Mehrdad Hosseini v. Kirstjen Nielsen
Mehrdad Hosseini v. Kirstjen Nielsen
Opinion
Mehrdad Hosseini fled his native Iran and obtained asylum in the United States in 1999. Two years later, he applied to adjust his legal status to become a lawful permanent resident. But the United States Citizenship and Immigration Services ("USCIS") denied that application after concluding that Hosseini provided material support to two Iranian terrorist organizations, rendering him inadmissible to the United States under
This case turns on whether Hosseini's copying and distribution of flyers amounts to material support of a terrorist organization. Over an approximate six-year span after the 1979 Iranian Revolution, Hosseini made copies of and distributed flyers from several Iranian non-governmental organizations, including the Mujahadin-e Khalq ("MeK") and the Fadain-e Khalq ("FeK").
1
Hosseini insists that the flyers he distributed alerted Iranians to the new regime's human rights abuses, including its crackdown on women, students, workers, and other civil dissidents. Nonetheless, USCIS determined that MeK and FeK were terrorist organizations and that Hosseini provided them material support by copying and distributing their flyers. After USCIS denied his application, Hosseini sought relief in federal court, arguing that USCIS's inadmissibility determination was arbitrary and capricious under the Administrative Procedure Act,
I.
In 1997, Mehrdad Hosseini's wife, Nasrin Abdolrahmani, left Iran with her two children and traveled to the United States on a B-2 tourist visa. Shortly thereafter, Abdolrahmani applied for asylum, noting her genuine fear of persecution were she to return to Iran. Abdolrahmani explained in her affidavit supporting her asylum petition that the government was targeting her family because of her husband's prior ties to MeK, which sought to overthrow the radical Islamic clerics who led the Iranian regime following the 1979 Iranian Revolution. She stated that her husband described his involvement with MeK as "minimal, occasional, and [ ] mostly in the form of providing copying and telefax services to facilitate distribution of political leaflets and articles at the request of his brothers who were active in the organization." Nonetheless, Abdolrahmani stated that she threatened to leave Hosseini after the birth of their first child unless he severed his ties to the organization. Hosseini acceded to her demand sometime in the mid-1980s.
After an immigration judge granted her asylum petition, Abdolrahmani submitted a Form I-730 petition to obtain asylum for her husband as a derivative beneficiary spouse. 2 A USCIS adjudicator granted that petition too, despite the fact that he was unable to review Abdolrahmani's file and therefore lacked knowledge about Hosseini's ties to MeK.
About one year after obtaining asylum in the United States, Hosseini filed a Form I-485 application to adjust his legal status to that of a lawful permanent resident. The application asked Hosseini to describe his affiliation with any political organization-in the United States or elsewhere-since his 16th birthday. While Hosseini did not mention his connection to MeK, he stated that he "served to the Iranian Army as a soldier since May 1980 to May 1982" and that he "joint [ sic : joined] to a political organization called Fadaeian Khalgh from 1979 to 1982 in Iran." In December 2007, USCIS contacted Hosseini to request additional information, noting that it had uncovered a discrepancy between his application and Abdolrahmani's 1997 affidavit. USCIS explained:
A review of your Spouse's file reveals that you were a member of the Mujahedin prior to your marriage in 1984. In fact, your past membership within the Mujahedin was a prominent part of your spouse's asylum claim. You listed membership in Fadeian Khalqh in Part, 3, Section C of your Form I-485 application, but made no mention of the Mujahedin. Please provide an affidavit detailing the reason for this discrepancy or omission.
Hosseini responded to USCIS's request through a March 2009 affidavit, explaining that he was aware of the contents of his wife's asylum application and that he "[has] nothing to hide and [has] never tried to hide anything." Hossieni stated that his wife's description of his involvement with MeK was accurate and that he believed USCIS would have considered his I-485 application in conjunction with his wife's asylum application.
