Giovanni Rosal v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION NOV 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GIOVANNI E. ROSAL, No. 12-70291
Petitioner, Agency No. A070-964-190
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 7, 2013
San Francisco, California
Before: FARRIS, BLACK**, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.
Giovanni Rosal petitions for review of the removal order entered against him
by the Board of Immigration Appeals. We have jurisdiction over the petition under
8 U.S.C. § 1252(a).
We affirm the Board of Immigration Appeals’ order of removal. The BIA &
IJ’s determinations of legal questions are reviewed de novo. Ali v. Holder, 637
F.3d 1025, 1028 (9th Cir. 2011). Their factual findings are reviewed for substantial
evidence. Id.at 1028-29.
“The ability to demonstrate past persecution triggers a rebuttable
presumption of a well-founded fear of future persecution.” Garcia-Martinez v.
Ashcroft, 371 F.3d 1066, 1073 (9th Cir. 2004). We have remanded cases based
upon the failure to properly place the legal burden of proof. Mashiri v. Ashcroft,
383 F.3d 1112, 1123 (9th Cir. 2004).
Rosal established past persecution. Rosal failed to raise the argument to the
BIA that the IJ applied the wrong burden of proof, and we consequently lack
jurisdiction to consider it. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).
We note, however, that the Immigration Judge correctly placed the burden of proof
on the Department of Homeland Security to establish by a preponderance of
evidence “that the applicant can reasonably relocate internally to an area of safety.”
Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir. 2003). The IJ stated the
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correct legal standard and properly applied it, finding that the evidence introduced
by DHS outweighed both the presumption and the evidence presented by Rosal.
The BIA's decision that Rosal could reasonably relocate is upheld if it is
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Li v. Holder, 559 F.3d 1096, 1102 (9th Cir. 2009).
Reversal is not warranted unless it is determined that any reasonable factfinder
would have been compelled to reach a different conclusion. See Lolong v.
Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007). The relocation inquiry contains
two parts: 1) DHS must show that there is an area “of the country where he or she
has no well-founded fear of persecution,” Matter of M-Z-M-R-, 26 I. & N. Dec. 28,
33 (BIA 2012); and 2) DHS must show by a preponderance of the evidence that
“under all the circumstances, it would be reasonable to expect the applicant to
[relocate]” 8 C.F.R. § 1208.13(b)(1)(i)(B).
The record does not compel a conclusion contrary to that reached by the BIA
but rather includes substantial evidence that Rosal would be able to live in
Guatemala City without a “well-founded fear of persecution.” There is a small, but
active gay community and there have been recent steps by the government of
Guatemala to recognize and protect the rights of homosexuals. Substantial
evidence supports the BIA’s determination that Rosal's status as an adult, single
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male and the developed structure of Guatemala City made internal relocation
reasonable, despite Rosal's family ties to Quetzaltenango and lack of connections
in Guatemala City.
AFFIRMED.
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