Ponciano Adonis Rangel v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PONCIANO ADONIS RANGEL,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 06-71829
Agency No. A041-880-728
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Ponciano Adonis Rangel, a native and citizen of the Philippines, petitions for
review of the Board of Immigration Appeals’ order summarily affirming an
immigration judge’s (“IJ”) order denying his application for withholding of
removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo
FILED
JUL 06 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

06-71829 2
questions of law, Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010), and we
grant the petition for review.
Because Rangel’s plea and conviction were entered before the Attorney
General issued Matter of Y-L-, A-G-, & R-S-R, 23 I. & N. Dec. 270, 276 (BIA
2002), the IJ improperly applied the presumption that drug trafficking offenses are
particularly serious crimes. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 953
(9th Cir. 2007) (holding that the Matter of Y-L-, A-G-, & R-S-R particularly serious
crime presumption cannot be applied retroactively). In analyzing whether
Rangel’s offense is a particularly serious crime, the IJ instead must apply the
case-by-case analysis set out in Matter of Frentescu, 18 I. & N. Dec. 244
(BIA 1982), superseded by statute in part, 8 U.S.C. § 1253(h)(1991), as later
modified by the BIA. See Anaya-Ortiz, 594 F.3d at 679-80 (discussing the
Frentescu case-by-case analysis).
Contrary to the government’s contention, the IJ did not, in her decision,
make an alternative finding that Rangel failed to establish the clear probability of
persecution necessary to qualify for withholding of removal.
We remand for further proceedings consistent with this decision. See INS v.
Ventura, 537 U.S. 12, 16-17 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.

-- 2 of 2 --