Islam v. Secretary, Department of Homeland Security, No. 19-13287 (11th Cir. 2021)
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The Eleventh Circuit affirmed the district court's grant of summary judgment in favor of the government in an action challenging USCIS's decision determining that plaintiff was ineligible for adjustment of status due to his membership in a Tier III terrorist organization—the Bangladesh Nationalist Party (BNP)—and his personal engagement in terrorist activity.
The court concluded that the district court did not clearly err in determining that plaintiff's inadmissibility under the terrorism bar was not actually litigated during the asylum proceeding, and rejected the issue preclusion claim. The court held that an organization engages in terrorist activity for the purposes of 8 U.S.C. 1182(a)(3)(B)(vi)(III) when its members perpetrate terrorist activity and its leadership authorizes such conduct expressly or tacitly. In this case, as applied to plaintiff and the BNP, the statute is not unconstitutionally vague. The court also concluded that plaintiff's vagueness challenge to 8 U.S.C. 1182(a)(3)(B)(iii)(V)(b) & (VI) fails at the outset, because he intentionally relinquished any challenge to the definition of "terrorist activity" in the district court. Finally, the court applied the "exceedingly deferential" standard of review under section 706(2)(A) of the Administrative Procedure Act and held that the USCIS's conclusion that the BNP authorized its members' terrorist activity—and thus qualified as a Tier III terrorist organization—is not arbitrary and capricious.
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