Jose Zumel v. Loretta E. Lynch ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE L. ZUMEL, No. 12-70724
Petitioner,
Agency No.
v. A079-192-469
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 12, 2015—San Francisco, California
Filed September 29, 2015
Before: Diarmuid F. O’Scannlain and Sandra S. Ikuta,
Circuit Judges and James A. Teilborg,* Senior District
Judge.
Opinion by Judge Ikuta
*
The Honorable James A. Teilborg, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
2 ZUMEL V. LYNCH
SUMMARY**
Immigration
The panel granted Jose L. Zumel’s petition for review of
the Board of Immigration Appeals’ decision finding him
inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(I) for having
engaged in terrorist activity.
The panel held that the BIA correctly found that an
attempted coup against the Philippine government in 1989
was unlawful under Philippine law, and that Zumel
“engaged” in the coup by planning it. For purposes of this
appeal, the panel assumed that the question of coup
participants’ “intent to endanger, directly or indirectly,
the safety of one or more individuals” under
§ 1182(a)(3)(B)(iii)(V)(b) is a factual question, and held
that the BIA erred in failing to apply the clear error standard
of review to the Immigration Judge’s finding that the coup
participants lacked such intent. The panel remanded for the
BIA to review the IJ’s factual findings regarding intent for
clear error.
COUNSEL
Carrie Rosenbaum (argued), Law Offices of Carrie
Rosenbaum, Alameda, California; Nancy Ann Fellom, Law
Offices of Fellom and Solorio, San Francisco, California, for
Petitioner.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ZUMEL V. LYNCH 3
Mark Christopher Walters (argued), Senior Counsel for
National Security; Stuart F. Delery, Principal Deputy
Assistant Attorney General; Michael P. Lindemann, Chief,
National Security Unit, United States Department of Justice,
Office of Immigration Litigation, Appellate Court Section,
Civil Division, Washington, D.C., for Respondent.
OPINION
IKUTA, Circuit Judge:
Jose Maria Carlos De Leon Zumel, a native and citizen of
the Philippines, petitions for review of a decision of the
Board of Immigration Appeals (BIA) ruling that he is
inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(I) for having
engaged in terrorist activity, and dismissing his appeal from
the Immigration Judge’s (IJ) order of removal. We have
jurisdiction pursuant to 8 U.S.C. § 1252, and hold that the
BIA did not err when it determined that an attempted coup
against the Philippine government was unlawful under
Philippine law, and that Zumel “engaged” in the coup by
planning it. But assuming that the question whether the coup
participants lacked an “intent to endanger, directly or
indirectly, the safety of one or more individuals,” 8 U.S.C.
§ 1182(a)(3)(B)(iii)(V)(b), is a question of fact, the BIA erred
in failing to apply clear error review to the IJ’s finding that
the coup participants lacked such intent. See 8 C.F.R.
§ 1003.1(d)(3)(i). We therefore grant the petition for review
and remand to the BIA.
4 ZUMEL V. LYNCH
I
This appeal relates to Zumel’s activities during a period
of political instability in the Philippines from 1986 to 1989.
In 1986, Zumel was serving as a general in the Philippine Air
Force. In February of that year, then-President Ferdinand
Marcos held snap elections. Despite allegations of election
fraud, the Philippine Congress adopted a resolution declaring
that Marcos received the highest numbers of votes and
proclaiming him president. However, a mass demonstration
of support for Marcos’s opponent, Corazon Aquino,
ultimately led Marcos to flee to the United States in exile and
Aquino to take power.
After Aquino took power, Zumel became a leader of an
opposition group known as Alyansang Tapat sa Sambayanan
(ALTAS). ALTAS was a faction of the military that believed
Marcos was the legitimate elected leader of the Philippines.
To demonstrate their continued support for Marcos, ALTAS
members, including Zumel, attended a swearing-in ceremony
for Marcos’s vice-presidential running mate at the Manila
Hotel on July 6, 1986. As a result of Zumel’s attendance at
the swearing-in ceremony, the Air Force removed him from
active duty and placed him on an on-call assignment.
Despite his removal from active duty, Zumel remained
active in ALTAS. In January 1987, ALTAS staged a coup
against the Aquino government. Zumel participated in
planning the coup, including deciding which bases to target.
In order to destabilize the Aquino government and pave the
way for Marcos to return to power, ALTAS decided to take
over two air force bases, Villamor Air Force Base (Villamor
AFB) and Sangley Air Force Base (Sangley AFB), and a
television station in Manila. The ALTAS forces took over
ZUMEL V. LYNCH 5
Villamor AFB for about one hour, but succeeded in taking
over Sangley AFB for two days. During that period, ALTAS
detained the Sangley AFB commander on the premises and
prevented him from communicating with his troops. After
two days, the Philippine military forces supporting Aquino
suppressed the attempted takeover.
