of status; it " was not designated as a terrorist organization at the time of [his] involvement" with the group, however. Id. The court deemed this to be of critical importance because, as noted, if an individual provides material support to Tier I or Tier II terrorist organization, he is ineligible whether or not he knew it had been designated such an organization.
The Sixth Circuit agreed that the organization to which petitioner belonged was a Tier III terrorist organization at the time of his association with it. Id. at 627 (" we think that BIA was correct in finding that MEK was a terrorist organization during the 1970s as defined by § 1182(a)(3)(B)(vi)(III)"). It held, however, that the BIA had abused its discretion in finding that petitioner was inadmissible because he had solicited individuals to become members of the organization as it had " failed to consider [p]etitioner's evidence regarding his state of mind." Id. More specifically, it stated that petitioner, " at the age of 16, supported one of the numerous organizations that came to life in the aftermath of the Iranian Revolution." Id. His only affiliation with the organization was selling newspapers. Id. Moreover, he " voluntary disassociat[ed] from [the organization] merely a year after he joined it, [which the court found supported his assertion] that he did not originally know in what [the organization] was involved." Id. He also " testified during the hearing before the IJ that he was unaware of [the organization's] violent activities until the time he left the group." Id. Furthermore, there was no evidence that he had engaged in acts of terrorism. Id. Notably, the Sixth Circuit did not identify even a scintilla of evidence in the administrative record suggesting that petitioner was aware of the organization's violent activities, and concluded that it " would be hard-pressed to classify any minor who sold newspapers for an organization that supported an armed revolt against a tyrannical monarch as a terrorist. To impute such political sophistication to a teenager . . . [it reasoned] would amount to a manifest injustice." Id. Because the record contained substantial evidence indicating that Daneshvar was not inadmissible, and the BIA had not cited evidence suggesting otherwise, the court reversed the order denying the motion to reopen his application for adjustment of status, and remanded to BIA for further consideration. Id. at 629.
It also seriously questioned whether selling newspapers, without more, could amount to solicitating members to join the organization. See Daneshvar, 355 F.3d at 634 n. 10 (" On remand, the Board should explain in what way Petitioner's conduct constituted 'solicitation of membership.' We see no evidence in the record to indicate that Petitioner actually attempted to convince anyone to become a member of the MEK").
The present case is distinguishable. Although Qubadi joined the Mujahideen when only 11, he remained a member until he was 15. Instead of simply selling newspapers, or even supplying food, Qubadi openly admitted that he transported weapons for the Mujahideen. And unlike Daneshvar, who purportedly was not aware of the terrorist organization's violent activities, Qubadi has repeatedly confirmed that the Mujahideen were resistance fighters who fought the Soviets, and that he was present when the group shot at a Russian tank that came to his homeland. These facts are significant, because unlike Daneshvar, where there was no evidence in the administrative record suggesting that petitioner knew of terrorist activities by the group in question, Qubadi admitted to that he knew the Mujahideen battled the Soviets and fired weapons; indeed, he transported weapons to them. Moreover, unlike Daneshvar who disassociated himself from the group as soon as he learned of its violent tendencies, Qubadi was captured and tortured by the Soviets and once released, returned home to rejoin the " resistance fighters." Stated differently, here, unlike in Daneshvar, there is ample evidence supporting USCIS's conclusion that Qubadi -- despite his young age -- knew the Mujahideen were engaged in combat. See Singh v. Holder, 346 Fed.Appx. 266, 267-68 (9th Cir. Sept. 20, 2009) (Unpub. Disp.) (" Singh argues that he did not 'knowingly' provide material support to terrorists when he assisted the members of the KCF, because his cognitive ability was limited by his fifth grade education and the electric shock therapy that he underwent in 1981 to treat a head injury. He claims that these cognitive impairments prevented him from understanding that by feeding and sheltering his cousin and other members of the KCF, he was supporting individuals engaged in terrorist activity. Singh testified, however, that he knew that the KCF were 'militants' who 'demand[ed] their rights with the help of arms, ' that his uncle was forced to flee India because the police suspected he was hiding explosives for the KCF, and that the KCF members he, himself, sheltered came to his house 'secretly at night' because they were wanted by the police. Singh's written declaration and testimony constitute substantial evidence that he knew that the KCF was a terrorist organization, and a reasonable adjudicator would not be compelled to conclude otherwise").
Qubadi told USCIS he was born in May 1974. (CAR at 25.) He left Afghanistan in September 1989. (CAR at 44.) There is nothing in the record suggesting that he disassociated from the Mujahideen before leaving Afghanistan. The record therefore gives rise to an inference that he was a member of the group until he was 15.
