Thursday, September 22, 2016
Panel Rejects Bid to Deport Alleged Supporter of Terrorism
Panel Says U.S., Having Twice Failed to Prove Indonesian Muslim Group Used Weapons, Cannot Try Again
By a MetNews Staff Writer
A suspected supporter of an Indonesian terrorist group cannot be denied withholding of removal on that ground, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided panel said the government had failed twice in its efforts to prove that Jemaah Muslim Attaqwa is a terrorist organization, and declined to order a remand so that it can make another attempt. A dissenting judge said remand would be appropriate because there was at least minimal evidence to support the government’s position.
The petitioner, identified by the single name Budiono, entered the country as a nonimmigrant visitor in 2000 and stayed after his visa expired. The Department of Homeland Security initiated removal proceedings in 2003, and he applied for asylum and related relief.
He testified at his removal hearing that he joined the Jakarta-based group as a teenager around 1990, and that it was a volunteer service organization. He said he turned away from the group when it became intolerant of non-Muslims and participated in anti-government riots.
Budiono further claimed that he left the group because of this turn, and that members retaliated by beating him in his home and sexually assaulting his wife. Police refused to treat this conduct as criminal, and subsequently arrested him on what he said were false charges of mismanaging funds belonging to the group, he said.
He was only released after his wife paid a bribe equal to about two months’ salary. The couple then moved several hours away from Jakarta, but he was unable to find work and came to the United States.
Budiono said he had planned to return to Indonesia, but learned in 2003 that a friend had been killed by a radical Muslim group, and that he feared for his own safety if he went back, even though the group that killed his friend was not tied to Jemaah Muslim Attaqwa.
Credible, but Ineligible
The immigration judge found him credible, but found that he was not eligible for asylum because he did not request it within one year of his arrival, and that he did not prove a fear of persecution. The IJ further found that even if he had a presumed or proven fear of persecution, he was subject to the statutory bar of relief for persons who have given material support to a terrorist organization.
The Board of Immigration Appeals reversed in 2008, concluding that he proved he had been persecuted for his religious beliefs, and that there was insufficient proof that Jemaah Muslim Attaqwa was a terrorist group. The case was remanded for further factfinding; the second IJ held that Budiono had a well-founded fear of persecution, and that relocation within Indonesia was not a reasonable alternative to remaining in the United States, but that he was barred from withholding of removal because he had given material support to a terrorist organization.
The BIA upheld the decision.
Senior Judge A. Wallace Tashima, writing for the panel yesterday, agreed that the petitioner’s request for asylum was time-barred, rejecting the argument that the death of his friend was a significant change of circumstances that would qualify for an exception to the one-year limitation.
But Tashima went on to say that the IJ’s findings of fact were inadequate to establish that the terrorism bar applied.
In order for the bar to apply, the jurist noted, the immigration law requires a finding that the group used “any . . . explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.”
Pointing out that the case involves a group that “is apparently unknown to the U.S. government,” Tashima said the only evidence of its activities came from the testimony of Budiono and his wife, neither of whom mentioned any weapons.
He rejected the government’s argument that use of weapons could be inferred from the involvement of some members of the group in the 1998 Jakarta riots. News accounts said that mass violence broke out after student demonstrators were killed by police, and that hundreds of people were killed in fires after commercial buildings were barricaded and torched, but Tashima said there was no testimony before the IJ that Jemaah Muslim Attaqwa members used weapons during the riots.
Previous cases upholding the application of the terrorism bar have involved much stronger evidence, he said.
Judge Harry Pregerson concurred in the opinion, but Judge Consuelo Callahan said the government presented sufficient circumstantial evidence, “under a deferential standard of review,” to support Budiono’s removal, or at least another remand.
By holding the government to a higher burden, she said, “the majority improperly inflated the government’s initial burden, and that even if she agreed with that standard, the appropriate remedy in this case is remand to the Board.”
The appeal was argued by Armin A. Skalmowski for the petitioner and Daniel I. Smulow for the government.
The case is Budiono v. Lynch, 12-71804.
Copyright 2016, Metropolitan News Company