Zumel was not involved in tactical decisions about how
best to deploy the ALTAS forces on the ground. Rather, his
role during the operation was to coordinate the actions of the
opposition air force units and send reinforcements to assist
the troops if necessary. While the attempted coup was
underway, Zumel monitored the radio from a safe house. He
was unable to communicate with the ALTAS leaders at
Sangley AFB, however, because the battery on his radio died,
and he never sent any reinforcements to Villamor AFB
because the Philippine military regained control too quickly.
After the January 1987 coup attempt failed, Zumel went
underground, and the Aquino government issued warrants for
his arrest. According to the government, the warrants
charged Zumel with violating the Philippine Articles of War,
specifically Article 67 (“Mutiny or Sedition”) and Article 117
(“Officers, Separation from Service”). See An Act for
Making Further and More Effectual Provisions for the
National Defense by Establishing a System of Military Justice
for Persons Subject to Military Law, Comm. Act No. 408,
arts. 67, 117 (1938), 2 P.L. Comm. Ann., p. 781, 805, 817
(Phil.). While underground, Zumel continued to take a
leadership role in ALTAS, and served as the point of contact
for individuals wishing to join the movement. He also
communicated with Lieutenant Colonel Gregorio Honasan,
the leader of Reform the Armed Forces Movement, which
also opposed Aquino.
6 ZUMEL V. LYNCH
Zumel, Honasan, and other opposition groups began
planning another attempt to unseat the Aquino government.
This effort (the largest of the opposition initiatives) took
place in November 1989, and involved the coordinated efforts
of multiple organizations. According to the government, over
3,000 opposition troops participated. In this coup attempt, the
opposition attempted to take over Villamor AFB, Sangley
AFB, and the Aguinaldo Headquarters of the Armed Forces
of the Philippines. The attempt was initially successful:
Honasan’s troops took control of Sangley AFB, and used it to
launch air attacks on the Aguinaldo Headquarters. Zumel’s
role during the operation was to coordinate reinforcement
troops for Sangley AFB. From his position in a safe house,
Zumel monitored the radio communications between ALTAS
members and the Philippine military, and sent reinforcement
troops to Sangley AFB. These reinforcements were forced to
turn back when the United States Air Force sent fighter
planes to help the Aquino regime gain control. Although the
opposition troops held on to Sangley AFB and the Army
Headquarters for several days, and controlled Villamor AFB
for a few hours, the coup was ultimately defeated with
American assistance. According to Zumel, the coup attempt
resulted in approximately 30 to 50 casualties on both sides.
After this second coup attempt, the Aquino government
charged Zumel with an additional count of rebellion and
sedition for his participation in the 1989 coup.
The Aquino government and ALTAS, represented by
Zumel as its chairman, began negotiating a peace agreement
in 1992, and reached an agreement on May 29, 1995.
ALTAS members agreed to surrender “all equipment,
firearms, ammunitions and explosives in their possession.”
In turn, the Aquino government agreed that the ALTAS
members named on a list later provided by Zumel “shall be
ZUMEL V. LYNCH 7
granted a general and unconditional amnesty for crimes
committed in pursuit of political belief during the period 26
February 1986 to 30 April 1994.” Zumel was one of the
ALTAS members who received amnesty. Zumel’s
“Certificate of Amnesty” stated:
This is to certify that Jose Ma. Carlos L.
Zumel was granted AMNESTY for acts
constituting Rebellion / Coup d’etat
committed during the period from February
26, 1986 to April 30, 1994 on June 23, 1995
pursuant to the provisions of Proclamation
No. 347, issued on March 25, 1994 by His
Excellency, President Fidel V. Ramos.
In September 2000, Zumel traveled to the United States
on a visitor’s visa. He applied for lawful permanent
residency through his daughter the next month. The
application did not mention Zumel’s involvement in ALTAS,
and it falsely stated that Zumel had never been charged with
violating any law in the United States or elsewhere, and had
never been a beneficiary of amnesty. On April 12, 2001, the
former Immigration and Naturalization Service (Service)1
granted Zumel permanent residency status.
On November 29, 2002, after a short visit to the
Philippines, Zumel arrived at Los Angeles International
Airport, where an immigration officer referred him to
1
On March 1, 2003, Congress transferred the functions of the former
INS to the newly formed Department of Homeland Security (DHS)
pursuant to the Homeland Security Act of 2002. Pub. L. No. 107-296, 116
Stat. 2135 (2002). For the sake of simplicity, we refer to both the former
INS and the current DHS as “the Service.”
8 ZUMEL V. LYNCH
secondary inspection. The Service subsequently served
Zumel with a Notice to Appear, charging Zumel with being
an arriving alien who was subject to removal under 8 U.S.C.
§ 1182(a)(3)(B)(i)(I) for engaging in terrorist activities.2
Zumel’s case was referred to an IJ, and Zumel filed a motion
to terminate the proceedings on the ground that he had not
engaged in terrorist activity.
II
Before examining the IJ and the BIA’s rulings on Zumel’s
motion to terminate the proceedings, we first explain the
statutory provisions that render aliens who have “engaged in
a terrorist activity” ineligible to receive visas or to be
admitted to the United States. See generally 8 U.S.C.