CAR at 4.
In its decision, USCIS clearly considered Qubadi's argument that his age affected his level of knowledge, and found it " clear from [his] descriptions of the [Mujahideen] group [he was] with that [he was] aware they engaged in combat with Soviet troops." Daneshvar therefore does not support Qubadi's assertion that USCIS's decision was arbitrary and capricious because even taking his age into account, substantial evidence in the record supports a finding that he knew the Mujahideen were engaged in combat.
CAR at 4.
At the hearing, Qubadi argued that USCIS did not address, and that the administrative record contains no evidence, as to whether he was aware the Mujahideen's conduct was illegal under the law of Afghanistan or the United States. See 8 U.S.C. § 1182(a)(3)(B)(iii) (" the term 'terrorist activity' means any activity which is unlawful under the laws of the place where it is committed" or " if it had been committed in the United States, would be unlawful under the laws of the United States or any State"). The problem with this argument, however, is that it impermissibly seeks to shift the burden of proof on this element to USCIS. In reality, Qubadi -- not USCIS -- had the burden of showing " 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)(VI)(dd); Khan, 766 F.3d at 692 (" However, if a group is in Tier 3, the alien has an opportunity to 'demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization.' This is known as the 'knowledge exception' to the material support bar we just described"). In response to USCIS's notice of intent to deny, which was clearly based on the fact that he had provided material support to a terrorist organization, Qubadi did not argue or adduce evidence that he lacked knowledge the Mujahideen's actions were unlawful under Afghan or United States law. Most fundamentally, there is nothing in the record that addresses, let alone demonstrates by clear and convincing evidence, that Qubadi neither knew nor should have known that engaging in combat was illegal under Afghan and/or United States law. Given that the burden was on Qubadi to prove -- not on USCIS to disprove -- that he was unaware the Mujahideen's actions were illegal, the court finds Qubadi's argument unavailing.
Initially, the court notes that there is no dispute that " battling" Soviet troops and firing at their tank is conduct that is unlawful under the laws of the United States and individual states. See, e.g., CAL. PENAL CODE § 245(a)(2) (" Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment"); id., § 246 (" Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year").
Qubadi also argues that three immigration fraud cases demonstrate that minors should be treated differently than adults. None of the cases he cites suggests that USCIS's decision was an abuse of discretion, however. The first, Sandoval v. Holder, 641 F.3d 982 (8th Cir. 2011), vacated a BIA decision that found an alien inadmissible because she had committed immigration fraud as a 16-year-old. Sandoval argued that she should not be permanently barred because as an unaccompanied 16-year-old minor entering the United States for the first time, she was guilty of fraud. Id. at 986. Sandoval is unhelpful, however, because the majority did not articulate an applicable rule of law governing such cases. Rather, it remanded to the BIA to articulate a coherent approach to the issue, as it had not done so in the decision on review. Id. at 988 (" In affording the agency the third opportunity to consider Sandoval's argument, we might be treading close to transforming judicial review into a 'ping-pong game' of sorts. We do so, however, because we believe '[i]t will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.' Besides being essential for judicial review, the exact position of the Board on applying section 212(a)(6)(C)(ii) is important to many immigrants, given that over 100, 000 unaccompanied minors cross unlawfully into the United States each year. We trust the agency can address Sandoval's principal argument on the merits, and we reserve our evaluation of this argument until such time").
The second decision Qubadi cites is inapposite. In Singh v. Gonzales, 451 F.3d 400 (6th Cir. 2006), the Sixth Circuit held that immigration fraud committed by the parents of a 5-year-old child could not be imputed to the child. It stated that fraudulent conduct " necessarily includes both knowledge of falsity and an intent to deceive" and that to impute fraud to the child was " beyond the pale." Id. at 407. Here, USCIS did not impute anyone else's conduct to Qubadi. Rather, it sought to hold him responsible for his own actions.
The third case Qubadi cites is Malik v. Mukasey, 546 F.3d 890 (7th Cir. 2008). There, the Seventh Circuit affirmed a BIA order, which in turn affirmed an immigration judge's finding that two brothers had committed immigration fraud when they were 17-years-old. The court noted that the immigration judge had " acknowledged that the brothers were young (and probably under the thumb of their father) when the fraud first occurred, but . . . noted that each helped to perpetuate the fraud throughout the removal proceedings by claiming that they were Indian citizens and that their last name was Malik." The court continued: " And 'young, ' of course, is a relative term. Being over 16-and eligible for a driver's license-is quite different than being 10." Id. at 892. Qubadi was only 11 when he first joined the Mujahideen; there is no suggestion in the record, however, that he did so " under the thumb of" his brothers, who joined the group with him. Moreover, it appears he remained a member until he was 15-years-old, and even returned to assist the Mujahideen after being captured and tortured by the Soviets. Thus, although the immigration judge made a passing reference to the fact that the petitioners in Malik were older than sixteen, the case does not suggest that Qubadi lacked knowledge of the fact the Mujahideen was a terrorist group to which he was providing material support simply because he was younger than that.
