Khalil Janjua v. Donald Neufeld , 933 F.3d 1061 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KHALIL JANJUA, No. 17-16558
Plaintiff-Appellant,
D.C. No.
v. 15-05475 EMC
DONALD NEUFELD, Associate
Director, USCIS Nebraska Service OPINION
Center; KENNETH T. CUCCINELLI,
Acting Director, USCIS; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICE; KEVIN K.
MCALEENAN, Acting Secretary, U.S.
Department of Homeland Security;
U.S. DEPARTMENT OF HOMELAND
SECURITY; WILLIAM P. BARR, U.S.
Attorney General,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted March 14, 2019
San Francisco, California
Filed August 9, 2019
2 JANJUA V. NEUFELD
Before: J. Clifford Wallace, A. Wallace Tashima,
and M. Margaret McKeown, Circuit Judges.
Opinion by Judge Tashima
SUMMARY*
Immigration
Affirming the district court’s grant of summary judgment
in favor of United States Citizenship and Immigration Service
(“USCIS”) and related defendants, the panel held that (1) for
purposes of issue preclusion, an issue was “actually litigated”
only if it was raised, contested, and submitted for
determination in a prior adjudication, and (2) the issue of
whether Khalil Janjua was inadmissible on terrorism-related
grounds was not actually litigated in his asylum proceedings
and, therefore, issue preclusion did not apply to his
adjustment of status proceedings.
Janjua, a native and citizen of Pakistan, was granted
asylum and then applied for adjustment of status. USCIS
denied his application on the ground that he was inadmissible
for having supported a Tier III terrorist organization in
connection with his involvement with the Muhajir Qaumi
Movement in Pakistan.
Janjua sought review of USCIS’s decision in the district
court. Because the same terrorism-related grounds for
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JANJUA V. NEUFELD 3
inadmissibility that bar asylum also bar adjustment of status,
Janjua argued that issue preclusion prevented the government
from raising terrorism-related inadmissibility in the
adjustment of status proceedings because the immigration
judge had necessarily concluded that Janjua was not
inadmissible on these grounds when he granted Janjua
asylum. The district court concluded that issue preclusion did
not apply and granted the government’s motion for summary
judgment.
Issue preclusion, also known as collateral estoppel, bars
the relitigation of an issue where four conditions are met:
(1) the issue at stake was identical in both proceedings;
(2) the issue was actually litigated and decided in the prior
proceedings; (3) there was a full and fair opportunity to
litigate the issue; and (4) the issue was necessary to decide
the merits. Here, the central question was whether Janjua’s
inadmissibility for supporting a Tier III terrorist organization
was “actually litigated” in his asylum proceeding.
Assuming without deciding that issue preclusion applies
in immigration adjustment of status proceedings, the panel
held, consistent with the Restatement (Second) of Judgments
and this court’s sister circuits, that an issue is “actually
litigated” when an issue is raised, contested, and submitted
for determination. The panel rejected Janjua’s argument that
an issue should be considered actually litigated if it was
implicitly raised or if the parties had a full and fair
opportunity to raise it, explaining that such a standard would
conflate the separate requirements that an issue be actually
decided in the prior proceedings and necessary to decide the
merits.
4 JANJUA V. NEUFELD
Because the issue of whether Janjua was inadmissible on
terrorism-related grounds was not raised, contested, and
submitted for determination at his asylum proceeding, the
panel concluded that the issue was not actually litigated and,
thus, issue preclusion did not apply.
COUNSEL
Morgan Russell (argued), San Francisco, California; Robert
B. Jobe, and Anna Benvenue, Law Office of Robert B. Jobe,
San Francisco, California, for Plaintiff-Appellant.
Kathrine J. Shinners (argued) and Brian C. Ward, Senior
Litigation Counsel; Gisela A. Westwater, Assistant Director;
William C. Peachey, Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellees.
