UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

GERARDO CABALLERO-VEGA, 

 Petitioner, 

v. 

MERRICK B. GARLAND, United States 

Attorney General, 

 Respondent. 

No. 21-9506 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HOLMES, Chief Judge, and EBEL and EID, Circuit Judges.**

_________________________________ 

Gerardo Caballero-Vega,1

 a Mexican citizen, entered the United States in 1993 

without admission or parole by an immigration officer when he was eight years old. 

He was removed to Mexico in 2019. Shortly after his removal, Caballero-Vega 

* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. 

1

 Caballero-Vega’s last name is often misspelled as “Cabellero-Vega” 

throughout this litigation, including in the caption on appeal. We use the correct 

spelling in this order and judgment and direct the Clerk’s Office to correct the case 

caption as well. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 13, 2023

Christopher M. Wolpert 

Clerk of Court

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returned to the United States and applied for asylum, withholding of removal, and 

protection under the Convention Against Torture. Later that year, the Immigration 

Judge (“IJ”) granted his application for asylum, which the Department of Homeland 

Security (“DHS”) appealed to the Board of Immigration Appeals (“the BIA”). In 

2020, the BIA vacated the IJ’s decision for clear error and ordered Caballero-Vega’s 

removal to Mexico. The following year, Caballero-Vega filed a petition for review in 

this court. We reverse the BIA’s vacation of the IJ’s decision and remand the case 

for further review. 

I. 

Eight years after Caballero-Vega entered the United States, the San Francisco 

Immigration Court granted him the opportunity to depart the country voluntarily by 

2005. However, Caballero-Vega remained in the United States, and the grant became 

a final order of removal.

Caballero-Vega became a criminal informant for the San Mateo County 

District Attorney in 2012. He reported to law enforcement on the drug, firearm, and 

human trafficking conducted by Nuestra Familia, a California prison gang, as well as 

the Norteño Gang, Nuestra Familia’s “foot soldiers” in the streets. R. Vol. I at 143. 

Following his informant work, he testified against Nuestra Familia members in 

criminal court. Caballero-Vega was placed in a witness protection program during 

and after his testimony. 

In January 2019, following his arrest in Colorado, Caballero-Vega was taken 

into immigration custody and removed to Mexico. On the day of his arrival, eight 

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armed men dressed in military clothing bearing the initials of the Cartel Jalisco 

Nueva Generación cartel (“CJNG”) approached him in the street. They “demanded 

[his] identification paperwork, took pictures of his repatriation certificate, 

and . . . told [him] they would be back for him in the morning.” Id. at 72. CaballeroVega escaped and took a bus to Tijuana, Mexico, where he was again approached by 

eight men dressed in CJNG clothing. They “pushed [him] to the wall, asked who he 

was, and whether he was seeking asylum in the United States,” before taking pictures 

of his repatriation certificate. Id. at 73. However, Caballero-Vega was able to 

escape again. 

Caballero-Vega reentered the United States two months after leaving, 

presenting himself at a port of entry to apply for asylum, withholding of removal, and 

protection under the Convention Against Torture. Caballero-Vega alleged past 

persecution and a well-founded fear of persecution on account of his membership in 

particular social groups consisting of “informants who have testified in court against 

gangs” and “witnesses who have testified against gangs and come to the attention of 

the group they testified against.” Id. at 3 (quotation marks omitted). 

On November 13, 2019, the IJ granted Caballero-Vega’s application for 

asylum, finding that he had established a well-founded fear of future persecution 

based on his membership in the group of “informants who have testified in court 

against gangs.” Id. at 90. In reaching that conclusion, the IJ determined that “the 

evidence of the cooperation between the Norteño gang and Mexican cartels [is] 

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sufficient to establish the gang and cartel would be motivated to harm [CaballeroVega] on account of being an informant and witness.” Id. at 93. 

