Lumataw v. Holder

• Decision Date: 09 September 2009
• Docket Number: No. 08-1757.,08-1757.
• Parties: Henderson M. LUMATAW, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> Attorney General of The United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

582 F.3d 78

Henderson M. LUMATAW, Petitioner, v. Eric H. HOLDER, Jr.,^* Attorney General of The United States, Respondent.

No. 08-1757.

United States Court of Appeals, First Circuit.

Submitted May 4, 2009.

Decided September 9, 2009.

William A. Hahn and Hahn & Matkov, on brief for petitioner.

Janice K. Redfern, Senior Litigation Counsel, Office of Immigration Litigation, Michael F. Hertz, Acting Assistant Attorney General, and Linda S. Wernery, Assistant Director, on brief for respondent.

Before TORRUELLA, Circuit Judge, TASHIMA,^** Senior Circuit Judge, and LIPEZ, Circuit Judge.

TORRUELLA, Circuit Judge.

Petitioner Henderson M. Lumataw, a native and citizen of Indonesia, seeks review of a decision issued by the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ's") denial of his application for political asylum, withholding of removal and protection under the Convention Against Torture ("CAT").¹ Lumataw entered the United States in 1995 and filed his I-589 application for asylum in 2005 on the basis of past persecution and fear of future persecution in Indonesia on account of his religious status as a practicing Christian. The BIA affirmed the IJ's denial of asylum on the ground that Lumataw failed to allege sufficient changed circumstances in Indonesia to excuse his failure to timely file his asylum application within one year of his 1995 arrival. The BIA also agreed with the IJ's conclusion that Lumataw had not established past persecution and that he would not "more likely than not" be persecuted in the future if he returned to Indonesia.

In this petition for review, Lumataw challenges the agency's determinations on the merits of his asylum claim, but also alleges that the BIA erred as a matter of law in holding his application to be untimely because the one-year filing deadline had not yet been enacted into law at the time of his initial entry. After careful review of the record, we hold that the IJ and BIA committed prejudicial legal error in assessing the timeliness of Lumataw's petition. We thus grant the instant petition and remand.

I. Background

A. Factual Background

Henderson M. Lumataw is a 35 year-old citizen and native of Indonesia. He identifies himself as a Christian Protestant. The incident upon which Lumataw's claim of past persecution is premised took place in Indonesia in August 1995. On that date, while traveling through Indonesia, Lumataw was accosted by a thief who was subsequently joined by three additional attackers. Lumataw identified these individuals as Muslims due to their headdresses and sarong attire. Seeing the cross necklace around Lumataw's neck, one of the attackers accused Lumataw of being Christian. The attacker pointed a knife at Lumataw's neck and threatened to kill him, saying "I want to kill you Christian." Ultimately, Lumataw escaped the attackers after they had robbed him of his cross necklace. Lumataw was very shaken by the incident. Thereafter, he left Indonesia for the United States.

Lumataw entered the United States on September 12, 1995 on a non-immigrant visitor with authorization to remain for six months. According to Lumataw, he overstayed out of fear of being threatened, tortured, or killed if he returned to Indonesia, because of his status as a Christian. Lumataw explained, however, that he did not apply for asylum right away because the interreligious conflict between Muslims and Christians was not as perilous in 1995 as it would later become. Country conditions evidence on the record, including U.S. State Department Human Rights Reports, confirms the increase in interreligious tensions in Indonesia in the late 1990s and early 2000s. On October 5, 2002, in New Hampshire, Lumataw married Vonnie Golioth ("Golioth"), also a Protestant Christian of Indonesian nationality.

B. Procedural History

On January 27, 2003, Golioth applied for asylum and Lumataw was included in his wife's application. On April 11, 2003, the Department of Homeland Security ("DHS") served him with a Notice to Appear ("NTA") charging him with being removable under 8 U.S.C. § 1227(a)(1)(B), as an alien who remained in the United States for a time longer than permitted. In 2005, Lumataw filed his own application for asylum under § 208 of the Immigration and Nationality Act ("INA"), and in the alternative, withholding of removal under § 241(b)(3) of the INA and under the CAT.²

1. The IJ Decision

On January 26, 2006 a hearing was held before an IJ on the merits of Lumataw's application. In addition to Lumataw's testimony, Golioth also testified about incidents of violence and intimidation inflicted on Christians by Muslims in Indonesia. The IJ issued an oral decision that day.

