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Keywords

appealhearingmotiondue processasylummateriality
hearingmotiondue processasylum

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Ticoalu v. Gonzales

Facts

Ticoalu was admitted to the United States as a non-immigrant in March 2001 and was placed in removal proceedings in June 2002. He filed an application for asylum in July 2002, which was rejected as untimely. The IJ treated his asylum application as a request for withholding of removal, where Ticoalu claimed he would be harmed in Indonesia due to his Christian faith. The IJ concluded that Ticoalu was not targeted for harm and that he had a safe haven in Manado, Indonesia. Ticoalu appealed the IJ's decision and submitted a motion to remand while his appeal was pending, citing new evidence of worsening conditions in Indonesia.

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.

Issue

Whether the BIA's denial of Ticoalu's motion to remand constituted an abuse of discretion and whether the denial of his asylum application violated due process.

Whether the BIA's denial of Ticoalu's motion to remand constituted an abuse of discretion and whether the denial of his asylum application violated due process.

Rule

The BIA may grant a motion to remand based on new facts if the evidence is material and was not available and could not have been discovered or presented at the former hearing. Due process rights do not accrue to discretionary forms of relief, such as asylum.

The BIA may 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.' 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.

Analysis

The court reviewed the BIA's denial of Ticoalu's motion for remand for abuse of discretion. It found that the BIA's dismissal of a timely article reporting violence in central Sulawesi was unreasonable, as it could undermine the IJ's conclusion that northern Sulawesi was a safe haven. The court also noted that the BIA failed to address the materiality of the asylum granted to Ticoalu's brother, which could be relevant to Ticoalu's claim. The court concluded that the BIA's reasoning was insufficient and warranted a remand for further consideration.

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.

Conclusion

The BIA's order was affirmed in part and reversed in part, with the case remanded for further proceedings.

The BIA's order is affirmed in part and reversed in part. The case is remanded in accordance with this opinion.

Who won?

Ticoalu prevailed in part, as the court reversed the BIA's denial of his motion to remand, finding that the BIA's reasoning was insufficient regarding the evidence presented.

Ticoalu prevailed in part, as the court reversed the BIA's denial of his motion to remand, finding that the BIA's reasoning was insufficient regarding the evidence presented.

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