OPINION
TASHIMA, Circuit Judge:
In this case we address, as a matter of first impression in
our Circuit, the standard for determining whether an issue
was “actually litigated” in a previous adjudication for
purposes of issue preclusion, also known as collateral
estoppel. We hold that an issue was actually litigated only if
it was raised, contested, and submitted for determination in
the prior adjudication.
Khalil Janjua (“Janjua”), a noncitizen, was granted
asylum in the United States. Shortly thereafter, he applied for
JANJUA V. NEUFELD 5
adjustment of status, which was denied on the ground that he
was inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i) for
having supported a Tier III terrorist organization. To be
eligible for asylum, an applicant must not be inadmissible
under § 1182(a)(3)(B). Adjustment of status imposes the
same requirements. Janjua thus argues that because he was
granted asylum—and therefore was necessarily not found
inadmissible on account of terrorism-related activities under
§ 1182(a)(3)(B)(i) —issue preclusion bars the government
from now denying his adjustment of status application on that
ground. The question of whether Janjua was inadmissible on
terrorism-related grounds was never raised, contested, or
submitted for determination at Janjua’s asylum proceeding.
Janjua’s work for the relevant organization, however, was
discussed at length. Assuming without deciding that issue
preclusion applies in adjustment of status proceedings, the
central question before us is whether the issue of terrorism-
related inadmissibility was actually litigated at Janjua’s
asylum proceeding for purposes of issue preclusion. Because
that issue was not raised, contested, or submitted for
determination at Janjua’s asylum proceeding, it was not
actually litigated. Issue preclusion does not bar the
government from disputing that issue in Janjua’s adjustment
of status proceeding. We therefore affirm.
BACKGROUND
I. Factual Background
Janjua is a native and citizen of Pakistan. As a Muhajir1
living in Pakistan, Janjua joined the Muhajir Qaumi
1
Muhajir refers to those people who are or are descended from
Muslim immigrants from India to Pakistan.
6 JANJUA V. NEUFELD
Movement (“MQM”), a political group. Janjua worked on
behalf of the MQM, “attending . . . meetings, organizing . . .
rallies, distributing . . . flyers,” and advocating for the group’s
message during elections. As a result of his affiliation with
and work for the MQM, Janjua was arrested and beaten by
the police and by members of the opposition party numerous
times while in Pakistan. Janjua eventually fled Pakistan in
July 1998, entering the United States without inspection in
Arizona on January 17, 1999.
II. Procedural Background
In November 1999, Janjua applied for asylum with the
legacy Immigration and Naturalization Service. In January
2000, Janjua’s application was rejected, and the government
served Janjua with a Notice to Appear (“NTA”) in removal
proceedings, charging him with inadmissibility under
8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United
States without having been admitted or paroled. The NTA
did not charge him with inadmissibility under any terrorism-
related inadmissibility grounds.
Janjua conceded removability, but submitted applications
for asylum, withholding of removal, and relief under Article
3 of the Convention Against Torture (“CAT”) predicated on
his fear of persecution on the basis of his membership in the
MQM. At Janjua’s merits hearing, the immigration judge
(“IJ”) admitted into evidence Janjua’s written statement
regarding his participation in MQM activities and meetings,
and Janjua testified at length about what he did as a member
of the MQM and the abuse he suffered as a result of his
membership. At one point, the government attorney focused
on the MQM’s reputation for violence, noting that “the
Country Reports on Pakistan put out by the Department of
JANJUA V. NEUFELD 7
State for the United States Government suggests that the
MQM has demonstrated its willingness to use violence and
intimidation to further its objectives” and asking whether
Janjua had ever “used violence and intimidation to further the
goals of the MQM,” to which Janjua responded, “Never.”
Neither Janjua’s written statement nor his oral testimony
discussed whether Janjua collected funds or donations on
behalf of the MQM, although he did at one point briefly
discuss the annual donation his father would make to the
MQM. At no point in the hearing was the issue of whether
MQM would qualify as a terrorist organization ever raised
or discussed. Then, as remains the case today, asylum was
prohibited if an applicant was inadmissible for engaging
in terrorist activity, which included knowingly
providing material support to or soliciting funds on behalf
of a designated terrorist organization. 8 U.S.C.