 DHS appealed the decision to the BIA. On December 15, 2020, the BIA 

sustained DHS’s appeal, vacated the IJ’s grant of Caballero-Vega’s asylum, and 

ordered Caballero-Vega’s removal to Mexico. Specifically, the BIA found that there 

was “clear error in the [IJ]’s finding that there’s a reasonable possibility that 

[Caballero-Vega’s] 2012 status as an informant and his 2013 or 2014 United States 

testimony against United States gang members will be a central reason for possible 

future harm to [him] upon removal to Mexico.” Id. at 4. The BIA maintained that 

“the [IJ’s] findings are speculative that [Caballero-Vega]—who was not threatened or 

harmed in the roughly seven years following his time as an informant and after 

having given testimony against United States gang members—would be persecuted 

by Mexican cartel members because he was an informant who testified against 

United States gang members.” Id. 

 Caballero-Vega timely filed a petition for review in this court on January 14, 

2021.

II. 

 We review the BIA’s “legal determinations de novo, and its findings of fact 

under a substantial-evidence standard.” Niang v. Gonzalez, 422 F.3d 1187, 1196 

(10th Cir. 2005) (citation omitted). Pursuant to 8 C.F.R. § 1003.1(d)(3)(i), the BIA 

may not engage in “de novo review of findings of fact determined by an [IJ],” but 

must review facts determined by the IJ for clear error. We have determined that 

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under the “rare circumstance[] . . . where an IJ makes factual credibility 

determinations which the BIA in turn rejects,” we consider “de novo whether the 

BIA, in making its own factual findings, actually reviewed the IJ’s decision only for 

clear error.” Kabba v. Mukasey, 530 F.3d 1239, 1245 (10th Cir. 2008). 

III. 

As a threshold matter, we first address the government’s argument that we may 

not review Caballero-Vega’s claim that the BIA exceeded the scope of its authority 

because he failed to initially present this claim to the BIA. The government provides 

scarce support for or explanation of this contention. We understand the government 

to be arguing that, on appeal, Caballero-Vega has challenged the standard of review 

actually applied by the BIA and, because he never presented this issue in a petition 

for rehearing or request for reconsideration with the BIA, it has not been preserved 

for our review. 

We acknowledge that “[t]he failure to raise an issue on appeal to the BIA 

constitutes failure to exhaust administrative remedies with respect to that question 

and deprives the Court of Appeals of jurisdiction to hear the matter.” Rivera-Zurita 

v. I.N.S., 946 F.2d 118, 120 n.2 (10th Cir. 1991). Indeed, as we have previously held, 

the exhaustion requirement is derived from “a fundamental principle of 

administrative law that an agency must have the opportunity to rule on a challenger’s 

arguments before the challenger may bring those arguments to court.” GarciaCarbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). 

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The government cites Sidabutar v. Gonzales to support its argument that 

Caballero-Vega’s failure to raise his claim to the BIA about the scope of its authority 

renders that claim unreviewable before us. See Resp’t Br. at 34 (citing Sidabutar v. 

Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007) (holding petitioner’s claim that the 

BIA exceeded scope of appellate review “should have been brought before the BIA in 

the first instance through a motion to reconsider or reopen” and, because it wasn’t, 

“the petitioners[] failed to exhaust administrative remedies” on it)). Although the 

government’s characterization of Sidabutar is accurate, its application of Sidabutar

to this case is not. Sidabutar’s appeal to the BIA challenged the IJ’s finding that he 

was “ineligible for asylum based on [his] failure to comply with the application’s 

one-year filing deadline.” Sidabutar, 503 F.3d at 1119. But, before this Court, he 

argued that the BIA had “improperly engaged in de novo factfinding in concluding 

[that he] did not suffer ‘past persecution’ for purposes of seeking a restriction on 

removal.” Id. at 1118. As Caballero-Vega correctly notes, whereas Sidabutar 

provided the BIA “no opportunity to address” the issue of its alleged de novo 

factfinding, Reply Br. at 2, he “has advanced the same legal theory throughout these 

proceedings,” id. at 3. 

