Fofana v. Mayorkas

Background

Abrahim Mohamed Fofana applied for adjustment of status as a lawful permanent resident after receiving asylum in the United States. Before coming to the United States, Fofana lived in Saudi Arabia and belonged to the Liberian Student Organization from 1992 through 1995. The organization solicited donations supporting the United Liberation Movement for Democracy, or ULIMO.

Fofana testified that he believed ULIMO was a legitimate organization working with the Liberian government and international peacekeeping forces. He said he had never heard reports that ULIMO killed civilians, committed war crimes, or engaged in other conduct that would be considered terrorist activity. ULIMO later disbanded, but records showed that it had committed widespread war crimes and crimes against humanity.

Nearly sixteen years after Fofana applied for adjustment of status, United States Citizenship and Immigration Services denied the application. USCIS concluded that Fofana was inadmissible under the Immigration and Nationality Act because he had solicited funds for ULIMO and knew or should have known that ULIMO was a Tier III terrorist organization. USCIS also declined to use its discretionary authority to waive the terrorism-related inadmissibility ground.

Jurisdiction

The defendants argued that 8 U.S.C. § 1252(a)(2)(B)(ii) prevented the court from reviewing USCIS’s decision. The court rejected that argument. It held that the issues Fofana challenged—whether ULIMO qualified as a Tier III terrorist organization and whether Fofana engaged in terrorist activity—were non-discretionary predicate determinations. The Secretary of Homeland Security could exercise discretion over adjustment of status only after deciding that Fofana was admissible.

The court therefore concluded that it had subject-matter jurisdiction to review the non-discretionary legal and factual determinations, although it did not review decisions left to the Secretary’s discretion. The court also rejected Fofana’s alternative argument that the jurisdictional bar applied only in removal proceedings.

Merits

The court reviewed the agency decision under the Administrative Procedure Act. Under that law, a court may set aside agency action that is arbitrary, capricious, an abuse of discretion, or contrary to law.

The court first held that USCIS used the wrong statutory cross-reference. USCIS relied on the provision defining “engage in terrorist activity,” which includes providing material support to certain organizations. The court held that the relevant inadmissibility provision instead referred to “a terrorist activity,” as defined in a narrower statutory provision. Because USCIS did not allege that Fofana personally engaged in one of the acts covered by that narrower definition, the court held that USCIS incorrectly found him inadmissible under that provision.

The court rejected Fofana’s argument that ULIMO had to be actively engaged in prohibited conduct when he applied for adjustment of status. Instead, the relevant question was whether ULIMO engaged in the prohibited conduct when Fofana provided support. However, the court held that USCIS failed to determine whether ULIMO’s leadership authorized the relevant activities, which was an important consideration in deciding whether ULIMO qualified as a Tier III terrorist organization. The court declined to make that determination itself and ordered further administrative proceedings.

The court also held that USCIS inadequately analyzed Fofana’s knowledge. Fofana acknowledged knowing that ULIMO used violence, but the relevant issue was whether he knew or should have known that the violence was unlawful and that ULIMO was a terrorist organization. The court found that USCIS focused on ULIMO’s violence without addressing whether the violence was unlawful or whether Fofana had the required knowledge. It concluded that Fofana presented clear and convincing, largely unrebutted evidence that he did not know and should not have known that ULIMO engaged in unlawful violence or qualified as a terrorist organization.

Disposition

Judge John R. Tunheim granted Fofana’s second motion for summary judgment and denied the defendants’ cross-motion for summary judgment. The court vacated USCIS’s denial of Fofana’s application for adjustment of status and remanded the application to USCIS for proceedings consistent with the opinion. The order did not itself grant Fofana adjustment of status.