Petition for Writ of Certiorari — Mohammad Sharif Khalil, Petitioner v. Ur Jaddou, Director, United States Citizenship and Immigration Services, et al.

No. 21In the

Supreme Court of the United States

MOHAMMAD SHARIF KHALIL,

Petitioner,

v.

UR JADDOU, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

K athryn H. Brady

Counsel of Record

A llie J. Hallmark

Franchel D. Daniel

Charles D. Swift, Director

Constitutional Law Center

for Muslims in A merica

100 North Central Expressway,

Suite 1010

Richardson, TX 75080

(972) 914-2507

kbrady@clcma.org

Counsel for Petitioner

305353

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

The Immigration and Nationality Act (INA) identifies

various “terrorist activities” that render a noncitizen

inadmissible. 8 U.S.C. § 1182(a)(3)(B). The REAL ID Act

of 2005 amended the INA to, among other things, add a

ground of inadmissibility for receipt of “military-type

training . . . from or on behalf of any organization that,

at the time the training was received, was a terrorist

organization (as defined in clause (vi)).” Id. § 1182(a)

(3)(B)(i)(VIII). No other terrorism-related grounds of

inadmissibility under § 1182 include the language “at the

time” to describe the conduct at issue.

In the early–mid 1980s, Petitioner Mohammad Sharif

Khalil fought against the Soviets with the U.S.-backed and

trained war-time ally known as Jamiat-i-Islami (Jamiat).

Mr. Khalil disclosed his background with Jamiat and

was granted asylum in 2000. In its 2019 denial of Mr.

Khalil’s application to adjust status, U.S. Citizenship and

Immigration Services claimed that beginning in the late

1980s, Jamiat qualified as an undesignated “Tier III”

terrorist organization under § 1182(a)(3)(B)(vi)(III) of the

INA, as amended by the PATRIOT Act of 2001.

The question presented is:

Whether the INA, as amended by the REAL ID Act,

permits the government to retroactively deem a noncitizen

inadmissible for receiving military-type training from or

on behalf of a group that the United States did not consider

a terrorist organization “at the time” of his training.

ii

PARTIES TO THE PROCEEDING

Petitioner Mohammad Sharif Khalil was the PlaintiffAppellant below.

Francis Cissna, in his official capacity as Director

of U.S. Citizenship and Immigration Services; Kevin

McAleenan, in his official capacity as Acting Secretary

of the U.S. Department of Homeland Security; and Loren

K. Miller, in his official capacity as Director of the U.S.

Citizenship and Immigration Services, Nebraska Service

Center, were the Defendants in the District Court.

Kenneth Cuccinelli, in his official capacity as Acting

Director of U.S. Citizenship and Immigration Services,

and Chad Wolf, in his official capacity as Acting Secretary

of the U.S. Department of Homeland Security, were

substituted pursuant to Federal Rule of Civil Procedure

25(d) and were the Appellees in the Circuit Court.

Ur Jaddou, in her official capacity as Director of U.S.

Citizenship and Immigration Services, and Alejandro

Mayorkas, in his official capacity as Secretary of the U.S.

Department of Homeland Security, are currently in the

respective positions and have been substituted pursuant

to Rule 25(d).

Accordingly, Ur Jaddou, Alejandro Mayorkas, and

Loren K. Miller are the Respondents before this Court.

iii

RELATED CASES

There are no related cases other than the opinions

identified below in this matter:

Khalil v. McAleenan, et al., No. 2:18-cv-07903-DMGKS, United States District Court for the Central District

of California, Western Division. Judgment entered Jan.

21, 2020.

Khalil v. Cissna, et al., No. 20-55323, United States

Court of Appeals for the Ninth Circuit. Judgment entered

Mar. 12, 2021.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . vii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 5

A. Statutory and Legal Background . . . . . . . . . . . . 5

B. Factual and Administrative Background . . . . . 8

C. Lower Court Proceedings . . . . . . . . . . . . . . . . . 11

REASONS FOR GRANTING THE PETITION . . . . 14

v

Table of Contents

Page

I.

THE DECISION BELOW CONFLICTS

WITH JUDICIAL INTERPRETATIONS

OF IDENTICAL LANGUAGE . . . . . . . . . . . . . 14

II. THE DECISION BELOW BUILDS ON

AN EXISTING CIRCUIT SPLIT . . . . . . . . . . 16

III. THE DECISION BELOW IS WRONG . . . . . . 19

IV. THE DECISION BELOW BETRAYS

WA R-TIME A LLIES A ND M A KES

AMERICA LESS SAFE . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

vi

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED MARCH 12, 2021 . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA,

FILED JANUARY 21, 2020 . . . . . . . . . . . . . . . . . . . 5a

APPENDIX C — DECISION OF THE U.S.

CI T I ZENSH I P A N D I M M IGR AT ION

SERVICES, DATED MARCH 21, 2019 . . . . . . . . . 13a

APPENDIX D — 8 U.S.C. § 1182(a)(3)(B) . . . . . . . . . 32a

APPENDIX E — NOTICE OF INTENT TO

DENY OF THE U.S. CITIZENSHIP AND

I M M IGR AT ION SERV IC E S , DAT ED

NOVEMBER 16, 2018 . . . . . . . . . . . . . . . . . . . . . . . . 37a

APPENDIX F — NOTICE OF INTENT TO

DENY OF THE U.S. CITIZENSHIP AND

I M M IGR AT ION SERV IC E S , DAT ED

FEBRUARY 14, 2019 . . . . . . . . . . . . . . . . . . . . . . . . 47a

vii

TABLE OF AUTHORITIES

Page(s)

SUPREME COURT CASES

Barber v. Gonzales,

347 U.S. 637 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Barnhart v. Sigmon Coal Co.,

534 U.S. 438 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

BFP v. Resol. Tr. Corp.,

511 U.S. 531 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Bostock v. Clayton Cty.,

140 S. Ct. 1731 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 21

Caminetti v. United States,

242 U.S. 470 (1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Carcieri v. Salazar,

555 U.S. 379 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Dep’t of Revenue of Or. v. ACF Indus.,

510 U.S. 332 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Fong Haw Tan v. Phelan,

333 U.S. 6 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

viii

Table of Authorities

Page(s)

Hughes Aircraft Co. v. Jacobson,

525 U.S. 432 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

INS v. St. Cyr,

533 U.S. 289 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Kaiser Aluminum & Chem. Corp. v. Bonjorno,

494 U.S. 827 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Landgraf v. Usi Film Prods.,

511 U.S. 244 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Lindh v. Murphy,

521 U.S. 320 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Nasrallah v. Barr,

140 S. Ct. 1683 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Pa. Dep’t of Pub. Welfare v. Davenport,

495 U.S. 552 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Perrin v. United States,

444 U.S. 37 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

ix

Table of Authorities

Page(s)

Rubin v. Islamic Republic of Iran,

138 S. Ct. 816 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Curtiss-Wright Exp. Corp.,

299 U.S. 304 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Ron Pair Enters.,

489 U.S. 235 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Vartelas v. Holder,

566 U.S. 257 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CIRCUIT COURT CASES

Adrien v. U.S. Att’y Gen.,

194 F. App’x 748 (11th Cir. 2006) . . . . . . . . . . . . . . . . 15

Amrollah v. Napolitano,

710 F.3d 568 (5th Cir. 2013) . . . . . . . . . . . . . . . . passim

Janjua v. Neufeld,

933 F.3d 1061 (9th Cir. 2019) . . . . . . . . . . . . . . . passim

McAllister v. U.S. Att’y Gen.,

444 F.3d 178 (3d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 7

Moran v. Ashcroft,

395 F.3d 1089 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . 15

x

Table of Authorities

Page(s)

Muratoski v. Holder,

622 F.3d 824 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 15

Sanchez v. Holder,

560 F.3d 1028 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . 15

Soc’y for the Propagation of the Gospel v.

Wheeler,

2 Gall. 105, 22 F. Cas. 756, F. Cas. No. 13156

(C.C.N.H. 1814) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Ventura v. Sessions,

907 F.3d 306 (5th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 24

STATUTES

5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

8 U.S.C. § 1158(b)(2)(A)(v) . . . . . . . . . . . . . . . . . . . . . . . . . 9

8 U.S.C. § 1182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

8 U.S.C. § 1182(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

8 U.S.C. § 1182(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 5, 23, 31

8 U.S.C. § 1182(a)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6

8 U.S.C. § 1182(a)(3)(B)(i)(I) . . . . . . . . . . . . . . . . . . . . 9, 10

xi

Table of Authorities

Page(s)

8 U.S.C. § 1182(a)(3)(B)(i)(VII) . . . . . . . . . . . . . . . . . . . . . 7

8 U.S.C. § 1182(a)(3)(B)(i)(VIII) . . . . . . . . . . . . . . . passim

8 U.S.C. § 1182(a)(3)(B)(iv)(V) . . . . . . . . . . . . . . . . . . . . . . 7

8 U.S.C. § 1182(a)(3)(B)(iv)(VI) . . . . . . . . . . . . . . . . . . . . . 7

8 U.S.C. § 1182(a)(3)(B)(vi) . . . . . . . . . . . . . . . . . . . . . . 4, 23

8 U.S.C. § 1182(a)(3)(B)(vi)(III) . . . . . . . . . . . . . . . . . . . . . 6

8 U.S.C. § 1182(a)(6)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

8 U.S.C. § 1182(a)(6)(C)(ii)(II) . . . . . . . . . . . . . . . . . . 15, 16

8 U.S.C. § 1182(a)(6)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

8 U.S.C. § 1182(a)(6)(E)(iii) . . . . . . . . . . . . . . . . . . . . . . . 14

8 U.S.C. § 1182(d)(11) . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

8 U.S.C. § 1227 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 28

8 U.S.C. § 1229a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

8 U.S.C. § 1229a(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

8 U.S.C. § 1229a(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

xii

Table of Authorities

Page(s)

8 U.S.C. § 1252(a)(2)(B)(ii) . . . . . . . . . . . . . . . . . . . . . . . . 12

8 U.S.C. § 1252(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

18 U.S.C. § 2339D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 . . . . . . . . . . 5

Emergency Supplement a l Appropr iations

A c t for D e fe n s e , t he Glob a l Wa r on

Te r r or, a nd T su n a m i R el ie f of 2 0 0 5 ,

Pub. L. No. 109-13, 119 Stat. 231 . . . . . . . . . . . . . . . . . 6

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No.

104-208, 110 Stat. 3009 . . . . . . . . . . . . . . . . . . . . . . . . . 5

Immigration Act of 1990, Pub. L. No. 101-649,

104 Stat. 4978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Intelligence Authorization Act for Fiscal Year

2003, Pub. L. No. 107-306, 116 Stat. 2383

(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept

a nd Ob st r uc t Ter r or i sm A c t of 2 0 01,

Pub. L. No. 107-56, 115 Stat. 272 . . . . . . . . . . . . . . . . . 6

xiii

Table of Authorities

Page(s)

BOARD OF IMMIGRATION APPEALS

PROCEEDINGS

In re Farias-Mendoza,

21 I. & N. Dec. 269, 1997 BIA LEXIS 22

(BIA May 7, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

In re S-K-,

23 I. & N. Dec. 936 (BIA 2006) . . . . . . . . . . . . . . . . . . 7

LEGISLATIVE MATERIALS

51 Cong. Rec. S3775 (2005) . . . . . . . . . . . . . . . . . . . . . . . 21

9/11 Commission, The 9/11 Commission Report: Final

Report of the National Commission on Terrorist

Attacks Upon the United States (2004) . . . . . . . . . . 6

H.R. Rep. No. 109-72 (2005) . . . . . . . . . . . . . . . . . . . . 7, 28

Iraqi Volunteers, Iraqi Refugees: What is

America’s Obligation: Hearing Before the

H. Subcomm. on the Middle E. and S. Asia,

Comm. on Foreign Affs., 110th Cong. (2007) . . 29-30

OTHER SOURCES

Antony J. Blinken, U.S. Sec’y of State, in Brussels,

Belg., U.S. Dep’t of State (June 13, 2021), https://

www.state.gov/secretary-antony-j-blinken-oncnns-state-of-the-union-with-dana-bash/ . . . . . . . . 30

xiv

Table of Authorities

Page(s)

At the time (that); at the time (when), Garner’s

Modern English Usage (4th ed. 2016) . . . . . . . . . . . 20

At the time of (something), M erriam-Webster

Dictionary, https://www.merriam-webster.

com /d ic t ion a r y/at% 2 0 t he%2 0 t i me%2 0

of %2 0 %2 8 s omet h i ng %2 9 ( l a st v i s it e d

June 14, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

At the time, Longman Dictionary of Contemp.

Eng., https://www.ldoceonline.com/dictionary/

at-the-time (last visited June 14, 2021) . . . . . . . . . . . 20

Brian G. Slocum, The Immigration Rule of

Lenity and Chevron Deference, 17 G eo .

Immigr. L.J. 515 (2003) . . . . . . . . . . . . . . . . . . . . . . . . 27

C h a r l e s K r a u t h a m m e r, T h e R e a g a n

Doc tr in e, Wa s h . P o s t (Ju ly 19, 19 8 5),

https://w w w.washingtonpost.com/archive/

politics/1985/07/19/the-reagan-doctr ine/

b2a06583-46fd-41e5-b70d-c949dd3c50c2/ . . . . . . . . . 8

Christian Parenti, America’s Jihad: A History of

Origins, 28 (3) Soc. Just. 31 (2001) . . . . . . . . . . . . . . 29

Jenna Krajeski, A victim of terrorism faces

deportation for helping terrorists, New Yorker

(June 12, 2019), https://www.newyorker.com/

news/news-desk/a-victim-of-terrorism-facesdeportation-for-helping-terrorists . . . . . . . . . . . 30-31

xv

Table of Authorities

Page(s)

Jonathan Landay and Idrees Ali, U.S. to start

eva cuating some un der-threat Afghan

visa applicants, R euters (July 14, 2021),

https://w w w.reuters.com/world/exclusiveus-expected-announce-start-evacuationafghan-visa-applicants-2021-07-14/ . . . . . . . . . . . . . . 30

Kira Monin et al., Refugees and Asylees in the

United States, Migration Pol’y Inst. (May 13,

2021), https://www.migrationpolicy.org/article/

refugees-and-asylees-united-states-2021 . . . . . . . . . 9

Maria Sacchetti, ICE, CBP to stop using ‘illegal

alien’ and ‘assimilation’ under new Biden

administration order, Wash. Post (Apr. 19, 2021),

https://www.washingtonpost.com/immigration/

illegal-alien-assimilation/2021/04/19/9a2f878e9ebc-11eb-b7a8-014b14aeb9e4_story.html . . . . . . . . . 5

Oral arg ument, Khalil v. Cissna, No. 20 55323, 2021 U.S. App. LEXIS 7298 (9th

Cir. Mar. 3, 2021) https://www.ca9.uscourts.

gov/media/view.php?pk_id=0000036505 . . . . . . 26, 29

R e stat em en t (S econ d) of J u d gm en t s § 27

(A m. L. Inst. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Stephen M. Shapiro et al., S u preme C ourt

Practice (11th ed. 2019) . . . . . . . . . . . . . . . . . . . . . . . 29

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Mohammad Sharif Khalil respectfully

petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth Circuit

in this case.

INTRODUCTION

By September 11, 2021, the United States will have

completed its withdrawal of forces from Afghanistan.

Simultaneously, the government is evacuating thousands

of Afghan visa applicants whose lives are at risk because of

the work they did for American forces fighting the Taliban.

See discussion infra Section IV. This case implicates an

important and recurring foreign policy question affecting

those applicants and many others: After serving alongside

the United States in conflicts around the world, can our

war-time allies trust that we will not turn our backs on

them when they seek refuge?