§ 1182(a)(3)(B).
Under 8 U.S.C. § 1182(a)(3)(B)(i)(I), “[a]ny alien who
. . . has engaged in a terrorist activity . . . is inadmissible.”
The term “engage in terrorist activity” is defined to include
committing or inciting to commit a terrorist activity “under
circumstances indicating an intention to cause death or
serious bodily injury,” preparing or planning a terrorist
activity, and soliciting others to engage in terrorist activity,
either “in an individual capacity or as a member of an
organization.” Id. § 1182(a)(3)(B)(iv). It also includes
soliciting individuals “for membership in a terrorist
organization described in [§ 1182(a)(3)(B)(vi)(III)] unless the
2
The Service also charged Zumel with being removable under 8 U.S.C.
§ 1182(a)(6)(C)(i) for willfully misrepresenting a material fact on his
application for adjustment of status to lawful permanent resident and
under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for being an alien not in possession
of a valid immigrant visa. Neither charge is before us on appeal.
ZUMEL V. LYNCH 9
solicitor can demonstrate by clear and convincing evidence
that he did not know, and should not reasonably have known,
that the organization was a terrorist organization.” Id.§ 1182(a)(3)(B)(iv)(V)(cc).
A “terrorist organization” is defined in
§ 1182(a)(3)(B)(vi)(III) to mean “a group of two or more
individuals, whether organized or not, which engages in, or
has a subgroup which engages in” terrorist activity. Id.
§ 1182(a)(3)(B)(vi)(III).
Finally, “terrorist activity” is defined to mean “any
activity which is unlawful under the laws of the place where
it is committed (or which, if it had been committed in the
United States, would be unlawful under the laws of the
United States or any State).” Id. § 1182(a)(3)(B)(iii).
“Terrorist activity” must also involve one of six enumerated
activities, including “[t]he use of any . . . explosive, firearm,
or other weapon or dangerous device . . . with intent to
endanger, directly or indirectly, the safety of one or more
individuals or to cause substantial damage to property,” or
“[a] threat, attempt, or conspiracy” to do the foregoing. Id.3
3
8 U.S.C. § 1182(a)(3)(B)(iii) provides in full:
As used in this chapter, the term “terrorist activity”
means any activity which is unlawful under the laws of
the place where it is committed (or which, if it had been
committed in the United States, would be unlawful
under the laws of the United States or any State) and
which involves any of the following:
(I) The highjacking or sabotage of any conveyance
(including an aircraft, vessel, or vehicle).
10 ZUMEL V. LYNCH
We have held that an armed attack “by dissidents on
the military of a country,” including attacking the
military’s convoy, constitute terrorist activity under
§ 1182(a)(3)(B)(iii). Khan v. Holder, 584 F.3d 773, 785 (9th
Cir. 2009).
While these interlocking definitions cover a wide range of
activities, we focus on the statutory language relevant to this
appeal: an alien is inadmissible if the alien (1) planned an
activity either individually or as a member of an organization,
8 U.S.C. § 1182(a)(3)(B)(iv)(II), (2) that was unlawful under
(II) The seizing or detaining, and threatening to kill,
injure, or continue to detain, another individual in order
to compel a third person (including a governmental
organization) to do or abstain from doing any act as an
explicit or implicit condition for the release of the
individual seized or detained.
(III) A violent attack upon an internationally protected
person (as defined in section 1116(b)(4) of Title 18) or
upon the liberty of such a person.
(IV) An assassination.
(V) The use of any–
(a) biological agent, chemical agent, or nuclear
weapon or device, or
(b) 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.
(VI) A threat, attempt, or conspiracy to do any of the
foregoing.
ZUMEL V. LYNCH 11
the laws of the place where it was committed, id.§ 1182(a)(3)(B)(iii), and (3) involved the use of explosives,
firearms or other weapons or dangerous devices, id.
§ 1182(a)(3)(B)(iii)(V)(b), (4) with the intent to endanger,
directly or indirectly, the safety of individuals or cause
substantial damage to property, id.
III
We now turn to the IJ and the BIA’s rulings. The IJ held
three evidentiary hearings and issued both an interim and
final decision in this case. The IJ first determined, as an issue
of first impression, that the government had the burden of
proving that Zumel was inadmissible at the time he adjusted
status, and therefore was never “lawfully admitted for
permanent residence,” see 8 U.S.C. § 1101(a)(13)(C),
because he had engaged in terrorist activity.4
Next, the IJ considered whether Zumel had “engaged” in
the 1989 coup attempt, and whether it was a “terrorist
activity” within the meaning of the statute.5 The IJ found that
4
Zumel does not argue that the Service erred in charging him with being
an inadmissible arriving alien, rather than a deportable admitted alien.
