FILED
NOT FOR PUBLICATION AUG 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELPHINSTEN WINATA, No. 08-70915
Petitioner, Agency No. A095-838-433
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 15, 2011**
Portland, Oregon
Before: PREGERSON and WARDLAW, Circuit Judges, and SEDWICK, District
Judge.***
Elphinsten Winata, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John W. Sedwick, Senior District Judge for the U.S.
District Court for Alaska, Anchorage, sitting by designation.
Immigration Judge’s (IJ) decision denying his applications for asylum, withholding
of removal, and protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252. We grant the petition for review in part, deny
in part, and remand for further proceedings.
Because the BIA issued a written opinion, we review the BIA’s decision.
Aden v. Holder, 589 F.3d 1040, 1043 (9th Cir. 2009). However, because the BIA
did not explicitly state that it was conducting a de novo review, we may look to the
IJ’s decision as a guide for the reasoning behind the BIA’s decision, particularly on
issues that the BIA analyzed in a cursory manner. See Ahmed v. Keisler, 504 F.3d
1183, 1190-91 (9th Cir. 2007). We review legal questions de novo, and factual
findings for substantial evidence. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th
Cir. 2009).
Winata, a Chinese Christian, asserts that he fears persecution in Indonesia on
account of his ethnicity, religion, and imputed political opinion. The IJ found that
Winata’s testimony was credible, but that the events recounted did not rise to the
level of past persecution. The IJ also concluded that while the disfavored group
analysis applied to Winata’s claim, see Sael v. Ashcroft, 386 F.3d 922, 925 (9th
Cir. 2004), Winata had not shown a sufficiently individualized risk of harm to
2
establish a well-founded fear of future persecution. The BIA affirmed, concluding
that Winata had not established that he had been subjected to past persecution.1
The BIA and IJ failed to account for Winata’s age at the time these events
occurred. This was legal error. See Hernandez-Ortiz v. Gonzales, 496 F.3d 1042
(9th Cir. 2007). In Hernandez-Ortiz, we held that when the agency evaluates an
asylum application based on events perceived by the petitioner when he was a
child, the agency must “look at the events from [the child’s] perspective, [and]
measure the degree of . . . injur[y] by [the] impact on children of [that] age.” Id. at
1046. See also id. at 1045 (“The Guidelines for Children’s Asylum Claims advises
that harm a child fears or has suffered . . . may be relatively less than that of an
1
The BIA did not address whether Winata had established a well-founded
fear of persecution under the disfavored group analysis; therefore we review the
IJ’s decision with respect to this claim.
3
adult and still qualify as persecution.” (internal quotation marks omitted) (quoting
Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004))).2
Here, although all of the relevant events occurred when Winata was between
the ages of eight and fifteen, the agency failed to evaluate these events in light of
Winata’s young age. When Winata was eight years old, his sister was kidnapped
2
The government’s supplemental brief argues that Winata failed to exhaust
this legal claim because Winata did not argue before the BIA that his young age
affected his claims for relief, and that we therefore lack jurisdiction over this
argument. However, the argument that the agency should have evaluated Winata’s
showing of persecution in light of his age is not a new legal claim. Rather, this is
merely an extension of Winata’s appropriately exhausted argument that he had
made a sufficient showing of persecution. We have made clear that the exhaustion
requirement should not be employed in a “formalistic manner.” Figueroa v.
Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). As long as “the issue was before the
BIA such that it had the opportunity to correct its error,” id., the issue has been
exhausted. It also bears noting that briefing before the BIA was completed before
Hernandez-Ortiz was published. Cf. Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir.
2004) (“We do not require an alien to exhaust administrative remedies on legal
issues based on events that occur after briefing to the BIA has been completed.”).
The government also argues that Winata has waived this argument by failing
to raise it in his opening brief. While we “will not ordinarily consider matters on
appeal that are not specifically and distinctly argued in appellant’s opening brief,”
Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) (internal quotation marks
and citations omitted), we will do so if the failure to address the issue would result
in “manifest injustice,” or if the failure to raise the issue does not prejudice the
opposing party. See Alcaraz, 384 F.3d at 1161. Here, both circumstances are
present: (1) the failure to raise this issue would result in manifest injustice because
Winata would otherwise be precluded from establishing his eligibility for asylum
under the law of our circuit; and (2) the panel cured any potential prejudice to the
government by requesting supplemental briefs on the application of Hernandez-
Ortiz from both parties.
4
and held for ransom by his family’s former driver, a native Indonesian, and she
was cut severely on her head and hands during this attack.3 In 1998, when Winata
was twelve years old, he observed anti-Chinese riots from his parent’s apartment,
and his parents personally observed rioters setting Chinese persons on fire. After
the riots, public demonstrations targeting the ethnic Chinese were regular
occurrences, and Winata was personally subjected to verbal assaults from his
classmates that school authorities refused to proscribe. Finally, in 2000, when
Winata was fourteen years old, a bomb exploded at the church inside his school.
The bomb exploded in the school’s parking lot after a Christmas Eve mass that
Winata was supposed to attend, but had not attended because he was sick. Winata
testified that indigenous Indonesians had planted this bomb.
3
As noted in Hernandez-Ortiz, injuries to family members are particularly
traumatic for young children. While the primary motivation for the driver’s attack
may have been personal retribution for his dismissal, our case law is clear that for
pre-REAL ID Act asylum applications, “mixed motives do not negate a legitimate
nexus” to a protected ground, Baghdsaryan v. Holder, 592 F.3d 1018, 1023 (9th
Cir. 2010). Accordingly, even if the driver was primarily motivated by personal
retribution, as long as one of the motivations was related to his sister’s ethnicity or
religion, this incident meets the nexus requirement. While the police’s response to
the driver’s attack may mean that this event does not qualify as an incident of past
persecution, the kidnapping incident may be relevant to Winata’s claim of a well-
founded fear of future persecution, especially in light of the surrounding
circumstances and his young age at the time.
5
We remand to the agency to consider, in the first instance, whether these
incidents rise to the level of past persecution, and whether, under the disfavored
group analysis, they establish a well-founded fear of future persecution. See INS v.
Ventura, 537 U.S. 12, 16 (2002). When evaluating Winata’s showing of past
persecution and individualized risk of future persecution, we direct the agency to
consider the bombing of Winata’s school church after a Christmas Day mass that
Winata had planned to attend, but did not only because he became ill.4 We note
that under the disfavored group analysis, “because the record establishes that ethnic
Chinese are significantly disfavored in Indonesia, [Winata] must demonstrate a
‘comparatively low’ level of individualized risk in order to prove that [he] has a
well-founded fear of future persecution.” Sael, 386 F.3d at 927 (quoting Hoxha v.
Ashcroft, 319 F.3d 1179, 1183 (9th Cir. 2003)). And under Hernandez-Ortiz,
Winata’s showing of a comparatively low level of individualized risk must also be
evaluated in light of Winata’s age at the time these events occurred.
Substantial evidence supports the denial of Winata’s application for
withholding of removal as Winata did not establish that it was “more likely than
not” that he would be subject to persecution in Indonesia. 8 C.F.R. § 208.16(b)(2).
4
The BIA’s decision failed to mention this traumatic incident, which must
be considered when evaluating the merits of Winata’s claim.
6
Substantial evidence also supports the BIA’s denial of CAT relief as Winata failed
to establish it was more likely than not that he would be subject to torture. 8
C.F.R. § 208.16(c)(2); see Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.
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