The First Circuit found that the BIA did not err as a matter of law or abuse its discretion in holding that Kechichian was not a member of a particular social group and denying a motion to reopen as new evidence presented by Kerchichian would not have entitled her to relief. The new evidence consisted of proof that Kerchichian’s son is not recognized as a citizen of Armenia as his father is not Armenian. The Court declined to recognize that potential persecution to Kerchichian’s son is not a sufficient ground through which Kerchichian herself could claim asylum or withholding of removal. While the Court recognized that the Sixth Circuit, in Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004), had found that a mother would feared her daughter would be subject to genital mutilation was eligible for asylum, the Court considered Kerchichian’s case distinguishable and noted that the Sixth Circuit is not binding case law
The 1st Cir. held that the IJ and BIA denial of asylum, withholding and CAT to husband and wife Indonesian Petitioners was proper as Petitioners failed to establish both past persecution and nexus on one of the protected grounds. Petitioner attempted to argue that the IJ and BIA committed legal error in falling to conduct a “mixed motive analysis”. However, the 1st Cir. rejected this argument, finding that the IJ properly found that the “sole motivations for the alleged persecution were motivation that are not impermissible under statute.”
The Board reversed an IJ's grant of asylum to a Togolese applicant, who had concededly lied on a previous asylum application, via now-disbarred attorney. The Board apparently found that she couldn't be trusted at all, and alternatively found that she couldn't show a well-founded fear. The IJ found that Togo was atrocious - the 1st cir characaterized it as "random tribal-motivated violence." In light of past falsity, 1st Cir could not find Board's decision clearly erroneous. Note: the Asylum denial was appealed directly from Board, despite remand for VD; CtApp didn't discuss finality. [Query: the CtApp doesn't discuss standards at all; did the Board find the IJ's decision "clearly erroneous"? Can that be right? -CR]
The 1st Cir first overturned the IJ's adverse credibility finding - holding that the IJ improperly lept from an immaterial contradiction that didn't really exist anyway, to an adverse credibility finding. The Court found that substantial evidence didn't support that finding.
However, the CtApp affirmed on an alternate ground. CtApp acknowledged that the alternate ground had to be decided by the agency, per Chenery. However, it found an "implicit" alternate ground in the IJ's decision, that past mistreatment didn't rise to the level of persecution. It found most mistreatment was mere harassment; and that incidents were isolated. Also, evidence tended to undercut his fears, i.e., his parents still reside in Indonesia and he returned there after departing.
The 1st Cir held that conclusional statements, without details, that the Petitioner tried to locate his former lawyer were insufficient to satisfy Lozada - also noting that he didn't detail his arrangements with former counsel, or send the ARDC notice to the right place. Rejects argument that it was "substantial compliance," finding that it wasn't substantial, and that argument wasn't presented to BIA. No equitable tolling, since no due diligence.
First Circuit 
