                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          JUN 11 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

CHUNGZHONG PAN,                                  No. 07-71321
                                                     08-70620
               Petitioner,
                                                 Agency No. A096-059-321
  v.

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

               Respondent.




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

                                                      **
                             Submitted May 25, 2010

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       In these consolidated petitions, Chungzhong Pan, 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




          *
             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).
asylum and withholding of removal application in petition No. 07-71321 and the

BIA’s order denying his motion to reopen removal proceedings in petition No.

08-70620. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the BIA’s denial of asylum and withholding of removal. See

INS v. Elias-Zacarias, 502 U.S. 478, 481 fn.1 (1992). We review for abuse of

discretion the denial of a motion to reopen, INS v. Doherty, 502 U.S 314, 323, 324

(1992). We dismiss in part and deny in part the petition for review in No. 07-

71321. We deny the petition for review in No. 08-70620.

      As to No. 07-71321, we lack jurisdiction to review Pan’s claims that the IJ

failed to consider evidence of his persecution, and abused his discretion in denying

his request for a continuance because he did not exhaust them. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      We decline to address Pan’s CAT contention because it was not addressed by

the BIA. See Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004) (“we must

decide whether to grant or deny the petition for review based on the Board’s

reasoning rather than our own independent analysis of the record”). To the extent

the BIA erred by failing to address Pan’s eligibility for CAT relief, the contention

is waived. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).




                                          2                                    07-71321
      Substantial evidence supports the BIA’s conclusion that Pan failed to

establish past persecution or a well-founded fear of future persecution on account

of a protected ground based on his testimony that government cadres beat him after

his brother injured someone and his family failed to pay the injury settlement. See

Elias-Zacarias, 502 U.S. at 481-83. Substantial evidence also supports the BIA’s

determination that Pan does not have a well-founded fear of future persecution

based on China’s one child policy because Pan testified he did not know of any

problems he would face if he returned to China with more than one child. See

Zhao v. Mukasey, 540 F.3d 1027, 1029-30 (9th Cir. 2008) (subjective fear

requirement met when petitioner testified credibly to having such fear).

Accordingly, his asylum and withholding of removal claims fail.

      As to No. 08-70620, the BIA did not abuse its discretion in denying Pan’s

motion to reopen based on his violation of China’s one child policy because Pan’s

evidence of multiple children was previously available and the country report

evidence that women in Pan’s municipality are subject to sterilization for having

more than one child is not material to Pan as a man. See Doherty, 502 U.S at 324

(the moving party must show that previously unavailable material evidence could

not have been discovered or presented at the former hearing).




                                          3                                   07-71321
No. 07-71321: PETITION FOR REVIEW DISMISSED in part;

            DENIED in part.

No. 08-70620: PETITION FOR REVIEW DENIED.




                          4                            07-71321
