FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHAN JOHNY SUMOLANG;

BERAWATI NOTOREDJO,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 08-73164

Agency Nos.

A095-295-985

A095-295-986

OPINION

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.
2 SUMOLANG V. HOLDER

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 take 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.
6 SUMOLANG V. HOLDER

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); TamasMercea 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,
10 SUMOLANG V. HOLDER

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, DISMISSEDin part, and REMANDED.

Costs awarded to the petitioners.