court was not quite actually litigated in his asylum hearing before the immigration judge the face of mr jenner was asylum statement his application declaration squarely put in issue his support for the  is is it does seem that the way the testimony is that there is seems to be a conflation or cult lapse between actually litigated and that's a seriously litigated and that distinction matters of course  in determining the collateral estoppel applications that are created to tell me why you think there is an actual litigation versus unnecessarily well that's what i'm saying pointing to the record so like the restatement for example restatement second of along and there's kind of subsequent here and now legitimate or not raised issues and then you get to the end and you say well to get to that end of it necessarily would have been litigated and that not code pleading so there wasn't but or otherwise i by the questions during cross examination and his answers to them and his asylum application itself puts an issue these facts whether he engaged in violence or intimidation whether the violence or intimidation but if but simply by raising the question doesn't seem to me that they're necessarily decide that's where i'm having a collision so what what is your best authority for that well and we know it was necessarily decided because the statute says that i j can't grant him asylum in less if the supply is right and i'm rolling the fifth circuit said precisely that we know from the structure of the statute that it was necessarily decided so i think we know i think there's not really the spin the government is in dispute now that it was necessarily decided i don't believe the question they say is was actually good i think at this point in the record you know this in immigration court is how it would come up th application and the declaration setting out the claim you know i think one one area that i think is really useful for this is you know the government had paid for me six of their briefs as well as testimony for the i j he just talked about distributing flyers and helping with events so why should we assume the d h s attorney or the i j whose jobs it is to know it and mr that that i and they would think that this implicates the terrible but if you look at the the later d h s decision denying his adjustment application is saying shows that he's barred in its later decision so i think it's an issue it's clearly an issue in the new decision the single largest if you really aren't doing that well and we just send it back and ask for a determination as to what whether it was actually decide as as my colleague was as your colleague was arguing in the last case if there is that terminations here without a person who is actually involved in terrorist activity  least that's the charge and if if that decision has been made and there's confusion in the record that he actually must have done this or he actually might if you would you suggest that we would send it back and ask for a determination argument is correct and this is a very very substantial area and you have a dent and there may be an issue i don't understand why you don't want to go back why see why why wouldn't you want to go back to the immigration well about immigration judge because those proceedings are been over for decades and it will go back to us yes because this court you know because that decision is also final and it's a district court proceeding challenging that decision and i don't think i don't think there's really anywhere to send it back to in that sense and u s d a s in that i think the only place you could possibly try to send it back is a reminder this record to remain to the agency for a new decision but briefs from two thousand and twelve from this court the court reiterated that quote the introduction of new evidence on a matter previously litigated is not an exception to issue preclusion unless there is previously unavailable evidence of change circumstances  new things that happened it can't you can't just come back with and get out of issue preclusion by pointing to evidence that is historical in nature and for that say it's morris so but here what happened  generally engage in violence and the state department reports come up in both i think from a couple different years but for that same language of demonstrated ability what's new in the two thousand and sixteen d h s s adjustment is that it also critically rests on before the i j a doesn't include any evidence on that critical issue so the h s just didn't put any evidence on that the only evidence was did you know point to the diplomacy report that demonstrated willingness to use violence but we don't know whether that violence involved weapons or not this court has said that's a critical element of the statute says that and it's not until the two thousand and sixteen decision that they try to come back in and cure the fact that they didn't you know get to that in the first in the first opportunity and put in this old you know report ninety six they could have put in the first time i think for the same reason you know engage in some kind of material support gave them funds in two thousand and ten now bitterly different right issue preclusion built into the doctrine is that you it doesn't apply to bar those  been trying to get that sort of for the last for the last number of minutes and the fact that his support for the group was the whole basis of his claim and the fact that d h i specifically asked him whether he you know pointed out the department  use violence ask him specifically if he had engaged in violence or intimidation he says no and then they just counsel you know says oh so you're different from the rest of the m q m there's an objection mischaracterization of the record because that promise a report doesn't say that everyone in q m commits violence it's a major political party in a gigantically populous country of course we would think that everyone in the group does it so it makes characterize the record and then they just just gives up on his l questioning and moves on to another issue but the fact that he get just