Mr. Budiono v. Loretta E. Lynch , 837 F.3d 1042 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MR. BUDIONO, No. 12-71804
Petitioner,
Agency No.
v. A078-020-384
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 8, 2015
Pasadena, California
Filed September 21, 2016
Before: Harry Pregerson, A. Wallace Tashima,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tashima;
Partial Concurrence and Partial Dissent by Judge Callahan
2 BUDIONO V. LYNCH
SUMMARY*
Immigration
The panel granted a petition for review of the denial of
withholding of removal to a citizen of Indonesia concluding
that substantial evidence did not support the Board of
Immigration Appeals’ determination that the organization
petitioner supported, the Jemaah Muslim Attaqwa (“JMA”),
engaged in terrorist activities.
The panel agreed with the Board that petitioner’s asylum
application was time barred because petitioner failed to
establish that he qualified for the changed circumstances
exception to the asylum one-year time bar.
Applying the same burden-of-proof framework applied in
the context of the persecutor bar, the panel held that the
government must make a threshold showing of particularized
evidence raising the inference that each element of the
terrorist bar, 8 U.S.C. § 1182(a)(3)(B)(i), could be met before
placing the burden on the applicant to rebut it.
The panel held that the immigration judge failed to make
the requisite factual findings to support his conclusion that
the JMA was a terrorist organization, and that petitioner’s
support of the JMA therefore did not bar him from
withholding of removal under the terrorist bar.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BUDIONO V. LYNCH 3
The panel noted that the Board had twice considered and
failed to make adequate findings to support application of the
bar. The panel concluded that remand was therefore not
appropriate, and held that petitioner was eligible for
withholding of removal.
Concurring in part and dissenting in part, Judge Callahan
agreed that petitioner’s asylum application was time barred
but would hold that the government met its initial burden by
presenting evidence indicating that JMA is a terrorist
organization. Judge Callahan wrote that the majority
improperly inflated the government’s initial burden, and that
even if she agreed with that standard, the appropriate remedy
in this case is remand to the Board.
COUNSEL
Armin A. Skalmowski (argued), Alhambra, California, for
Petitioner.
Daniel I. Smulow (argued), Trial Attorney; Lyle D. Jentzer,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
4 BUDIONO V. LYNCH
OPINION
TASHIMA, Circuit Judge:
Budiono, a native of Indonesia, petitions for review of a
Board of Immigration Appeals’ (the “Board”) decision
affirming the Immigration Judge’s (“IJ”) order of removal.
The IJ determined that although Budiono otherwise qualified
for withholding of removal, he was barred from relief due to
his material support of a terrorist organization. We have
jurisdiction under 8 U.S.C. § 1252(a). We conclude that
substantial evidence does not support the IJ’s finding that the
organization engaged in terrorist activities; we therefore grant
the petition for review.
I.
A. Factual Background
Budiono entered the United States on July 11, 2000, on a
nonimmigrant visitor’s visa. He remained in the United
States after his visa expired. In 2003, after Budiono
registered under the former National Security Entry-Exit
Registration System program, the Department of Homeland
Security (“DHS”) initiated removal proceedings. Although
Budiono conceded removability, he applied for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”).
BUDIONO V. LYNCH 5
In support of his claims, Budiono credibly testified1 to the
following: In about 1990, when he was 17 years old,
Budiono joined a Jakarta-based Muslim community group
Jemaah Muslim Attaqwa (“JMA”). At the time, the JMA’s
primary purpose was to provide volunteer services to the
neighborhood, including fixing homes, delivering medicine
to people in hospitals, and teaching the tenets of Islam to
children and the poor. Around 1998, the group’s rhetoric
began to change, becoming increasingly intolerant of non-
Muslims. Members of the JMA participated in violent anti-
government riots in May 1998 and may have caused the
deaths of at least two people, as well as substantial property
destruction, during the riots. Budiono testified that he did not
take part in the riots and disagreed with the JMA’s
increasingly militant stance.
In February 2000, the JMA asked Budiono to lead its
fundraising efforts. The group hoped to use the funds to build
a new mosque. Budiono understood that the fundraising
position would require him to use “force” against those who
were reluctant to contribute funds. He refused the position
and quit the organization in protest of the JMA’s tactics. A
group of JMA men retaliated. They came to Budiono’s
home, where they beat him, sexually assaulted his wife, and
stole the family’s valuables. Although Budiono reported this
assault to the police, they declined to intervene in what they
considered to be a religious conflict.
A couple months later, members of the JMA (falsely)
accused Budiono of mismanaging JMA funds. The police
1
Because the IJ found Budiono’s testimony in hearings held prior to
the 2006 decision to be credible, we must accept it as true. See Halaim v.
INS, 358 F.3d 1128, 1131 (9th Cir. 2004).
