                                                                           FILED
                              NOT FOR PUBLICATION                          DEC 02 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


HUGO RODRIGUES MACIEL,                           No. 12-70648

               Petitioner,                       Agency No. A088-447-312

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       Hugo Rodrigues Maciel, a native and citizen of Brazil, 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 relief under the Convention Against Torture (“CAT”). We have


          *
             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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual

findings, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and we

deny the petition for review.

      Substantial evidence supports the BIA’s finding that even if Maciel’s asylum

application was timely, he failed to establish past persecution in Brazil based on

the threats he and his family received following a police officer’s mistaken

shooting of his brother. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.

2003) (unfulfilled threats constituted harassment, not persecution). Substantial

evidence also supports the BIA’s finding that Maciel failed to demonstrate a well-

founded fear of future harm because his mother and brother remain in Brazil

unharmed. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003); see also

Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (claim weakened or undercut

when similarly-situated family members remain in applicant’s home country

without incident). Accordingly, Maciel’s asylum claim fails.

      Because Maciel failed to establish eligibility for asylum, he necessarily

failed to meet the more stringent standard for withholding of removal. See

Zehatye, 453 F.3d at 1190.




                                          2                                    12-70648
      Finally, substantial evidence also supports the BIA’s denial of CAT relief

because Maciel failed to establish it is more likely than not that he will be tortured

if returned to Brazil. See Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011).

      PETITION FOR REVIEW DENIED.




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