council gave up on that line of questioning doesn't mean the issue wasn't raised it just means that he didn't pursue it to get any fruitful evidence that would have actually shown that the bar  time thank you thank it please the court katherine shiners on behalf of the pelleas the federal government this case is about whether the government can deny permanent residence to those who have engaged in terrorist activity as defined by congress collateral stubble should not bar the government from denying legal permanent resident status on the basis of that activity it's true that that same conduct may also be in certain circumstances an exception to asylum eligibility and that in this case an immigration judge granted asylum to mr jewett but neither of the two separate grounds for us cia s's united states citizenship and immigration services denial of adjustment of status were actually litigated in those previous immigration court proceedings before the immigration judge it's important that the doctrine of collateral stoppel or issue preclusion is about what was litigated not what could have been or even should have been further congress clearly intended that the government make a separate determination of admissibility at the time of examination for adjustment of status and admission to legal permanent residence can you be granted i thought if you're inadmissible for this terrorist related participant  but if you're admitted for asylum there's only you don't fall into this terrorist related category correct but that's the question your honor the it that exception to asylum eligibility need to have been litigated at the what's the criteria for admissibility under eligibility under two twelve and here we're looking what your criteria for admissibility under the asylum statute eleven eight what's the difference so to be precise and it's not admissibility under asylum it's whether or not there is a understand certainly but if you are admissible that means you're not inadmissible do you agree with that for this case doesn't involve a waiver situation it does in this case terrorism related in admissibility grounds cannot be waived in terms of admission for legal permanent resident but there are various grounds of it in this ability but you can't and certainly not if but in the asylum context that can't be waived either right if that makes that determination which again gets back to whether or not the issue was actually litigated in the immigration court  there are several exceptions to eligibility for asylum terrorism related inadmissibility grounds or one of those another exception is whether or not the asylum seeker engaged in persecution another exception is whether or not the application was filed in a timely manner and that was actually address below and that's a does come back to whether or not the issue was actually litigated in the immigration court it's important to note that the the asylum status his asylum status remain that remains his asylum status remains the question is whether to the adjustment of correct to exactly to legal permanent residence so we're not related gating his asylum status by denying him permanent residence ha he remains an asylum in palo the precise issue was presented to a district court in a hay vs litigation the precise issue that was sought to be precluded in later litigation and that was whether or not that particular  individual was legally eligible for what was called to twelve c waiver of inadmissibility that precise issue was litigated before the district court in that he be a stress eating and what palo held with this court held in palo was that the government couldn't revisit that issue because it could by raising new arguments as to whether he was subject to that particular waiver and there's a lot of background as to as to you know the legals like the legal standards and the relief but the precise issue was whether or not he was eligible to twelve c released here the precise issues are twofold two separate grounds for us c i s is denial of adjustment of status one whether or asylum at the time of his initial asylum hearings there was no category for two or three terrorist organizations and that's in part why the explanation of plaintiff's explanation of why this issue was litigated somewhat falls flat because at the time of the hearings at the time the testimony that was pointed to there was no such thing as a tier three terrorist organization in two thousand and one the patriot act expanded the definition of terrorist activity to include material support to a tier three terrorist organization and solicitation of funds to a two or three to terrorist organization in order to account for the different types of contacts that might support terrorist activity was this organization listed the terrorist related category at the time of the silent application it was not designated a terrorist organization be finding her judgement on that issue in order for it to be actually litigated yes no no that's a no no an issue can be actually litigated without it being necessary to the termination or being decided but an issue can't be necessarily decided without having been actually litigated an issue can an issue can be actually litigated parties can it litigate an issue that doesn't end up being relevant to the final judgment on the merits but in order for an issue to be necessarily decided that presupposes that the issue was actually litigated and i think that's what comes down to in this case as well i think something can be see a radically necessary to the determination the merits but not actually litigated and necessarily decided so for example the restatement examples the statute of limitations so  defendant in civil litigation does not raise statute of limitations as a defense there is evidence of record that the statute of limitations had expired at the time of the complaint but it was never raised in the answer it was never argued in sum judgment briefing and perhaps even there is evidence where the defendant asks a witness so you waited six years to file before you filed this lawsuit but that doesn't amount to the issue