Before the BIA, Caballero-Vega contended that the IJ’s factual findings “are 

not ‘clearly erroneous’ simply because . . . [DHS] endorses a different view of the 

evidence.” R. Vol. I at 11 (citations omitted). On appeal, his argument is the same: 

“Did the [BIA] . . . correctly apply the clear error standard where it reversed the 

Immigration Court’s nexus finding because the [BIA] endorsed a different 

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interpretation of the evidence in the record?” Pet. Br. at 11. Caballero-Vega accuses 

the BIA of having “engaged in de novo reweighing of the evidence,” id. at 17, but he 

has presented this as a criticism of the BIA’s clear-error analysis, not an allegation 

that the wrong standard of review was used. 

If Caballero-Vega were arguing that the BIA applied de novo review where 

only clear-error review was appropriate, our case law indicates he would have had to 

raise that issue to the BIA before we could hear it. However, Caballero-Vega is not 

alleging that the BIA used the wrong standard, but rather, that it wrongly concluded 

that the IJ clearly erred when it found that Caballero-Vega would face a reasonable 

possibility of future harm if he were removed to Mexico. Caballero-Vega’s reference 

to “de novo reweighing” provides an example of what he views as the BIA’s 

misapplication of the clear-error standard; it is not an assertion that the BIA applied a 

new and erroneous standard of review. See Kabba, 530 F.3d at 1244 (reviewing 

petitioner’s argument that the BIA “committed legal error by analyzing the IJ’s 

credibility determination de novo, rather than under the required clearly erroneous 

standard” without requiring a petition for rehearing or request for reconsideration). 

His brief clearly asserts the former argument. See, e.g., Pet. Br. at 16–21 

(analogizing to a Supreme Court case about whether a circuit court “properly applied 

the clearly erroneous standard of review to a petitioner’s sex discrimination claim”). 

Caballero-Vega’s argument that the BIA reached an erroneous conclusion using the 

clear-error standard of review was made before the BIA and need not have been 

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presented in a petition for rehearing or request for reconsideration for us to hear it on 

appeal.2

 

IV. 

Having established that we may properly review Caballero-Vega’s claim that 

the BIA exceeded the scope of its authority, we now consider the merits of the claim. 

Because Caballero-Vega claims that the BIA improperly rejected the IJ’s factual 

findings, we review the BIA’s decision de novo. See Kabba, 530 F.3d at 1245. This 

means that we must evaluate whether the BIA has sufficiently justified its finding 

that the IJ’s decision is clearly erroneous. See id. at 1245–49 (reviewing the BIA’s 

2

 The dissent argues that Caballero-Vega “never gave the BIA an opportunity 

to address” his claim that it incorrectly concluded that the IJ’s factual findings were 

clearly erroneous; as a result, this Court lacks jurisdiction to consider CaballeroVega’s claim. Diss. op. at 1. However, there is a key distinction between this case 

and those cited by the dissent in which this Court found that it did not have 

jurisdiction because of a failure to exhaust administrative remedies. In this case, 

Caballero-Vega presented the same legal theory before the BIA that he makes before 

this Court—that the IJ’s factual findings were not clearly erroneous. That is not true 

of the relevant cases the dissent cites. See Garcia-Carbajal, 625 F.3d at 1237–38 

(“The only question [Garcia-Carbajal] presented for decision to the BIA was whether 

the immigration judge ‘failed to engage in the [two step] analysis described in the 

BIA decision in Silva-Trevino.’ . . . Before us, he has abandoned this particular legal 

theory entirely. Instead of challenging the process by which his case was analyzed, 

he now seeks to challenge the substance of the results it reached.” (emphasis in 

original) (citation omitted)); Sidabutar, 503 F.3d at 1118, 1122 (“On appeal to the 

BIA, Sidabutar . . . argued that the IJ erred in concluding [he was] ineligible for 

asylum based on [his] failure to comply with the application’s one-year filing 

deadline,” but before this Court, Sidabutar made a “procedural challenge to the 

BIA’s . . . finding that he failed to establish (1) past persecution, and (2) the 

unreasonableness of relocation to another part of Indonesia where the IJ made no 

such finding in the first instance.” (internal quotation marks omitted)). The dissent 

would have Caballero-Vega ask the BIA to decide whether it conducted its own 

clear-error review correctly, but that is not required by Sidabutar or GarciaCarbajal. 

