F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O H A N J O H N Y S U M O L

A N G ; B E R AW A T I N O T O R

E D J O , Petitioners
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 08-73164

Ag ency Nos. A095-295-985 A095-295-986

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted March 5, 2013—Pasadena, California

F iled J uly 25, 2013

B efore: Richard A. Paez and Paul J . W atford, Circuit J udg es, and Matthew F . Kennelly , District J udg e

. *

Opinion by

J u dg e W atford

* T h e Ho n o rab le Matth ew F. Ken n elly
, Un ited States District J u d g e f or th e No rth ern District o f

Illin o i s, sittin g b y

d esig n atio n

.S U M O L A N G V

. H O L D E R 2

SUMMARY * *

Im m igration

The p a nel g ranted i n p art a petition for review of the B oard of I mmig ration App e a ls’ decision denying asylum, withholding of removal, a nd protection under the Convention Ag ainst Torture, to a Chinese Christian n ative and citiz en o f I ndonesia.

The panel held that due to disputed issues of fact it lacked jurisdiction to rev i ew petitioner’s contention that the untimeliness o f her asy lum application should be e x c used d ue to ex traordina r

y circumstances. The panel further held that petitioner’s delay of s ev e r al y ears in filing h e r a pplication after an outbreak o f anti-Chinese violence in 1998 was not reasonable, and that substantial e vidence su p p orted the B oard’s determination that anti-Chinese violence b etween 1999 and 2002 did not constitute chang ed country conditions to ex cuse her untimely

application.

The p anel h eld that the B oard e rred b y failing to take into account petitioner’s infant d aug hter’s de at h in evaluating whether she had suffered past persecution herself. The panel

ex p lained that harm to a child can amount to past persecution of the parent when that h a r m i s , at least in part, directed

a ga i n st the parent o n a ccount of the parent’s race, relig io n , nationality
, members hip in a p articular social g r o up, o r political opinion.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.S U M O L A N G V

. H O L D E R 3

The panel held that substantial evidence supported the denial of CA T protection, but remanded for the B o ard to reconsi der the denial of withholding of removal, g iving full weig ht to evidence of petitioner’s daug h ter’s death.

COUNSEL

Gihan L

. Thomas ( argued) and Kelley L

. Costello (arg ued), L aw Offices of Gihan Thomas, L os Ange l e s , California, for Petitioners.

J essica E. Sherman ( a r gu ed), Trial Attorney ; T o ny W est, Assistant Attorney G ener al; Richard M. Evans, Assistant Director; Marshall T

. G old i n g , Attorney
, United States Department of J ustice, Civil Division, W ashing ton, D.C., for Respondent.

OP INION

W A TF ORD, Circuit J udg e:

Can a parent a

pply ing for a s y l u m or withholding o f removal show that she has been p e r secuted based on suffering

or harm inflicted on her child? That question a r i s e s here because the strong est e vidence su p porting the claims of the petit i o n er, B erawati Notoredjo, involved the death of her three-month-old daug hter. I n ruling that Ms. Notoredjo h ad not shown past p e r secution, the i m m i g ration judg e (I J ) refused to g ive any w eig ht to that evidence. The I J framed the leg al principle g u iding his decisio n i n t hese terms: “the alien cannot claim persecution as to a relative and, by virtue of that persecution, assert that he him s elf was persecutedS U M O L A N G V

. H O L D E R 4

thereby .” W e believe this leg al principle was misapplied in Ms. Notoredjo’s case and g rant in part her petition for review.

I

Ms. Notoredjo is a native and citiz en of I ndonesia w ho is Christian a

nd of Ch i n e s e descent, a minority g roup that has faced a long history of v i o lence a nd discrimination in I ndonesia. See Sael v

. Ashcroft
, 386 F .3d 922, 925–27 (9th Cir. 2004). B ecause of her race and relig ion, Ms. Notoredjo

was repeatedly discriminated ag ainst at school, heckled with anti-Chinese slurs as she walked to school, and harassed a nd g roped by Muslim men w hen 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.

I n December 1996, Ms. Notoredjo and her husband
, Jo h a n Sumolang
, who is also Christian, broug ht t h e ir seriously ill baby daug hter Monicha to a p ublic hospit a l for treatment. Upon a rrival, the nurse who reg ister e d t h em said, “Oh, y ou

are Christians,” and t o l d them they would have to w ait because the d o ctor was busy

. A Muslim doct o r l a t e r asked Ms. Notoredjo for a b r ibe and threatened not to treat Monicha

as a “priority .” His request rebuffed, the doctor left Monicha unattended. When Monicha’s condition deterior a t ed due to the long wait, Ms. Notoredjo’s husband confronted one o f the doctors and told him they wanted to know what was wrong with Monicha rig ht away

. The d o ctor replied, “You Chinese don’t know y our place. You will h av e to wait until I ’m f ree.” He further warned, “I f y ou don’t behave y ourself, I ’ll call the police a nd throw y ou out.” B y the time a doctor finally saw Monicha, it was too late to save her. The doctor refused toS U M O L A N G V

. H O L D E R 5

g ive any ex p lanation f

o r t h e cause of d eath, but Ms. Notored j o believes Monicha died b ecause she failed to receive p rompt medical attention. B ecause the I J d id not make an adverse credibility determination, we a cce p t Ms. Notoredjo’s account of these events as true. S ee Benyamin v

. Holder , 579 F

. 3d 970, 974 (9th Cir. 2009).