Mr. Khalil is one of many asylees who fought against the

Soviets with Jamiat-i-Islami (Jamiat)—a U.S.-supported

and U.S.-trained group in Afghanistan. Jamiat was not

designated and did not qualify as a terrorist organization

at the time Mr. Khalil received the training in the earlymid 1980s. Years after he disclosed this background and

obtained asylum in the United States, the government

denied his request for adjustment of immigration status

on the ground that he had engaged in terrorist activity

during his involvement with Jamiat. In its final denial,

the government raised a new ground of inadmissibility,

claiming that Mr. Khalil had received military-type

training from a Tier III terrorist organization.

2

The Ninth Circuit panel expressed its concern that

the government’s position in this case sends the message

to U.S.-allied fighters that “the United States will betray

you. It will treat you as a terrorist.” See infra Section

IV. But apparently believing it had no choice, the court

adopted a flawed view of retroactivity and an incorrect

interpretation of the REAL ID Act. Consequently, its

decision conflicts with cases involving similar language

and with the plain language of the statute itself, which

expressly requires that the group from which the

noncitizen received training was a terrorist organization

“at the time” of the training. Not only did the court of

appeals flout the rules of statutory construction and render

these words superfluous, it also exacerbated a circuit split

between the Fifth and Ninth Circuits.

An interpretation of the REAL ID Act that retroactively

renders Mr. Khalil inadmissible for receiving militarytype training from a group not considered a terrorist

organization at the time of his training undermines the

statute’s stated purpose—to prevent future terrorist

attacks by identifying and removing terrorists who exploit

the asylum system to infiltrate and harm the United

States. The court of appeals’ interpretation simultaneously

excludes deserving noncitizens from adjusting status yet

permits these same noncitizens to remain in the country

as asylees and refugees despite being labeled as threats

to national security. With thousands more allies-turnedrefugees on the way, this Court’s intervention is urgently

needed.

3

OPINIONS BELOW

The Ninth Circuit’s decision is not reported but

available at Khalil v. Cissna, No. 20-55323, 2021 U.S. App.

LEXIS 7298 (9th Cir. Mar. 12, 2021). Pet. App. 1a-4a. The

District Court’s decision is not reported but available at

Khalil v. McAleenan, No. 2:18-cv-07903-DMG-KS, 2020

U.S. Dist. LEXIS 37626 (C.D. Cal. Jan. 21, 2020). Pet.

App. 5a-12a.

JURISDICTION

The Ninth Circuit entered judgment on March 12,

2021. This Court’s July 19, 2021 Order provides that for

any case in which the judgment was entered prior to July

19, 2021, the deadline to petition for a writ of certiorari

was extended to 150 days from the date of the lower

court judgment. Petitioner timely filed this Petition on

August 9, 2021, within 150 days of that judgment. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Immigration and Nationality Act, as amended

by the REAL ID Act of 2005, provides in relevant part:

(i) In general. Any alien who—

(VIII) has received military-type training

(as defined in [18 U.S.C. § 2339D(c)(1)]) from

or on behalf of any organization that, at the

time the training was received, was a terrorist

organization (as defined in [8 U.S.C. § 1182(a)

(3)(B)(vi)]); [] . . . is inadmissible.

4

8 U.S.C. § 1182(a)(3)(B)(i)(VIII).

The INA, as amended by the USA PATRIOT Act of

2001, defines “terrorist organization” as an organization:

(I) designated under section 219 [8 U.S.C.

§ 1189];

(II) otherwise designated, upon publication in

the Federal Register, by the Secretary of State

in consultation with or upon the request of the

Attorney General or the Secretary of Homeland

Security, as a terrorist organization, after

finding that the organization engages in the

activities described in subclauses (I) through

(VI) of clause (iv); or

(III) that is a group of two or more individuals,

whether organized or not, which engages in, or

has a subgroup which engages in, the activities

described in subclauses (I) through (VI) of

clause (iv).

8 U.S.C. § 1182(a)(3)(B)(vi).

Other relevant portions of the INA, 8 U.S.C. § 1182(a)

(3)(B), are reproduced in the Appendix, infra Pet. App.

32a-36a.

5

STATEMENT OF THE CASE

A. Statutory and Legal Background

Originally enacted in 1952, the Immigration and

Nationality Act (INA) delineates numerous grounds that

exclude noncitizens1 from receiving visas and admission

into the United States. 8 U.S.C. § 1182(a). A noncitizen

described in § 1182(a)(3) of the INA is deportable under 8

U.S.C. § 1227 and may be placed in removal proceedings

based on any of the § 1182 grounds of inadmissibility. 8

U.S.C. §§ 1229a(a), (e). In 1990, Congress amended the INA

to, among other things, exclude and deport noncitizens for

participation in terrorist activities. See Immigration Act of

1990, Pub. L. No. 101-649, 104 Stat. 4978. The amendment

defined “engage in terrorist activity” and for the first time

identified several acts as part of a non-exhaustive list of

terrorist activities. 8 U.S.C. § 1182(a)(3)(B). In the years

that followed, and particularly after the 1993 World Trade

Center bombing, Congress expanded the anti-terrorism

provisions in the INA to fund counterterrorism measures

and bar noncitizens on terrorism-related grounds from

receiving asylum or withholding of removal. See Illegal

Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, 110 Stat. 3009; Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104132, 110 Stat. 1214.

1 The term “noncitizen” substitutes the term “alien”

throughout this Petition. See Nasrallah v. Barr, 140 S. Ct. 1683,

1687 (2020); Maria Sacchetti, ICE, CBP to stop using ‘illegal

alien’ and ‘assimilation’ under new Biden administration order,

Wash. Post (Apr. 19, 2021), https://www.washingtonpost.com/

immigration/illegal-alien-assimilation/2021/04/19/9a2f878e-9ebc11eb-b7a8-014b14aeb9e4_story.html (discussing agency memos

directing use of more inclusive terms for immigrants).

6

Nearly twenty years ago, Congress enacted the

PATRIOT Act the month after the September 11, 2001

attacks, further amending the INA to include additional

terrorism-related inadmissibility grounds. See Uniting

and Strengthening America by Providing Appropriate

Tools Required to Intercept and Obstruct Terrorism

Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (PATRIOT

Act). The PATRIOT Act expanded the existing list of

terrorist activities under § 1182. It also amended the

definition of “terrorist organization” to include a category

for undesignated groups of two or more individuals

who “engage in terrorist activity,” referred to as “Tier

III” terrorist organizations. 8 U.S.C. § 1182(a)(3)(B)(vi)

(III). As noted above, “engage in terrorist activity” was

originally defined in 1990. Id. § 1182(a)(3)(B). Despite

other noteworthy amendments, the PATRIOT Act did not

significantly change the definition of “engage in terrorist

activity.” Pet. App. 35a; see also Amrollah discussion infra

Section II.

In late 2 0 02 , Cong ress created the National

Commission on Terrorist Attacks Upon the United

States, known as the 9/11 Commission. See Intelligence

Authorization Act for Fiscal Year 2003, Pub. L. No. 107306, 116 Stat. 2383 (2002). The 9/11 Commission identified

multiple instances where terrorists entered and remained

in the United States by exploiting then-existing asylum

laws. See generally 9/11 Commission, The 9/11 Commission

Report: Final Report of the National Commission on

Terrorist Attacks Upon the United States (2004). In

response, Congress passed the Emergency Supplemental

Appropriations Act for Defense, the Global War on

Terror, and Tsunami Relief of 2005, Pub. L. No. 109-13,

119 Stat. 231 (REAL ID Act), to, among other thing,

7

“unify terrorism-related grounds for inadmissibility and

removal.” H.R. Rep. No. 109-72 (2005). In its effort to

streamline deportation of terrorists, the REAL ID Act

added a ground of inadmissibility for noncitizens who have

“received military-type training . . . from or on behalf

of any organization that, at the time the training was

received, was a terrorist organization (as defined in [the

PATRIOT Act]).” 8 U.S.C. § 1182(a)(3)(B)(i)(VIII).

The INA, with the PATRIOT Act and REAL ID Act

amendments, serves as a broad statutory scheme allowing

the government to exclude noncitizens on terrorismrelated grounds, including material support, endorsement

of a terrorist organization, and solicitation of funds for

terrorist activity. 2 Id. §§ 1182(a)(3)(B)(i)(VII), (iv)(V)(VI). Yet among its vast provisions, Congress included

the short but clear phrase, “at the time,” which expressly

limits the statute’s otherwise expansive reach as it relates

to receipt of military-type training. Id. § 1182(a)(3)(B)(i)

(VIII). No other terrorism-related inadmissibility ground

contains the words “at the time,” indicating that Congress

purposely included them in § 1182(a)(3)(B)(i)(VIII).

2 See McAllister v. U.S. Att’y Gen., 444 F.3d 178, 191-92

(3d Cir. 2006) (Barry, J., concurring) (expressing alarm at the

government’s sweeping definitions of “terrorist activity” and

“terrorist organization”); In re S-K-, 23 I. & N. Dec. 936, 948-49

(BIA 2006) (Osuna, J., concurring) (discussing the “broad reach”

of the material support ground of inadmissibility).

8

B. Factual and Administrative Background

Born and raised in war-torn Afghanistan, Mohammad

Sharif Khalil joined Jamiat at age 15 during the Soviet

invasion of Afghanistan. Pl.’s First Am. Compl. ¶¶ 9-10,

ECF No. 31. Supporting groups like Jamiat was the

official U.S. policy under then-President Ronald Reagan.

Known as the “Reagan Doctrine,” the U.S. provided

funds, support, training, and weapons to Jamiat and

other anti-Soviet groups in Afghanistan and around the

globe. See Charles Krauthammer, The Reagan Doctrine,

Wash. Post (July 19, 1985), https://www.washingtonpost.

com/archive/politics/1985/07/19/the-reagan-doctrine/

b2a06583-46fd-41e5-b70d-c949dd3c50c2/ (“The Reagan

Doctrine, enunciated in the 1985 State of the Union

address, declares, quite simply, American support for

anticommunist revolution ‘on every continent from

Afghanistan to Nicaragua.’”). Like many Afghan youth,

Mr. Khalil fought with Jamiat against the Soviets after

being trained by U.S. forces. Pl.’s First Am. Compl. ¶ 11.

Mr. Khalil’s involvement with Jamiat ceased in the late

1980s at the end of the Soviet invasion.

Following the fall of the Soviet-supported Afghan

government in 1992, Jamiat was one of many groups vying

for power in Afghanistan. Jamiat joined the coalition

known as the United Islamic Front for the Salvation

of Afghanistan or “Northern Alliance.” The Northern

Alliance opposed the Islamic Emirate of Afghanistan,

commonly known as the Taliban. With the majority

of Afghanistan under Taliban control, Mr. Khalil was

targeted as a former member of Jamiat. Id. at ¶ 13. After

initially seeking refuge in Germany, on January 21, 2000,

Mr. Khalil entered the United States through Newark

International Airport and requested asylum. Id. at ¶ 16.

9

In his applications for asylum and for withholding of

removal, Mr. Khalil fully disclosed to the Immigration and

Naturalization Service (INS)3 that he “joined the [Jamiat]

at the age of 15 and became a fighter at 18” and “supported

the Jamiat in there [sic] resistance against the Communists

and there [sic] fighting against Hekmatyar and his Hezbi-Islami party.” Id. On March 30, 2000, the immigration

judge (IJ) granted Mr. Khalil’s application for asylum.

Id. at ¶ 17.4

Mr. Khalil filed his first Application to Register

Permanent Residence or Adjust Status w ith U.S.

Citizenship and Immigration Services (USCIS) on

December 3, 2001, four years before Congress passed

the REAL ID Act. Once granted, adjustment of status

permits noncitizens to travel more freely internationally,

receive financial aid, join certain branches of the U.S.

armed forces, and ultimately seek U.S. citizenship after

five years. Kira Monin et al., Refugees and Asylees in

the United States, Migration Pol’y Inst. (May 13, 2021),

https://www.migrationpolicy.org/article/refugees-andasylees-united-states-2021. Mr. Khalil again disclosed

his ties to Jamiat.

After nearly eight years with no explanation for

the delay, USCIS denied Mr. Khalil’s first application,

3 The INS existed at the time of Mr. Khalil’s asylum

proceedings. Congress created the Department of Homeland

Security (DHS) in November 2002 and USCIS in March 2003.

USCIS is an agency within DHS.

4 IJs are statutorily barred from granting asylum to

noncitizens who are found to be inadmissible on terrorism-related

grounds, such as “engaging in terrorist activity.” 8 U.S.C. § 1158(b)

(2)(A)(v); see also 8 U.S.C. § 1182(a)(3)(B)(i)(I).

10

claiming he was inadmissible under 8 U.S.C. § 1182(a)(3)

(B)(i)(I) for engaging in terrorist activity. On January 31,

2011, Mr. Khalil filed a second application. Pl.’s First Am.

Compl. ¶ 22. Another seven years later, on November 16,

2018, USCIS sent Mr. Khalil a Notice of Intent to Deny his

second application (the 2018 NOID). Pet. App. 37a-46a. The

2018 NOID asserted that Mr. Khalil was “inadmissible

under [§ 1182(a)(3)(B)(i)(I)] for having engaged in terrorist

activity, as defined in [§1182(a)(3)(B)(iii)(V)(b)] when,

as a Mujahedeen fighter, [he] used a rocket launcher

to endanger the safety of one or more individuals.” Id.

at 44a. It also claimed Mr. Khalil was inadmissible “as

defined by [§ 1182(a)(3)(B)(iv)(VI)] for having provided

material support to Jamiat Islami by working with [his]

uncle and by fighting with the organization.” Id. Mr. Khalil

timely submitted a response to the 2018 NOID, which

addressed each ground of denial.

On February 14, 2019, USCIS sent another NOID

regarding Mr. Khalil’s second application (the 2019

NOID). Id. at 47a-56a. The 2019 NOID included requests

for additional information and stated that “[w]hile USCIS

still intends to deny [Mr. Khalil’s] application, this

information will allow USCIS to better evaluate the

arguments you raised in your response to the [2018]

NOID.” Id. at 52a. On March 8, 2019, Mr. Khalil submitted

his response to the 2019 NOID, asserting, among other

arguments, that USCIS was collaterally estopped from

denying his application on its stated grounds because the

issue of his admissibility and involvement with Jamiat

was fully litigated at the asylum stage. See Amrollah v.

Napolitano, 710 F.3d 568, 571 (5th Cir. 2013) (applying

collateral estoppel to USCIS’s denial of adjustment of

status on terrorism-related inadmissibility grounds).

11

USCIS denied Mr. Khalil’s second application on March

21, 2019. Pet. App. 13a-31a. It reasserted the grounds of

inadmissibility from the denial of his first application and

the 2018 NOID (engaging in terrorist activity and material

support of terrorism), but in an attempt to circumvent Mr.

Khalil’s collateral estoppel argument, USCIS also added

a third ground: receipt of military-type training from a

terrorist organization pursuant to 8 U.S.C. § 1182(a)(3)

(B)(i)(VIII). Id. at 29a-30a. USCIS purportedly based

this new ground of inadmissibility on a statement in

the addendum to Khalil’s second application repeating

what he had previously disclosed during his 2000 asylum

proceeding (that he was a member of Jamiat in the 1980s

and received training from U.S. forces to fight the Soviets).

Id.; see also Pl.’s First Am. Compl. ¶¶ 30-31. USCIS

admitted as much in its denial when it acknowledged that

Mr. Khalil disclosed his involvement in Jamiat “in their

[sic] resistance against the Communists.” Pet. App. 16a.

Nevertheless, USCIS stated in its denial, “The fact that

the United States supported Mujahedeen fighting the

Soviet and Soviet-sponsored Afghan government does not

make the group you were a member of any less of a [Tier

III] terrorist organization. . . .” Id. at 27a. In other words,

USCIS disregarded the fact that Mr. Khalil received

“military-type training” (from the U.S.) two decades

before the REAL ID Act expressly created this terrorismrelated ground of inadmissibility and years before it

decided that Jamiat was a “terrorist organization” under

the Tier III definition.

