Budiono v. Lynch

837 F.3d 1042

Mr. Budiono, Petitioner,

v.Loretta E. Lynch, Attorney General, Respondent.

No. 12-71804

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2015, Pasadena, California

Filed September 21, 2016

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.

Before: Harry Pregerson, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Callahan

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”).

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 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 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 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.

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.

In 2008, the Board, adopting the IJ's analysis, rejected Budiono's changed circumstances claim.⁴ The IJ reasoned...