Mr. Budiono v. Loretta E. Lynch

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.