SINGH
v. WILES (W.D.Wash. 9-28-2010)
NIRMAL
SINGH, Plaintiff, v. MARILYN P. WILES[fn1], et al.,
Defendants.
CASE
NO. C07-1151RAJ.
United
States District Court, W.D. Washington, at Seattle.
September
28, 2010
[fn1] The court directs the clerk to substitute Marilyn
Wiles, director of the Nebraska Service Center of United
States Citizenship and Immigration Services, for Gerald
Heinauer, her predecessor. Fed.R.Civ.P. 25(d).
ORDER
RICHARD JONES, District Judge
I. INTRODUCTION
This matter comes before the court on the parties' cross-motions
for summary judgment. Dkt. ## 66, 67. Defendants requested
oral argument; plaintiff did not. As the court's review
is limited to the administrative record, the court finds
oral argument unnecessary. For the reasons stated below,
the court GRANTS Plaintiff's motion, DENIES Defendant's
motion, and remands this action to United States Citizenship
and Immigration Services ("USCIS") for a new
adjudication of Plaintiff's application for adjustment
of status. The court DISMISSES this action, and the
clerk shall enter judgment for Plaintiff. Page
2
II. BACKGROUND
After much administrative wrangling, this dispute now
turns on an understanding of the Sikh fundamentalist
movement in northwest India from the 1970s to the 1990s
and whether Damdami Taksal, a Sikh religious institution,
can be branded a "terrorist organization"
within the meaning of Section 212 of the Immigration
and Nationality Act ("INA"). 8
U.S.C. § 1182(a)(3)(B)(vi).
Plaintiff Nirmal Singh is a native of India and a Sikh
holy man who has resided lawfully in the United States
since at least 1999, when USCIS's predecessor granted
him asylum. In February 2001, he filed an application
to adjust his immigration status to "lawful permanent
resident." More than eight years passed between
Mr. Singh's application and the USCIS's final disposition
of his application. The eight-year delay has been the
subject of this court's prior orders, and the court
declines to repeat that discussion here. To summarize,
USCIS initially delayed adjudication of Mr. Singh's
application because of a quota limiting the number of
asylees who could adjust their status, delayed it after
the quota for other reasons, then denied it, then vacated
the denial while the Department of Homeland Security
("DHS") considered policy changes that might
benefit Mr. Singh, then denied it again when DHS declined
to adopt such changes.
The pending motions concern USCIS's most recent denial
of Mr. Singh's application, memorialized in an October
2, 2009 letter ("Denial Letter"). Dkt. # 53.
USCIS declared Mr. Singh ineligible for adjustment of
status because he had provided aid to a terrorist organization
while he resided in India. Denial Ltr. at 3. Specifically,
the Denial Letter cited Mr. Singh's admission that "in
1984 [he] had allowed members of Damdami Taksal to spend
the night at [his] temple and that sometimes [members
of Damdami Taksal] came there to hide from police."
Denial Ltr. at 2. A portion of the Denial Letter reviews
various public reports and articles that USCIS contends
support its conclusion that Damdami Taksal was a terrorist
organization when Mr. Singh aided its members. Page
3
Mr. Singh was aware that USCIS took the position that
Damdami Taksal was a terrorist organization. It had
stated as much in an October 25, 2007 letter notifying
him of its intent to deny his application. Administrative
Record ("AR")[fn2] (Dkt. # 32) at 22-24. In
response to that letter, Mr. Singh submitted a statement
from Dr. Cynthia Mahmood, an anthropology professor
from the University of Notre Dame. AR (Dkt. # 32) at
60-65. Dr. Mahmood has conducted research and written
extensively about Sikhism, Sikh culture, and militant
or fundamentalist Sikh movements.
Dr. Mahmood explains that Damdami Taksal is a Sikh educational
institution, something akin to a seminary, although
Sikhism has no priesthood. At any given time, some number
of Sikhs are in study at Damdami Taksal.
In the late 1970s, Jarnail Singh Bhindranwale became
the leader of Damdami Taksal. He is widely associated
with the "Khalistan" movement, which sought
to establish an independent Sikh republic. As the movement
grew, clashes between Sikhs and the Indian government
led to the death of some Sikhs. In April 1984, Bhindranwale
came to Mr. Singh's village to baptize 200 Sikh boys.
