Jose Zumel v. Loretta E. Lynch, 2015 U.S. App. LEXIS 17130

Background

Jose M. C. Zumel, a former Philippine Air Force general and leader of the ALTAS opposition group, participated in planning two coup attempts against President Corazon Aquino (1987 and a larger coordinated attempt in November 1989).
Zumel coordinated planning, meetings with commanders, and arranged reinforcements; during the 1989 attempt he monitored radio traffic from a safe house and directed reinforcements to Sangley AFB.
The 1989 coup involved use of weapons, seizure of military bases (Villamor and Sangley) and resulted in casualties; the Philippine government charged Zumel with rebellion and sedition and later granted him amnesty in 1995 for acts from 1986–1994.
Zumel immigrated to the U.S., obtained permanent residency in 2001, and was later served with a Notice to Appear charging inadmissibility under 8 U.S.C. § 1182(a)(3)(B)(i)(I) for engaging in terrorist activity.
The IJ found Zumel credible, concluded he participated in planning the 1989 coup and that the coup was unlawful and involved weapons, but found the government failed to prove the participants had intent to endanger individuals; the BIA reversed and ordered removal.
The Ninth Circuit reviewed the BIA’s decision and held that (1) substantial evidence supports that Zumel “engaged” by planning; (2) the coup was unlawful under Philippine law despite later amnesty; but (3) the BIA erred by not applying clear-error review to the IJ’s factual finding on intent and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Zumel “engaged” in terrorist activity by planning/soliciting the 1989 coup	Zumel argued his role did not amount to engaging in terrorism	Government argued planning and soliciting satisfy §1182(a)(3)(B) definitions	Held: Substantial evidence supports that Zumel engaged by planning and coordinating reinforcements
Whether the 1989 coup was unlawful under Philippine law given no formal conviction and later amnesty	Zumel argued lack of formal criminal adjudication and subsequent amnesty mean the activity is not “unlawful” for §1182(a)(3)(B)(iii)	Government argued the statute asks whether the activity was unlawful at the time/place committed; conviction/pardon not required	Held: The statute focuses on the unlawfulness of the activity; amnesty does not erase that status for §1182(a)(3)(B)(iii) purposes
Whether the coup involved weapons used "with intent to endanger" (mens rea) and standard of review	Zumel argued the intent question is factual and the BIA improperly made de novo factual findings instead of applying clear-error to the IJ	Government assumed intent is factual but urged that BIA properly reviewed and found intent on the record	Held: Assuming intent is factual, BIA failed to apply the required clear-error review to the IJ’s factual findings about intent; BIA engaged in impermissible de novo factfinding and remand is required
Whether the BIA erred in invoking In re S-K- to refuse consideration of motive (political/combatant vs. terrorist)	Zumel argued motive/legitimacy of Aquino regime should matter	Government/BIA argued motive and political legitimacy are not exceptions under §1182(a)(3)(B) and In re S-K- bars creating such exceptions	Held: BIA correctly stated it cannot create motive-based exceptions; it retained authority to assess intent to endanger but not the legitimacy-of-government defense

Key Cases Cited

Khan v. Holder, 584 F.3d 773 (9th Cir. 2009) (armed attacks by dissidents on a country’s military can constitute terrorist activity under §1182)
Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012) (review limited to BIA decision when BIA issues its own opinion; discussion of remand when BIA errs in factfinding)
Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012) (BIA must apply clear-error review to IJ factual findings; de novo factfinding is legal error)
Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013) (BIA cannot rely on its own interpretation of facts; must explain why IJ clearly erred when rejecting IJ findings)
Lezama-Garcia v. Holder, 666 F.3d 518 (9th Cir. 2011) (Skidmore deference framework for non-precedential BIA interpretations)
Brezilien v. Holder, 569 F.3d 403 (9th Cir. 2009) (vacatur required when BIA error materially affected decision)
Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight of agency interpretation depends on its persuasiveness)
Anderson v. Bessemer City, 470 U.S. 564 (1985) (standard for reviewing factual findings; ‘‘clearly erroneous’’ explained)
Keene Corp. v. United States, 508 U.S. 200 (1993) (silence/omission in statutory text may be intentional)
Marino v. INS, 537 F.2d 686 (2d Cir. 1976) (grant of amnesty/pardon does not necessarily erase conviction’s immigration consequences)