having been raised and presented to the court for determination of course had the statute of limitations defense been raised it sounds like it would have been applied but that doesn't mean that it was necessary to the termination the same might go to issues relating to subject matter jurisdiction right we've had cases on that under the right and well they went ahead and decided the case but that doesn't necessarily mean that they address the jurisdiction exactly it doesn't mean that for example that the defendant is is prevented from really getting whether they're not the plaintiff suffered injury or was suffering would suffer imminent injury which is a requirement for the case to have proceeded so that's i think that's where the sticking point is in this case there may have been a question that alluded to whether the m q m engaged in violence but that is simply not enough to amount to presenting that issue to the immigration court especially given that at the time that question was asked grounds for finding material support were much more narrow and there was no such thing as a tier three and designated terrorist organization so there's an there's really no evidence submitted in the record before the court and then ministry of record before the court that would allow that was show that the issue of whether the m q m was a terrorist organization was litigated and again i want to go back to two separate ground jesuit doesn't even argue that there was any evidence submitted before the district court that he solicited funds for the m q m which is a separate independent ground for the u s c i s is denial of his application for adjustment of status was added after asylum or would so there were a nation that he solicited funds at the time of the asylum application also been a disqualifier there under the asylum statute or some other provision so again it's this is a difficult situation because we're dealing with hearings that took place in two thousand before the law was expanded but a solicitation of funds and material support for both concepts in terrorism related inadmissibility grounds before the patriot act in two thousand and one so at in two thousand the time of the initial hearings those were concepts that existed but they had to be in more directly in support of terrorist admissibility so the again regardless of the law plaintiff's argument here is that you know the  evidence was submitted to the to the immigration judge and in this case the evidence on the ground was not submitted to the immigration judge in any way i also for both grounds as i've noted the evidence regarding m q m designation as a terrorist organization was not submitted in any meaningful way to the immigration court so again that the i want to also point to that the fact  that the this court's case law clearly holds that the burden is on the plaintiff or the party seeking preclusion in this case to show with clear with certainty what was actually litigated and something was actually litigated and  about the actual litigation element should be resolved against the party see conclusion against the application  agencies it in this case collateral stoppel should not apply even if even if we were to leave aside whether the issue was actually litigated which of course our position is that it was not a clear statement of congress's inten is not what is required in a story a as an also this court's decision in title it's looking at the structure of the statute and how it's written to determine whether or not it would be appropriate supply collateral estop l here as noted in the briefing the there's a two step process for obtaining legal permanent resident as as an asylum first asylum is granted demonstrates that congress did not intend for collateral stoppel to be applied in this context and additionally given the situation where the the definition of terrorist activity was expanded midway through the proceedings it does not make sense to apply the doctrine of collateral stoffel to the sort of counterfactual to apply it to the evidence that was presented at the initial asylum hearings before the immigration  reach both right if you determined that in these circumstances in this context that collateral sup should not apply to to bar reconsideration of terrorism related inadmissibility grounds on adjusting the status applications th necessarily sort of that sort of a prerequisite to determining out whether or not the issue was actually litigated under the factors of collateral estoppel i believe both arguments are strong  in harman but the district court rejected that but now the government seems to agree it's right i think so especially if that's right then i think it's uncontested it was necessarily decided for the same reason the fifth circuit said n n roll the same  original asylum proceeding was in one thousand nine hundred nine and then the adjustment was in two thousand and ten and that's despite even even where between the two decisions there is the expansion to include the tier three definition and that's was cross examined about whether he had engaged in violence that precluded the question of whether the terrorism bar applied i think we could all agree that based on idea just counsel's question and response at the very least the kind of issue of whether he engaged in violence or intimidation that was actually what again i don't think that could possibly be questioned and so that may come back to this court in paolo where i agree there is some you know that this is an unusual see case so in that second action is relevant to the issues that were litigated in adjudicated previously the prior determent of the issue is conclusive and the issue despite the fact that new evidence or argument relevant to the issue was not in fact expressly pleaded introduced into evidence or otherwise urged the government is now asking you to create a circuit split with them roll in like at least two or three ways it seems like to say that collateral estoppel doesn't apply from asylum hearing to adjustment  interesting issue the case just argued is submitted our next case for argument as united states vs i w