Compare 8 U.S.C. § 1182 (defining classes of aliens who are ineligible to
be admitted to the United States), with id. § 1227 (defining classes of
aliens who are deportable after admission) and id. § 1101(a)(13)(C)
(stating that “[a]n alien lawfully admitted for permanent residence in the
United States shall not be regarded as seeking an admission into the
United States” unless the alien falls within one of six enumerated
categories). Therefore, we do not address this issue.
5
The IJ concluded that neither Zumel’s attendance at the swearing-in
ceremony for Marcos’s running mate at the Manila Hotel nor his conduct
during the coup attempt in 1987 constituted “engag[ing] in a terrorist
12 ZUMEL V. LYNCH
Zumel had “engaged” in the 1989 coup attempt by
participating in its general planning. See 8 U.S.C.
§§ 1182(a)(3)(B)(i)(I), (iv)(II). She also found that the 1989
coup attempt was unlawful under the laws of the Philippines,
see id. § 1182(a)(3)(B)(iii), and that weapons were used
during the coup attempt. She then addressed whether the
coup attempt was undertaken with the requisite “intent to
endanger.” See id. § 1182(a)(3)(B)(iii)(V)(b). In her
preliminary ruling, she found that it was undisputed that there
were some deaths as a result of the coup attempt, which
raised the inference that the participants intended to endanger
individuals. In her final ruling, the IJ found Zumel to be
credible and therefore credited his testimony that there were
ALTAS officers stationed at Villamor AFB and Sangley
AFB. The IJ held that this raised the inference that ALTAS
intended to take over the bases using the leadership already
in place, thereby avoiding bloodshed. Based on Zumel’s
testimony, the IJ also found that the ALTAS troops detained
the commander at Sangley AFB, but did not injure or threaten
him. The IJ stated that this fact raised the inference that the
participants in the coup were promoting a peaceful surrender.
Finally, the IJ found that the Aquino government, not the
opposition, destroyed fighter planes in the coup attempt.
Based on these findings and inferences, the IJ concluded that
the government had not met its burden of proving that the
participants in the 1989 coup attempt intended to endanger
individuals or cause substantial property damage, and
therefore ruled that Zumel was not inadmissible as an
alien who engaged in terrorist activities. See id.
§ 1182(a)(3)(B)(i)(I).
activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(I). These determinations are not
before us on appeal.
ZUMEL V. LYNCH 13
The BIA sustained the government’s appeal. In response
to the argument that Zumel’s efforts to return power to a duly
elected president made him a political combatant, not a
terrorist, the BIA first stated it lacked jurisdiction to consider
a group or individual’s motive for engaging in an activity that
otherwise meets the definition of “terrorist activity,” citing In
re S-K-, 23 I. & N. Dec. 936, 941 (BIA 2006). The BIA then
concluded that Zumel “engaged” in the 1989 coup attempt
both by helping plan the attempt and by soliciting others to
join ALTAS and to participate in the coup attempt. In
considering whether the 1989 coup attempt was a “terrorist
activity,” the BIA adopted the IJ’s conclusions that the 1989
coup attempt was unlawful under Philippine law6 and the
attempt involved the use of firearms or other weapons.
Turning to the intent of the coup participants, the BIA
reached a different conclusion than the IJ. Based on the
record, the BIA stated that the purpose of the members of
ALTAS and other participants in the attempted coup was to
force the government from power. Further, according to the
BIA, the means for obtaining that purpose included a range
of activities, including using weapons to secure an Air Force
base, and thus it was undisputed that the participants
anticipated that forcible action of some kind would be taken
against the government. Based on these facts, the BIA
concluded that the participants in the coup attempt intended
to, and did, use weapons to endanger individuals. In reaching
this conclusion, the BIA did not overturn the IJ’s holding that
Zumel was credible, instead noting that Zumel made
6
Neither the BIA nor the IJ addressed the question whether the 1989
coup attempt “would be unlawful under the laws of the United States or
any State,” 8 U.S.C. § 1182(a)(3)(B)(iii), nor did the parties address the
issue in their briefs. The issue is therefore not before us on appeal.
14 ZUMEL V. LYNCH
“significant concessions” in his testimony that supported the
BIA’s conclusion.
In light of its conclusions that Zumel “engaged” in the
1989 coup attempt and that the coup attempt constituted a
“terrorist activity,” the BIA determined that Zumel was
inadmissible at the time he adjusted status to that of lawful
permanent resident, and was therefore an arriving alien who
was inadmissible as charged. The BIA ordered Zumel
removed to the Philippines.7 Zumel timely petitioned for
review.
IV
Where, as here, “the BIA conducts its own review of the
evidence and law, rather than adopting the IJ’s decision, our
review is limited to the BIA’s decision, except to the extent
the IJ’s opinion is expressly adopted.” See Rodriguez v.
Holder, 683 F.3d 1164, 1169 (9th Cir. 2012) (internal
quotation marks omitted). “We review agency factual
findings and determinations of mixed questions of law and
fact for substantial evidence,” and legal questions de novo.