At that time, one of Mr. Singh's assistants collected
money from villagers to give the Bhindranwale and his
supporters to help the families of Sikhs who had been
killed. The record suggests that Mr. Singh was aware
that Bhindranwale and his supporters purchased arms,
but that he was told that the money his assistant collected
would be used solely to support families in need.
Not long after his visit to Mr. Singh's village, Bhindranwale
and a group of armed supporters installed themselves
in the Golden Temple in Amritsar, the holiest shrine
of the Sikh religion. Indian military forces clashed
with him and his supporters. In thirty-six hours of
fighting, hundreds of Sikhs and a smaller number of
soldiers were killed. Page 4
Bhindranwale was among the dead. There were many episodes
of violence in Punjab in the wake of the Golden Temple
incident. Mr. Singh led a group of Sikhs from his village
to Amritsar, but Indian authorities arrested Mr. Singh
en route. The police held him until October 16, 1984.
When he returned to his village and resumed preaching,
he allowed unarmed Damdami Taksal members to sleep in
his temple. Some of them admitted that they were hiding
from the police. Between 1984 and 1996, Indian authorities
often searched Mr. Singh's temple. They never arrested
anyone at the temple until 1996, when they arrested
Mr. Singh and his assistant. After bribing his way out
of jail, Mr. Singh fled to the United States in 1997.
He successfully sought asylum on the basis of religious
persecution.
There is little controversy about the facts that the
court cited above. They are culled from the reports
on which USCIS has relied, Dr. Mahmood's statement,
and documents from Mr. Singh's asylum application. The
court recites them here to provide context for its later
analysis.
The Denial Letter gave only one reason for rejecting
Mr. Singh's application for adjustment of status: Mr.
Singh gave aid to a terrorist organization when he allowed
members of Damdami Taksal to sleep in his temple and
hide from police. The court's task is to determine whether
that determination can stand.
III. ANALYSIS
Mr. Singh relies on the Administrative Procedures Act
("APA"), 5 U.S.C. §§ 701-706, as
the basis for challenging USCIS's denial of his application.
The APA does not permit plenary review of an agency
decision. With certain exceptions not applicable here,
the court can set aside agency action only if it is
"arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law." 5 U.S.C.
§ 706(2)(A). This standard is deferential to the
agency. It is not enough that the court would have come
to a different conclusion than the agency. Nat'l Ass'n
of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir.
2003). Instead, the court reviews the agency's decision
to determine if Page 5 it
"considered the relevant factors and articulated
a rational connection between the facts found and the
choice made." Id. The court's review is limited
to the administrative record. Id. ("[T]he basis
for the agency's decision must come from the record.").
The parties have chosen to rely on summary judgment
motions. On a motion for summary judgment, the court
must draw all inferences from the admissible evidence
in the light most favorable to the non-moving party.
Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th
Cir. 2000). Summary judgment is appropriate where there
is no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party must initially
show the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The opposing party must then show a genuine issue of
fact for trial. Matsushita Elect. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). The opposing
party must present probative evidence to support its
claim or defense. Intel Corp. v. Hartford Accident &
Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). The
court defers to neither party in resolving purely legal
questions. See Bendixen v. Standard Ins. Co., 185 F.3d
939, 942 (9th Cir. 1999). Because the court typically
makes no finding of fact in determining if an agency's
decision is arbitrary or capricious, APA disputes are
typically amenable to resolution by summary judgment.
In the court's view, judgment as a matter of law is
appropriate because no one reviewing the administrative
record could find a rational relation between the facts
the record reveals and USCIS's conclusion that Damdami
Taksal was a terrorist organization. An explanation
of that conclusion requires the court to begin with
the statutory labyrinth through which the INA excludes
aliens who aid terrorist organizations.
A.
