Lumataw v. Holder

United States Court of Appeals
For the First Circuit
No. 08-1757
HENDERSON M. LUMATAW,
Petitioner,
v.
ERIC H. HOLDER, JR.,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Tashima,** Senior Circuit Judge,
and Lipez, Circuit Judge.
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.
September 9, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric H.
Holder, Jr. is substituted for former Attorney General Michael B.
Mukasey as respondent.
**
Of the Ninth Circuit, sitting by designation.
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
1
Since Lumataw did not raise his CAT claim in his appellate
brief, that basis for his application is deemed waived. Oroh v.
Holder, 561 F.3d 62, 64 n.1 (1st Cir. 2009).
-2-
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
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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
2
Lumataw had requested that the IJ consolidate his separate
asylum application with his wife's application, but the request was
denied.
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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
3
As explained infra, normally, an asylum application must be
filed within one-year of an alien's arrival, unless he arrives
prior to April 1, 1997, in which case, the filing deadline is one-
year from that date. See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R.
§ 1208.4(a)(2)(ii). Exceptions do apply. See 8 U.S.C.
§ 1158(a)(2)(D).
-5-
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
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"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,
-7-
. . . 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. 2009) (referencing Congress "enact[ment] [of] the 1-
year filing period in 1996.").
An application for asylum may be considered beyond the
one-year deadline, however, "if an applicant demonstrates 'changed
circumstances which materially affect the applicant's eligibility
for asylum or extraordinary circumstances relating to the delay in
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filing.'" Oroh, 561 F.3d at 66 (citing 8 U.S.C. § 1158(a)(2)(D); 8
C.F.R. §§ 1208.4(a)(4), (5)); Rashad v. Mukasey, 554 F.3d 1, 4 (1st
Cir. 2009). "Changed circumstances" may include "[c]hanges in
conditions in the applicant's country of nationality" or "[c]hanges
in the applicant's circumstances that materially affect the
applicant's eligibility for asylum, including changes in applicable
U.S. law and activities the applicant becomes involved in outside
the country of feared persecution that place the applicant at
risk." 8 C.F.R. § 1208.4(a)(4)(i). "Extraordinary circumstances"
refers to "events or factors directly related to the failure to
meet the 1-year deadline." 8 C.F.R. § 1208.4(a)(5). An applicant
attempting to demonstrate changed or extraordinary circumstances
must also demonstrate that he "filed the application 'within a
reasonable period' given those circumstances." Oroh, 561 F.3d at
66 (quoting 8 C.F.R. §§ 1208.4(a)(4), (5)).
B. Standard of Review
"Usually, this court confines its review to the BIA's
order that is being challenged by the petitioner." Rashad, 554
F.3d at 4. "However, when as here, the BIA adopts the decision of
the IJ, and provides some analysis of its own, the Court reviews
both decisions." Id.We will uphold the factual findings of the IJ and BIA "if
they are supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Acevedo-Aguilar v.
-9-
Mukasey, 517 F.3d 8, 9 (1st Cir. 2008) (internal quotation marks
omitted). Under the substantial evidence standard, this court may
not reverse the decision below unless the record compels a contrary
conclusion. See INS v. Elías-Zacarías, 502 U.S. 478, 481 (1992)
(applying this standard); Acevedo-Aguilar, 517 F.3d at 9 (same).
Whether a petitioner has demonstrated past persecution is usually
a factual determination subject only to the highly deferential
substantial evidence standard. See Elías-Zacarías, 502 U.S. at
483-84; Pangemanan v. Holder, 569 F.3d 1, 3 (1st Cir. 2009); Silva
v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006).
Certain agency factual determinations are, however, by
statute excluded from judicial review. See 8 U.S.C. § 1158(a)(3).4
As relevant to this appeal, § 1158(a)(3) "divests courts of
jurisdiction to review determinations of timeliness or the
applicability of exceptions to the one-year rule." Oroh, 561 F.3d
at 66. "The only exception to this bright-line rule is contained
in 8 U.S.C. § 1252(a)(2)(D), which carves out an exception allowing
courts to review 'constitutional claims or questions of law.'" Id.
at 62 (quoting Hana v. Gonzales, 503 F.3d 39, 42 (1st Cir. 2007)).