Khan, 584 F.3d at 776. Whether the BIA applied the correct
standard of review is a legal question. Ridore v. Holder,
696 F.3d 907, 911 (9th Cir. 2012). We defer to the BIA’s
7
After the BIA ordered Zumel removed, the parties agreed that the BIA
lacked authority to order Zumel’s removal in the first instance, see
Noriega-Lopez v. Ashcroft, 335 F.3d 874 (9th Cir. 2003), and the case was
remanded to the IJ solely for the entry of an order of removal. The IJ
ordered Zumel removed for the reasons stated in the BIA’s September 7,
2007 decision, and Zumel appealed. The BIA dismissed the appeal
because the IJ’s decision “was purely ministerial in nature” and Zumel did
not raise any arguments not already addressed by the BIA in its September
7, 2007 decision.
ZUMEL V. LYNCH 15
non-precedential interpretation of ambiguous immigration
statutes under Skidmore v. Swift & Co., 323 U.S. 134 (1944),
meaning that our deference is proportional to the
interpretation’s “thoroughness, reasoning, consistency, and
ability to persuade.” Lezama-Garcia v. Holder, 666 F.3d
518, 524–25 (9th Cir. 2011) (quoting Mejia–Hernandez v.
Holder, 633 F.3d 818, 822 (9th Cir. 2011)).
On appeal, Zumel does not dispute that the ALTAS
members intended to overthrow the Aquino government. Nor
does he dispute that the coup attempt involved the use of
weapons. Instead he claims that the BIA erred in holding:
(1) that he “engaged” in the coup attempt by planning it and
soliciting others to participate in it, (2) that the coup attempt
was unlawful under the laws of the place where it was
committed, and (3) that it was undertaken “with intent to
endanger, directly or indirectly, the safety of one or more
individuals or to cause substantial damage to property,” see
8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b).8
A
We first consider Zumel’s argument that, even if the 1989
coup attempt was a “terrorist activity,” the record does not
support the BIA’s determination that he “engaged” in that
activity by planning it and soliciting others to participate in it.
8
The parties decline to raise any argument regarding the burden of
proof. The BIA assumed without deciding that the government had the
burden of proving that Zumel was not an “alien lawfully admitted for
permanent residence,” 8 U.S.C. § 1101(a)(13)(C), and on appeal, the
government argues we need not reach this question of first impression.
We agree, because we would reach the same conclusions regardless which
party bears the burden of proof. Therefore, we will also assume without
deciding that the government has the burden here.
16 ZUMEL V. LYNCH
We conclude that substantial evidence supports the BIA’s
determination that Zumel planned the 1989 coup attempt. See
id. § 1182(a)(3)(B)(iv)(II). Zumel testified that prior to the
1989 coup attempt, he met with Honasan and they agreed to
join forces to carry out a coup against the Aquino
government; Zumel then held meetings with the relevant
commanding officers to coordinate the attempt. Zumel also
testified that he provided troops to support the takeover of
Sangley AFB. Such evidence supports the BIA’s
determination that Zumel “at a minimum . . . helped in
general planning of” the 1989 coup attempt. In light of this
evidence, we are not persuaded “that any reasonable
adjudicator would be compelled to conclude that the
Government did not meet its burden” of proving that Zumel
planned the attempt.9 Abufayad v. Holder, 632 F.3d 623, 630
(9th Cir. 2011).
B
We next address Zumel’s argument that the BIA erred by
concluding that the 1989 coup attempt was unlawful under
Philippine law. Zumel argues that his activity cannot be
considered “unlawful under the laws of the [Philippines]”
within the meaning of 8 U.S.C. § 1182(a)(3)(B)(iii) because
the Philippine government did not formally declare his
actions to be unlawful and no Philippine court formally
determined that Zumel engaged in an unlawful act, and the
9
Because we conclude that substantial evidence supports the BIA’s
determination that Zumel “engaged” in the 1989 coup attempt by planning
it, we need not address the BIA’s additional conclusion that Zumel also
“engaged” in the attempt by soliciting others to participate in it.
ZUMEL V. LYNCH 17
Philippine government’s grant of amnesty eliminated the
existence of Zumel’s unlawful activity under Philippine law.10
Given the plain language of § 1182(a)(3)(B)(iii), we reject
both arguments. The text of § 1182(a)(3)(B)(iii) defines
“terrorist activity” to mean “any activity which is unlawful
under the laws of the place where it is committed (or which,
if it had been committed in the United States, would be
unlawful under the laws of the United States or any State).”
It does not require the IJ to determine whether the
government of the affected country formally declared the
activity unlawful; indeed, the IJ need not even consider the
laws of the affected country if the activity would be unlawful
in the United States.11 Nor does the IJ have to determine
whether the alien was convicted of the unlawful activity; the
language of § 1182(a)(3)(B)(iii) focuses on the unlawful
nature of an activity, not on whether the alien who engaged
in the activity was convicted of a criminal offense. When
Congress wants to make clear that immigration consequences
do not attach unless an alien is convicted of an offense, it uses
express language to that effect. See, e.g., 8 U.S.C.
