Belhouchet v. Gonzales ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1623
LAHESNE BELHOUCHET,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW FROM AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
Ilana Greenstein, Jeremiah Friedman, Harvey Kaplan, Maureen
O'Sullivan and Kaplan, O'Sullivan & Friedman, on brief for
petitioner.
Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez
Wright, Assistant Director, Eric W. Marsteller, U.S. Department of
Justice, on brief for respondent.
June 15, 2005
Per Curiam. Lahesne Belhouchet, a citizen of Algeria,
appeals from a decision of the Board of Immigration Appeals (BIA)
finding him ineligible for asylum. For the following reasons, we
vacate the BIA's decision and remand this case to the BIA for
further proceedings.
Belhouchet applied for asylum on two grounds: (1) that,
in the past, he was persecuted on account of his political opinion
and membership in a particular social group, and (2) that, if
forced to return to Algeria, he feared future persecution on those
accounts. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1); see also 8
C.F.R. § 1208.13(a); Ravindran v. INS, 976 F.2d 754, 758 (1st Cir.
1992). The Immigration Judge found Belhouchet not credible on
either point and so denied him asylum, including as a discretionary
matter. On Belhouchet's appeal from the Immigration Judge's
decision, the BIA apparently assumed that Belhouchet was credible
but nevertheless concluded that he had failed to meet his burden of
proving that his past persecution was on account of a protected
ground. However, the BIA failed to address Belhouchet's claim
that he has a well-founded fear of future persecution on a
protected ground.
It is the BIA's decision, the final agency order, that
this court reviews. Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st
Cir. 2004). Although the standard of appellate review is
deferential, INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), we
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may "judge the action of [the BIA] based only on reasoning provided
by the agency,' . . . and 'that basis must be set forth with such
clarity as to be understandable." Mihaylov v. Ashcroft, 379 F.3d
15, 20-21 (1st Cir. 2004) (internal citations omitted). Where the
BIA "fails to state 'with sufficient particularity and clarity the
reasons for denial of asylum' or otherwise to 'offer legally
sufficient reasons for its decision,'" id. at 23-24 (quoting
Gailius v. INS, 147 F.3d 34, 46-47 (1st Cir. 1994)), we think it
best to vacate and remand the decision to the agency to address
Belhouchet's future persecution claim in the first instance. In so
doing, we intimate no view on the merits of that claim or on
Belhouchet's credibility.1
In light of that disposition, we need not address
Belhouchet's appeal from the BIA's denial of withholding of
deportation or his motion to remand the case to the BIA so that he
can seek adjustment of status based on his wife's immigrant
worker's visa.2
1
The recent amendments to the Immigration and Nationality Act,
8 U.S.C. § 1158(b), enacted by the Real ID Act of 2005, Pub. Law
No. 109-13, concerning "mixed-motive" cases, corroboration, and
credibility determinations, are not applicable since those
provisions apply only to applications for asylum and other relief
from removal made on or after May 11, 2005. Real ID Act,
§ 101(h)(2).
2
In the course of briefing his motion to remand, Belhouchet
argued, for the first time, that the Executive Office of Asylum
Review lacked jurisdiction over his asylum proceedings because no
charging document was served on the immigration judge. Assuming,
without deciding, that this argument was not waived by Belhouchet's
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The order of the BIA is vacated, and the case is remanded
to the BIA for further proceedings consistent with this opinion.
The motion to remand on different grounds is denied, without
prejudice, as moot. See Local R. 27(c).
failure to raise it at the administrative level or in his initial
appellate brief, the argument is frivolous. The record shows that
this matter was referred to the immigration judge by the filing of
Form I-863, Notice of Referral to Immigration Judge, which confers
jurisdiction on the immigration court. See 8 C.F.R. § 1208.2(c)(1).
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