To form the basis of judicial review under § 1252(a)(2)(D), the
alleged "underlying constitutional or legal question must be
4
Specifically, 8 U.S.C. § 1158(a)(3) states that "[n]o court
shall have jurisdiction to review any determination of the Attorney
General under paragraph (2)," with paragraph 2 governing various
bars to asylum eligibility, including time limits for application
and exceptions thereto.
-10-
colorable; that is, the argument advanced must, at the very least,
have some potential validity." Pan, 489 F.3d at 84.
These deferential review standards "'do[] not . . .
preclude a court from vacating the BIA's asylum determination and
remanding a case for further consideration where the BIA's denial
of asylum was based upon an error of law." Rojo v. Mukasey, 297
Fed. App'x 709, 711 (9th Cir. 2008) (unpublished) (quoting Kotasz
v. INS, 31 F.3d 847, 851 (9th Cir. 1994). The harmless error
doctrine, however, informs the propriety of remand in the face of
legal error. See Nadal-Ginard v. Holder, 558 F.3d 61, 69 n.7 (1st
Cir. 2009) (citing support for proposition that harmless error
doctrine applies to judicial review of immigration decision).
C. Petition for Review
1. Timeliness
Lumataw argues that the IJ and BIA erred as a matter of
law in assessing the timeliness of his I-589 application for
asylum. This is because the BIA reasoned that Lumataw did not
warrant an exception to the one year asylum filing deadline as he
did not file his application within one-year of entering the United
States. However, in 1995, and for some years thereafter, there was
no legal requirement that an alien file an asylum application
within one year of entry -- a fact that neither the IJ nor BIA
recognized. In fact, there was no deadline at all. Thus, by
charging Lumataw for failing to file within one year of entry, the
-11-
IJ and BIA attributed years of delay to Lumataw for which he was
not legally responsible. Lumataw argues that without even making
a finding of when he was legally required to file for asylum, the
BIA could not conduct any meaningful analysis of whether an
exception was warranted.
Additionally, at his hearing before the IJ, Lumataw
argued that because he had been included in his wife's January 2003
I-589 application for asylum, it is the January 2003 date, rather
than the date of Lumataw's personal filing in 2005, that should be
deemed the governing time for analyzing whether an exception to the
one-year deadline applied. The IJ, however, erred as a matter of
law, Lumataw argues, in failing to consider Lumataw's inclusion in
his wife's 2003 application, noting only that petitioner filed ten
years after his 1995 initial entry. Thus, the IJ's "ten year"
comment constitutes legal error, in that it shows the IJ was
mistaken as to both the start date and end dates for analyzing
whether changed or extraordinary circumstances excuse Lumataw's
delay. By adding years of additional delay to the analysis that
did not belong, Lumataw argues that as a matter of law, neither the
IJ nor BIA conducted an appropriate one-year exception analysis.
The government does not dispute Lumataw's claims of
error, but argues that Lumataw is challenging the agency's factual
determinations regarding timeliness, which we lack jurisdiction,
pursuant to 8 U.S.C. § 1158(a)(3), to review. Recognizing that
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legal or constitutional questions are nevertheless reviewable on
appeal, see 8 U.S.C. § 1252(a)(2)(D); Lutaaya v. Mukasey, 535 F.3d
63, 69-70 (1st Cir. 2008), the government takes the position that
Lumataw's claims do not raise legal questions. In support of its
position, the government relies on decisions of this court holding
that agency findings regarding timeliness and changed or
extraordinary circumstances are usually factual determinations
outside this court's jurisdiction. See Hayek v. Gonzales, 445 F.3d
501, 506-07 (1st Cir. 2006).
a. Question of Law
The threshold issue is, thus, whether Lumataw has alleged
a reviewable "question of law" 8 U.S.C. § 1252(a)(2)(D), or rather,
a "question of fact" that is beyond our jurisdiction to review.
