author: McKEOWN, Circuit Judge: McKEOWN, Circuit Judge, KLEINFELD, Senior Circuit Judge,

text:
    J.E. F.M., a minor, by and through his Next Friend, Bob Ekblad; J. F.M., a minor, by and through his Next Friend Bob Ekblad; D.G. F.M., a minor, by and through her Next Friend, Bob Ekblad; F. L.B., a minor, by and through his Next Friend, Casey Trupin; G. D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba; M. A.M., a minor, by and through his mother and Next Friend, Rose Pedro; J.E. V.G.; A.E. G.E.; G.J. C.P., Plaintiffs-Appellees/Cross-Appellants, v. Loretta E. LYNCH, Attorney General; Juan P. Osuna, Director, Executive Office for Immigration Review; Jeh Johnson, Secretary, Homeland Security; Thomas S. Winkowski, Principal Deputy Assistant Secretary, U.S. Immigration and Customs Enforcement; Nathalie R. Asher, Field Office Director, ICE ERO; Kenneth Hamilton, AAFOD, ERO; Sylvia M. Burwell, Secretary, Health and Human Services; Eskinder Negash, Director, Office of Refugee Resettlement, Defendants-Appellants Cross-Appellees.
    Nos. 15-35738 15-35739
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 7, 2016, Seattle, Washington
    Filed September 20, 2016

      Erez Reuveni (argued), Senior Litigation Counsel; Leon Fresco, Deputy Assistant Attorney General; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants/Cross-Appellees.
    Ahílan Thevanesan Arulanantham (argued), ACLU Immigrants’ Rights Project, ACLU of Southern California, Los Ange-les, California; Heidi Craig Garcia, Todd Nunn, and Theodore J. Angelis, K&L Gates LLP, Seattle, Washington; Glenda M. Aldana Madrid and Matt Adams, Northwest Immigrant Rights Project, Seattle, Washington; Cecillia Wang and Stephen Kang, ACLU Immigrants’ Rights Project, San Francisco, California; Melissa Crow, American Immigration Council, Washington, DC; Talia Inlender, Kristen Jackson, and Charanya Krishnaswami, Public Counsel, Los Angeles, California; Carmen Iguina, ACLU of Southern California, Los Angeles, California, for Plaintiffs-Appellees/Cross-Appellants.
    Marsha Chien, Assistant Attorney General; Colleen Melody, Civil Rights Unit Chief; Robert W. Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; Kamala D. Harris, Attorney General; Office of the Attorney General, Sacramento, California; for Amici Curiae States of Washington and California.
    Charles G. Wentworth, The Law Office of Lofgren & Wentworth P.C., Glen Ellyn, Illinois; Charles Roth, National Immigrant Justice Center, Chicago, Illinois; for Amici Curiae National Immigrant Justice Center; American Immigration Lawyers Association; Ayuda; Capital Area Immigrants’ Rights Coalition; Catholic Legal Immigration Network, Inc.; Community Legal Services in East Palo Alto; Diocesan Migrant & Refugee Services, Inc.; First Focus; Florence Immigrant and Refugee Rights Project; Hebrew Immigrant Aid Society— Pennsylvania; Human Rights Initiative of North Texas; Immigrant Defenders Law Center; Immigrant Law Center of Minnesota; National Immigration Law Center; National Justice for Our Neighbors; Pan-gea Legal Services; Pennsylvania Immigrant Resource Center; Puentes: Advocacy, Counseling & Education; Refugee and Immigrant Center for Education and Legal Services; the Advocates for Human Rights; Unlocal, Inc.; and U.S. Committee for Immigrants and Refugees.
    Paul W. Rodney, Holly E. Sterrett, and R. Reeves Anderson, Arnold & Porter LLP, Denver, Colorado; Sally L. Pei, Arnold & Porter LLP, Washington, D.C.; for Amici Curiae Former Federal Immigration Judges.
    Elisa S. Solomon, Covington &'Burling LLP, New York, New York; Risa E. Kaufman, Human Rights Institute, Columbia Law School, New York, New York; for Amicus Curiae Human Rights Watch.
    Before: ANDREW J. KLEINFELD, M. MARGARET McKEOWN, and MILAN D. SMITH, Jr., Circuit Judges.
   Concurrence by Judge McKEOWN;

Concurrence by Judge KLEINFELD

OPINION

McKEOWN, Circuit Judge:

This interlocutory appeal requires us to answer a single question: does a district court have jurisdiction over a claim that indigent minor immigrants without counsel have a right to government-appointed counsel in removal proceedings? Our answer to this jurisdictional query is no. We underscore that we address only the jurisdictional issue,' not the merits of the claims. Congress has clearly provided that all claims — whether statutory or constitutional — that “aris[e] from” immigration removal proceedings can only be brought through the petition for review process in the federal courts of appeals. 8 U.S.C. §§ 1252(a)(5) & (b)(9). Despite the gravity of their claims, the minors cannot bypass the immigration courts and proceed directly to district court. Instead, they must exhaust the administrative process before they can access the federal courts.

Background.

The appellees (collectively the “minors” or “children”) are immigrant minors, aged three to seventeen, who have been placed in administrative removal proceedings. The children are at various stages of the removal process: some are waiting to have their first removal hearing, some have already had a hearing, and some have been ordered removed in absentia. None of the children can afford an attorney, and each has tried and failed to obtain pro bono counsel for removal proceedings.

The children, suing on behalf of themselves and a class, claim a due process and statutory right to appointed counsel at government expense in immigration proceedings. They claim that, as minors, they “lack the intellectual and emotional capacity of adults,” yet are “force[d] ... to appear unrepresented in complex, adversarial court proceedings against trained [government] attorneys.” According to the complaint, this lack of representation “ensure[s] that [they and] thousands of children {are] deprived of- a full and fair opportunity to identify defenses or seek relief for which they qualify” in immigration court.

The children acknowledge that, generally, an immigrant who has been placed in removal proceedings can challenge those proceedings only after exhausting administrative remedies and filing a petition for review (PFR) in a federal court of appeals. But they argue that this case falls outside the general rule because, in light of the complex nature of removal proceedings and the appeals process, minors cannot effectively raise right-to-counsel claims through the PFR process. As a result, they conclude, they would be denied meaningful judicial review of their right-to-counsel claims if the district court lacked jurisdiction to hear the case.

The government moved to dismiss the complaint on multiple grounds, including ripeness (because in some- cases the removal proceedings had not commenced and in others they had not concluded at the time the complaint was filed) and jurisdiction (because the Immigration and Nationality Act (INA) channels judicial review of claims arising out of removal proceedings through the PFR process. 8 U.S.C. §§ 1252(a)(5) & (b)(9)). The district court granted the government’s motion in part and denied it in part. As to ripeness, the court dismissed for lack of jurisdiction the named parties “against whom removal proceedings have not yet been initiated,” reasoning that “[r]emoval proceedings might never be commenced.” The other children’s claims were ripe because the agency did not have authority to appoint counsel or to declare a statute barring government-funded counsel unconstitutional, and “[e]xhaustion is not required to make a claim ripe when the agency lacks authority to grant relief.”

The district court then turned to the government’s jurisdictional challenge. The court recognized that the INA’s judicial review mechanism, 8 U.S.C. §§ 1252(a)(5) and 1252(b)(9), “is broad in scope” and was “designed to consolidate and channel review of all legal and factual questions that arise from the removal of an alien into the administrative process, with judicial review of those decisions vested exclusively in the courts of appeal.” (quoting Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007) (emphasis in original)).

Despite the statutory strictures, the district court identified an exception to the INA’s exclusive review process and concluded that it had jurisdiction over the minors’ due. process right-to-counsel claims. Citing McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), and City of Rialto v. West Coast Loading Corporation, 581 F.3d 865 (9th Cir. 2009), the court explained that the due process claims challenged a procedure or policy collateral to the substance of removal proceedings and, in light of the fact that “an immigration judge is unlikely to conduct the requisite [due process] balancing, the administrative record would be insufficient to provide a basis for meaningful judicial review.” Conversely, the district court held that it lacked jurisdiction over the statutory right-to-counsel claims, in part because “the [constitutional] balancing standard does not apply and ... concerns about the adequacy of the administrative record are not warranted.”

The government filed this interlocutory appeal, challenging the district court’s determination that it had jurisdiction over the constitutional claims. The ■ minors cross-appealed, disputing, among other issues, the district court’s dismissal of the statutory claims.

Analysis

I. The Immigration and Nationality Act Provides Exclusive Judicial Review through the Petition for Review Process.

This appeal turns on our interpretation of two provisions of the INA, so we begin with the statute. The section titled “Exclusive means of review,” 8 U.S.C. § 1252(a)(5), prescribes the vehicle for judicial review: “[A] petition for review ... shall be the sole and exclusive means for judicial review of an order of removal .... ” Lest there be any question about the scope of judicial review, § 1252(b)(9) mandates that “[jjudicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States ... shall be available only in judicial review of a final order .... ”

Section 1252(b)(9) is, as the First Circuit noted, “breathtaking” in scope and “vise-like” in grip and therefore swallows up virtually all claims that are tied to removal proceedings. See Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007). Taken together, § 1252(a)(5) and § 1252(b)(9) mean that any issue — whether legal or factual— arising from any removal-related activity can be reviewed only through the PFR process. See Vilorta v. Lynch, 808 F.3d 764, 767 (9th Cir. 2015) (“It is well established that this court’s jurisdiction over removal proceedings is limited to review of final orders of removal.”); cf. Bibiano v. Lynch, 834 F.3d 966, 972-74, 2016 WL 4409351, at *5 (9th Cir. 2016) (holding that 8 U.S.C. § 1252(b)(2)’s venue provision is not jurisdictional, but contrasting the venue statute with other statutes in the INA that use the terms “judicial review” or “jurisdiction”).