C. Lower Court Proceedings

Mr. Khalil initially filed a Writ of Mandamus on

September 11, 2018, to challenge USCIS’s seven-year

12

delay of his second application. On April 9, 2019, after

USCIS’s ultimate denial, Mr. Khalil filed his First

Amended Complaint seeking a declaration that USCIS’s

denial of the second application was unlawful and should

be set aside under the Administrative Procedure Act, 5

U.S.C. § 706(2)(A), because Respondents were collaterally

estopped from denying adjustment of status on all stated

grounds. See generally Pl.’s First Am. Compl.

Respondents moved to dismiss the complaint for

lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii).

Defs.’ Mot. to Dismiss 3, ECF No. 32. When the Ninth

Circuit decided a similar case while the motion to dismiss

was pending, Janjua v. Neufeld, 933 F.3d 1061 (9th Cir.

2019), the district court instructed the parties to submit

supplemental briefing on the collateral estoppel issue

raised by Mr. Khalil. The Ninth Circuit in Janjua held

that because the specific terrorism-related ground was

not created until after the noncitizen’s asylum hearing,

the issue was not “actually litigated” and collateral

estoppel did not apply. 933 F.3d at 1067-68. The Janjua

court created a split with the Fifth Circuit in Amrollah

v. Napolitano, 710 F.3d 568 (5th Cir. 2013). See discussion

infra Section II.

On January 21, 2020, the district court granted the

motion to dismiss, but not on the grounds that it lacked

jurisdiction. Rather, it concluded that under Janjua,

collateral estoppel did not preclude Respondents from

denying Mr. Khalil’s second application because the IJ

who previously granted Mr. Khalil asylum in 2000 could

not have considered grounds of inadmissibility that

were codified by the PATRIOT Act and REAL ID Act

after the asylum decision. Pet. App. 7a-11a. The district

13

court construed “terrorism-related activity” narrowly

and decided that because the Tier III definition was

not available at the time of Mr. Khalil’s asylum in 2000,

inadmissibility related to Jamiat’s Tier III designation was

not “actually litigated” during the asylum proceedings. Id.

at 9a-10a.

The Ninth Circuit affirmed the dismissal on March 12,

2021. Seemingly acknowledging that collateral estoppel

could apply to the first two grounds of inadmissibility,

the court of appeals pivoted and focused on the third

ground: receipt of military-type training under § 1182(a)

(3)(B)(i)(VIII). Id. at 4a (concluding, “even if the record

showed that the agency was estopped on some of the

other issues on appeal, it would not change the result as

to Khalil’s ‘military-type training’”). It held that collateral

estoppel did not apply to the military-type training ground

because the REAL ID Act was passed in 2005, after the

IJ decision granting Mr. Khalil’s asylum application in

2000. Id. at 3a. At the same time, the court of appeals

rejected Mr. Khalil’s argument that the REAL ID Act

cannot retroactively render him inadmissible because of

its “at the time” language; instead, it concluded simply

that “the REAL ID Act explicitly permits retroactivity”

based on the Act’s note stating that the amendments

apply to “acts and conditions constituting a ground for

inadmissibility . . . occurring or existing before, on, or

after [May 11, 2005].” Id. As a result, even though the

INA covered the same terrorism-related conduct for the

15 years preceding the REAL ID Act, the court of appeals

held that the military-type training ground could not have

been actually litigated in the asylum proceeding. Id.

This petition followed.

14

REASONS FOR GRANTING THE PETITION

In a results-driven decision, the Ninth Circuit

contradicted other judicial interpretations of the statutory

language “at the time,” exacerbated a circuit split, and

ignored long-standing rules of statutory construction.

The court of appeals’ interpretation—that under the

REAL ID Act, the government can retroactively deem

a noncitizen inadmissible for receiving military-type

training from a group that was not considered a terrorist

organization at the time of the training—is wrong. And

the consequences of its misinterpretation of this provision

of § 1182 necessitate this Court’s review.

I.

THE DECISION BELOW CONFLICTS WITH

JUDICIAL INTERPRETATIONS OF IDENTICAL

LANGUAGE.

As the Court is aware, when Congress uses identical

words throughout the same statute, they “are intended to

have the same meaning.” Dep’t of Revenue of Or. v. ACF

Indus., 510 U.S. 332, 342 (1994). The phrase “at the time” is

employed to mean “when” in other parts of § 1182. Because

courts have followed the plain meaning of “at the time” in

other § 1182 cases, the decision below conflicts with and

creates inconsistency in the law interpreting this language.

For example, 8 U.S.C. § 1182(a)(6)(E) sets forth a

ground of inadmissibility where a noncitizen smuggled

another noncitizen into the United States. Section 1182(a)

(6)(E)(iii) permits a waiver, however, when the person the

noncitizen smuggled was the noncitizen’s spouse or other

immediate relative. The waiver is further explained in

§ 1182(d)(11): “the Attorney General may, in his discretion

. . . waive application of [§ 1182(a)(6)(E)(i)] . . . if the alien

15

has [smuggled] only an individual who at the time of

such action was the alien’s [spouse or other immediate

relative] to enter the United States in violation of law.”

Id. § 1182(d)(11) (emphasis added). Federal courts and

the Board of Immigration Appeals hold that the waiver

only applies if the individual smuggled was a spouse or

other immediate relative when the smuggling occurred.

See, e.g., Moran v. Ashcroft, 395 F.3d 1089, 1090 (9th Cir.

2005) (“Because Moran and his wife were married after

he helped her enter the country illegally, he does not fall

within the exception to the alien smuggling provision

. . . .”), overruled on other grounds by Sanchez v. Holder,

560 F.3d 1028 (9th Cir. 2009); In re Farias-Mendoza, 21 I.

& N. Dec. 269, 282, 1997 BIA LEXIS 22, at *4 (BIA May

7, 1997) (“At the time the respondent assisted her current

husband in entering the United States in violation of law,

she was not married to him.”).

Likewise, § 1182(a)(6)(C)(ii)(II) provides that a

noncitizen is not inadmissible for making a false claim of

citizenship if his parents naturalized before he turned 16

and he “reasonably believed at the time of making such

representation that he [] was a citizen.” 8 U.S.C. § 1182(a)

(6)(C)(ii)(II) (emphasis added). Courts also interpret “at

the time” in this provision to mean “when.” See, e.g.,

Muratoski v. Holder, 622 F.3d 824, 828 (7th Cir. 2010)

(rejecting the noncitizen’s argument that he reasonably

believed he was a citizen at the time he obtained a

falsified passport and subsequently made a false claim of

citizenship); Adrien v. U.S. Att’y Gen., 194 F. App’x 748,

751 (11th Cir. 2006) (agreeing with the BIA that there was

no evidence the noncitizen’s “memory problems existed at

the time of his [IJ] hearing”). 5

5 The government’s position in this case is at odds with its

position on waivers for smuggling family members under § 1182(d)

16

T he Ni nt h C i r c u it ’s hold i ng con f l ic t s w it h

interpretations of the same language with the same

meaning. Because of the other holdings interpreting “at

the time” differently (and correctly), resolving the question

presented has implications for other provisions in § 1182

and related immigration and terrorism statutes. See, e.g.,

Intelligence Reform and Terrorism Prevention Act of

2004, 18 U.S.C. § 2339D (imposing criminal liability upon

a person who “knowingly receives military-type training

from or on behalf of any organization designated at the

time of the training [as a foreign terrorist organization]”)

(emphasis added).

II. THE DECISION BELOW BUILDS ON A N

EXISTING CIRCUIT SPLIT.

While the district court applied the Ninth Circuit’s

decision in Janjua v. Neufeld, the court of appeals’

decision below took it further, building on the Ninth and

Fifth Circuits’ split on collateral estoppel in asylum and

adjustment of status cases. Pet. App. 3a.

In Janjua, much like in this case, a noncitizen who

obtained asylum later sought adjustment of status. 933

F.3d at 1063. At the time of his asylum application, Janjua

disclosed his former involvement with the Muhair Qaumi

Movement (MQM), a political group in Pakistan. Id.

(11). In the latter, it does not retroactively deem a noncitizen’s

after-acquired spouse to be their spouse at the time of smuggling,

which makes sense because such an interpretation would run

afoul of the statute’s plain language. Same with its position on

false claims under § 1182(a)(6)(C)(ii)(II). These contradictory

interpretations of the same language violate many tenets of

statutory construction. See infra Section III.

17

During his subsequent adjustment of status proceedings,

Janjua argued that the government was collaterally

estopped from denying his application on the grounds that

he had provided material support to MQM, which later

qualified as a Tier III terrorist organization. Id. The Ninth

Circuit in Janjua first concluded that collateral estoppel

applies if a claim is “actually and necessarily litigated.”

Id. at 1065. The court considered an issue to be actually

litigated when it was “raised, contested, and submitted

for determination.” Id. (citing Restatement (Second) of

Judgments § 27, cmt. d (A m. L. Inst. 1982)). Because the

Tier III definition was not invented until after Janjua’s

asylum hearing, the court held that the issue was not

actually litigated, and thus, collateral estoppel did not

apply to the government’s ground for denial. Id. at 1067.

The Janjua court ignored that the definition of a Tier

III terrorist organization hinges on whether the group

“engaged in terrorist activity,” a term already defined by

the INA at the time of his asylum proceedings and which

Congress had not significantly changed in the PATRIOT

Act.

The Fifth Circuit in Amrollah v. Napolitano had

already considered facts nearly identical to Janjua.

Namely, the government denied an asylee’s application

for permanent resident status on the ground that he

engaged in terrorist activity by providing material

support to a Tier III terrorist organization. 710 F.3d

568, 571 (5th Cir. 2013). But in contrast to Janjua, the

Fifth Circuit held that the government was collaterally

estopped from raising this ground of inadmissibility

because the definition of “engage in terrorist activity”

under the existing statute was not “significantly different”

from the amended definition in the PATRIOT Act. Id.

18

at 573. The Fifth Circuit recognized that although the

PATRIOT Act and REAL ID Act amended the labels

applied to assess a noncitizen’s inadmissibility, they did

not materially affect the definitions of “engage in terrorist

activity” or “terrorist organization.” Id. at 571. The legal

analysis before and after the amendments is the same.

Consequently, Janjua is wrong about collateral estoppel

in the § 1182 context.

In this case, the district court found that Janjua

effectively barred Mr. Khalil’s collateral estoppel

argument, in part because it concluded that “the receipt

of military-style training from a Tier III organization was

not a basis for inadmissibility [and thus, could not have

been actually litigated] until the REAL ID Act became

law in May 2005.” Pet. App. 10a (“Janjua indicates that

whether Plaintiff was inadmissible for receiving militarytype training from a Tier III terrorist organization could

not have been actually litigated because any IJ could not

have considered inadmissibility on those grounds until

they were added to § 1182 in 2001 and 2005, respectively.”)

(cleaned up). But because the issue of whether Mr. Khalil

engaged in terrorist activity was actually litigated at the

asylum stage, the first two grounds of inadmissibility

(material support of terrorism and engaging in terrorist

activity) should have been barred by collateral estoppel.

See Amrollah, 710 F.3d at 571-73.

The Ninth Circuit also applied Janjua’s collateral

estoppel holding and then went a step further by concluding

that § 1182(a)(3)(B)(i)(VIII) applied retroactively to

military-type training received from a group that was

not considered a terrorist organization at the time of the

training. But unlike the district court, the court of appeals

19

appeared to recognize the similarity between the first two

grounds and focused its analysis on the third ground of

inadmissibility—military-type training. Pet. App. 3a-4a.

The court effectively took the bait that USCIS dropped

when it belatedly added military-type training to its final

denial. In conjunction with the incongruence caused by

the Janjua-Amrollah split, the Ninth Circuit’s decision

below leaves the government free to turn its back on wartime allies by arbitrarily labeling them as terrorists and

denying them the ability to adjust status.

III. THE DECISION BELOW IS WRONG.

Multiple principles of statutory interpretation

reveal that the Ninth Circuit’s decision is based on an

erroneous reading of 8 U.S.C. § 1182(a)(3)(B)(i)(VIII) and

a misunderstanding of retroactivity in the REAL ID Act.

1. The court of appeals ignored the plain language

of the military-type training provision. In statutory

construction cases, courts must first “determine whether

the language at issue has a plain and unambiguous

meaning with regard to the particular dispute in the

case.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450

(2002) (concluding that “related person” was unambiguous

in the Coal Act). If it does, courts are obliged to “apply

the statute according to its terms.” Carcieri v. Salazar,

555 U.S. 379, 387 (2009) (applying the ordinary meaning

of the word “now” in the Indian Reorganization Act);

see also Barber v. Gonzales, 347 U.S. 637, 643 (1954)

(“In the absence of explicit language showing a contrary

congressional intent, we must give technical words in

deportation statutes their usual technical meaning.”).

“[F]or where, as here, the statute’s language is plain, ‘the

20

sole function of the courts is to enforce it according to its

terms.’” United States v. Ron Pair Enters., 489 U.S. 235,

241 (1989) (quoting Caminetti v. United States, 242 U.S.

470, 485 (1917)).

The key statutory language at issue in this case

is “at the time.” 8 U.S.C. § 1182(a)(3)(B)(i)(VIII). The

meaning of this phrase has significant implications for

Mr. Khalil and countless other noncitizens. MerriamWebster defines the phrase “at the time of” to mean

“when (something) happened.” At the time of (something),

M erriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/at% 20the%20time%20of%20

%28something%29 (last visited June 14, 2021). Similarly,

the leading dictionary defining words and idioms for

English learners defines “at the time” to mean “at a

particular moment or period in the past when something

happened, especially when the situation is very different

now.” At the time, Longman Dictionary of Contemp. Eng.,

https://www.ldoceonline.com/dictionary/at-the-time (last

visited June 14, 2021). And Garner’s Modern English

Usage describes the phrases “at the time (that)” and “at

the time (when)” as “invariably verbose for when.” At the

time (that); at the time (when), Garner’s Modern English

Usage (4th ed. 2016) (emphasis in original).

Section 1182(a)(3)(B)(i)(VIII) states that the terrorist

activities inadmissibility ground includes “military-type

training . . . from or on behalf of any organization that,

at the time the training was received, was a terrorist

organization . . . .” 8 U.S.C. § 1182(a)(3)(B)(i)(VIII).

Interpreting the statute’s language by its ordinary and

common meaning, a noncitizen is inadmissible for terrorist

activities if he received military-type training from an

21

organization that was considered a terrorist organization

when he was receiving the training. See Perrin v. United

States, 444 U.S. 37, 42 (1979) (beginning analysis with the

ordinary meaning of the term “bribery”). The meaning

of “at the time” is plain and unambiguous. 6 Indeed,

this Court frequently uses the phrase while discussing

statutory construction; e.g., “It’s a fundamental canon

of statutory construction that words generally should

be interpreted as taking their ordinary meaning at the

time Congress enacted the statute.” New Prime Inc. v.

Oliveira, 139 S. Ct. 532, 539 (2019) (cleaned up); see also

Bostock v. Clayton Cty., 140 S. Ct. 1731, 1738 (2020) (“This

Court normally interprets a statute in accord with the

ordinary public meaning of its terms at the time of its

enactment.”).7 The Ninth Circuit essentially wrote “at the

time” out of this statute.

6 Because “at the time” is unambiguous, courts need not

consider the legislative history. Hughes Aircraft Co. v. Jacobson,

525 U.S. 432, 438 (1999) (explaining that its statutory construction

“analysis begins with the language of the statute” and “where the

statutory language provides a clear answer, it ends there as well”).

But even if they did, the legislative history does not address the

meaning of “at the time” in § 1182(a)(3)(B)(i)(VIII). To the extent

the Congressional Record offers any insight into Congress’s intent,

it indicates that Congress sought to stop terrorists like those

who exploited asylum laws to enter the U.S. and commit the 9/11

attacks, not noncitizens who fought alongside the U.S. in armed

conflicts in the 1980s. See 151 Cong. Rec. S3775 (2005).

7 Likewise, Article II, Section 1 of the Constitution, known

as the “Eligibility Clause,” contains an exemption that permitted

persons (i.e., founders and men who served in the Revolutionary

War) not born in the U.S. to become president so long as they were

citizens “at the time” the Constitution was ratified. U.S Const. art.

