                                                                           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                            NOT FOR PUBLICATION                            NOV 25 2013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


                                          3
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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