Elisjah Tjondrowaluyo v. Jefferson Sessions
692 F. App'x 813
| 9th Cir. | 2017Background
- Elisjah Tjondrowaluyo, an Indonesian Christian of Chinese ethnicity, applied for asylum, withholding of removal, and CAT protection; her husband Rosari’s claims were derivative.
- The BIA, on remand from this court, found she waived asylum by failing to file within one year and denied CAT and withholding of removal for lack of individualized risk evidence.
- Tjondrowaluyo petitioned for review of only the withholding of removal denial. The Ninth Circuit reviews legal questions de novo and factual findings for substantial evidence.
- The BIA relied on country-condition findings that Chinese Christians’ situation in Indonesia has improved over the past decade; the petitioner did not present new country-condition evidence to the agency.
- Tjondrowaluyo testified to past harms (molestation, attacks, attempted rape) tied to her Chinese ethnicity but did not adequately argue how those incidents establish a clear probability of future persecution or government inability/unwillingness to control persecutors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new country‑condition evidence not submitted to the agency may be considered on review | Tjondrowaluyo sought to rely on newer materials showing worsening conditions | Government argued review is limited to the administrative record | BIA decision upheld; court refused to consider evidence not before the agency |
| Whether country conditions show Chinese Christians face persecution in Indonesia | Petitioner argued conditions remain threatening | BIA found conditions have improved over 10 years | Substantial evidence supports BIA’s finding of improved conditions |
| Whether petitioner established individualized risk under disfavored‑group analysis for withholding of removal | Petitioner relied on past attacks and ethnic references to show individualized future risk | Government argued petitioner failed to meet the high withholding standard and presented insufficient individualized-risk evidence | Denied — petitioner failed to show the requisite individualized risk for withholding |
| Whether petitioner’s past harms amount to past persecution (including government inability/unwillingness to control) | Petitioner argued cumulative harms constitute persecution | Government argued record lacks evidence the government was unable/unwilling to control persecutors | Denied — petitioner did not show the government element required for past persecution |
Key Cases Cited
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (disfavored‑group analysis and higher withholding standard)
- Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004) (burden to prove individualized risk)
- Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (review limited to administrative record; no judicial notice of materials not submitted to agency)
- Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010) (past persecution requires government inability or unwillingness to control perpetrators)
- Maldonado v. Morales, 556 F.3d 1037 (9th Cir. 2009) (arguments inadequately briefed or raised in passing are waived)