Sumolang v. Holder, No. 08-73164 (9th Cir. 2013)
Annotate this CasePetitioner, a native and citizen of Indonesia who is a Christian and of Chinese descent, petitioned for review of the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Because the BIA treated petitioner as credible, the court concluded that there was no basis to exclude from consideration petitioner's testimony that the staff of a public hospital deliberately delayed administering medical treatment to her three-month-old daughter on account of petitioner's race and religion. This evidence was directly relevant to whether petitioner suffered past persecution and may also be relevant to whether she had shown an individualized likelihood of future persecution. Accordingly, on remand, the BIA must reconsider petitioner's request for withholding of removal giving full weight to the evidence concerning the baby's death. The court addressed the remaining claims, granting the petition for review in part, denying it in part, dismissing it in part, and remanding for further proceedings.
Court Description: 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. 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.
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