Overview of Terrorism-Related Grounds for Inadmissibility
Subsection
1182(a) describes numerous grounds for deeming an
alien inadmissible to the United States, including "[s]ecurity
and related grounds" for inadmissibility at §
1182(a)(3). Among other things, §
1182(a)(3) makes inadmissible any alien who "has
Page 6 engaged in terrorist
activity." §
1182(a)(3)(B)(i)(I). The range of "terrorist
activity" is quite broad, and includes the conduct
for which USCIS deemed Mr. Singh inadmissible: "commit[ing]
an act that the actor knows, or reasonably should know,
affords material support" to a terrorist organization.
§
1182(a)(3)(B)(iv) & § 1182(a)(3)(B)(iv)(VI).
"Terrorist organization[s]" fall into two
categories: those officially designated as terrorist
organizations (§
1182(a)(3)(B)(vi)(I)-(II)) and undesignated terrorist
organizations (§
1182(a)(3)(B)(vi)(III)). When USCIS denied Mr. Singh's
application, it concluded that Damdami Taksal was an
"undesignated terrorist organization" to whom
Mr. Singh provided "material support in 1984."
Denial Ltr. at 3.
Mr. Singh admits that he provided a place to sleep for
Damdami Taksal members, and there is no dispute that
this qualifies as "material support" within
the meaning of §
1182(a)(3)(B)(iv)(VI). It is important to note,
however, that permitting Damdami Taksal members to sleep
in his temple is the sole type of "material support"
to which USCIS pointed. The record reflects that persons
associated with Mr. Singh collected money for either
Bhindranwale or his supporters early in 1984. AR (Dkt.
# 32) at 25, 34. USCIS has never contended that this
constitutes providing material support to a terrorist
organization, and there is no evidence that the supporters
with Bhindranwale at the time of the donation were members
of Damdami Taksal.[fn3]
The critical question, therefore, is whether the record
supports USCIS's determination that Damdami Taksal was
an undesignated terrorist organization. An undesignated
terrorist organization is a "group of two or more
individuals, whether organized or not, which engages
in, or has a subgroup which engages in, the activities
described in subclauses (I) through (VI) of clause (iv)."
§
1182(a)(3)(B)(vi)(III). The Page 7
activities described in the designated subclauses are
exceedingly broad in scope. They include committing
or inciting terrorist activity, preparing or planning
terrorist activity, gathering information on targets
for terrorism, soliciting funds for terrorist activities
or terrorist organizations, soliciting people to engage
in terrorism or join a terrorist organization, and providing
material support for terrorist activity, terrorists,
or terrorist organizations. §
1182(a)(3)(B)(iv)(I)-(VI). The statute also defines
"terrorist activity" broadly, to include not
only traditional acts of terrorism, but any use of a
weapon or other dangerous instrument with the intent
to endanger people or property. §
1182(a)(3)(B)(iii)(I)-(VI). As other courts have
observed, it appears that "Congress intentionally
drafted the terrorist bars to relief very broadly. .
. ." In
re S.K., 23 I. & N. Dec. 936, 941 (B.I.A. 2006);
Khan v. Holder, 584 F.3d 773, 777 (9th Cir. 2009).
B.
Review of the Administrative Record
The court now reviews the administrative record, beginning
with the sources on which USCIS relied and then turning
to the sources that Mr. Singh submitted.
1. Sources That USCIS Placed in the Administrative Record
The Denial Letter relies on snippets of publicly available
reports. Several were from Canadian sources collected
at the website for the United Nations High Commission
for Refugees ("UNHCR"). USCIS also relied
on another report from Denmark's immigration service,
an article from the website at www.satp.org (the South
Asian Terrorism Portal), and a Time Magazine article.
USCIS contends that these sources support its view that
Damdami Taksal was a terrorist organization.
USCIS first cited two reports from the Immigration and
Refugee Board of Canada that described Damdami Taksal
during the early to mid-1980s as a "militant Sikh
religious seminary group." Denial Ltr. at 2 (citing
AR (Dkt. # 68) at 76). Although one of the reports uses
that characterization, the use of the term "militant"
without more is no basis for concluding that Damdami
Taksal was a terrorist organization. Page
8
The first report, which is three paragraphs long, states
that in 1988 Damdami Taksal leaders "expressed
their concern over renewed killings." AR (Dkt.
