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 wh en he was eight years old. He was removed to Mexico in 2019. Shortly after his rem oval, Caballero-Vega

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, th is 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 of ten misspelled as “Cabellero-Vega” throughout this litigation, including in the caption on a ppeal. We use the correct spelling in this order and judg ment 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 Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 12 returned to the United States and applied for asylum, withholding of removal, and protection under the Conv ention Against Torture. Later that year, the Immigration Judge (“IJ”) granted his application for asylum, which the Depa rtment of Homeland Security (“DHS”) appealed to the Board of Immigr ation Appeals (“the BIA”). In 2020, the BIA vacated the IJ’s decision fo r 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 th e BIA’s vacation of the IJ’s decision and remand the case for further review.
I. Eight years after Caballero-Vega entere d the United States, the San Francisco Immigration Court granted hi m 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 in formant 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 Californi a prison gang, as well as the Norteño Gang, Nuestra Familia’s “foot soldie rs” in the streets. R. Vol. I at 143. Following his informant work , he testified against Nuestra Familia members in criminal court. Caballero-Vega was plac ed in a witness protection program during and after his testimony. In January 2019, following his arrest in Colorado, Caballe ro-Vega was taken into immigration custody and removed to Mexico. On the day of his arrival, eight Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 23 armed men dressed in military clothing bear ing the initials of the Cartel Jalisco Nueva Generación cartel (“CJNG”) approached him in the street. They “demanded [his] identification paperwor k, took pictures of hi s 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, Me xico, where he was again approached by eight men dressed in CJNG clot hing. They “pushed [him] to the wall, asked who he was, and whether he was seeking asylum in the United States,” be fore taking pictures of his repatriation certificate. Id. at 73. However, Caballero-Vega was able to escape again. Caballero-Vega reentered the United St ates two months after leaving, presenting himself at a port of entry to apply for asylum, withholding of removal, and protection under the Convention Against To rture. 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 ha ve testified in court against gangs” and “witnesses who have testified agai nst gangs and come to the attention of the group they testified against.” Id. at 3 (quotation marks omitted). On November 13, 2019, the IJ gran ted Caballero-Vega’s application for asylum, finding that he ha d established a we ll-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 conclusi on, the IJ determined that “the evidence of the cooperation between the Norteño gang and Mexican cartels [is] Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 34 sufficient to establish the gang and cartel would be motiv ated to harm [CaballeroVega] on account of being an informant and witness.” Id. at 93. DHS appealed the decision to the BI A. 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 stat us as an informant and hi s 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 specu lative that [Caballero-Vega] —who was not threatened or harmed in the roughly seven years followi ng his time as an informant and after having given testimony agains t United States gang member s—would be persecuted by Mexican cartel members because he wa s 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 determina tions de novo, and its findings of fact under a substantial-ev idence standard.” Niang v. Gonzalez , 422 F.3d 1187, 1196 (10th Cir. 2005) (citation omitte d). 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 fo r clear error. We ha ve determined that Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 45 under the “rare circumstance[] . . . wh ere an IJ makes factual credibility determinations which the BIA in turn re jects,” we consider “de novo whether the BIA, in making its own factual findings, ac tually 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 th e 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 explana tion of this contention. We understand the government to be arguing that, on appeal, Caballero-Veg a 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 reconsideratio n 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 (10t h Cir. 1991). Indeed, as we have previously held, the exhaustion requirement is derive d from “a fundamental principle of administrative law that an agency must have the opportun ity to rule on a challenger’s arguments before the challenger may bring those arguments to court.” GarciaCarbajal v. Holder , 625 F.3d 1233, 12 37 (10th Cir. 2010). Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 56 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 unrev iewable before us. See Resp’t Br. at 34 (citing Sidabutar v. Gonzales , 503 F.3d 1116, 1122 (10t h 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 recons ider or reopen” and, because it wasn’t, “the petitioners[] failed to exhaust administrative reme dies” on it)). Although the government’s char acterization of Sidabutar is accurate, its application of Sidabutar to this case is not. Sidabuta r’s appeal to the BIA challenge d the IJ’s finding that he was “ineligible for asylum based on [his] fa ilure 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 enga ged in de novo fact finding in concluding [that he] did not suffer ‘past persecution’ for purposes of seek ing a restriction on removal.” Id. at 1118. As Caballero-Vega co rrectly notes, whereas Sidabutar provided the BIA “no