     Case: 09-60350     Document: 00511069950          Page: 1    Date Filed: 04/05/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             April 5, 2010
                                     No. 09-60350
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MIGUEL ANGEL HERNANDEZ RAMIREZ,

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A095 875 396


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Miguel Angel Hernandez Ramirez, a native and citizen of Mexico, petitions
this court to review the decision of the Board of Immigration Appeals (BIA) to
reverse the decision of the immigration judge (IJ) and deny his application for
withholding of removal. He does not challenge the BIA’s rulings that his asylum
application was untimely and that he failed to establish that he was entitled to
relief under the Convention Against Torture; thus, these claims are abandoned.
See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-60350

      Hernandez Ramirez contends that the BIA misapplied the standards of
review applicable to the IJ’s decision and that the IJ’s finding of past persecution
was a factual finding that the BIA should have reviewed only for clear error. See
8 C.F.R. § 1003.1(d)(3)(i). Although an IJ’s finding about “‘what happened’ to the
individual” constitutes a factual finding reviewable for clear error, the
determination by the IJ that those facts rise to the level of past persecution
constitutes a legal question that the BIA may review de novo.             Board of
Immigration Appeals: Procedural Reforms to Improve Case Management, 67
Fed. Reg. 54,878-01, 54,890 (Aug. 26, 2002); see, e.g. Matter of A-S-B-, 24 I&N
Dec. 493, 496-98 (BIA 2008); § 1003.1(d)(3)(ii). The agency’s interpretation of its
rules is entitled to deference unless the interpretation is “arbitrary, capricious,
or manifestly contrary to the statute.” Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844 (1984); see also United States v. Mead
Corp., 533 U.S. 213, 229-31 (2001). The BIA’s decision did not reweigh the facts
found by the IJ but instead determined that the facts alleged by Hernandez
Ramirez did not rise to the level of persecution. Cf. Alvarado de Rodriguez v.
Holder, 585 F.3d 227, 235 (5th Cir. 2009) (holding that the BIA’s actions in
reweighing the facts regarding a bona fide marriage constituted an improper
application of the standard of review).
      Hernandez Ramirez asserts that he established past persecution because
the undisputed evidence established that he was raped on account of his
homosexuality. See Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822-23 (BIA
1990) (a person’s sexual orientation may form the basis for an asylum claim as
a particular social group). He contends that his testimony established that his
reporting the rape to authorities was futile and that he was not required to
demonstrate that the Mexican government refused to protect him. Hernandez
Ramirez also contends that the fact that ho ophobic practices and beliefs
continue to exist in Mexico, despite the fact that the Mexican government has
prohibited discrimination based on sexual orientation and engaged in campaigns

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                                No. 09-60350
for tolerance of homosexuals, establishes that he will be persecuted if he returns
to Mexico. We conclude from a review of the record that the BIA’s determination
is supported by substantial evidence, and the record does not compel a
conclusion contrary to the BIA’s denial of withholding of removal. See Chen v.
Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006); Tesfamichael v. Gonzales, 469
F.3d 109, 113 (5th Cir. 2006); Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002).
The petition for review is thus DENIED.




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