# 68) at 78. It does not state or imply that Damdami
Taksal members were responsible for the killings. Similarly,
a statement that a January 1990 "assassination
of a AISSF leader was apparently linked to power struggle
with the Damdami Taksal," does not give any basis
for determining that Damdami Taksal was responsible
for the assassination. Id. Indeed, the only statement
the first report makes about the actions of Damdami
Taksal is that in 1988 it "served as a mediator
between Sikh gunmen in Amritsar and the government."
Id. The second report scarcely mentions Damdami Taksal,
stating only that its members "formed an advisory
panel to look after the religious and political affairs
of the Sikhs." AR (Dkt. # 68) at 76 (internal quotation
omitted).
The Denial Letter next cites a report from the Danish
Immigration Service for the proposition that Bhindranwale
was a "charismatic Sikh religious leader, who preached
fervent fundamentalism and the armed fight for national
freedom." Denial Ltr. at 2. The report states that
Bhindranwale and "armed supporters" occupied
the Golden Temple in Amritsar in 1984, leading to the
"attack" by the Indian military that killed
Bhindranwale and "hundreds of his supporters."
AR (Dkt. # 68) at 68-67. The description of the conflict
makes no mention of Damdami Taksal. Only later in the
report is Damdami Taksal named as a "religious
group which trained Sikh priests" that "militant
Sikh leader Bhindranwale" once led. Id. at 56.
The report noted that some militant Sikh groups recruited
from Damdami Taksal. Id. The report does not suggest
that Damdami Taksal was involved in violence. Indeed,
the report names dozens of militant Sikh groups that
operated in India from the 1970s through 2000, never
suggesting that Damdami Taksal was one of them. The
report does, however, explain why Damdami Taksal members
might have hid in Mr. Singh's temple. Following the
assassination of Prime Minister Indira Ghandi in October
1984, "a massacre of Sikhs in and around Delhi
began which left thousands dead and thousands more injured
and homeless. . . ." Id. at 67. The report Page
9 describes the "police's abuse of
power, serious human rights violations, arbitrary execution
of suspects and the disappearance of young Sikh men"
in the period from 1984 to 1992. Id. at 67. The report
also describes police monitoring of Sikh temples. Id.
at 33 (relating claim by source that "since 1992
those administering Sikh temples had been obliged to
provide the police with a list of guests staying there
overnight").
The Denial Letter also relies on an assessment from
the South Asian Terrorism Portal for a description of
a 1978 incident in which "[s]ixteen followers of
the Damdami Taksal and the Akhand Kirtani Jatha were
killed." Denial Ltr. at 2; AR (Dkt. # 68) at 19.
Nothing in the assessment suggests that any members
of Damdami Taksal acted violently or were armed. The
assessment viewed the incident as the "beginning
of terrorist violence in Punjab," and described
Bhindranwale's installation in the Golden Temple in
1984. AR (Dkt. # 68) at 19. The "parallel administration"
he set up within the temple stored weapons, issued diktats,
threatened police and others, and tortured and killed
people inside the temple. Id. The report does not suggest,
however, that Damdami Taksal members were installed
with Bhindranwale in the temple. Like the Danish report,
the assessment describes a terrorist movement and government
counter-movement in the years following Bhindranwale's
death at the temple. Id. at 19-18. The assessment includes
a list of terrorist groups operating in the region,
a list that does not include Damdami Taksal. Id. at
18.
The Denial Letter's next citation is to another report
from the Immigration and Refugee Board of Canada available
on the UNHCR website. Denial Ltr. at 2. The report explains
that in "January 1986, a group of 20,000 Sikh members
of the Damdami Taksal and the AISSF entered the Golden
Temple in Amritsar, took control . . ., and announced
the establishment of an advisory panel to look after
the religious and political affairs of the Sikhs."
AR (Dkt. # 68) at 7. There is no indication that anyone
used violence in taking control of the temple. In April,
the "150 member advisory panel declared a separate
Sikh state of Khalistan." Id. That declaration
led to an escalation of Page 10
"[s]ecessionist-related violence," but there
is no suggestion that the advisory panel advocated violence.