II, § 1 (“No person except a natural born Citizen, or a Citizen of

the United States, at the time of the Adoption of this Constitution,

shall be eligible to the Office of President.”).

22

As discussed supra, USCIS claimed that beginning

in the late 1980s, Jamiat engaged in activities that render

it a Tier III terrorist organization. Pet. App. 18a-21a. But

Mr. Khalil did not receive military-type training at that

time. Id. at 17a. Rather, as the government conceded, he

received military-type training in the early to mid-1980s,

when Jamiat was not considered a terrorist organization

and would not have qualified as a Tier III terrorist

organization. See id. The Ninth Circuit, by concluding

that § 1182 applies to Mr. Khalil’s receipt of militarytype training, ignored the plain meaning of the statute

requiring that the group be a terrorist organization “at

the time” of the training.

2. The court of appeals’ interpretation also renders the

statutory language superfluous. It is a basic interpretative

canon that statutes should be read “so that effect is given

to all [] provisions, so that no part will be inoperative

or superfluous, void or insignificant.” Rubin v. Islamic

Republic of Iran, 138 S. Ct. 816, 824 (2018). Similarly,

because identical phrases are treated as having the same

meaning in a statute, rendering a phrase surplusage in

one provision has consequences for other provisions. Pa.

Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 561-62

(1990) (“Our cases express a deep reluctance to interpret

a statutory provision so as to render superfluous other

provisions in the same enactment.”). And courts should

presume that “Congress acts intentionally and purposely

when it includes particular language in one section of

a statute but omits it in another.” BFP v. Resol. Tr. Corp.,

511 U.S. 531, 537 (1994).

The court of appeals in this case failed to apply these

established tenets of statutory construction. It treated “at

23

the time” as superfluous. There is no need for Congress

to specify that an organization was considered a terrorist

organization at the time the noncitizen received the

military-type training if the government need not make

such a showing to deem a noncitizen inadmissible under

§ 1182. Put another way, if all the government must show

is that at some point the organization was a terrorist

organization under § 1182(a)(3)(B)(vi), the words “at the

time” have no meaning. This interpretation is not only

wrong but has the added risk of rendering the same

language superfluous in other provisions of § 1182. See,

e.g., 8 U.S.C. §§ 1182(a)(6)(C) (using the phrase “at the

time”), (a)(8) (same).

The Ninth Circuit’s decision also implies that

Congress’s inclusion of “at the time” in § 1182(a)(3)(B)

(i)(VIII) was a thoughtless technicality, even though

Congress plainly omitted those words in all other

terrorism-related provisions of §1182(a)(3). By amending

this part of the INA to include military-type training but

with a qualification—at the time—courts must presume

that Congress added the language intentionally. Based

on its dissimilarity with those other terrorism-related

grounds of inadmissibility, it is apparent Congress

intended to protect war-time allies who received militarytype training from and alongside U.S. troops in conflicts

around the world.

3. The court of appeals disregarded the centuries-old

presumption against retroactivity of statutes. See Kaiser

Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827,

842-44, 855-56 (1990) (Scalia, J., concurring) (explaining

that statutes must not be applied retroactively unless

Congress clearly states otherwise dates back to “the

24

beginning of the Republic and indeed since the early

days of the common law”); Soc’y for the Propagation of

the Gospel v. Wheeler, 2 Gall. 105, 22 F. Cas. 756, F. Cas.

No. 13156 (C.C.N.H. 1814) (Story, J.) (quoting the New

Hampshire bill of rights’ declaration that “retrospective

laws are highly injurious, oppressive and unjust”). This

legal doctrine exemplifies the considerations of fair notice

and reasonable reliance provided by both the Ex Post

Facto Clause and the Due Process Clause. Ventura v.

Sessions, 907 F.3d 306, 313 (5th Cir. 2018); see also INS

v. St. Cyr, 533 U.S. 289, 324 (2001) (“As our cases make

clear, the presumption against retroactivity applies far

beyond the confines of the criminal law.”), superseded

by statute on other grounds, REAL ID Act of 2005, 119

Stat. 310, 8 U.S.C. § 1252(a)(5). And it reflects the concern

that lawmakers’ “responsivity to political pressures poses

a risk that [they] may be tempted to use retroactive

legislation as a means of retribution against unpopular

groups or individuals.” Landgraf v. Usi Film Prods.,

511 U.S. 244, 267 (1994). As a result, “the legal effect of

conduct should ordinarily be assessed under the law that

existed when the conduct took place.” Id. at 265.

There is no dispute that this case “implicates a

federal statute enacted after the events in the suit.” Id.

Accordingly, the retroactivity question here presents

itself in two ways. The first is simple and surely calls for

a “yes” answer: Does § 1182(a)(3)(B)(i)(VIII) retroactively

apply to military-type training taking place before the

Act’s May 2005 passage? The second, on the other hand,

is not so clear: Does § 1182(a)(3)(B)(i)(VIII) retroactively

deem a noncitizen inadmissible for receiving military-type

training from a terrorist organization when the group

was not considered a terrorist organization at the time of

25

the training? To answer this second question, the lower

courts should have applied Landgraf, which announced

the current standard for retroactivity with a two-part

inquiry. Id. at 280-81. Initially, courts must ask “whether

Congress has expressly prescribed the statute’s proper

reach.” Id. at 280. “Cases where this Court has found truly

‘retroactive’ effect adequately authorized by statute have

involved statutory language that was so clear that it could

sustain only one interpretation.” St. Cyr, 533 U.S. at 316-17

(quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)). If

the text expressly and unambiguously states that it applies

to preenactment conduct, the inquiry ends and courts

should apply the law retroactively as stated. Landgraf, 511

U.S. at 281. In the absence of express language, courts

next determine if the statute has a retroactive effect, “i.e.,

whether it would impair rights a party possessed when

he acted, increase a party’s liability for past conduct, or

impose new duties with respect to transactions already

completed.” Id. If the answer is yes, courts apply the

traditional presumption against retroactivity “absent

clear congressional intent favoring such a result.” Id.; see

also Vartelas v. Holder, 566 U.S. 257, 266 (2012) (applying

the presumption against retroactivity because IIRIRA

attached a new disability to the noncitizen by denying

him reentry).

As noted, the Ninth Circuit is correct that the REAL

ID Act expressly provides it “shall apply to . . . acts

and conditions constituting a ground for inadmissibility

. . . occurring or existing before, on, or after [May 11,

2005].” 8 U.S.C. § 1182 note; Pet. App. 3a. This means that

the provision applies to conduct taking place before its

enactment. As a straightforward example of the REAL ID

Act’s retroactivity, a noncitizen seeking admission today

26

who received military-type training from Al-Qaeda in

2003 would be inadmissible under § 1182(a)(3)(B)(i)(VIII)

because Al-Qaeda was considered a terrorist organization

in 2003 (designated in 1997).

The court of appeals incorrectly concluded, however,

that retroactivity also means the statute applies to a

noncitizen who received military-type training from a

group that was not a terrorist organization at the time

of the training but was later deemed to be one, whether

designated or undesignated. Pet. App. 3a-4a. Indeed,

the Ninth Circuit’s confusion over retroactivity in this

provision was apparent during oral argument, when Judge

Tallman said:

To me, your client is in a very sympathetic

position. I don’t understand why somebody—I

mean, he was our terrorist. . . . He was our

guy. And now Congress is saying well maybe

then but retroactively not now. I don’t know

how to get around that the statutory change is

applicable before, now, and after.

Oral argument at 10:42, Khalil v. Cissna, No. 20-55323, 2021

U.S. App. LEXIS 7298 (9th Cir. Mar. 3, 2021) https://www.

ca9.uscourts.gov/media/view.php?pk_id=0000036505.

Contrary to the court of appeals’ holding, the provision’s

“at the time” language leads to the opposite conclusion.

Because the statute does not expressly retroactively

deem groups as terrorist organizations in § 1182(a)(3)

(B)(i)(VIII) and because the congressional history gives

no clear guidance, the traditional presumption against

retroactivity must control. Thus, to hold that a noncitizen

is inadmissible under § 1182(a)(3)(B)(i)(VIII), the group

27

from which he received military-type training must have

been a terrorist organization at the time of the training.

4. Similarly, the court of appeals’ interpretation

violates the immigration rule of lenity. See Brian G. Slocum,

The Immigration Rule of Lenity and Chevron Deference,

17 Geo. Immigr. L.J. 515, 519-20 (2003) (discussing this

Court’s history of construing immigration statutes

narrowly in favor of noncitizens). 8 If, after considering

the plain language and legislative history, there remains

any doubt about the meaning of the statute, courts must

construe its language in favor of the noncitizen. INS v.

Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (recognizing

the “longstanding principle of construing any lingering

ambiguities in deportation statutes in favor of the

[noncitizen]”). This Court held in Fong Haw Tan v. Phelan

that because “deportation is a drastic measure . . . we

will not assume that Congress meant to trench on [the

noncitizen’s] freedom beyond that which is required by the

narrowest of several possible meanings of the words used.”

333 U.S. 6, 10 (1948); see also Sessions v. Dimaya, 138 S.

Ct. 1204, 1213 (2018) (explaining that because deportation

is “a particularly severe penalty” and often “intimately

related to the criminal process,” courts should apply the

standard for criminal laws to immigration laws that make

a noncitizen deportable).

8 Because “at the time” in § 1182(a)(3)(B)(i)(VIII) is

unambiguous, the government’s interpretation is not entitled

to deference under Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984).

28

DHS’s determination that Mr. Khalil is inadmissible

under § 1182(a)(3) is a similarly drastic outcome that

restricts his immigration status and leaves him vulnerable

to deportation, a severe penalty authorized by 8 U.S.C.

§ 1227 and § 1229a. As a statute seeking to render

noncitizens inadmissible and immediately removable on

terrorism-related grounds, the lower courts should have

construed any potential retroactive application of § 1182(a)

(3)(B)(i)(VIII) in Mr. Khalil’s favor. See H.R. Rep. No.

109-72 (2005).

IV. THE DECISION BELOW BETRAYS WAR-TIME

ALLIES AND MAKES AMERICA LESS SAFE.

The Ninth Circuit’s decision now stands as the

authority dictating when the § 1182 military-type training

ground of inadmissibility applies to noncitizens. And

its holding, which renders the provision’s “at the time”

language meaningless, has precisely the implications that

the panel openly lamented during oral argument:

I’m also worried that, boy if our adversaries got

hold of this, it would be great publicity for them

to say if you fight for the United States at the

United States’ request with weapons furnished

by the United States, the United States will

betray you. It will treat you as a terrorist. . . .

It seems to me we’re constantly using cats’

paws, as most big countries do, to fight our

battles for us. And, uh, gosh what a message to

people like the Montagnards in Vietnam years

ago and the Kurds and the Anticommunists in

Afghanistan in the ’70s and ’80s.

29

Oral argument at 28:04, Khalil v. Cissna, No. 2055323, 2021 U.S. App. LEXIS 7298 (9th Cir. Mar.

3, 2021), https://w w w.ca9.uscourts.gov/media/view.

php?pk_id=0000036505. Thus, while the Ninth Circuit’s

interpretation of the statute was incorrect, the panel’s

statements highlight the important foreign policy issue

that affects individuals like Mr. Khalil as well as the next

generation of U.S.-supported “freedom fighters”—groups

and individuals in the Middle East that fought alongside

the U.S. in the War on Terror. See Stephen M. Shapiro

et al., Supreme Court Practice § 4.13 (11th ed. 2019)

(“Significant federal statutory questions implicating

foreign affairs may give rise to review on certiorari.”).

Indeed, the U.S. has for decades relied on groups to fight

for democratic interests in countries around the globe.

Christian Parenti, America’s Jihad: A History of Origins,

28 (3) Soc. Just. 31, 31-33 (2001) (discussing the United

States’ support and funding of groups to fight communism

during the Soviet-Afghan War). And there are no greater

examples in the last 50 years of the U.S. government

receiving support from allied militia groups than those in

Afghanistan and Iraq. Jamiat is just one such ally.

Likewise, this issue keeps coming to the forefront as

it relates to our country’s more recent coalitions in the

Middle East. In 2007, a year before Congress passed the

Refugee Crisis in Iraq Act, the House Subcommittee on

the Middle East and South Asia discussed the United

States’ obligation to support Iraqi refugees who served

U.S. forces: “The people who put their lives and lives of

their families on the line by assisting the United States

Government, our armed forces and our coalition partners

[in the War on Terror], must not be abandoned in their

hour of need.” Iraqi Volunteers, Iraqi Refugees: What is

30

America’s Obligation: Hearing Before the H. Subcomm.

on the Middle E. and S. Asia, Comm. on Foreign Affs.,

110th Cong. 3 (2007) (statement of Rep. Gary Ackerman,

Chairman, H. Subcomm. on the Middle E. and S. Asia).

This dilemma has returned in full force again in 2021, with

the U.S. withdrawing from Afghanistan and evacuating

war-time allies who served alongside our troops, thereby

putting those allies in imminent danger and requiring

them to seek refuge. See Jonathan Landay and Idrees

Ali, U.S. to start evacuating some under-threat Afghan

visa applicants, Reuters (July 14, 2021), https://www.

reuters.com/world/exclusive-us-expected-announcestart-evacuation-afghan-visa-applicants-2021-07-14/

(discussing Operation Allies Refuge). Congressional and

executive efforts to support those who assisted us in the

War on Terror reflect the longstanding American interest

in maintaining credibility abroad and “making good on our

obligation to help [our war-time allies].” Interview with

Antony J. Blinken, U.S. Sec’y of State, in Brussels, Belg.,

U.S. Dep’t of State (June 13, 2021), https://www.state.gov/

secretary-antony-j-blinken-on-cnns-state-of-the-unionwith-dana-bash/. USCIS’s denial, the Ninth Circuit’s

interpretation of § 1182, and the ambiguity created by its

ruling undermine those efforts and ignore our obligations

to these allies.9 See Jenna Krajeski, A victim of terrorism

9 Moreover, to deem noncitizens inadmissible for receipt of

military-type training from a “terrorist organization”—when the

group was not a terrorist organization at the time—undermines

the executive’s constitutional power to set U.S. foreign policy

and recognize coalitions abroad (such as the Reagan Doctrine).

See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304,

319 (1936) (“In this vast external realm, with its important,

complicated, delicate and manifold problems, the President alone

has the power to speak or listen as a representative of the nation.”).

31

faces deportation for helping terrorists, New Yorker

(June 12, 2019), https://www.newyorker.com/news/newsdesk/a-victim-of-terrorism-faces-deportation-for-helpingterrorists (noting the case of an Iraqi translator for the

U.S. military who was denied a green card based on his

membership in the Kurdish Democratic Party because it

was recently categorized as an “undesignated terrorist

group”).

A final glaring conundrum with the government’s

position in this case is that it seeks to label Mr. Khalil

inadmissible as a terrorist but has claimed that it will

not seek to remove him or revoke his asylum status.

More broadly, based on the Ninth Circuit’s interpretation

of § 1182(a)(3), the government may deny noncitizens

adjustment of status on terrorism-related inadmissibility

grounds but keep those “terrorists” in the country as

asylees—precisely what the REAL ID Act seeks to

prevent. This interpretation requires review because

it violates established rules of statutory interpretation,

exacerbates a circuit split, betrays allies seeking refuge,

and perhaps most importantly, makes America less safe.

Such an outcome undermines the purpose of the REAL

ID Act.

32

CONCLUSION

In reflecting on the government’s insistence that Mr.

Khalil is inadmissible after his years of fighting alongside

the United States, the panel below observed, “What a

message.” The question presented here asks whether this

is truly the message that Congress intended to send when

it passed the REAL ID Act.

This Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

K athryn H. Brady

Counsel of Record

A llie J. Hallmark

Franchel D. Daniel

Charles D. Swift, Director

Constitutional Law Center

for Muslims in A merica

100 North Central Expressway,

Suite 1010

Richardson, TX 75080

(972) 914-2507

kbrady@clcma.org

Counsel for Petitioner

APPENDIX

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT, FILED MARCH 12, 2021

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 20-55323

MOHAMMAD SHARIF KHALIL,

Plaintiff-Appellant,

v.

