Zumel v. Lynch

• Decision Date: 29 September 2015
• Docket Number: No. 12–70724.,12–70724.
• Citation: 803 F.3d 463
• Parties: Jose L. ZUMEL, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

803 F.3d 463

Jose L. ZUMEL, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 12–70724.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2015.

Filed Sept. 29, 2015.

Carrie Rosenbaum (argued), Law Offices of Carrie Rosenbaum, Alameda, CA; Nancy Ann Fellom, Law Offices of Fellom and Solorio, San Francisco, CA, for Petitioner.

Mark Christopher Walters (argued), Senior Counsel for National Security; Stuart F. Delery, Principal Deputy Assistant Attorney General; Michael P. Lindemann, Chxief, National Security Unit, United States Department of Justice, Office of Immigration Litigation, Appellate Court Section, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079–192–469.

Before: DIARMUID F. O'SCANNLAIN and SANDRA S. IKUTA, Circuit Judges and JAMES A. TEILBORG,^* Senior District Judge.

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.

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 televisionstation in Manila. The ALTAS forces took over 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.

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 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 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 solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a...