Simioni v. Holder

10-4822-ag
Simioni v. Holder
BIA
Straus, IJ
A098 906 951
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 18th day of April, two thousand twelve.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_____________________________________
ELVIS AUGUSTO SIMIONI,
Petitioner,
v. 10-4822-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: James A. Welcome, Waterbury, Conn.
FOR RESPONDENT: Tony West, Assistant Attorney
General; James E. Grimes, Senior
Litigation Counsel; Gregory M.
Kelch, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DISMISSED in part, DENIED in part, and GRANTED in part.
Petitioner Elvis Augusto Simioni (“Simioni”), a native
and citizen of Brazil, seeks review of an October 26, 2010,
order of the BIA, affirming the November 6, 2008, decision
of Immigration Judge (“IJ”) Michael W. Straus, which
pretermitted his application for asylum and denied his
application for withholding of removal and relief under the
Convention Against Torture (“CAT”). In re Elvis Augusto
Simioni, No. A098 906 951 (B.I.A. Oct. 26, 2010), aff’g No.
A098 906 951 (Immig. Ct. Hartford Nov. 6, 2008). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well-
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
I. Humanitarian Asylum
Title 8, Section 1158(a)(3) of the United States Code
provides that no court shall have jurisdiction to review the
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agency’s finding that an asylum application was untimely
under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither
changed nor extraordinary circumstances excusing the
untimeliness under 8 U.S.C. § 1158(a)(2)(D).
Notwithstanding that provision, we retain jurisdiction to
review constitutional claims and “questions of law.”
8 U.S.C. § 1252(a)(2)(D). While Simioni argues that the IJ
erred by failing to assess his eligibility for humanitarian
asylum, as the government points out, IJs lack discretion to
grant humanitarian asylum where, as here, the underlying
asylum application is untimely. See 8 C.F.R.
§ 1208.13(b)(1)(iii), (c)(1); 8 U.S.C. § 1158(a)(2).
Because Simioni’s eligibility for humanitarian asylum is
foreclosed by the agency’s finding that his application for
asylum was untimely, and he has not identified any errors of
law in this finding, we lack jurisdiction to review his
arguments concerning his eligibility for humanitarian
asylum.
II. Past Persecution
Although Simioni argues that the IJ applied an overly
rigorous standard in rejecting his claim for withholding of
removal based on past persecution, the IJ reasonably
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determined that because Simioni failed to satisfy his burden
of demonstrating past persecution with respect to asylum, he
necessarily failed to meet the higher burden required for
withholding of removal. See Ramsameachire v. Ashcroft, 357
F.3d 169,178 (2d Cir. 2004) (“Because the withholding of
removal analysis overlaps factually with the asylum
analysis, but involves a higher burden of proof, an alien
who fails to establish his entitlement to asylum necessarily
fails to establish his entitlement to withholding of
removal.”.
In finding that Simioni failed to establish past
persecution, the IJ reasonably determined that the sexual
abuse he suffered at the hands of his brother was not on
account of a protected ground. Pursuant to 101(a)(3) of the
REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(i), “the applicant
must establish that [a protected ground] was or will be at
least one central reason for” the claimed persecution. See
also 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.16(b)(1).
Notwithstanding Simioni’s conclusory assertion that the
record supports his past persecution claim, the IJ properly
determined that there was no evidence in the record
indicating that his brother’s abuse was motivated by a
belief that Simioni was gay.
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III. Likelihood of Future Persecution
As Simioni points out, the agency failed to consider
his HIV-positive status in finding that he did not establish
a likelihood of future persecution in Brazil. We have found
that the agency must “consider all factual assertions in an
applicant’s claim for eligibility [except] where the
evidence in support of a factor potentially giving rise to
eligibility is ‘too insignificant to merit discussion.’”
Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003),
overruled in part on other grounds by Shi Liang Lin v. U.S.
Dep't of Justice, 494 F.3d 296, 309-10 (2d Cir. 2007) (en
banc). While the government contends that Simioni did not
argue that he would be persecuted because he is
HIV-positive, the memorandum he submitted to the IJ clearly
stated that his HIV status placed him at additional risk of
future persecution because he would experience significant
societal scorn, harassment, and possible denials of medical
care and employment. Moreover, at the merits hearing
Simioni’s counsel explicitly argued that his fear of
persecution was based, in part, on his HIV-positive status,
and Simioni contested the IJ’s denial of relief on this
ground before the BIA. “The BIA, when considering an
appeal, must actually consider the evidence and argument
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that a party presents.” Yan Chen v. Gonzales, 417 F.3d 268,
272 (2d Cir. 2005) (internal quotation marks omitted).
Because the BIA failed to consider Simioni’s HIV-positive
status, it erred in assessing the likelihood of future
persecution, and remand of these proceedings is appropriate.
See Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289
(2d Cir. 2007) (recognizing that this Court limits its
review to the agency's reasoning and will not search the
record for alternative bases on which to affirm the agency's
decision).
For the foregoing reasons, the petition for review is
DISMISSED, in part, as we lack jurisdiction to consider the
denial of humanitarian asylum; DENIED, in part, as the
agency did not err in finding that Simioni failed to
establish past persecution; and GRANTED, in part, as the
agency did not consider Simioni’s HIV-positive status in
assessing the likelihood of future persecution.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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