         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




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