Marlinda Kaurow v. Jeff B. Sessions
677 F. App'x 349
| 9th Cir. | 2017Background
- Petitioner: Marlinda Erni Kaurow, an Indonesian national and Christian, seeks review of BIA’s final order of removal denying asylum and withholding of removal.
- Facts: In 1998 riots, members of a Muslim political party struck Kaurow’s car while shouting “Kill Christians!” and rioters later threw rocks at her house, broke a window, and shouted similar threats; no physical injuries occurred.
- Procedural history: An IJ denied asylum and withholding; the BIA dismissed her appeal. Kaurow filed this petition for review in the Ninth Circuit.
- IJ/BIA findings: The incidents did not constitute past persecution, and Kaurow failed to show an individualized risk of future persecution as a Christian (disfavored-group analysis).
- Additional claim: Kaurow argued inconsistent treatment of her and her son’s asylum applications, but she did not raise that issue before the BIA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether incidents at car and home constitute past persecution | Kaurow: mob attacks and threats amounted to past persecution | Government: incidents were hostile but not extreme enough to be persecution | Denied — substantial evidence supports that incidents did not rise to past persecution |
| Whether Kaurow demonstrated well‑founded fear of future persecution (individualized risk) | Kaurow: threats/attacks evidence risk of future targeting as a Christian | Government: attacks were not individualized; occurred during 1998 riots and no ongoing targeting | Denied — substantial evidence supports no individualized risk |
| Whether BIA/IJ erred by treating Kaurow and her son inconsistently | Kaurow: alleged inconsistent treatment of applications | Government: BIA/IJ decisions were proper; issue not preserved below | Not considered — claim was not exhausted before the BIA |
| Jurisdiction to review unexhausted administrative claims | Kaurow: court can review alleged inconsistency now | Government: 8 U.S.C. §1252(d)(1) requires administrative exhaustion | Held — court lacks jurisdiction to review issues not exhausted administratively |
Key Cases Cited
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (defines persecution as an extreme concept and guides past‑persecution analysis)
- Nagoulko v. INS, 333 F.3d 1012 (9th Cir. 2003) (framework for assessing persecution claims)
- Halim v. Holder, 590 F.3d 971 (9th Cir. 2010) (addresses individualized targeting and well‑founded fear standards)
- Singh v. INS, 134 F.3d 962 (9th Cir. 1998) (mob violence and property damage insufficient to compel finding of past persecution)
- Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004) (requires evidence of individualized risk to establish future persecution under group theory)
- Figueroa v. Mukasey, 543 F.3d 487 (9th Cir. 2008) (confirms exhaustion requirement for judicial review of removal orders)
- Zara v. Ashcroft, 383 F.3d 927 (9th Cir. 2004) (petitioner must specifically raise issues to the BIA to satisfy exhaustion)