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Lebanese Asylee No Terrorist, Judge Rules

LOS ANGELES (CN) - The U.S. government cannot deny a Lebanese citizen's application to adjust his status from asylee to lawful permanent resident on terrorism grounds, a federal judge ruled.

The man's attorney David Sturman of Encino told Courthouse News he was "very pleased" with the ruling.

"It's a difficult call when a client is accused of terrorism," he said. "This is a case where the rule of law prevailed over emotion."

It also "clearly established that the doctrine of collateral estoppel for immigration proceedings, which follows a long history, but was made clear and laid to rest any remaining ambiguity," he added.

Sturman praised U.S. District Judge David Carter for upholding the immigration judge's decision.

"Bottom line, the immigration judge looked at the facts and found that my client is not a terrorist," he said. "After sitting on it for a decade the government suddenly decided it didn't like that decision, but the judge [in this case] said 'you can't do that."

"Terrorism" is the buzzword du jour, but at the end of the day it is just word, he said.

Sturman criticized the 2001 Patriot Act amendment to the law that denies asylum to anyone found to have supported an alleged terrorist organization, calling it a "hammer without flexibility" that has dashed the hopes of many good people.

"Under this law, if you fought against Hitler or supported those who did, you would not be granted asylum because it incorporates everyone who ever worked for any cause against a government, even if the government was atrocious," he said.

"It has never been fixed or reassessed since then, but it needs it."

With an appeal from the government unlikely, Sturman hopes that this ruling will finally end 11 years of litigation.

Foreign citizens who can prove that their race, religion, nationality, or membership in a particular group jeopardizes their safety in their home country can apply for asylum in the United States. One year after being granted asylum, the person can then seek permanent residence.

However, the law bars people found to have engaged in terrorist activity, either alone or as part of a group, from entering the country or seeking permanent residence.

In December 2002, plaintiff Hicham Aldarwich tried to enter the United States hiding in the trunk of a car at the U.S.-Mexico border, but was found by immigration officers and detained.

During an interview, he insisted that Hezbollah and the Syrian party in Lebanon would torture him, possibly to death, if he was sent back to Lebanon because he wanted to come to the United States and - because he was from southern Lebanon - accuse him of being an Israeli spy.

At a later immigration hearing in which he requested asylum, Aldarwich testified that his family had received death threats and he had personally been targeted for assassination due to his participation in the South Lebanese Army, the Israeli army's surrogate force.

The immigration court granted his request for asylum in June 2004, and he applied to adjust his status to permanent resident the next year. Over seven years later, the U.S. Citizenship and Immigration Services denied his petition on the grounds that the South Lebanese Army is an "undesignated terrorist organization" that had committed several human rights violations, including forcing men and boys into militia service, torturing detainees in Khiam prison, and arbitrarily arresting and expelling people from their homes.

In challenging that decision, Aldarwich argued that, under the doctrine of collateral estoppel, the government cannot deny him permanent residence based on his participation in the South Lebanese Army because it previously found that such participation was not terrorist activity when it granted him asylum.

The government claimed that collateral estoppel does not apply because it is statutorily required to conduct a new investigation for adjustment applications. Even if collateral estoppel did apply, it argued, Aldarwich did not satisfy all the elements to trigger it.

Judge Carter on March 18 awarded summary judgment to Aldarwich.

Though the Immigration and Nationality Act does envision a two-step process in which an applicant is evaluated when they apply for asylum and again if they later apply for permanent residency, the second step is to take any new circumstances into account, not to give the government "two bites at the apple," Carter wrote.

Since the government discovered no new circumstances between Aldarwich's petitions for asylum and for permanent residency, the doctrine of collateral estoppel applies here, according to the ruling.

In arguing that Aldarwich did not satisfy the elements of collateral estoppel, the government claimed that the immigration judge did not make an express finding regarding his alleged involvement in a terrorist organization.

Carter shot down this line of reasoning, pointing out that the immigration judge had to consider engagement in terrorist activity as a bar to granting asylum. Since asylum was ultimately granted though Aldarwich testified to spying for Israel on behalf of the South Lebanese Army, the issue of terrorist involvement has been necessarily litigated and decided.

The judge was also not persuaded by claims that applications for asylum and permanent residence are different. Though the law has changed between 2004 and 2013 - the dates for which he was granted asylum and his permanent residency application was decided, respectively - to include a requirement that the applicant show "clear and convincing evidence" that they did not know they were supporting a terrorist organization, the definition of "terrorist activity" has not changed and is identical for both applications, the ruling said.

Since the government used the same factual record when considering both applications, the issues were identical in both proceedings and "Aldarwich satisfied all the elements of collateral estoppel," Carter wrote.

He found the government could not deny Aldarwich's adjustment application on the grounds of terrorism and set aside its denial.

Justice Department attorney Anthony Bianco represented the government, and did not immediately return emailed comment requests sent Tuesday morning.

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