                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 09-2593
                                       ___________

                              HERNANDO RODRIGUEZ,
                                              Petitioner
                                      v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                    Respondent

                       ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A097-437-247)
                     Immigration Judge: Honorable Eugene Pugliese
                       ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 19, 2010
           Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

                              (Opinion filed: May 20, 2010)
                                     ___________

                                        OPINION
                                       ___________

PER CURIAM

       Hernando Rodriguez petitions for review of an order of the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order of removal. For the

reasons that follow, we will deny the petition for review.
       Petitioner, Hernando Rodriguez, is a native and citizen of Colombia. He entered

the United States in March 1999 and overstayed his visa. He is married to, but currently

separated from, a U.S. citizen. He and his wife initially pursued adjustment of status but

his application was denied, apparently due to their failure to appear for an interview. In

2004, removal proceedings were initiated against petitioner. In response, he applied for

withholding of removal and relief under the Convention Against Torture (“CAT”),

explaining that he feared persecution by “the authorities, the paramilitaries, or the

population in society in general” on the basis of his HIV-positive status.1 (App. 180.)

Following a hearing, the IJ denied his application, concluding that Rodriguez had failed

to meet his burden of proving a likelihood of persecution or torture. The BIA affirmed

and dismissed his appeal. Rodriguez timely filed a petition for review.

       We have jurisdiction over this petition for review under 8 U.S.C. § 1252. Where

the BIA agrees with the IJ’s factual findings and supplements its reasoning, we review

both decisions. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). Factual

findings are reviewed for “substantial evidence,” such that they must be upheld unless the

evidence not only supports a contrary conclusion, but compels it. See Abdille v.

Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). We apply de novo review to legal

determinations. See Kaplun v. Attorney Gen., __ F.3d __, 2010 WL 1409019, at *3 (3d


   1
    Rodriguez initially sought asylum, but withdrew his claim for relief, anticipating that
it would be deemed time-barred. See 8 U.S.C. § 1158(a)(2)(B) (asylum application must
be filed within one year of entry into United States).

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Cir. 2010).

       To be entitled to withholding of removal to a specific country, an applicant must

prove that it is more likely than not that his “life or freedom would be threatened in that

country because of [his] race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3); Zubeda v. Ashcroft, 333 F.3d 463,

469 (3d Cir. 2003). The applicant can satisfy this standard either by demonstrating past

persecution or a likelihood of future persecution. See 8 C.F.R. § 1208.16(b). An

applicant need not show that he would be singled out for persecution in the future if he

can demonstrate “that in that country there is a pattern or practice of persecution of a

group of persons similarly situated to the applicant” and the applicant is a member of such

a group. See 8 C.F.R. § 1208.16(b)(2). For relief under the CAT, an applicant must

prove that it is more likely than not that he would be tortured if removed to his country of

origin. See 8 C.F.R. § 1208.16(c)(2). “Torture is an extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel and inhuman treatment or

punishment that do not amount to torture.” Zubeda, 333 F. 3d at 472 (citing 8 C.F.R.

§ 1208.18(a)(2)).

       In support of his application, Rodriguez averred: “I fear that if I return to

Colombia I will be singled out and harmed by the authorities or third parties due to my

HIV infection status and because it will be presumed that I am either a drug addict, gay or

a prostitute. I fear that not only will medical attention be withheld due to my status but



                                              3
also that I will be physically harmed or killed as a result of hatred towards people with my

sickness.” (App. 180.) At the hearing, he testified regarding this fear, maintaining that if

he is removed to Colombia and the paramilitaries discover his medical condition, they

will think that he is a prostitute and an anti-social person and target him. (App. 74-78.)

He also testified that he does not believe the Colombian government would protect him as

it is corrupt, and that he does not know how he will treat his HIV in Colombia. (App.

76.) He did not offer any letters, affidavits or other testimony in support of his claim. He

did, however, submit numerous news articles describing discrimination against gay

people in Colombia and other countries, an article from 2001 describing the mandatory

HIV testing of all teen and adult residents of the town of Vista Hermosa by the

Revolutionary Armed Forces of Colombia (FARC) (App. 91), and a report titled “HIV

and AIDS in Latin America” which reported that another group, the United Self-Defense

Forces of Colombia (“the AUC”), demanded that all HIV-positive people in

Barrancabermeja abandon the city within 24 hours. (App. 113.)

       The IJ found that Rodriguez was a credible witness, is HIV positive and is

genuinely afraid to return to Colombia. However, the IJ concluded that Rodriguez had

not demonstrated that he is likely to be tortured or that it is more likely than not that his

life or freedom will be threatened due to his status. The IJ based this conclusion in part

on the facts that Rodriguez had not demonstrated that he is part of any particular social

group and that it is unlikely that anyone would be able to tell from looking at him that he



                                               4
is HIV positive. Additionally, the IJ held that Rodriguez failed to provide sufficient

documentation to support his argument that an HIV-positive person would be harmed by

paramilitaries because he is viewed as a prostitute or otherwise anti-social person. As it

was undisputed that Rodriguez was not persecuted in the past, and as he failed to

demonstrate a likelihood of persecution or torture in the future, the IJ concluded that he

had not met his burden of proof.

       The BIA found no clear error in the IJ’s factual findings and agreed that Rodriguez

had not met his burden of proof regarding the requested forms of relief. Assuming

without deciding that Rodriguez belonged to a particular social group composed of people

who are HIV positive, the BIA held that he nonetheless failed to demonstrate that it is

more likely than not that he would be persecuted or tortured by or with the acquiescence

of the Colombian government based on this status. See 8 C.F.R. § 1208.18(a)(1).

       In his petition for review, Rodriguez contests the IJ’s conclusions that others

would not know of his condition, that he did not present sufficient evidence of his

medical condition or of the availability or cost of medical treatment in Colombia, that he

failed to demonstrate that he belonged to a particular social group, and that it was unclear

whether banishment rose to the level of persecution. In addition, he argues that the IJ’s

failure to take judicial notice of the fact that his medications prevent him from visibly

manifesting signs of being HIV positive deprived him of his right to due process. While

we appreciate all of these arguments, we need not reach them, as we conclude that the



                                              5
BIA did not err in determining that, even assuming Rodriguez was a member of a

particular social group of people who are HIV positive, he did not demonstrate that it was

more likely than not that he would be persecuted or tortured in Colombia on the basis of

this group affiliation. Rodriguez did not present any evidence of a pattern and practice of

persecution of people with HIV positive status in Colombia, did not demonstrate that the

discriminatory practices of the paramilitary groups were widespread or likely to affect

him, and did not offer affirmative evidence that the government of Colombia is unable or

unwilling to control any such activities.

       Based on the foregoing, we will deny the petition for review.




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