Dong Gen Piao v. Holder , 407 F. App'x 201 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONG GEN PIAO, No. 08-70573
Petitioner, Agency No. A098-445-408
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Dong Gen Piao, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s decision denying his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 U.S.C. § 1252. We review de novo questions of law, and we review for
substantial evidence factual findings. See Husyev v. Mukasey, 528 F.3d 1172,
1177-78 (9th Cir. 2008). We deny the petition for review.
The record does not compel the conclusion that Piao established
extraordinary circumstances excusing his untimely filed asylum application. See 8
C.F.R. § 1208.4(a)(5).
Piao does not contend he suffered past persecution but claims he will be
persecuted on account of his practice of Falun Gong. Substantial evidence
supports the agency’s denial of withholding of removal because the problems his
wife has experienced do not compel the conclusion that it is more likely than not
that he will suffer future persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1184-
85 (9th Cir. 2003).
Finally, substantial evidence supports the agency’s denial of CAT relief
because Piao failed to establish it is more likely than not he would be tortured if
removed to China. See Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir. 2009).
We do not consider the country report Piao references in his opening brief because
our review is limited to the administrative record underlying the immigration
judge’s decision. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).
PETITION FOR REVIEW DENIED.
2 08-70573