In that same affidavit, Hosseini clarified the extent of his involvement with MeK and FeK. He explained that he was a *370 young adult living in Iran in 1979 when radical clerics led by Ayatollah Khomeini toppled Iran's ruling monarch and imposed an Islamic theocracy. After the revolution, Hosseini became increasingly interested in politics and "eagerly sought out information about various political viewpoints." He read literature from different Iranian organizations, ranging from Islamic fundamentalists to women's rights groups. And he began to copy and distribute some of that literature, including literature from MeK and FeK. According to Hosseini, the literature that he distributed informed Iranians about the new government's human rights abuses, particularly its targeting of women, students, workers, and other civil dissidents. Moreover, the literature countered the regime's narrative that it enjoyed widespread public support. As Hosseini explained, the literature allowed Iranians to "find out what was really happening" in their country. Hosseini insisted that he never joined MeK, FeK, or any other Iranian political organization, explaining that his opposition to "a continued Islamic role in the federal government of Iran" would likely have precluded him from attaining membership in MeK. Although Hosseini conceded that he heard "rumors" that MeK engaged in terrorist attacks on the Iranian government, he "emphatically" denied ever learning "any reliable information that would indicate the MeK killed civilians" or American servicemen prior to the Iranian Revolution.
Six years passed with no response from USCIS. In March 2013, Hosseini filed a pro se complaint in federal district court to compel USCIS to decide his application. The district court issued an order on April 3, 2014, requiring USCIS to adjudicate Hosseini's application within 60 days.
Hosseini v. Napolitano
,
Hosseini again turned to the courts for relief. This time, he challenged USCIS's denial of his application under the Administrative Procedure Act,
Hosseini appeals that decision.
II.
We first address our jurisdiction. The Immigration and Nationality Act expressly precludes judicial review of certain types *371 of agency determinations, stating in relevant part:
Notwithstanding any other provision of law (statutory or nonstatutory) ... and regardless of whether the judgment, decision or action is made in removal proceedings, no court shall have jurisdiction to review-(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any [ ] decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter 3 to be in the discretion of the Attorney General or the Secretary of Homeland Security ....
III.
We review de novo a district court's decision to uphold a final agency action on summary judgment.
City of Cleveland v. Ohio
,
IV.
On appeal, Hosseini raises four arguments regarding USCIS's inadmissibility determination, alleging that (1) USCIS's determination that MeK and FeK are terrorist organizations was arbitrary and capricious; (2) he presented clear and convincing evidence to USCIS that he had no knowledge of MeK and FeK's terrorist activities; (3) he did not provide material support by copying and distributing MeK and FeK's flyers; and (4) USCIS's denial of his application to change his legal status was arbitrary and capricious because it had previously granted him asylum and *372 therefore determined that he was admissible. We consider each argument in turn.
A.
Hosseini argues that USCIS's determination that MeK and FeK are terrorist organizations was arbitrary and capricious. An alien may apply to adjust his legal status in the United States, provided that he is admissible.
MeK.
USCIS relied on the United States Department of State's Country Reports on Terrorism and the Library of Congress's Country Studies on Iran to assess MeK. Those sources describe MeK as a violent political organization that was responsible for the assassination of several U.S. military personnel and civilians in the 1970s. In fact, this court affirmed a Board of Immigration Appeals ("BIA") determination that MeK operated as a terrorist organization in the 1970s.
Daneshvar v. Ashcroft
,
Hosseini does not dispute that MeK once engaged in terrorism. Rather, he alleges that MeK underwent significant changes after the 1979 revolution and was no longer a terrorist organization when he copied and distributed flyers on its behalf. As USCIS's decision explains, MeK has undergone several iterations since its founding. And as Hosseini notes, the record reveals examples of MeK's terrorist activity only up to-but not after-September 1981. Thus, Hosseini argues that the record does not support USCIS's conclusion that he supported MeK when that organization engaged in terrorist activity.
