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 nonimmigrant 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. AguirreAguirre, 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.