United States Court of Appeals
For the Eighth Circuit
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No. 20-1623
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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.
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Appeal from United States District Court
for the District of Minnesota
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Submitted: February 16, 2021
Filed: July 15, 2021
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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*
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.
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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 issue preclusion does not apply because
Fofana’s inadmissibility on the ground that he solicited funds for a terrorist
organization was not “actually litigated” in the asylum proceeding. Issue preclusion,
also known as collateral estoppel, bars relitigation of a question of law or fact in a
subsequent proceeding between the same parties if in the first proceeding, the
“issue . . . is actually litigated and determined by a valid and final judgment, and the
determination is essential to the judgment.” Turner v. U.S. Dep’t of Just., 815 F.3d
1108, 1111 (8th Cir. 2016) (quoting Restatement (Second) of Judgments § 27 (Am.
L. Inst. 1982)).
The statutory scheme in 2001 provided that an alien who solicited funds for a
terrorist organization was inadmissible. The Immigration and Nationality Act
rendered an alien inadmissible if he committed “an act which the actor knows, or
reasonably should know, affords material to support to any . . . organization . . . in
conducting a terrorist activity at any time, including . . . [t]he soliciting of funds or
other things of value . . . for any terrorist organization.” 8 U.S.C.
§ 1182(a)(3)(B)(iii)(IV) (2000); see also id. § 1182(a)(3)(B)(i)(I) (2000). An alien
who was inadmissible on that basis could not receive asylum in the United States. Id.
§ 1158(b)(2)(A)(v) (2000). Thus, if the United Liberation Movement was a terrorist
organization, then the government could have invoked Fofana’s solicitation of funds
for the organization to preclude a grant of asylum.
In granting summary judgment for Fofana in this case, the district court
believed that because “inadmissibility is a complete bar to an application for asylum,
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the [immigration judge] necessarily determined Fofana was admissible when granting
his asylum application.” The court then concluded that because “the issue of
inadmissibility was necessarily determined, it was actually litigated for the purposes
of collateral estoppel.” A principal dispute on appeal is whether the district court
properly applied the “actually litigated” requirement.
The long-established rule is that issue preclusion applies “only as to those
matters in issue or points controverted, upon the determination of which the finding
or verdict [in the prior proceeding] was rendered.” Cromwell v. County of Sac, 94
U.S. 351, 353 (1876). “[T]he inquiry must always be as to the point or question
actually litigated and determined in the original action, not what might have been thus
litigated and determined.” Id. An issue lurking in the record but not raised or
decided is not actually litigated. A party may choose not to litigate a particular issue
for various reasons, including cost, strategy, and the difficulty of obtaining evidence.
Id. at 356-57; Restatement (Second) of Judgments § 27 cmt. e. We thus agree with
other circuits that for an issue to be “actually litigated,” the issue must have been
“raised, contested, and submitted for determination” in the prior proceeding, Janjua
v. Neufeld, 933 F.3d 1061, 1066 (9th Cir. 2019), and it must be determined. Islam v.
Sec’y, Dep’t of Homeland Sec., 997 F.3d 1333, 1341 (11th Cir. 2021); see also
Restatement (Second) of Judgments § 27 cmt. d.
The record shows that whether Fofana was inadmissible because he solicited
funds for a terrorist organization was not raised, contested, and submitted for
determination in the 2001 asylum proceeding. The Notice to Appear charged only
two grounds of inadmissibility: (1) using fraud or misrepresentation to procure a visa
to the United States, and (2) failing to have a valid visa or other entry document at the
time of application for admission. Although Fofana admitted in his asylum
application that he raised funds for the United Liberation Movement “fighters,” the
government did not allege inadmissibility based on that activity. At the removal
hearing, Fofana conceded both charged grounds of inadmissibility and sought asylum
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and withholding of removal based on a fear that he would be persecuted on return to
Liberia. Fofana also discussed his solicitation of funds for the United Liberation
Movement, but he did so in support of his claim that he feared persecution, not in
response to the government or the court raising a potential ground for inadmissibility.
At the end of the hearing, the government advised the court in light of Fofana’s
testimony that it would “not oppose a grant [of asylum] by the court.” The
government did not argue that the United Liberation Movement was a terrorist
organization, that Fofana’s solicitation of funds for the organization supported
terrorism, or that Fofana was inadmissible based on his solicitation of funds. Those
issues were not raised, contested, or submitted for determination. The immigration
court granted asylum without addressing whether Fofana was inadmissible because
he solicited funds. Accordingly, Fofana’s inadmissability on terrorism grounds was
not “actually litigated” in the 2001 asylum proceeding. The government was not
precluded at a later date from relying on Fofana’s solicitation of funds in denying
adjustment of status. Accord Islam, 997 F.3d at 1340-42; Janjua, 933 F.3d at 1067-
68.
Fofana argues that this court took a broader view of the “actually litigated”
requirement in Irving v. Dormire, 586 F.3d 645 (8th Cir. 2009). In Irving, a prisoner
sued state officials under 42 U.S.C. § 1983, alleging that they denied him access to
legal materials and thereby caused him to file an untimely habeas petition. The
prisoner previously had moved under Federal Rule of Civil Procedure 60(b) to vacate
the adverse habeas judgment, and argued in part that the state officials had purposely
denied him access to legal materials that were necessary to file a timely petition. In
affirming the dismissal of the § 1983 action, this court reasoned that the habeas court,
in denying the Rule 60(b) motion in the face of the prisoner’s claim that he was
denied access to legal materials, “necessarily decided” that the prisoner was not
illegally denied access, even though the habeas court did not specifically address the
claim. Id. at 647-48.
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While it is true that Irving applied issue preclusion in a case where the court’s
ruling on an issue in the first proceeding was implicit rather than explicit, the
disputed issue was raised and submitted for determination in the first proceeding.
Therefore, Irving at most stands for the proposition that an issue may be “actually
litigated” if the issue is raised and implicitly decided against the party who raised it.
Irving does not establish that an issue is actually litigated where, as here, it was
neither raised by the parties nor mentioned by the court in the first proceeding.
For these reasons, the judgment of the district court is reversed, and the case
is remanded for further proceedings.
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