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Lumataw v. Holder

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Before Torruella, Circuit Judge, Tashima, *fn2 Senior Circuit Judge, and Lipez, 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”).*fn3 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.

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