Finally, the Denial Letter points to a Time Magazine
article published just after the June 1984 raid on the
Golden Temple in which Bhindranwale and others were
killed. Denial Ltr. at 3. The article notes that Bhindranwale
had "provoked the violence," and had stated
in advance of the raid that "We will give them
battle. If die we must, then we will take many of them
with us." AR (Dkt. # 68) at 4. Bhindranwale and
his supporters resisted the raiders with rockets and
machine guns. Id. at 3. Like other accounts in the record,
the article describes the death of many Sikhs in the
raid, and the violence throughout Punjab after the raid.
The article does not mention Damdami Taksal.
2. Sources That Mr. Singh Placed in the Administrative
Record
The Denial Letter makes no mention of the material Mr.
Singh submitted in response to USCIS's notice of its
intent to deny his application. Nonetheless, the court
must consider the complete record when determining whether
it supports the conclusions USCIS reached.
Mr. Singh's primary contribution to the record was Dr.
Mahmood's statement.[fn4]
She provides brief background on Sikhism and Damdami
Taksal, including the explanation that Damdami Taksal
is "not an organization at all, but an institution,
one of the most venerable educational institutions in
Sikhism." AR (Dkt. # 32) at 63. She then considers
the sources USCIS cited in its notice of intent to deny,
which differ somewhat from the sources it later cited
in the Denial Letter. She describes the 1978 murder
of Damdami Taksal members, and explains what USCIS's
sources do not address: Page 11 Damdami
Taksal members had assembled peacefully, and were murdered
by another group. Id. at 63-64 ("This is a case
of someone using a source without full awareness of
its credibility, and not checking the further historical
context."). She questions USCIS's efforts to paint
Bhindranwale as a terrorist, but she does not deny that
he and his supporters were armed and engaged in violence.
Id. at 64. Finally, she addresses Damdami Taksal's role
in taking control of the Golden Temple in 1986. She
explains that most of the 20,000 Sikhs involved were
members of the AISSF, a much larger organization. Id.
at 65. She contends that AISSF did not advocate violence,
although many Sikh groups operating in the region did.
Id.
Mr. Singh also submitted a 1999 report from the British
Home Office. The report states that Bhindranwale "preached
strict fundamentalism and an armed struggle for national
liberation." AR (Dkt. # 32) at 105. He and his
unnamed followers "established a terrorist stronghold"
at the Golden Temple in 1984. Damdami Taksal is nowhere
mentioned in the discussion of Bhindranwale and his
violent activity. The report lists seven "major"
Sikh militant groups, and Damdami Taksal is not among
them. Id. at 107. The only discussion of Damdami Taksal
comes in the report's appendix of "other organizations."
Id. at 132-33. It describes the group as "one of
the most distinguished Sikh seminaries in India."
Id. at 133. It is the only source in the record to make
a direct statement regarding Damdami Taksal and violence:
As far as can be established, Dam Dami Taksal has
never itself advocated an armed struggle for an independent
Sikh state. It has almost certainly never had any
direct link with terrorist organizations, though its
orthodox teaching may have inspired those who took
up the gun. Nowadays [as of 1999] it is a purely religious
institution.
Id.
at 133.
Mr. Singh also submitted a journal article examining
Sikh fundamentalism. It advocated the need to "distinguish
members of Damdami Taksal from the much broader group
of those who were fighting for Khalistan." AR (Dkt.
# 32) at 159. Page 12
C.
The Record Does Not Support the Conclusion that Damdami
Taksal Was a Terrorist Organization.
From this record, the court now considers USCIS's conclusion
that Damdami Taksal was an undesignated terrorist organization.
That conclusion is correct if Damdami Taksal was, at
the relevant time, a "group of two or more individuals,
whether organized or not, which engages in, or has a
subgroup which engages in, the activities described
in subclauses (I) through (VI) of clause (iv)."
§
1182(a)(3)(B)(vi)(III).
So far as the record reveals, Mr. Singh did not provide
support to Damdami Taksal until at least October 1984.
By then, Bhindranwale, the sole member of Damdami Taksal
who the record identifies as having committed terrorist
acts, was dead. USCIS appears to reason that Bhindranwale
engaged in terrorist activity, and thus the Damdami
Taksal organization that he led is a terrorist organization.
