When the BIA Misapplies Clear-Error Review, the Tenth Circuit May Reinstate an IJ’s Asylum Grant Without Remand

Introduction

In Ramos v. Bondi, the Tenth Circuit issued a precedential opinion that does two important things in immigration adjudication. First, it rigorously enforces the Board of Immigration Appeals’ (BIA) obligation to review immigration judge (IJ) factual findings under the deferential “clear error” standard prescribed by 8 C.F.R. § 1003.1(d)(3)(i), rather than reweighing evidence de novo. Second, in the unusual procedural posture presented—after a decade of litigation, a fully developed record, and the government’s refusal to defend the BIA’s reasoning—the court applied a futility exception to the ordinary remand rule and instructed the BIA to reinstate the IJ’s asylum grant without another remand.

The case arises from the asylum application of Modesta Ramos Ramos and her two minor sons, targeted in Honduras after the murder of Ms. Ramos’s partner, Arturo Robles. An IJ twice granted asylum (2014 and 2019), but the BIA twice reversed, with the most recent panel in June 2023 finding “clear error” in three IJ findings: (1) nexus to a family-based particular social group (PSG), (2) the unreasonableness of internal relocation, and (3) the Honduran government’s inability or unwillingness to protect. The government declined to defend the BIA’s reasoning on appeal and asked the court to remand to let the Board “reconsider.” The Tenth Circuit rejected that request, vacated the BIA’s order, and ordered reinstatement of the IJ’s 2019 asylum grant.

Summary of the Opinion

The court held that the BIA misapplied the clear-error standard required by 8 C.F.R. § 1003.1(d)(3)(i) by reweighing evidence and misconstruing the IJ’s findings on nexus, internal relocation, and government protection.
Applying the correct standard, the court concluded the IJ’s findings were “permissible” views of the record and therefore not clearly erroneous.
Given the decade-long proceedings, a fully developed record, and the government’s decision not to defend the BIA’s decision, the court found remand would be futile and ordered the BIA to reinstate the IJ’s asylum grant.
On jurisdiction, the court declined to decide which of two filed petitions (after a BIA order and after a subsequent IJ removal order) furnished review; one indisputably did, and consolidation principles allowed review of the BIA’s 2023 decision. The court noted exhaustion is nonjurisdictional and waived by the government, and the 30-day filing rule is nonjurisdictional under the Supreme Court’s decision in Riley v. Bondi.

Factual and Procedural Background

Ms. Ramos, a Honduran national, fled to the United States in 2014 after her partner, Arturo Robles, was lured out of their home by an acquaintance, “Jonis,” and murdered. After the murder, Jonis watched and threatened Ms. Ramos and her two younger children (Robles’s biological children), implying they would “become like” their father. Police inaction and Jonis’s apparent impunity, coupled with country-condition evidence about gang reach and state weakness, led Ms. Ramos to seek asylum for herself and her children.

2014: IJ grants asylum, finding Ms. Ramos credible, recognizing the PSG as “nuclear family of Arturo,” and concluding nexus, inability/unwillingness of the government to protect, and no reasonable internal relocation.
2015: BIA reverses and remands for fuller explanation on nexus, internal relocation, and government protection.
2019: After additional evidence and hearings (including expert Dr. Elliott Young), IJ again grants asylum, elaborating on the three disputed grounds.
2023: A three-judge BIA panel vacates the grant, finding clear error in all three IJ findings and remands solely for CAT proceedings.
2023–2024: Ms. Ramos files two petitions for review—one after the 2023 BIA order, and one after withdrawing CAT to facilitate a final IJ removal order in March 2024.
On appeal: The government files a late motion to remand for the BIA to “reconsider” but does not defend the BIA’s decision on the merits.