Although §§ 1252(a)(5) and 1252(b)(9) might seem draconian at first glance, they have two mechanisms that ensure immigrants receive their “day in court.” Singh v. Gonzales, 499 F.3d 969, 979 (9th Cir. 2007). First, while these sections limit how immigrants can challenge their removal proceedings, they are not jurisdiction-stripping statutes that, by their terms, foreclose all judicial review of agency actions. Instead, the provisions channel judicial review over final orders of removal to the courts of appeals. See Elgin v. Dep’t of Treasury, — U.S. —, 132 S.Ct. 2126, 2132, 183L.Ed.2d 1 (2012) (explaining that heightened scrutiny is not appropriate where Congress channels judicial review of constitutional questions to a particular court but does not deny all judicial review of those questions). The Supreme Court has thus characterized § 1252(b)(9) as a “ ‘zipper’ clause,” Reno v. Am.-Arab Anti-Discrimination Comm. (AAADC), 525 U.S. 471, 483, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), explaining that the statute’s purpose “is to consolidate ‘judicial review’ of immigration proceedings into one action in the court of appeals[.]” INS v. St. Cyr, 533 U.S. 289, 313 & n.37, 121 S.W. 2271, 150 L.Ed.2d 347 (2001).

Second, arid equally importantly, § 1252(b)(9) has built-in limits. By channeling only those questions “arising from any action taken or proceeding brought to remove an alien,” the statute excludes from the PFR process any claim that does not arise from removal proceedings. Accordingly, claims that are independent of or collateral to the removal process do not fall within the scope of § 1252(b)(9). See Torres-Tristan v. Holder, 656 F.3d 653, 658 (7th Cir. 2011) (“Ancillary determinations made outside the context of a removal proceeding, however, are not subject to direct review.”); Aguilar, 510 F.3d at 11 (reading “arising from” “to exclude claims that are independent of, or wholly collateral to, the removal process”); see also City of Rialto, 581 F.3d at 874 (recognizing that McNary allowed the petitioners to challenge a policy that was collateral to their substantive eligibility for relief).

Thus, we have distinguished between claims that “arise from”-removal proceedings under § 1252(b)(9) — which must be channeled through the PFR process — and claims that are collateral to, or independent of, the removal process. See Aguilar, 510 F.3d at 11; Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006); Singh, 499 F.3d at 979. For example,' in Nadarajah v. Gonzales, we held that an immigrant could challenge his five-year administrative detention by filing a petition for a writ of habeas corpus in district court, notwithstanding § 1252(b)(9). 443 F.3d at 1075-76. Nadarajah had “prevailed at every administrative level of review,” had been granted asylum, and had “never been charged with any crime,” yet was being held in detention “without any established timeline for a decision on when he may be released from detention.” Id. at 1071, 1075. We explained that § 1252(b)(9) “does not apply to federal habeas corpus provisions that do not involve final orders of removal.” Id. at 1075. Because “Nadara-jah ha[d] prevailed at every administrative level” and been granted asylum, his petition did not involve a final order of removal, and § 1252(b)(9) did not channel jurisdiction to the courts of appeals. Id. at 1076.

Similarly, in the unique situation in Singh v. Gonzales, we recognized that the district court had jurisdiction -over the petitioner’s ineffective-assistance-of-counsel claim that arose after his attorney failed to file a timely PFR. 499 F.3d at 980. We noted that Singh’s claim could not have been raised before the agency because it arose after a final order of removal was entered and, absent habeas review, Singh would have had no legal avenue to obtain judicial review of this claim. We therefore concluded that his petition did not challenge a final order of removal under § 1252(b)(9). Id, at 979. We did not, however, allow Singh to raise a different ineffective assistance of counsel claim that arose before a final order of removal entered and that could and should have been brought before the agency. Id. at 974; cf. Skurtu v. Mukasey, 552 F.3d 651, 658 (8th Cir. 2008) (distinguishing Singh and holding that a right-to-counsel claim must be brought through the PFR process because the claim is a “direct result of the removal proceedings”).

In contrast, in Martinez v. Napolitano, we held in the context of a district court challenge under the Administrative Procedure Act that “[w]hen a claim by an alien, however it is framed, challenges the procedure and substance of an agency determination that is ‘inextricably linked’ to.the order of removal, it is prohibited by section 1252(a)(5).” 704 F.3d 620, 623 (9th Cir. 2012).

In light of §§ 1252(b)(9) and 1252(a)(5) and our precedent, the children’s right-to-counsel claims must be raised through the PFR process because they “arise from” removal proceedings. The counsel claims are not independent or ancillary to the removal proceedings. Rather, these claims are bound up in and an inextricable part of the administrative process. The First Circuit was the first court to consider whether a right-to-counsel claim falls outside the scope of § 1252(b)(9). The court unequivocally said no. Thus, we agree with the court’s analysis in Aguilar that, “[b]y any realistic measure, the alien’s right to counsel is part and parcel of. the removal proceeding itself— [A]n alien’s right to counsel possesses a direct link to, and is inextricably intertwined with, the administrative process that Congress so painstakingly fashioned.” Aguilar, 510 F.3d at 13.

Right-to-counsel claims are routinely raised in petitions for review filed with a federal court of appeals. See, e.g., Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008) (holding that the petitioner did not knowingly and voluntarily waive the right to counsel); Zepeda-Melendez v. INS, 741 F.2d 285, 289 (9th Cir. 1984) (holding that the INS’s deportation of an immigrant without notice to counsel violated the immigrant’s statutory right to coun- - sel). In part, this is because immigration judges have an obligation to ask whether a petitioner wants counsel: “Although [immigration judges] may not be required to undertake Herculean efforts to afford the right to counsel, at a minimum they must inquire whether the petitioner wishes counsel, determine a reasonable period for obtaining counsel, and assess whether any waiver of counsel is knowing and voluntary.” Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir. 2005). An immigration judge’s failure to inquire into whether the petitioner wants (or can knowingly waive) counsel is grounds for reversal. See id. As we discuss below, special protections are provided to minors who are unrepresented. See infra at pp. 1036-37.

The legislative history of the INA, as well as amendments to § 1252(b)(9), confirm that Congress intended to channel all claims arising from removal' proceedings, including right-to-counsel claims, to the federal courts'of appeals and bypass the district courts. Consolidation of the review process for immigration orders of removal began in 1961, when Congress amended the INA to channel immigrants’ challenges to their removal proceedings to the courts of appeals via the PFR. H.R. Rep. No. 87-1086, at 22 (1961), as reprinted in 1961 U.S.C.C.A.N. 2950, 2966; see also Magana-Pizano v. INS, 152 F.3d 1213, 1220 (9th Cir. 1998) (recognizing 1961 changes to INA), vacated on other grounds, 526 U.S. 1001, 119 S.Ct. 1137, 143 L.Ed.2d 206 (1999) (mem.). The change was intended to “create a single, separate, statutory form of judicial review of administrative orders for the [removal] of aliens from the United States” and to shorten the time frame for judicial review of deportation orders by “eliminatftng] ... a = .suit in a District Court.” H.R. Rep. No. 109-72, at 172 (2005) (Conf. Rep.), reprinted in 2005 U.S.C.C.A.N. 240, 297-301 (citations omitted).

Congress continued to streamline judicial review of immigration proceedings in 1996, when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3546 (1996). IIRIRA “repealed the old judicial-review scheme ... and instituted a new (and significantly more restrictive) one in 8 U.S.C. § 1252.” AAADC, 525 U.S. at 475, 119 S.Ct. 936. The new judicial review provisions were designed to make perfectly clear “that only courts of .appeals — and not district courts — could review a final removal order,” that “review of a final removal order is the only mechanism for reviewing any issue raised in a removal proceeding,” and. that the statute was “intended to preclude all district court review of any issue raised in a removal proceeding.” H.R. Rep. No. 109-72, at 173.

When it enacted § 1252(b)(9) in 1996, Congress was legislating against the backdrop of recent Supreme Court law. In 1991, in McNary v. Haitian Refugee Center, the Court offered a blueprint for how Congress could draft a jurisdiction-channeling statute that would cover not only individual challenges to agency decisions, but also broader challenges to agency policies and practices. A, group of immigrants, who applied unsuccessfully for amnesty under the special agricultural workers (SAW) program (or thought they would be unsuccessful in the future), filed an action in district court, alleging injuries caused by “unlawful practices and policies adopted by the INS in its administration of the SAW program.” 498 U.S. at 487, 111 S.Ct. 888. The Court held that, under the governing statute, the district court had jurisdiction to hear a challenge to INS practices and policies because the statute channeled only individual — not wider policy — claims through the PFR process.

