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, 

, 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, 

, 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


                               3
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.

                               4
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, 

, 149 (2d Cir. 2003),

overruled in part on other grounds by Shi Liang Lin v. U.S.

Dep't of Justice, 

, 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
                                5
that a party presents.”   Yan Chen v. Gonzales, 

,

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., 

, 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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