                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 06 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



PONCIANO ADONIS RANGEL,                          No. 06-71829

               Petitioner,                       Agency No. A041-880-728

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      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


          *
             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).
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(BIA 1982), superseded by statute in part, 8 U.S.C. § 1253(h)(1991), as later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.


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