Of significance to our analysis, the Court explained that Congress could have crafted language to channel challenges to agency policies through the PFR process if it had chosen to do so:

[H]ad Congress intended the limited review provisions of § 210(e) ... to encompass challenges to INS procedures and practices, it could easily have used broader statutory language. Congress could, for example, have ... channeled] into the Reform Act’s special review procedures “all causes ... arising under any of the provisions” of the legalization program. It moreover could have ... referred] to review “on all questions of law and fact” under the SAW legalization program.

Id. at 494, 111 S.Ct. 888 (citations omitted).

In McNary, the Court did everything but write the future statute and so it makes sense to presume that Congress was aware of this precedent when it amended the INA in 1996. See United States v. Wells, 519 U.S. 482, 495, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (“[W]e presume that Congress expects its statutes to be read in conformity with [the Supreme Court’s] precedents-”). With this presumption in mind, we note that § 1252(b)(9) neatly tracks the policy and practice jurisdiction-channeling language suggested in McNary: the amended section channels review of “all questions of law and fact” to the courts of appeals for all claims “arising from any action taken or proceeding brought to remove an alien from the United States.” 8 U.S.C. § 1252(b)(9). Thus, the legislative history and chronology of amendments to § 1252(b)(9) confirm the plain meaning of the statute. We conclude that §§ 1252(a)(5) and 1252(b)(9) channel review of all claims, including policies-and-practices challenges, through the PFR process whenever they “arise from” removal proceedings. Because the children’s right-to-counsel claims arise from their removal proceedings, they can only raise those claims through the PFR process. Aguilar, 510 F.3d at 13.

II. The Minors Have Not Been Denied All Forms of Meaningful Judicial Review.

The minors do not seriously dispute that the plain text of § 1252(b)(9) prohibits them from filing a complaint in federal district court. Instead, they attempt to get around the statute by claiming that they have been (or will be) denied meaningful judicial review .in light of their juvenile status. In other words, they argue that § 1252(b)(9), as applied in this context, creates a Catch-22 that effectively bars all judicial review of their claims.

The argument goes as follows: Minors who obtain counsel in them immigration proceedings will be unable to raise right-to-counsel claims because they have no such claim. As a practical matter, children who lack counsel will be unable to reach federal court to raise a right-to-counsel claim because they are subject to the same exhaustion requirements and filing deadlines that apply to adults. Even if an unrepresented child were able to navigate the PFR process, the child would still be deprived of meaningful judicial review, because the record on appeal would be insufficient to sustain review. Because, according to the minors, their right-to-counsel claims will never see the light of day through the PFR process, the panel should construe § 1252(b)(9) as not covering these claims.

The assertion that the minors will be denied meaningful judicial review stems from dicta in McNary. In McNary, the Court-noted that the SAW regime imposed several practical impediments to judicial review. Most importantly, SAW procedures- “d[id] not allow applicants to assemble adequate records” for review. 498 U.S. at 496, 111 S.Ct. 888. Agency interviews were neither recorded nor transcribed, and SAW applicants had “inadequate opportunity” to present evidence and witnesses on their own behalf. Id. Because the administrative record was minimal, the courts of appeals “[had] no complete or meaningful basis upon which to review application determinations.” Id. As a result, if the workers were “not allowed to pursue their claims in the District Court, [they] would not as a practical matter be able to obtain meaningful judicial review of their application denials or of their objections to INS procedures.” Id. Citing the “well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action,” the Court concluded that it is “most unlikely that Congress intended to foreclose all forms of meaningful judicial review.” Id.

The difficulty with the minors’ argument is that McNary was, at its core, a statutory interpretation case involving a completely different statute. See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 14, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (declining to apply McNary because it “turned on the different language of that different statute,” and noting that “the Court suggested that statutory language similar to the language at issue here — any claim ‘arising under’ ... —would have led it to a different legal conclusion”). The point in McNary was that Congress used language (“a determination respecting an application” for SAW status) that did not encompass the constitutional pattern and practice claims urged by the workers. As a consequence, their claims fell outside of the narrow channeling provisions of the statute.

In providing two alternative formulations of channeling language, the Court more than foreshadowed what language would be “expansive” enough to remove district court jurisdiction. Thus, the Court’s note to Congress laid out the language necessaiy to limit “challenges to INS procedures and practices.” McNary, 498 U.S. at 494, 111 S.Ct. 888. McNary does not provide an avenue for litigants to circumvent an unambiguous statute.

We would be naive if we did not acknowledge that having an unrepresented minor in immigration proceedings poses an extremely difficult situation. But we are not convinced that agency removal proceedings raise the same concerns that were present in the SAW proceedings. Unlike the SAW program, removal hearings are recorded and transcribed and provide a basis for meaningful judicial review. Immigration judges are both trained and required to probe the record and to ask questions to elicit information about possible avenues of relief. See 8 U.S.C. § 1229a(b)(l) (detailing- immigration judges’ obligation to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses”). Immigration judges must “adequately explain the hearing procedures to the alien,” Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002), and where immigrants proceed pro se, the judges have a duty to “fully develop the record.” Id. (quoting Jacinto v. INS, 208 F.3d 725, 733-34 (9th Cir. 2000)). They are also required to inform immigrants of any ability to apply for relief from removal and the right to appeal removal orders. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004).

Unrepresented minors receive additional special protections in removal proceedings. Unless the child is accompanied by “an attorney or legal representative, a near relative, legal guardian, or friend,” the immigration judge cannot accept the child’s admission of removability. 8 C.F.R. § 1240.10(c). Immigration judges also must ensure that any waiver of the right to counsel is knowing and voluntary; on review, we can “indulge every reasonable presumption against waiver,” United States v. Cisneros-Rodriguez, 813 . F.3d 748, 756 (9th Cir. 2015) (citation omitted), and when the petitipner is a minor, we factor “the minor’s age, intelligence, education, information, information,. and understanding and ability to comprehend” into our analysis. Jie Lin v. Ashcroft, 377 F.3d 1014, 1033 (9th Cir. 2004). Further, recognizing “a growing need for support systems the courts can use to effectively and efficiently manage the cases of unaccompanied minors,” in 2014, the Office of the Chief Immigration Judge provided guidelines for “The Friend of the Court Model for Unaccompanied Minors in Immigration Proceedings.” Although the friend of the court does not act as a representative, the friend’s assistance role can be critical in monitoring the proceedings. These protections distinguish removal proceedings from the SAW program, and the concerns highlighted by McNary are not in play.

At argument, counsel for the.children claimed that it was essentially impossible to get the right-to-counsel claim before a federal court. This assertion is belied by the fact that the minors’ counsel has previously raised a right-to-counsel claim through the PFR process. See Guzman-Heredia v. Gonzales, No. 04-72769 (9th Cir.). In Gmman-Heredia, the petitioner was a fourteen-year-old boy who was placed in removal proceedings. He explained to the immigration judge “that he had been unable to find an' attorney to represent him and requested that the Immigration Judge appoint an attorney for him.” The judge denied the request, stating that he could not “give people a free lawyer.” The immigration judge then ordered the petitioner removed, and the Board of Immigration Appeals affirmed. At this stage, the petitioner obtained pro bono counsel, who argued in,a PFR that:

Petitioner’s Fifth Amendment right to due process was violated when the Immigration Judge refused to appoint an attorney to represent him in removal proceedings. Because Petitioner is an unaccompanied child of 14 years of age, he is of limited cognitive abilities and lacks understanding of legal process. Due to the seriousness of the proceedings against him and the importance of the interest at stake, namely immigration proceedings in which the government seeks to remove Petitioner from his family, home and school in the United States, the Constitution compels that .Petitioner have been afforded the protection of appointed counsel at public expense.

Id. Although the case ultimately settled, Guzman-Heredia lays rest to the contention that right-to-counsel claims will never surface through the PFR process.

The reality is that current counsel for the minors are in a unique position to bring multiple test cases on the counsel issue. The claim in this suit is that indigent minors are entitled to government-provided counsel as a matter of constitutional and statutory right. For accompanied minors, a parent could make the claim or, for unaccompanied minors, a next friend could help them do so. Even better, the IJ and the government could acknowledge that absent a knowing and voluntary waiver, a minor proceeding without counsel has de facto requested a right to court-appointed counsel.

Under any of these scenarios, a right-to-counsel claim is teed up for appellate review. It is true that at present neither the immigration judge nor the Board of Immigration Appeals has authority to order court-appointed counsel. But the question at hand is a legal one involving constitutional rights. Even if not raised in the proceedings below, the court of appeals has authority to consider the issue because it falls within the narrow exception for “constitutional challenges that are not within the competence of administrative agencies to decide” and for arguments that are “so entirely foreclosed ... that no remedies [are] available as of right” from the agency. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (first quotation); Alvarado v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014) (second quotation; quotation marks and citation omitted, first alteration in original); see also, e.g., Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam) (recognizing exception to exhaustion requirement for constitutional challenges to agency procedures and the statute the agency administers).

We recognize that a class remedy arguably might be more efficient than requiring each applicant to file a PFR, but that is not a ground for ignoring the jurisdictional statute. Indeed, should a court determine that the statute barring payment for counsel does not mean what it says — a position taken by the minors — that statute would be “infirm across the circuit and in every case.” Naranjo-Aguilera v. INS, 30 F.3d 1106, 1114 (9th Cir. 1994). We also recognize that there are limited — and already more than stretched — pro bono resources available to help unaccompanied minors navigate the removal process. But these considerations cannot overcome a clear statutory prescription against district court review. Relief is through review in the court of appeals or executive or congressional action.