L. FRANCIS CISSNA, IN HIS CAPACITY

AS DIRECTOR OF U.S. CITIZENSHIP AND

IMMIGRATION SERVICES; et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

March 3, 2021, Argued and Submitted,

Pasadena, California

March 12, 2021, Filed

Before: KLEINFELD, TALLMAN, and OWENS, Circuit

Judges.

2a

Appendix A

MEMORANDUM*

Mohammad Sharif Khalil appeals from the district

court’s judgment granting United States Citizenship and

Immigration Services’ (“USCIS”) motion to dismiss. As

the parties are familiar with the facts, we do not recount

them here. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

As a threshold matter, we “[a]ssum[e] without deciding”

that we have jurisdiction to review this appeal. See, e.g.,

Janjua v. Neufeld, 933 F.3d 1061, 1062 (9th Cir. 2019). Thus,

we need not decide whether the agency is correct that its

decision was discretionary and therefore foreclosed from

judicial review under 8 U.S.C. § 1252(a)(2)(B)(ii).

Khalil argues that USCIS was estopped from finding

him inadmissible in 2019 because, by granting him

asylum in 2000, the agency had “actually and necessarily”

decided he was not “engaged in a terrorist activity.” See

8 U.S.C. § 1182(a)(3)(B)(i). Khalil further contends that

the intervening changes in the law during that 19-year

period did not sufficiently alter the terrorism-related

grounds for inadmissibility to undermine his ability to

assert collateral estoppel.

We disagree. In 2005, Congress passed the REAL

ID Act, which rendered inadmissible any noncitizen who

“received military-type training . . . from or on behalf

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

3a

Appendix A

of any organization that, at the time the training was

received, was a terrorist organization.” Pub. L. No. 109-13,

§ 103(a), 119 Stat. 307 (May 11, 2005) (codified as amended

at 8 U.S.C. § 1182(a)(3)(B)(i)(VIII)). Receiving “militarytype training” from a “terrorist organization” was thus

an entirely new ground for inadmissibility that did not

exist when Khalil received asylum in 2000. For issue

preclusion to apply, an issue must have been “identical in

both proceedings” and “actually litigated and decided in

the prior proceedings.” Janjua, 933 F.3d at 1065 (citations

omitted). “[A]n issue was actually litigated only if it was

raised, contested, and submitted for determination in the

prior adjudication.” Id. at 1062. Khalil’s inadmissibility

for receiving “military-type training” from a terrorist

organization could not have been “actually litigated and

decided” in 2000, as “military-type training” was not a

ground for inadmissibility at the time. The fact that this

provision also referenced other changes in the law, see

USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 411,

115 Stat. 347-48 (Oct. 26, 2001) (codified as amended at 8

U.S.C. § 1182(a)(3)(B)(vi)(III)) (expanding the definition

of “terrorist organization” to include the “Tier III”

category), does not change this basic fact.

Khalil’s primary argument is that this new provision

cannot be applied retroactively to him. But the REAL

ID Act explicitly permits retroactivity under these

circumstances. Pub. L. No. 109-13, § 103(d), 119 Stat. 30809 (May 11, 2005) (codified as amended at 8 U.S.C. § 1182

(note)) (stating that the REAL ID Act’s amendments “shall

apply to . . . acts and conditions constituting a ground for

inadmissibility . . . occurring or existing before, on, or

after [May 11, 2005]”).

4a

Appendix A

Finally, the district court did not abuse its discretion

when it denied Khalil’s request for limited factual

discovery to establish “with certainty” whether the

terrorism-related grounds for inadmissibility were

“actually litigated” in his asylum proceedings. Because

the “military-type training” ground did not exist until

2005, the issue could not have been “actually litigated” in

2000. Thus, even if the record showed that the agency was

estopped on some of the other issues on appeal, it could not

change the result as to Khalil’s “military-type training.”

Like the district court, we are “not unsympathetic

to [Khalil’s] predicament as there are many equities that

favor his cause.” For the above reasons, however, we have

no choice but to affirm.

AFFIRMED.

5a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE CENTRAL

DISTRICT OF CALIFORNIA, FILED

JANUARY 21, 2020

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CV 18-7903-DMG (KSx)

MOHAMMAD SHARIF KHALIL,

v.

KEVIN MCALEENAN, et al.

January 21, 2020, Decided

January 21, 2020, Filed

Present: The Honorable DOLLY M. GEE,

UNITED STATES DISTRICT JUDGE.

CIVIL MINUTES—GENERAL

P r o c e e d i n g s: I N CH A M BER S - OR DER R E

DEFENDANTS’ MOTION TO DISMISS [32]

After Defendants filed a Motion to Dismiss (“MTD”)

Plaintiff’s First Amended Complaint on May 9, 2019 [Doc.

# 32], the Court issued an Order on September 18, 2019

requesting supplemental briefing concerning a Ninth

Circuit decision, Janjua v. Neufeld, 933 F.3d 1061 (9th

Cir. 2019), that was published after the parties completed

6a

Appendix B

their initial briefing on the MTD.1 [Doc. # 36.] The parties

have since submitted their supplemental briefs. [Doc. ##

37 (“Defs.’ Suppl. Br.”), 38 (“Pl.’s Suppl. Br.”).] For the

following reasons, the Court GRANTS Defendants’ MTD.

I.

THE COURT WILL NOT RECONSIDER

ITS RULING ON ITS JURISDICTION TO

DECIDE THIS MATTER

As an initial matter, Defendants’ supplemental brief

exceeds the scope of the issue that the Court ordered

the parties to brief. Defendants submitted briefing on

Janjua’s impact on this action, but they also reiterated

their MTD’s principal argument—that USCIS’ decision

to deny Plaintiff’s application to adjust status as a matter

of discretion renders the denial judicially unreviewable.

Defs.’ Suppl. Br. at 5-6.

The request for supplemental briefing on Janjua’s

effect on this case was not an invitation for a de facto motion

for reconsideration of the Court’s prior jurisdictional

ruling. Defendants have already had ample opportunity to

brief the issue of the Court’s jurisdiction to hear this case

and, as stated in the September 18 Order, have not shown

that the Court lacks jurisdiction to decide whether USCIS

is estopped from denying Plaintiff’s application. [Doc. #

36 at 5-6.] The Court shall not disturb that conclusion now.

1. The factual and procedural background relevant to the

MTD is set forth in the Court’s September 18 Order.

7a

Appendix B

II.

THE ISSUES ON WHICH DEFENDANTS

BASED THEIR DENIAL OF PLAINTIFF’S

APPLICATION WERE NOT “ACTUALLY

LITIGATED” UNDER JANJUA

Defendants argue that collateral estoppel does not

preclude them from denying Plaintiff’s application to

adjust status because the Immigration Judge (“IJ”) who

granted Plaintiff asylum could not have considered certain

grounds for inadmissibility that were codified by the USA

PATRIOT Act and REAL ID Act after the IJ made his

asylum decision. 2

Plaintiff responds that, because the pre-and postPATRIOT Act versions of 8 U.S.C section 1182 (the statute

governing inadmissibility) include similar definitions

of “terrorist activity,” Plaintiff could not have received

asylum “unless the IJ first determined that the applicant

had not engaged in terrorist activity.” Pl.’s Opp. at 4.

Plaintiff’s citations in support of this argument, however,

focus on whether the issue of an asylum seeker’s terrorist

activity was necessarily or impliedly decided in his asylum

proceedings. See id. at 3-4 (citing (“Accordingly, before

2. As set out in the Court’s September 18 Order, the IJ granted

Plaintiff asylum in March 2000. Federal law did not recognize the

provision of support to a Tier III terrorist organization as a basis

for inadmissibly until President Bush signed into law the USA

PATRIOT Act in October 2001. Similarly, the receipt of militarystyle training from a Tier III organization was not a basis for

inadmissibility until the REAL ID Act became law in May 2005.

8a

Appendix B

the IJ could grant Khan’s application for asylum he was

required to determine that Khan had not engaged in a

terrorist activity.”) and Islam v. U.S. Dep’t of Homeland

Sec., 136 F. Supp. 3d 1088, 1092 (N.D. Cal. 2015) (“Because

the IJ 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.”)). As Janjua makes

clear, however, whether or not an issue was necessarily

decided in a previous proceeding, collateral estoppel does

not apply unless that issue was also actually litigated in

that proceeding. Janjua, 933 F.3d at 1066 (distinguishing

the two elements of collateral estoppel). The latter

requirement is the focus of Janjua’s discussion and the

Court’s request for supplemental briefing.

To satisfy the “actually litigated” requirement,

Plaintiff must show that the “question, issue, or fact”

that underlies Defendants’ denial of Plaintiff’s application

to adjust status, Oyeniran v. Holder, 672 F.3d 800, 806

(9th Cir. 2012), was “raised, contested, and submitted for

determination” before the IJ in the asylum proceedings.

Janjua, 933 F.3d at 1066.

The parties have differing conceptions of the pertinent

“question, issue, or fact” to which collateral estoppel may

apply in this context. Defendants define the questions

or issues narrowly—they argue that the questions of

whether Plaintiff was inadmissible due to “his provision

of material support to, or receipt of military training

from, a Tier III terrorist organization” could not have

been actually litigated in Plaintiff’s asylum proceeding

because neither activity was a basis for inadmissibility

9a

Appendix B

when Plaintiff received asylum. Defs.’ Suppl. Br. at 4;

see also First Amended Complaint [Doc. # 31], Ex. D

(“Final USCIS Decision”) at 6 (concluding that Plaintiff

is inadmissible for “having engaged in terrorist activity,”

having “provided material support to” a Tier III terrorist

organization, and “having received military-type training

from” a Tier III terrorist organization). Plaintiff, on the

other hand, takes a broader view—he alleges that the

issue of his “terrorism-related activity,” writ large, was

actually litigated before the IJ because he fully disclosed

his affiliation with Jamiat-i-Islami during his asylum

proceedings. Pl.’s Suppl. Br. at 5.

Janjua is more consistent with Defendants’ narrower

view. There, the Ninth Circuit examined whether the

plaintiff’s “terrorism-related inadmissibility was actually

litigated” in the prior proceedings by looking at whether

certain, more narrowly defined, questions were “raised,

contested, and submitted for determination” before the

IJ. Janjua, 933 F.3d at 1067. These questions included

whether the organization with which the plaintiff was

affiliated “qualifie[d] as a terrorist organization,”

whether the plaintiff “engaged in terrorist activity and

was inadmissible as a result,” and whether the plaintiff’s

“support for the [the organization] would make him

inadmissible.” Id. at 1067-68. The court held that it

“ma[de] sense” that these questions were not raised or

contested in the previous proceedings because these

bases for inadmissibility “did not exist at the time of the

hearing.” 3 Id.

3. Janjua also discussed the Ninth Circuit’s previous

decision in Paulo v. Holder, 669 F.3d 911, 917 (9th Cir. 2011). In

10a

Appendix B

Therefore, even assuming Plaintiff is correct that,

as a factual matter, he made his connections to Jamiat-iIslami known to the IJ in his asylum proceedings, Janjua

indicates that the “specific issues,” id. at 1068, of whether

Plaintiff was inadmissible for providing material support

to, or receiving military training from, a Tier III terrorist

organization could not have been actually litigated because

any IJ reviewing Plaintiff’s asylum application could not

have considered his potential inadmissibility on those

grounds until they were added to section 1182 in 2001 and

2005, respectively. See id. at 1068. The Court agrees with

Plaintiff that Janjua cannot be read to bar all collateral

distinguishing Paulo, Janjua suggested that collateral estoppel

may still apply if the government merely advances a “new

argument” for ineligibility for an immigration benefit, as opposed

to raising a new issue that renders an application ineligible.

Plaintiff does not address Paulo or Janjua’s discussion of it,

but the Court determines that Paulo is distinguishable, just as

it was in Janjua. In Paulo, the government raised an argument

against the plaintiff’s eligibility for an immigration benefit that

it could have raised in a prior proceeding, but did not. Paulo, 669

F. 3d at 917-918. Despite the government’s contention that this

“new” argument defeated issue preclusion, the court held that

“[t]he fact that a particular argument against [the plaintiff’s]

eligibility was not made by the government and not addressed by

the district court does not mean that the issue of [the plaintiff’s]

eligibility for . . . relief was not decided.” Id. (“If a party could

avoid issue preclusion by finding some argument it failed to raise

in the previous litigation, the bar on successive litigation would

be seriously undermined.”). Here, in contrast, the government

could not have made the arguments for inadmissibility on which

it based its denial of Plaintiff’s adjustment of status application

because the statutory grounds for those arguments did not exist

at the time the IJ granted Plaintiff asylum.

11a

Appendix B

estoppel arguments based on asylum determinations

before the PATRIOT Act or REAL ID Act became

effective. See Pl.’s Opp. at 5. But it appears to require

courts to determine, when reviewing collateral estoppel

arguments in this context, whether the pre-PATRIOT Act

and pre-REAL ID Act asylum proceedings involved the

“actual litigation” of issues upon which the government’s

later denial of an immigration benefit turns. If such

issues were not, or could not have been, actually litigated,

collateral estoppel cannot apply under Janjua. This is

such a case.

Plaintiff also requests “in the alternative” that the

Court permit “jurisdictional discovery” into whether “the

issue of terrorist activity was in fact actually litigated at

the asylum level.” Pl.’s Opp. at 7. If the question of whether

collateral estoppel applied in this case turned on a question

of fact, discovery would be necessary because courts may

not decide such questions at the pleading stage. Because

the Court can determine as a matter of law, however,

that the issues of whether Plaintiff provided material

support to, or received of military training from, a Tier

III terrorist organization were not actually litigated

during the asylum proceedings, any fact discovery into

the proceedings themselves would be futile.

The Court is not unsympathetic to Plaintiff ’s

predicament as there are many equities that favor his

cause. Janjua, however, is controlling Ninth Circuit

precedent and therefore the Court must apply it.

12a

Appendix B

III.

CONCLUSION

Because the Court determines that Plaintiff could not

cure the defects in his claims by alleging new or different

facts, leave to amend is DENIED. Knappenberger v. City

of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) (“Leave

to amend should be granted unless the district court

‘determines that the pleading could not possibly be cured

by the allegation of other facts.”).

For the foregoing reasons, Defendants’ MTD is

GRANTED with prejudice.

IT IS SO ORDERED.

13a

Appendix

C OF THE U.S.

APPENDIX C —

DECISION

CITIZENSHIP AND IMMIGRATION SERVICES,

DATED MARCH 21, 2019

U.S. Department of Homeland Security

U.S. Citizenship and Immigration Services

P.O. Box 82521

Lincoln, NE 68501-2521

U.S. Citizenship and Immigration Services

March 21, 2019

CHARLES SWIFT

CLCMA

833 EAST ARAPAHO ROAD STE 102

RICHARDSON, TX 75081

LIN1190312426

RE: MOHAMMAD SHARIF KHALIL

I-485, Application to Register Permanent Resident or

Adjust Status

DECISION

On January 31, 2011, you filed an Application to Register

Permanent Residence or Adjust Status (Form I-485)

in accordance with Section 209(b) of the Immigration

and Nationality Act (INA) (Title 8, United States Code,

section 1159). After consideration, it is the decision of

U.S. Citizenship and Immigration Services to deny your

Form I-485.

14a

Appendix C

Section 209(b) of the INA states in pertinent part:

The Secretary of Homeland Security or the

Attorney General, in the Secretary’s or the

Attorney General’s discretion and under such

regulations as the Secretary or the Attorney

General may prescribe, may adjust to the status

of an alien lawfully admitted for permanent

residence the status of any alien granted asylum

who(1) applies for such adjustment,

(2) has been physically present in the

United States for at least one year

after being granted asylum,

(3) continues to be a refugee within

the meaning of [INA] section 101(a)

(42)(A) of this title or a spouse or child

of such a refugee,

(4) is not firmly resettled in any

foreign country, and

(5) is admissible (except as otherwise

provided under subsection (c) of this

section) as an immigrant under this

chapter at the time of examination for

adjustment of such alien.

