Johan Sumolang v. Eric H. Holder Jr.
2013 U.S. App. LEXIS 15185
| 9th Cir. | 2013Background
- Petitioner Berawati Notoredjo, an Indonesian Christian of Chinese descent, alleges long‑standing ethnic/religious discrimination in Indonesia, including school harassment, public groping, and police indifference.
- In December 1996, her three‑month‑old daughter Monicha died after hospital staff allegedly delayed care and demanded bribes; Notoredjo testified staff treated them poorly because they were Chinese/Christian.
- Notoredjo and her husband stayed in the U.S. after tourist visas expired (1998) and applied for asylum, withholding of removal, and CAT protection in 2002; the IJ and BIA denied relief and rejected evidence related to Monicha’s death for withholding purposes.
- The IJ found Notoredjo credible but ruled harm to a relative cannot be treated as harm to the applicant; the BIA adopted that view and concluded she had not shown past persecution or individualized future risk.
- The Ninth Circuit accepted the factual account (no adverse credibility finding), held the IJ/BIA erred legally in excluding the daughter‑death evidence for withholding, remanded the withholding claim for reconsideration, affirmed denial of asylum timeliness and CAT relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether harm inflicted on a child can constitute past persecution of a parent | Notoredjo: hospital’s deliberate delay was directed at her/family due to race/religion and thus evidences her past persecution | Govt/BIA/IJ: harm to a relative is not the applicant’s personal persecution and may be irrelevant to withholding | Court: Harm to a child can be evidence of past persecution of the parent when directed at the parent on account of a protected ground; remand for BIA to consider the daughter’s death evidence |
| Whether the late asylum filing was excused by changed or extraordinary circumstances | Notoredjo: psychological trauma from daughter’s death or outbreak of anti‑Chinese violence excused delay | BIA/IJ: delay caused by ignorance, not trauma; 1998 violence did not justify years‑long delay | Court: Affirmed BIA — no jurisdiction on extraordinary‑circumstances factual finding; changed‑circumstances (1998 violence) did not excuse multi‑year delay |
| Whether incidents of discrimination alone established past persecution or individualized future risk for withholding | Notoredjo: pattern of harassment and the hospital incident show past persecution or at least individualized future risk | BIA/IJ: prior incidents did not rise to persecution; no individualized likelihood of future persecution | Court: BIA erred by excluding daughter’s death evidence; other incidents may still be insufficient, so remand to reassess withholding with full evidence |
| Whether Notoredjo is entitled to CAT protection | Notoredjo: likely to be tortured on return due to group status and prior mistreatment | BIA: record does not show more‑likely‑than‑not risk of torture | Court: Affirmed BIA — substantial evidence supports denial of CAT relief |
Key Cases Cited
- Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004) (context on anti‑Chinese violence in Indonesia)
- Benyamin v. Holder, 579 F.3d 970 (9th Cir. 2009) (credibility acceptance standard applied)
- Maini v. INS, 212 F.3d 1167 (9th Cir. 2000) (child’s harm can support parent’s persecution finding)
- Precetaj v. Holder, 649 F.3d 72 (1st Cir. 2011) (harm to children used to show persecution of parent)
- Vahora v. Holder, 641 F.3d 1038 (9th Cir. 2011) (changed‑circumstances standard for late asylum filings)
- Tamang v. Holder, 598 F.3d 1083 (9th Cir. 2010) (delay must be reasonable after changed circumstances)
- Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) (CAT standard and substantial‑evidence review)
- INS v. Stevic, 467 U.S. 407 (U.S. 1984) (standard for proving future persecution for withholding of removal)