In sum, the minors’ claim that they are entitled to court-appointed counsel “arises from” their removal proceedings and §§ 1252(a)(5) and 1252(b)(9) provide petitions for review of a removal order as the exclusive avenue for judicial review. The district court lacks jurisdiction over the minors’ claims.

AFFIRMED as to the statutory claim; REVERSED as to the constitutional claim. The parties shall each bear their own costs on appeal.

McKEOWN, Circuit Judge,

with whom M. SMITH, Circuit Judge, joins, specially concurring:

Jurisdictional rulings have an anodyne character that may suggest insensitivity to the plight of the parties, particularly in a case involving immigrant children whose treatment, according to former Attorney General Eric Holder, raises serious policy and moral questions. But we must heed the Supreme Court’s admonition that “[fjederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). We did not reach the merits here because we hewed to the statute channeling federal court jurisdiction. That said, I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings. While I do not take a position on the merits of the children’s constitutional and statutory claims, I write to underscore that the Executive and Congress have the power to address this crisis without judicial intervention. What is missing here? Money and resolve — political solutions that fall outside the purview of the courts.

In fiscal year 2014, more than 60,000 unaccompanied minors made their way to the United States, prompting the Department of Homeland Security to declare a crisis at our southern border. Although the numbers dropped in fiscal year 2015, the surge has now reappeared. According to the Pew Research Center, “[t]he number of apprehensions of unaccompanied children shot up by 78%” during the first six months of fiscal year 2016. Indeed, earlier “some Members of Congress as well as the Administration characterized the issue as a humanitarian crisis.” The border crisis created what has been called a “perfect storm” in immigration courts, as children wend their way from border crossings to immigration proceedings. The storm has battered immigration “courtrooms crowded with young defendants but lacking lawyers and judges to handle the sheer volume of cases.”

The net result is that thousands of children are left to thread their way alone through the labyrinthine maze of immigration laws, which, without hyperbole, “have been termed second only to the Internal Revenue Code in complexity” Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987) (internal quotation marks omitted); see also Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (emphasizing the complexity of immigration laws and noting that lawyers may be the only ones capable of navigating through it). This reality prompted the Chief Immigration Judge to acknowledge that “[t]he demands placed on the [immigration] courts are increasing due to the unprecedented numbers of unaccompanied minors being placed in immigration proceedings. As a result there is .a growing need for support systems the [immigration] courts can use to effectively and efficiently manage the cases of unaccompanied minors.”

Given the onslaught of cases involving unaccompanied minors, there is only so much even the most dedicated and judicious immigration judges (and, on appeal, members of the Board of Immigration Appeals) ' can do. See Amicus Curiae Brief of Former Federal Immigration Judges at 7. Immigration judges are constrained by “extremely limited time and resources.” Id. at 4. Indeed, those judges may sometimes hear as many as 50 to 70 petitions in a three-to-four hour period, id. leaving scant time to delve deeply into the particular circumstances of a child’s case.

In light of all this, it'is no surprise that then-Attorney General Holder took the position in 2014 that “[t]hough these children may not have a Constitutional right to a lawyer, we have policy reasons and a moral obligation to ensure the presence of counsel.” But Congress has clearly — and repeatedly — indicated that these policy and moral concerns may not be addressed in the district court. Rather, these issues come initially within the Executive’s purview as part of the administrative removal process, with review available in the Courts of Appeals through the petition for review process. See Maj. Op. at 1033-35.

To its credit, the Executive has taken some steps within this process to address the difficulties confronting unaccompanied and unrepresented minors. Through the Justice AmeriCorps program, the'government awarded $1.8 million to support living allowances' for 100 legal fellows who will represent children in removal proceedings. The government has also partnered with the United States Conference of Catholic Bishops and the United States Committee for Refugees and Immigrants to provide legal representation to unaccompanied children. The Executive Office for Immigration Review offers legal orientations for custodians of unaccompanied children in removal proceedings and it launched a pilot program to provide legal services to unaccompanied minors.

Yet these programs, while laudable, are a drop in the bucket in relation to the magnitude of the problem — tens of thousands of children will remain unrepresented. A meritorious application for asylum, refuge, withholding of removal or other relief may fall through the cracks, despite the best efforts of immigration agencies and the best interests of the child. Additional policy and funding initiatives aimed at .securing representation for minors are important to ensure the smooth functioning of our immigration system and the fair and proper application of our immigration laws.

Eventually, an appeal asserting a right to government-funded counsel will find its way from the immigration courts to a Court of Appeals through the petition for review process. It would be both inappropriate and premature to comment on the legal merits of such a claim. But, no matter the ultimate outcome of such an appeal, Congress and the Executive should not simply wait for a judicial determination before taking up the “policy reasons and ... moral obligation” to respond to the dilemma of the thousands of children left to serve as their own advocates in the immigration courts in the meantime. The stakes are too high. To give meaning to “Equal Justice Under Law,” the tag line engraved on the U.S. Supreme Court building, to ensure the fair and effective administration of our immigration system, and to protect the interests of children who must struggle through that system, the problem demands action now.

KLEINFELD, Senior Circuit Judge,

specially concurring:

I agree with my colleagues that a child (or for that matter, an adult) is unlikely to be able to protect all his rights in a deportation proceeding unless he has a lawyer. Many advocacy groups are deeply involved in immigration issues, including the ones who provided counsel in this one, and because the solution to the representation problem is a highly controversial political matter, I think our own advocacy of some particular reform measure is unnecessary and the matter is .better left to the political process.

      . Immigration proceedings are civil, not criminal, in nature. Thus, the right-to-counsel claims invoke the Fifth Amendment’s due process requirement, not the Sixth Amendment's right-to-counsel provision, which is reserved for criminal proceedings.

      . This appeal was taken from the district court’s order dismissing the second amended complaint/which was brought on behalf of all minors without counsel. The district court denied the government’s motion to stay the proceedings pending resolution of the -interlocutory appeal. After the briefs were filed in this case, the minors filed a third amended complaint, redefined the proposed class to include an indigency limitation, and dismissed some of the named plaintiffs. None of this activity affects our analysis.

      . Section 1252(b)(9) encompasses both the statutory and constitutional claims, which the parties acknowledge stand or fall together.

      . "The term ‘zipper clause’ comes from labor law, where it refers to a provision in a collective bargaining agreement that prohibits further collective bargaining during the term of the agreement or, more generally; that limits the agreement of the parties to the four corners of the contract.” Gerald L. Neuman, Jurisdiction and the Rule of Law After the 1996 Immigration Act, 113 Hárv. L. Rev. 1963, 1984-85 (2000): . ' ■ ■

      . The text of the 1961' statute differs from the text of §§ 1252(a)(5) and 1252(b)(9). It reads: "[The petition for review process] shall apply to, and shall be the exclusive procedure for, the judicial review of all final orders of deportation ... made against aliens within the United States pursuant to administrative pro- - ceedings_”8 U.S.C. § 1105a(a) (1964). As we expláined in Magana-Pizano, the statute was subject to various "interim measures” from 1961 to 1996. 152 F.3d at 1220. In 1996, Congress repealed § 1105a(a) and enacted § 1252(b)(9). AAADC, 525 U.S. at 475, 119 S.Ct. 936. It enacted § 1252(a)(5) in 2005 as part of the REAL ÍD Act. Singh, 499 F.3d at 977. In each of these amendments, Congress has consistently sought to channel judicial review of immigration proceedings through the PFR process.

      . In the REAL ID ACT of 2005, Congress amended § 1252(b)(9) to clarify that federal courts lack habeas jurisdiction over orders of removal. The statute now contains an additional sentence on habeas jurisdiction, but the operative jurisdiction-channeling language has not changed from 1996. The 2005 amendment provides that: "Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.” 8 U.S.C. § 1252(b)(9). Congress amended the statute in response to St. Cyr, in which the Supreme Court held that the pre-2005 version of § 1252(b)(9) did not clearly strip the courts of habeas jurisdiction over immigrants who had committed crimes. See H.R. Rep. No. 109-72, at 173.

      . The operative language in the statute at issue in McNary provided that "judicial review of a determination respecting an application for adjustment of status” must be brought through a PFR. Id. at 486, 491, 111 S.Ct. 888.

      . The Court cited two other aspects of the SAW program that were problematic but are not pertinent here: first, under the statute, judicial review was available only if immigrants voluntarily surrendered themselves for deportation after being denied relief, and second, the plaintiffs "adduced a substantial amount of evidence, most of which would have been irrelevant in the processing of a particular individual application.” 498 U.S. at 496-97, 111 S.Ct. 888.

      . Because this case turns on the interpreta- , tion of the statute, the district court’s reliance on cases involving different statutes is misplaced. See Proyecto San Pablo v. INS, 189 F.3d 1130 (9th Cir. 1999) (holding that the district court had jurisdiction to hear challenges to agency policies under a statute that read "[t]here shall be judicial review of a [denial of an application for adjustment of status by the agency] only in the judicial review of an order of deportation,” 8 U.S.C. § 1255a(f)(4)(A)); and Ortiz v. Meissner, 179 F.3d 718 (9th Cir. 1999) (holding that the district court had jurisdiction to hear policies and practices challenge under 8 U.S.C. §§ 1255a(f) and 1160(e), which provided that "[t]here shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation[.]”). Neither case involved the zipper clause of § 1252(b)(9) or the "arising from” language. Both Proyecto and Ortiz analyzed McNary only in the context of the Immigration Reform and Control Act.