§ 1182(a)(3)(B)(iv)(IV)(cc), (VI)(cc).
The IJ denied Janjua’s applications for asylum,
withholding of removal, and protection under CAT, but the
Board of Immigration Appeals (“BIA”) reversed and
remanded on the issue of Janjua’s credibility. On remand, the
IJ eventually granted Janjua’s application for asylum in April
2007, without a written opinion. By that time, Congress had
expanded terrorism-related inadmissibility to also cover so-
called Tier III terrorist organizations, “group[s] of two or
more individuals, whether organized or not, which engage[]
in, or has a subgroup which engages in” certain terrorist
activities. 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)(cc), (VI)(dd).
In December 2008, Janjua filed a Form I-485, applying
for adjustment of status to permanent residency pursuant to
8 U.S.C. § 1159. After waiting years without adjudication of
his application, Janjua filed a petition for a writ of mandamus
8 JANJUA V. NEUFELD
in the United States District Court for the Northern District of
California, alleging unlawful delay by the government and
asking the court compel the United States Citizenship and
Immigration Service (“USCIS”) adjudicate his adjustment of
status application. USCIS responded by requesting additional
evidence from Janjua regarding his activities with MQM,
which he provided.
USCIS denied Janjua’s application on August 2, 2016,
on the ground that he was inadmissible under
§ 1182(a)(3)(B)(i)(I) because he “afford[ed] material
support [to]” and “solicit[ed] funds” for MQM. which
qualified as a Tier III terrorist organization. See 8 U.S.C.
§ 1182(a)(3)(B)(iv)(IV)(cc), (VI)(dd). Thus, USCIS
concluded that Janjua was inadmissible under
§ 1182(a)(3)(B)(i)(I)—and therefore barred from receiving
adjustment of status—because he had engaged in terrorist
activity by supporting the MQM.
Following this, Janjua amended his complaint to
challenge USCIS’ denial of his application. Because the
same terrorism-related grounds for inadmissibiliaty that bar
asylum also bar adjustment of status, see 8 U.S.C.
§ 1158(b)(2)(A)(v) (asylum); § 1159(b)(5), (c) (adjustment of
status), Janjua argued that issue preclusion prevented the
government from raising terrorism-related inadmissibility in
the adjustment of status proceedings because the IJ had
necessarily concluded that Janjua was not inadmissible on
these grounds when he granted Janjua asylum. Janjua moved
for summary judgment on the same basis. The government
filed a cross-motion for summary judgment, arguing that
issue preclusion did not apply to Janjua’s adjustment
application and, even if it did, the issue was not identical,
previously litigated, or decided.
JANJUA V. NEUFELD 9
On July 6, 2017, the district court denied Janjua’s motion
and granted the government’s. The district court first held
that issue preclusion does apply in adjustment of status
proceedings governed by the Immigration and Nationality
Act (“INA”). The district court agreed with the government,
however, that the elements of issue preclusion were not met
here because the issue had not been “actually litigated” in
Janjua’s asylum proceedings because it was not explicitly
raised and contested. Accordingly, the district court granted
the government’s motion for summary judgment.2 Janjua
timely appealed.
STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s decision to grant summary
judgment, Friends of Santa Clara River v. U.S. Army Corps
of Eng’rs, 887 F.3d 906, 920 (9th Cir. 2018), and its
application of collateral estoppel, Clark v. Bear Stearns &
Co., 966 F.2d 1318, 1320 (9th Cir. 1992).
DISCUSSION
Issue preclusion, also known as collateral estoppel, “bars
the relitigation of issues actually adjudicated in previous
litigation.” Id. For issue preclusion to apply, four conditions
must be met: “(1) the issue at stake was identical in both
proceedings; (2) the issue was actually litigated and decided
in the prior proceedings; (3) there was a full and fair
2
The court further explained that the only remaining issue was
whether USCIS had acted arbitrarily or capriciously in recognizing the
MQM as a Tier III terrorist organization, which Janjua had not contested
and therefore waived.