We have previously held that "discretionary or factual
determinations continue to fall outside [our] jurisdiction" and
that "BIA findings as to timeliness and changed circumstances are
usually factual determinations." See Hayek, 445 F.3d at 507(emphasis added & internal quotation marks omitted). However, this
does not mean that this Court could never have jurisdiction over a
timeliness determination. See Liu v. INS, 508 F.3d 716, 721 (2d
Cir. 2007) (making this point). Rather, "[s]ome discretionary
determinations do present underlying, reviewable questions of law."
Khan v. Filip, 554 F.3d 681, 689 (7th Cir. 2009); see also Arif v.
Mukasey, 509 F.3d 677, 680 (5th Cir. 2007) ("Although we have
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jurisdiction to review a determination of timeliness that turns on
a . . . question of law, we do not have jurisdiction to review
determinations of timeliness that are based on findings of fact.").
This is such a case.
A reviewable "question of law" may be raised where the
agency used the "wrong legal standard" in coming to a determination
on a discretionary decision. See Filip, 554 F.3d at 689; Liu, 508
F.3d at 721; Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007); see,
e.g., Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007)
(recognizing that we retain jurisdiction to determine whether the
IJ erred in requiring "exceptional circumstances" instead of
"extraordinary circumstances"). Similarly, a reviewable "question
of law" is raised where the agency is charged with misconstruing
its own regulations in reaching a decision. See Rotinsulu v.
Mukasey, 515 F.3d 68, 72 (1st Cir. 2008) (explaining that "[a]n
agency has an obligation to abide by its own regulations" and
"[t]he failure to follow an applicable regulation may be a
sufficient ground for vacation of an agency's decision, resulting
in a remand"); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1103-04
(9th Cir. 2006) (holding that the court had jurisdiction over
alien's petition for review because the alien's claim that the BIA
misconstrued a regulation so as to bar his motion to reopen
presented a question of law); see also H. Rep. 109-72, at 175-76
(2006) (explaining in conference report on the REAL ID Act that use
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of the term "question of law," as codified in § 1252(a)(2)(D)
refers to a "question regarding the construction of a statute").
We agree with Lumataw that the question of whether the IJ
and BIA applied the correct filing deadline in assessing the
timeliness of his asylum application, constitutes a "question of
law" underlying the agency's timeliness determinations. This is
not a case where the alien alleges that "the agency got the facts
wrong." Usman v. Holder, 566 F.3d 262, 268 (1st Cir. 2009)
(citations omitted). The relevant facts, namely, the dates that
Lumataw entered the country and filed for asylum individually, and
as part of his wife's application, are not in dispute. Nor does
Lumataw challenge the agency's exercise of its discretion in
determining that no exception to the filing deadline was warranted.
See Filip, 554 F.3d at 687 (describing determination under
§ 1158(a)(2)(D) as to whether changed or extraordinary
circumstances justify filing delay as "'inherently discretionary'
and not reviewable"). That analysis, Lumataw properly contends,
may only be conducted on remand. See González v. Thomas, 547 U.S.
183 (2006). Rather, at its core, the question underlying Lumataw's
challenge asks whether the agency misconstrued a statute, 8 U.S.C.
§ 1158(a)(2)(B), and its own regulation, 8 C.F.R. § 1208.4(a)(2)(ii), in assessing the timeliness of Lumataw's asylum
application. See In re F-P-R-, 24 I & N at 685 (holding that IJ
"erred as a matter of law when he calculated the 1-year filing
-15-
period on the basis of the respondent's prior arrival in the United
States in 1989 instead of the respondent's last arrival on July 20,
2005" (emphasis added)). Thus, we hold that Lumataw has
"identif[ied] a colorable, non-frivolous 'legal . . . defect in the
[IJ and BIA's timeliness] decision[s]'" that is within this court's
jurisdiction to review. See Usman, 566 F.3d at 267 (quoting
Rashad, 554 F.3d at 5).