6 BUDIONO V. LYNCH
arrested Budiono and, upon taking him into custody, began
beating him in an effort to extract a false confession. The
police held Budiono for two days until his wife paid a bribe
of five million rupiah, an amount equivalent to about two
months’ salary. Fearing further retribution, Budiono and his
wife moved to the province of West Java, several hours from
Jakarta. Unable to find work, Budiono and his wife obtained
United States visas. They moved to the United States in July
2000.
Budiono testified that he hoped to return to Indonesia
once the situation improved, presumably meaning after the
trend toward radical Islam died down. However, in 2003,
Budiono learned that a friend who had recently returned to
Indonesia was tortured and killed by a radical Muslim group.
Although that group was not affiliated with the JMA, the
friend had rejected the group’s radical interpretation of Islam
in much the same way that Budiono had rejected the JMA’s
violent tactics. That same year, immigration officials served
Budiono with a Notice to Appear. Budiono applied for
asylum, withholding of removal, and CAT relief. Budiono
claimed that the death of his friend constituted changed
circumstances, excusing the late filing of his application for
asylum.
B. Procedural History
In 2006, the IJ denied Budiono’s applications for relief,
granting Budiono voluntary departure. The IJ rejected
Budiono’s claim of changed circumstances, reasoning that the
death of Budiono’s friend did not indicate that the situation
facing moderate Muslims in Indonesia had changed
significantly since Budiono left. The IJ therefore concluded
that Budiono’s application for asylum was time-barred. See
BUDIONO V. LYNCH 7
8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4). The IJ
next determined that Budiono failed to prove past
persecution, or a credible fear of future persecution, on any
protected ground, disqualifying him from withholding of
removal. See 8 C.F.R. § 1208.16(b). Alternatively, the IJ
held that Budiono was ineligible for withholding of removal
because he had contributed material support to the JMA,
which the IJ found to be a terrorist organization under
8 U.S.C. § 1182(a)(3)(B). The IJ also denied Budiono CAT
relief. See 8 C.F.R. § 208.16(c).
Budiono appealed. In August 2008, the Board sustained
the appeal and remanded for further factfinding.2 The Board
agreed with the IJ that no changed circumstances excused
Budiono’s late asylum application. However, the Board
remanded for reconsideration of the IJ’s denial of withholding
of removal. The Board held that, contrary to the IJ’s
conclusion, Budiono’s testimony proved past persecution on
account of his religious beliefs. It remanded “to afford the
DHS an opportunity to show whether the respondent could
relocate in Indonesia or whether conditions have changed so
that the respondent no longer possesses a clear probability of
persecution . . . .” See 8 C.F.R. § 1208.16(b)(1)(A), (B). In
addition, the Board remanded for further proceedings to
determine whether the JMA was a terrorist organization. The
Board held that the IJ’s “conclusion on that issue [was] not
supported by sufficient findings of fact . . . .”
On remand, the IJ held a second hearing with a dual
purpose: to afford the government an opportunity to address
the issues of relocation and changed country conditions, and
2
The Board did not address Budiono’s eligibility for CAT relief in its
2008 decision.
8 BUDIONO V. LYNCH
to gather further testimony from Budiono about the JMA and
his role in the organization. The IJ concluded that Budiono
had a well-founded fear of future persecution and could not
reasonably relocate within Indonesia. Thus, Budiono
qualified for withholding of removal. The IJ, however,
denied Budiono’s application because Budiono had provided
material support to the JMA. See 8 U.S.C. § 1182(a)(3)(B).
The IJ rejected Budiono’s testimony about the JMA at the
second hearing as not credible; the IJ therefore relied entirely
on Budiono’s testimony at the first hearing in 2006 to support
his factual findings. The IJ found that the JMA “intentionally
harmed others as well as property in Indonesia from at least
1998 to 2000” and that “such harm in some instances was
inflicted because of . . . religion; and/or decisions being made
by the government.” The IJ concluded that the JMA was a
terrorist organization, and that Budiono’s support of the JMA
barred him from withholding of removal.
Budiono again appealed the IJ’s decision. In May 2012,
the Board dismissed the appeal, entering a final removal
order. The Board approved the IJ’s conclusion that, were it
not for the terrorist bar, Budiono would be eligible for
withholding of removal, adding that neither party challenged
that conclusion on appeal. Nevertheless, the Board affirmed
the IJ’s conclusion that Budiono was barred from relief due
to his material support of the JMA. The Board stated that
“the fact that [Budiono’s] testimony was often vague as to
what type of violence was perpetrated by the JMA does not
preclude a finding that the group was a terrorist
organization.”3 Budiono timely petitioned for review.
3
The Board also affirmed the IJ’s 2006 denial of CAT relief.
BUDIONO V. LYNCH 9
II.
We review de novo the Board’s legal conclusions.
Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012).
We review factual findings for substantial evidence; factual
findings should be upheld “unless the evidence compels a
contrary result.” Hernandez-Mancilla v. Holder, 633 F.3d
1182, 1184 (9th Cir. 2011). Our review is limited to those
grounds explicitly relied upon by the Board. Najmabadi v.
