Vekky Richard Ticoalu v. Alberto R. Gonzáles, Attorney General of the United States

Of the Sixth Circuit, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 05-1620
VEKKY RICHARD TICOALU,
Petitioner,
v.
ALBERTO R. GONZÁLES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Siler, Senior Circuit Judge, *
and Howard, Circuit Judge.
Yan Wang, on brief for petitioner.
Thomas L. Holzman, Special Attorney, U.S. Department of
Justice, Civil Division, Office of Immigration Litigation, Peter D.
Keisler, Assistant Attorney General, Civil Division, and Terri J.
Scadron, Assistant Director, on brief for respondent.
December 28, 2006

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TORRUELLA, Circuit Judge. Vekky Richard Ticoalu
("Ticoalu"), a native and citizen of Indonesia, seeks review of a
March 30, 2005 decision of the Board of Immigration Appeals ("BIA")
adopting and affirming an Immigration Judge's ("IJ") decision to
deny his application for asylum and withholding of removal, and
declining to grant his motion to remand. Ticoalu submitted the
motion to remand while his appeal was pending before the BIA.
Ticoalu asserted that new material evidence, including an order
granting asylum to his brother, demonstrated worsening country
conditions. After careful consideration, we reverse the BIA's
denial of the motion to remand, under the circumstances presented
in the case.
I. Factual and Procedural History
Ticoalu was admitted to the United States as a non-
immigrant on or about March 7, 2001, with authorization to remain
until September 6, 2001. He was placed in removal proceedings upon
issuance of a Notice to Appear dated June 6, 2002. Ticoalu filed
an application for asylum on or about July 31, 2002 -- over one
year after entering the United States. The application was
rejected as untimely and the IJ found that Ticoalu's failure to
timely file was not adequately explained either by changed
circumstances in his home country affecting his basis for fearing
harm, or by any other circumstances beyond his control.

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Thereafter, the IJ treated Ticoalu's asylum application
as an application for withholding of removal. Ticoalu alleged
eligibility for withholding of removal, asserting that it is more
likely than not he will be harmed in Indonesia on account of his
religion. Specifically, Ticoalu indicated that on two occasions he
was a "victim of physical violence at the hands of Muslims" on
account of his Christian faith, and that he fears future
persecution because of the increasing number of Christians killed
by Muslims in Indonesia. The two incidents occurred in separate
areas of Jakarta in May 1998 and July 2000.
A month after the second incident, Ticoalu left Jakarta
and moved back to Manado, the capital of the Sulawesi Utara
province, where his parents and the majority of his siblings live.
The province forms the northern-most area of the island of
Sulawesi. Ticoalu began working there, and experienced no
difficulty in either his place of employment or home between his
arrival in August 2000 and his departure for the United States in
March 2001.
The IJ concluded that Ticoalu was never targeted for harm
on account of his religion and that the two alleged incidents were
isolated occurrences. The IJ also found that recent violence in
Indonesia against Christians is not countrywide and Ticoalu has a
safe haven in Manado.

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Ticoalu appealed the IJ's denial of his application for
withholding of removal to the BIA. While his appeal was pending,
Ticoalu submitted a motion to remand. In the motion, Ticoalu
indicated that his brother's separate asylum application was
granted by another IJ, and he alleged that conditions in Indonesia
had worsened. With the motion, Ticoalu included six 2004
periodical articles concerning events in Indonesia. One of the
articles reported inter-religious violence in central Sulawesi.
Included in the motion were also a copy of the July 20, 2004 order
granting asylum to his brother, and copies of the brother's asylum
application and affidavit. Both the brother's application and
accompanying affidavit were dated October 18, 2003.
Ticoalu's brother also alleges that he was the victim of
inter-religious violence in Jakarta. In 1998, during a religious
riot, he was pulled from a bus by Muslim rioters, beaten, and
stabbed. He thereafter returned to Modona. In Modona the brother
also lived without incident. In his affidavit, the brother says he
traveled to the United States in 2000 because of his fear of being
subject to inter-religious violence.
The BIA adopted and affirmed the denial of Ticoalu's
asylum application and petition for withholding of removal, and
denied Ticoalu's motion to remand. In regard to Ticoalu's motion
for remand, the BIA determined that the periodical articles,
including the article reporting inter-religious violence in central

