          United States Court of Appeals
                      For the First Circuit


No. 13-2223

                           DAVID PEREZ,

                           Petitioner,

                                v.

      ERIC H. HOLDER, JR., United States Attorney General,

                           Respondent.


                 PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS


                              Before

                        Lynch, Chief Judge,
               Lipez and Thompson, Circuit Judges.


     Nancy J. Kelly, John Willshire Carrera, and Harvard
Immigration & Refugee Clinic, Greater Boston Legal Services, on
brief for petitioner.
     Elizabeth D. Kurlan, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Stuart F. Delery, Assistant
Attorney General, Civil Division, and Holly M. Smith, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.


                          July 30, 2014
            LYNCH, Chief Judge. David Perez, a native and citizen of

El Salvador, petitions for review of the August 30, 2013 order of

the Board of Immigration Appeals ("BIA") denying his motion for

reconsideration.       The order states that Perez's "motion does not

identify any error of law or fact in [the BIA's] decision or

identify any argument advanced on appeal that was improperly

overlooked by the Board," as is required for such a motion to be

granted.    See 8 C.F.R. § 1003.2(b)(1); see also In re O-S-G, 24 I.

& N. Dec. 56, 59 (BIA 2006).

            Respondent opposed the motion to reconsider before the

BIA, but did not then concede any error in the Immigration Judge's

("IJ") factfinding. However, in its briefing to us, respondent has

admirably conceded that the IJ committed a clear error of fact. It

also conceded that that erroneous finding was recited in the BIA's

May 30, 2013 order denying Perez's appeal from the denial of his

applications for asylum, withholding of removal, and protection

under the Convention Against Torture.             As respondent 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.

            Respondent has argued that the IJ's admitted error was

not material, that any error was harmless, and that Perez has

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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.             As we

said recently in Mejia v. Holder, ___ F.3d ___, 2014 WL 2872220, at

*3 (1st Cir. June 25, 2014), where the BIA has not done its own

analysis of an issue, it is not appropriate for the "government [to

attempt] to fill this gap by briefing to us its view of the issue

. . . .   [T]he BIA must do its own work."

           We grant the petition for review and remand to the BIA

for further proceedings consistent with this opinion.            See Aldana-

Ramos v. Holder, ___ F.3d ___, 2014 WL 2915920, at *5-7 (1st Cir.

June 27, 2014) (remanding asylum claim with the observation that

threats of murder can constitute persecution and that asylum is

still proper in "mixed-motive cases" provided one of the central

reasons for persecution is the protected ground).

           So ordered.




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