Holder, 597 F.3d 983, 986-87 (9th Cir. 2010). Accordingly,
“[w]e review only the [Board’s] decision, except to the extent
that it expressly adopts the IJ’s opinion. Where the [Board]
issues its own decision but relies in part on the immigration
judge’s reasoning, we review both decisions.” Flores-Lopez,
685 F.3d at 861 (citations omitted).
III.
Budiono first contends that the Board erred in holding
that his asylum claim was time barred. An applicant for
asylum generally must request relief within one year of
arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). An
exception to this rule applies if the applicant can prove “the
existence of changed circumstances which materially affect
the applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D).
Budiono concedes that he did not apply for asylum until
2003, more than one year after his arrival in the United
States. Budiono contends, however, that the 2003 murder of
his friend in Indonesia constitutes changed circumstances
excusing his late filing. Budiono testified that this event
prompted him to apply for asylum because it caused him to
realize how dangerous circumstances had become for
religious moderates like him.
10 BUDIONO V. LYNCH
In 2008, the Board, adopting the IJ’s analysis, rejected
Budiono’s changed circumstances claim.4 The IJ reasoned
that Budiono fled Indonesia because the JMA had
radicalized; that is, by the time Budiono left, the group was
already subjecting religious moderates to violence. Thus, the
killing of Budiono’s friend at the hands of a different Muslim
group was not a change from the circumstances Budiono
faced before he fled. We agree. New evidence confirming
what Budiono already knew – that moderate Muslims may
face violent repression in Indonesia – does not constitute
changed circumstances. See Sumolang v. Holder, 723 F.3d
1080, 1083 (9th Cir. 2013) (finding no changed
circumstances where “violence was at most no different in
degree from the violence that had been ongoing when [the
petitioner] left Indonesia in 1997”). We agree with the Board
that Budiono’s late asylum filing is not excused.
IV.
Budiono also contends that the Board erred in concluding
that he was barred from withholding of removal due to his
material support of a terrorist organization. We agree. The
IJ failed to make the requisite factual findings to support his
conclusion that the JMA was a terrorist organization.
Accordingly, Budiono’s support of the JMA cannot bar him
from withholding of removal.
4
We lack jurisdiction to review a determination that an asylum
application was untimely, 8 U.S.C. § 1158(a)(3), unless the petition for
review raises constitutional questions or questions of law, id.
§ 1252(a)(2)(D). In his 2006 decision, the IJ squarely rejected Budiono’s
argument that his friend’s death constituted changed circumstances. This
is a conclusion of law. Accordingly, we have jurisdiction to review it.
BUDIONO V. LYNCH 11
Under the Immigration and Nationality Act, any
individual who “has engaged in a terrorist activity” is
inadmissible to the United States and thus ineligible for
withholding of removal. 8 U.S.C. § 1182(a)(3)(B)(i). An
applicant for relief is deemed to have engaged in terrorist
activity if that individual has committed “an act that the actor
knows, or reasonably should know, affords material support”
to a terrorist organization. Id. § 1182(a)(3)(B)(iv). A
terrorist organization is any group of two or more individuals
engaged in “terrorist activity,” and terrorist activity is further
defined as one of several enumerated activities. Id.
§ 1182(a)(3)(B)(vi)(VI). Those enumerated activities include
hijacking, kidnapping, assassination, and, most relevant to
this case, “[t]he use of any . . . explosive, firearm, or other
weapon or dangerous device (other than for mere personal
monetary gain), with intent to endanger, directly or indirectly,
the safety of one or more individuals or to cause substantial
damage to property.” Id. § 1182(a)(3)(B)(iii).
An applicant for relief from removal must demonstrate
eligibility for the relief sought. Id. § 1229a(c)(4)(A); see also
8 C.F.R. § 1240.8(d). “If the evidence indicates” that a
mandatory bar to relief, such as the terrorist bar, may apply,
“the applicant shall have the burden of proving by a
preponderance of the evidence that such grounds do not
apply.” 8 C.F.R. § 1208.16(d)(2) (describing burden of proof
for withholding of removal); see also id. § 1240.8(d)
(describing burden of proof for relief applications generally).
A. Threshold Evidentiary Showing
We have yet to decide whether the government must first
make a threshold evidentiary showing that the terrorist bar
may apply and, if so, what showing is sufficient. First, it is
12 BUDIONO V. LYNCH
clear from the text of the regulations that the record must
contain at least some evidence that the bar applies before the
applicant must prove otherwise. The government would have
us hold that the applicant’s burden of proof arises where the
record contains only generalized evidence suggesting that an
organization was violent. We decline the government’s
invitation; instead, we apply the same burden-of-proof
framework that we apply in the context of the persecutor bar.
