Abufayad v. Holder
632 F.3d 623
9th Cir.2011Background
- Abufayad, a Palestinian born in Saudi Arabia, lived in Gaza until ~19, later studied in the West Bank and Egypt, and moved to the United States in 2007 under an IR-2 visa sponsored by his father.
- Upon attempting entry at SFO in 2007, a CBP officer detained him after finding material 'anti-American' on his computer, prompting a secondary examination and ICE investigation.
- Forensic review by Katz concluded the hard drive contained jihadist materials; contact information for the Islamic Association for Palestine (a designated terrorist organization) was found in his luggage.
- Agent Miranda testified that Abufayad’s background, connections to Hamas, and jihadist materials created reasonable grounds to believe he would likely engage in terrorist activity if admitted.
- The IJ held Abufayad inadmissible/removable under 8 U.S.C. § 1182(a)(3)(B)(i)(II) and granted CAT deferral of removal; the BIA later affirmed the adverse removal ruling but reversed the CAT grant.
- The Board concluded that the evidence, including Abufayad’s computer materials and background, provided a reasonable basis to believe he would likely engage in terrorist activity after entry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there were reasonable grounds to believe Abufayad would engage in terrorism after entry | Abufayad contends evidence was insufficient and based on speculation. | Government-supported by Agent Miranda’s expertise and the volume of jihadist material; reasonable grounds shown. | Yes; substantial evidence supported the BIA’s finding of likelihood. |
| Whether the CAT denial/deferral was proper given the immigration-proceedings outcome | Cat evidence showed high risk of torture upon return due to being labeled Hamas-affiliated. | Record failed to show more likely than not torture by Israeli authorities or PA; relied on speculation. | Not entitled to CAT protection; BIA’s CAT ruling sustained. |
| Standard of review and evidentiary deference in reviewing BIA findings on removability and CAT | Deference to IJ observations should not extend to speculative CAT conclusions. | Court reviews BIA findings for substantial evidence; Agency reasoning permissible. | Substantial evidence supports BIA findings; deferential review upheld. |
Key Cases Cited
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (burden-shifting and 'reasonable grounds' analysis; probability not certainty)
- Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006) (burden-shifting framework for admissibility with valid visa upon entry)
- Malkandi v. Holder, 576 F.3d 906 (9th Cir. 2009) (reasonable grounds evaluated against probable-cause standard)
- Hosseini v. Gonzales, 471 F.3d 953 (9th Cir. 2006) (CAT relief where removal proceedings outcomes could render torture likely)
- Ladha v. INS, 215 F.3d 889 (9th Cir. 2000) (asylum-context 'deemed true' testimony presumption not extended outside asylum)
- Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir. 2004) (testimony without adverse credibility finding requires acceptance of asserted facts in asylum context)