                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 19 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



NOEL ANTONIO GUTIERREZ,                          No. 07-75102

               Petitioner,                       Agency No. A078-104-704

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

               Respondent.



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

                             Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Noel Antonio Gutierrez, a native and citizen of Nicaragua, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his application for withholding of

removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo the


          *
             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).
agency’s legal determinations and we review for substantial evidence factual

findings. Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). We deny the

petition.

       Gutierrez contends that he established a clear probability of future

persecution based solely on having suffered past persecution. Substantial evidence

supports the BIA’s determination that Gutierrez failed to establish that the harm he

suffered rose to the level of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179,

1182 (9th Cir. 2003) (harassment and one beating unconnected with any particular

threat did not compel finding of past persecution); see also Prasad v. INS, 47 F.3d

336, 340 (9th Cir. 1995) (“Although a reasonable factfinder could have found this

incident sufficient to establish past persecution, we do not believe that a factfinder

would be compelled to do so.”). Further, the record does not compel the

conclusion that Gutierrez has a clear probability of future harm. See Hoxha, 319

F.3d at 1184-85. Because Gutierrrez does not otherwise challenge the agency’s

finding, his withholding of removal claim fails. See Lim, 224 F.3d at 938.

       PETITION FOR REVIEW DENIED.




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