In that line of cases, we require a threshold showing of
particularized evidence of the bar’s applicability before
placing on the applicant the burden to rebut it.
Under the persecutor bar, “determining whether a
petitioner ‘assisted in persecution’ requires a particularized
evaluation of” two separate requirements: “personal
involvement and purposeful assistance.” Miranda Alvarado
v. Gonzales, 449 F.3d 915, 927 (9th Cir. 2006). The
persecution must also be based on a protected ground, which
would qualify the persecuted individual for refugee status in
the United States. Id. at 930. Thus, persecution cases are
especially instructive because, as with the terrorist bar, the
persecution bar consists of several elements. In those cases,
we have required threshold evidence of each element before
the burden of proof shifts to the applicant. Generalized
evidence that the applicant was involved with a persecuting
group is not enough. The same is true for the terrorist bar.
In Miranda Alvarado, we held that the evidence indicates
that the persecution bar applies when the evidence is
“sufficient to raise the inference that” the bar applies. Id. at
930. In Kumar v. Holder, 728 F.3d 993 (9th Cir. 2013), we
applied and refined that standard. There, we found
insufficient evidence in the record to raise the inference that
the applicant was personally involved in the alleged
BUDIONO V. LYNCH 13
persecution. Id. at 999-1000. Thus, we remanded for further
factfinding. Id. at 1000. Although the applicant in Kumar
testified that he worked at an interrogation facility in which
people were persecuted, there was no evidence to indicate
either that he took part in any interrogations or that he was
personally present during the alleged persecution. Id. at
998–99. Further, the evidence indicated only that the
applicant’s work assisted the operation of the facility; there
was no evidence indicating that the work directly assisted in
the persecution of others. Id. Faced with these evidentiary
gaps, we did not hold – as the government would have us do
here – that the persecutor bar should apply because the
applicant failed affirmatively to provide evidence rebutting
the circumstantial evidence suggesting that he might have
assisted in persecution. Id. Rather, by remanding for further
factfinding, we required a threshold showing that each
element of the persecutor bar could be met.5 Likewise, in the
5
This requirement is not unique to the Ninth Circuit. See Diaz-
Zanatta v. Holder, 558 F.3d 450, 460 (6th Cir. 2009) (requiring evidence
that the applicant, who collected and relayed information used to persecute
individuals, had “prior or contemporaneous knowledge” of how that
information was used); Xu Sheng Gao v. U.S. Atty. Gen., 500 F.3d 93, 100
(2d Cir. 2007) (“Before Gao may be held personally accountable . . . there
must be some evidence that he himself engaged in conduct that assisted
in the persecution of another.”).
We note that, in cases applying the resettlement bar, the applicant
bears the burden of proving the bar does not apply only upon the
government’s submission of specific documents to the IJ. The
government “bears the initial burden of showing that the government of
the third country issued to the alien a formal offer of some type of official
status permitting the alien to reside in that country indefinitely.” Su Hwa
She v. Holder, 629 F.3d 958, 962 (9th Cir. 2010) (quoting Maharaj v.
Gonzales, 450 F.3d 961, 976 (9th Cir. 2006)). Only when the government
has provided this evidence does “the burden shift[] to the alien to show,
by a preponderance of the evidence” that the resettlement bar does not
14 BUDIONO V. LYNCH
context of the terrorist bar, the record evidence must raise the
inference that each element of the terrorist bar could be met
before the applicant’s burden of proof arises.
It is unreasonable to expect applicants for withholding of
removal and other forms of relief to anticipate what bars
might apply to their case, and then to affirmatively rebut all
of those bars. Such a requirement would also be contrary to
the language of the regulations, which assume that the record
will contain at least some evidence indicating that a bar
applies before the applicant has the burden to disprove it. See
8 C.F.R. § 1208.16(d)(2); id. § 1240.8. Indeed, a threshold
evidentiary showing is especially important in the terrorism
context, where the definition of a terrorist organization, and
terrorist activity, is unusually broad. See In Re S–K–, 23 I. &
N. Dec. 936, 948-50 (BIA 2006) (Osuna, Acting V.
Chairman, concurring) (discussing the “breathtaking . . .
scope” of the statutory language). There must be some initial
showing that each element of the statute could be met.
Otherwise, we risk rejecting applicants who are in all other
respects eligible for relief simply on the basis of a vague
association with religious or political fundamentalism.
In the persecution context, we have found evidence that
an individual worked at a facility where people were
persecuted to be insufficient to indicate that the bar might
apply. Similarly, to invoke the terrorist bar, it is not enough
for the government simply to assert that an individual was
involved with a radical political or religious group. Rather,
the record evidence must raise the inference that each element
apply. Id.; see also, e.g., Tchitchui v. Holder, 657 F.3d 132, 135 (2d Cir.
2011); Firmansjah v. Gonzales, 424 F.3d 598, 602 (7th Cir. 2005); Abdille
v. Ashcroft, 242 F.3d 477, 491 (3d Cir. 2001).