The IJ identified the "timeliness" of Lumataw's asylum application as the threshold question for the court, noting that Lumataw's asylum application was "filed approximately 10 years after he entered the United States."³ The IJ reasoned that "while periods of social conflict can intervene between [Lumataw's] arrival in the United States and the time he applied for asylum, [Lumataw] has not established that circumstances have changed to the point where his eligibility for asylum has been materially affected." Finding no evidence of "a change in circumstances that would justify a late filing in this case," the IJ held that Lumataw's application for asylum was untimely.

As to the material aspects of Lumataw's remaining withholding of removal claim, the IJ found Lumataw to be generally credible, but concluded that even if Lumataw's attackers were motivated by animosity towards Christians, one isolated attack, far from Lumataw's home or workplace, with no injury, did not constitute past persecution. Finding that Lumataw had not established past persecution, no presumption of future persecution applied either. Furthermore, the IJ concluded that Lumataw could not prove it was "more likely than not" that he would be persecuted if he returned to Indonesia, and thus, the IJ also denied his application for withholding of removal under section 241(b)(3) of the INA. The IJ also noted that country conditions in Indonesia do not support the conclusion that Lumataw would "more likely than not" be persecuted, should he be removed to Indonesia. Lumataw's application for CAT relief was also denied. Finally, the IJ concluded that Lumataw was eligible for voluntary departure.

2. The BIA Decision

On May 16, 2008, the BIA dismissed Lumataw's appeal. On the issue of timeliness, the BIA "agree[d] with the [IJ] that [Lumataw] had failed to establish sufficient changed circumstances in Indonesia to excuse his failure to timely file his application for asylum." Although Lumataw had argued to the BIA that the IJ had failed to acknowledge his inclusion in his wife's 2003 application, the BIA held that Lumataw "failed to demonstrate that the [IJ's] omission of this fact supports a finding that his failure to file his application for asylum within one year of his arrival in the United States in 1995 should be excused based on changed circumstances in Indonesia."

As to the merits of Lumataw's alternative withholding of removal claim, the BIA adopted the reasoning of the IJ that Lumataw had failed to establish either past persecution or that he would "more likely than not" be persecuted in the future, so as to support withholding of removal. The BIA also rejected his claims under the CAT.

A timely petition for review in this court followed. In this petition Lumataw argues that the IJ and BIA erred as a matter of law in holding his asylum application to be untimely, as those decisions rested on Lumataw's failure to file within one year of his initial entry in 1995 when no filing deadline had yet been enacted into law, as well as a failure to consider his inclusion in his wife's earlier-filed petition. Lumataw further argues that the IJ and BIA erred in ruling that Lumataw failed to make out a case of past persecution. Finally, Lumataw argues that should we remand on the first issue, he should be entitled, on remand, to present an asylum claim based on "well-founded fear of future persecution."

II. Discussion

A. Applicable Law

"To establish eligibility for asylum, an alien must prove either past persecution, which gives rise to an inference of future persecution, or establish a well founded fear of future persecution on account of her race, religion, nationality, membership in a social group, or political opinion." Hem v. Mukasey, 514 F.3d 67, 69 (1st Cir.2008). In contrast, "[t]o qualify for withholding of removal, an alien must show that, more likely than not, he faces persecution on account of one of [these] five protected grounds, ... should he return to his homeland." Pan v. Gonzales, 489 F.3d 80, 85-86 (1st Cir.2007) (emphasis added); see also 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.16(b)(2). "This `more likely than not' standard is harder for an alien to satisfy than the `reasonable possibility' standard for showing a well-founded fear of future persecution in asylum cases." Pan, 489 F.3d at 86.

Unlike a withholding of removal application, which is not subject to a filing deadline, see 8 C.F.R. § 1208.4(a), "[a]n asylum application must ordinarily be filed `within one year after the date of the alien's arrival in the United States,' or by April 1, 1998, whichever is later." Oroh, 561 F.3d at 66 (internal citations and quotation marks omitted); see also 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2)(ii) (explaining that the "1-year period shall be calculated from the date of the alien's last arrival in the United States or April 1, 1997, whichever is later"). Prior to the enactment of this one-year bar, effective April 1, 1997, there was no mandated time limit for filing applications for asylum. See In re F-P-R-, 24 I. & N. Dec. 681, 685 (B.I.A.2008) (referencing Congress "enact[ment] [of] the 1-year filing period in 1996.").

An application for asylum may be considered beyond the one-year...