Upon undertaking such review, we hold that the IJ
committed legal error when he faulted Lumataw for untimely filing
"10 years after he entered" in 1995 without recognizing either the
absence of a filing deadline for the first few years of that
period, or the undisputed record fact of Lumataw's inclusion in his
wife's January 2003 asylum application. Cf. Arif, 509 F.3d at 680(suggesting that petitioner's later-filed individual asylum
application would be timely if she had timely filed jointly with
her husband, but holding that it lacked jurisdiction to review
agency conclusion that petitioner failed to show by "clear and
convincing evidence" that prior joint application was filed within
one year of entry); 8 C.F.R. § 1208.4(a)(4)(i)(C) (citing "[i]n the
case of an alien who had previously been included as a dependent in
another alien's pending asylum application," "the loss of [that]
. . . relationship" as example of type of "changed circumstance[]"
that would warrant exception to one-year filing rule).
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We further hold that the BIA committed legal error in
affirming the IJ's determination of untimeliness on grounds that
Lumataw "fail[ed] to file his application for asylum within 1 year
of his arrival in the United States in 1995," where Lumataw's
application need only have been filed by April 1, 1998 in order to
be timely. See 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" (emphasis added)).5
b. Harmless error
Despite legal error, we would be required to affirm the
agency's rejection of Lumataw's asylum claim as untimely if the
evidence nevertheless "compel[led] a conclusion" that Lumataw's
asylum application was untimely and no exceptions to the filing
deadline applied. Un v. Gonzales, 415 F.3d 205, 209 (1st Cir.
2005) (emphasis added) (holding that IJ's failure to address past
5
The government cites Odmar as analogous to the instant case.
See Odmar v. Mukasey, 294 F. App'x 611, 612 (1st Cir. 2008)
(unpublished) (concerning an alien who claimed that conditions in
Indonesia had been deteriorating since his 1999 departure but who
did not apply for asylum until six years later in 2005). The BIA
found that Odmar was ineligible for asylum because he failed to
file his application within the statutory one-year deadline and did
not establish any changed or extraordinary circumstances to excuse
his late filing. In denying Odmar's appeal, we held that
"[d]eterminations of changed circumstances are generally factual
determinations" and that Odmar had failed to prove otherwise. Id.
at 613. However, the crucial distinction between Odmar and this
case is that, in Odmar, there was no legal error found. It was
because the agency's "determination did not involve the application
of an erroneous legal standard," that review was precluded. Id.-17-
persecution argument was not harmless error).6 Because "[w]e
cannot say the evidence compels a conclusion either way," the error
cannot be regarded as harmless. Id. (citing El Moraghy v.
Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003)).
Although the government concedes that Lumataw was
required to file his application within one year of April 1, 1997
rather than within one-year of his arrival in the United States,
see 8 C.F.R. § 1208.4(a)(2)(B)(ii), it is nevertheless undisputed
that Lumataw failed to filed his application by April 1, 1998 --
the proper asylum filing deadline applicable to him. Therefore,
the government argues, the IJ and BIA properly found that Lumataw's
application was untimely and that no exceptions applied. Moreover,
the government argues, the BIA concluded that even considering
Lumataw's wife's 2003 filing, Lumataw nonetheless failed to timely
file for asylum. Thus, the government suggests that any error in
the agency's articulation of the proper filing deadline and initial
filing date was harmless.
