Simioni v. Holder
Failure to consider whether a petitioner established a fear of future persecution, as a result of the petitioner's HIV-positive status, may constitute a rationale for remand to the Board of Immigration Appeals. The petitioner, a citizen of Brazil, applied for asylum, withholding of removal and relief under the Convention Against Torture. Hartford Immigration Judge Michael Straus pretermitted his application for asylum and denied the remainder of his application. The Board of Immigration Appeals affirmed. The 2nd Circuit lacked jurisdiction to consider the petitioner's request for humanitarian asylum, because the petitioner did not identify any errors of law in the immigration judge's conclusion that his application was not filed timely. The petitioner apparently argued that he was a victim of sexual abuse and that this qualified as past persecution. To prevail, the petitioner was required to establish a protected ground constituted one of the primary reasons for the alleged persecution. The immigration judge did not abuse his discretion when he found that the petitioner failed to establish a protected ground constituted one of the primary reasons for the alleged abuse by an older sibling. The petitioner also argued that the board did not consider whether there is a likelihood of future persecution, if he returns to Brazil, because of his HIV-positive status. The petitioner clearly indicated that he was concerned about denial of medical treatment and employment, as a result of his HIV-positive status. "Because the [Board of Immigration Appeals] failed to consider [the petitioner's] HIV-positive status," wrote the 2nd Circuit, "it erred in assessing the likelihood of future persecution." The 2nd Circuit remanded, to permit further consideration of the petitioner's HIV-positive status.