David Ledesma Ramirez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID LEDESMA RAMIREZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1880
Agency No.
A087-967-511
MEMORANDUM0F
*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 11, 20231 F
**
San Francisco, California
Before: GOULD, KOH, and DESAI, Circuit Judges.
David Ledesma Ramirez, a citizen of Mexico, petitions this court for review
of the Board of Immigration Appeals (“BIA”) decision affirming the immigration
judge’s (“IJ”) denial of withholding of removal. On appeal to the BIA, Mr. Ramirez
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-1880
argued that the IJ erred by finding no nexus between his alleged fear of persecution
and a protected ground. The BIA affirmed the IJ’s decision, finding no clear error.
We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand for
proceedings consistent with this disposition.
We review whether the BIA applied the correct standard of review de novo.
Soto-Soto v. Garland, 1 F.4th 655, 659 (9th Cir. 2021). The BIA concluded that the
IJ’s nexus determination was not clearly erroneous and that Mr. Ramirez failed to
meet his burden of proof for withholding of removal. But following the BIA’s
decision and the briefing in this case, this court held that the BIA must review the
IJ’s ultimate nexus determination de novo.2F
1 Umana-Escobar v. Garland, 69 F.4th
544, 552–53 (9th Cir. 2023). Like in Umana-Escobar, the BIA’s decision here
provides “insufficient indication . . . that the BIA’s clear error review pertained to
the IJ’s factual determinations relating to the lack of persecutory motive, as opposed
to the ultimate nexus determination.” Id. Thus, remand is required so the BIA can
apply the proper standard of review. Id.
The petition is GRANTED AND REMANDED.2
1 We can exercise discretion to consider this issue even if it was forfeited. See
United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990) (holding courts may
consider waived issue that “arises while the appeal is pending because of a change
in the law”); Wong v. Flynn-Kerper, 999 F.3d at 1214 n.11 (9th Cir. 2021) (holding
courts may consider waived issue that is pure question of law).
2 The parties shall bear their own costs.

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