6
We note that the kinds of errors previously found "harmless" in
the immigration context are more clearly non-prejudicial than the
error in this case. See, e.g., Mekhoukh v. Ashcroft, 358 F.3d 118,
130 (1st Cir. 2004) (holding that omission of evidence that
"contains no information that materially affects the outcome of
[the petitioner's] claims" constitutes harmless error (emphasis
added)); Enwonwu v. Gonzales, 232 F. App'x 11, 14 (1st Cir. 2007)
(stating error was harmless because it was "not substantive" when
the BIA mistakenly said, "'[t]he respondent's appeal is
dismissed,'" when the BIA meant to say the petitioner's appeal was
sustained); Rotinsulu, 515 F.3d at 73 (noting that "material
deficiency in the BIA's decision . . . would have been harmless"
because claim was nevertheless definitively precluded).
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At first blush, the government's argument carries
substantial force. After all, taking April 1, 1998 as the proper
date upon which Lumataw's one-year filing window expired, and
January 2003, the date of his wife's filing, as the date of
Lumataw's initial filing, Lumataw's application was nevertheless
almost five years late. Lumataw argues, however, that by charging
him with failing to file within one year of his 1995 entry, when no
such requirement existed, and omitting consideration of his
inclusion in his wife's 2003 application, the agency attributed to
Lumataw an additional five years of delay for which he was not
legally responsible. The agency's legal errors, Lumataw argues,
which caused it to incorrectly identify the two dates relevant to
a proper "changed" or "extraordinary" circumstances inquiry, meant
that the agency never engaged in a meaningful analysis of whether
the evidentiary record established circumstances that warranted an
exception to the filing deadline.
Lumataw argues that, on remand, with the alleged legal
errors corrected, the record evidence supports a finding that
changed circumstances in Indonesia justify his delay in filing.
See 8 U.S.C. § 1158 (a)(2)(D). Specifically, although the asylum
filing deadline applicable to him was April 1998, Lumataw argues
that the evidentiary record contains extensive documentation
showing that it was from the late 1990s into the early 2000s that
conditions for Christians in Indonesia progressively deteriorated,
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a trend sparked by the overthrow of a long-time dictator who had
previously suppressed religious tensions. In support of his
position, Lumataw points to 2002 State Department Human Rights
Reports on the record, which show an increase in interreligious
violence and tension in Indonesia in the period immediately
preceding his filing for asylum along with his wife. Specifically,
the State Department's Religious Freedom Report for 2001-2002
acknowledged the substantial spike in violence in Indonesia during
this period.7 By including himself in his wife's January 2003
application, Lumataw argues, he can show that he filed his asylum
application within a "reasonable time" after the changed
circumstances in Indonesia occurred. See 8 C.F.R. § 1208.4(a)
(4)(ii) (explaining that "changed circumstances" exception to one-
year asylum filing deadline applies if applicant files "within a
reasonable period" given the "changed circumstances"); Husyev v.
7
Religious intolerance increasingly was evident
during the period covered by this report, and
became a matter of growing concern to many
Indonesians. Apart from the violence in the
Moluccas and Central Sulawesi, religious
intolerance occasionally manifested itself
elsewhere in the country in the form of
attacks on churches. During the second half
of 2001, at least 30 churches were either
forcibly closed or destroyed in Sulawesi, West
Java, Jakarta, Yogyakart, Semarang, Aceh and
Buru Island. There were no reports of any
mosques being destroyed during this period
covered by this report.
U.S. State Dept. International Religious Freedom Report, Indonesia,
2002.
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Mukasey, 528 F.3d 1172, 1181 (9th Cir. 2008) (identifying the
threshold question for the one-year exception analysis as whether
the application was filed in a "reasonable period" after the
changed circumstances occurred). Thus, the asylum claim would not
be time-barred.
Ultimately, we are persuaded by Lumataw's argument.
Although admittedly a close question, we cannot confidently say
that this was a "harmless error, which did not affect the outcome
of the IJ's decision . . . ." Butt v. Keisler, 506 F.3d 86, 90
(1st Cir. 2007). Lumataw indisputably did not file his asylum
application by April 1, 1998, and thus, his application was in any
event untimely. Yet, we conclude that by applying the proper
timeliness analysis, the agency is more likely to have found
circumstances that could excuse the untimely filing.