BUDIONO V. LYNCH 15
of the bar applies. In this case, there must be some evidence
indicating that all of the following is true: that the alleged
terrorist group consisted of two or more people, who engaged
in one of six enumerated “terrorist activities,” and that the
applicant for relief actually knew of this activity when he
provided material support to the group. This framework is
consistent with our cases applying the persecution bar, as
described above. The framework is also consistent with the
Board’s decisions applying the terrorist bar. See id. at 939,
941 (finding evidence that an alleged terrorist organization
“use[d] firearms and/or explosives to engage in combat” with
the Burmese government sufficient to raise an inference that
the bar applied); In Re R–S–H, 23 I. & N. Dec. 629, 640 (BIA
2003) (noting with approval that the government “produced
significant evidence to support its position” that the terrorist
bar applied).
B. Application to Budiono
For the terrorist bar to apply, the IJ was required to find
that the JMA used “any . . . explosive, firearm, or other
weapon or dangerous device (other than for mere personal
monetary gain)” in pursuit of its goals. 8 U.S.C.
§ 1182(a)(3)(B)(iii)(V)(b). The IJ failed to do so.
The JMA is apparently unknown to the U.S. government.
Thus, the only available evidence of the JMA’s activities is
the testimony of Budiono and his wife.6 That testimony
contains no reference to the JMA ever using weapons.
Whenever Budiono recalled his own violent persecution by
6
Because the IJ relied solely on testimony from the first hearing in
2006 to support his conclusion on remand that the JMA was a terrorist
organization, that is the evidence we consider on this petition for review.
16 BUDIONO V. LYNCH
the JMA, he consistently described being “beaten.”
Budiono’s wife also testified that the JMA beat her husband.
When asked how the JMA beat him, Budiono said, “They
pushed me and then they hit my head and also my stomach.”
Budiono never mentioned the use of any weapon.
Budiono also consistently testified that the JMA used
“force” against him and others to promote their radical
beliefs. Budiono did not explain what the “force” entailed,
but he also used the word “force” to describe the physical
beatings he received from JMA members and the police.
Budiono only reported being hit and pushed during these
beatings. Thus, nothing in Budiono’s testimony suggests that
the JMA used weapons against their targets. Rather, the
evidence only raises the inference that the JMA physically
beat such individuals.
The government contends that the IJ could infer that the
JMA utilized weapons based on the participation of some
JMA members in the Jakarta riots. But Budiono never
mentioned weapons in relation to the Jakarta riots. Nor did
the government introduce any news articles, reports, or other
evidence indicating that the Jakarta rioters wielded weapons.
The bare fact that many people were killed during the riots
does not suffice to show that members of the JMA,
specifically, used weapons during the riots.
In cases where we have upheld the Board’s application of
the terrorist bar, there was much stronger evidence that the
organization met the statutory requirements for terrorist
activity. See, e.g., Bojnoordi v. Holder, 757 F.3d 1075, 1078
(9th Cir. 2014) (discussing evidence that the organization
“assassinated six United States nationals” in addition to
staging attacks inside Iran and killing United States military
BUDIONO V. LYNCH 17
personnel and civilians working on defense projects); Khan
v. Holder, 584 F.3d 773, 778 (9th Cir. 2009) (discussing
evidence that the organization engaged in “killings,
bombings, and attacks on convoys”). By contrast, the JMA’s
participation in the Jakarta riots does not raise the inference
that the JMA, as an organization, used weapons in pursuit of
its goals. Likewise, the fact that the JMA beat Budiono after
he expressed disagreement with their beliefs says nothing
about whether the JMA employed weapons. Cf. Kumar,
728 F.3d at 999 (holding that evidence that an applicant
worked at a facility where persecution occurred was
insufficient to show that the applicant was personally
involved in persecution).
In sum, the record supplies no evidence raising the
inference that the JMA was a terrorist organization as defined
by § 1182(a)(3)(B)(iii). Rather, all of the available evidence
indicates the opposite – that the JMA either did not have
access to or preferred not to use weapons. Based on this
evidence, the IJ determined that the JMA was a terrorist
organization because its members “harmed, threatened with
bodily harm, and/or damaged property, and . . . such harm
was directed toward non-Muslims and/or the government
. . . .” These are not the statutory elements of a terrorist
organization. The Board recognized this insufficiency on
Budiono’s first appeal and specifically instructed the IJ to
“reconsider the issue of [Budiono’s] eligibility based on his
alleged material support for a terrorist organization” because
“[t]he [IJ’s] conclusion on that issue is not supported by
sufficient findings of fact regarding whether the group is a
terrorist organization, and the respondent’s precise role in
such group.” The IJ failed to do so, relying on exactly the
same testimony the second time to find that the JMA was a
terrorist organization.