15a

Appendix C

The INA section 209(c) waiver of inadmissibility is not

available to aliens who are inadmissible under INA section

212(a)(3)(B) (terrorist activities).

Section 212(a)(3)(B) of the INA, as amended by the REAL

ID Act of 2005 states in pertinent part:

(i) In general. Any alien who(I) has engaged in a terrorist activity

... is inadmissible

INA section 212(a)(3)(B)(iv) defines “engage in terrorist

activity,” which includes at (I), in an individual capacity

or as a member of an organization “to commit or to incite

to commit, under circumstances indicating an intention to

cause death or serious bodily injury, a terrorist activity.”

INA section 212(a)(3)(B)(iii) defines “terrorist activity”

to include, in pertinent part: highjacking; kidnapping;

and the use of any explosive, firearm, or other weapon or

dangerous device (other than for mere personal monetary

gain) with the intent to endanger, directly or indirectly, the

safety of one or more individuals or to cause substantial

damage to property; and the attempt or threat to do any

of these activities.

INA section 212(a)(3)(B)(iv)(VI) includes in the definition

of “engaging in terrorist activity”: 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

16a

Appendix C

financial benefit, false documentation or identification,

weapons (including chemical, biological, or radiological

weapons), explosives, or training-(dd) 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.

Terrorist organizations are defined at INA section

212(a)(3)(B)(vi). Section 212(a)(3)(B)(vi)(III) defines an

undesignated terrorist organization as “a group of two or

more individuals, whether organized or not, which engages

in, or has a subgroup which engages in, the activities

described in subclauses (I) through (VI) of clause (iv)” of

INA section 212(a)(3)(B) (also referred to as “Tier III”

organizations).

INA section 212(a)(3)(B)(i) makes an alien inadmissible

who “(I) has engaged in a terrorist activity” and who

“(VIII) has received military-type training (as defined in

section 2339D(c)(1) of title 18, United States Code) from or

on behalf of any organization that, at the time the training

was received, was a terrorist organization.”

You stated on your Form I-589, Application for Asylum,

filed on February 18, 2000, that your father and uncles

worked closely with Jamiat Islami, an organization led

by Bemahuddin Rabbani. You stated that you joined the

17a

Appendix C

Jamiat Islami Mujahedin at the age of 15. You stated

that you became a fighter at the age of 18. You supported

Jamiat Islami in their resistance against the Communists

and their fighting against Hekmatyar and his Hezb-iIslami party. You worked with your uncle and you were a

Mujahedin fighter specialized in the use of shoulder-heldrocket launchers. You stated that in March 1995, you fled

to Pakistan. After three weeks in Pakistan, you arrived

in Germany on April 16, 1995.

On your Addendum to Form I-485, Part 3, Section B, you

stated that you and your family, through the association

of your uncle, assisted the U.S.-backed Mujahedin who

provided you with “paramilitary training.” You stated that

your family was a part of the overwhelming majority of

Afghans who opposed the Communist regime and assisted

in the way that they could.

You told the asylum officer that your entire family was

involved with Jamiat Islami and that you were a member

since the age of 15. At 18 years of age, while a Jamiat

fighter, you fought the communists from 1986 until 1987

including as a “rocket specialist” using shoulder-based

surface to air missiles. After that, you fought against

the party of Hekmatyar and his Hezb-i-Islamic party.

Additionally, you told the asylum officer during your

interview that you were a supporter of Rabbani and your

membership began in 1984 and ended in 1995.

Jamiat-i Islami is a complex, predominantly ethnic-Tajik,

Islamist organization with an approximately 50-year

history, which has included engaging in political activities

18a

Appendix C

as a political party, and organizing armed resistance

to the Soviets, to Communist Afghans, to the Taliban,

and to rival Mujahideen factions. One author has noted

that the organization was about 25 percent Pashtun (See

Afghanistan: A Cultural and Political History, Thomas

Barfield, p.237, Princeton University Press (2012)). At

times, Jamiat Islami has held the presidency and other

high-level offices in Afghanistan.

In the late 1980s, according to Afghan sources in Quetta,

the Mujahideen forces included those under the command

of Mullah Naqib of Jamiat-e Islami, who took some 60

soldiers into custody, and those under the command

of Mullah Farooq, also of Jamiat-e Islami, who took

30 soldiers into custody. The soldiers were reportedly

executed because “no one could guarantee that they

were good Muslims.” Interview with Afghan exile in

Washington, D.C., January 21, 1991. See The Forgotten

War: Human Rights Abuses and Violations of the Laws Of

War Since the Soviet Withdrawal, Human Rights Watch,

note 115, Feb. 1991; see also, By All Parties to the Conflict:

Violations of the Laws of War in Afghanistan, Human

Rights Watch, p.63-64, March 1988.

It is noted that there are also reports of Jamiat efforts to

curtail abuses of prisoners by commanders, and to hold

trials of prisoners accused of wrong-doing, albeit often

ending in execution. See Tears, Blood and Cries”; Human

Rights in Afghanistan Since the Invasion 1979-1984,

Helsinki Watch, p.204-205, Dec. 1984.

In March 1992, the government of Afghanistan, at that

time led by Najibullah, president of Afghanistan and

19a

Appendix C

head of the People’s Democratic Party of Afghanistan,

collapsed. Najibullah’s government forces put up no

resistance to the various Mujahideen groups and Kabul

was captured without fighting. However, Jamiat forces

battled with rival Mujahideen groups for control, resulting

in tens of thousands of civilians killed or injured in fighting

in Kabul in 1992-1993. For example, on April 24, [1992] as

Hekmatyar was about to seize control of the city, Massoud

and Dostum’s forces entered Kabul, taking control of most

government ministries. Jamiat attacked Hezb-e Islami

forces occupying the interior ministry and Presidential

Palace, pushing Hezb-e Islami south and out of the city.

There was shelling and street-to-street fighting through

April 25 and 26. See Blood-Stained Hands: Past Atrocities

in Kabul and Afghanistan’s Legacy of Impunity, Human

Rights Watch, Jul. 7, 2005 (hereafter Blood-Stained

Hands). Reports describe the shelling of civilian areas by

all parties to the conflict, including Jamiat. Human Rights

Watch reported that:

With respect to Wahdat, Ittihad, and Jamiat

hostilities in west Kabul, there is compelling

evidence that factions regularly and intentionally

targeted civilians and civilian areas for attack,

and recklessly and indiscriminately fired

weapons into civilian areas. There is little

evidence that the factions made meaningful

efforts during hostilities to avoid harming

civilians or stopped attacks once the harm to

civilians was evident. See Blood-Stained Hands.

A former high-level official in Shura-e Nazar

confirmed that Jamiat troops on the Mamorine

20a

Appendix C

mountain (the western peak next to Television

Mountain and above west Kabul) regularly

launched rockets and artillery into the civilian

areas of west Kabul in 1992 and 1993. See

Blood-Stained Hands.

Some witnesses further stated that Jamiat forces would

target civilians for recreation during the conflict and

abduct civilians for ransom. Further, “Human Rights

Watch interviewed scores of journalists, health workers,

aid workers, taxi drivers, civil servants, and soldiers who

witnessed widespread pillage and looting by Jamiat ...

forces after the Najibullah government fell.” See BloodStained Hands.

In February 1993, Jamiat carried out the “Afshar

Campaign” that involved massive artillery strikes on

civilian areas of Afshar followed by a ground attack that

included shelling fleeing civilians. Human Rights Watch

reported that:

The Afshar campaign was marked by widespread

a nd ser ious v iolat ions of i nt er nat iona l

humanitarian law. War crimes included attacks

on the civilian population and civilian objects,

killings, torture and other inhumane treatment,

rape, abductions and forced disappearances,

forced labor, and pillage and looting .... [T]here

is compelling evidence that the senior ... Jamiat

commanders involved in the Afshar campaign

are implicated in these violations. It is also

possible that some commanders may be liable

21a

Appendix C

for crimes against humanity. Illegal acts that

were part of a widespread or systematic attack

on a civilian population, such as the killing or

abduction of members of certain minorities,

may amount to crimes against humanity. See

Blood-Stained Hands.

There are reports on continued armed conflict and serious

human rights abuses committed by Jamiat forces during

Rabbani’s June 1992 to September 1996 Presidency. For

example:

On the night of February 11, 1993, Jamiat-i

Islami forces and those of another faction, Abdul

Rasul Sayyaf’s Ittihad-i Islami, conducted a

raid in West Kabul, killing and “disappearing”

ethnic Hazara civilians, and committing

widespread rape. Estimates of those killed

range from about seventy to more than one

hundred.

A group meets the definition of an undesignated terrorist

organization (Tier III) when it engages in terrorist

activity or has a subgroup that engaged in terrorist

activity, as defined in INA section 212(a)(3)(B). Jamiati-Islami has engaged in extensive combat with the

Soviet army, the army of the People’s Democratic Party

of Afghanistan (which led Afghanistan for a number

of years), other Mujahideen, the Taliban, and regional

militia. Therefore, Jamiat-i-Islami meets the definition of

a Tier III organization while it engaged in these activities,

including during the period you were involved with it, from

approximately 1982 to 1995.

22a

Appendix C

On November 16, 2018, you were issued a Notice of

Intent to Deny (NOID). USCIS informed you that you

are inadmissible under INA section 212(a)(3)(B)(i)(I)

for having engaged in terrorist activities as defined by

2l2(a)(3)(B)(iii)(V)(b) when, as a Mujahideen fighter, you

used a rocket launcher to endanger the safety of one or

more individuals. You are also inadmissible as defined by

212(a)(3)(B)(iv)(VI) for having provided material support

to Jamiat Islami by working with your uncle and fighting

with the organization.

USCIS explained that there are no existing exercises of

the Secretary’s discretionary exemption authority under

INA section 212(d)(3)(B) that apply to the terrorismrelated inadmissibility grounds in your case. You were

given thirty days to respond.

On December 18, 2018, USCIS received your NOID

response. Your legal representative asserted that your

Form I-485, Application to Register Permanent Residence

or Adjust Status, warranted approval because USCIS is

collaterally estopped from finding you inadmissible based

on facts already adjudicated by an Immigration Judge.

After a thorough review of the record including your

response to the NOID, USCIS required additional

information and sent you a second NOID on February

19, 2019. USCIS informed you that you are inadmissible

under INA section 212(a)(3)(B)(i)(I) as an alien who has

engaged in terrorist activity (as defined at INA section

212(a)(3)(B)(iii)(V)(b)), for the use of a weapon with intent

to endanger the safety of one or more individuals or to

23a

Appendix C

cause substantial damage to property; and under INA

section (a)(3)(B)(iv)(VI )(dd), for the voluntary commission

of an act that afforded material support to a terrorist

organization and under INA section 212(a)(B)(i)(VIII)

for the voluntary receipt of military-type training from

a terrorist organization. There is no existing exercise of

the Secretary’s discretionary exemption authority under

INA section 212(d)(3)(B)(i) that applies to those grounds of

inadmissibility nor are those grounds waivable. For these

reasons, you are ineligible to adjust status under 209(b).

The second NOID included the following questions:

1. Material Support

a. What activities did you perform as a member of

Jamiat? Please list and describe each activity, including

dates.

b. What work did you provide for your uncle while you

were a member of Jamiat? Please list and describe each

duty, including dates.

2. Military-Type Training

a. What type of training did you receive as a member

of Jamiat from Jamiat?

b. When did you receive training?

c. What did the training include?

24a

Appendix C

d. Who trained you on the use of the shoulder-held

rocket launcher and other training you may have received?

You were given thirty days to respond.

On March 19,2019, USCIS received your second NOID

response. Your legal representative provided four

documents: the Form G-28, your Declaration, the

Declaration of Dr. Marc Sageman, and the article, “When

the CIA Played by the Rules,” Milt Bearden, The New

York Times, Nov. 4, 2005.

In your second NOID response, your representative

reasserted that your Form I- 485, Application to

Register Permanent Resident or Adjust Status, warrants

approval because your asylum application, in which your

involvement with Jamiat was noted, was granted by an

Immigration Judge. Your representative asserted that the

grant of asylum by the immigration judge precludes future

agency decisions to the contrary. Your representative

asserted that, under the doctrine of collateral estoppel,

USCIS cannot make a different determination on your

eligibility, because “[a] final decision of an Immigration

Judge was a preclusive effect on future litigation of an

agency’s decision,” citing Khan v. Johnson, 160 F. Supp.

3d 1199, 1210 (C.D. Cal. 2016); Amrollah v. Napolitano,

710 F.3d 568, 571 (5th Cir. 2013).

Your grant of asylum on March 30, 2000, and the current

adjudication of your Application to Adjust Status are

separate decisions relating to separate benefits. In order

to adjust status under INA section 209(b), you must be

25a

Appendix C

“admissible … at the time of examination for adjustment of

status.” The decision on your application to Adjust Status

is not bound by the decision on prior benefit adjudication.

This is especially true when as here there is no indication

that the issue of terrorist activity was actually litigated

before the Immigration Court. Further, some of the

grounds of inadmissibility that serve the basis of this

denial have been added to the INA since your asylum

grant.

In light of the above, you are inadmissible under INA

section 212(a)(3)(B)(i)(I) for having engaged in terrorist

activity as defined by 212(a)(3)(B)(iii)(V)(b) when, as a

Mujahedin fighter, you engaged in combat, including by

using a rocket launcher to endanger the safety of one or

more individuals. You are also inadmissible as defined by

212(a)(3)(B)(iv)(VI) for having provided material support

to Jamiat Islami, a Tier III terrorist organization,

by working with your uncle and by fighting with the

organization. The material support to a Tier III terrorist

organization provision was enacted as part of the USA

PATRIOT Act of 2001, see section 411(a)(l)(G), Pub. Law

107-56 (Oct. 26, 2001), and thus did not apply to your 2000

asylum adjudication. Further, you are inadmissible for

having received military-type training from a terrorist

organization pursuant to INA section 212(a)(3)(B)(i). The

military-type training provision was added to the INA

in 2005 after your asylum grant. See section 103(a) of

Division B of Pub. Law 109-13 (May 11, 2005).

Adjustment of Status under INA section 209(b) is

discretionary. Matter of K-A-, 23 I&N Dec. 661, 666

26a

Appendix C

(BIA 2004) (relief under section 209(b) of the Act is

discretionary). An applicant has the burden of showing

that discretion should be exercised in his favor. Matter of

Patel, 17 I&N Dec. 597 (BIA 1980); Matter of Leung, 16

I&N Dec. 12 (BIA 1976); Matter of Arai, 13 I&N Dec. 494

(BIA 1970). Additionally, the Attorney General in Matter

of Jean, 23 I&N Dec 373 (A.G. 2002), stated, “[f]rom its

inception, the United States has always been a nation of

immigrants; it is one of our greatest strengths. But aliens

arriving at our shores must understand that residency in

the United States is a privilege, not a right.”

Your representative stated that USCIS should not consider

Jamiat a Tier III terrorist organization at the time you

were involved, because doing so would effectively render

the United States a state sponsor of terrorism. Your

representative contends that this would be inconsistent

with the policies of the U.S. government openly taken and

advocated at all times relevant to you, as described by both

the senior intelligence officer at the time (Referencing Ex.

D to the NOID response) and Dr. Sageman, a recognized

expert on the subject (Referencing Ex. C to the NOID

response). Your representative stated that given the fact

that you fully disclosed his activities at the time of his

asylum hearing in 2000, it is clear that the United States

did not view Jamiat as a terrorist organization and his

actions therefore did not prevent his entry into the United

States.

Your representative also stated that USCIS should grant

a waiver in your favor because Jamiat was an ally of the

United States at the time and has been a consistent ally

27a

Appendix C

of the United States for forty years, as pointed out by Dr.

Sageman (Ex. C to the NOID response).