Although we do not know precisely when Hosseini's affiliation with MeK began or ended, the record supports USCIS's conclusion that Hosseini copied and distributed MeK-produced literature while MeK engaged in terrorist activity. Indeed, Hosseini stated in his March 2009 affidavit that "in the months immediately after the fall of the Shah," which occurred in 1979, political activists distributed literature about the new regime. And by Hosseini's own admission, he "began reading and distributing literature from various sources, two of which were from MeK and the Fadaian." Further, Hosseini's wife stated in her affidavit that Hosseini and his brothers "were politically active in the Mojahedin *373 organization whose aim after the 1979 revolution was to overthrow the Islamic regime." Hosseini did not end his relationship with MeK until after he married Abdolrahmani and had his first child, which would have been-at the very earliest-December 1984. Although USCIS cannot pinpoint the date when Hosseini's affiliation with MeK began, it reasonably concluded that Hosseini began to copy and distribute the organization's literature sometime between 1979 and 1981.
FeK. Hosseini contests USCIS's determination that FeK is a terrorist organization, noting that the record fails to identify any terrorist activity that FeK's leaders authorized. But as USCIS said in its decision, FeK was "an anti-Shah Marxist guerilla organization whose goal changed to overthrowing the Ayatollah after the Iranian revolution." And USCIS compared FeK to MeK, explaining that while FeK was smaller than MeK, it engaged in similar guerilla activities.
Separately, Hosseini argues that FeK splintered into different subgroups and that he was affiliated with a non-violent FeK subgroup. This argument is also unavailing. Hosseini insists that he supported the Organization of Iranian People's Fedaian (Majority) ("OIPFM"), a non-violent offshoot of the FeK. But as USCIS explains, OIPFM began in 1981 after its parent organization, Organization of Iranian People's Fedaian Guerrillas ("OIPFG"), changed its name and disavowed its guerilla warfare tactics. Because Hosseini admitted to joining-or at the very least engaging with-FeK in 1979, 4 USCIS reasonably concluded that he would have had some affiliation with OIPFG before that organization ceased engaging in guerilla warfare.
For the reasons explained above, it was not arbitrary and capricious for USCIS to determine that Hosseini engaged with two Tier III terrorist organizations, MeK and FeK.
B.
Hosseini also alleges that he presented clear and convincing evidence to USCIS that he had no knowledge that MeK and FeK were engaged in terrorist activity and is therefore admissible. If USCIS determines that the alien gave support to a Tier I or Tier II terrorist organization, that alien is inadmissible, regardless of whether he knew that he was supporting a terrorist organization.
Hosseini's burden is high, and he does not prevail here. USCIS's decision describes a "public and shocking" terrorist attack in 1981, during which MeK detonated bombs in the Islamic Republic party's head office that killed "some seventy high-ranking Iranian officials, including Chief Justice Ayatollah Mohammad Beheshti, President Mohammad-Ali Rajaei, and Premier *374 Mohammad-Javad Bahonar." Given Hosseini's acknowledgment that he "eagerly sought out information about various political viewpoints" and "began reading and distributing literature from various sources" after the 1979 revolution, it seems implausible that he was unaware of this attack and the organization that perpetrated it. In fact, Hosseini admitted that he "heard rumors" that MeK and other groups "engaged in terrorist attacks on the Islamic government's leaders and supporters."
In
Daneshvar v. Ashcroft
, this court discussed some of the factors that an agency might consider in determining whether an alien knew about an organization's terrorist activity.
See
The first
Daneshvar
factor, age, weighs against Hosseini. The alien in
Daneshvar
was a minor during his involvement with the terrorist organization, prompting this court to state that "[w]e would be hard-pressed to classify any minor who sold newspapers for an organization that supported an armed revolt against a tyrannical monarch as a terrorist."
After applying those four factors, the
Daneshvar
court determined that "there is substantial evidence that Petitioner is not statutorily ineligible for immigration relief."
C.
Hosseini's strongest argument is that his copying and distribution of MeK and FeK literature did not amount to material support for those organizations. An alien is inadmissible if he:
Affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training ... [to a terrorist organization].
To determine whether Hosseini's activities constitute material support, "[w]e begin, as always, with the text of the statute."
Permanent Mission of India to the United Nations v. City of New York
,
We read material here to incorporate both the "relevant" and "significant" definitions. Context helps us reach that conclusion. The statute at issue bars admission to an alien who has provided material support: "for the commission of a terrorist activity,"
*376 or even "essential" to the commission of terrorism.