I n May 1997, Ms. Notoredjo a n d her husband came to the United States a s tourists. A lthoug h they intended to r eturn to I ndonesia, they decided to ex tend their stay in the United States after family members warned them that it mig ht not be safe t o r eturn. Those warning s proved accurate, for in May 1998 widespread anti-Chinese violence erupted in Indonesia, leaving more than one thousand people dead. S ael
, 386 F .3d
at 925–26. After t h e i r visas e x pired in May 1998, Ms. Notoredjo and her hu sband r e m a i ned in the United States without lawful status.

I n 2002, Ms. Notoredjo’s husband, Mr. Sumolang
, filed

a n application for a sy lum, withholding of removal, a nd protection under the Convention Ag ainst Torture, listing Ms. Notoredjo as a derivative beneficiary

. Ms. Notoredjo later filed her own application requesting the same relief. After a hearing at whi c h both Ms. Notoredjo and Mr. Sumolang testified, the I J denied r e lief a nd ordered them removed to I ndonesia unless they voluntarily d eparted within six ty day s. The B oard of I mmig r ation Appeals (B I A) dismissed t heir appeal. This opinion addresses only Ms. Notoredjo’s claims;

we address Mr. Sumolang ’s claims in a separate unpublished memorandum.S U M O L A N G V

. H O L D E R 6

II

W e beg in with the B I A’s rejection of Ms. No t o r ed j o’s asy lum claim, which requires only brief discussion. B ecause Ms. Notoredjo filed h er application more than one y ear a fter h e r arrival in the United States, she had to show either “chang ed circumstances” materially affecting he r elig ibility for as y l u m or “ex traordinary circumstances” ex cusing her failure to f

ile within the one-y ear deadline. 8 U .S.C. § 1158(a)(2)(B ), ( D ). The B I A adopted the I J ’s determination that neither of these ex ceptions applies. As to t h e e x t r a o rd i n a r y

- c i rc u m s t a n c e s e x c e p t i o n , w e l a c k jurisdiction to review the B I A’s r uling because it rests on the I J ’s resolution of an underlying factual dispute. See Gasparyan v

. Holder
, 707 F .3d 1130, 1133–34 ( 9th Cir. 2013). The I J determined that Ms. Notoredjo’s fili n g d e lay was caused by

her ig norance of the one-y ear filing deadline, not—as Ms. Notoredjo claimed—by the psy cholog ical trauma she ex perienced in the wake of Monicha’s death.

As to the chang ed

- ci rcumstances ex ception, we have jurisdiction to review the B I A’s ru l i n g because it turns on undisputed facts—the o utbreak of anti-Chinese violence in May 1998. See Vahora v. Holder
, 641 F .3d 1038, 1042 (9th Cir. 2011). Ms. N o t oredjo argu es that this outbreak o f violence constitutes “chang ed circumstances” that materially affected her and her husband’s e lig ibility for asylum, and thus

ex c u sed their l a t e filing in 2002. See Vahora
, 641 F .3d at 1043–44. W hile those events may have allowed Ms. Notoredjo to file an application w ithin a “reasonable period” after learning of t h e v iolence in May 1998, see 8 C.F .R. § 1208.4 ( a )(4)(ii), they do not ex cuse her failure to file the application until several y e ar s had passed. See Tamang v

. Holder
, 598 F .3d 1083, 1091 ( 9th Cir. 2010). Ms. NotoredjoS U M O L A N G V

. H O L D E R 7

also a rg ues that anti-Chinese violenc e in I ndonesia b etween 1999 a nd 2 002 constitutes chang e d circumstances, but substantial evidence supports t h e I J ’s c onclusion that such violence was at most no different in deg ree from the violence that had been ong oing when Ms. Notoredjo left I ndonesia in 1997.

III

W e turn nex t to the B I A’s rejection of M s

. Notoredjo’s claim f or withholding of removal. To succeed on this c laim, Ms. Notoredjo had to prove that her life or freedom would be threa t e ned in I ndonesia because of her race, relig ion, nationality
, membership in a p articular social g r o up, o r political opinion. 8 U.S.C. § 1231(b)(3). She could meet that burden by p roving that she suffered past persecution in I ndonesia on account of one of the five p r o tected g rounds, which would g ive rise to a rebuttable p resumption that she is

e n t i t l e d t o w i t h h o l d i n g o f r e m o v a l

. 8 C

. F

. R

. § 1208.16(b)(1)(i). Or Ms. Notoredjo c oul d p r o v e that it is more likely

than not that she would face such persecution in the future if she were removed to I ndonesia. 8 C.F .R. § 1208.16(b)(2); INS v. Stevic
, 467 U.S. 407, 429–30 (1984).

