Mohammad Sharif Khalil v. L. Francis Cissna, in his capacity as Director of U.S. Citizenship

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOHAMMAD SHARIF KHALIL,
Plaintiff-Appellant,
v.
L. FRANCIS CISSNA, in his capacity as
Director of U.S. Citizenship and
Immigration Services; et al.,
Defendants-Appellees.
No. 20-55323
D.C. No.
2:18-cv-07903-DMG-KS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted March 3, 2021
Pasadena, California
Before: KLEINFELD, TALLMAN, and OWENS, Circuit Judges.
Mohammad Sharif Khalil appeals from the district court’s judgment granting
United States Citizenship and Immigration Services’ (“USCIS”) motion to dismiss.
As the parties are familiar with the facts, we do not recount them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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As a threshold matter, we “[a]ssum[e] without deciding” that we have
jurisdiction to review this appeal. See, e.g., Janjua v. Neufeld, 933 F.3d 1061,
1062 (9th Cir. 2019). Thus, we need not decide whether the agency is correct that
its decision was discretionary and therefore foreclosed from judicial review under
8 U.S.C. § 1252(a)(2)(B)(ii).
Khalil argues that USCIS was estopped from finding him inadmissible in
2019 because, by granting him asylum in 2000, the agency had “actually and
necessarily” decided he was not “engaged in a terrorist activity.” See 8 U.S.C.
§ 1182(a)(3)(B)(i). Khalil further contends that the intervening changes in the law
during that 19-year period did not sufficiently alter the terrorism-related grounds
for inadmissibility to undermine his ability to assert collateral estoppel.
We disagree. In 2005, Congress passed the REAL ID Act, which rendered
inadmissible any noncitizen who “received military-type training . . . from or on
behalf of any organization that, at the time the training was received, was a
terrorist organization.” Pub. L. No. 109-13, § 103(a), 119 Stat. 307 (May 11,
2005) (codified as amended at 8 U.S.C. § 1182(a)(3)(B)(i)(VIII)). Receiving
“military-type training” from a “terrorist organization” was thus an entirely new
ground for inadmissibility that did not exist when Khalil received asylum in 2000.
For issue preclusion to apply, an issue must have been “identical in both
proceedings” and “actually litigated and decided in the prior proceedings.” Janjua,

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933 F.3d at 1065 (citations omitted). “[A]n issue was actually litigated only if it
was raised, contested, and submitted for determination in the prior adjudication.”
Id. at 1062. Khalil’s inadmissibility for receiving “military-type training” from a
terrorist organization could not have been “actually litigated and decided” in 2000,
as “military-type training” was not a ground for inadmissibility at the time. The
fact that this provision also referenced other changes in the law, see USA
PATRIOT Act of 2001, Pub. L. No. 107-56, § 411, 115 Stat. 347-48 (Oct. 26,
2001) (codified as amended at 8 U.S.C. § 1182(a)(3)(B)(vi)(III)) (expanding the
definition of “terrorist organization” to include the “Tier III” category), does not
change this basic fact.
Khalil’s primary argument is that this new provision cannot be applied
retroactively to him. But the REAL ID Act explicitly permits retroactivity under
these circumstances. Pub. L. No. 109-13, § 103(d), 119 Stat. 308-09 (May 11,
2005) (codified as amended at 8 U.S.C. § 1182 (note)) (stating that the REAL ID
Act’s amendments “shall apply to . . . acts and conditions constituting a ground for
inadmissibility . . . occurring or existing before, on, or after [May 11, 2005]”).
Finally, the district court did not abuse its discretion when it denied Khalil’s
request for limited factual discovery to establish “with certainty” whether the
terrorism-related grounds for inadmissibility were “actually litigated” in his asylum
proceedings. Because the “military-type training” ground did not exist until 2005,

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the issue could not have been “actually litigated” in 2000. Thus, even if the record
showed that the agency was estopped on some of the other issues on appeal, it
could not change the result as to Khalil’s “military-type training.”
Like the district court, we are “not unsympathetic to [Khalil’s] predicament
as there are many equities that favor his cause.” For the above reasons, however,
we have no choice but to affirm.
AFFIRMED.

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