      . Following discussion at oral argument, to facilitate a test case, through December 2016 ,the government is providing the children’s counsel with notice of any minor without counsel that the government is aware of ordered removed by an immigration judge following a merits hearing. To take the government at its word that it is willing to cooperate with counsel, the government should continue such notice.

      .The Friend of the Court Model for Unaccompanied Minors can provide an avenue for counsel to play a role in individual proceedings. For example, one of the children's counsel appeared as a friend in an individual immigration proceeding in July 2016 and stated that although he did not represent the child, "for whatever value it has in the record that [the minor] does I know want appointed counsel.” See Attachment to Government's Letter to the Court, dated August 18, 2016.

      . Under the statute, immigrants in removal proceedings have "the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing.” 8 U.S.C. § 1229a(b)(4)(A). Agency regulations recognize the same privilege. 8 C.F.R. § 238.1(b)(2).

      . Because the district court lacks jurisdiction, we do not reach the other issues the minors raise on cross-appeal.

      . Attorney General Eric Holder, Remarks at the Hispanic National Bar Association 39th Annual Convention (Sept, 12, 2014), available at https://www.justice.gov/opa/speech/ remarks-attorney-general-eric-holder-hispanic-national-bar-association-39th-annual.

      . William Kandel, Unaccompanied Alien Children: An Overview, Congressional Research ’ Service, 1 (May 11, 2016), available at https:// fas.org/sgp/crs/homesec/R43599.pdf.

      . Julia Preston, U.S. Setting Up Emergency Shelter in Texas as Youths Cross Border Alone, N.Y. Times, May 16, 2014, available at http:// www.nytimes.com/2O14/05/17/us/us-sets-up-crisis-shelter-as-children-flow-across-border-alone.html?_r=0.

      . Jens Krogstad, U.S. Border Apprehensions of Families and Unaccompanied Children Jump Dramatically, Pew Research Center, May 4, 2016, available at http://www.pewresearch. org/fact-tank/2016/05/04/us-border-apprehensions-of-families-and-unaccompanied-children-jump-dramatically/.

      . See Kandel, supra note 2, at 1.

      . ABA Commission on Immigration, A Humanitarian Call to Action: Unaccompanied Children in Removal Proceedings Present a Critical Need for Legal Representation, 1 (June 3, 2015), available at http://www. americanbar.org/content/dam/aba/ administrative/immigration/UACSstatement. authcheckdam.pdf (internal quotation marks omitted).

      . Liz Robbins, Immigration Crisis Shifts from Border to Courts, N.Y. Times, Aug, 23, 2015, 'available at http://www.nytimes.com/2015/08/ 24/nyregion/border-crisis-shifts-as-undocumented-childrens-cases-overwhelm-courts.html.

      . According to the Transactional Records Access Clearinghouse at Syracuse University, between 2011 and 2014, the number of juvenile cases in immigration courts leaped from 6,425 in 2011 to 59,394 in 2014. As of September 2015, children in more than 32,700 pending immigration cases were unrepresented.

      . Memorandum from the Executive Office for Immigration Review, The Friend of the. Court Model for Unaccompanied. Minors in Immigration Proceedings (Sept. 10, 2014),

      . See supra note 1.

      . As discussed in the majority opinion, under the current statutory scheme, Congress . has recognized the "privilege of being .represented, at no expense to the Government, by counsel.” 8 U.S.C. § 1229a(b)(4)(A), Implementing regulations enacted by the Executive recognize the same limited privilege. See 8 C.f!r. § 238.1(b)(2).

      . See Press Release, Department of Justice, Justice Department and CNCS Announce $1.8 Million in Grants to Enhance Immigration Court'Proceedings and Provide Assistance to Unaccompanied Children (Sept. 12, 2014), available at https://www.justice.gov/opa/pr/ justice-department-an4-cncs-announce-18-million-grants-enhance-immigration-court-proceedings.

      . See Announcement of Award of Two Single-Source Program Expansion Supplement Grants To Support Legal Services to Refugees Under the Unaccompanied Alien Children’s Program, 79 Fed. Reg. 62,159-01 (Oct, 16, 2014).

      . See Press Release, Department of Justice, EOIR Expands Legal Orientation Program Sites (Oct. 22, 20.14), available at https://www. justice.gov/eoir/pr/eoir-expands-legal-orientation-programs.


source: Caselaw Access Project

author: TASHIMA, Circuit Judge: CALLAHAN, Circuit Judge,

license: Public Domain

text:
    Mr. BUDIONO, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 12-71804
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 8, 2015, Pasadena, California
    Filed September 21, 2016

      Armin A. Skalmowski (argued), Alhambra, California, for Petitioner.
    Daniel I. Smulow (argued), Trial Attorney; Lyle D, Jentzer, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
    Before: HARRY PREGERSON, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.
   Partial Concurrence and Partial Dissent by Judge CALLAHAN

OPINION

TASHIMA, Circuit Judge:

Budiono, a native of Indonesia, petitions for review of a Board of Immigration Appeals’ (the “Board”) decision affirming the Immigration Judge’s (“IJ”) order of removal. The IJ determined that although Budiono otherwise qualified for withholding of removal, he was barred from relief due to his material support of a terrorist organization. We have jurisdiction under 8 U.S.C. § 1252(a), We conclude that substantial evidence does not support the IJ’s finding that the organization engaged in terrorist activities; we therefore grant the petition for review.

I.

A. Factual Background

Budiono entered the United States on July 11, 2000, on a nonimmigrant visitor’s visa. He remained in the United States after his visa expired. In 2003, after Bu-diono registered under the former National Security Entry-Exit Registration System program, the Department of Homeland Security (“DHS”) initiated removal proceedings, Although Budiono conceded removability, he applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).

In support of his claims, Budiono credibly testified to the following: In about 1990, when he was 17 years old, Budiono joined a Jakarta-based Muslim community group Jemaah Muslim Attaqwa (“JMA”). At the time, the JMA’s primary purpose was to provide volunteer services to the neighborhood, including fixing homes, delivering medicine to people in. hospitals, and teaching the tenets of Islam to children and the poor. Around 1998, the group’s rhetoric began to change, becoming increasingly intolerant of non-Muslims. Members of the JMA participated in violent anti-government riots in May 1998 and may have caused the deaths of at least two people, as well as substantial property destruction, during the riots. Budiono testified that he did not take part in the riots and disagreed with the JMA’s increasingly militant stance.

In February 2000, the JMA asked Bu-diono to lead its fundraising efforts. The group hoped to use the funds to build a new mosque. Budiono understood that the fundraising position would require him to use “force” against those who were reluctant to contribute funds. He refused the position and quit the organization in protest of the JMA’s tactics. A group of JMA men retaliated. They came to Budiono’s home, where they .beat, him, sexually assaulted his wife, and stole the family’s valuables. Although Budiono reported this assault to the police, they declined to intervene in what they considered to be a religious conflict.

A couple months later, members of the JMA (falsely) accused Budiono of mismanaging JMA funds. The police arrested Bu-diono and, upon taking him into custody, began beating him in an effort to extract a false - confession. The police held Budiono for two days until his wife paid a bribe of five million rupiah, an amount equivalent to about two months’ salary. Fearing further retribution, Budiono and his wife moved to the province of West Java, several hours from Jakarta. Unable to find work, Budiono and his wife obtained United States visas. They moved to the United States in July 2000.

Budiono testified that he hoped to return to Indonesia once the situation improved, presumably meaning after the trend toward radical Islam died down. However, in 2003, Budiono learned that a friend who had recently returned to Indonesia was tortured and killed by a radical Muslim group. Although that group was not affiliated with the JMA, the friend had rejected the group’s radical interpretation of Islam in much the same way that Budiono had rejected the JMA’s violent tactics. That same year, immigration officials served Budiono with a Notice to Appear. Budiono applied for asylum, withholding of removal, and CAT relief. Budiono claimed that the death of his friend constituted changed circumstances, excusing the late filing of his application for asylum.

B. Procedural History

In 2006, the IJ denied Budiono’s applications for relief, granting Budiono voluntary departure. The IJ rejected Budiono’s claim of changed circumstances, reasoning that the death of Budiono’s friend did not indicate that the situation facing moderate Muslims' in Indonesia had changed significantly since Budiono left. The IJ therefore concluded that Budiono’s application for asylum was time-barred. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4). The IJ next determined that Budiono failed to prove past persecution, or a credible fear of future persecution, on any protected ground, disqualifying him from withholding of • removal.. See 8 C.F.R. § 1208.16(b). Alternatively, the IJ held that Budiono was ineligible for withholding of removal because he had contributed material support to the JMA, which the IJ found to be a terrorist organization under 8 U.S.C. § 1182(a)(3)(B). The IJ also denied Budiono CAT relief. See 8 C.F.R. § 208.16(c).

Budiono appealed. In August 2008, the Board sustained the appeal and remanded for further factfinding. The Board agreed with the IJ that no changed circumstances excused Budiono’s late asylum application. However, the Board remanded for reconsideration of the IJ’s denial of withholding of removal. The Board held that, contrary to the IJ’s conclusion, Budiono’s testimony proved past persecution on account of his religious beliefs. It remanded “to afford the DHS an opportunity to show whether the respondent could relocate in Indonesia or whether conditions have changed so that the respondent no longer possesses a clear probability of persecution.... ” See 8 C.F.R. § 1208.16(b)(1)(A), (B). In addition, the Board remanded for further proceedings to determine whether the JMA was a terrorist organization. The Board held that the IJ’s “conclusion on that issue [was] not supported by sufficient findings of fact....”

On remand, the IJ held a second hearing with a dual purpose: to afford the government an opportunity to address the issues of relocation and changed country conditions, and to gather further testimony from Budiono about the JMA and his role in the organization. The IJ concluded that Budiono had a well-founded fear of future persecution ahd could not reasonably relocate within Indonesia. Thus, Budiono qualified for withholding of removal. The IJ, however, denied Budiono’s application because Budiono had provided material support to the JMA. See 8 U.S.C. § 1182(a)(3)(B). The' IJ rejected Budiono’s testimony about the JMA at the second hearing as not credible; the IJ therefore relied entirely on Budiono’s testimony at the first hearing in 2006 to support his factual findings. The IJ found that the JMA “intentionally harmed others as well as property in Indonesia from at least 1998 to 2000” and that “such harm in some instances was inflicted because of ... religion; and/or decisions being made by the government.” The IJ concluded that the JMA was a terrorist organization, and that Budiono’s support of the JMA barred him from withholding of removal.

Budiono again appealed the IJ’s decision. In May 2012, the Board dismissed the appeal, entering a final removal order. The Board approved the IJ’s conclusion that, were it not for the terrorist bar, Budiono would be eligible for withholding of removal, adding that neither party challenged that conclusion on appeal. Nevertheless, the Board affirmed the IJ’s conclusion that Budiono was barred from relief due to his material support of the JMA. The Board stated that “the fact that [Budiono’s] testimony was often vague as to what type of violence was perpetrated by the JMA does not preclude a finding That the group was a terrorist organization.” Budiono timely petitioned for review.

II.

We review de novo the Board’s legal conclusions. Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012). We review factual findings for substantial evidence; factual findings should be upheld “unless the evidence compels a contrary result.” Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir. 2011). Our review is limited to those grounds explicitly relied upon by the Board. Najmabadi v. Holder, 597 F.3d 983, 986-87 (9th Cir. 2010). Accordingly, “[w]e review only the [Board’s] decision,. except to the extent that it expressly adopts the IJ’s opinion. Where the [Board] issues its own decision but relies in part on the immigration judge’s reasoning, we review both decisions.” Flores-Lopez, 685 F.3d at 861 (citations omitted).

III.

Budiono first contends that the Board erred in holding that his asylum claim was time barred. An applicant for asylum generally must request relief within one year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). An exception to this rule applies if the applicant can prove “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D).

Budiono concedes that he did not apply for asylum until 2003, more than one year after his arrival in the United States. Bu-diono contends,, however, that the 2003 murder of his friend in Indonesia constitutes changed circumstances excusing his late filing. Budiono testified that this event prompted him to apply for asylum because it caused him' to realize how dangerous circumstances had become for religious moderates like him.

In 2008, the Board, adopting the IJ’s analysis, rejected Budiono’s changed circumstances claim. The IJ reasoned that Budiono fled Indonesia because the JMA had radicalized; that is, by the time Bu-diono left, the group was already subjecting religious moderates to violence. Thus, the killing of Budiono’s friend at the hands of a different Muslim group was not a change from the circumstances Budiono faced before he fled. We agree. New evidence confirming what Budiono already knew — that moderate .Muslims may face violent repression in Indonesia — does not constitute changed circumstances. See Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013) (finding no changed circumstances where “violence was at most no different in degree from the violence that had been ongoing when [the petitioner] left Indonesia in 1997”). We agree with the Board that Budiono’s late asylum filing is not excused.

TV.

Budiono also contends that the Board erred in concluding that he was barred from withholding of removal due to his material support of a terrorist organization. We agree. The IJ failed to make the requisite factual findings to support his conclusion that the JMA was a terrorist organization. Accordingly, Budiono’s support of the JMA cannot bar him from withholding of removal.

Under the Immigration and Nationality Act, any individual who “has engaged in a terrorist activity” is inadmissible to the United States and thus ineligible for withholding of removal. 8 U.S.C. § 1182(a)(3)(B)(i). An applicant for relief is deemed to have engaged in terrorist activity if that individual has committed “an act that the actor knows, or reasonably should know, affords material support” to a .terrorist organization. Id. § 1182(a)(3)(B)(iv). A terrorist organization is any group of two or more individuals engaged in “terrorist activity,” and .terrorist activity is further defined as one of several enumerated activities. Id. § 1182(a)(3)(B)(vi)(VI). Those enumerated activities include hijacking, kidnapping, assassination, and, most relevant to this case, “[t]he use of any ... 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.” Id. § 1182(a)(3)(B)(iii).

An applicant for relief from removal must demonstrate eligibility for the relief sought. Id. § 1229a(c)(4)(A); see also 8 C.F.R. § 1240.8(d). “If the evidence indicates” that a mandatory bar to relief, such as the terrorist bar, may apply, “the applicant shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1208.16(d)(2) (describing burden of proof for withholding of removal); see also id. § 1240.8(d) (describing burden of proof for relief applications generally).

A. Threshold Evidentiary Showing

We have yet to decide whether the government must first make a threshold evidentiary showing that the terrorist bar may apply and, if so, what showing is sufficient. First, it is clear from the text of the regulations that the record must contain at least some evidence that the bar applies before the applicant must prove otherwise. The government would have us hold that the applicant’s burden of proof arises where the record contains only generalized evidence suggesting that an organization was violent. We decline the government’s invitation; instead, we apply the same burden-of-proof framework that we apply in the context of the persecutor bar. In that line of cases, we require a threshold showing of particularized evidence of the bar’s applicability before placing on the applicant the burden to rebut it.

Under the persecutor bar, “determining whether a petitioner ‘assisted in persecution’ requires a particularized evaluation of’ two separate requirements: “personal involvement and purposeful assistance.” Miranda Alvarado v. Gonzales, 449 F.3d 915, 927 (9th Cir. 2006), The persecution must also be based on a protected ground, which would qualify the persecuted individual for refugee status in the United States. Id. at 930. Thus, persecution cases are especially instructive because, as with the terrorist bar, the persecution bar consists of several elements. In those cases, we have required threshold evidence of each element before the burden of proof shifts to the applicant. Generalized evidence that the applicant was involved with a persecuting group is not enough. The same is true for the terrorist bar.

In Miranda Alvarado, we held that the evidence indicates that the persecution bar applies when the evidence is “sufficient to raise the inference that” the bar applies. Id. at 930, In Kumar v. Holder, 728 F.3d 993 (9th Cir. 2013), we applied and refined that standard. There, wé found insufficient evidence' in the record to raise the inference that the applicant was personally involved in the alleged persecution. Id. at 999-1000. Thus, we remanded for further factfinding. Id. at 1000. Although the applicant in Kumar testified that he worked at an interrogation facility in which people were persecuted, there was no evidence to indicate either that he took part in any'interrogations or that he was personally present during the alleged persecution. Id. at 998-99. Further, the evidence indicated only that the applicant’s work assisted the operation of the facility; there was no evidence indicating that the work directly assisted in the persecution of others. Id. Faced with these evidentiary gaps, we did not hold — as the government would have us do here — that the persecutor bar should apply because the applicant failed affirmatively to provide evidence rebutting the circumstantial evidence suggesting that he might have assisted in persecution. Id. Rather, by remanding for further fact-finding, we required a threshold showing that each element of the persecutor bar could be met. Likewise, in the context of the terrorist bar, the record evidence must raise the inference that each element of the terrorist bar could be met before the applicant’s burden of proof arises.

It is unreasonable to expect applicants for withholding of removal and other forms of relief to anticipate what bars might apply to their case, and then to affirmatively rebut all of those bars. Such a requirement would also be contrary to the language of the regulations, which assume that the record will contain at least some evidence indicating that a bar applies before the applicant has the burden to disprove it. See 8 C.F.R. § 1208.16(d)(2); id, § 1240.8. Indeed, a threshold evidentiary showing is especially important in the terrorism context, where the definition of a terrorist organization, and terrorist activity, is unusually broad. See In Re S-K-, 23 I. & N. Dec. 936, 948-50 (BIA 2006) (Osu-na, Acting V. Chairman, concurring) (discussing the “breathtaking ... scope” of the statutory language). There must be some initial showing that each element of the statute could be met. Otherwise, we risk rejecting applicants who are in all other respects eligible for relief simply on the basis of a vague association .with religious or political fundamentalism.

In the persecution context, we have found evidence that an individual worked at a facility where people were persecuted to be insufficient to indicate that the bar might apply. Similarly, 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. Rather, the record evidence must raise the inference that each element of the bar applies. In this case, 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. This framework is consistent with our cases applying the persecution bar, as described above. The framework is also consistent with the Board’s decisions applying the terrorist bar. See id. at 939, 941 (finding evidence that an alleged' terrorist organization “use[d] firearms and/or explosives to engage in combat” with the Burmese government sufficient to raise an inference that the bar applied); In Re R-S-H, 23 I. & N. Dec. 629, 640 (BIA 2003) (noting with approval that the government “produced significant evidence , to support its position” that the terrorist bar applied).

B. Application to Budiono .

For the terrorist bar to apply, the IJ was required to find that the JMA used “any ... explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain)” in pursuit of its goais. 8. U.S.C. § 1182(a)(3)(B)(iii)(V)(b). The IJ failed to do so.

The JMA is apparently unknown to the U.S. government. Thus, the only available evidence of the JMA’s activities is the testimony of Budiono and his wife. That testimony contains no reference to the JMA ever using weapons. Whenever Budiono recalled his own violent persecution by the JMA, he consistently described being “beaten.” Budiono’s wife also testified that the JMA beat her husband. When asked how the JMA beat him, Budiono said, “They pushed me and then they hit my head and also my stomach.” Budiono never mentioned the use of any weapon.

Budiono also consistently testified that the JMA used “force” against him and others to promote their radical beliefs. Bu-diono did not explain what the “force” entailed, but he also used the word “force” to describe the physical beatings he received from JMA members and the police. Budiono only reported being hit and pushed during these beatings. Thus, nothing in Budiono’s testimony suggests that the JMA used weapons against their targets. Rather, the evidence only raises the inference that the JMA physically beat such individuals.

The government contends that the IJ could infer that the JMA utilized weapons based on the participation of some JMA members in the Jakarta riots. But Budiono never mentioned weapons in relation to the Jakarta riots. Nor did the government introduce any news articles, reports, or other evidence indicating that the Jakarta rioters wielded weapons. The bare fact that many people were killed during the riots does not suffice to show that members of the JMA, specifically, used weapons during the riots.

In cases where we have upheld the Board’s application of the terrorist bar, there was much stronger evidence that the organization met the statutory requirements for terrorist activity. See, e.g., Bojnoordi v. Holder, 757 F.3d 1075, 1078 (9th Cir. 2014) (discussing evidence that the organization “assassinated six United States nationals” in addition to staging attacks inside Iran and killing United States military personnel and civilians working on defense projects); Khan v. Holder, 584 F.3d 773, 778 (9th Cir. 2009) (discussing evidence that the organization engaged in “killings, bombings, and attacks on convoys”). By contrast, the JMA’s participation in the Jakarta riots does not raise the inference that the JMA, as an organization, used weapons in pursuit of its goals. Likewise, the fact that the JMA beat Budiono after he expressed disagreement with their beliefs says nothing about whether the JMA employed weapons. Cf. Kumar, 728 F.3d at 999 (holding that evidence that an applicant worked at a facility where persecution occurred was insufficient to show that the applicant was personally involved in persecution).

In sum, the record supplies no evidence raising the inference that the JMA was a terrorist organization as defined by § 1182(a)(3)(B)(iii). Rather, all of the available evidence indicates the opposite — that the JMA either did not have access to or preferred not to use weapons. Based on this evidence, the IJ determined that the JMA was a terrorist organization because its members “harmed, threatened with bodily harm, and/or damaged property, and ... such harm was directed toward non-Muslims and/or the government....” These are not the statutory elements of a terrorist organization. The Board recognized this insufficiency on Budiono’s first appeal and specifically instructed the IJ to “reconsider the issue of [Budiono’s] eligibility based on his alleged material support for a terrorist organization” because “[t]he [IJ’s] conclusion on that issue is not supported by sufficient findings of fact regarding whether the group is a terrorist organization, and the respondent’s precise role in such group.” The IJ failed to do so, relying on exactly the same testimony the second time to find that the JMA was a terrorist organization.

Based on the foregoing, we conclude that no evidence in the record supports the IJ’s finding that the JMA is a terrorist organization; therefore, the Board erred in denying Budiono’s application for relief under the terrorist bar.

y.

The Board has twice considered whether Budiono was barred from relief by his material support of the JMA. Both times, the evidence was insufficient to support application of the bar. Indeed, after conducting a second round of hearings, the IJ was unable to uncover any additional evidence of the JMA’s activities. Thus,' we conclude that the terrorist bar does not apply to Budiono.

“Remand is not appropriate when the [Board] addressed an issue and its opinion is reversed.” Retuta v. Holder, 591 F.3d 1181, 1189 n.4 (9th Cir. 2010). The IJ concluded on remand that, but for application of the terrorist bar, Budiono was eligible for withholding of removal. The Board upheld that determination on appeal. Thus, because we conclude the terrorist bar does not apply to Budiono, we must conclude that he is eligible for withholding of removal.

We therefore GRANT Budiono’s petition for review, REVERSE the order of removal, and REMAND to the Board for further proceedings consistent with this opinion.

CALLAHAN, Circuit Judge,

concurring in part, dissenting in part:

Our government has the solemn responsibility of protecting the American people from terrorist threats, in addition to implementing our complex' immigration laws. Terrorist threats come from a range of groups and individuals, including violent extremists in the United States and abroad. Accordingly, as part of our country’s counter-terrorism efforts, immigration law provides that where the “evidence •indicates” that an alien may have provided material support to a terrorist group, the alien, not the government, has the burden of proof to show that the terrorism bar does not apply. 8 C.F.R. § 1208.16(d). The government must make this low, initial threshold showing that the “evidence' indicates” the terrorism bar applies.

I would hold that the government has met its initial burden in this case. It’s not clear if the Jemaah Muslim Attaqwa (JMA) is a bona fide terrorist organization, but under these facts and under a deferential standard of review, the government has provided sufficient circumstantial evidence to “indicate” that JMA is a terrorist organization. Budiono is not without recourse, as he may show that the terrorism bar does not apply. The majority’s opinion, however, improperly and unwisely inflates the government’s low threshold. See 8 C.F.R. § 1208.16(d). In doing so, the majority undermines our ability to be vigilant against terrorism.

Even if I were to agree that the government must meet the majority’s high threshold to show that the “evidence indicates” that the- terrorism bar applies— which I do not — the proper remedy is a remand, not the outright grant of relief. The majority grants relief to Budiono noting that the BIA has already twice considered whether he was barred from relief and, to the majoidty, both times the evidence was insufficient. However, the IJ and the BIA misunderstood the appropriate allocation of the burden of proof, as the majoiity now redefines it, and did not appreciate the amount of evidence required for the government to sustain its burden. Supreme Court precedent requires that we afford the IJ and BIA the opportunity to apply the correct law to the facts in the first instance. Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam); INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). I respectfully. dissent from the majority’s holding that the government has not met, and cannot meet, its burden of proof and the grant of Budiono’s petition for review.

I. The terrorism bar

A brief background about the terrorism bar is appropriate. In the wake of a horrific attack on American soil on September II, 2001, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to • Intercept and Obstruct Terrorism (USA PATRIOT Act) of 2001. Pub. L. No. 107-56, § 411(c), 155 Stat. 272 (2001), 8 U.S.C. § 1182(a)(3)(B). The Act created a new category of terrorist organizations, a “Tier III” designation. 8 U.S.C. § 1182(a)(3)(B)(vi)(III). A Tier III organization is a terrorist organization beyond those groups formally listed by the U.S. government and includes “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in,” a terrorist activity. Id. “Terrorist activity” is defined to include an activity “unlawful under the laws of the place where it is committed” and which involves one of six enumerated activities, including the use of any “biological agent, chemical agent, or nuclear weapon or device, or [] 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 [or] [a] threat, attempt, or conspiracy to do any of the foregoing.” Id. at § 1182 (a) (3) (B) (iii).

A person who recruits or solicits funds for a terrorist organization or “commit[s] an act that the actor knows, or reasonably should know, affords material support [to a terrorist organization], including .,. funds ... or other material financial benefit” is deemed to have engaged in “terrorist activity,” unless he “can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the [Tier III] organization was a terrorist organization.” 8 U.S.C. §§ 1182(a)(3)(B)(iv)(IV)(cc), (V)(cc), (VI)(dd).

. These provisions reflect the policy judgments of our elected legislators that terrorism is an evolving and serious threat to national security. See Hussain v. Muka-sey, 518 F.3d 534, 537 (7th Cir. 2008) (“These definitions are broad, but they are not vague.”).

II. The majority gives short shrift to the standard of review.

We review the BIA’s resolution of questions of law de novo. Bojnoordi v. Holder, 757 F.3d 1075, 1077 (9th Cir. 2014). The IJ’s factual findings, including whether the facts support a finding that an organization is a Tier III terrorist organization, are reviewed for substantial evidence. Id. at 1077-78. Under the substantial evidence standard, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (“To reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it.”). Although the majority pays lip service to this standard, it does not follow the standard.

III. Although not conclusive, there is sufficient evidence to “indicate” that JMA is a terrorist organization.

In this case, Budiono conceded remova-bility. Aliens seeking relief from removal must demonstrate eligibility for the relief sought. See 8 U.S.C. § 1229a(c)(4)(A). “If the evidence indicates the applicability of one or more of the grounds for denial of withholding enumerated in the Act, the applicant shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d); I agree with the majority that the “evidence indicates” the applicability of a mandatory bar to relief when it is “sufficient to raise the inference” that the bar applies. Maj. Op. 1048. However, I would find that the evidence here is sufficient to raise the inference that the JMA met the definition of Tier III terrorist organization including the inference-that weapons or other dangerous devices were used.

Budiono was a long-time member of Jemaah Muslim Attaqwa, a group that he admits evolved into a radical, fundamental Islamic organization that advocates violence and the use of force against those who oppose it. JMA members participated in the 1998 Jakarta riots where thousands of people died. People began to fear JMA, including Budiono who testified that members of JMA attacked him and sexually assaulted his wife after he reportedly refused to usé force when raising funds for the group.

The majority requires that the government show that each element of the terrorism bar has been met. But this heightened requirement is contrary to the plain language of the regulation which only requires -that the evidence “indicate” the terrorism bar applies, not that every element must be satisfied. There is no justification to inflate this plainly low threshold. Cf. Viegas v. Holder, 699 F.3d 798, 803 (4th Cir. 2012) (holding that “[e]ven if we were to accept Viegas’s contention that he did not know he belonged'to a terrorist organization, substantial evidence indicates that Viegas reasonably should have known that the organization he belonged to engaged in terrorist activities”). Additionally, it is not a stretch to believe that a radical, violent organization whose members participate in riots, physically attack others, and sexually assault women, uses some weapon in its activities. That Budiono himself was evasive and noncommittal'about how the JMA enforced its threats is also relevant. Indeed, when the IJ asked Budiono to clarify what he thought JMA meant when they told him to force people to donate, Budiono responded vaguely “They would do whatever they wanted.”

In sum, while there may be no conclusive or direct evidence as to what in-strumentalities JMA has used, Budiono described how the JMA evolved into a radical, fundamental Islamic organization that advocates violence and the use of force against those who oppose it. Accordingly, under the deferential review of the IJ’s findings of fact, I would hold that the government has provided sufficient circumstantial evidence to “indicate” that JMA is a terrorist organization.

IV. Under the majority’s holding, a remand is required as the IJ and BIA erred in interpreting the burden of proof and the amount of evidence sufficient to satisfy that burden.

Even assuming the government’s past evidence was insufficient to indicate that the terrorism bar applied, a remand, not the outright grant of relief is the appropriate remedy. The majority holds that the IJ and BIA erred in discerning the appropriate legal rules to apply in this case. The Supreme Court has held that where the BIA has not yet considered an issue, the proper course is to remand to allow the BIA to consider the issue in the first instance. Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam); INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). With few exceptions, if the IJ and the BIA have “applied the wrong legal standard, and ha[ve] not considered the issue using the correct standard,” we remand the case. Fakhry v. Mukasey, 524 F.3d 1057, 1064 (9th Cir. 2008). That is what we should do here.

The majority has adopted a new standard which the IJ and the BIA have yet to apply. First, it holds that the government, not Budiono, had the initial burden to produce evidence with respect to the terrorism bar. The IJ and BIA both assumed that it was Budiono who had the burden of proof. The IJ in his first hearing stated that “[generally the burden is on [Bu-diono] to show that he would not be precluded from relief.” The IJ repeated this standard in his first oral decision by stating “the Court believes that the burden is on [Budiono] to establish ineligibility for any benefit that there are no grounds of ineligibility.” (citing In re Brantigan, 11 I. & N. Dec. 493, 494 (BIA 1966)). The remand by the BIA said nothing with respect to the burden; rather it said that “[u]pon remand the Immigration Judge should also reconsider the issue of [Bu-diono’s] eligibility based on his alleged material support for a terrorist organization” and that the conclusion was “not [at that time] supported by sufficient findings of fact.” The IJ apparently took this as an instruction to describe his findings in more detail, not as a criticism of how he allocated the burden of proof. The reasonableness of the IJ’s approach finds support in the fact that the BIA’s second decision did not discuss the burden of proof.

However, the majority now holds that the government’s initial evidence “must raise the inference that each element of the bar could be met” including that the JMA used an “explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain)’ in pursuit of its goals.” Maj. Op. 1049 (citing 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b)). Neither the IJ nor the BIA applied this standard. Rather, the BIA held: “As noted by the Immigration Judge, the fact that [Bu-diono’s] testimony often was vague as to what type of violence was perpetuated by the JMA does not preclude a finding that the group was a terrorist organization.” Indeed, the government argued not that it was not required to offer specific, direct evidence of the type of weapon used. This argument was not. unreasonable as other circuits addressing the terrorism bar have not discussed whether the government’s evidence must raise the inference for each element including that the organization used any “explosive, firearm, or other weapon or dangerous device.” See, e.g., Viegas, 699 F.3d at 802.

Remand is particularly important here because if the government misunderstood the burden of proof, then it should have the opportunity to make its initial showing. For example, the IJ did not make a factual finding as to whether JMA, a subgroup of Jemaah Muslim Islameer, was related to Jemaah Islamiyah, a militant Islamic terrorist group designated by the government as a foreign terrorist organization, and responsible for several bombings and training of terrorists. Because the government may be able to meet the majority’s heightened requirement that it further link JMA to the use of weapons or other in-strumentalities of terrorism, remand is appropriate here. See Thomas, 547 U.S. at 186, 126 S.Ct. 1613; Ventura, 537 U.S. at 16-17, 123 S.Ct. 353; Fakhry, 524 F.3d at 1064.

⅜ ⅜ *

Terrorist organizations do not neatly disclose the extent of their activities. Accordingly, although I agree that the government must first make a threshold showing that the terrorist bar may apply, I would hold that the government has met this low threshold through circumstantial evidence. In any event, the appropriate remedy is a remand, not the outright grant of relief. As the majority holds that the IJ and BIA applied the wrong legal standard and, accordingly, have not considered the terrorism bar using the correct standard, we should remand. I dissent.

      . Because the IJ found Budiono’s testimony in hearings held prior to the 2006 decision to be credible, we must accept it as true. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir. 2004).

      . The Board did not address Budiono's eligibility for CAT relief in its 2008 decision.

      . The Board also affirmed the IJ’s 2006 denial of CAT relief.

      . We lack jurisdiction to review a determination that an asylum application was untimely, 8 U.S.C. § 1158(a)(3), unless the petition for review raises constitutional questions or questions of law, id. § 1252(a)(2)(D). In his 2006 decision, the IJ squarely rejected Budiono’s argument that his friend’s death constituted changed circumstances. This is a conclusion of law. Accordingly, we -have jurisdiction to review it.

      . This requirement is not unique to the Ninth Circuit. See Diaz-Zanatta v. Holder, 558 F,3d 450, 460 (6th Cir. 2009) (requiring evidence that the applicant, who collected and relayed information used to persecute individuals, had "prior or contemporaneous knowledge” of how that information was used): Xu Sheng Gao v. U.S. Atty. Gen., 500 F.3d 93, 100 (2d Cir. 2007) (“Before Gao may be held personally accountable .... there must be some evidence that he himself engaged in conduct that assisted in the persecution of another.”).
      We note that, in cases applying the resettlement bar, the applicant bears the burden of proving the bar does not apply only upon the government’s submission of specific documents to-the IJ. The government "bears the initial burden of showing that the government of the third country issued to the alien a formal offer of some type of official status permitting the alien to reside in that country indefinitely.” Su Hwa She v. Holder, 629 F.3d 958, 962 (9th Cir. 2010) (quoting Maharaj v. Gonzales, 450 F.3d 961, 976 (9th Cir. 2006)). Only when the government has provided this evidence does "the burden shift[] to the alien to show, by a preponderance of the evidence” that the resettlement bár does not apply. Id., see also, e.g., Tchitchui v. Holder, 657 F.3d 132, 135 (2d Cir. 2011); Firmansjah v. Gonzales, 424 F.3d 598, 602 (7th Cir. 2005); Abdille v. Ashcroft, 242 F.3d 477, 491 (3d Cir. 2001).

        . Because the IJ relied solely on testimony from the first hearing in 2006 to support his conclusion on remand that the JMA was a terrorist organization, that is the evidence we consider on this petition for review.

      . Because we conclude that Budiono qualifies for withholding of removal, we do not address his CAT claim.

      . I concur with section III of the opinion that Budiono’s late asylum filing is not excused.

      . There is no dispute that the terrorism bar is a mandatory bar to which § 1240.8(d) applies.

      . To the extent that the majority analogizes the terrorism bar to other mandatory bars, such as the persecutor bar and the resettlement bar, I am skeptical. The Supreme Court has cautioned us from imputing the reasoning and rationale from one mandatory bar into another noting that "we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.” Negusie v. Holder, 555 U.S. 511, 519, 129 S.Ct, 1159, 173 L.Ed.2d 20 (2009) (internal quotation marks omitted).

      . This assumption may have been logical given that Budiono conceded removability.

      . The parties’ failure to clearly articulate the burden of proof on appeal further demonstrates that we have adopted a new standard. The government suggested at oral argument that once it satisfied its burden that Budiono had overstayed his visa and was removable, Budiono then had the burden of proof to show he was entitled to withholding of removal notwithstanding the terrorism bar. When asked whether the government had correctly stated the burden of proof, Budiono’s counsel answered, 'T believe that might be correct.”

      . Of course, if the government on remand fails to meet its heightened burden, Budiono will not be prejudiced by the remand as the IJ and BIA will then conclude that the terrorist bar does not apply.