10 JANJUA V. NEUFELD
opportunity to litigate the issue; and (4) the issue was
necessary to decide the merits.” Oyeniran v. Holder,
672 F.3d 800, 806 (9th Cir. 2012), as amended (May 3,
2012); see also Howard v. City of Coos Bay, 871 F.3d 1032,
1041 (9th Cir. 2017) (reciting the four conditions). Here, the
central question is whether Janjua’s inadmissibility for
supporting a Tier III terrorist organization was actually
litigated in the prior adjudication.3 Assuming without
deciding that issue preclusion applies in immigration
adjustment of status proceedings, we hold that Janjua’s
inadmissibility on terrorism-related grounds was not actually
litigated, because the issue was not in fact raised, contested,
or submitted to the IJ for determination in Janjua’s asylum
proceeding.
Unlike claim preclusion, also known as res judicata, issue
preclusion requires that an issue must have been “actually and
necessarily determined by a court of competent jurisdiction”
to be conclusive in a subsequent suit. Montana v. United
States, 440 U.S. 147, 153 (1979). Thus, issue preclusion does
not apply to those issues that could have been raised, but were
not: “the judgment in the prior action operates as an estoppel,
not as to matters which might have been litigated and
determined, but ‘only as to those matters in issue or points
controverted, upon the determination of which the finding or
verdict was rendered.’” Sea-Land Servs., Inc. v. Gaudet,
414 U.S. 573, 593 (1974) (quoting Comm’r v. Sunnen,
333 U.S. 591, 598 (1948) (in turn, quoting Cromwell v.
County of Sac, 94 U.S. 351, 353 (1876))) (emphasis added),
3
Janjua does not dispute that he aided MQM, nor does he appear to
dispute MQM’s characterization by USCIS as a Tier III terrorist
organization.
JANJUA V. NEUFELD 11
superseded on other grounds by statute as stated in Miles v.
Apex Marine Corp., 498 U.S. 19, 30 n.1 (1990).
Accordingly, when applying issue preclusion, we have
consistently looked to the record of the prior proceeding to
determine whether an issue was in fact raised, contested, and
submitted for determination. See Oyeniran, 672 F.3d at 804,
806 (explaining that the question of whether petitioner’s
father was tortured in Nigeria was “actually litigated” because
petitioner presented evidence on the issue, the IJ specifically
found so, and the government challenged that claim “[a]t
every stage of the administrative proceedings”); Disimone v.
Browner, 121 F.3d 1262, 1268 (9th Cir. 1997) (explaining
that the issue was actually litigated, even though the prior
court did not explicitly address it in its decision, because the
parties had raised and contested the issue and the district
court had necessarily decided the issue by reaching its
decision); see also Montana, 440 U.S. at 156–58 (applying
issue preclusion and explaining that “[a] review of the record
in [the first adjudication] dispels any doubt that the plaintiff
there raised and the Montana Supreme Court there decided
the precise constitutional claim that the United States
advances here” and therefore “the ‘question expressly and
definitely presented in this suit is the same as that definitely
and actually litigated and adjudged’ adversely to the
Government in state court”) (internal citation omitted).
Thus, consistent with the Restatement (Second) of
Judgments and our sister circuits, we hold that an issue is
actually litigated when an issue is raised, contested, and
submitted for determination. Restatement (Second) of
Judgments § 27, cmt. (d) (1982) (“When an issue is properly
raised, by the pleadings or otherwise, and is submitted for
determination and is determined, the issue is actually litigated
12 JANJUA V. NEUFELD
. . . .”); Raspanti v. Keaty (In re Keaty), 397 F.3d 264, 272
(5th Cir. 2005) (“The requirement that an issue be ‘actually
litigated’ for collateral estoppel purposes simply requires that
the issue is raised, contested by the parties, submitted for
determination by the court, and determined.”); Swentek v.
