Argued and Submitted March 5, 2013 —Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A095-295-985 A095-295-986
Gihan L. Thomas (argued) and Kelley L. Costello (argued), Law Offices of Gihan Thomas, Los Angeles, California, for Petitioners.
Jessica E. Sherman (argued), Trial Attorney; Tony West, Assistant Attorney General; Richard M. Evans, Assistant Director; Marshall T. Golding, Attorney, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.
Before: Richard A. Paez and Paul J. Watford, Circuit Judges, and Matthew F. Kennelly, District Judge.[*]
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 take 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.
WATFORD, Circuit Judge:
Can a parent applying for asylum or withholding of removal show that she has been persecuted based on suffering or harm inflicted on her child? That question arises here because the strongest evidence supporting the claims of the petitioner, Berawati Notoredjo, involved the death of her three-month-old daughter. In ruling that Ms. Notoredjo had not shown past persecution, the immigration judge (IJ) refused to give any weight to that evidence. The IJ framed the legal principle guiding his decision in these terms: "the alien cannot claim persecution as to a relative and, by virtue of that persecution, assert that ...