IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10219

Summary Calendar

MAMADOU NDOM,

Plaintiff - Appellant,

v. 

KEVIN K. MCALEENAN, Acting Secretary, U.S. Department of Homeland 

Security; DONALD NEUFELD, Associate Director, Service Centers 

Operations; DAVID ROARK, Director, Texas Service Center; L. FRANCIS 

CISSNA,

Defendants - Appellees.

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:16-CV-3432

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.

PER CURIAM:*

The Government denied Mamadou Ndom’s application to adjust his 

status to permanent resident. Believing the denial to be arbitrary and 

capricious, Ndom filed suit in district court. The court granted summary 

judgment in favor of the Government. We affirm. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 17, 2019

Lyle W. Cayce

Clerk

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No. 19-10219

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In 1990, Mouvement des forces democratiques de Casamance (“MFDC”) 

declared an armed struggle against the central government of Senegal. That 

same year, Ndom joined MFDC and remained with the organization until 1993.

He regularly attended MFDC meetings. And in 1992, in compliance with 

MFDC orders, Ndom used dynamite to blow up a bridge.

In 1997, Ndom entered the United States with a fraudulent passport. He 

applied for asylum shortly thereafter. In 2001, the Immigration Judge (“IJ”) 

denied him asylum because Ndom failed to show he was persecuted in Senegal.

The Board of Immigration Appeals (“BIA”) affirmed. But the Ninth Circuit 

reversed. Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004). So the BIA 

granted him asylum in 2005. 

In 2006, Ndom applied for an adjustment in status to permanent 

resident. On September 26, 2017, USCIS denied Ndom’s application because 

he provided material support to MFDC, an undesignated terrorist group.

Ndom challenged the decision in the district court, and the court granted 

summary judgment for USCIS. Our review is de novo. See Amrollah v. 

Napolitano, 710 F.3d 568, 570 (5th Cir. 2013).

Ndom first argues that the 2001 IJ decision has issue-preclusive effect 

on whether he provided material support to a terrorist group. But that IJ 

decision found Ndom was called upon to perform terrorist activity. And in all 

events, preclusion attaches only to an issue that “was necessary to the 

decision.” Id. at 571; see also id. at 572 (finding a determination about terrorist 

activity was necessary when asylum was granted, not denied on other 

grounds). And Ndom cannot show the 2001 IJ’s necessarily decided any issue 

in his favor while denying his asylum application.

Ndom next argues the Ninth Circuit’s decision precludes the materialsupport issue in his favor. But issue preclusion attaches only to an issue that 

was “actually litigated.” Id. at 571. And the Ninth Circuit’s opinion says 

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nothing about the material-support issue. Therefore, this decision too does not 

meet the requirements of issue preclusion.

Even without issue preclusion, Ndom argues that the USCIS’s decision 

was arbitrary and capricious. 5 U.S.C. § 706(2)(A). He offers five arguments in 

that regard. All fail.

First, Ndom suggests that carrying the bags of dynamite to the bridge 

does not constitute “material support” of MFDC. That is plainly wrong. See 

Sesay v. Attorney Gen. of U.S., 787 F.3d 215, 222 (3d Cir. 2015) (holding that 

“carrying weapons and ammunition” is material support); Hosseini v. Nielsen, 

911 F.3d 366, 377 (6th Cir. 2018) (finding that copying and distributing flyers 

is material support).

Second, Ndom argues that the MFDC was not engaged in “terrorist 

activity.” But the statute defines “terrorist activity” to include “the use of any 

. . . explosive . . . to cause substantial damage to property.” 8 U.S.C. 

§ 1182(a)(3)(B)(iii)(V)(b). It was not arbitrary and capricious for USCIS to find 

that dynamiting a bridge falls within the plain definition of terrorist activity.

Third, Ndom points to cases suggesting that there are two additional 

requirements for a group like MFDC to be engaged in “terrorist activity.”

Assuming without deciding that these requirements apply, neither helps 

Ndom. He contends that there must be evidence that the terrorist activity was 

authorized by the organization’s leaders. See, e.g., Hussain v. Mukasey, 518 

F.3d 534, 538 (7th Cir. 2008). But Ndom admitted that he and “everybody at 

[an MFDC] meeting” received “orders” to drop off dynamite at a bridge. It was 

not arbitrary and capricious for USCIS to find such orders constituted 

authorization. Ndom also argues that these terrorist activities must happen 

while Ndom was a member of MFDC. See, e.g., Daneshvar v. Ashcroft, 355 F.3d 

615, 628 (6th Cir. 2004). But it is undisputed Ndom was an MFDC member 

during the 1992 bridge bombing. 

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Fourth, Ndom asserts that USCIS acted arbitrarily and capriciously by 

relying, in part, on a report from an asylum officer. He argues the asylum 

officer described Ndom as “willfully” bringing the bags of dynamite to the 

bridge, which Ndom contests. But as the district court noted, Ndom has made 

no showing whatsoever to argue that his actions were not willful. More than 

merely saying a matter is not true is needed to survive summary judgment or 

to show USCIS erred by relying on evidence in the record. See Matshushita 

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (holding 

that an opponent of summary judgment “must do more than simply show that 

there is some metaphysical doubt as to the material facts.”); see also Alaswad 

v. Johnson, 574 F. App’x 483, 486 (5th Cir. 2014) (holding BIA did not err by 

relying on appellants “previous representations” despite arguably 

contradictory record evidence). 

Finally, Ndom contends that USCIS erred by failing to apply a “lack of 

knowledge” exception. Even if a person provides material support, their actions 

may be excused if they show by “clear and convincing evidence” that they did 

not know or “should not reasonably have known” that the organization was a 

terrorist organization. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). Even if Ndom knew 

nothing else about MFDC—not the widespread campaign of violence, torture, 

and killings indicated in the record—he knew about the bridge explosion and 

remained a member of MFDC for the following year. It was not arbitrary and 

capricious for USCIS to find he failed to meet his burden. 

AFFIRMED.

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