The B I A held that Ms. N otored j o failed to prove entitlement to w ithholding of removal on either g round. The B I A c oncluded that the incidents o f discriminatio n a n d harassment M s

. N otoredjo e x perienced did not r ise to the l e v el o f p ast persecution, and that she had not demonstra t e d

an indivi d ualiz ed risk of f uture persecution as required b y Lolong v

. Gonzales
, 484 F .3d 1173 (9th Cir. 2 007) (en banc). I n r eaching these conclusions, the B I A accorded no w eig ht to the events surrounding Monicha’s death, adopting the I J ’s view that, eve n i f Monicha h ad been the victim o fS U M O L A N G V

. H O L D E R 8

persecution, that d id not mean Ms. Notoredjo herself h ad been persecu t ed

. The B I A stated: “[ T] he fact that the respondent’s daug hter was a v ictim of p oor medical attention,

w hether due to ethnicity or relig ion, does not est a b l i s h persecution to the respondent herself.”

The B I A and the I J erred as a leg al matter in refusing to consider the evidence concerning Monicha’s death. I t is true,

as the I J obs e r ved, that withholding of removal is a purely personal remedy
, in contrast t o asy lum. Under the asylum statute, spouses and children can claim asy lum a s derivative beneficiaries of the principal alien’s app l i c ation. 8 U .S.C. § 1 1 58(b)(3); 8 C.F .R. § 1 208.21. T he withholding of removal stat u t e makes no such allowance for derivative b eneficiaries. See 8 U.S.C. § 1 231(b)(3); Ali v. A shc r o f t , 394 F .3d 780, 782 n.1 (9th Cir. 200 5 )

. B ut Ms. Notoredjo

was n ot seeking d erivative relief here. She soug ht 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 r eliance on the harm inflicted on her infant daug hter as evidence of past persecution. Harm to

a child can amount to past persecution of the parent when that harm is, at least in p a

r t, direct e d ag ainst the parent “ on

acco u n t o f” o r “because of” the p arent’s race, relig ion, nationa lity
, membership in a p articular social g r o up, o r political opinion. See 8 U.S.C. §§ 1 1 0 1 ( a)(42)(A), 1231(b)(3)(A). Thus, we have held that parents proved past persecuti o n based in part on phy sical attacks ag ainst their half-Sikh, half-Hindu c hild, when the attacks w e re p a rt of a campaig n o f persecution d irected ag ainst the parents because of their inter-faith marr i a ge

. See Maini v. INS
, 2 12 F .3d 1167, 1175–76 (9th Cir. 2000); see also Mashiri v. Ashcroft
,S U M O L A N G V

. H O L D E R 9

383 F .3d 1112, 1120 (9th Cir. 2004); Rodriguez-Matamoros

v. INS
, 8 6 F. 3 d 158, 160 ( 9 th Cir. 1996). The F irst Circuit has similarly held that the kidnapping
, beating
, and rape of a fa t her’s children, which w ere “ specifically desig ned to send

a messag e ” to the father on ac c o u n t of the father’s political

o p i n ions, “were c learly 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. H er account of what transpired at the hospital makes clear t h a t t he doctors and nurses deliberately ig nored Monicha’s medical needs because h er parents were Christian and her mother w as Chinese. The hospital s taff’s delay in administering medical care to Monicha was, a t least in pa rt, directed ag ainst Ms. Notoredjo and he r h u sband because o f her race a

nd their relig ion. I ndeed, t h e anti-Christian motivation for the hospital staff’s actions can only be understood as directed ag ainst Monicha’s parents, since a three-month-old infant lacks the capacity to a dopt a relig ious faith of h er own. I t is fair t o s a y t h at a lthoug h the hospital staff’s actions inflicted harm most immediately on Monicha, those actions were “desig ne d t o s end a messag e” to Monicha’s p arents, Precetaj
, 649 F .3d at 76, and were calculated to inflict suffering on them throug h their child.

B e cause the B I A treated Ms. Notoredjo a s credible, there is no basis to ex clude from consideration her testimony that the staff of a public h osp i tal deliberately delay ed administering medical treatment to Monicha on account o f Ms. Notoredjo’s race and relig ion. This evidence is directly relevant to w hether Ms. Notoredjo suffered past persecution,S U M O L A N G V

. H O L D E R 10

and may also be relev a nt to whether she has shown an individualiz ed likelihood of f u ture persecution. See Sael
, 386 F .3d at 927. W e r e m a n d f or the B I A to r econsider Ms. Notoredjo’s request for withholding o f removal g iving f ull weig ht to the evidence concerning Monicha’s death.

IV

F inally
, we uphold the B I A’s determination tha t Ms. Notoredjo is not entitled to protection under the Convention Ag ainst Torture, as that d etermination is supported b y substantial evidence. The event s described in Ms. N o t o r e djo’s declaration and testimony do not establish that she is more likely than n ot to be tortured if she returns to I ndonesia. See 8 C.F .R. § 208.16(c)(2); Nu r u v

. G onzales
, 404 F .3d 1207, 1216, 1221 (9th Cir. 2005).

P ETI T I ON F OR REVIEW G RANTED in part, DENIED in part, DISMISS E D i n part, and REMANDED.

Costs aw arded to the petitioners.