Futility Trumps the Ordinary-Remand Rule: Tenth Circuit Polices BIA’s Clear-Error Review and Orders Reinstatement of Asylum

Introduction

Ramos v. Bondi is a published decision of the U.S. Court of Appeals for the Tenth Circuit addressing the limits on the Board of Immigration Appeals’ (BIA) review of an Immigration Judge’s (IJ’s) factual findings and the proper judicial remedy when those limits are transgressed. The case involves Honduran national Modesta Ramos Ramos and her two minor children, whose decade-long asylum proceedings saw two IJ grants of asylum and two BIA reversals. In its second reversal, the BIA concluded that three critical IJ findings—nexus, internal relocation, and government inability or unwillingness to protect—were clearly erroneous.

On petition for review, Ramos argued that the BIA misapplied the clear-error standard codified in 8 C.F.R. § 1003.1(d)(3)(i). The government declined to defend the BIA’s analysis, instead requesting an open-ended remand for “reconsideration.” The Tenth Circuit rejected that request. It held that the BIA impermissibly reweighed the evidence and misapprehended the IJ’s findings; and it further held that, under the unique posture of the case, remand would be futile. The court granted the petition for review, vacated the BIA’s 2023 order, and remanded with instructions to reinstate the IJ’s 2019 grant of asylum.

The decision establishes and clarifies two important propositions:

What “clear-error” review requires of the BIA under § 1003.1(d)(3)(i), with concrete guideposts for identifying when the Board has slipped into de novo reweighing.
That the court of appeals may bypass the ordinary-remand rule and order reinstatement of an IJ’s grant where proper application of the clear-error standard compels the conclusion that the IJ’s findings are permissible and remand would be futile.

Summary of the Opinion

The Tenth Circuit first resolved threshold jurisdiction pragmatically. Ramos filed two petitions for review—one within 30 days of the BIA’s June 2023 decision and a second within 30 days of the IJ’s March 2024 final removal order (entered after she withdrew an unadjudicated CAT claim to obtain finality). The court declined to decide which agency decision constituted the “final order of removal” because either petition sufficed to confer jurisdiction to review the BIA’s June 2023 order. The exhaustion requirement did not bar review because there was nothing left to exhaust after the IJ’s 2024 order, and in any event, exhaustion is nonjurisdictional and was waived by the government.

Turning to the merits, the court held that the BIA misstated or ignored key IJ findings, reweighed evidence, and failed to show that any IJ finding was “pellucidly” wrong. Applying the Anderson v. Bessemer City clear-error framework, the court concluded:

Nexus: The IJ permissibly found that threats were on account of Ramos’s membership in the family of her murdered partner, relying on credible testimony, timing, content of threats, and the scope of targeted family members.
Internal relocation: The IJ permissibly determined that relocation within Honduras was unreasonable given the nationwide reach of MS-13 affiliates and the persecutor’s connections and impunity.
Government protection: The IJ permissibly found Honduras unable or unwilling to protect Ramos, based on her experience with police non-responsiveness, evidence of corruption and inefficiency, high crime rates, and expert testimony.

Because proper application of clear-error review compelled the conclusion that the IJ’s findings were permissible, further agency proceedings would be futile. The court therefore vacated the BIA’s order and remanded with instructions to reinstate the IJ’s grant of asylum, rejecting the government’s late and non-confessional request for a general remand to the BIA.