First, in terms of the IJ's failure to recognize
Lumataw's inclusion in his wife's application, we recognize that it
was just before the filing of that joint application in January
2003 that the State Department human rights reports, part of the
record before the agency, document an upsurge in interreligious
tensions and violence in Indonesia. See 8 C.F.R. § 1208.4(a)(4)(i)
(including changes in conditions in the applicant's country within
the meaning of "changed circumstances"). This change in
circumstances could be found to have "materially affect[ed]"
Lumataw's eligibility for asylum, so as to excuse his late filing.
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See id. (referring to "circumstances materially affecting the
applicant's eligibility for asylum"); Kojo v. Holder, No. 04-73163,
2009 WL 1396836, at *1 (9th Cir. 2009) (noting that "worsening
violence towards Christians [in Indonesia] and the increasingly
ineffective response from the government . . ." may constitute
changed conditions justifying [petitioner's] untimely application"
for asylum, filed in 2002 rather than 1998, and remanding to IJ for
appropriate determination). Moreover, while what constitutes a
"reasonable time" is nowhere defined with exactitude, at least two
members of the BIA have suggested that, barring extraordinary
circumstances, "'a reasonable period' for bringing an asylum claim
based on 'changed circumstances' is . . . 1 year from the point at
which the circumstances changed." In re G-C-L-, 23 I. & N. Dec.
359, 364 (B.I.A. 2002) (Pauley, Board Member, dissenting). This
proposition of one year as a bench mark for what constitutes a
"reasonable time" supports the notion that had Lumataw's 2003
derivative application filing date been taken into account, in
light of the 2002 events in Indonesia, the agency could have found
that Lumataw filed within a reasonable time after "changed
circumstances" in Indonesia arose.
Moreover, even if the BIA is regarded as having partially
"corrected" the IJ's error with respect to the non-consideration of
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the 2003 derivative filing,8 it nevertheless perpetuated the IJ's
error regarding the filing deadline applicable to Lumataw, when it
cited his failure to apply within one year of his 1995 arrival.9
Thus, the BIA's determination that no exceptions justified the
untimely filing was erroneously premised on an at least an eight-
year delay. But as explained above, Lumataw cannot be charged, as
a matter of law, for the period of delay prior to the enactment of
the one-year filing deadline.
Ultimately, the question of whether changed or
extraordinary circumstances exist to excuse an alien's failure to
meet the deadline for filing an asylum application is a highly
fact-specific inquiry requiring an individualized analysis of the
facts of the particular case. Matter of Y-C-, 23 I. & N. Dec. 286,
287-88 (B.I.A. 2002).10 And, inevitably, justifying an eight or ten
8
The BIA stated that "[w]hile the respondent asserts that the
[IJ] did not acknowledge that his wife filed an application in
2003, which included the respondent, the respondent failed to
demonstrate that the [IJ's] omission of this fact supports a
finding that his failure to file his application for asylum within
1 year of his arrival in the United States in 1995 should be
excused . . . ." (emphasis added). This suggests that unlike the
IJ, the BIA took the 2003 filing into account. However, it
nevertheless misstated the applicable filing deadline.
9
To the extent that the BIA adopted the findings and reasoning of
the IJ, we review the decision of the IJ. Sukwanputra v. Gonzales,
434 F.3d 627, 631 (3d Cir. 2006). Insofar as the BIA set forth its
own opinion, however, we review its reasoning. Id.10
See also I.N.S. Asylum Officer Training Manual: One Year Filing
Deadline (Nov. 2001), available at
http://www.asylumlaw.org/docs/united_states/asylum_officer_traini
ng_oneyear_112001.pdf (hereinafter "AO Training Manual"). The
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year delay to the satisfaction of the agency is a more formidable
task than justifying a substantially shorter, five-year period of
delay.11 We cannot confidently say that the improper attribution
of several additional years of delay to Lumataw was not the "final
straw" precluding the BIA from exercising its discretion in
Lumataw's favor. Moreover, the absence of an asylum filing
deadline at the time of Lumataw's initial entry and for several
years thereafter, if recognized, could have itself been considered
"extraordinary circumstances" justifying a late filing. See 8
C.F.R. § 1208.4(a)(5) (defining "extraordinary circumstances" as
"factors directly related to the failure to meet the 1-year
deadline"); AO Training Manual, at 15-16 (instructing AO's, in
conducting "extraordinary circumstances" analysis, to consider
"any . . . factor or group of factors" which, "depending on the
facts of the case" "produced a significant barrier to timely
Manual suggests that whether an exception justifies an untimely
filing is a fact-specific determination and instructs asylum
officers to ask whether "a reasonable person under the same or
similar circumstances as the applicant would have filed sooner."
