Johan Sumolang v. Eric H. Holder Jr. , 723 F.3d 1080 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHAN JOHNY SUMOLANG ; No. 08-73164
BERAWATI NOTOREDJO ,
Petitioners, Agency Nos.
A095-295-985
v. A095-295-986
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 5, 2013—Pasadena, California
Filed July 25, 2013
Before: Richard A. Paez and Paul J. Watford, Circuit
Judges, and Matthew F. Kennelly, District Judge.*
Opinion by Judge Watford
*
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
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SUMMARY**
Immigration
The panel granted in part a petition for review of the
Board of Immigration Appeals’ decision denying asylum,
withholding of removal, and protection under the Convention
Against Torture, to a Chinese Christian native and citizen of
Indonesia.
The panel held that due to disputed issues of fact it lacked
jurisdiction to review petitioner’s contention that the
untimeliness of her asylum application should be excused due
to extraordinary circumstances. The panel further held that
petitioner’s delay of several years in filing her application
after an outbreak of anti-Chinese violence in 1998 was not
reasonable, and that substantial evidence supported the
Board’s determination that anti-Chinese violence between
1999 and 2002 did not constitute changed country conditions
to excuse her untimely application.
The panel held that the Board erred by failing to taking
into account petitioner’s infant daughter’s death in evaluating
whether she had suffered past persecution herself. The panel
explained that harm to a child can amount to past persecution
of the parent when that harm is, at least in part, directed
against the parent on account of the parent’s race, religion,
nationality, membership in a particular social group, or
political opinion.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SUMOLANG V . HOLDER 3
The panel held that substantial evidence supported the
denial of CAT protection, but remanded for the Board to
reconsider the denial of withholding of removal, giving full
weight to evidence of petitioner’s daughter’s death.
COUNSEL
Gihan L. Thomas (argued) and Kelley L. Costello (argued),
Law Offices of Gihan Thomas, Los Angeles, California, for
Petitioners.
Jessica E. Sherman (argued), Trial Attorney; Tony West,
Assistant Attorney General; Richard M. Evans, Assistant
Director; Marshall T. Golding, Attorney, United States
Department of Justice, Civil Division, Washington, D.C., for
Respondent.
OPINION
WATFORD, Circuit Judge:
Can a parent applying for asylum or withholding of
removal show that she has been persecuted based on suffering
or harm inflicted on her child? That question arises here
because the strongest evidence supporting the claims of the
petitioner, Berawati Notoredjo, involved the death of her
three-month-old daughter. In ruling that Ms. Notoredjo had
not shown past persecution, the immigration judge (IJ)
refused to give any weight to that evidence. The IJ framed
the legal principle guiding his decision in these terms: “the
alien cannot claim persecution as to a relative and, by virtue
of that persecution, assert that he himself was persecuted
4 SUMOLANG V . HOLDER
thereby.” We believe this legal principle was misapplied in
Ms. Notoredjo’s case and grant in part her petition for review.
I
Ms. Notoredjo is a native and citizen of Indonesia who is
Christian and of Chinese descent, a minority group that has
faced a long history of violence and discrimination in
Indonesia. See Sael v. Ashcroft, 386 F.3d 922, 925–27 (9th
Cir. 2004). Because of her race and religion, Ms. Notoredjo
was repeatedly discriminated against at school, heckled with
anti-Chinese slurs as she walked to school, and harassed and
groped by Muslim men when she rode public transportation.
On one occasion two Muslim men accosted her on the street
and robbed her; when she attempted to report the incident to
the police, the officers were rude and refused to help solely
because she is Chinese.
In December 1996, Ms. Notoredjo and her husband, Johan
Sumolang, who is also Christian, brought their seriously ill
baby daughter Monicha to a public hospital for treatment.
Upon arrival, the nurse who registered them said, “Oh, you
are Christians,” and told them they would have to wait
because the doctor was busy. A Muslim doctor later asked
Ms. Notoredjo for a bribe and threatened not to treat Monicha
as a “priority.” His request rebuffed, the doctor left Monicha
unattended. When Monicha’s condition deteriorated due to
the long wait, Ms. Notoredjo’s husband confronted one of the
doctors and told him they wanted to know what was wrong
with Monicha right away. The doctor replied, “You Chinese
don’t know your place. You will have to wait until I’m free.”
He further warned, “If you don’t behave yourself, I’ll call the
police and throw you out.” By the time a doctor finally saw
Monicha, it was too late to save her. The doctor refused to
SUMOLANG V . HOLDER 5
give any explanation for the cause of death, but Ms.
Notoredjo believes Monicha died because she failed to
receive prompt medical attention. Because the IJ did not
make an adverse credibility determination, we accept Ms.
