U.S. Terror Claims|Too Late, Judge Says

SAN FRANCISCO (CN) - Collateral estoppel bars the United States from denying an alleged former terrorist from Pakistan change of status from asylee to permanent U.S. resident, a federal judge ruled.

Mohammad Sher Islam fled Pakistan in 2000 and sought asylum in the United States.

An immigration judge denied his application, but approved it after the Board of Immigration Appeals reversed and remanded.

The United States defines a refugee as someone who suffered "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion" in his or her homeland.

A year Islam was granted asylum, he applied to change his status from asylee to permanent resident. The U.S. Citizenship and Immigration Service ruled that he was ineligible for permanent residency because he "engaged in terrorist activity."

The USCIS claimed Islam had connections to "Tier III" terrorist organizations All Pakistan Mohajir Students Organization (APMSO) and Muttahida Quomi Movement-Altaf Faction (MQM-A). Such connections bar him from permanent residency under the Immigration and Nationality Act.

Islam sued USCIS and its parent agency, the Department of Homeland Security under the Administrative Procedures Act in December 2014. The Federal Court in San Francisco sealed the case on Aug. 12 this year.

The parties filed cross motions for summary judgment a week later.

Homeland Security claims Islam participated in terrorist activity, but Islam says that issue was settled in his 2007 asylum hearing, and collateral estoppel bars the government from relitigating it.

U.S. District Judge Richard Seeborg ruled agreed with Islam on Friday.

"The central dispute between the parties is whether collateral estoppel applies to the issue of Islam's involvement in terrorist activities," Seeborg wrote his a 9-page order. "An immigration judge's decision to grant an application for asylum necessarily includes a determination that the applicant was not involved in terrorist activity prior to the preceding."

Seeborg agreed that the immigration judge's decision to grant Islam's application for asylum means the issue of Islam's alleged terrorist activity has been settled.

"Collateral estoppel is triggered by the prior proceeding and, accordingly, plaintiff's motion must be granted and defendant's cross motion denied," Seeborg ruled.

"Because no exceptions to the doctrine of collateral estoppel apply here, the USCIS's decision to deny Islam's application for adjustment of status was arbitrary, capricious and contrary to law."

Homeland Security claimed, unsuccessfully, that there had been no final judgment on the issue of Islam's alleged terrorist activity, and that neither the immigration judge nor the Board of Immigration Appeals, in granting asylum, "relied on the absence of any terrorist activity" so that under federal law the issue had not actually been litigated.

Seeborg disagreed: "Because the IJ [immigration judge] was statutorily barred from granting Islam asylum if he was found to have participated in terrorist activity, that issue was necessarily decided when the IJ did in fact grant Islam asylum."

He noted the Board of Immigration Appeals had a full record of Islam's past, intimating that if he had participated in terrorist activities as defined by U.S. law, it would not have remanded the USCIS's initial decision to deny him asylum.

"Against that backdrop, by definition the BIA found that Islam was not barred from asylum and therefore did not engage in terrorist activity," Seeborg ruled.

He granted summary judgment to Islam and denied it to Homeland Security.

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