Analysis

Precedents Cited and Their Influence

United States v. U.S. Gypsum Co. and Anderson v. Bessemer City: The court anchors “clear error” in these foundational cases, emphasizing that reversal requires a “definite and firm conviction” of mistake, and that where the factfinder’s account is “plausible,” reversal is improper. This frames the entire review of the BIA’s role.
8 C.F.R. § 1003.1(d)(3)(i) and the EOIR 2002 rulemaking: The BIA’s own regulation mandates clear-error review of IJ fact-finding, designed to avoid duplicative de novo reweighing. The court applies the Accardi principle to hold the BIA to its regulation.
Kabba v. Mukasey (10th Cir.): Confirms the court reviews de novo whether the BIA actually applied clear-error review and rejects BIA factfinding disguised as appellate review—a central blueprint for the court’s analysis here.
Estrada-Martinez v. Lynch and F.J.A.P. v. Garland (7th Cir.): The court adopts practical guideposts for detecting de novo review masquerading as clear-error review: failing to grapple with the IJ’s key findings, reweighing facts, or omitting a reasoned explanation tied to the record.
INS v. Ventura and Gonzalez v. Thomas: The “ordinary remand rule” usually counsels sending issues to the agency in the first instance. The Tenth Circuit distinguishes these cases because the BIA had already addressed the issues and because remand would be futile here.
Zapata-Chacon v. Garland (10th Cir.) and other circuits (Granados Arias; Ghebremedhin; Hussain; Yusupov): Recognize that remand is not required when governing law compels a particular outcome; the Tenth Circuit applies this futility doctrine to order reinstatement.
Riley v. Bondi (U.S. 2025) and Santos-Zacaria v. Garland (U.S. 2023): Provide jurisdictional guardrails. The § 1252(b)(1) 30-day deadline is nonjurisdictional, and exhaustion is nonjurisdictional and may be waived—both relevant to the court’s threshold rulings.
Nasrallah v. Barr and INS v. Chadha: Support consolidation and confirm that review of the BIA’s order is encompassed within appellate scrutiny of the “final order of removal.”

Legal Reasoning

The court’s legal analysis proceeds in two phases: (1) diagnosing the BIA’s legal error in the standard of review, and (2) deciding whether remand is necessary.

1) Clear-error means deference to the IJ’s permissible views of the evidence

The BIA correctly quoted the clear-error standard but failed to apply it in substance. The court identifies three recurring defects—each independently inconsistent with clear-error review:

Mischaracterization of the IJ’s findings and the record (e.g., the BIA treated the IJ as relying on “timing” between Ms. Ramos’s own past harm and threats, but the IJ tied timing to Robles’s murder and ensuing threats).
Reweighing evidence and substituting the Board’s view (e.g., calling threats “extremely vague” and preferring that inference over the IJ’s plausible view supported by testimony and context).
Ignoring or discounting key record evidence credited by the IJ (e.g., disregarding Dr. Young’s evidence of countrywide gang reach; conflating “membership” with “connections” to organized crime; downplaying police indifference and corruption evidence).

Applying Anderson and Kabba, the court reiterates that if the IJ’s view is a “permissible” reading of the evidence, it cannot be “clearly erroneous,” even if the BIA would have decided differently. On the three disputed issues:

Nexus to the family-based PSG: The IJ permissibly relied on circumstantial evidence—the threats’ references to Robles, their onset post-murder, and their focus on “everyone” within Robles’s nuclear family but not beyond. Elias-Zacarias allows circumstantial proof of motive. The BIA’s contrary view was a reweighing of the record.
Internal relocation: The IJ permissibly relied on country-conditions evidence about gang networks’ national reach and Jonis’s connections and impunity, concluding there was nowhere safe for Ms. Ramos. The BIA’s insistence on proof of Jonis’s “membership” missed the IJ’s actual finding that his “connections” and notoriety sufficed.
Government unable or unwilling to protect: Credited testimony that police would not take a report and country evidence of corruption and incapacity supported the IJ’s finding. The BIA’s view that these were not “the sort of threats” police could address was a merits determination, not clear-error review.

2) Remand would be futile; reinstatement is ordered

Although courts ordinarily remand to the agency (Ventura/Thomas), remand is unnecessary where application of the correct legal principles “could lead only to the same conclusion.” The court found:

The record is fully developed after years of proceedings and two IJ hearings.
The government did not defend any aspect of the BIA’s analysis and merely sought a remand to “reconsider.”
Applying the correct clear-error standard compels the conclusion that the IJ’s findings were permissible; no further factfinding or agency expertise is needed on that legal question.
The extraordinary duration of the case—over a decade—justifies ending the litigation now; the IJ had already exercised asylum discretion in favor of Ms. Ramos twice, and the government did not argue otherwise.

Consequently, the court vacated the BIA’s 2023 order and remanded with instructions to reinstate the IJ’s 2019 grant of asylum. The government’s late-filed motion to remand (outside 10th Cir. R. 27.3’s 14-day window) was denied as moot; although the court could consider the arguments via the merits brief, it rejected them on the merits.

