Rebecca Percy v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
DEC 18 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REBECCA EMILY PERCY, No. 16-70690
Petitioner, Agency No. A208-082-462
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 12, 2019**
Pasadena, California
Before: N.R. SMITH and WATFORD, Circuit Judges, and HELLERSTEIN,***
District Judge.
Rebecca Percy petitions for review of an order of the Board of Immigration
Appeals (“BIA”). The BIA dismissed petitioner’s appeal from an Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
Judge’s (“IJ”) decision denying petitioner’s application for asylum and withholding
of removal under 8 U.S.C. §§ 1158(a) and 1231(b)(3), and denying petitioner’s
application for relief under the Convention Against Torture (“CAT”). Petitioner, a
native of the United Kingdom, testified that she suffered physical and sexual abuse
and sexual trafficking at the hands of her parents from the time she was a young child.
She argues that she faces persecution and torture if she returns to the United Kingdom.
This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review for
substantial evidence any factual findings supporting the BIA’s determination that
petitioner has not established eligibility for asylum, withholding of removal, or CAT
relief. Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013). Questions of law are
reviewed de novo. Id. “Where the BIA issues its own decision but relies in part on
the immigration judge’s reasoning, we review both decisions.” Flores-Lopez v.
Holder, 685 F.3d 857, 861 (9th Cir. 2012).
According to the BIA decision, the IJ properly found that petitioner was
ineligible for asylum because she could not establish that the U.K. government was
unable or unwilling to protect her. See Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th
Cir. 2004) (“To establish eligibility for asylum on the basis of past persecution, an
applicant must prove an incident that . . . is committed by the government or forces
the government is either unable or unwilling to control.”). Substantial evidence
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supports this determination because officials responded to petitioner’s reports of abuse
by investigating her claims, removing her from the family home, and providing her
with social services like residential care through the foster care system. Though
officials were unsuccessful in stopping the abuse and prosecuting the offenders, the
government’s failure to control alleged persecution is not a sufficient basis for asylum
where the investigation was hindered by lack of evidence. Cf. Truong v. Holder, 613
F.3d 938, 941 (9th Cir. 2010) (finding authorities investigated but were unable to
locate unknown assailants).
The BIA also approved the IJ’s findings that petitioner’s circumstances had
changed because she became an adult and that she could relocate within the United
Kingdom to avoid her abusers. Substantial evidence supports that determination. All
of petitioner’s past abuse was confined to a single city, where her parents lived, when
she might have been too young to travel to another part of the United Kingdom. This
is a sufficient basis to deny asylum even if petitioner had established past persecution.
8 C.F.R. § 208.13(b)(1)(i); Deloso v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir. 2005).
For the foregoing reasons, substantial evidence also supports the decision of the IJ and
BIA that the more stringent standard for withholding of removal could not be
satisfied. Petitioner is not able to demonstrate a clear probability that she would be
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persecuted if she returned to the United Kingdom and moved away from her parents.
See Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000).
To qualify for relief under CAT, an applicant must show “that it is more likely
than not that he or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 208.16(c)(2); see also Garcia-Milian v. Holder, 755 F.3d 1026,
1033 (9th Cir. 2014). An applicant also must show that the torture was “inflicted by
or at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). Substantial evidence
supports the BIA assessment that petitioner failed to establish she would likely be
tortured with the consent or acquiescence of the U.K. government. The government’s
investigations and provision of social services demonstrate that it was not willfully
blind to her torture.
Finally, petitioner argues that she should have been granted humanitarian
asylum, but she failed to raise that issue before the BIA. Petitioner’s “‘[f]ailure to
raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with
respect to that question and deprives this court of jurisdiction to hear the matter.’”
Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004) (quoting Vargas v. U.S. Dep’t of
Immigration & Naturalization, 831 F.2d 906, 907-08 (9th Cir. 1987)). Therefore, we
will not consider the issue of humanitarian asylum.
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PETITION DENIED.
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