Actual-Litigation Requirement for Collateral Estoppel in Immigration Admissibility Determinations
A Comprehensive Commentary on Azatullah v. Noem, 2d Cir. Aug. 20, 2025

1. Introduction

Azatullah v. Noem is a 2025 Summary Order of the United States Court of Appeals for the Second Circuit involving an Afghan asylee who, nearly two decades after being granted asylum, was denied adjustment of status to lawful permanent resident (LPR) because U.S. Citizenship & Immigration Services (USCIS) belatedly invoked the immigration “terrorism bar.” The case placed three knotty issues before the court:

• Whether federal courts have jurisdiction to review a USCIS denial of adjustment issued outside removal proceedings;
• Whether the agency is collaterally estopped from relitigating admissibility after a grant of asylum in which the same facts were ostensibly known;
• Whether the agency’s reversal of position was arbitrary, capricious, or ultra vires under the Administrative Procedure Act (APA).

The plaintiff, Ahmad Seir Azatullah, argued that because the government knew of his past support for the Afghan mujahidin when it granted asylum in 2001, USCIS could not now re-characterize that support as “material support to a Tier III terrorist organization.” The district court dismissed for lack of jurisdiction and, in dicta, rejected the merits. The Second Circuit affirmed, reaching the merits under the doctrine of “hypothetical jurisdiction.”

2. Summary of the Judgment

• Jurisdiction: The panel acknowledged open questions about §1252(a)(2)(B) limits on judicial review, but exercised “hypothetical jurisdiction” to decide the appeal.
• Collateral Estoppel: The court held that issue preclusion does not apply because the terrorism bar had not been “actually litigated” during the 2001 asylum hearing.
• APA Claims: Because no prior agency position on the terrorism bar existed, the 2019 denial was neither an unexplained policy reversal nor arbitrary and capricious.
• Ultra Vires Claim: USCIS did not exceed its authority by allowing Azatullah to remain an asylee while simultaneously deeming him inadmissible for LPR status.
• Disposition: District court’s judgment of dismissal was affirmed.

3. Analysis

3.1 Precedents Cited and Their Influence

• Patel v. Garland, 596 U.S. 328 (2022) – Recognized statutory bars to review of discretionary immigration relief; framed the “open question” regarding jurisdiction over standalone USCIS denials.
• Xia v. Bondi, 137 F.4th 85 (2d Cir. 2025) – Decided only weeks earlier, holding §1252(a)(2)(B)(i) bars review of USCIS §1255 decisions outside removal. Panel declined to rely on it, leaving question open.
• Bouarfa v. Mayorkas, 604 U.S. 6 (2024) – Supreme Court avoided deciding whether §1252(a)(2)(B)(ii) bars review of non-discretionary eligibility findings. Cited as further uncertainty.
• Butcher v. Wendt, 975 F.3d 236 (2d Cir. 2020) – Authorizes courts to assume statutory jurisdiction to reach plainly meritless claims; foundation for “hypothetical jurisdiction” here.
• Cayuga Nation v. Tanner, 6 F.4th 361 (2d Cir. 2021) – Articulates modern federal test for collateral estoppel; panel applied each prong.
• Rahman v. Mayorkas, No. 22-904, 2023 WL 2397027 (2d Cir.) – Summary order holding a grant of asylum alone is insufficient to show the terrorism bar was previously litigated.
• Amrollah v. Napolitano, 710 F.3d 568 (5th Cir. 2013) – Plaintiff-favorable precedent where extensive testimony on mujahidin support meant terrorism bar was “actually litigated.” Distinguished because nothing comparable appeared in Azatullah’s record.

3.2 Court’s Legal Reasoning

1. Hypothetical Jurisdiction. The panel invoked Butcher, reasoning that the jurisdictional questions were “complex” while the merits were “plainly without merit.” By addressing the merits directly, the court avoided expanding or constricting §1252 jurisprudence.
2. No “Actual Litigation.” Applying the Cayuga Nation test, the court found:
   • The identical issue (terrorism bar) was not raised or decided in 2001;
   • Government examination at the asylum hearing was perfunctory and never touched material support or group designation;
   • Thus the second prong—“actually litigated and decided”—failed, collapsing the entire estoppel claim.
3. APA Arbitrary-and-Capricious Analysis. Because there was no prior position, no reversal occurred. USCIS offered a “satisfactory explanation,” satisfying Motor Vehicle Mfrs. standards.
4. Statutory Authority. Section 1182(a)(3)(B) grants USCIS power to deem applicants inadmissible on terrorism grounds; the statute is silent on the separate matter of asylum revocation. The agency’s coexistence of “asylee” status with “inadmissible” findings therefore was not ultra vires.

3.3 Likely Impact

Although summary orders lack formal precedential effect, they are still citable under Fed. R. App. P. 32.1 and can influence district courts and the agency. Key practical implications include:

• Narrowing Collateral Estoppel. Applicants cannot rely on a historical asylum grant to block later inadmissibility findings unless the exact statutory bar was squarely litigated. Mere governmental awareness of background facts is insufficient.
• Strategic Record-Building. Practitioners representing asylum seekers should ensure that potential terrorism-bar issues are expressly addressed on the record if they hope to invoke preclusion later.
• USCIS Discretion Preserved. The decision affirms that the agency may apply the terrorism bar at the adjustment stage even decades later, fostering a two-step vetting culture (asylum first, LPR later).
• Jurisdictional Uncertainty Continues. By using hypothetical jurisdiction, the panel leaves unresolved whether §1252 bars district-court review of stand-alone adjustment denials—an issue likely headed for en banc or Supreme Court clarification.

4. Complex Concepts Simplified

5. Conclusion

Azatullah v. Noem cements an important but often overlooked principle: a prior grant of immigration relief does not, by itself, immunize an applicant from future inadmissibility findings unless the specific bar was previously contested and resolved on the record. By distinguishing between “implied” and “actually litigated” determinations, the Second Circuit preserves USCIS’s flexibility to apply evolving statutory terrorism bars during later benefits adjudications. At the same time, the court sidestepped profound questions about the reach of §1252(a)(2)(B), ensuring that jurisdictional battles will continue to percolate. For advocates, the decision is a cautionary tale: build the record early, litigate potential bars explicitly, and do not bank on issue preclusion unless you can show genuine prior litigation. For the law of immigration procedure, the decision underscores that even non-precedential summary orders can exert significant gravitational pull in shaping agency practice and lower-court reasoning.