The record is devoid, however, of any indication that
any Damdami Taksal member except Bhindranwale engaged
in terrorist activities.[fn5]
USCIS's arguments to the contrary are not persuasive.
Its contention, for example, that the murder of Damdami
Taksal members in 1978 somehow shows that those members
were engaging in terrorist activity is unsupportable.
There is no evidence that the murder victims were armed
or otherwise engaging in terrorist activity. USCIS has
documented that Bhindranwale and unidentified "supporters"
engaged in terrorist activity at times from 1978 to
1984. What it has not shown is that Bhindranwale's terrorist
supporters were members of Damdami Taksal.[fn6]
The record reflects that members of Damdami Taksal and
others took control of the Golden Temple in 1986. This
is one of the few instances in the record that describe
Page 13 activity by Damdami
Taksal, rather than Bhindranwale and unnamed "supporters."
There is no evidence in the record, however, that Damdami
Taksal members (or anyone else) took the temple by violence
or by threats of violence or by any other means that
would make their actions terrorism within the meaning
of the INA. While they advocated for Khalistan, there
is no evidence that they advocated violence.
In the Denial Letter, USCIS did not explain precisely
how Damdami Taksal's activities were terrorist activity.
An examination of the statutory definition of "[e]ngage
in terrorist activity" yields no better answer.
Most acts that constitute "[e]ngag[ing] in terrorist
activity" depend on separately-defined "terrorist
activity." The record does not permit the rational
conclusion that Damdami Taksal members committed acts
that the INA defines as "terrorist activity."
They did not hijack a vehicle, seize or detain people
to compel government action, attack an "internationally
protected person," or assassinate someone. §
1182(a)(3)(B)(iii)(I)-(IV). There is no evidence
that Damdami Taksal members other than Bhindranwale
carried weapons, much less that they used them "with
intent to endanger . . . the safety of one or more individuals
or to cause substantial damage." §
1182(a)(3)(B)(iii)(V). There is also no evidence
that they threatened, attempted, or conspired to commit
any of these terrorist activities. §
1182(a)(3)(B)(iii)(VI).
The record also provides no support for the conclusion
that Damdami Taksal members other than Bhindranwale
"[e]ngage[d] in terrorist activity," which
is a different set of acts that those that constitute
"terrorist activity." There is no evidence
that members of Damdami Taksal committed or incited
a terrorist activity, [fn7]
prepared or planned a terrorist activity, or gathered
information on potential targets of terrorist activity.
§
1182(a)(3)(B)(iv)(I)-(III). There is no evidence
that members solicited Page 14
anyone to join a terrorist organization or engage in
terrorist activities. §
1182(a)(3)(B)(iv)(V). There is evidence that Mr.
Singh's assistant raised money to give to Bhindranwale
and his associates when they came to his village, but
USCIS has not relied on this as a basis for claiming
that Damdami Taksal members engaged in terrorist activity.[fn8]
§
1182(a)(3)(B)(iv)(IV). Finally, while the record
is clear that Mr. Singh provided support for Damdami
Taksal members, there is no indication that Damdami
Taksal members provided material support for the commission
of a terrorist activity. §
1182(a)(3)(B)(iv)(VI).
The court's review of the administrative record and
the relevant statutory framework leaves it convinced
that there is no rational connection between the facts
disclosed in the record and USCIS's determination that
Damdami Taksal was a terrorist organization while Mr.
Singh permitted its members to sleep at his temple.
The record reflects a complex struggle between Sikhs
and the Indian government from the 1970s through the
1990s. Many groups advanced Sikh interests in that struggle,
using means that ranged from unquestionably peaceful
to plainly violent. Damdami Taksal played some role
in that struggle, as the record reflects. The record
on which USCIS relied does not reflect what that role
was, and it provides no basis for the conclusion that
the role encompassed conduct that would support its
designation as a terrorist organization.
D.
Additional Concerns About the Administrative Record
In the previous section, the court explained there is
no rational connection between the administrative record
and USCIS's decision to designate Damdami Taksal as
a terrorist organization. That conclusion, by itself,
means that the court must vacate the denial of Mr. Singh's
application and remand this action to USCIS. The court
has other Page 15 concerns
about the administrative record, however, that further
undermine USCIS's conclusions.
