Ninth Circuit Sides With Filipino Dissident

SAN FRANCISCO (CN) - The Ninth Circuit on Tuesday ordered the Board of Immigration Appeals to review its finding that a Philippine political coup participant was inadmissible for having engaged in terrorist activity.

Jose Maria Carlos De Leon Zumel was serving as a general in the Philippine Air Force in 1986 when Corazon Aquino unseated the Philippine president and took power in the nation.

Zumel then became a leader of an opposition group known as Alyansang Tapat sa Sambayanan (ALTAS), a faction of the military that believed that the unseated president, Ferdinand Marcos, was the legitimate leader of the Philippines.

The group staged a coup against the Aquino government in January 1987 involving attempted takeovers of two air force bases that was eventually suppressed by the Aquino government.

Zumel's role in the operation, according to the Ninth Circuit opinion, was to coordinate the actions of the opposition air force units and to send reinforcements if necessary - all of which he did by radio from a safe house.

After the coup attempt failed Zumel went underground, still maintaining a leadership role in ALTAS, and helped stage a second coup attempt in 1989. The second effort ultimately failed with assistance from the U.S. Air Force.

ALTAS and the Aquino government reached a peace agreement in 1995, the opinion said, and some ALTAS members including Zumel were granted general and unconditional amnesty.

Years later, in 2001, Zumel received permanent residency status in the United States on an application falsely stating that he had never been charged with violating any law in the United States or elsewhere and had never been a beneficiary of amnesty.

The next year, after a short visit to the Philippines, an immigration officer detained Zumel at Los Angeles International Airport and charged him with being an arriving alien subject to removal for engaging in terrorist activities.

An immigration judge found that Zumel was not inadmissible to the United States because the government had not met its burden to prove that Zumel's participation in the 1989 coup attempt "intended to endanger individuals or cause substantial property damage."

But the government appealed the decision, and the Board of Immigration Appeals found that the coup participants did intend to endanger individuals and thus determined Zumel inadmissible.

On appeal of the BIA's decision, Zumel claimed that the BIA should not have held that he "engaged" in the coup attempt, that the coup attempt was unlawful under the laws of the place where it was committed or that it was undertaken with intent to endanger.

Writing for the three-judge panel, Circuit Judge Sandra Ikuta said that the panel was "not persuaded" that the government had not met its burden of proving that Zumel planned the 1989 coup attempt and thus "engaged" in it.

The panel also upheld the BIA's finding that the attempt was unlawful in the Philippines, since the statutes at issue did not "suggest that a grant of amnesty eliminates the unlawfulness of an activity."

"Since Congress knows how to eliminate the immigration consequences of unlawful conduct when it wants to, we should not interpret congressional silence as accomplishing the same end," Ikuta wrote.

But assuming that Zumel's "intent to endanger" is a factual question, "the BIA here erred in failing to apply the clear error standard of review to the immigration judge's resolution of the intent issue," she wrote.

The BIA did not mention the standard of review in its discussion of the coup participants' intent or address whether the immigration judge "clearly erred in making the key factual findings on which she based her conclusion," she wrote.

"Because the BIA did not acknowledge the proper standard of review, ignored facts found by the immigration judge, and did not explain why the immigration judge 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 immigration judge's factual finding regarding the coup participants' intent," she wrote.

The panel vacated the BIA's decision and remanded for reconsideration under the correct standard.

Zumel's attorney Carrie Rosenbaum told Courthouse News the panel made the right decision.

"In concluding that the agency cannot disregard the immigration judge's findings, they ensured that an already overly broad statute not be misconstrued to eliminate the critical factual element of intent to endanger or cause physical harm, before one can be branded a terrorist," Rosenbaum said. "Absent this requirement, people resisting violent oppressive dictators, with no intent to cause harm, would be considered terrorists because their acts would be unlawful under the laws of that country's dictator."

She said the panel's finding should mean that Zumel can live the rest of his life in the United States "with his U.S. citizen children and grandchildren."

The bureau could be immediately reached for comment on Tuesday.

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