18 BUDIONO V. LYNCH
Based on the foregoing, we conclude that no evidence in
the record supports the IJ’s finding that the JMA is a terrorist
organization; therefore, the Board erred in denying Budiono’s
application for relief under the terrorist bar.
V.
The Board has twice considered whether Budiono was
barred from relief by his material support of the JMA. Both
times, the evidence was insufficient to support application of
the bar. Indeed, after conducting a second round of hearings,
the IJ was unable to uncover any additional evidence of the
JMA’s activities. Thus, we conclude that the terrorist bar
does not apply to Budiono.7
“Remand is not appropriate when the [Board] addressed
an issue and its opinion is reversed.” Retuta v. Holder,
591 F.3d 1181, 1189 n.4 (9th Cir. 2010). The IJ concluded on
remand that, but for application of the terrorist bar, Budiono
was eligible for withholding of removal. The Board upheld
that determination on appeal. Thus, because we conclude the
terrorist bar does not apply to Budiono, we must conclude
that he is eligible for withholding of removal.
We therefore GRANT Budiono’s petition for review,
REVERSE the order of removal, and REMAND to the
Board for further proceedings consistent with this opinion.
7
Because we conclude that Budiono qualifies for withholding of
removal, we do not address his CAT claim.
BUDIONO V. LYNCH 19
CALLAHAN, Circuit Judge, concurring in part, dissenting in
part:
Our government has the solemn responsibility of
protecting the American people from terrorist threats, in
addition to implementing our complex immigration laws.
Terrorist threats come from a range of groups and individuals,
including violent extremists in the United States and abroad.
Accordingly, as part of our country’s counter-terrorism
efforts, immigration law provides that where the “evidence
indicates” that an alien may have provided material support
to a terrorist group, the alien, not the government, has the
burden of proof to show that the terrorism bar does not apply.
8 C.F.R. § 1208.16(d). The government must make this low,
initial threshold showing that the “evidence indicates” the
terrorism bar applies.
I would hold that the government has met its initial
burden in this case. It’s not clear if the Jemaah Muslim
Attaqwa (JMA) is a bona fide terrorist organization, but under
these facts and under a deferential standard of review, the
government has provided sufficient circumstantial evidence
to “indicate” that JMA is a terrorist organization. Budiono is
not without recourse, as he may show that the terrorism bar
does not apply. The majority’s opinion, however, improperly
and unwisely inflates the government’s low threshold. See
8 C.F.R. § 1208.16(d). In doing so, the majority undermines
our ability to be vigilant against terrorism.
Even if I were to agree that the government must meet the
majority’s high threshold to show that the “evidence
indicates” that the terrorism bar applies—which I do not—the
proper remedy is a remand, not the outright grant of relief.
The majority grants relief to Budiono noting that the BIA has
20 BUDIONO V. LYNCH
already twice considered whether he was barred from relief
and, to the majority, both times the evidence was insufficient.
However, the IJ and the BIA misunderstood the appropriate
allocation of the burden of proof, as the majority now
redefines it, and did not appreciate the amount of evidence
required for the government to sustain its burden. Supreme
Court precedent requires that we afford the IJ and BIA the
opportunity to apply the correct law to the facts in the first
instance. Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per
curiam); INS v. Ventura, 537 U.S. 12, 16–17 (2002) (per
curiam). I respectfully dissent from the majority’s holding
that the government has not met, and cannot meet, its burden
of proof and the grant of Budiono’s petition for review.1
I. The terrorism bar
A brief background about the terrorism bar is appropriate.
In the wake of a horrific attack on American soil on
September 11, 2001, Congress enacted the Uniting and
Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA
PATRIOT Act) of 2001. Pub. L. No. 107–56, § 411(c),
155 Stat. 272 (2001), 8 U.S.C. § 1182(a)(3)(B). The Act
created a new category of terrorist organizations, a “Tier III”
designation. 8 U.S.C. § 1182(a)(3)(B)(vi)(III). A Tier III
organization is a terrorist organization beyond those groups
formally listed by the U.S. government and includes “a group
of two or more individuals, whether organized or not, which
engages in, or has a subgroup which engages in,” a terrorist
activity. Id. “Terrorist activity” is defined to include an
activity “unlawful under the laws of the place where it is
1
I concur with section III of the opinion that Budiono’s late asylum
filing is not excused.
BUDIONO V. LYNCH 21
committed” and which involves one of six enumerated
activities, including the use of any “biological agent,
chemical agent, or nuclear weapon or device, or [] explosive,
firearm, or other weapon or dangerous device (other than for
mere personal monetary gain), with intent to endanger,
directly or indirectly, the safety of one or more individuals or
to cause substantial damage to property [or] [a] threat,
attempt, or conspiracy to do any of the foregoing.” Id. at
§ 1182(a)(3)(B)(iii).
