Perez v. Holder, Jr. , 761 F.3d 61 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2223
DAVID PEREZ,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.
Nancy J. Kelly, John Willshire Carrera, and Harvard
Immigration & Refugee Clinic, Greater Boston Legal Services, on
brief for petitioner.
Elizabeth D. Kurlan, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Stuart F. Delery, Assistant
Attorney General, Civil Division, and Holly M. Smith, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
July 30, 2014
LYNCH, Chief Judge. David Perez, a native and citizen of
El Salvador, petitions for review of the August 30, 2013 order of
the Board of Immigration Appeals ("BIA") denying his motion for
reconsideration. The order states that Perez's "motion does not
identify any error of law or fact in [the BIA's] decision or
identify any argument advanced on appeal that was improperly
overlooked by the Board," as is required for such a motion to be
granted. See 8 C.F.R. § 1003.2(b)(1); see also In re O-S-G, 24 I.
& N. Dec. 56, 59 (BIA 2006).
Respondent opposed the motion to reconsider before the
BIA, but did not then concede any error in the Immigration Judge's
("IJ") factfinding. However, in its briefing to us, respondent has
admirably conceded that the IJ committed a clear error of fact. It
also conceded that that erroneous finding was recited in the BIA's
May 30, 2013 order denying Perez's appeal from the denial of his
applications for asylum, withholding of removal, and protection
under the Convention Against Torture. As respondent now concedes,
both the BIA and the IJ mistakenly concluded that Perez could have
continued his social activism provided he paid extortion money to
the gang members. But that erroneous finding conflated Perez's
testimony that the gang demanded payment for the continued
operation of his business with his testimony that the gang
threatened to kill him for his continued social activism.
Respondent has argued that the IJ's admitted error was
not material, that any error was harmless, and that Perez has
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waived any argument based on the error. We find no waiver by
Perez. Perez has argued that the admitted error affected the BIA's
ruling both as to whether he has a well-founded fear of future
persecution and as to whether there is a nexus between the
persecution and a protected ground.
We will not evaluate these arguments here. The BIA has
not had the opportunity to review and determine the first two of
respondent's arguments nor any responses from Perez as to the
effects of the error. In light of principles of exhaustion, it is
for the BIA to address these issues in the first instance. As we
said recently in Mejia v. Holder, ___ F.3d ___, 2014 WL 2872220, at
*3 (1st Cir. June 25, 2014), where the BIA has not done its own
analysis of an issue, it is not appropriate for the "government [to
attempt] to fill this gap by briefing to us its view of the issue
. . . . [T]he BIA must do its own work."
We grant the petition for review and remand to the BIA
for further proceedings consistent with this opinion. See Aldana-
Ramos v. Holder, ___ F.3d ___, 2014 WL 2915920, at *5-7 (1st Cir.
June 27, 2014) (remanding asylum claim with the observation that
threats of murder can constitute persecution and that asylum is
still proper in "mixed-motive cases" provided one of the central
reasons for persecution is the protected ground).
So ordered.
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