Id. at 19. The Manual also instructs that asylum officers "must be
flexible and inclusive" in examining changed or extraordinary
circumstances." Id. at 18. Although not binding, the Manual
constitutes persuasive authority.
11
Nor is successfully justifying a five-year filing delay
unprecedented. See Matter of Mirmehdi, A75-622-144, 29 Immig.
Rptr. B1-132 (B.I.A. Aug. 20, 2004) (upholding determination that
changed circumstances justified filing asylum application five
years after arrival); In re Bassel Marshi, No. A26-980-386, at 1-3
(Op. Atty. Gen. Feb. 13, 2004) (reversing BIA and holding that
"changed circumstances" justified alien's thirteen year delay in
filing asylum application).
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filing"). Finally, also bearing in mind the canon which, given the
drastic consequences of deportation, favors construction of
immigration laws in the light most favorable to the alien12 we find
that we are unable confidently to conclude that had the agency
conducted the proper timeliness analysis, it would not have found
that an exception justifying Lumataw's untimely filing applied.
And had the untimely filing been excused, Lumataw would not have
been precluded from demonstrating his eligibility for asylum.13
Thus, we cannot say that the agency's errors did not prejudice
Lumataw. We leave it to the agency to determine upon remand
whether or not the application of the proper analysis would
nevertheless yield the same result.
In reaching this holding, we emphasize that we reach no
conclusion as to whether, under the proper analysis, Lumataw's
undisputed failure to timely file his application should be
excused. Rather, because determinations regarding whether changed
or extraordinary circumstances justify a late-filed application are
"generally factual determinations," Odmar, 294 F. App'x at 613, we
12
See Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Pacheco v.
I.N.S., 546 F.2d 448, 449 (1st Cir. 1976) (citing Barber v.
Gonzales, 347 U.S. 637 (1954)); Fong Haw Tan v. Phelan, 333 U.S. 6,
10 (1948).
13
Although, in the course of its withholding of removal inquiry,
the agency found that Lumataw had not shown past persecution,
because it also determined his asylum application to be untimely,
it never evaluated whether Lumataw could qualify for asylum based
on a well-founded fear of future persecution. See discussion
infra.
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lack authority to make the discretionary determination in the first
instance of whether Lumataw in fact warrants an exception to the
one-year filing deadline. What we recognize, however, is that the
agency committed legal error in conducting its timeliness analysis,
and a possibility exists that Lumataw might have satisfied 8 U.S.C.
§ 1158 (a)(2)(D) but for the IJ and BIA's unambiguous
mischaracterization of his filing obligations. See Kojo, 2009 WL
1396836, at *1 (granting petition to review and remanding because
"the IJ failed to analyze in the first instance whether changes in
Indonesia between 1998 and 2002 justify the untimely filed
application" for asylum). Because we cannot conclude that the
legal errors raised by this appeal were harmless, we grant the
petition for review and remand.
