                                                                              FILED
                            NOT FOR PUBLICATION                               SEP 10 2014

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



                            FOR THE NINTH CIRCUIT


YONGJI QUAN,                                     No. 09-73454

              Petitioner,                        Agency No. A075-657-318

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

              Respondent.


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

                       Argued and Submitted August 8, 2014
                               Pasadena, California

Before: WARDLAW, CALLAHAN, and M. SMITH, Circuit Judges.

       Petitioner Yongji Quan (“Quan”), a native and citizen of China and claimed

Falun Gong practitioner, petitions for review of the Board of Immigration Appeals’

(“BIA’s”) affirmation of an immigration judge’s (“IJ’s”) denial of relief pursuant

to the Convention Against Torture (“CAT”). We deny the petition because Mr.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Quan has not established that he is more likely than not to be tortured should he

return to China.1

      An applicant seeking CAT protection bears the burden of establishing: (1)

that it is more likely than not that he will suffer intentionally cruel and inhuman

treatment; and (2) that this treatment will have been “‘inflicted by or at the

instigation of or with the consent or acquiescence of a public official or person

acting in an official capacity.’” Abufayad v. Holder, 632 F.3d 623, 631-32 (9th

Cir. 2011) (quoting 8 C.F.R. § 1208.18(a)(1)). While reasonable minds could

differ as to whether the petitioner faced more than a 50% chance of torture upon

return, we may not grant the petition unless a reasonable factfinder would be

compelled to conclude that the BIA’s determination that Mr. Quan failed to meet

his heavy burden of showing a clear probability of torture should he return to

China is incorrect. Id. at 633; see also Blandino-Medina v. Holder, 712 F.3d 1338,

1348 (9th Cir. 2013) (accepting the IJ’s finding of past persecution, but concluding

that the BIA properly “found that the record as a whole provided insufficient

evidence to establish that it was ‘more likely than not’ that [the petitioner] would

be tortured by the . . . government” in the future).



      1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                           2
       Mr. Quan claimed to have been arrested and held for three days for holding

Falun Gong meetings in a residential apartment in Beijing. He maintains that he

was beaten on the first day of his captivity, suffering injury to his right arm.

However, Mr. Quan was unable to produce a record of his arrest. Further, the

record of the hospital visit that he alleges was for treatment of injuries incident to

his arrest does not mention his arm; rather, it cites chronic fatigue, aches and

weakness throughout the preceding year. Moreover, Mr. Quan testified that he was

able to practice Falun Gong without further problems during the three years that he

remained in China following his arrest. Although Mr. Quan’s documentary

evidence suggests that some Falun Gong practitioners in China may face the

possibility of torture, we cannot find that it compels a finding that it is “more likely

than not that [Mr. Quan] would be tortured if removed to [China].” 8 C.F.R. §

1208.16(c)(2); see also Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006)

(“Although the reports confirm that torture takes place in [the petitioner’s native

country], they do not compel the conclusion that [the petitioner] would be tortured

if returned.”).2

              PETITION DENIED.



       2
            Because this decision is dispositive, we do not address other
arguments raised by the parties.

                                           3