To the extent the cases Qubadi cites are apposite, they stress only that a petitioner's youth should be considered in determining knowledge. In Malik, it was enough that " BIA acknowledged that the brothers were young when the fraud occurred but concluded that they were old enough to know better and to be held accountable for their actions." Id. The same is true here. USCIS acknowledged Qubadi's argument concerning his age. While it noted that age is not explicitly a relevant factor, it was nonetheless cognizant that the statute requires knowledge. It found that Qubadi possessed the requisite knowledge because it was clear from his description of events that he knew the Mujahideen were engaged in combat, i.e., terrorist activities. None of the cases Qubadi cites required that USCIS do more.
Finally, and perhaps most importantly, Singh v. Gonzales, 225 Fed.Appx. 706, 708 (9th Cir. Mar. 22, 2007) (Unpub. Disp.), cuts strongly against Qubadi's argument that his age rendered him incapable of satisfying the knowledge requirements of the material support bar. In that case, the Ninth Circuit affirmed the BIA's decision finding that the petitioner, who had last provided material support to a Tier III terrorist group as a 17-year-old, was ineligible for asylum under the material support bar, observing that " substantial evidence support[ed] BIA's determination that Singh [was] ineligible for relief because he materially supported terrorists. By Singh's own admission, he provided assistance to known terrorists by providing shelter and food and by transporting funds to members of the Khalistan Commando Force." Id. Judge Kleinfeld filed a concurring opinion stating:
The majority opinion makes no reference to age; however, Judge Kleinfeld's concurrence states that " Jagdeep Singh [was] seventeen at the time he last provided aid and comfort to terrorists." See Singh, 225 Fed.Appx. at 708 (Kleinfeld, J., concurring).
" I concur. However, were Jagdeep Singh not seventeen at the time he last provided aid and comfort to terrorists, I am not so sure I would. As the asylum statute is currently enforced, age is immaterial. While the language of the statute contains no reference to age, suppose a nine year old brought water to a guest at the behest of his parents. Would he be a proper target of the statute's jurisdiction stripping proviso? Compliance by young children with parental commands probably should not impose a permanent ban on asylum upon the children." Id. (Kleinfeld, J., concurring).
The Singh opinion and Judge Kleinfeld's concurrence in it not only suggest that Qubadi's assertion that minors should by definition be treated differently is not correct; they also suggest, at the very least, that someone as old as Qubadi at the end of his association with the Mujahideen can reasonably be found to possess knowledge of the fact the organization is engaged in terrorist activities. Id.
In sum, the court concludes that USCIS did not fail to consider Qubadi's argument concerning his age. Although it might have viewed the evidence in a different light, and reached a different conclusion on the issue, the court is limited in this proceeding to deciding " whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Northwest Motorcycle Ass'n, 18 F.3d at 1472. Under current law, substantial evidence supported USCIS's finding that Qubadi knowingly provided material support to a Tier III terrorist organization. The court must therefore conclude that USCIS did not abuse its discretion in determining that Qubadi was statutorily inadmissible under § 1182(a)(3)(B)(i)(I) because he had provided material support to a terrorist organization as those terms are defined in § 1182(a)(3)(B)(iv)(VI)(dd). Hazuda's motion for summary judgment must therefore be granted.
Because Qubadi is inadmissible under the material support bar, the court declines to consider whether he is also inadmissible for engaging in combat by firing a weapon at a Russian tank.
III. CONCLUSION
For the reasons stated, the court grants Hazuda's motion for reconsideration. On reconsideration, it denies Hazuda's motion to dismiss and grants his motion for summary judgment.
AMENDED JUDGMENT FOR DEFENDANT
On April 30, 2015, the court entered an order granting defendant's motion to dismiss for lack of subject matter jurisdiction. On August 10, 2015, the court entered an order denying defendant's motion to dismiss on reconsideration, and granting defendant's motion for summary judgment. Accordingly, IT IS ORDERED AND ADJUDGED that:
1. Qubadi take nothing by way of his complaint; and
2. That this action be, and it is hereby, dismissed with prejudice.