The fact that the United States supported Mujahideen

fighting the Soviet and Soviet-sponsored A fghan

government does not make the group you were a member

of any less of a terrorist organization as defined at INA

section 212(a)(3)(B)(vi), or your actions any less a terrorist

activity as defined at INA section 212(a)(3)(B). There is

no exception for groups allied with and supported by the

United States. (See In re S-K-, 23 I&N Dec. 936, 941

(BIA 2006), noting that “Congress intentionally deafted

the terrorist bars to relief very broadly, to include even

those people described as ‘freedom fighters,’ and it did

not intend to give us discretion to create exceptions for

members of organizations to which our Government

might be symphathetic.”)). This is further evidenced by

the fact that in 2007, Congress explicitly excluded certain

groups that were allied with the United States during

the Vietnam War from the INA definition of terrorist

organizations (See section 691(b) of Division J of the

Consolidated Appropriations Act of 2008 (CAA), Pub.

Law 110-161 (Dec. 27, 2007), excluding appropriate groups

affiliated with the Hmong and Montagnards). There would

be no need for Congress to exclude such groups from the

definition of terrorist organizations if they were already

excluded from the definition by virtue of having been being

allied with and even supported by the United States.

Your representative also stated that you warrant a

favorable decision because positive factors outweigh your

involvement with the Jamiat. Namely, the nearly 18 years

28a

Appendix C

you have spent in the United States with your spouse, a

United States Lawful Permanent Resident, and your six

children, all U.S. citizens. Your counsel asserts that one

of the core legal principles in immigration law is the focus

on keeping a bona fide immigrant family united.

The nearly 18 years you have resided in the United States

and the fact that you have family members who reside here

are indeed positive factors. However, after careful review

of all of the facts, USCIS has determined that you do not

warrant adjustment of status as a matter of discretion

even if you were statutorily qualified for adjustment of

status. The positive factors in your case are outweighed

by your use of a dangerous weapon when you used rocket

launchers in combat as a Mujahideen fighter. You argue

in your response to the NOID that discretion should

be exercised in your favor in order to keep your family

together. However, the denial of your adjustment of status

application would not terminate your asylum status and

thus would not cause your family to be separated.

In your declaration in response to the NOID, you stated

that you did not volunteer for Jamiat-i-Islami but were

brought by your family. Your uncle, Mohammad Rasul, was

a well-known commander of the Jamiat-i-Islami party. You

stated that you did not work directly under him because

you were a junior member of the force and were very

young. You were assigned to the rocket team. You stated

that the rocket weapon did not have any special aiming.

Your job was only to carry up to three additional rockets

in case they were needed.

29a

Appendix C

You stated that you did not receive any formal training for

the job. The training you received was from the person

you called “the rocket man”. “He told all the members

of his team how to fire the rocket in case he was killed

or injured and could not fight. He also taught you how to

clean and load the weapon as you were operating on the

field.” You stated that you mostly learned to operate it by

watching him operate it and explain what he was doing.

Receiving military-type training from a foreign terrorist

organization as defined by 18 U.S.C. section 2339D

“military-type training” includes training in means or

methods that can cause death or serious bodily injury,

destroy or damage property, or disrupt services to critical

infrastructure, or training on the use, storage, production,

or assembly of any explosive, firearm or other weapon,

including any weapon of mass destruction (as defined in

section 2232a(c)(2). You stated you did not receive any

formal training on use of the rockets and that the weapon

was more like a grenade launcher. However, you were

taught how to fire a weapon which qualifies as militarytype training under 18 U.S.C. section 2339D. Since you

received the training from an organization that qualified

as an undesignated terrorist organization at the time, you

are also inadmissible on that ground.

You stated on your Form I-589, Application for Asylum,

that you became a Mujahedin fighter and specialized in

the use of shoulder-held-rocket launchers.

On your Addendum to Form 1-485, Part 3, Section B, you

stated that you and your family, through the association

30a

Appendix C

of your uncle, assisted the U.S. backed Mujahedin who

provided you with “paramilitary training.”

You told the asylum officer that at 18 years of age, while a

Jamiat fighter, you fought the communists from 1986 until

1987 including as a “rocket specialist” using shoulderbased surface to air missiles.

The burden is on the applicant to establish eligibility for

the benefit sought. INA section 291. Based on the above,

USCIS finds that you have not established your eligibility

for the benefit sought.

There is no ex isting exercise of the Secretar y ’s

discretionary exemption authority pursuant to INA

section 212(d)(3)(B)(i) that applies to your activities with

Jamiat Islami which are subject to the terrorist-related

inadmissibility grounds described above. Since you are

inadmissible and that inadmissibility is not waivable or

subject to an exemption, you are ineligible to adjust status

under 209(b).

Accordingly, your application is denied.

NOTICE: USCIS regulations do not provide for an appeal

to this decision. However, you may file a motion to reopen

or reconsider an adverse decision. A motion must be filed

using Form I-290B, Notice of Appeal or Motion. Form

I-290B must be filed within 30 days from the date of this

notice (33 days if this notice was received by mail) with

the appropriate filing fee and other documentation in

support of the motion. Do not send the completed Form

31a

Appendix C

I-290B directly to the Nebraska Service Center. For more

information about filing motions, as well as fee required

and filing locations, and to download Form I-290B, please

visit the USCIS website at www.uscis.gov. You may also

contact the USCIS Contact Center at 800-375-5283.

Sincerely,

/s/

Loren K. Miller

Director

Officer: 0899

32a

D § 1182(a)(3)(B)

APPENDIX DAppendix

— 8 U.S.C.

8 U.S.C. § 1182(a)(3)(B) provides in relevant part:

(B) Terrorist activities.

(i) In general. Any alien who—

(I) has engaged in a terrorist activity;

(II) a consular officer, the Attorney General, or

the Secretary of Homeland Security knows, or has

reasonable ground to believe, is engaged in or is

likely to engage after entry in any terrorist activity

(as defined in clause (iv));

(III) has, under circumstances indicating an

intention to cause death or serious bodily harm,

incited terrorist activity;

(IV) is a representative (as defined in clause (v))

of—

(aa) a terrorist organization (as defined in

clause (vi)); or

(bb) a political, social, or other group that

endorses or espouses terrorist activity;

(V) is a member of a terrorist organization

described in subclause (I) or (II) of clause (vi);

33a

Appendix D

(VI) is a member of a terrorist organization

described in clause (vi)(III), unless the alien can

demonstrate by clear and convincing evidence that

the alien did not know, and should not reasonably

have known, that the organization was a terrorist

organization;

(VII) endorses or espouses terrorist activity or

persuades others to endorse or espouse terrorist

activity or support a terrorist organization;

(VIII) has received military-type training (as

defined in section 2339D(c)(1) of title 18, United States

Code [18 USCS § 2339D(c)(1)]) from or on behalf of

any organization that, at the time the training was

received, was a terrorist organization (as defined in

clause (vi)); or

(IX) is the spouse or child of an alien who is

inadmissible under this subparagraph, if the activity

causing the alien to be found inadmissible occurred

within the last 5 years, is inadmissible.

***

(iii) “Terrorist activity” defined. As used in this Act,

the term “terrorist activity” means any activity which is

unlawful under the laws of the place where it is committed

(or which, if it had been committed in the United States,

would be unlawful under the laws of the United States or

any State) and which involves any of the following:

34a

Appendix D

(I) The highjacking or sabotage of any conveyance

(including an aircraft, vessel, or vehicle).

(II) The seizing or detaining, and threatening to

kill, injure, or continue to detain, another individual

in order to compel a third person (including a

governmental organization) to do or abstain from

doing any act as an explicit or implicit condition for

the release of the individual seized or detained.

(III) A violent attack upon an internationally

protected person (as defined in section 1116(b)(4) of

title 18, United States Code) or upon the liberty of

such a person.

(IV) An assassination.

(V) The use of any—

(a) biological agent, chemical agent, or nuclear

weapon or device, or

(b) explosive, 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.

(VI) A threat, attempt, or conspiracy to do any

of the foregoing.

35a

Appendix D

(iv) “Engage in terrorist activity” defined. As used in

this Act, the term “engage in terrorist activity” means, in

an individual capacity or as a member of an organization—

(I) to commit or to incite to commit, under

circumstances indicating an intention to cause death

or serious bodily injury, a terrorist activity;

(II) to prepare or plan a terrorist activity;

(III) to gather information on potential targets

for terrorist activity;

(IV) to solicit funds or other things of value for—

(aa) a terrorist activity;

(bb) a terrorist organization described in

clause (vi)(I) or (vi)(II); or

(cc) a terrorist organization described

in clause (vi)(III), 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;

***

(vi) “Terrorist organization” defined. As used in

this section, the term “terrorist organization” means an

organization—

36a

Appendix D

(I) designated under section 219 [8 USCS § 1189];

(II) otherwise designated, upon publication in

the Federal Register, by the Secretary of State in

consultation with or upon the request of the Attorney

General or the Secretary of Homeland Security,

as a terrorist organization, after finding that the

organization engages in the activities described in

subclauses (I) through (VI) of clause (iv); or

(III) that is a group of two or more individuals,

whether organized or not, which engages in, or has a

subgroup which engages in, the activities described

in subclauses (I) through (VI) of clause (iv).

37a

Appendix

APPENDIX E — NOTICE

OFEINTENT TO DENY

OF THE U.S. CITIZENSHIP AND IMMIGRATION

SERVICES, DATED NOVEMBER 16, 2018

U.S. Department of Homeland Security

U.S. Citizenship and Immigration Services

P.O. Box 82521

Lincoln, NE 68501-2521

U.S. Citizenship and Immigration Services

November 16, 2018

SEHLA ASHAI

CLCMA

833 EAST ARAPAHO ROAD STE 102

RICHARDSON, TX 75081

LIN1190312426

RE: MOHAMMAD SHARIF KHALIL

I-485, Application to Register Permanent Residence or

Adjust Status

NOTICE OF INTENT TO DENY

This notice refers to the Form 1-485, Application to

Register Permanent Residence or Adjust Status, you filed

with this office on January 31, 2011. You are requesting an

adjustment of status under Section 209 of the Immigration

and Nationality Act (INA) (Title 8, United States Code,

section 1159).

Section 209(b) of the INA states:

38a

Appendix E

… The Secretary of Homeland Security or the Attorney

General, in the Secretary’s or the Attorney General’s

discretion and under such regulations as the Secretary

or the Attorney General may prescribe, may adjust to

the status of an alien lawfully admitted for permanent

residence the status of any alien granted asylum who(1) applies for such adjustment,

(2) has been physically present in the United States for at

least one year after being granted asylum,

(3) continues to be a refugee within the meaning of [INA]

section 101(a)(42)(A) of this title or a spouse or child of

such a refugee,

(4) is not firmly resettled in any foreign country, and

(5) is admissible (except as otherwise provided under

subsection (c) of this section) as an immigrant under this

chapter at the time of examination for adjustment of such

alien.

The INA section 209(c) waiver of inadmissibility is not

available to aliens who are inadmissible under INA section

212(a)(3)(B) (terrorist activities).

Section 212(a)(3)(B) of the INA, as amended by the REAL

ID Act of 2005, describes an alien who is inadmissible and

states in pertinent part:

(i) In general. Any alien who-

39a

Appendix E

(1) has engaged in a terrorist activity … is inadmissible

INA section 212(a)(3)(B)(iv) defines “engage in terrorist

activity,” which includes at (I), in an individual capacity

or as a member of an organization “to commit or to incite

to commit, under circumstances indicating an intention to

cause death or serious bodily injury, a terrorist activity.”

INA section 212(a)(3)(B)(iii) defines terrorist activity,

and includes activities such as highjacking; kidnapping;

and the use of any explosive, firearm, or other weapon or

dangerous device, other than for mere personal monetary

gain, with the intent to endanger, directly or indirectly, the

safety of one or more individuals or to cause substantial

damage to property; and the attempt or threat to do any

of these activities.

INA section 212(a)(3)(B)(iv)(VI) includes in the definition

of engaging in terrorist activity (VI) 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-(dd) 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.

40a

Appendix E

INA section 212(a)(3)(B)(vi)(III) defines a undesignated

Tier III terrorist organization as “(III) that is a group

of two or more individuals, whether organized or not,

which engages in, or has a subgroup which engages in,

the activities described in subclauses (I) through (VI) of

clause (iv).”

You stated on your 1-589 Application for Asylum. filed

on February 18, 2000, that you became a member of

Jamiat Islami, also known as Jamiat-i-Islami, when you

were fifteen years old. This would have been in 1982.

You stated that when you were eighteen years old, you

became a Mujahideen fighter for the group. You supported

the Jamiat Islami in its resistance to the Communists,

and in fighting against the Hezb-i-Islami Party led by

Hekmatyar. You specialized in the use of shoulder held

rocket launchers. You also stated that you worked with

your uncle, who was very close to the chief leader of the

Jamiat Islami Party, Burhanuddin Rabbani. In March,

1995, you fled to Pakistan.

Jamiat-i Islami is a complex, predominantly ethnic-Tajik,

Islamist organization with an approximately 50-year

history, which has included engaging in political activities

as a political party, and organizing armed resistance

to the Soviets, to Communist Afghans, to the Taliban,

and to rival Mujahideen factions. (One author noted that

the organization was about 25 percent Pashtun. See

Afghanistan: A Cultural and Political History, Thomas

Barfield, p.237, Princeton University Press (2012)). At

times Jamiat Islami has held the presidency and other

high-level offices in Afghanistan.

41a

Appendix E

In the late 1980s, according to Afghan sources in Quetta,

the Mujahideen forces included those under the command

of Mullah Naqib of Jamiat-e Islami, who took some 60

soldiers into custody, and those under the command

of Mullah Farooq, also of Jamiat-e Islami, who took

30 soldiers into custody. The soldiers were reportedly

executed because “no one could guarantee that they

were good Muslims.” Interview with Afghan exile in

Washington, D.C., January 21, 1991. (See The Forgotten

War: Human Rights Abuses and Violations of the Laws Of

War Since the Soviet Withdrawal, Human Rights Watch,

note 115, Feb. 1991; see also, By All Parties to the Conflict:

Violations of the Laws of War in Afghanistan, Human

Rights Watch, p.63-64, March 1988).

It is noted that there are also reports of Jamiat efforts to

curtail abuses of prisoners by commanders, and to hold

trials of prisoners accused of wrong-doing, albeit often

ending in execution. (See Tears, Blood and Cries”: Human

Rights in Afghanistan Since the Invasion 1979-1984.,

Helsinki Watch, p.204-205, Dec. 1984).

In March 1992, under the leadership of Najibullah,

president of Afghanistan and head of the People’s

Democratic Party of Afghanistan, the government

collapsed. Najibullah’s government forces put up no

resistance to the Mujahideen and Kabul was captured

without fighting. However, Jamiat forces battled with rival

Mujahideen for control, resulting in tens of thousands of

civilians killed or injured in fighting in Kabul in 1992-1993.

For example:

42a

Appendix E

On April 24, [1992] as Hekmatyar was about to seize

control of the city, Massoud and Dostum’s forces entered

Kabul, taking control of most government ministries.

Jamiat attacked Hezb-e Islami forces occupying the

interior ministry and Presidential Palace, pushing Hezb-e

Islami south and out of the city. There was shelling and

street-to-street fighting through April 25 and 26. Reports

describe the shelling of civilian areas by all parties to the

conflict, including Jamiat. Human Rights Watch reported

that:

With respect to Wahdat, Ittihad, ,and Jamiat hostilities

in west Kabul, there is compelling evidence that factions

regularly and intentionally targeted civilians and civilian

areas for attack, and recklessly and indiscriminately fired

weapons into civilian areas. There is little evidence that

the factions made meaningful efforts during hostilities to

avoid harming civilians or stopped attacks once the harm

to civilians was evident. (See Blood-Stained Hands: Past

Atrocities in Kabul and Afghanistan’s Legacy of Impunity,

Human Rights Watch, Jul. 7, 2005).

