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 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…

Partial Concurrence and Partial Dissent by Judge CALLAHAN

OPINION

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 Bu-diono 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”).

In support of his claims, Budiono credibly testified 1 to the…

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…