Notoredjo’s account of these events as true. See Benyamin v.
Holder, 579 F.3d 970, 974 (9th Cir. 2009).
In May 1997, Ms. Notoredjo and her husband came to the
United States as tourists. Although they intended to return to
Indonesia, they decided to extend their stay in the United
States after family members warned them that it might not be
safe to return. Those warnings proved accurate, for in May
1998 widespread anti-Chinese violence erupted in Indonesia,
leaving more than one thousand people dead. Sael, 386 F.3d
at 925–26. After their visas expired in May 1998, Ms.
Notoredjo and her husband remained in the United States
without lawful status.
In 2002, Ms. Notoredjo’s husband, Mr. Sumolang, filed
an application for asylum, withholding of removal, and
protection under the Convention Against Torture, listing Ms.
Notoredjo as a derivative beneficiary. Ms. Notoredjo later
filed her own application requesting the same relief. After a
hearing at which both Ms. Notoredjo and Mr. Sumolang
testified, the IJ denied relief and ordered them removed to
Indonesia unless they voluntarily departed within sixty days.
The Board of Immigration Appeals (BIA) dismissed their
appeal. This opinion addresses only Ms. Notoredjo’s claims;
we address Mr. Sumolang’s claims in a separate unpublished
memorandum.
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II
We begin with the BIA’s rejection of Ms. Notoredjo’s
asylum claim, which requires only brief discussion. Because
Ms. Notoredjo filed her application more than one year after
her arrival in the United States, she had to show either
“changed circumstances” materially affecting her eligibility
for asylum or “extraordinary circumstances” excusing her
failure to file within the one-year deadline. 8 U.S.C.
§ 1158(a)(2)(B), (D). The BIA adopted the IJ’s
determination that neither of these exceptions applies. As to
the extraordinary-circumstances exception, we lack
jurisdiction to review the BIA’s ruling because it rests on the
IJ’s resolution of an underlying factual dispute. See
Gasparyan v. Holder, 707 F.3d 1130, 1133–34 (9th Cir.
2013). The IJ determined that Ms. Notoredjo’s filing delay
was caused by her ignorance of the one-year filing deadline,
not—as Ms. Notoredjo claimed—by the psychological
trauma she experienced in the wake of Monicha’s death.
As to the changed-circumstances exception, we have
jurisdiction to review the BIA’s ruling because it turns on
undisputed facts—the outbreak of anti-Chinese violence in
May 1998. See Vahora v. Holder, 641 F.3d 1038, 1042 (9th
Cir. 2011). Ms. Notoredjo argues that this outbreak of
violence constitutes “changed circumstances” that materially
affected her and her husband’s eligibility for asylum, and thus
excused their late filing in 2002. See Vahora, 641 F.3d at
1043–44. While those events may have allowed Ms.
Notoredjo to file an application within a “reasonable period”
after learning of the violence in May 1998, see 8 C.F.R.
§ 1208.4(a)(4)(ii), they do not excuse her failure to file the
application until several years had passed. See Tamang v.
Holder, 598 F.3d 1083, 1091 (9th Cir. 2010). Ms. Notoredjo
SUMOLANG V . HOLDER 7
also argues that anti-Chinese violence in Indonesia between
1999 and 2002 constitutes changed circumstances, but
substantial evidence supports the IJ’s conclusion that such
violence was at most no different in degree from the violence
that had been ongoing when Ms. Notoredjo left Indonesia in
1997.
III
We turn next to the BIA’s rejection of Ms. Notoredjo’s
claim for withholding of removal. To succeed on this claim,
Ms. Notoredjo had to prove that her life or freedom would be
threatened in Indonesia because of her race, religion,
nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1231(b)(3). She could meet that
burden by proving that she suffered past persecution in
Indonesia on account of one of the five protected grounds,
which would give rise to a rebuttable presumption that she is
entitled to withholding of removal. 8 C.F.R.
§ 1208.16(b)(1)(i). Or Ms. Notoredjo could prove that it is
more likely than not that she would face such persecution in
the future if she were removed to Indonesia. 8 C.F.R.
§ 1208.16(b)(2); INS v. Stevic, 467 U.S. 407, 429–30 (1984).
The BIA held that Ms. Notoredjo failed to prove
entitlement to withholding of removal on either ground. The
BIA concluded that the incidents of discrimination and
harassment Ms. Notoredjo experienced did not rise to the
level of past persecution, and that she had not demonstrated
an individualized risk of future persecution as required by
Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (en banc).