2. Past Persecution
Lumataw argues that the agency erred in holding that he
failed to make out a claim of "past persecution." Past persecution
can serve as the basis for either a withholding of removal or an
asylum application. See 8 C.F.R. §§ 1208.13(b), 1208.16(b). The
IJ and BIA found that the sole incident cited by Lumataw, even if
motivated by religious animus, did not rise to the level of past
persecution. See Matter of Acosta, 19 I. & N. Dec. 211, 216
(B.I.A. 1985) (defining "persecution" as a "threat to the life or
freedom of, or the infliction of suffering or harm upon, those who
differ in a way regarded as offensive"). Lumataw argues that this
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conclusion is contrary to the law in this circuit, which holds that
"credible threats can, depending on the circumstances, amount to
persecution, especially when the assailant threatens the petitioner
with death, in person, and with a weapon." Sok v. Mukasey, 526
F.3d 48, 54 (1st Cir. 2008).
Lumataw argues that he credibly testified that he was
threatened with death by a person with a knife on account of his
Christian religion. The agency so found. But while Sok holds that
credible threats could constitute past persecution, whether that is
actually shown in any particular case "depend[s] on the
circumstances." Id. For example, we have held that "hollow
threats . . . without more, certainly do not compel a finding of
past persecution." Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir.
2005). As the government accurately notes, the "circumstances" of
Sok are distinguishable from those in the instant case in that
Lumataw received only a single threat unaccompanied by physical
harm, whereas Sok involved "six separate instances in which [she]
was either threatened with death or serious injury . . . was beaten
and detained, or was with her husband when he was threatened or
beaten." Id.; see also Sompotan v. Mukasey, 533 F.3d 63, 71 (1st
Cir. 2008) (noting that "'the presence or absence of physical harm,
(and, indeed, the degree of harm inflicted) remains a relevant
factor in determining whether mistreatment rises to the level of
-27-
persecution'" (quoting Ruiz v. Mukasey, 526 F.3d 31, 37 (1st Cir.
2008)).
Ultimately, our authority to disturb the agency's
determination is constrained by our deferential "substantial
evidence" standard of review "which demands that we uphold the
agency's determination unless the evidence points unerringly in the
opposite direction." Rashad, 554 F.3d at 6 (quoting Khan, 549 F.3d
at 576). We cannot say on these facts that the "record compels a
contrary conclusion." Elías-Zacarías, 502 U.S. at 481 n.1
(applying this standard and stating "[t]o reverse the BIA finding
we must find that the evidence not only supports the conclusion,
but compels it"); see also Arif, 509 F.3d at 680 (explaining that
"persecution is an extreme concept that does not include every sort
of treatment our society regards as offensive" (internal quotation
marks omitted)). We therefore, "find no basis for disturbing [the
IJ and BIA's] conclusion that the petitioner failed to show past
persecution." Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.
2005).
3. Well-Founded Fear
Finally, Lumataw argues that even absent a favorable
finding on the past persecution question, on remand, Lumataw should
be entitled to present an asylum claim based on "well-founded fear
of future persecution." We agree. The IJ and BIA found that
Lumataw did not meet the standard for withholding of removal on the
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basis of fear of future persecution, as the record did not
establish that Lumataw would "more likely than not" be persecuted
on the basis of his religion if he returned to Indonesia. We hold
this decision to be supported by substantial evidence. However,
because Lumataw's asylum claim was dismissed as untimely, Lumataw's
fear of future persecution claim was assessed only under the higher
standard of proof applicable to withholding of removal claims,
rather than the asylum standard. Pan, 489 F.3d at 86 (explaining
that "'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"); see also
Cardoza-Fonseca, 480 U.S. at 431 (finding in asylum context that
ten percent chance of being persecuted provides basis for "well-
founded" fear). Lumataw argues that substantial evidence on the
record, including various country conditions reports documenting a
growing trend of intolerance against Christians in Indonesia, would
support at least a ten percent possibility of future persecution if
he were removed. We lack authority to evaluate this claim in the
first instances. But if, on remand, the IJ finds that Lumataw
warrants an exception to the one-year filing deadline, his asylum
claim on the basis of well-founded fear of future persecution in
Indonesia must be revisited as well.
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III. Conclusion
For the foregoing reasons, we grant this petition for
judicial review and remand.
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