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justifications for its finding and concluding that those justifications were clearly 

erroneous); see also Wu Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016) (“[D]e novo 

review does not mean that we can redetermine de novo whether we think the IJ has 

committed clear error. It means that we must determine whether the BIA has 

provided sufficient justification for its conclusion that the IJ has committed clear 

error. It also means that we must make sure that the BIA has not violated the 

prohibition against making its own findings of fact.”) 

Under 8 U.S.C. § 1158(b)(1), the Attorney General has the discretion to grant 

asylum to “refugees.” A “refugee” includes a noncitizen who is “unable or unwilling 

to return to” his country “because of . . . a well-founded fear of persecution on 

account of . . . membership in a particular social group.” Id. § 1101(a)(42)(A). 

“[P]ersecution may be inflicted by the government itself, or by a non-governmental 

group that ‘the government is unwilling or unable to control.’” Wiransane v. 

Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004) (citation omitted). 

For a fear of persecution to be well-founded, there must be “‘a reasonable 

possibility’ that the alien would be persecuted upon removal to his country of 

nationality.” Jin Bin Wu v. Holder, 481 F. App’x 427, 429 (10th Cir. 2012) 

(unpublished)3

 (quoting 8 C.F.R. § 1208.13(b)(1)). Even a ten percent chance of 

being persecuted may be sufficient to satisfy this standard. See I.N.S. v. CardozaFonseca, 480 U.S. 421, 440 (1987). However, because the well-founded fear of 

3

 “Unpublished decisions are not precedential, but may be cited for their 

persuasive value.” 10th Cir. R. 32.1 (2023). 

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persecution must be “on account of” membership in a particular social group, a 

petitioner must show the nexus between the harm the petitioner fears and his 

particular social group. 8 U.S.C. § 1101(a)(42)(A). Whether such a nexus exists is a 

question of fact. 

The IJ’s analysis of the nexus between the harm Caballero-Vega fears and his 

particular social group is based on a substantial amount of evidence, including: a 

phone call from the Norteño gang members’ attorney telling Caballero-Vega that “he 

had placed the . . . leaders of the Norteño gang . . . in a large amount of trouble,” R. 

Vol. I at 92; the testimony of a former Senior Inspector with the San Mateo County 

District Attorney, who explained that Caballero-Vega “is still at risk from retaliation 

from . . . the Norteño gang as a whole,” id.; opinions from U.S. law enforcement 

officials and gang experts indicating that “Mexican cartels . . . cooperate[] with the 

Norteño gang in exchanging intelligence, controlled substances, and weapons,” id.; 

an official report from the California Attorney General finding that “California has 

seen increasing partnerships between transnational cartels and prison gangs,” id. at 

92–93; opinions from experts who “have classified th[e] cooperation between the 

cartels and American gangs as part of a criminal organization that all agree to help 

each other,” and have further indicated that this cooperation “does not stop at simply 

the exchange of information,” id. at 93; and “evidence that cartels beat and killed 

individuals associated with witnesses or cooperators with the government . . . [and] 

the Mexican government did next to nothing to investigate the crimes,” id. (internal 

quotation marks and citations omitted). Based on this evidence, the IJ concluded that 

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it was reasonable for Caballero-Vega to fear that Mexican cartels would harm him if 

they discovered he had testified against Norteño gang members. See id.

The BIA’s review of the IJ’s nexus finding is not substantiated nearly as well. 

The BIA notes that Caballero-Vega was not threatened or harmed when he was 

stopped in Mexico. See id. at 4. It observes that Caballero-Vega was also not 

“threatened or harmed in the roughly seven years following his time as an informant 

and after having given testimony against United States gang members.” Id. Finally, 

it reasons that the IJ’s “findings are speculative that [Caballero-Vega] . . . would be 

persecuted by Mexican cartel members because he was an informant who testified 

against United States gang members.” Id.

