Sumolang v. Holder

For the purposes of withholding of removal, harm to a child can amount to past persecution of a parent when the harm is directed against the parent on the basis of the parent's race, religion, nationality, membership in particular social group, or political opinion.

Beraqwati Notoredjo, a Christian citizen of Indonesia and of Chinese descent, was persecuted based on her religion and race. In 1996, Notoredjo and her husband, Johan Sumolang took their baby daughter to a hospital. The doctors refused to treat Notoredjo's baby daughter promptly because of Notoredjo's race and religion, and as a result, Notoredjo's daughter died. In 1997, Notoredjo and Sumolang traveled to the United States as tourists. After their visas expired the next year, Notoredjo and Sumolang remained unlawfully in the United States. In 2002, they filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge ("IJ") denied relief and ordered their removal, and the Board of Immigration Appeals ("BIA") dismissed their appeal. For claims for asylum, an alien must show “‘changed circumstances' materially affecting her eligibility for asylum or 'extraordinary circumstances' excusing her failure to file within the one-year deadline." The Ninth Circuit lacked jurisdiction to review the BIA’s ruling on extraordinary circumstances because it "rests on the IJ’s resolution of an underlying factual dispute." However, the panel held that Notoredjo's failure to file until several years after the change in circumstances did not bring her under the changed circumstances exception. The panel also held that "harm to a child can amount to past persecution of the parent" when that harm is directed against the parent because of the parent’s race, religion, nationality, membership in a particular social group, or political opinion, and that Notoredjo was not entitled to protection under the CAT because Notoredjo did not establish that it was more likely than not that she would be tortured if she returned to Indonesia. PETITION FOR REVIEW GRANTED in part, DENIED in part, DISMISSED in part, and REMANDED.