opportunity to addr ess” the issue of its alleged de novo factfinding, Reply Br. at 2, he “has advanced the same le gal theory throughout these proceedings,” id. at 3. Before the BIA, Caballero-Vega contende d that the IJ’s factual findings “are not ‘clearly erroneous’ simp ly because . . . [ DHS] endorses a different view of the evidence.” R. Vol. I at 11 (citations omitted). On app eal, his argument is the same: “Did the [BIA] . . . correctly apply the clear error standa rd where it reversed the Immigration Court’s nexus finding becau se the [BIA] endorsed a different Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 67 interpretation of the evidence in the record?” Pet. Br. at 11. Caballero-Vega accuses the BIA of having “e ngaged in de novo reweighing of the evidence,” id. at 17, but he has presented this as a cri ticism of the BIA’s clear-error analysis, not an allegation that the wrong standard of review was used. If Caballero-Vega were arguing that th e BIA applied de novo review where only clear-error review was a ppropriate, our case law indicat es he would have had to raise that issue to th e 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 w ould face a reasonable possibility of future harm if he were removed to Mexico . Caballero-Vega’s reference to “de novo reweighing” provides an ex ample of what he views as the BIA’s misapplication of the clear-erro r standard; it is not an asse rtion that the BIA applied a new and erroneous standard of review. See Kabba , 530 F.3d at 1244 (reviewing petitioner’s argument that th e BIA “committed legal error by analyzing the IJ’s credibility determination de novo, rather than under th e required clearly erroneous standard” without requiring a petition for rehearing or re quest 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 disc rimination claim”). Caballero-Vega’s argument that the BIA re ached an erroneous conclusion using the clear-error standard of revi ew was made before the BI A and need not have been Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 78 presented in a petition for rehearing or request for reconsideration fo r us to hear it on appeal. 2
IV. Having established that we may properly review Caba llero-Vega’s claim that the BIA exceeded the scope of it s authority, we now consider the merits of the claim. Because Caballero-Vega claims that the BIA improperly re jected the IJ’s factual findings, we review the BI A’s decision de novo. See Kabba , 530 F.3d at 1245. This means that we must evaluate whether the BIA has suffici ently 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 th e IJ’s factual findings were clearly erroneous; as a resu lt, this Court lacks jurisdic tion 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 failu re to exhaust administrative remedies. In this case, Caballero-Vega presented the same legal theo ry before the BIA that he makes before this Court—that the IJ’s fact ual findings were not clearly er roneous. 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] presen ted 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 ab andoned 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 r eached.” (emphasis in original) (citation omitted)); Sidabutar , 503 F.3d at 1118, 1122 (“On appeal to the BIA, Sidabutar . . . argued th at the IJ erred in concludi ng [he was] ineligible for asylum based on [his] failure to comply with the application’s one-year filing deadline,” but before this Court, Sidabut ar made a “procedural challenge to the BIA’s . . . finding that he failed to establish (1) pa st persecution, and (2) the unreasonableness of relocation to another part of Indonesia where the IJ made no such finding in the first inst ance.” (internal quotation ma rks omitted)). The dissent would have Caballero-Vega ask the BIA to decide whether it conducted its own clear-error review co rrectly, but that is not required by Sidabutar or GarciaCarbajal

. Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 89 justifications for it s finding and concludi ng 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 redeterm ine de novo whether we think the IJ has committed clear error. It means that we must determine whether the BIA has provided sufficient justifica tion for its conclusion that the IJ has committed clear error. It also mean s 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 Attorn ey General has the discretion to grant asylum to “refugees.” A “refugee” incl udes a noncitizen who is “unable or unwilling to return to” his country “because of . . . a well-founded f ear of persecution on account of . . . membership in a particular social group.” Id. § 1101(a)(42)(A). “[P]ersecution may be inflicted by the gove rnment itself, or by a non-governmental group that ‘the govern ment is unwilling or unable to control.’” Wiransane v. Ashcroft , 366 F.3d 889, 893 (10th Ci r. 2004) (citation omitted). For a fear of persecution to be well- founded, there must be “‘a reasonable possibility’ that the alien would be pers ecuted 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 sufficien t 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 preced ential, but may be cited for their persuasive value.” 10t h Cir. R. 32.1 (2023). Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 910 persecution must be “on account of” membersh ip 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). Whethe r 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 Caba llero-Vega that “he had placed the . . . leaders of the Norteño ga ng . . . 