Mr. Budiono v. Loretta E. Lynch
2016 U.S. App. LEXIS 17227
| 9th Cir. | 2016Background
- Budiono, an Indonesian national, entered the U.S. in 2000 and later applied for asylum, withholding of removal, and CAT relief after overstaying his visa.
- He had been a long‑time member of Jemaah Muslim Attaqwa (JMA), which he says radicalized in the late 1990s; he quit after refusing to use “force” for fundraising and was beaten; his wife was assaulted.
- IJ initially denied relief (asylum time‑barred; no protected‑ground persecution) and found Budiono barred from withholding because JMA was a terrorist organization and he provided material support.
- The BIA remanded in 2008, finding past persecution but instructing the IJ to reassess whether JMA qualified as a terrorist organization; on remand the IJ again found JMA met the terrorist definition and denied withholding.
- On review, the Ninth Circuit majority held the record lacked substantial evidence that JMA engaged in statutory ‘‘terrorist activity’’ (use of weapons/explosives), so the terrorist bar did not apply; it granted Budiono withholding of removal.
- Judge Callahan concurred in part but dissented in part, arguing the government met the low initial threshold and that, if not, the proper remedy was remand for the BIA/IJ to apply the clarified standard.
Issues
| Issue | Budiono's Argument | Government's Argument | Held |
|---|---|---|---|
| Timeliness of asylum (changed circumstances) | Murder of friend in 2003 showed changed conditions excusing late asylum filing | Circumstance reiterated existing risk; not new | Held: no changed circumstances; asylum untimely (majority) |
| Applicability of terrorist‑bar to JMA (material support) | Record contains only beatings and vague references to "force"; no evidence JMA used weapons/explosives; terrorist bar not met | Circumstantial evidence (riot participation, violent acts, assaults) indicates JMA is a terrorist org; threshold met | Held: terrorist bar not supported by substantial evidence; JMA not shown to have engaged in statutory terrorist activity |
| Burden/threshold for government to trigger applicant's burden under 8 C.F.R. § 1208.16(d) | Government must make a threshold, particularized evidentiary showing raising inference as to each statutory element before burden shifts to applicant | Government urged a lower showing (generalized evidence of violence) suffices to place burden on applicant | Held: apply a threshold test analogous to persecutor‑bar cases—government must produce particularized evidence that each element could be met before burden shifts to applicant |
| Remedy when BIA/IJ applied insufficient standard | Remand not necessary; denial should be reversed if no substantial evidence supports bar | If government failed to meet proper threshold, allow BIA/IJ opportunity to apply correct standard on remand | Held: Because record lacks evidence to meet threshold, court granted relief; Callahan would remand for further proceedings |
Key Cases Cited
- Flores‑Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (standard of review for BIA legal conclusions and factual findings)
- Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) (threshold evidentiary showing required for persecutor bar elements)
- Kumar v. Holder, 728 F.3d 993 (9th Cir. 2013) (insufficient record evidence to infer personal involvement in persecution; remand for factfinding)
- Sumolang v. Holder, 723 F.3d 1080 (9th Cir. 2013) (changed‑circumstances standard—new evidence must materially alter eligibility)
- Bojnoordi v. Holder, 757 F.3d 1075 (9th Cir. 2014) (examples of organizations meeting terrorist‑activity elements)
- Viegas v. Holder, 699 F.3d 798 (4th Cir. 2012) (substantial evidence can show applicant reasonably should have known organization engaged in terrorist activities)
- Gonzales v. Thomas, 547 U.S. 183 (2006) (remand to agency where legal standard was not applied in first instance)
- INS v. Ventura, 537 U.S. 12 (2002) (similar remand principle)