A former high-level official in Shura-e Nazar confirmed

that Jamiat troops on the Mamorine mountain (the

western peak next to Television Mountain and above

west Kabul) regularly launched rockets and artillery

into the civilian areas of west Kabul in 1992 and 1993.

Some witnesses further stated that Jamiat forces would

target civilians for recreation during the conflict and

abduct civilians for ransom. Further, “Human Rights

Watch interviewed scores of journalists, health workers,

aid workers, taxi drivers, civil servants, and soldiers who

43a

Appendix E

witnessed widespread pillage and looting by Jamiat . . .

forces after the Najibullah government fell.” (See BloodStained Hands: Past Atrocities in Kabul and Afghanistan’s

Legacy of Impunity, Human Rights Watch, Jul. 7, 2005).

In February 1993, Jamiat carried out the “Afshar

Campaign” that involved massive artillery strikes on

civilian areas of Afshar followed by a ground attack that

included shelling fleeing civilians. Human Rights Watch

reported that:

The Afshar campaign was marked by widespread and

serious violations of international humanitarian law. War

crimes included attacks on the civilian population and

civilian objects, killings, torture and other inhumane

treatment, rape, abductions and forced disappearances,

forced labor, and pillage and looting . . . . [T]here is

compelling evidence that the senior . . . Jamiat commanders

involved in the Afshar campaign are implicated in these

violations. It is also possible that some commanders

may be liable for crimes against humanity. Illegal acts

that were part of a widespread or systematic attack on

a civilian population, such as the killing or abduction of

members of certain minorities, may amount to crimes

against humanity. (See Blood-Stained Hands: Past

Atrocities in Kabul and Afghanistan’s Legacy of Impunity,

Human Rights Watch, Jul. 7, 2005).

There are reports on continued armed conflict and serious

human rights abuses committed by Jamiat forces during

Rabbani’s June 1992 to September 1996 Presidency. For

example:

44a

Appendix E

On the night of February 11, 1993, Jamiat-i Islami forces

and those of another faction, Abdul Rasul Sayyaf’s

Ittihad-i Islami, conducted a raid in West Kabul,

killing and “disappearing” ethnic Hazara civilians, and

committing widespread rape. Estimates of those killed

range from about seventy to more than one hundred.

A group meets the definition of an undesignated terrorist

organization (Tier III) when it engages in terrorist

activity or has a subgroup that engaged in terrorist

activity, as defined in INA Section 212(a)(3)(B). Jamiat-iIslami has engaged in extensive violent combat with the

Soviet army, the army of the People’s Democratic Party

of Afghanistan (which led Afghanistan for a number

of years), other Mujahideen, the Taliban, and regional

militia. Therefore, Jamiat-i-Islami meets the definition of

a Tier ill organization while it engaged in these activities,

including during the period you were involved with it (from

1982-1995).

You are inadmissible under INA section 212(a)(3)(B)(i)(I)

for having engaged in terrorist activities as defined by

212(a)(3)(B)(iii)(V)(b) when, as a Mujahideen fighter, you

used a rocket launcher to endanger the safety of one or

more individuals. You are also inadmissible as defined by

212(a)(3)(B)(iv)(VI) for having provided material support

to Jamiat Islami by working with your uncle and by

fighting with the organization.

There is no ex isting exercise of the Secretar y ’s

discretionary exemption authority under INA section

212(d)(3)(B)(i) that applies to the terrorist-related

45a

Appendix E

inadmissibility grounds at issue in your case. Since you

are inadmissible and that inadmissibility is not waivable

or subject to an exemption, you are ineligible to adjust

status under 209(b).

Since you not only provided material support to the

Jamiat Islami while you were a member, but you also

personally engaged in terrorist activity when you used

a rocket launcher with intent to endanger the safety of

one or more individuals, USCIS finds that you do not

warrant adjustment of status as a matter of discretion in

the totality of the circumstances.

Adjustment of Status under INA Section 209(b) is

discretionary. Matter of K-A-, 23 I&N Dec. 661, 666

(BIA 2004) (relief under section 209(b) of the Act is

discretionary). An applicant has the burden of showing

that discretion should be exercised in his favor. Matter of

Patel, 17 I&N Dec. 597 (BIA 1980); Matter of Leung, 16

I&N Dec. 12 (BIA 1976); Matter of Arai, 13 I&N Dec. 494

(BIA 1970). Additionally, the Attorney General in Matter

of Jean, 23 I&N Dec 373 (A.G. 2002), stated, “[f]rom its

inception, the United States has always been a nation of

immigrants; it is one of our greatest strengths. But aliens

arriving at our shores must understand that residency in

the United States is a privilege, not a right.”

The nearly 18 years you have spent in the United States

and the fact that you have family members who reside

here are positive factors. However, any positive factors

are outweighed by your terrorist activities. After careful

review of all the facts, USCIS has determined that the

46a

Appendix E

positive factors do not outweigh the negative factors and

that your application for adjustment of status should be

denied as a matter of discretion in addition to the statutory

ineligibility cited above.

Accordingly, USCIS intends to deny your application to

adjust status.

You have 33 days from the date on this letter to respond to

this Notice of Intent to Deny. Your written response and

any attached documents must be mailed to the address at

the top of this Notice with a copy of this Notice of Intent to

Deny firmly attached to the front of your response packet.

At the end of the 33 day period, if no response is received,

or after receiving and considering your response, USCIS

will make a final decision on your Form 1-485, Application

to Register Permanent Residence or Adjust Status.

Sincerely,

/s/

Loren K. Miller

Director

Officer: 0899

47a

Appendix

APPENDIX F — NOTICE

OFFINTENT TO DENY

OF THE U.S. CITIZENSHIP AND IMMIGRATION

SERVICES, DATED FEBRUARY 14, 2019

U.S. Department of Homeland Security

U S Citizenship and Immigration Services

P O Box 82521

Lincoln, NE 68501-2521

U.S. Citizenship and Immigration Services

February 14, 2019

SEHLA ASHAI

CLCMA

833 EAST ARAPAHO ROAD STE 102

RICHARDSON, TX 75081

LIN1190312426

RE: MOHAMMAD SHARIF KHALIL

I-485, Application to Register Permanent Residence or

Adjust Status

NOTICE OF INTENT TO DENY

This notice refers to the Form 1-485, Application to

Register Permanent Residence or Adjust Status, you filed

with this office on January 31, 2011. You are requesting an

adjustment of status under Section 209 of the Immigration

and Nationality Act (INA) (Title 8, United States Code,

section 1159).

48a

Appendix F

Section 209(b) of the INA states:

...The Secretary of Homeland Security or the Attorney

General, in the Secretary’s or the Attorney General’s

discretion and under such regulations as the Secretary

or the Attorney General may prescribe, may adjust to

the status of an alien lawfully admitted for permanent

residence the status of any alien granted asylum who(1) applies for such adjustment,

(2) has been physically present in the United States for at

least one year after being granted asylum,

(3) continues to be a refugee within the meaning of [INA]

section 101(a)(42)(A) of this title or a spouse or child of

such a refugee,

(4) is not firmly resettled in any foreign country, and (5) is

admissible (except as otherwise provided under subsection

(c) of this section) as an immigrant under this chapter at

the time of examination for adjustment of such alien.

The INA section 209(c) waiver of inadmissibility is not

available to aliens who are inadmissible under INA section

212(a)(3)(B) (terrorist activities). Section 212(a)(3)(B) of the

INA, as amended by the REAL ID Act of 2005, describes

an alien who is inadmissible and states in pertinent part:

(i) In general. Any alien who- (I) has engaged in a terrorist

activity ...is inadmissible

INA section 212(a)(3)(B)(i) makes an alien inadmissible

who “(I) has engaged in a terrorist activity” and who

49a

Appendix F

“(VIII) has received military-type training (as defined in

section 2339D(c)(l) of title 18, United States Code) from or

on behalf of any organization that, at the time the training

was received, was a terrorist organization.”

INA section 212(a)(3)(B)(iv) defines “engage in terrorist

activity,” which includes at (I), in an individual capacity

or as a member of an organization “to commit or to incite

to commit, under circumstances indicating an intention to

cause death or serious bodily injury, a terrorist activity.”

INA section 212(a)(3)(B)(iii) defines terrorist activity,

and includes activities such as highjacking; kidnapping;

and the use of any explosive, firearm, or other weapon or

dangerous device, other than for mere personal monetary

gain, with the intent to endanger, directly or indirectly, the

safety of one or more individuals or to cause substantial

damage to property; and the attempt or threat to do any

of these activities.

INA section 212(a)(3)(B)(iv)(VI) includes in the definition

of engaging in terrorist activity (VI) 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—

(dd) 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

50a

Appendix F

that the actor did not know, and should not reasonably have

known, that the organization was a terrorist organization.

Section 2339D(c)(1) of Title 18 of the United States Code

defines “military-type training” as “training in means

or methods that can cause death or serious bodily injury,

destroy or damage property, or disrupt services to critical

infrastructure, or training on the use, storage, production,

or assembly of any explosive, firearm or other weapon,

including any weapon of mass destruction (as defined in

section 2232a(C)(2).”

You stated on your Form 1-589, Application for Asylum,

filed on February 18, 2000, that your father and uncles

worked closely with Jamiat Islami, an organization led

by Bernahuddin Rabbani. You stated that you joined the

Jamiat Islami Mujahedin at the age of 15. You stated that

you became a fighter at the age of 18. You supported Jamiat

Islami in their resistance against the Communists and

their fighting against Hekmatyar and his Hezb-i-Islami

party. You worked with your uncle, were a Mujahedin

fighter and specialized in the use of shoulder-held rocket

launchers. You stated that in March, 1995, you fled to

Pakistan. After three weeks to Pakistan, you arrived in

Germany on April 16, 1995.

On your Addendum to Form 1-485, Part 3, Section B, you

stated that you and your family, through the association

of your uncle, assisted the U.S.-backed Mujahedin who

provided you with “paramilitary training.” You stated that

your family was a part of the overwhelming majority of

Afghans who opposed the Communist regime and assisted

in the way that they could.

51a

Appendix F

You told the asylum officer that your entire family was

involved with Jamiat Islami and that you were a member

since the age of 15. At 18 years of age, while a Jamiat

fighter, you fought the communists from 1986 until 1987

including as a “rocket specialist” using shoulder-based

surface to air missiles. After that, you fought against

the party of Hekmatyar and his Hezb-i-Islamic party.

Additionally, you told the asylum officer during your

interview that you were a supporter of Rabbani and your

membership began in 1984 and ended 1995.

On November 16, 2018, USCIS sent you a Notice of

Intent to Deny (NOID) stating that you are inadmissible

under INA section 212(a)(3)(B)(i)(I) for having engaged

in terrorist activities as defined by 212(a)(3)(B)(iii)(V)(b)

when, as a Mujahedin fighter, you used a rocket launcher to

endanger the safety of one or more individuals. You are also

inadmissible as defined by 212(a)(3)(B)(iv)(VI) for having

provided material support to Jamiat lslami by working with

your uncle and by fighting with the organization.

On December 18, 2018, USCIS received your NOID

response. Your legal representative asserted that your

Form I-485, Application to Register or Adjust Status,

warrants approval because USCIS is collaterally estopped

from finding you inadmissible based on facts already

adjudicated by an Immigration Judge.

Your representative also stated that you warrant a

favorable decision because positive factors outweigh your

involvement with the Jamiat. Namely, the nearly 18 years

you have spent in the United States with your spouse, a

52a

Appendix F

United States Lawful Permanent Resident, and your six

children, all U.S. citizens. Your counsel asserts that one

of the core legal principles in immigration law is the focus

on keeping a bona fide immigrant family united.

After thorough review of the record including your

response to the NOID, USCIS requires additional

information on the following issues. While USCIS still

intends to deny your application, this information will

allow USCIS to better evaluate the arguments you raised

in response to the NOID.

1. Material Support

You stated on your Form I-589 and Form I-485 Addendum

that you were a member of Jamiat from 1982 until 1995.

Your asylum interview records indicate that you were a

member of Jamiat from 1984 until 1995. You stated on your

Form I-589 and Form I-485 Addendum that you worked

with your uncle while a member of Jamiat. Please answer

the following questions to the best of your ability.

a.

What activities did you perform as a member of

Jamiat? Please list and describe each activity,

including dates.

b.

What work did you provide for your uncle while

you were a member of Jamiat? Please list and

describe each duty, including dates.

53a

Appendix F

2. Military-Type Training

You stated on your Form I-589 that you were a Mujahedin

fighter and specialized in the use of shoulder-held rocket

launchers. You stated that you became a fighter at the age

of 18. You supported the Jamiat in their resistance against

the Communists and their fighting against Hekmatyar

and his Hezb-i-Islami party. You also worked with your

uncle while a member of Jamiat.

On your Form I-485 Addendum, you stated that you

and your family, through the association of your uncle,

assisted the U.S.-backed Mujahedin wherein you received

“paramilitary training.”

You stated that your family was a part of the overwhelming

majority of Afghans who opposed the Communist regime

and assisted in the way that they could.

You told the asylum officer that at 18 years of age, you

fought against the communists, then fought against

Hekmatyar and his Hezb-i-Islami party. According to the

record, your activities with Jamiat Islami included being

a shoulder-based surface to air missile “rocket specialist”

at 18 years of age. You also fought the communists from

1986 until 1987. Please answer the following questions to

the best of your ability.

a.

What type of training did you receive as a

member of Jamiat or from Jamiat?

b.

When did you receive training?

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Appendix F

c.

What did the training include?

d.

Who trained you on the use of the shoulder-held

rocket launcher and other training you may have

received?

You are inadmissible for voluntary receipt of militarytype training from a terrorist organization under INA

Section 212(a)(3)(B)(i)(VIII), use of a weapon with intent

to endanger the safety of one or more individuals or to

cause substantial damage to property under INA section

212(A)(3)(B)(iii)(V)(b), and voluntary commission of an act

that afforded material support to a terrorist organization

under INA section 212(a)(3)(B)(iv)(Vl)(dd). There is

no existing exercise of the Secretary’s discretionary

exemption authority under INA section 212(d)(3)(B)(i) that

applies to those grounds of inadmissibility nor are those

grounds waivable. For these reasons, you are ineligible

to adjust status under 209(b).

In addition, because of your close relationship with Jamiat

Islami over a period of more than ten years, USCIS finds

that you do not warrant adjustment of status as a matter

of discretion in the totality of the circumstances.

Adjustment of Status under INA Section 209(b) is

discretionary. Matter ofK-A-, 23 I & N Dec. 661, 666

(BIA 2004) (relief under section 209(b) of the Act is

discretionary). An applicant has the burden of showing

that discretion should be exercised in his favor. Matter of

Patel, 17 l&N Dec. 597 (BIA 1980); Matter of Leung, 16

I&N Dec. 12 (BIA 1976); Matter of Arai, 13 I&N Dec. 494

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Appendix F

(BIA 1970). Additionally, the Attorney General in Matter

of Jean, 23 I&N Dec 373 (A.G. 2002), stated, “[f]rom its

inception, the United States has always been a nation of

immigrants; it is one of our greatest strengths. But aliens

arriving at our shores must understand that residency in

the United States is a privilege, not a right.”

The nearly 18 years you have spent in the United States

and the fact that you have family members who reside

here are positive factors. However, any positive factors

are outweighed by your close association with, and support

for a terrorist organization. After careful review of all the

facts, USCIS has determined that the positive factors do

not outweigh the negative factors and that your application

for adjustment of status should be denied as a matter of

discretion in addition to the statutory ineligibility cited

above.

Accordingly, USCIS intends to deny your application to

adjust status.

You have 33 days from the date on this letter to respond to

this Notice of Intent to Deny. Your written response and

any attached documents must be mailed to the address at

the top of this Notice with a copy of this Notice of Intent to

Deny firmly attached to the front of your response packet.

At the end of the 33 day period, if no response is received,

or after receiving and considering your response, USCIS

will make a final decision on your Form I-485, Application

to Register Permanent Residence or Adjust Status.

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Appendix F

Sincerely,

/s/

Loren K. Miller

Director

Officer: 0899