We find insufficient the BIA’s explanation for its finding that the IJ’s decision 

is clearly erroneous. The fact that Caballero-Vega was not persecuted in Mexico is 

of little-to-no probative value here because he escaped before he could be identified 

by cartel members. Likewise, the fact that he was not threatened or harmed in the 

United States following his time as an informant is unhelpful because he was in 

witness protection for that entire period. Finally, the expert testimony cited by the IJ 

demonstrates that Mexican cartel members and United States gang members 

cooperate extensively, so the fact that Caballero-Vega testified against individuals 

based in the United States, not Mexico, is not dispositive. Thus, none of the reasons 

the BIA offers for vacating the IJ’s decision justifies the BIA’s finding of clear error. 

We remand Caballero-Vega’s case to the BIA to accept the IJ’s decision or to 

provide further justification for its finding that the IJ’s decision is clearly erroneous. 

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V.

 For the foregoing reasons, we REVERSE the judgment of the BIA of 

Immigration Appeals and REMAND for further proceedings consistent with this 

opinion. 

 Entered for the Court 

 Allison H. Eid 

 Circuit Judge 

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21-9506, Caballero-Vega v. Garland

HOLMES, C.J., Dissenting. 

 I respectfully dissent. Even if we assume—as the majority would have it—that 

Petitioner’s argument complaining about the BIA’s alleged de novo reweighing of the 

evidence amounts to no more than an attack on the BIA’s application of the clear-error 

standard, rather than an argument that the BIA erred by applying a different standard of 

review altogether (i.e., de novo review), see Maj. Op. at 7, it is plain that Petitioner never 

gave the BIA an opportunity to address this attack, upon which he relies in seeking 

reversal. Contrary to the suggestion of the majority in footnote 2, Petitioner did have an 

obligation to give the BIA this opportunity—even if it meant filing a motion to reconsider 

or reopen. And, accordingly, he has failed to exhaust this argument, and we lack 

jurisdiction to consider it. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th 

Cir. 2010) (“It is a fundamental principle of administrative law that an agency must have 

the opportunity to rule on a challenger’s arguments before the challenger may bring those 

arguments to court.”); Rivera-Zurita v. I.N.S., 946 F.2d 118, 120 n.2 (10th Cir. 1991) 

(“The failure to raise an issue on appeal to the Board constitutes failure to exhaust 

administrative remedies with respect to that question and deprives the Court of Appeals 

of jurisdiction to hear the matter.”). 

It only serves to reason that this is so because at issue before the BIA was the 

quality of the IJ’s assessment of the facts. See Pet.’s BIA Br., Aplt.’s App. at 11 (“The 

Immigration Judge’s finding that Caballero-Vega would be persecuted on account of his 

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membership in the particular social group was not clearly erroneous.” (emphases added) 

(bold-face font omitted)). Yet on appeal here, Petitioner’s argument zeros in the BIA’s 

alleged failings in assessing the facts. See Aplt.’s Opening Br. at 11 (“Did the Board of 

Immigration Appeals correctly apply the clear error standard where it reversed the 

Immigration Court’s nexus finding because the Board endorsed a different interpretation 

of the evidence in the record?” (emphasis added)). Indeed, the majority’s own 

recounting of Petitioner’s arguments before the BIA and our court reveals as much: viz., 

it reveals that, before the BIA, the focus was the alleged failings of the IJ’s factual 

analysis—an analysis that Petitioner defended—and, yet, before our court, the focus is on 

the alleged defects of the BIA’s factual analysis—an analysis that Petitioner condemns. 

See Maj. Op. at 6–7. 

 The majority supports its reasoning in substantial part by citing Kabba v. Mukasey, 

530 F.3d 1239 (10th Cir. 2008), where we restated the inquiry that the petitioner urged us 

to apply in this way: “[D]id the BIA commit possible legal error by reciting the clear 

error standard but actually applying a far less deferential standard of review to the IJ’s 

credibility determinations, in which case we would review that application of law de 

novo.” Id. at 1244. And we ultimately agreed with the petitioner and concluded thusly: 

“Although the BIA’s opinion set forth the correct standard of review and recited a 

conclusion that the IJ’s credibility findings were clearly erroneous, the BIA did not apply 

this deferential standard in substance.” Id. at 1245 (emphasis added). 

