The Ninth Circuit has adopted a framework for analyzing when the material support to terrorism bar applies.  Thus, the Government must show that the record evidence raises the inference that each element of the terrorist bar could be met before the applicant’s burden of proof arises.  To invoke the terrorist bar, it is not enough for the government simply to assert that an individual was involved with a radical political or religious group.  Instead, there must be some evidence indicating that all of the following is true: that the alleged terrorist group consisted of two or more people, who engaged in one of six enumerated “terrorist activities,” and that the applicant for relief actually knew of this activity when he provided material support to the group. 

In the instant case, the IJ was required to find that the JMA (the purported terrorist group at issue) used “any . . . explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain)” in pursuit of its goals.  Because the record was devoid of any evidence that the JMA ever used weapons to pursue its goals, the agency erred by deeming it a terrorist organization.  

The full text of Budiono v. Lynch can be found here: