Ventje Singkoh v. Eric Holder, Jr. , 543 F. App'x 711 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 25 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VENTJE CORNELIS SINGKOH; No. 09-71184
GLORIA MAENGKOM,
Agency Nos. A097-887-314
Petitioners, A098-450-949
v.
MEMORANDUM*
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 10, 2013
San Francisco, California
Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.
Ventje Cornelis Singkoh (“Singkoh”) seeks review of the Board of Immigration
Appeals’ (“BIA”) order affirming an Immigration Judge’s (“IJ”) denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
application for asylum,1 withholding of removal and protection under the Convention
Against Torture (“CAT”). Because the BIA conducted a de novo review of the record,
making its own findings based on its independent review, our review is limited to the
BIA’s decision. Singh v. Ashcroft, 351 F.3d 435, 438 (9th Cir. 2003).
Although, as the BIA noted, Singkoh’s asylum filing was well beyond the
presumptive six-month deadline after falling out of legal status, see Al Ramahi v.
Holder, 725 F.3d 1133, 1135 (9th Cir. 2013), we have held this factor is not by itself
determinative, id. at 1138; see also Wakkary v. Holder, 558 F.3d 1049, 1057-58 (9th
Cir. 2009). Here, the BIA failed to address the individualized factual circumstances
Singkoh proffered to explain the delay, see Al Ramahi, 725 F.3d at 1138, noting only
that Singkoh was “familiar with the immigration laws of this country and was even
aware of individuals in his church applying for asylum.” However, Singkoh did not
argue he was unaware of the general availability of asylum, but that he did not seek
1
We must determine whether we have jurisdiction to consider Singkoh’s
petition for review with respect to his asylum claim. We have held that we “may
review the BIA’s application of the changed or extraordinary circumstances exception
when the historical facts are undisputed.” Al Ramahi v. Holder, 725 F.3d 1133, 1138
(9th Cir. 2013) (citing Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007)).
Here, there is no factual dispute as to when Singkoh fell out of legal status or when
he actually filed for asylum, leaving for our consideration only whether the BIA
adequately addressed his proffered explanations for the time between these events, as
discussed below. Cf. Sumolang v. Holder, 723 F.3d 1080, 1082 (9th Cir. 2013)
(finding no jurisdiction where BIA’s ruling rested on IJ’s resolution of an underlying
factual dispute).
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that form of relief earlier because he was relying on the church’s efforts to get his
status adjusted. Once he realized those various attempts had ultimately and finally
failed, Singkoh contends he moved reasonably to seek a new attorney and file for
asylum within two months after he retained his last attorney. We express no opinion
on the reasonableness of this delay, but remand for the BIA to specifically address
Singkoh’s proffered justifications for his delay in filing for asylum. Cf. Wakkary, 558
F.3d at 1058-59.
With respect to Singkoh’s claim for withholding of removal, the evidence does
not compel the conclusion that the events experienced by Singkoh in Indonesia rise
to the level of past persecution. See id. at 1059-60; Halim v. Holder, 590 F.3d 971,
975-76 (9th Cir. 2009). However, a decision of our court filed after the BIA’s
decision in this case held that all Christians in Indonesia (and not just those of Chinese
descent) should be treated as a disfavored group, and thus may impact the BIA’s
ruling regarding Singkoh’s reasonable fear of future persecution. See Tampubolon v.
Holder, 610 F.3d 1056, 1060-62 (9th Cir. 2010); see also Wakkary, 558 F.3d at 1064(“The more evidence of group targeting an . . . applicant proffers, the less evidence
of individually specific evidence he needs.”). We remand so that the BIA may also
address the impact of this decision on Singkoh’s claim of well-founded fear of future
persecution in the first instance.
3
The evidence does not compel the conclusion Singkoh would be tortured if
returned to Indonesia, and we therefore deny Singkoh’s petition with respect to his
CAT claim. See Wakkary, 558 F.3d at 1068 (“[T]he record contains no evidence
whatsoever that Wakkary is likely to be tortured, rather than persecuted, by
government officials or with their acquiescence on return to Indonesia.”).
REMANDED IN PART and DENIED IN PART. The parties shall bear their
own costs on appeal.
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