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But this case is procedurally distinguishable from Kabba in one central respect—

which explains why the Kabba panel could review the standard of review issue without 

confronting the obstacle of exhaustion, and we cannot review Petitioner’s assumed attack 

on the BIA’ application of the clearly erroneous standard. Specifically, in Kabba, we 

considered the petitioner’s appeal after the BIA had reversed the IJ’s credibility 

determination—ostensibly, under a clearly erroneous standard—and remanded to the IJ 

to enter an order of removal. Id. at 1243. The IJ did so, and the petitioner appealed again 

to the BIA. See id. at 1244. Critically, in this agency appeal—not only did the BIA 

affirm and reincorporate its prior decision—but it explicitly addressed the question of 

whether it had correctly applied the clearly erroneous standard of review. See id. As we 

recounted: “The BIA also supplemented its prior decision by stating that it did not engage 

in fact finding in its first decision and that the IJ’s credibility finding was clearly 

erroneous.” Id. (emphasis added). 

That was the procedural posture of Kabba when the petitioner appealed that BIA 

decision to us. Unremarkably, under those circumstances, we reached the question in 

Kabba of whether the BIA correctly applied the clearly erroneous standard, without a hint 

of concern regarding whether this issue had been properly exhausted. That is because it 

actually had been exhausted. See id. at 1245; see also Sidabutar v. Gonzales, 503 F.3d 

1116, 1118, 1122 (10th Cir. 2007) (“[B]ecause the BIA sufficiently considered

Sidabutar’s two unraised claims in its final order and that final order was properly 

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appealed in this petition for review, we assert jurisdiction over the matters directly ruled 

on by the BIA.” (emphases added)). 

But Kabba’s procedural circumstances bear no resemblance to those before 

us. Petitioner here never gave the BIA an opportunity to consider—much less rule on—

his assumed challenge to the BIA’s application of the clearly erroneous standard. In 

other words, he neither raised the issue in his BIA brief, nor did the BIA rule on the 

issue. Petitioner was obliged to put this issue before the BIA—even if it meant filing a 

motion to reconsider or reopen. See Sidabutar, 503 F.3d at 1122 (noting that the 

petitioner “should have brought [the unexhausted claims] before the BIA in the first 

instance through a motion to reconsider or reopen”). Therefore, Petitioner’s argument 

comes to us unexhausted, and we have no jurisdiction to consider it. 

Given that Petitioner’s assumed challenge to the BIA’s application of the clearly 

erroneous standard is unexhausted and thus unreviewable, the next step should be to 

apply the deferential substantial evidence standard to the BIA’s factual nexus 

determination—a truth that even Petitioner recognizes. See Aplt.’s Opening Br. at 25 

(arguing in the alternative that “[e]ven the deferential ‘substantial evidence’ standard 

does not support the Board’s finding that Mr. Caballero-Vega’s informant work and 

testimony would not be ‘one central reason’ for his persecution” (bold-face font 

omitted)). And under that deferential standard—which the majority’s analysis elides—

suffice it to say that a reasonable adjudicator would not be compelled to conclude that the 

BIA erred on the nexus determination. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 

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(10th Cir. 2006) (“[A]dministrative findings of fact are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” (quoting 8 U.S.C. 

§ 1252(b)(4)(B)); Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005) (same); cf. 

Maj. Op. at 10 (making the observation—which would be insufficient for reversal under 

the deferential substantial evidence standard—that “[t]he Board’s review of the IJ’s 

nexus finding is not substantiated nearly as well” as the IJ’s nexus analysis). 

Accordingly, I would uphold the BIA’s judgment and deny the Petition for review. 

For the foregoing reasons, I respectfully dissent. 

 

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