Analysis

1) Precedents Cited and How They Shaped the Decision

Anderson v. City of Bessemer City, 470 U.S. 564 (1985) and United States v. U.S. Gypsum Co., 333 U.S. 364 (1948): These cases supply the definition of clear error—reversal is warranted only if the reviewing body is left with a definite and firm conviction of mistake, and a “permissible view of the evidence” cannot be clearly erroneous. The Tenth Circuit used these standards to police the BIA’s overreach.
8 C.F.R. § 1003.1(d)(3)(i) and Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54878 (Aug. 26, 2002): The regulation binds the BIA to clear-error review of IJ fact findings; the preamble (citing Anderson) underscores that the IJ hearing is the “main event,” not a “tryout on the road,” and appellate reweighing adds negligible accuracy at significant cost.
Kabba v. Mukasey, 530 F.3d 1239 (10th Cir. 2008): The Tenth Circuit’s leading case on the BIA’s duty to apply clear-error review—courts assess de novo whether the Board actually applied clear error and did not make its own factual findings. The court echoed Kabba’s admonition that the BIA cannot reweigh evidence or ignore IJ findings.
F.J.A.P. v. Garland, 94 F.4th 620 (7th Cir. 2024) and Brito v. Garland, 40 F.4th 548 (7th Cir. 2022) (with Soto-Soto v. Garland, 1 F.4th 655 (9th Cir. 2021)): The court adopted as “instructive” the Seventh Circuit’s guideposts identifying when the BIA, while purporting to apply clear-error review, actually conducts prohibited de novo review: failing to address key IJ findings, reweighing evidence, or failing to explain how alleged errors reflect implausibility or lack of support.
INS v. Elias-Zacarias, 502 U.S. 478 (1992): Confirms that persecutor motive (nexus) may be proven by circumstantial evidence—critical because the IJ relied on such evidence (timing, content, scope of threats).
Ritonga v. Holder, 633 F.3d 971 (10th Cir. 2011): Articulates internal-relocation principles in future-persecution asylum claims; the IJ’s relocation finding tracked these principles.
Wiransane v. Ashcroft, 366 F.3d 889 (10th Cir. 2004) and Batalova v. Ashcroft, 355 F.3d 1246 (10th Cir. 2004): Establish that persecution by non-state actors suffices where the government is unable or unwilling to control them.
INS v. Ventura, 537 U.S. 12 (2002) and Gonzalez v. Thomas, 547 U.S. 183 (2006): Stand for the ordinary-remand rule; the Tenth Circuit distinguished them because the BIA had already decided the clear-error issue “in the first instance,” and the outcome was compelled—making remand unnecessary.
Futility line of cases supporting bypass of remand where the outcome is a foregone conclusion: Zapata-Chacon v. Garland, 51 F.4th 1191 (10th Cir. 2022); Granados Arias v. Garland, 69 F.4th 454 (7th Cir. 2023); Ghebremedhin v. Ashcroft, 392 F.3d 241 (7th Cir. 2004); Hussain v. Gonzales, 477 F.3d 153 (4th Cir. 2007); Yusupov v. Att’y Gen., 650 F.3d 968 (3d Cir. 2011); Kang v. Att’y Gen., 611 F.3d 157 (3d Cir. 2010); Mahmood v. Gonzales, 427 F.3d 248 (3d Cir. 2005). The court leaned on these to justify ordering reinstatement.
Jurisdiction and procedural authorities: 8 U.S.C. § 1252(a)(1), (b)(1), (b)(9); Nasrallah v. Barr, 590 U.S. 573 (2020); INS v. St. Cyr, 533 U.S. 289 (2001); INS v. Chadha, 462 U.S. 919 (1983); Santos-Zacaria v. Garland, 598 U.S. 411 (2023) (exhaustion is nonjurisdictional and waivable); Riley v. Bondi, 145 S. Ct. 2190 (2025) (the 30-day petition deadline is nonjurisdictional and may be waived); and 10th Cir. R. 27.3 (timing for motions to remand).

2) The Court’s Legal Reasoning

a) Jurisdiction and Finality

The court avoided deciding whether the BIA’s 2023 decision or the IJ’s 2024 order was the “final order of removal.” Either way, Ramos filed a timely petition within 30 days. Under § 1252(b)(9) and Nasrallah, all issues affecting the validity of the final removal order—including the BIA’s 2023 clear-error analysis—were properly within the court’s scope. The government waived any timeliness challenge to the second petition, and under Riley, the 30-day deadline is nonjurisdictional and waivable. As to exhaustion, following Santos-Zacaria, the requirement is nonjurisdictional and was waived; moreover, there was nothing left to exhaust after the IJ entered the 2024 order.

b) What “Clear Error” Requires—and What It Forbids

The court grounded its analysis in the Anderson/U.S. Gypsum standard and the agency’s own regulation, § 1003.1(d)(3)(i), which prohibits de novo review of IJ factfinding. A factual finding stands unless the reviewer is firmly convinced a mistake was made. Critically, if an IJ’s view of the evidence is a “permissible” one, it cannot be clearly erroneous—even if a reviewer might have weighed the evidence differently.

The court found instructive three indicators (adopted from Seventh and Ninth Circuit cases) that the BIA has slipped into prohibited de novo review while purporting to apply clear-error review:

Failure to address the IJ’s key factual findings.
Giving more weight to certain facts than others (reweighing).
Failure to explain how supposed errors show lack of logic, plausibility, or support in the record.

c) How the BIA Misapplied Clear Error on Each IJ Finding

Nexus to a family-based PSG: The IJ found that Jonis’s threats targeted Ramos and her children because they were the family of the murdered partner, Arturo. The IJ relied on timing, content of threats referencing Arturo, and the scope of threatened persons (everyone inside, no one outside, the family). The BIA mischaracterized the IJ’s timing analysis and improperly dismissed the circumstantial evidence as “vague,” effectively reweighing. Under Elias-Zacarias, circumstantial evidence suffices; the IJ’s view was plainly permissible.
Internal relocation: The IJ found relocation unreasonable because MS-13 affiliates have national reach; Jonis had connections and impunity; and Ramos’s status heightened her vulnerability. The BIA misconstrued the IJ’s finding as resting on Jonis’s formal gang membership (rather than his connections), and it overlooked the IJ’s record-based inferences. This was reweighing and misapprehension of the IJ’s actual findings.
Government unable or unwilling to protect: The IJ credited testimony that police refused to listen or act, tied to broader corruption and inefficiency supported by country reports and expert testimony. The BIA acknowledged contrary country-conditions evidence (that Honduras combats gangs) and concluded the threats were not the sort police could act upon. That analysis reweighed dueling evidence instead of asking whether the IJ’s finding was a permissible view.

d) Remedy: Futility Overrides the Ordinary-Remand Rule

The government invoked Ventura and Thomas to argue for remand. The court disagreed because those cases require remand when the agency has not addressed an issue in the first instance. Here, the BIA did address clear error; it simply did so incorrectly. Remand is unnecessary where application of the correct legal principles to the record can lead to only one outcome. Citing a cross-circuit line of authority, the court held that remand would be futile because the record compels the conclusion that the IJ’s findings were not clearly erroneous.