A person who recruits or solicits funds for a terrorist
organization or “commit[s] an act that the actor knows, or
reasonably should know, affords material support [to a
terrorist organization], including . . . funds . . . or other
material financial benefit” is deemed to have engaged in
“terrorist activity,” unless he “can demonstrate by clear
and convincing evidence that he did not know, and
should not reasonably have known, that the [Tier III]
organization was a terrorist organization.” 8 U.S.C.
§§ 1182(a)(3)(B)(iv)(IV)(cc), (V)(cc), (VI)(dd).
These provisions reflect the policy judgments of our
elected legislators that terrorism is an evolving and serious
threat to national security. See Hussain v. Mukasey, 518 F.3d
534, 537 (7th Cir. 2008) (“These definitions are broad, but
they are not vague.”).
II. The majority gives short shrift to the standard of
review.
We review the BIA’s resolution of questions of law de
novo. Bojnoordi v. Holder, 757 F.3d 1075, 1077 (9th Cir.
2014). The IJ’s factual findings, including whether the facts
support a finding that an organization is a Tier III terrorist
22 BUDIONO V. LYNCH
organization, are reviewed for substantial evidence. Id. at
1077–78. Under the substantial evidence standard, “the
administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias,
502 U.S. 478, 481 & n.1 (1992) (“To reverse the BIA finding
we must find that the evidence not only supports that
conclusion, but compels it.”). Although the majority pays lip
service to this standard, it does not follow the standard.
III. Although not conclusive, there is sufficient
evidence to “indicate” that JMA is a terrorist
organization.
In this case, Budiono conceded removability. Aliens
seeking relief from removal must demonstrate eligibility for
the relief sought. See 8 U.S.C. § 1229a(c)(4)(A). “If the
evidence indicates the applicability of one or more of the
grounds for denial of withholding enumerated in the Act, the
applicant shall have the burden of proving by a
preponderance of the evidence that such grounds do not
apply.”2 8 C.F.R. § 1240.8(d). I agree with the majority that
the “evidence indicates” the applicability of a mandatory bar
to relief when it is “sufficient to raise the inference” that the
bar applies.3 Maj. Op. 12. However, I would find that the
2
There is no dispute that the terrorism bar is a mandatory bar to
which § 1240.8(d) applies.
3
To the extent that the majority analogizes the terrorism bar to other
mandatory bars, such as the persecutor bar and the resettlement bar, I am
skeptical. The Supreme Court has cautioned us from imputing the
reasoning and rationale from one mandatory bar into another noting that
“we look not only to the particular statutory language, but to the design of
BUDIONO V. LYNCH 23
evidence here is sufficient to raise the inference that the JMA
met the definition of Tier III terrorist organization including
the inference that weapons or other dangerous devices were
used.
Budiono was a long-time member of Jemaah Muslim
Attaqwa, a group that he admits evolved into a radical,
fundamental Islamic organization that advocates violence and
the use of force against those who oppose it. JMA members
participated in the 1998 Jakarta riots where thousands of
people died. People began to fear JMA, including Budiono
who testified that members of JMA attacked him and sexually
assaulted his wife after he reportedly refused to use force
when raising funds for the group.
The majority requires that the government show that each
element of the terrorism bar has been met. But this
heightened requirement is contrary to the plain language of
the regulation which only requires that the evidence
“indicate” the terrorism bar applies, not that every element
must be satisfied. There is no justification to inflate this
plainly low threshold. Cf. Viegas v. Holder, 699 F.3d 798,
803 (4th Cir. 2012) (holding that “[e]ven if we were to accept
Viegas’s contention that he did not know he belonged to a
terrorist organization, substantial evidence indicates that
Viegas reasonably should have known that the organization
he belonged to engaged in terrorist activities”). Additionally,
it is not a stretch to believe that a radical, violent organization
whose members participate in riots, physically attack others,
and sexually assault women, uses some weapon in its
activities. That Budiono himself was evasive and non-
the statute as a whole and to its object and policy.” Negusie v. Holder,
555 U.S. 511, 519 (2009) (internal quotation marks omitted).
24 BUDIONO V. LYNCH
committal about how the JMA enforced its threats is also
relevant. Indeed, when the IJ asked Budiono to clarify what
he thought JMA meant when they told him to force people to
donate, Budiono responded vaguely “They would do
whatever they wanted.”
In sum, while there may be no conclusive or direct
evidence as to what instrumentalities JMA has used, Budiono
described how the JMA evolved into a radical, fundamental
Islamic organization that advocates violence and the use of
force against those who oppose it. Accordingly, under the
deferential review of the IJ’s findings of fact, I would hold
that the government has provided sufficient circumstantial
evidence to “indicate” that JMA is a terrorist organization.
IV. Under the majority’s holding, a remand is
required as the IJ and BIA erred in interpreting
the burden of proof and the amount of evidence
sufficient to satisfy that burden.
