Wenqiang Xu v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENQIANG XU, No. 12-73428
Petitioner, Agency No. A088-463-496
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
Wenqiang Xu, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) 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
*
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).
have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings. Zehatye v. Gonzalez, 453 F.3d 1182, 1184-85 (9th Cir.
2006). We deny the petition for review.
We do not consider new evidence that was not part of the record before the
agency. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc).
The record does not compel the conclusion that the mistreatment Xu
suffered in China rose to the level of past persecution. See Gu v. Gonzales, 454
F.3d 1014, 1019-21 (9th Cir. 2006) (arrest, beating, interrogation, and three-day
detention for illegal house church activity did not rise to the level of persecution);
see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1 (1992) (“[t]o reverse the
BIA finding [the court] must find that the evidence not only supports that
conclusion, but compels it”) (emphasis in original). Substantial evidence supports
the agency’s determination that Xu did not establish a well-founded fear of future
persecution. See id. at 1021-22; Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001)
(claim of future persecution weakened when similarly-situated family members
continue to live in the country without incident). Thus, we deny the petition as to
Xu’s asylum claim.
Because Xu did not establish eligibility for asylum, his withholding of
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removal claim necessarily fails. See Zehatye, 453 F.3d at 1190.
Finally, substantial evidence supports the agency’s denial of CAT relief
because Xu failed to establish that he would more likely than not be tortured by or
with the consent or acquiescence of a government official if returned to China.
See Zheng v. Holder, 644 F.3d at 829, 835-36 (9th Cir. 2011).
PETITION FOR REVIEW DENIED.
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