Filed: Mar. 26, 2012
Latest Update: Feb. 22, 2020
Summary: 10-2358-ag Hidalgo v. Holder BIA Weisel, IJ A090 347 470 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH TH
Summary: 10-2358-ag Hidalgo v. Holder BIA Weisel, IJ A090 347 470 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE..
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10-2358-ag
Hidalgo v. Holder
BIA
Weisel, IJ
A090 347 470
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 26th day of March, two thousand twelve.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 JORGE ALBERTO HIDALGO, AKA JORGE
14 HIDALGO DURAN, AKA ROBERTO CAMACHO,
15 AKA ROBERTO CUMACHO,
16 Petitioner,
17
18 v. 10-2358-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Paul O’Dwyer, New York, N.Y.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Jennifer P. Levings, Senior
29 Litigation Counsel; Nancy K. Canter,
30 Trial Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Jorge Hidalgo, a native and citizen of
6 Venezuela, seeks review of a May 17, 2010, order of the BIA
7 affirming the June 12, 2008, decision of Immigration Judge
8 (“IJ”) Robert D. Weisel denying his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Jorge Alberto Hidalgo, No.
11 A090 347 470 (B.I.A. May 17, 2010), aff’g No. A090 347 470
12 (Immig. Ct. N.Y. City June 12, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA’s decision. See
17 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey,
546 F.3d
20 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529
21 F.3d 99, 110 (2d Cir. 2008). Because Hidalgo does not
22 challenge the IJ’s denial of a continuance or the agency’s
2
1 denial of CAT relief, we address only the agency’s
2 pretermission of asylum and denial of withholding of
3 removal. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
4 545 n.7 (2d Cir. 2005) (providing that issues not
5 sufficiently argued in the briefs are considered waived and
6 normally will not be addressed on appeal).
7 Hidalgo argues that the BIA erred in its review of the
8 IJ’s pretermission of his asylum application. Although our
9 review over the agency’s pretermission of asylum
10 applications is limited, see 8 U.S.C. § 1158(a)(3), we have
11 jurisdiction to address whether the BIA applied the correct
12 standard of review. See 8 U.S.C. § 1252(a)(2)(D) (providing
13 that courts retain jurisdiction to review questions of law);
14 Wallace v. Gonzales,
463 F.3d 135, 140-41 (2d Cir. 2006)
15 (per curiam) (exercising jurisdiction to address whether the
16 BIA violated regulations and applied the wrong standard of
17 review). However, we detect no error in the BIA’s review,
18 as the record indicates that it followed the relevant
19 regulation, see 8 C.F.R. § 1003.1(d)(3), and applied the
20 correct standard of review, considering the IJ’s legal
21 analysis de novo and factual issues for clear error.
22
3
1 Hidalgo also argues that the agency erred in denying
2 his application for withholding of removal, asserting that
3 he established a pattern or practice in Venezuela of
4 persecution against homosexuals and individuals who are HIV
5 positive. As an initial matter, the BIA was not required to
6 give any weight to this Court’s decision in Morett v.
7 Gonzales, 190 F. App’x 47, 49 (2d Cir. 2006) (unpublished),
8 or an IJ’s grant of asylum to a gay man from Venezuela on a
9 similar claim, because they were unpublished decisions based
10 on different records from that in Hidalgo’s case. See Ajdin
11 v. Bureau of Citizenship & Immigration Servs., 437 F.3d 261,
12 264-65 (2d Cir. 2006) (noting that the BIA is not bound by
13 its unpublished decisions in similar cases, since
14 “unpublished opinions of the BIA have no precedential
15 value”).
16 Although the agency has not articulated a standard
17 explaining how it evaluates pattern or practice claims,
18 here, as in Santoso v. Holder,
580 F.3d 110 (2d Cir. 2009)
19 (per curiam), we are able to review the BIA decision because
20 “the BIA explicitly discussed the pattern or practice claim
21 and the record includes substantial documentary evidence
22 regarding the conditions in petitioner’s homeland,”
id. at
4
1 112 n.1. The agency considered Hidalgo’s evidence of
2 discrimination and persecution against homosexuals in
3 Venezuela, but concluded that it did not establish that
4 persecution was “systemic, pervasive, or organized,” see In
5 re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005), noting the
6 contrary evidence that there was a thriving gay community in
7 Caracas and that non-governmental organizations were working
8 in the country to protect gay rights. Even if we would (or
9 could) have drawn a different conclusion, we cannot find
10 that the agency erred in its analysis of the sufficiency of
11 Hidalgo’s evidence as he presented no evidence compelling
12 the conclusion that he would more likely than not be
13 subjected to persecution in Venezuela. As this Court has
14 stated, “[w]here there are two permissible views of the
15 evidence, the factfinder’s choice between them cannot be
16 clearly erroneous. Rather, a reviewing court must defer to
17 that choice so long as the deductions are not illogical or
18 implausible.” Siewe v. Gonzales,
480 F.3d 160, 167-68 (2d
19 Cir. 2007) (internal citations and quotation marks omitted).
20 Thus, substantial evidence supports the agency’s finding
21 that Hidalgo did not establish a likelihood of future
22 persecution if returned to Venezuela, and the denial of his
5
1 application for withholding of removal. See Santoso, 580
2 F.3d at 112; 8 C.F.R. § 1208.16(b)(1).
3 For the foregoing reasons, the petition for review is
4 DENIED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
6
