NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XUEQIANG XU, No. 12-73356
Petitioner, Agency No. A089-992-399
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Xueqiang Xu, a native and citizen of China, petitions pro se 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”). Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th
Cir. 2006). We deny in part and dismiss in part the petition for review.
We do not consider the materials Xu references in his opening brief that are
not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th
Cir. 1996) (en banc).
Substantial evidence supports the BIA’s conclusion that, even if credible,
Xu’s experiences in China did not rise to the level of persecution. See Nagoulko v.
INS, 333 F.3d 1012, 1016-17 (9th Cir. 2003) (record did not compel finding of past
persecution where petitioner did not suffer economic deprivation rising to the level
of persecution and did not suffer any significant physical harm); see also Jiang v.
Holder, 611 F.3d 1086, 1095 (9th Cir. 2010) (petitioner “cannot qualify for refugee
status solely on the basis of [his wife’s] forced abortion”). Substantial evidence
also supports the BIA’s conclusion Xu failed to establish a well-founded fear of
future persecution. See Gu v. Gonzales, 454 F.3d 1014, 1022 (9th Cir. 2006)
(applicant did not present compelling evidence of a well-founded fear of future
persecution). Thus, Xu’s asylum claim fails.
In this case, because Xu failed to establish eligibility for asylum, his
withholding of removal claim fails. See Zehatye, 453 F.3d at 1190. We lack
jurisdiction to consider Xu’s contentions regarding a pattern and practice of
2 12-73356
persecution or membership in a disfavored group. See Barron v. Ashcroft, 358
F.3d 674, 678 (9th Cir. 2004) (petitioner must exhaust claims in administrative
proceedings below).
Finally, substantial evidence supports the BIA’s denial of CAT relief
because Xu failed to show it is more likely than not he would be tortured by or
with the consent or acquiescence of the Chinese government. See Silaya v.
Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 12-73356