Wednesday, September 30, 2015

Ninth Circuit Remands Philippines Coup Plotter Case

Yesterday, in Zumel v. Lynch, the U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge Ikuta and joined by Judge O'Scannlain and District Judge Teilborg (sitting by designation), held

"that the [Board of Immigration Appeals (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."



Ferdinand Marcos

The facts central to the case arose during a period of political instability in the Philippines in the 1980s. In 1986, Jose Zumel was serving as a general in the Philippine Air Force. President Ferdinand Marcos held elections. Despite allegations of fraud, the Philippine Congress adopted a resolution declaring that Marcos won. Demonstrations in support for Marcos’s opponent, Corazon Aquino, followed.  Marcos later fled to the United States and Aquino assumed power. Zumel then became a leader of an opposition group known as Alyansang Tapat sa Sambayanan (ALTAS), a faction of the military that believed Marcos was the legitimate elected leader of the Philippines.  In January 1987, ALTAS staged a coup against the Aquino government. Zumel participated in planning the coup. The coup, and later attempts, failed.

Zumel later sought entry as a lawful permanent resident to the United States.  He petitioned for review 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 order of removal.


Carrie Rosenbaum, attorney for the petitioner in the case, wrote this about the Zumel case:

The Ninth Circuit came to the correct legal conclusion in accordance with the regulations, and precedent, that the Board of Immigration Appeals cannot disregard an immigration judge’s factual findings. The significance of this ruling is that the Court held the immigration agency to the standard intended by Congress requiring someone to have intent to cause physical injury that to be a terrorist. Because the terrorism definition is so broad, without the requirement of intent to cause harm, people resisting violent oppressive dictators, with no intent to cause harm, would be terrorists and unable to remain here, because their acts would be unlawful under the laws of that country’s dictator. Because the Court recognized that the immigration judge found that he did not intend to harm anyone, Mr. Zumel should be allowed to live out the remainder of his years in the United States with his U.S. citizen grandchildren and other family members.


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