     15-254
     Feitosa v. Lynch
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A088 444 273
                        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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   2nd day of June, two thousand sixteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   FRANCO ALVES FEITOSA,
14            Petitioner,
15            v.                                                     15-254
16                                                                   NAC
17   LORETTA E. LYNCH, UNITED STATES
18   ATTORNEY GENERAL,
19            Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                     Maria Isabel A.N. Thomas, Law
23                                       Offices of Thomas and Thomas, LLC,
24                                       Princeton, New Jersey.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; John S.
28                                       Hogan, Assistant Director; Stefanie
29                                       A. Svoren-Jay, Trial Attorney,
30                                       Office of Immigration Litigation,
31                                       United States Department of Justice,
32                                       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 is

4    DISMISSED in part and DENIED in part.

5           Petitioner Franco Alves Feitosa, a native and citizen of

6    Brazil, seeks review of a December 31, 2014, decision of the

7    BIA affirming a January 30, 2013, decision of an Immigration

8    Judge    (“IJ”)      denying      Feitosa’s   application    for    asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).       In re Franco Alves Feitosa, No. A088 444 273

11   (B.I.A. Dec. 31, 2014), aff’g No. A088 444 273 (Immig. Ct.

12   Hartford Jan. 30, 2013).           We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

14          Under the circumstances of this case, we have considered

15   both    the   IJ’s    and   the    BIA’s   opinions   “for   the   sake   of

16   completeness.”        Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

17   524, 528 (2d Cir. 2006).           The applicable standards of review

18   are well established.          See 8 U.S.C. § 1252(b)(4)(B); Yanqin

19   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20          We lack jurisdiction to review the agency’s finding that

21   Feitosa’s asylum application was untimely filed.                   8 U.S.C.

                                            2
1    § 1158(a)(3).      Although we retain jurisdiction to review

2    constitutional     claims    and     questions       of    law,   8   U.S.C.

3    § 1252(a)(2)(D),      Feitosa      has    raised     no    such   colorable

4    questions.    To determine whether jurisdiction exists in an

5    individual    case,   we    “study       the   arguments     asserted”      to

6    determine,    “regardless    of     the    rhetoric       employed    in   the

7    petition, whether it merely quarrels over the correctness of

8    the factual findings . . . or whether it instead raises a

9    ‘constitutional claim’ or ‘question of law.’”               Xiao Ji Chen v.

10   U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).                    In

11   this case, Feitosa simply “quarrels over the correctness of the

12   factual findings,” i.e., the IJ’s determination that Feitosa’s

13   mental condition did not constitute an exceptional circumstance

14   that would excuse the late filing.             Id.

15       With respect to the agency’s denial of withholding of

16   removal based on past persecution, we review de novo whether

17   past harm rises to the level of persecution, and for substantial

18   evidence the agency’s finding that persecution lacks a nexus

19   to a protected ground.      See Hui Lin Huang v. Holder, 677 F.3d

20   130, 136 (2d Cir. 2012); Gjolaj v. BCIS, 468 F.3d 140, 143 (2d

21   Cir. 2006).   Substantial evidence supports the IJ’s conclusion

                                          3
1    that the rapes Feitosa suffered lacked a nexus to a protected

2    ground: Feitosa did not allege any facts to support a nexus

3    finding.

4        Nor did the agency err in concluding that Feitosa’s

5    expulsion from his family’s home at age 17 did not rise to the

6    level   of   persecution.      Economic   deprivation   constitutes

7    persecution “if its impact is an infliction of suffering or harm

8    that on its own would be sufficient to constitute persecution.”

9    Huo Qiang Chen v. Holder, 773 F.3d 396, 405 (2d Cir. 2014)

10   (internal quotation marks omitted).        While Feitosa’s family

11   withdrew housing and economic support, he found an alternate

12   place to live and a job.      Accordingly, the IJ’s determination

13   was not erroneous.

14       With respect to future persecution or torture, we review

15   a determination regarding the likelihood of future events for

16   substantial evidence.       Hui Lin Huang, 677 F.3d at 134; Yanqin

17   Weng, 562 F.3d at 513.       In this case, Feitosa did not allege

18   any individualized fear of future persecution (other than his

19   claims of past persecution discussed above); accordingly, to

20   prove his entitlement to relief, he had to show a pattern or

21   practice of persecuting or torturing gay men in Brazil.        See

                                       4
1    Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008).

2    His country conditions evidence consisted of two newspaper

3    articles and one report.        This evidence revealed numerous

4    troubling incidents of violence towards gay men in Brazil.

5    However, as the agency concluded, the evidence of approximately

6    188 killings of gay men based on their sexual orientation in

7    2012 is not enough to establish, by a clear probability, that

8    the harm inflicted on gay men in Brazil is sufficiently

9    “systemic or pervasive as to amount to a pattern or practice

10   of persecution.”   In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A.

11   2005); Mufied v. Mukasey, 508 F.3d 88, 92–93 (2d Cir. 2007)

12   (accepting BIA’s standard as reasonable); see also Hongsheng

13   Leng, 528 F.3d at 142.

14        Finally, Feitosa’s argument that the IJ was biased is not

15   supported by the record.    An adverse ruling, on its own, does

16   not constitute judicial bias.    See Liteky v. United States, 510

17   U.S. 540, 555 (1994).    Feitosa’s argument that the IJ failed

18   to consider evidence of country conditions is refuted by the

19   record, and we do not require an IJ to “enumerate and evaluate

20   on the record each piece of evidence, item by item.”      Xiao Ji

21   Chen, 471 F.3d at 341.   His argument that the IJ erred in failing

                                      5
1   to request additional evidence fails because it was Feitosa’s

2   burden to establish his eligibility for relief.     8 C.F.R.

3   § 1208.16(b), (c)(2).

4       For the foregoing reasons, the petition for review is

5   DISMISSED in part and DENIED in part.

6                               FOR THE COURT:
7                               Catherine O=Hagan Wolfe, Clerk




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