10
Zumel does not dispute the IJ’s conclusion that the 1989 coup attempt
was unlawful under Philippine law at the time it was committed. Nor
could he, because this conclusion is well supported in the record. Zumel
testified that the Philippine government charged him with the crime of
rebellion for the 1989 coup attempt, and a retired Associate Justice of the
Court of Appeals in the Philippines stated under oath that Zumel’s acts
“were considered illegal and punishable” under Philippine law.
Additionally, the certificate of amnesty given to Zumel states that he was
granted amnesty “for acts constituting Rebellion / Coup d’etat committed
during the period from February 26, 1986 to April 30, 1994.”
11
In any event, we note that the government of the Philippines formally
declared in the Certificate of Amnesty that Zumel had engaged in “acts
constituting Rebellion / Coup d’etat.”
18 ZUMEL V. LYNCH
§ 1182(a)(2)(B) (stating that an alien “convicted of 2 or more
offenses . . . for which the aggregate sentences to
confinement were 5 years or more is inadmissible.”).
Because Congress omitted any reference to convictions in
§ 1182(a)(3)(B)(iii), we may presume this omission is
intentional. See Keene Corp. v. United States, 508 U.S. 200,
208 (1993).
For similar reasons, we reject Zumel’s argument that the
Philippine government’s grant of amnesty eliminated the
unlawfulness of Zumel’s offense for purposes of
§ 1182(a)(3)(B)(iii). Again, nothing in § 1182(a)(3)(B)(iii)
suggests that a grant of amnesty eliminates the unlawfulness
of an activity. Id. The relevant inquiry under
§ 1182(a)(3)(B)(iii) is whether the activity is unlawful, not
whether the person who engaged in the unlawful activity now
stands before the law as though he had not committed a
crime, or has been immunized from any legal consequences
for the offense. Cf. Marino v. INS, 537 F.2d 686, 691 (2d Cir.
1976) (concluding that Italy’s grant of amnesty to the
petitioner did not “obliterate [the petitioner’s] conviction for
the purpose of determining eligibility to receive a visa and
meet the eligibility requirement for adjustment of status”
under U.S. immigration law). In other contexts, Congress has
expressly provided that an alien who has been pardoned for
unlawful conduct is relieved of immigration consequences.
See 8 U.S.C. § 1227(a)(2)(A)(vi) (stating that certain grounds
of deportability “shall not apply in the case of an alien with
respect to a criminal conviction if the alien subsequent to the
criminal conviction has been granted a full and unconditional
pardon by the President of the United States or by the
Governor of any of the several States”). Since Congress
knows how to eliminate the immigration consequences of
unlawful conduct when it wants to, we should not interpret
ZUMEL V. LYNCH 19
congressional silence as accomplishing the same end. Cf.
Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1251–52 (9th
Cir. 2008) (holding that an alien who receives a state pardon
cannot waive immigration consequences of his conviction
where the relevant statute lacks an express waiver provision).
The BIA in this case likewise concluded that the amnesty
Zumel received merely relieves him of the legal
consequences of his actions, but it does not establish that the
underlying activity was not “unlawful” for purposes of
8 U.S.C. § 1182(a)(3)(iii). This reasoning is entitled to
Skidmore deference. See Lezama-Garcia, 666 F.3d at
524–25. We therefore reject Zumel’s argument that because
of the grant of amnesty, the 1989 attempted coup did not
constitute an unlawful activity.12
C
Finally, we address Zumel’s argument that the BIA erred
by concluding that the 1989 coup attempt involved the use of
firearms or other weapons “with intent to endanger, directly
or indirectly, the safety of one or more individuals.” See
8 U.S.C. § 1182(a)(3)(B)(iii)(V).
12
We also reject Zumel’s argument that the BIA erred by equating
amnesty with a pardon, as evidenced by its statement that Zumel received
a “full pardon or amnesty.” We need not determine whether there is a
material distinction between amnesty and a pardon because there is no
indication that the BIA misunderstood the nature of relief granted to
Zumel. Rather, the BIA adopted the IJ’s opinion, which included the
finding that under Philippine law, amnesty “abolishes and puts into
oblivion the offense itself” such that the person “stands before the law
precisely as though he had committed no offense.”
20 ZUMEL V. LYNCH
1
We first briefly address Zumel’s argument that the BIA
erred by stating that it lacks jurisdiction under In re S-K- to
consider an organization or individual’s motive in engaging
in an activity. Zumel interprets this statement to mean that
the BIA thought it lacked authority to consider Zumel’s intent
in participating in the 1989 coup attempt and argues that such
a conclusion is contrary to § 1182(a)(3)(B)(iii)(V)(b), which
defines terrorist activity as including the use of a weapon
“with intent to endanger” others, id. (emphasis added).
This argument is based on a misunderstanding of In re S-
K-, which considered whether an alien was statutorily
ineligible for asylum and withholding of removal under
§ 1182(a)(3)(B)(iv)(VI) due to providing material support to
a terrorist organization. 23 I. & N. Dec. at 937–38. In that
case, the BIA held that it lacked authority to consider the
argument that a rebel group is not a terrorist organization if
it is fighting against an illegitimate or oppressive government.