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Sulawesi, "contain general background information and are not
highly probative of the respondent's specific claim." The BIA also
noted that the brother's affidavit was executed prior to Ticoalu's
final hearing on October 22, 2003, and is therefore not new
evidence and could not be submitted. The BIA did not directly
address the probative value of the brother's grant of asylum.
II. Discussion
Ticoalu raises three challenges to the BIA's opinion: (1)
that the denial of his asylum application is a due process
violation; (2) that substantial evidence supports the BIA's denial
of his request for withholding of removal; and (3) that the BIA's
denial of his motion to remand was an abuse of discretion. We
begin by disposing of the due process claim before moving on to the
BIA's denial of Ticoalu's motion to remand. Our reversal of the
BIA's denial of the motion to remand precludes the need to address
the denial of withholding of removal.
Ticoalu claims that the one-year time limit on asylum
applications is a violation of his Fifth Amendment right to due
process. Ticoalu does not challenge that he failed to timely file
his asylum application, or that he had no justification for the
late filing. We review such legal questions de novo, subject to
established principles of agency deference. See INS v. Aguirre-
Aguirre, 526 U.S. 415, 424-25 (1999); DaCosta v. Gonzáles, 449 F.3d
45, 49 (1st Cir. 2006). Our review concludes that Ticoalu does not

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have a cognizable claim. Due process rights do not accrue to
discretionary forms of relief, id. at 50 (discretionary forms of
relief do not rise to the level of a protected interest), and
asylum is a discretionary form of relief. Romilus v. Ashcroft, 385
F.3d 1, 8 (1st Cir. 2004) ("discretionary relief of asylum").
We review the BIA's denial of Ticoalu's motion for remand
for abuse of discretion. Maindrond v. Ashcroft, 385 F.3d 98, 100
(1st Cir. 2004); Toban v. Ashcroft, 385 F.3d 40, 45 (1st Cir.
2004). An abuse of discretion occurs "where the BIA misinterprets
the law, or acts either arbitrarily or capriciously." Toban, 385
F.3d at 45 (quoting Wang v. Ashcroft, 367 F.3d 25, 27 (1st Cir.
2004)). We defer to the BIA's factual determinations if they are
based on "reasonable, substantial, and probative evidence." Ymeri
v. Ashcroft, 387 F.3d 12, 17 (1st Cir. 2004).
The BIA may only grant a motion to remand "based on new
facts if the 'evidence sought to be offered is material and was not
available and could not have been discovered or presented at the
former hearing.'" Toban, 385 F.3d at 45 (quoting 8 C.F.R. § 1003.2
(c)(1)). Here, we defer to the BIA's determination that the five
timely periodical articles reporting violence on islands
neighboring Sulawesi are not material to Ticoalu's claim. Although
we find somewhat compelling Ticoalu's argument that the articles'
evidence of violence on the islands neighboring Sulawesi
demonstrates a potential danger to his well being, we do not find

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it unreasonable that the BIA concluded that the information was too
general to be "probative of his claim." We find unreasonable,
however, the BIA's dismissal of the timely periodical article
reporting violence in central Sulawesi. Manado is located in
northern Sulawesi and is not so distant from central Sulawesi as to
be obviously isolated from the violence reported in the submitted
article. The article may undermine the IJ's conclusion, adopted by
the BIA, that northern Sulawesi is a safe haven. The article
should be reviewed on remand.
The BIA also never directly addressed whether the
July 24, 2004 order granting asylum to Ticoalu's brother was
material to Ticoalu's claim. We do not understand why this timely
order was not discussed by the BIA. The brother was more severely
injured by inter-religious violence in Jakarta, but he too returned
to Modona afterward. It seems likely that either the IJ in the
instant case or the IJ who issued Ticoalu's brother's order has
erred in assessing the extent of inter-religious violence in
Indonesia, and, in particular, in Sulawesi. The government
suggests that Ticoalu's brother's grant of asylum is only minimally
probative because the order is not accompanied by the IJ's decision
and therefore the reasoning is not apparent. It would be
preferable to understand the IJ's reasoning; however, this does not
explain why the BIA would not consider worthy of re-examination the

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IJ's' potentially conflicting views of the conditions in Indonesia.
The order shall be included on remand.
Ticoalu's brother's affidavit and asylum application
should also be reviewed on remand. Although the affidavit and
application were available at the time of Ticoalu's final hearing,
these documents did not become material to Ticoalu's claim until
his brother was granted asylum. The order granting asylum to
Ticoalu's brother gave new weight to the assertions of these
documents. The bench is likely to benefit from their inclusion on
remand.
III. Conclusion
The BIA's order is affirmed in part and reversed in part.
The case is remanded in accordance with this opinion.
Affirmed in part, Reversed in part, and Remanded.

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