                                                                           FILED
                              NOT FOR PUBLICATION                          DEC 21 2012

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



                              FOR THE NINTH CIRCUIT


MING LI,                                         No. 10-72128

               Petitioner,                       Agency No. A098-355-938

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

               Respondent.


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

                             Submitted December 19, 2012**

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Ming Li, 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 (“IJ”) decision denying his application for asylum, withholding of removal,

and relief 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 for substantial evidence factual findings and

review de novo legal findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.

2009). We deny the petition for review.

      The BIA assumed that Li was credible and expressly declined to address the

IJ’s adverse credibility finding. Because our review is limited by the scope of the

BIA’s order, we deny the petition for review as to this issue. See Kyung Park v.

Holder, 572 F.3d 619, 622 (9th Cir. 2009).

      Li contends he qualifies for asylum on account of China’s One-Child policy

because “he has been both harmed, and threatened with harm” and could be

forcibly sterilized if returned to China. Substantial evidence supports the BIA’s

finding that his single arrest and beating do not rise to the level of persecution. See

Gu v. Gonzales, 454 F.3d 1014, 1020–21 (9th Cir. 2006). Substantial evidence

also supports the BIA’s finding that Li does not have a well-founded fear of future

persecution given that he lived unharmed and worked several different jobs in

China for three years after his arrest and given the lack of evidence that anyone in

China continues to seek him. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.

2000); Singh v. INS, 134 F.3d 962, 969 (9th Cir. 1998). Finally, Li does not

challenge the BIA’s finding that he is ineligible for asylum based on his former

girlfriend’s forced abortion. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60


                                           2                                    10-72128
(9th Cir. 1996) (issues not raised and argued in opening brief are waived).

Accordingly, his asylum claim fails.

       Because Li has not met his burden of establishing eligibility for asylum, he

necessarily fails to meet the heavier burden of qualifying for withholding of

removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

       Lastly, substantial evidence supports the BIA’s denial of CAT relief because

Li failed to establish that it is more likely than not that he will be tortured if

returned to China. See Wakkary, 558 F.3d at 1067–68.

       PETITION FOR REVIEW DENIED.




                                             3                                       10-72128