USAIR, Inc., 830 F.2d 552, 561 (4th Cir. 1987) (“Collateral
estoppel is appropriate where the identical issue was ‘actually
litigated, that is, contested by the parties and submitted for
determination by the court . . . .’” (citation omitted)),
abrogated on other grounds as recognized by Mikels v. City
of Durham, N.C., 183 F.3d 323 (4th Cir. 1999); McLaughlin
v. Bradlee, 803 F.2d 1197, 1201 (D.C. Cir. 1986) (“First, the
same issue ‘must have been actually litigated, that is,
contested by the parties and submitted for determination by
the court.’” (citation omitted)); see also 18 James Wm.
Moore et al., Moore’s Federal Practice § 132.03(2)(a) (2018)
(“The ‘actually litigated’ requirement simply requires the
issue to have been raised, contested by the parties, submitted
for determination by the court, and determined.”).4 Under
this standard, neither an issue that could have, but was not,
asserted (such as an affirmative defense) nor an issue that was
raised but admitted was “actually litigated.” See Restatement
(Second) of Judgments § 27, cmt. (e) (1982) (“A judgment is
not conclusive in a subsequent action as to issues which
might have been but were not litigated and determined in the
prior action . . . . An issue is not actually litigated if the
defendant might have interposed it as an affirmative defense
but failed to do so; nor is it actually litigated if it is raised by
a material allegation of a party’s pleading but is admitted
4
Our Circuit’s test for issue preclusion already requires that an issue
be “decided in the prior proceedings,” Oyeniran, 572 F.3d at 806, so there
is no need to require that an issue was “determined” for it to have been
“actually litigated.”
JANJUA V. NEUFELD 13
(explicitly or by virtue of a failure to deny) in a responsive
pleading.”).
Janjua argues, however, that an issue should be
considered actually litigated if it was implicitly raised or if the
parties had a full and fair opportunity to raise it. But such a
standard would conflate the separate requirements that an
issue be “actually . . . decided in the prior proceedings” and
“necessary to decide the merits.” Oyeniran, 672 F.3d at 806.
Issues that are necessarily decided include all issues that must
have been decided for a judgment to stand—when asylum is
granted, the IJ necessarily decides that none of the grounds
for inadmissibility that automatically bar relief
applies—regardless of whether they were explicitly raised or
contested. See Clark, 966 F.2d at 1321. Even if an issue is
not explicitly raised, if it is necessary to the ultimate
determination, it is “necessarily decided.” But if an issue is
actually litigated if it was implicitly raised, the requirement
of actually litigated is rendered meaningless.
Further, the standard urged by Janjua—that an issue is
actually litigated if it was implicitly raised—would expand
the province of issue preclusion and encroach upon the
province of claim preclusion. Both claim preclusion and
issue preclusion are meant to preserve judicial resources,
minimize inconsistent decisions, and prevent superfluous
suits. See Allen v. McCurry, 449 U.S. 90, 95 (1980). But one
of the key distinctions between claim preclusion and issue
preclusion is that the former bars relitigation of any and all
matters that were or could have been raised at that
adjudication, see id. at 94, while the latter precludes
relitigation of only those issues that were “actually and
necessarily determined,” Montana, 440 U.S. at 153, i.e., those
that were raised, contested, submitted for determination, and
14 JANJUA V. NEUFELD
determined. The standard urged by Janjua would allow much
broader preclusion, including of issues implicitly—but not in
fact—raised. And precluding an issue that was not actually
litigated—i.e., not raised, contested. and submitted for
determination—does not conserve judicial resources or
facilitate reliance on the earlier judgment because resources
were not expended on the issue in the first place. To the
extent that Janjua argues that the issue should be foreclosed
because it was implied or ought to have been raised by the
government, that is precisely the sort of preclusion reserved
for claim preclusion, not issue preclusion.
Janjua also makes the alternative—and ultimately
unpersuasive—argument that an issue was “actually litigated”
so long as there was a “fair opportunity” to litigate the issue.
