                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit


No. 04-1623

                          LAHESNE BELHOUCHET,

                                Petitioner,

                                      v.

              ALBERTO R. GONZALES, ATTORNEY GENERAL,

                                Respondent.


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


                                   Before

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



     Ilana Greenstein, Jeremiah Friedman, Harvey Kaplan, Maureen
O'Sullivan and Kaplan, O'Sullivan & Friedman, on brief for
petitioner.
     Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez
Wright, Assistant Director, Eric W. Marsteller, U.S. Department of
Justice, on brief for respondent.



                              June 15, 2005
             Per Curiam.     Lahesne Belhouchet, a citizen of Algeria,

appeals from a decision of the Board of Immigration Appeals (BIA)

finding him ineligible for asylum.            For the following reasons, we

vacate the BIA's decision and remand this case to the BIA for

further proceedings.

             Belhouchet applied for asylum on two grounds: (1) that,

in the past, he was persecuted on account of his political opinion

and membership in a particular social group, and (2) that, if

forced to return to Algeria, he feared future persecution on those

accounts.     See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1); see also 8

C.F.R. § 1208.13(a); Ravindran v. INS, 976 F.2d 754, 758 (1st Cir.

1992).      The Immigration Judge found Belhouchet not credible on

either point and so denied him asylum, including as a discretionary

matter.      On Belhouchet's appeal from the Immigration Judge's

decision, the BIA apparently assumed that Belhouchet was credible

but nevertheless concluded that he had failed to meet his burden of

proving that his past persecution was on account of a protected

ground.      However, the BIA failed to address Belhouchet's claim

that   he   has   a    well-founded    fear   of   future   persecution   on    a

protected ground.

             It is the BIA's decision, the final agency order, that

this court reviews.       Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st

Cir.   2004).         Although   the   standard    of   appellate   review     is

deferential, INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), we


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may "judge the action of [the BIA] based only on reasoning provided

by the agency,' . . . and 'that basis must be set forth with such

clarity as to be understandable."             Mihaylov v. Ashcroft, 379 F.3d

15, 20-21 (1st Cir. 2004) (internal citations omitted).                 Where the

BIA "fails to state 'with sufficient particularity and clarity the

reasons for denial of asylum' or otherwise to 'offer legally

sufficient reasons for its decision,'" id. at 23-24 (quoting

Gailius v. INS, 147 F.3d 34, 46-47 (1st Cir. 1994)), we think it

best to vacate and remand the decision to the agency to address

Belhouchet's future persecution claim in the first instance. In so

doing, we intimate no view on the merits of that claim or on

Belhouchet's credibility.1

           In   light    of    that   disposition,       we    need   not   address

Belhouchet's    appeal    from    the     BIA's    denial     of   withholding   of

deportation or his motion to remand the case to the BIA so that he

can seek   adjustment     of     status    based    on   his   wife's   immigrant

worker's visa.2


     1
      The recent amendments to the Immigration and Nationality Act,
8 U.S.C. § 1158(b), enacted by the Real ID Act of 2005, Pub. Law
No. 109-13, concerning "mixed-motive" cases, corroboration, and
credibility determinations, are not applicable since those
provisions apply only to applications for asylum and other relief
from removal made on or after May 11, 2005.           Real ID Act,
§ 101(h)(2).
     2
      In the course of briefing his motion to remand, Belhouchet
argued, for the first time, that the Executive Office of Asylum
Review lacked jurisdiction over his asylum proceedings because no
charging document was served on the immigration judge. Assuming,
without deciding, that this argument was not waived by Belhouchet's

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          The order of the BIA is vacated, and the case is remanded

to the BIA for further proceedings consistent with this opinion.

The motion to remand on different grounds is denied, without

prejudice, as moot.   See Local R. 27(c).




failure to raise it at the administrative level or in his initial
appellate brief, the argument is frivolous. The record shows that
this matter was referred to the immigration judge by the filing of
Form I-863, Notice of Referral to Immigration Judge, which confers
jurisdiction on the immigration court. See 8 C.F.R. § 1208.2(c)(1).


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