First, USCIS's decision to include only a few sources
in the administrative record raises concerns about its
deliberative process. This court is not empowered to
act as a fact finder in this case. But, if it were,
and if it were inclined to find facts simply by searching
the internet for resources describing Damdami Taksal,
it would be possible to construct a record that is much
more favorable to Mr. Singh's assertion that the group
is not a terrorist organization. Indeed, the court could
do so merely by disregarding USCIS's sources and focusing
on Dr. Mahmood's statement and the report of the British
Home Office.[fn9]
That is no way to build a record, of course. It appears,
however, that the USCIS used essentially this approach
in relying exclusively on its sources without so much
as mentioning the materials Mr. Singh submitted. On
remand, the USCIS would be well served to better document
what sources it considered, and explain, if appropriate,
why it declined to rely on other sources.
Second, USCIS's failure to address Dr. Mahmood's declaration
raises further doubts about its deliberative process.
So far as the record reflects, Dr. Mahmood is the sole
person with relevant expertise who considered both Mr.
Singh's conduct and Damdami Taksal with an eye toward
exploring whether Damdami Taksal was engaged in terrorism.
She is not an attorney, and the court does not defer
to her legal conclusions. Her factual conclusions, however,
have heightened persuasiveness where the record does
not contradict them, and no one disputes her expertise.
Third, the court has referred to statements from the
sources included in the administrative records as "facts"
and "evidence." The court uses those terms
loosely. Page 16 Some of the
information about the Sikh separatist movements is non-controversial,
and likely an appropriate subject for administrative
notice. See Castillo-Villagra v. I.N.S., 972 F.2d 1017,
1026-27 (9th Cir. 1992) (reviewing administrative notice
doctrine). Much of the information critical to USCIS's
adjudication of Mr. Singh's application, however, is
not an appropriate subject for administrative notice.
Id. at 1027 ("[T]he administrative desirability
of notice as a substitute for evidence cannot be allowed
to outweigh fairness to individual litigants.").
In Castillo-Villagra, USCIS's predecessor was similarly
called upon to draw conclusions about a controversial
political situation in another country. Id. at 1026-27.
That court provides an excellent discussion of the line
between facts subject to administrative notice and controversies
that cannot be dispensed with so easily. Too often in
this case, the USCIS has turned controversial assertions
from documents whose reliability is unknown into "facts,"
and then made assumptions from those facts that were
fatal to Mr. Singh's application. Id. at 1029 ("[T]he
agency should not have assumed away petitioners' case.").
E.
The Record Does Not Permit The Court to Determine Whether
USCIS Has Taken Inconsistent Positions on Damdami Taksal's
Status as a Terrorist Organization.
Before concluding, the court addresses Mr. Singh's assertion
that other Sikhs who have supported Damdami Taksal have
successfully adjusted their immigration status. He made
much of this assertion in a prior motion to compel discovery
or supplementation of the administrative record. He
relied on a declaration from a Seattle immigration attorney
who stated that two of his clients had been granted
lawful permanent resident status despite their known
support of Damdami Taksal. When the court resolved that
motion, it directed the parties to meet and confer regarding
discovery on this issue among other things. Dkt. # 62
(Apr. 27, 2010 order). They did so, and Mr. Singh declined
to seek further discovery or supplementation of the
record with regard to that issue. Dkt. # 63 (parties'
stipulation regarding administrative record). Nonetheless,
Mr. Singh raises the Page 17
issue again in a footnote to his summary judgment motion.
Pltf.'s Mot. (Dkt. # 67) at 13 n. 8. USCIS offers little
response, it merely insists that every case is different.
The court concludes that Mr. Singh's evidence raises
troubling questions, but it is not extensive enough
to permit the court to answer them. On the record before
the court, it is just as likely that USCIS treated other
immigrants differently because the nature of their involvement
with Damdami Taksal was different, not because it took
inconsistent positions as to Damdami Taksal's status
as a terrorist organization.
