Budiono v. Lynch, No. 12-71804 (9th Cir. 2016)
Annotate this CasePetitioner, a native of Indonesia, seeks review of the BIA's decision affirming the IJ's order of removal based on its determination that although petitioner otherwise qualified for withholding of removal, he was barred from relief due to his material support of a terrorist organization. The court agreed with the BIA that petitioner's late asylum filing is not excused because new evidence confirming what petitioner already knew - that moderate Muslims may face violent repression in Indonesia - does not constitute changed circumstances. The court applied the same burden-of-proof framework that it applied in the context of the persecutor bar. The court required a threshold showing of particularized evidence of the bar’s applicability before placing on the applicant the burden to rebut it. The court concluded, here, that the BIA erred in concluding that petitioner was barred from withholding of removal due to his material support of a terrorist organization. In this case, the court determined that the IJ failed to make the requisite factual findings to support his conclusion that the Jemaah Muslim Attaqwa was a terrorist organization. Therefore, the court granted the petition for review, reversed the order of removal, and remanded for further proceedings.
Court Description: 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. 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.
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