Impact

Clearer, stricter enforcement of the BIA’s standard of review: The decision is a forceful reminder that the BIA cannot engage in de novo reweighing under the guise of clear-error review. Expect more rigorous appellate scrutiny when the Board departs from § 1003.1(d)(3)(i).
Concrete guideposts for practitioners: The court’s adoption of the Seventh Circuit’s “telltales” of de novo review will be widely cited: ignoring IJ’s key findings, reweighing facts, and failing to tie alleged error to record implausibility.
Futility-based reinstatement as a real remedy: In exceptional cases—fully developed records, clear legal errors, prolonged delays, and no need for agency expertise—courts may order reinstatement of relief rather than remand. This meaningfully limits “remand as default” where it would only prolong proceedings.
Asylum elements reaffirmed: The opinion confirms that circumstantial evidence can establish nexus; that internal relocation must be assessed against evidence of nationwide gang reach and individual vulnerability; and that “unable or unwilling” can be shown through credible testimony and corroborating country conditions.
Procedural clarifications: The court’s treatment of dual petitions, consolidation under § 1252(b)(9), nonjurisdictional timeliness (Riley), and waivable exhaustion (Santos-Zacaria) offers a roadmap for managing complex procedural postures in removal litigation.

Complex Concepts Simplified

Clear-error vs. de novo review:
- Clear error: The appellate body defers to the factfinder. It can reverse only if it has a “definite and firm conviction” a mistake occurred. If the finding is a “permissible” view of the evidence, it must stand.
- De novo: The appellate body freely reweighs evidence and reaches its own conclusions. Under § 1003.1(d)(3)(i), the BIA may not do this with IJ factfinding.
Particular Social Group (PSG): One of five protected grounds for asylum. Family ties can constitute a PSG; here, the IJ recognized “the nuclear family of Arturo” as the relevant PSG. The court did not need to revisit PSG cognizability on appeal because the case turned on misapplication of clear-error review.
Nexus: The protected ground must be at least “one central reason” for the persecution. Circumstantial evidence—like timing, content of threats, and who is targeted—can establish motive.
Internal Relocation: If the applicant can avoid persecution by moving within the country and it would be reasonable to expect that, asylum fails. The analysis considers whether the risk is localized or countrywide and the applicant’s circumstances (e.g., single parent, known to persecutors).
Unable or Unwilling to Protect: If persecution is by non-state actors, the applicant must show the government cannot or will not protect them. Evidence includes police inaction, corruption, and systemic weakness.
Ordinary Remand Rule and Futility: Normally, courts remand to agencies to decide issues in the first instance. But if the record is complete and the outcome is compelled, courts may bypass remand to avoid pointless delay.
Final Order and Petitions for Review: Only “final orders of removal” are reviewable, and challenges are consolidated. The 30-day deadline is nonjurisdictional (Riley), and exhaustion is nonjurisdictional and waivable (Santos-Zacaria).

Practice Notes and Takeaways

Build a robust IJ record: Credibility findings, detailed factual analyses linking evidence to each asylum element, and expert country-conditions reports meaningfully insulate IJ decisions under clear-error review.
Spot and challenge BIA overreach: On appeal, emphasize when the Board misstates IJ findings, ignores key evidence, or reweighs the record—each signals misapplication of § 1003.1(d)(3)(i).
Leverage futility in extraordinary cases: Where the agency already passed on the issues, the record is complete, and governing law compels the result, seek direct reinstatement rather than another remand.
Mind procedural posture: File protective petitions when finality is uncertain; consolidation will often permit review of upstream BIA orders. Preserve arguments about nonjurisdictional timeliness and exhaustion waivers where the government concedes.
Government motions to remand: Late, unexplained requests to “reconsider” are disfavored—particularly where the agency has fully articulated its reasoning and the record is closed.

Conclusion

Ramos v. Bondi delivers a powerful and clarifying statement on the BIA’s duty to apply true clear-error review to IJ factual findings. The opinion reinforces that if an IJ’s finding is a plausible reading of the record, the BIA cannot supplant it with its own view. Beyond that doctrinal reinforcement, the court recognizes a meaningful futility exception to the ordinary remand rule: when the record is complete, agency expertise adds nothing, and the correct application of law compels a single outcome, courts may order reinstatement of relief rather than extend already-protracted proceedings.

In the broader legal context, the decision strengthens fidelity to the Accardi principle, aligns BIA practice with the Supreme Court’s clear-error jurisprudence, and promotes finality where delay has become its own form of prejudice. For asylum litigants, it provides both doctrinal clarity and a practical path to relief when the BIA strays from its deferential role. For the agency, it is a reminder that careful adherence to the standard of review is not merely formal—it is outcome determinative.