Id. at 941–42. Rather, In re S-K- concluded that Congress
drafted § 1182(a)(3)(B) “very broadly, to include even those
people described as ‘freedom fighters,’” and did not give the
BIA “discretion to create exceptions for members of
organizations to which [the United States] Government might
be sympathetic.” Id. at 941. We upheld this interpretation in
Khan, where we determined that § 1182(a)(3)(b) contains no
exception “for armed resistance against military targets that
is permitted under the international law of armed conflict.”
584 F.3d at 784. We acknowledged that this interpretation of
the statute would include such actions as “armed resistance
by Jews against the government of Nazi Germany,” but
ZUMEL V. LYNCH 21
determined that such an interpretation is required by the
statute.13 Id. at 781.
Here, the BIA did not err in citing to In re S-K- for the
proposition that it lacks authority “to consider the motive of
a group or individual that otherwise meets the terrorism
definition.” This portion of the BIA’s opinion merely
responded to Zumel’s argument that ALTAS was not engaged
in terrorist activities because the Aquino government was
illegitimate. The BIA did not determine that it lacked
jurisdiction to consider whether Zumel and ALTAS intended
to endanger others in participating in the 1989 coup attempt;
indeed, it expressly considered that issue. Rather, the BIA
correctly noted that it lacked authority to consider the
legitimacy of the Aquino government and ALTAS’s motives
in attempting to overthrow it. See id. at 784.
2
We now consider Zumel’s argument that the BIA erred in
determining that the 1989 coup participants used weapons
“with intent to endanger, directly or indirectly, the safety of
one or more individuals,” § 1182(a)(3)(B)(iii)(V)(b). Zumel
argues that the coup participants’ intent is a question of fact,
and the BIA improperly conducted its own factfinding when
13
Khan also held that although the statute is broad, it is not
unconstitutionally vague because it “elaborates in great detail what
constitutes ‘terrorist activity.’” See 584 F.3d at 785–86. This holding
forecloses Zumel’s argument that 8 U.S.C. § 1182(a)(3)(B)(i)(I) is
overbroad and vague.
22 ZUMEL V. LYNCH
it determined that the coup participants had the requisite
intent.14 See 8 C.F.R. § 1003.1(d)(3).15
14
Zumel did not raise this argument in his opening brief, but we may
consider it because the government had an opportunity to address it both
at oral argument and in a supplemental letter to the court after oral
argument. See Alcaraz v. INS, 384 F.3d 1150, 1161–62 (9th Cir. 2004).
15
8 C.F.R. § 1003.1(d)(3) provides:
(3) Scope of review.
(i) The Board will not engage in de novo review of
findings of fact determined by an immigration judge.
Facts determined by the immigration judge, including
findings as to the credibility of testimony, shall be
reviewed only to determine whether the findings of the
immigration judge are clearly erroneous.
(ii) The Board may review questions of law, discretion,
and judgment and all other issues in appeals from
decisions of immigration judges de novo.
(iii) The Board may review all questions arising in
appeals from decisions issued by Service officers de
novo.
(iv) Except for taking administrative notice of
commonly known facts such as current events or the
contents of official documents, the Board will not
engage in factfinding in the course of deciding appeals.
A party asserting that the Board cannot properly resolve
an appeal without further factfinding must file a motion
for remand. If further factfinding is needed in a
particular case, the Board may remand the proceeding
to the immigration judge or, as appropriate, to the
Service.
ZUMEL V. LYNCH 23
No precedential BIA opinion has determined whether the
question of intent under § 1182(a)(3)(B)(iii)(V)(b) is a factual
question, a legal question, or a mixed question of law and
fact. On appeal, the government did not address this issue,
but argued only that the BIA properly reviewed the IJ’s
factual findings regarding the coup participants’ intent for
clear error. See id. For purposes of this appeal, we assume
that intent under § 1182(a)(3)(B)(iii)(V)(b) is a factual
question.
Although the BIA regulations permit the BIA to “review
questions of law, discretion, and judgment” de novo, 8 C.F.R.
§ 1003.1(d)(3)(ii), they preclude it from reviewing an IJ’s
factual findings de novo, id. § 1003.1(d)(3)(i). Instead, the
BIA may review an IJ’s factual findings only to determine
whether the findings are clearly erroneous. Id. Under the
regulations, the BIA may not make its own findings or rely
“on its own interpretation of the facts.” Vitug v. Holder,
723 F.3d 1056, 1063 (9th Cir. 2013) (internal quotation marks
omitted). If the IJ has left certain factual disputes unresolved
and the BIA believes that it cannot decide the case unless
they are resolved, it cannot make its own factual findings but
instead “must remand to the IJ for further factual findings.”
Rodriguez, 683 F.3d at 1173; see also 8 C.F.R.
§ 1003.1(d)(3)(iv).