Even assuming the government’s past evidence was
insufficient to indicate that the terrorism bar applied, a
remand, not the outright grant of relief is the appropriate
remedy. The majority holds that the IJ and BIA erred in
discerning the appropriate legal rules to apply in this case.
The Supreme Court has held that where the BIA has not yet
considered an issue, the proper course is to remand to allow
the BIA to consider the issue in the first instance. Gonzales
v. Thomas, 547 U.S. 183, 186 (2006) (per curiam); INS v.
Ventura, 537 U.S. 12, 16–17 (2002) (per curiam). With few
exceptions, if the IJ and the BIA have “applied the wrong
legal standard, and ha[ve] not considered the issue using the
correct standard,” we remand the case. Fakhry v. Mukasey,
BUDIONO V. LYNCH 25
524 F.3d 1057, 1064 (9th Cir. 2008). That is what we should
do here.
The majority has adopted a new standard which the IJ and
the BIA have yet to apply. First, it holds that the government,
not Budiono, had the initial burden to produce evidence with
respect to the terrorism bar. The IJ and BIA both assumed
that it was Budiono who had the burden of proof.4 The IJ in
his first hearing stated that “[g]enerally the burden is on
[Budiono] to show that he would not be precluded from
relief.” The IJ repeated this standard in his first oral decision
by stating “the Court believes that the burden is on [Budiono]
to establish ineligibility for any benefit that there are no
grounds of ineligibility.” (citing In re Brantigan, 11 I. & N.
Dec. 493, 494 (BIA 1966)). The remand by the BIA said
nothing with respect to the burden; rather it said that “[u]pon
remand the Immigration Judge should also reconsider the
issue of [Budiono’s] eligibility based on his alleged material
support for a terrorist organization” and that the conclusion
was “not [at that time] supported by sufficient findings of
fact.” The IJ apparently took this as an instruction to describe
his findings in more detail, not as a criticism of how he
allocated the burden of proof. The reasonableness of the IJ’s
approach finds support in the fact that the BIA’s second
decision did not discuss the burden of proof.5
4
This assumption may have been logical given that Budiono
conceded removability.
5
The parties’ failure to clearly articulate the burden of proof on
appeal further demonstrates that we have adopted a new standard. The
government suggested at oral argument that once it satisfied its burden
that Budiono had overstayed his visa and was removable, Budiono then
had the burden of proof to show he was entitled to withholding of removal
notwithstanding the terrorism bar. When asked whether the government
26 BUDIONO V. LYNCH
However, the majority now holds that the government’s
initial evidence “must raise the inference that each element
of the bar could be met” including that the JMA used an
“explosive, firearm, or other weapon or dangerous device
(other than for mere personal monetary gain)’ in pursuit
of its goals.” Maj. Op. 13–14, 15 (citing 8 U.S.C.
§ 1182(a)(3)(B)(iii)(V)(b)). Neither the IJ nor the BIA
applied this standard. Rather, the BIA held: “As noted by the
Immigration Judge, the fact that [Budiono’s] testimony often
was vague as to what type of violence was perpetuated by the
JMA does not preclude a finding that the group was a terrorist
organization.” Indeed, the government argued not that it was
not required to offer specific, direct evidence of the type of
weapon used. This argument was not unreasonable as other
circuits addressing the terrorism bar have not discussed
whether the government’s evidence must raise the inference
for each element including that the organization used any
“explosive, firearm, or other weapon or dangerous device.”
See, e.g., Viegas, 699 F.3d at 802.
Remand is particularly important here because if the
government misunderstood the burden of proof, then it should
have the opportunity to make its initial showing. For
example, the IJ did not make a factual finding as to whether
JMA, a subgroup of Jemaah Muslim Islameer, was related to
Jemaah Islamiyah, a militant Islamic terrorist group
designated by the government as a foreign terrorist
organization, and responsible for several bombings and
training of terrorists. Because the government may be able to
meet the majority’s heightened requirement that it further link
JMA to the use of weapons or other instrumentalities of
had correctly stated the burden of proof, Budiono’s counsel answered, “I
believe that might be correct.”
BUDIONO V. LYNCH 27
terrorism, remand is appropriate here.6 See Thomas, 547 U.S.
at 186; Ventura, 537 U.S. at 16–17; Fakhry, 524 F.3d at 1064.
* * *
Terrorist organizations do not neatly disclose the extent
of their activities. Accordingly, although I agree that the
government must first make a threshold showing that the
terrorist bar may apply, I would hold that the government has
met this low threshold through circumstantial evidence. In
any event, the appropriate remedy is a remand, not the
outright grant of relief. As the majority holds that the IJ and
BIA applied the wrong legal standard and, accordingly, have
not considered the terrorism bar using the correct standard,
we should remand. I dissent.
6
Of course, if the government on remand fails to meet its heightened
burden, Budiono will not be prejudiced by the remand as the IJ and BIA
will then conclude that the terrorist bar does not apply.