In reaching these conclusions, the BIA accorded no weight to
the events surrounding Monicha’s death, adopting the IJ’s
view that, even if Monicha had been the victim of
8 SUMOLANG V . HOLDER
persecution, that did not mean Ms. Notoredjo herself had
been persecuted. The BIA stated: “[T]he fact that the
respondent’s daughter was a victim of poor medical attention,
whether due to ethnicity or religion, does not establish
persecution to the respondent herself.”
The BIA and the IJ erred as a legal matter in refusing to
consider the evidence concerning Monicha’s death. It is true,
as the IJ observed, that withholding of removal is a purely
personal remedy, in contrast to asylum. Under the asylum
statute, spouses and children can claim asylum as derivative
beneficiaries of the principal alien’s application. 8 U.S.C.
§ 1158(b)(3); 8 C.F.R. § 1208.21. The withholding of
removal statute makes no such allowance for derivative
beneficiaries. See 8 U.S.C. § 1231(b)(3); Ali v. Ashcroft,
394 F.3d 780, 782 n.1 (9th Cir. 2005). But Ms. Notoredjo
was not seeking derivative relief here. She sought
withholding of removal based on her own persecution, not the
persecution of someone else.
Our precedent, as well as precedent from other circuits,
supports Ms. Notoredjo’s reliance on the harm inflicted on
her infant daughter as evidence of past persecution. Harm to
a child can amount to past persecution of the parent when that
harm is, at least in part, directed against the parent “on
account of” or “because of” the parent’s race, religion,
nationality, membership in a particular social group, or
political opinion. See 8 U.S.C. §§ 1101(a)(42)(A),
1231(b)(3)(A). Thus, we have held that parents proved past
persecution based in part on physical attacks against their
half-Sikh, half-Hindu child, when the attacks were part of a
campaign of persecution directed against the parents because
of their inter-faith marriage. See Maini v. INS, 212 F.3d
1167, 1175–76 (9th Cir. 2000); see also Mashiri v. Ashcroft,
SUMOLANG V . HOLDER 9
383 F.3d 1112, 1120 (9th Cir. 2004); Rodriguez-Matamoros
v. INS, 86 F.3d 158, 160 (9th Cir. 1996). The First Circuit
has similarly held that the kidnapping, beating, and rape of a
father’s children, which were “specifically designed to send
a message” to the father on account of the father’s political
opinions, “were clearly part of the persecution of him.”
Precetaj v. Holder, 649 F.3d 72, 76 (1st Cir. 2011); see also
Flores v. Holder, 699 F.3d 998, 1003 (8th Cir. 2012); Jiang
v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007); Tamas-
Mercea v. Reno, 222 F.3d 417, 425 (7th Cir. 2000).
Ms. Notoredjo’s case fits comfortably within this line of
precedent. Her account of what transpired at the hospital
makes clear that the doctors and nurses deliberately ignored
Monicha’s medical needs because her parents were Christian
and her mother was Chinese. The hospital staff’s delay in
administering medical care to Monicha was, at least in part,
directed against Ms. Notoredjo and her husband because of
her race and their religion. Indeed, the anti-Christian
motivation for the hospital staff’s actions can only be
understood as directed against Monicha’s parents, since a
three-month-old infant lacks the capacity to adopt a religious
faith of her own. It is fair to say that although the hospital
staff’s actions inflicted harm most immediately on Monicha,
those actions were “designed to send a message” to
Monicha’s parents, Precetaj, 649 F.3d at 76, and were
calculated to inflict suffering on them through their child.
Because the BIA treated Ms. Notoredjo as credible, there
is no basis to exclude from consideration her testimony that
the staff of a public hospital deliberately delayed
administering medical treatment to Monicha on account of
Ms. Notoredjo’s race and religion. This evidence is directly
relevant to whether Ms. Notoredjo suffered past persecution,
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and may also be relevant to whether she has shown an
individualized likelihood of future persecution. See Sael,
386 F.3d at 927. We remand for the BIA to reconsider Ms.
Notoredjo’s request for withholding of removal giving full
weight to the evidence concerning Monicha’s death.
IV
Finally, we uphold the BIA’s determination that Ms.
Notoredjo is not entitled to protection under the Convention
Against Torture, as that determination is supported by
substantial evidence. The events described in Ms.
Notoredjo’s declaration and testimony do not establish that
she is more likely than not to be tortured if she returns to
Indonesia. See 8 C.F.R. § 208.16(c)(2); Nuru v. Gonzales,
404 F.3d 1207, 1216, 1221 (9th Cir. 2005).
PETITION FOR REVIEW GRANTED in part,
DENIED in part, DISMISSED in part, and REMANDED.
Costs awarded to the petitioners.