The BIA may determine that an IJ’s factual findings are
clearly erroneous if the findings are “‘illogical or
implausible,’ or without ‘support in inferences that may be
drawn from the facts in the record.’” Rodriguez, 683 F.3d at
1170–71 (quoting Anderson v. Bessemer City, 470 U.S. 564,
577 (1985)). When credibility determinations are at issue, the
BIA may also determine an IJ’s factual findings are clearly
erroneous if a witness’s testimony is contradicted by
24 ZUMEL V. LYNCH
documents or objective evidence, or is “‘so internally
inconsistent or implausible on its face that a reasonable
factfinder would not credit it.’” Id. at 1171–72 (quoting
Anderson, 470 U.S. at 575). But “[u]nder clear error review,
if the BIA rejects a finding of the IJ, a ‘conclusory
pronouncement’ that the IJ has erred is insufficient; ‘the BIA
[is] obligated to explain why the IJ clearly erred in so
finding.’” Vitug, 723 F.3d at 1063 (alteration in original)
(quoting Ridore, 696 F.3d at 917).
If the BIA reviews the IJ’s factual findings de novo
instead of for clear error, or makes its own factual findings,
“it has committed an error of law.” Ridore, 696 F.3d at 911
(internal quotation marks omitted). If the BIA’s error
“materially affected its decision[] to reverse the IJ,” we must
vacate the BIA’s decision, Brezilien v. Holder, 569 F.3d 403,
414 (9th Cir. 2009), and remand for the BIA either to apply
the correct clear error standard of review or to remand to the
IJ to make any necessary additional factual findings.
Rodriguez, 683 F.3d at 1177.
Assuming that intent under § 1182(a)(3)(B)(iii)(V)(b) is
a factual question, the BIA here erred in failing to apply the
clear error standard of review to the IJ’s resolution of the
intent issue. We base this conclusion on a number of factors.
First, although the BIA references the clear error standard of
review in its discussion of the IJ’s credibility finding, it does
not mention that standard in its discussion of the coup
participants’ intent. Although not dispositive, the BIA’s
failure to state it was reviewing the IJ’s intent finding for
clear error undermines the government’s argument that the
BIA actually applied that standard. Compare Ridore,
696 F.3d at 914, 919 (noting that “the BIA’s decision
nowhere mentions a standard of review” and ultimately
ZUMEL V. LYNCH 25
concluding that the BIA improperly engaged in de novo
review of the IJ’s factual findings), with Perez-Palafox v.
Holder, 744 F.3d 1138, 1145–46 (9th Cir. 2014)
(distinguishing Ridore in part because the BIA “recognized
and acknowledged that the IJ’s factual findings were to be
reviewed for clear error”).
Second, the BIA did not address whether the IJ clearly
erred in making the key factual findings on which she based
her conclusion regarding the coup participants’ intent. For
instance, the BIA did not address the IJ’s finding that there
were ALTAS officers stationed at Villamor AFB and Sangley
AFB such that the bases could be taken over using the
leadership already in place there, nor did it address her
finding that ALTAS troops detained the commander at
Sangley AFB, but did not injure or threaten him. Indeed, the
BIA failed to even acknowledge that the IJ made a contrary
finding regarding the coup participants’ intent. The BIA’s
failure to evaluate the “factual findings of the IJ that were key
to the IJ’s holding,” indicates the BIA was not reviewing the
IJ’s determination for clear error. See Vitug, 723 F.3d at
1064.
Finally, rather than explaining why the IJ’s determination
that the coup participants lacked the requisite intent was
“illogical or implausible, or without support in inferences that
may be drawn from the facts in the record,” Rodriguez,
683 F.3d at 1170 (internal quotation marks omitted), the BIA
merely stated that “[i]t is clear from the record that
participants in [the 1989] coup intended to, and did, use
weapons to endanger others,” and that such weapons were
vital to securing the Air Force bases and to other stages of the
coup. Under our case law, such conclusory statements are
26 ZUMEL V. LYNCH
inadequate when the BIA is applying the clear error standard.
See Ridore, 696 F.3d at 917.
Because the BIA did not acknowledge the proper standard
of review, ignored facts found by the IJ, and did not explain
why the IJ erred in finding that the coup participants lacked
the requisite intent, we conclude that the BIA did not apply
the clear error standard of review to the IJ’s factual finding
regarding the coup participants’ intent. See Vitug, 723 F.3d
at 1063–64; see also Ridore, 696 F.3d at 919. The BIA
therefore engaged in a prohibited de novo review of material
facts. See Rodriguez, 683 F.3d at 1177.
Accordingly, we grant Zumel’s petition, vacate the BIA’s
decision, and remand for the BIA to consider the IJ’s factual
findings regarding intent under the correct clear error
standard of review. See Ridore, 696 F.3d at 922 (granting the
petition and remanding to the BIA to reconsider the IJ’s
decision applying the clear error standard of review);
Rodriguez, 683 F.3d at 1177 (same).
PETITION GRANTED.