IV. CONCLUSION
For the reasons stated above, the court GRANTS Mr. Singh's
motion for summary judgment (Dkt. # 67) and DENIES USCIS's
motion (Dkt. # 66). The court vacates USCIS's October
2009 decision denying Mr. Singh's motion for adjustment
of status. This matter is dismissed, and the court remands
this matter to USCIS for a new adjudication of Mr. Singh's
application in accordance with this order. USCIS shall
consider Mr. Singh's application anew. If it adheres
to the position that Mr. Singh aided a terrorist organization,
it shall provide him with new notice of its intent to
deny his application.
The court DISMISSES this action. The clerk shall enter
judgment for Mr. Singh.
DATED this 28th day of September, 2010.
[fn2]
The administrative record in this case is fragmented,
as USCIS submitted it piecemeal as the adjudication
of Mr. Singh's application evolved over the past three
years. When citing a portion of the record, the court
will note the docket number at which that portion appears.
In addition, the court notes that the last fragment
of the administrative record (Dkt. # 68) is numbered
in reverse order. Accordingly, when the court cites
multiple pages from that portion of the record, the
citation will be in reverse order as well.
[fn3] Although
Mr. Singh has not pressed the issue, the court notes
that awareness that Bhindranwale and his supporters
purchased arms is not the same as awareness that Damdami
Taksal members purchased arms or otherwise engaged in
terrorist activity. Material support to an undesignated
terrorist organization is a ground for inadmissibility,
but an alien has a defense if he can show by "clear
and convincing evidence that the actor did not know,
and should not have known, that the organization was
a terrorist organization." §
1182(a)(3)(B)(iv)(VI)(dd).
[fn4] The copy
of Dr. Mahmood's statement in the Administrative Record
is unsigned. Mr. Singh has provided unrebutted evidence
that he submitted a signed statement in advance of USCIS's
adjudication. Dkt. # 71, Ex. 1. USCIS suggests both
that Dr. Mahmood's statement "does not deserve
the weight of a sworn affidavit" (Dkt. # 70 at
19 n. 17) and that it "focus[ed] on the substance
of Dr. Mahmood's statement rather than the fact that
the document contained in the record was unsigned."
Dkt. # 73 at 8 n. 7. The court finds that Mr. Singh
submitted a signed statement from Dr. Mahmood, and that
even if he had not, the lack of a signature is no basis
to afford the document less weight.
[fn5] Mr. Singh
questions whether the activities of a group's leader
can be attributed to the group. That question is an
important one, and one to which USCIS has devoted little
analysis. The court need not answer the question in
this case, because at a minimum, USCIS needs evidence
of one more member of the group engaging in terrorist
activity. USCIS lacks that evidence.
[fn6] In its briefing
before the court, USCIS repeatedly quotes statements
in the record that make no reference to Damdami Taksal
at all, while asserting without explanation that the
statements are about Damdami Taksal. See, e.g., Dkt.
# 66 at 17.
[fn7] USCIS often
points to vague statements in the record about Bhindranwale's
violent rhetoric and vague statements that violence
occurred, and then assumes that the violence occurred
because of Bhindranwale's rhetoric. Nothing in the record
that shows that anyone's rhetoric incited violence.
[fn8] When Mr.
Singh was questioned about the donation to Bhindranwale,
he explained that he believed that the money would go
to the families of murdered Sikhs, and not to buy weapons.
USCIS relies on this as evidence that Mr. Singh knew
that Bhindranwale and his supporters bought weapons,
a proposition that Mr. Singh does not dispute. USCIS
seems to assume that Mr. Singh has admitted that the
donation went to Damdami Taksal, an assumption that
the record does not support.
[fn9] USCIS notes
that Mr. Singh bears the burden of proving he is eligible
for adjustment. See 8
C.F.R. § 103.2(b)(1) ("An applicant or
petitioner must establish that he or she is eligible
for the requested benefit at the time of filing the
application or petition."). Mr. Singh satisfied
his burden in this case, submitting evidence from which
an adjudicator could conclude that Damdami Taksal was
not a terrorist organization. His burden of proof ultimately
makes no difference in this case, because even relying
solely on the sources USCIS cited, there is no rational
connection between those sources and USCIS's conclusions.