But our precedent clearly lays out “actually litigated” and a
“full and fair opportunity” to litigate as separate
requirements, each of which must be met for issue preclusion
to apply. See Oyeniran, 672 F.3d at 806. And although we
have at least once characterized the necessity that a party
have had a “full and fair” opportunity to litigate the issue as
part of the “actually litigated” consideration, see Littlejohn v.
United States, 321 F.3d 915, 923 (9th Cir. 2003), this was not
to say that an issue was actually litigated so long as there was
a full and fair opportunity to do so; rather, we explained that
issue preclusion is “inappropriate where the parties have not
had a full and fair opportunity to litigate the merits of an
issue.” Id. (citing Allen, 449 U.S. at 94–95). A full and fair
opportunity was (and remains) a necessary condition for issue
preclusion, but we never suggested that it was sufficient to
satisfy the actually litigated requirement. We have since
clarified that the full and fair opportunity requirement is a
separate step of the issue preclusion analysis. See Oyeniran,
672 F.3d at 806; Howard, 871 F.3d at 1041 (quoting and
JANJUA V. NEUFELD 15
applying Oyeniran’s test); Medina-Lara v. Holder, 771 F.3d
1106, 1118 (9th Cir. 2014) (same). We reject Janjua’s
proposed rule because it conflates two distinct elements of the
issue preclusion test.
Having determined that an issue was actually litigated if
it was raised, contested, and submitted for determination by
the parties, we now turn to the question of whether Janjua’s
terrorism-related inadmissibility was actually litigated here.
Neither the question of whether MQM qualifies as a terrorist
organization nor whether Janjua engaged in terrorist activity
and was inadmissible as a result was raised, contested, or
submitted for determination in Janjua’s asylum proceedings.
To be sure, Janjua’s membership in and work for the
MQM were discussed at length at the merits hearing,
including whether he had ever used violence or intimidation
to further the organization’s goals. Yet, these topics were
explored for their relevance to Janjua’s purported basis for
persecution; no one raised, or even hinted at, these topics as
potential grounds for inadmissibility under
§ 1182(a)(3)(B)(i). Neither party ever addressed whether the
MQM was a Tier III terrorist group—this category did not
exist at the time of the merits hearing, and no further
argument was presented to the IJ after the statutory
amendment. And neither party addressed whether Janjua’s
support for the MQM would make him inadmissible—which
makes sense for the same reasons. While Janjua’s work for
the MQM was addressed in the asylum proceedings, the
specific issue of whether he was inadmissible based on that
work was not raised, contested, or submitted for
determination. It was not actually litigated in Janjua’s
asylum proceeding, and issue preclusion does not apply.
16 JANJUA V. NEUFELD
Janjua’s reliance on Paulo v. Holder, 669 F.3d 911 (9th
Cir. 2011), is misplaced. There, the petitioner’s eligibility for
INA § 212(c) relief from removal was raised, contested, and
submitted for determination in the first proceeding; in the
second, the government advanced a new argument as to why
he was ineligible. See id. at 917. Issue preclusion applied
because “[t]he fact that a particular argument against Paulo’s
eligibility was not made by the government and not addressed
by the district court does not mean that the issue of Paulo’s
eligibility for § 212(c) relief was not decided.” Id. (emphases
added). Here, however, the government’s challenge to
Janjua’s admissibility in the adjustment of status proceeding
is not merely a new argument; rather, the issue of terrorism-
related inadmissibility was never disputed in the asylum
proceeding. Thus, it was not actually litigated and issue
preclusion cannot apply.
CONCLUSION
For the foregoing reasons, we hold that an issue is
“actually litigated” for purposes of issue preclusion when it
is raised, contested by the parties, and submitted for
determination in the prior proceeding. Because the issue of
whether Janjua was inadmissible on terrorism-related grounds
was not raised, contested, and submitted for determination at
his asylum proceeding, it was not actually litigated. Issue
preclusion does not apply.
AFFIRMED.