
    Elvis Augusto SIMIONI, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
    No. 10-4822-ag.
    United States Court of Appeals, Second Circuit.
    April 18, 2012.
    
      James A. Welcome, Waterbury, CT, for Petitioner.
    Tony West, Assistant Attorney General; James E. Grimes, Senior Litigation Counsel; Gregory M. Kelch, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
    PRESENT: JOHN M. WALKER, JR., ROBERT A. KATZMANN and PETER W. HALL, Circuit Judges.
   SUMMARY ORDER

Petitioner Elvis Augusto Simioni (“Si-mioni”), a native and citizen of Brazil, seeks review of an October 26, 2010, order of the BIA, affirming the November 6, 2008, decision of Immigration Judge (“IJ”) Michael W. Straus, which pretermitted his application for asylum and denied his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Elvis Augusto Simioni, No. [ AXXX XXX XXX ] (B.I.A. Oct. 26, 2010), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. Hartford Nov. 6, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mulcasey, 514 F.3d 233, 237 (2d Cir.2008). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009).

I. Humanitarian Asylum

Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, we retain jurisdiction to review constitutional claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D). While Si-mioni argues that the IJ erred by failing to assess his eligibility for humanitarian asylum, as the government points out, IJ’s lack discretion to grant humanitarian asylum where, as here, the underlying asylum application is untimely. See 8 C.F.R. § 1208.13(b)(l)(iii), (c)(1); 8 U.S.C. § 1158(a)(2). Because Simioni’s eligibility for humanitarian asylum is foreclosed by the agency’s finding that his application for asylum was untimely, and he has not identified any errors of law in this finding, we lack jurisdiction to review his arguments concerning his eligibility for humanitarian asylum.

II. Past Persecution

Although Simioni argues that the IJ applied an overly rigorous standard in rejecting his claim for withholding of removal based on past persecution, the IJ reasonably determined that because Si-mioni failed to satisfy his burden of demonstrating past persecution with respect to asylum, he necessarily failed to meet the higher burden required for withholding of removal. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004) (“Because the withholding of removal analysis overlaps factually with the asylum analysis, but involves a higher burden of proof, an alien who fails to establish his entitlement to asylum necessarily fails to establish his entitlement to withholding of removal.”)

In finding that Simioni failed to establish past persecution, the IJ reasonably determined that the sexual abuse he suffered at the hands of his brother was not on account of a protected ground. Pursuant to 101(a)(3) of the REAL ID Act, 8 U.S.C. § 1158(b)(l)(B)(i), “the applicant must establish that [a protected ground] was or will be at least one central reason for” the claimed persecution. See also 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.16(b)(1). Notwithstanding Si-mioni’s conclusory assertion that the record supports his past persecution claim, the IJ properly determined that there was no evidence in the record indicating that his brother’s abuse was motivated by a belief that Simioni was gay.

III.Likelihood of Future Persecution

As Simioni points out, the agency failed to consider his HIV-positive status in finding that he did not establish a likelihood of future persecution in Brazil. We have found that the agency must “consider all factual assertions in an applicant’s claim for eligibility [except] where the evidence in support of a factor potentially giving rise to eligibility is ‘too insignificant to merit discussion.’ ” Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10 (2d Cir.2007) (en banc). While the government contends that Si-mioni did not argue that he would be persecuted because he is HIV-positive, the memorandum he submitted to the IJ clearly stated that his HIV status placed him at additional risk of future persecution because he would experience significant societal scorn, harassment, and possible denials of medical care and employment. Moreover, at the merits hearing Simioni’s counsel explicitly argued that his fear of persecution was based, in part, on his HIV-positive status, and Simioni contested the IJ’s denial of relief on this ground before the BIA. “The BIA, when considering an appeal, must actually consider the evidence and argument that a party presents.” Yan Chen v. Gonzales, 417 F.3d 268, 272 (2d Cir.2005) (internal quotation marks omitted). Because the BIA failed to consider Simioni’s HIV-positive status, it erred in assessing the likelihood of future persecution, and remand of these proceedings is appropriate. See Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007) (recognizing that this Court limits its review to the agency’s reasoning and will not search the record for alternative bases on which to affirm the agency’s decision).

For the foregoing reasons, the petition for review is DISMISSED, in part, as we lack jurisdiction to consider the denial of humanitarian asylum; DENIED, in part, as the agency did not err in finding that Simioni failed to establish past persecution; and GRANTED, in part, as the agency did not consider Simioni’s HIV-positive status in assessing the likelihood of future persecution.  