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 Caba llero-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 indi cating that “Mexican cartels . . . cooperat e[] with the Norteño gang in exchanging intelligence, controlled substances, and weapons,” id. ; an official report from the Ca lifornia Attorney General finding that “California has seen increasing partnerships between tr ansnational cartels and prison gangs,” id. at 92–93; opinions from experts who “have cl assified th[e] coope ration between the cartels and American gangs as part of a criminal organiza tion 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). Base d on this evidence, the IJ concluded that Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 1011 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 ha rmed when he was stopped in Mexico. See id. at 4. It observes that Caballero-Vega was also not “threatened or harmed in the roughly seve n years following his time as an informant and after having given testimony agai nst United States gang members.” Id. Finally, it reasons that the IJ’s “findings are specula tive that [Caballero-V ega] . . . would be persecuted by Mexican cartel members becaus e he was an informant who testified against United States gang members.” Id. We find insufficient the BIA’s explanati on 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 th reatened or harmed in the United States following his time as an in formant is unhelpful because he was in witness protection for that entire period. Finally, the expert te stimony cited by the IJ demonstrates that Mexican cartel memb ers and United States gang members cooperate extensively, so th e fact that Caballero-Vega te stified against individuals based in the United States, not Mexico, is not dispositive. Thus, none of the reasons the BIA offers for vacating th e 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 th at the IJ’s decision is clearly erroneous. Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 1112 V. For the foregoing reasons, we REVE RSE the judgment of the BIA of Immigration Appeals and RE MAND for further proceedings consistent with this opinion. Entered for the Court Allison H. Eid Circuit Judge Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 1221-9506, Caballero-Vega v. Garland HOLMES , C.J., Dissenting. I respectfully dissent. Even if we a ssume—as the majority would have it—that Petitioner’s argument complaini ng 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 argum ent 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 sugg estion of the majority in foot note 2, Petitioner did have an obligation to give the BIA this opportunity—e ven if it meant filing a motion to reconsider or reopen. And, accordingly, he has faile d to exhaust this ar gument, and we lack jurisdiction to consider it. See Garcia-Carbajal v. Holder , 625 F.3d 1233, 1237 (10th Cir. 2010) (“It is a fundamenta l principle of administrative la w that an agen cy 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 constitute s 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 Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 132 membership in the partic ular social group was not clearly erroneous .” (emphases added) (bold-face font omitted)). Yet on appeal he re, 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 th e Board endorsed a di fferent interpretation of the evidence in the reco rd?” (emphasis added)). Indeed, the majority’s own recounting of Petitioner’s argum ents before the BIA and our court reveals as much: viz. , it reveals that, before the BIA, the focus wa s the alleged failings of the IJ’s factual analysis—an analysis that Petitioner defended—an d, yet, before our court, the focus is on the alleged defects of the BIA’s factual anal ysis—an analysis that Petitioner condemns.
See Maj. Op. at 6–7. The majority supports its reas oning in substantial part by citing Kabba v. Mukasey , 530 F.3d 1239 (10th Cir. 2008), where we rest ated 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 de ferential standard of review to the IJ’s credibility determinations, in which case we would review th at application of law de
novo.” Id. at 1244. And we ultimately agreed with the petitioner and concluded thusly: “Although the BIA’s opinion se t forth the correct standard of review and recited a conclusion that the IJ’s cred ibility findings were clearly e rroneous, the BIA did not apply this deferential standard in substance .” Id. at 1245 (emphasis added). Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 143 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 th e BIA had reversed the IJ’s credibility determination—ostensibly, under a clearly er roneous standard—and remanded to the IJ to enter an order of removal. Id. at 1243. The IJ did so, a nd the petitioner appealed again to the BIA. See id. at 1244. Critically, in this ag ency 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 clear ly 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 erroneou s standard, without a hint of concern regarding whether th is issue had been properly e xhausted. 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 fina l order and that final order was properly Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 154 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 consid er—much less rule on— his assumed challenge to the BIA’s applicati on 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 unexhaus ted claims] before the BIA in the first instance through a motion to re consider or reopen”). Ther efore, 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 th at “[e]ven the deferential ‘s ubstantial 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 standa rd—which the majority ’s analysis elides— suffice it to say that a reasona ble adjudicator would not be compelled to conclude that the BIA erred on the nexus determination. See Uanreroro v. Gonzales , 443 F.3d 1197, 1204 Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 165 (10th Cir. 2006) (“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclu de to the contrary.” (quoting 8 U.S.C. § 1252(b)(4)(B)); Niang v. Gonzales , 422 F.3d 1187, 1196 (1 0th Cir. 2005) (same); cf. Maj. Op. at 10 (making the observation—whic h 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. Appellate Case: 21-9506 Document: 010110825418 Date Filed: 03/13/2023 Page: 17