                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 18 2011

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




                             FOR THE NINTH CIRCUIT



ANDREY SERGEYEVICH LYABAKH,                      No. 09-72159

               Petitioner,                       Agency No. A071-382-001

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

               Respondent.



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

                             Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       Andrey Sergeyevich Lyabakh, a native and citizen of Ukraine, petitions pro

se for review of the Board of Immigration Appeals’ (“BIA”) order denying his

motion to remand and dismissing his appeal from an immigration judge’s decision

denying his application for asylum, withholding of removal, and relief under 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).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. We review for substantial evidence factual findings, Nagoulko v. INS, 333

F.3d 1012, 1015 (9th Cir. 2003), and for abuse of discretion the denial of a motion

to remand, Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008). We

deny the petition for review.

      The agency found Lyabakh ineligible for asylum based on his conviction for

an aggravated felony. Lyabakh does not challenge this dispositive finding in his

opening brief.

      Substantial evidence supports the agency’s denial of withholding of removal

because Lyabakh failed to demonstrate a clear probability of persecution based on

either his religion or his refusal to serve in the Ukrainian military due to his

religion. See Nagoulko, 333 F.3d at 1018 (fear of future harm is too speculative);

Zehatye v. Gonzales, 453 F.3d 1182, 1187-88 (9th Cir. 2006) (evidence did not

compel the conclusion that petitioner would be singled out for severe

disproportionate punishment on the basis of a protected ground for refusal to serve

in the military on religious grounds). Lyabakh’s assertion that the agency failed to

consider his and his mother’s testimony is belied by the record. Accordingly, his

withholding of removal claim fails.




                                            2                                      09-72159
      Substantial evidence supports the agency’s finding that Lyabakh did not

establish it is more likely than not he will be tortured upon return to Ukraine. See

Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009). Accordingly, his

CAT claim fails.

      Finally, the agency was within its discretion in denying Lyabakh’s motion to

remand because the BIA considered the evidence submitted and acted within its

broad discretion in determining that the evidence was insufficient to warrant

remand. See Romero-Ruiz, 538 F.3d at 1063-64; see also 8 C.F.R. § 1003.2(c)

(evidence submitted with a motion to reopen must be material and previously

unavailable at the former hearing).

      PETITION FOR REVIEW DENIED.




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