Although the statute's list of examples is non-exhaustive, the copying and distribution of literature may not seem as "relevant" or "significant" to the commission of terrorism as the provision of weapons or explosives. But the Supreme Court explained in
Holder v. Humanitarian Law Project
that "seemingly benign support" may provide essential assistance to a violent terrorist organization.
[A] valuable resource by definition. Such support frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups-legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds-all of which facilitate more terrorist attacks.
Moreover, we note that the civil statute at issue in this case captures a broader range of activity than 18 U.S.C. § 2339B. That provision creates a carveout for independent political advocacy, even if that advocacy promotes the terrorist organization's legitimacy: "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control." 18 U.S.C. § 2339B(h). Because there is no record evidence that Hosseini took orders from MeK or FeK-and because Hosseini insists that he was not a member of either organization-his conduct might well have fallen within this carveout, had he been charged under § 2339B. But unlike § 2339B,
Hosseini argues that no other circuit has considered whether non-violent advocacy-by itself-rises to the level of material support. In
Bojnoordi v. Holder
, the Ninth Circuit affirmed a BIA finding of material support because the alien passed out flyers and wrote articles-but also trained the terrorist organization's members on the use of guns.
*377
Nonetheless, other circuits have upheld USCIS and BIA determinations that an alien provided material support to a terrorist organization, even when that support was "relatively low-level."
Sesay v. Attorney Gen. of U.S.
,
Our role, in part, is to set aside agency action "when it is in conflict with the language of the statute relied upon by the agency."
City of Cleveland
,
D.
Finally, we address Hosseini's argument that USCIS acted in an arbitrary and capricious manner for issuing two conflicting decisions on the same issue: his admissibility to the United States. Because he obtained asylum in the United States in 1999, Hosseini argues that USCIS necessarily determined that he was admissible to the United States. As Hosseini correctly notes, USCIS cannot grant asylum "until the identity of the applicant has been checked against all appropriate records or databases ... to determine any grounds on which the alien may be inadmissible to or deportable from the United States, or ineligible to apply for or be granted asylum."
Hosseini's argument is unavailing for the two reasons that USCIS set forth in its decision. First, USCIS did not rely on the same set of facts when it made its decisions. When USCIS granted Hosseini derivative asylum in 1999, it had no access to his wife's file and therefore did not know about Hosseini's involvement with MeK. But in 2014, when USCIS determined that Hosseini was inadmissible, it had reviewed both his wife's file, in which she described Hosseini's involvement with MeK, and his application, in which he admitted to joining FeK. Second, the laws governing the admissibility of asylum applicants changed in 2001, when the PATRIOT Act added new terrorism-related grounds for inadmissibility, including
Because USCIS has provided a well-reasoned explanation for its decisions, we conclude that it did not act in an arbitrary or capricious manner when it ultimately rejected Hosseini's application because of his inadmissibility.
V.
For the foregoing reasons, we AFFIRM the district court's decision.
These organizations have different names and spellings. MeK is sometimes called "the Mojahedin," "the Mujahedeen," and "MEK." Likewise, "Fedaian," "Fadaian," and "Fadayan" are substitutes for FeK. We refer to the organizations as "MeK" and "FeK," unless quoting a source.
Under
"[T]his subchapter" includes
Hosseini stated on his application to adjust his legal status that he "joint [ sic: joined]" FeK from 1979 to 1982. In his March 2009 affidavit, however, Hosseini denied being a FeK member but admitted to supporting FeK policies and attending its meetings.
Reference
- Full Case Name
- Mehrdad HOSSEINI, Plaintiff-Appellant, v. Kirstjen M. NIELSEN, Secretary of the United States Department of Homeland Security; L. Francis Cissna, Director, United States Citizenship and Immigration Services, in His Official Capacity; Kristine R. Crandall, Director of Nebraska Service Center, United States Citizenship and Immigration Services, in Her Official Capacity, Defendants-Appellees.
- Cited By
- 16 cases
- Status
- Published