                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 28 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FRANCISCO JAVIER REYES-                          No. 10-73749
CORADO,

              Petitioner,                        Agency No. A098-799-409

  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 June 6, 2014
                              Pasadena, California

Before: TROTT and CALLAHAN, Circuit Judges, and CHEN, District Judge.**

       Petitioner Javier Reyes-Corado petitions for review of two BIA decisions

denying his request for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). Mr. Reyes contends that he is entitled to


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Edward M. Chen, United States District Court for the
Northern District of California, sitting by designation.
relief because, if he were to return to Guatemala, his country of citizenship, he

would be killed by his paternal cousins. According to Mr. Reyes, there is a feud

within his extended family that stems from a conflict between his father Noe and

his uncle Simon. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny

the petition.

       First, CAT relief is not appropriate without a finding of government

acquiescence. See 8 C.F.R. § 1208.18(a)(1). Here, there is substantial evidence to

support the agency’s conclusion of no government acquiescence.2 See Delgado v.

Holder, 648 F.3d 1095, 1108 (9th Cir. 2011); Zehatye v. Gonzales, 453 F.3d 1182,

1185 (9th Cir. 2006). “Acquiescence of a public official requires that the public

official, prior to the activity constituting torture, have awareness of such activity

and thereafter breach his or her legal responsibility to intervene to prevent such

activity.” 8 C.F.R. § 1208.18(a)(7). “[A]wareness includes both actual knowledge

and willful blindness.” Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003)

(internal quotation marks omitted).



       2
        Contrary to what Mr. Reyes argues, the IJ did make a finding of no
government acquiescence (i.e., by concluding that Mr. Reyes did not meet his
burden of proof on the issue). The Court also rejects Mr. Reyes’s argument that the
IJ improperly denied him the opportunity to develop the record on government
acquiescence, either in the original November 2006 hearing or later on remand
from the BIA. The Court agrees with the reasoning of the BIA in its second
decision.
      In the case at bar, the government cannot be said to be willfully blind absent

awareness on its part that the deaths in the Reyes family were linked, i.e., caused

by a family-based rivalry. There is substantial evidence that the government did

not have any such awareness. As the IJ and BIA noted, no one in the “family ever

contacted Guatemalan officials to intervene in their long-standing feud,” AR 52,

and Mr. Reyes’s “mother refused to disclose to the police anything about his

father’s murder that could have aided a police investigation.” AR 5. Furthermore,

it would not be evident from the publicly known circumstances that the deaths

were linked. For example, the death of Mr. Reyes’s father, Noe, took place

approximately ten years after the kidnapping of Simon, Mr. Reyes’s uncle. Also,

since the kidnapping of Simon took place before the end of the Guatemalan civil

war, his death might have been attributed to the war rather than a family feud.

      Second, Mr. Reyes’s request for asylum or withholding of removal is also

denied. To obtain such relief, an applicant must show that the persecution was

“‘committed by the government or forces the government is either unable or

unwilling to control.’” Doe v. Holder, 736 F.3d 871, 877-78 (9th Cir. 2013).

Here, for the reasons stated above, there is no evidence that the government was
aware the deaths in the Reyes family were the result of a family-based feud.3 Mr.

Reyes’s suggestion that he can establish government inability or unwillingness to

control without a showing that the government was aware of the persecution is

meritless. As with the CAT, the government must be aware of the activity

constituting the persecution. See, e.g., Castro-Martinez v. Holder, 674 F.3d 1073,

1081 (9th Cir. 2011) (stating that “an applicant can demonstrate the government’s

lack of ability or willingness to respond to violence by ‘establishing that private

persecution of a particular sort is widespread and well-known but not controlled by

the government’ or ‘showing that others have made reports of similar incidents to

no avail’”).

      Mr. Reyes’s request for asylum and withholding of removal also fails on

another ground. The BIA found that Mr. Reyes failed to establish past




      3
         Although the BIA did not expressly reject asylum or withholding of
removal on the ground of government inability or unwillingness to control, see AR
90 (addressing only “harm at the hands of the government”), it would be a useless
formality to remand to the agency to make a determination on the issue based on
this record. See, e.g., Zhong v. United States DOJ, 480 F.3d 104, 117 (2d Cir.
2007) (stating that “‘remand to the BIA is futile . . . when overwhelming evidence
in the record makes it clear that the same decision is inevitable on remand”); Vista
Hill Found., Inc. v. Heckler, 767 F.2d 556, 566 n.9 (9th Cir. 1985) (stating that
“‘Chenery does not require that we convert judicial review of agency action into a
ping-pong game’[;] [a] remand is not required when it ‘would be an idle and
useless formality’”) (internal citation omitted).
persecution.4 That finding is supported by substantial evidence. There were no

threats to Mr. Reyes prior to his departure from Guatemala. In fact, his father was

killed after Mr. Reyes left the country. Consequently, in order to obtain relief, Mr.

Reyes, and not the government, had the burden of establishing that internal

relocation in Guatemala was not reasonable. 8 C.F.R. § 1208.13(b)(1)(i)(B), (ii)

(asylum); see also id. § 1208.16(b)(1)(i)(B), (ii) (withholding of removal).

      Based on the uncontested evidence of record, the BIA correctly concluded

that Mr. Reyes did not satisfy his burden of proving that any relocation would be

unreasonable. See Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004) (asking

whether there was substantial evidence to support the BIA’s finding that petitioners

could relocate safely within Pakistan without facing persecution). The only

evidence Mr. Reyes presented was that Guatemala is approximately the size of

Tennessee and that his immediate family lives in Salinas. He presented no

evidence that his return to another part of Guatemala would be discovered, nor that

      4
         The BIA’s interpretation of past persecution (i.e., persecution in the
relevant country before the alien applicant departed that country) is not contrary to
the plain and sensible meaning of the relevant immigration statutes. See
Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir. 2003) (stating that “[t]he BIA’s
interpretation of immigration laws is entitled to deference” unless “clearly contrary
to the plain and sensible meaning of the statute”); see also Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) (noting
that, so long as the agency construction is reasonable, a court must accept that
construction, “even if the agency’s reading differs from what the court believes is
the best statutory interpretation”).
his alleged prosecutors would have the means of harming him outside of Salinas.

Rather, as the BIA pointed out in its second decision, there was only speculation on

the part of Mr. Reyes’s attorney. See INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992).

      Finally, Mr. Reyes argues that, his constitutional rights were violated

because, under the BIA’s second decision and 8 C.F.R. § 1240.26(i), he was denied

voluntary departure simply because he exercised his right to judicial relief. This

argument must be rejected in light of our en banc decision in Garfias-Rodriguez v.

Holder, 702 F.3d 504 (9th Cir. 2012).

      Petition DENIED.
