Abufayad v. Holder
632 F.3d 623
9th Cir.2011Background
- Abufayad, a Saudi-born Palestinian, entered the United States with an IR-2 visa in 2007 via sponsorship by his father.
- U.S. authorities seized his computer at San Francisco, uncovering jihadist materials and related content.
- FBI/DHS and an expert reviewed the computer; Abufayad provided inconsistent explanations for the materials.
- Agent Miranda testified that Abufayad’s background and jihadist materials gave reasonable grounds to believe he would engage in terrorist activity.
- The IJ found Abufayad inadmissible and likely to engage in terrorist activity, and granted CAT deferral of removal based on fear of torture; the BIA affirmed removal but reversed CAT relief.
- On review, the Ninth Circuit held substantial evidence supported the BIA’s determinations and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there were reasonable grounds to believe Abufayad would engage in terrorist activity after entry | Abufayad argues evidence is only curiosity-based and not probative | Government relies on extensive materials, inconsistencies, and expert opinion | Yes; substantial evidence supports likely terrorist activity finding. |
| Whether the BIA properly affirmed the IJ’s inadmissibility and removal under 8 U.S.C. § 1182(a)(3)(B)(i)(II) | Arguments rely on subjective interpretations of jihadist materials | Record shows reasonable grounds to believe he would engage in terrorism | Yes; BIA's determination upheld. |
| Whether Abufayad is entitled to CAT protection based on the outcome of proceedings | Proceedings harm him and create fear of torture if returned | Record lacks objective evidence that torture is likely more probable than not | Not entitled to CAT protection; BIA affirmed denial. |
Key Cases Cited
- Elias-Zacarias, 502 U.S. 478 (1992) (probable-cause standard in removal proceedings)
- Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006) (burden-shifting in admissibility determinations)
- Malakandi v. Holder, 576 F.3d 906 (9th Cir. 2009) (reasonable grounds evaluated against a reasonable person)
- Hosseini v. Gonzales, 471 F.3d 953 (9th Cir. 2006) (substantial-evidence review of CAT determinations)
- Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir. 2004) (deemed-true rule not extended outside asylum context)
- Alarcon-Serrano v. INS, 220 F.3d 1116 (9th Cir. 2000) (burden of proof for inadmissibility)
- Hansezian v. Holder, 590 F.3d 744 (9th Cir. 2009) (reaffirmation of substantial-evidence review standards)