                                                                           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                             NOT FOR PUBLICATION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




                                           3
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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