The court distinguished its prior practice in cases like Kabba and Villegas-Castro (where it remanded after identifying a clear-error misapplication), noting three unique features here: the government did not defend the BIA’s analysis; the outcome was beyond doubt; and the case had already spanned more than a decade. Given those circumstances, the court directed reinstatement of the IJ’s asylum grant rather than offering the BIA a third bite at the apple.

3) Impact

Ramos v. Bondi has immediate and practical consequences for immigration adjudication in the Tenth Circuit:

Stricter policing of BIA review: The decision reinforces that the BIA must adhere to clear-error review of IJ factfinding. Indicators of drift into de novo review—reweighing, mischaracterizing, or ignoring IJ findings—will not be tolerated.
Expanded remedial authority in exceptional cases: Where proper application of clear-error principles compels only one outcome, the Tenth Circuit may bypass the ordinary-remand rule and order reinstatement of relief. This is especially likely when the record is complete, the BIA has already addressed the issue, and further proceedings would be a “mere formality.”
Signals for litigation strategy: Petitioners challenging BIA reversals on clear-error grounds should develop the record around IJ credibility and factual findings, identify de novo review telltales, and—where appropriate—argue futility to seek reinstatement rather than remand. The government should expect a skeptical eye if it declines to defend the BIA’s reasoning and seeks an untimely remand without confessional error.
Procedural clarity on multiple petitions and consolidation: Filing protective or subsequent petitions is permissible; courts may avoid technical finality contests where either petition suffices and all issues “arising from” removal are consolidated under § 1252(b)(9). Timeliness under § 1252(b)(1) may be waived post-Riley.
Institutional incentives: By underscoring the high cost of repeated BIA reversals that misapply clear error, the opinion encourages the Board to internalize the Anderson framework and the 2002 rulemaking’s “main event” philosophy—reducing duplicative appellate fact review.

Complex Concepts Simplified

Clear-error review: A highly deferential standard. An IJ’s factual finding stands unless the reviewer is firmly convinced a mistake was made. If the IJ’s view is one permissible way to read the evidence, it is not clearly erroneous—even if another view is also reasonable.
De novo review vs. clear error: De novo means “fresh look,” with freedom to reweigh evidence. Clear error forbids that. The BIA must not pick its preferred facts or substitute its weighing for the IJ’s.
Ordinary-remand rule: Appellate courts generally remand to agencies to decide issues the agency has not yet addressed. But remand is not required where the agency already addressed the issue and the correct legal rule compels only one outcome (futility).
Nexus: To win asylum, a protected ground (like membership in a particular social group) must be “at least one central reason” for the persecution. Motive may be proved by circumstantial evidence (timing, statements, patterns).
Internal relocation: A fear of future persecution is not “well-founded” if the applicant could reasonably and safely live elsewhere in the home country. Evidence of nationwide gang reach and specific targeting can defeat relocation.
Government “unable or unwilling” to protect: When non-state actors are the persecutors, the applicant must show the home government cannot or will not control them. Evidence includes personal experiences with law enforcement, expert testimony, and country conditions.
Final order of removal and multiple petitions: Sometimes uncertainty arises about when a removal order becomes “final,” especially if claims (like CAT) remain pending. Filing within 30 days of each plausible final order can protect review. Courts may consolidate review of all issues arising from removal proceedings.
Exhaustion: Typically, an issue must be presented to the BIA before judicial review. But the requirement is nonjurisdictional; the government can waive it. If nothing is left to appeal at the agency, exhaustion is satisfied.

Conclusion

Ramos v. Bondi is a forceful reaffirmation that the BIA’s role in reviewing IJ factfinding is tightly cabined by regulation and by the Anderson clear-error framework. The Tenth Circuit found that the BIA overstepped—mischaracterizing the IJ’s findings, reweighing the evidence, and failing to demonstrate any clear mistake on nexus, internal relocation, or government protection. Equally significant, the court exercised its remedial discretion to bypass a remand where it would be futile, directing reinstatement of an IJ’s asylum grant after protracted agency proceedings.

For the law of asylum and administrative review in the Tenth Circuit, the decision delivers two durable messages: first, clear-error review means what it says—permissible IJ readings of the record must stand; and second, where the record compels only one legally correct outcome, courts will not prolong the process in the name of the ordinary-remand rule. The result serves both accuracy and efficiency: it secures protection for an applicant whose entitlement was twice recognized by the IJ and reinforces disciplined adherence by the BIA to the limits of its appellate role.