CA1 on IJ/BIA Errors of Fact: Perez v. Holder

"As [OIL] 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.  [OIL] has argued that the IJ's admitted error was not material, that any error was harmless, and that Perez has 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. ... We grant the petition for review and remand to the BIA for further proceedings consistent with this opinion." - Perez v. Holder, July 30, 2014.  [Hats off to Nancy J. Kelly, John Willshire Carrera, and Harvard Immigration & Refugee Clinic, Greater Boston Legal Services!]