Abrahim Fofana v. Alejandro Mayorkas

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-1623 ___________________________ Abrahim Mohamed Fofana, lllllllllllllllllllllPlaintiff – Appellee, v. Alejandro Mayorkas, Secretary of Homeland Security; Tracy Renaud, in her official capacity as Acting Director of the United States Citizenship and Immigration Services; Connie Nolan, Acting Associate Director and Service Center Operations Directorate, U.S. Citizenship and Immigration Services; Leslie Tritten, Director, Minneapolis St. Paul Field Office, U.S. Citizenship and Immigration Services; United States Citizenship and Immigration Services,* lllllllllllllllllllllDefendants – Appellants. ____________ Appeal from United States District Court for the District of Minnesota ____________ Submitted: February 16, 2021 Filed: July 15, 2021 ____________ Before LOKEN, COLLOTON, and BENTON, Circuit Judges. ____________ * Acting Director Renaud and Acting Associate Director Nolan are automatically substituted for their predecessors under Federal Rule of Appellate Procedure 43(c)(2). COLLOTON, Circuit Judge. This appeal concerns an application by Abrahim Mohamed Fofana, a citizen of Liberia, for adjustment of status to legal permanent resident in the United States. The government denied Fofana’s application, and he brought suit against several officials under the Administrative Procedure Act. The district court granted summary judgment for Fofana on the ground that the doctrine of issue preclusion barred the government’s rationale for denying the application for adjustment of status. We conclude that the disputed issue was not actually litigated in an earlier proceeding, so issue preclusion does not apply. We therefore reverse the judgment and remand for further proceedings. On January 28, 2001, Fofana arrived in the United States and applied for asylum. He professed fear that he would be persecuted if the government returned him to Liberia. In the course of the proceedings, he averred that he raised funds for the United Liberation Movement, a Liberian rebel group that opposed the governing party in Liberia, and cited that activity as one reason that he feared future persecution. An immigration judge granted the application for asylum. Fofana later applied to adjust his status to legal permanent resident. The government denied the application on the ground that Fofana had solicited funds for a terrorist organization—namely, the United Liberation Movement. Aliens who “solicit funds” for a terrorist organization are inadmissible to the United States “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.” 8 U.S.C. § 1182 (a)(3)(B)(iv)(IV)(cc); see id. § 1182(a)(3)(B)(i)(I). The government determined that Fofana had failed to make the requisite showing, so he was inadmissible. The legal status of inadmissible aliens cannot be adjusted, see id. § 1159(b)(5), so the government denied Fofana’s application. -2- Fofana then brought this action in the district court. He argued, among other things, that the government was precluded from declaring him inadmissible based on soliciting funds for a terrorist organization, because his admissibility on that basis was actually litigated and decided in his favor during the 2001 asylum proceeding. The district court accepted that argument and granted summary judgment for Fofana. On appeal, the government asserts that …

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