                                                                           FILED
                              NOT FOR PUBLICATION                           MAR 02 2012

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




                               FOR THE NINTH CIRCUIT



ROZALIYA MYGALYUK; MYKHAILO                        No. 08-72887
BENDERLIY,
                                                   Agency Nos. A079-610-393
               Petitioners,                                    A079-610-394

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

               Respondent.



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

                              Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Rozaliya Mygalyuk and Mykhailo Benderliy, natives of the Soviet Union

and citizens of Ukraine, petition for review of the Board of Immigration Appeals’

order dismissing their appeal from an immigration judge’s (“IJ”) decision denying

Mygalyuk’s 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, Wakkary v. Holder, 558 F.3d 1049,

1056 (9th Cir. 2009), and deny the petition for review.

      Substantial evidence supports the IJ’s finding that Mygalyuk did not suffer

past persecution because the discrimination and harassment she endured did not

constitute persecution, even when considered cumulatively. See Halaim v. INS,

358 F.3d 1128, 1132 (9th Cir. 2004). Further, substantial evidence supports the

IJ’s conclusion that Mygalyuk failed to demonstrate a well-founded fear of

persecution. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003); Hakeem v.

INS, 273 F.3d 812, 816 (9th Cir. 2001) (claim weakened or undercut when the

applicant returns to the country or similarly-situated family members remain there

without incident). Accordingly, Mygalyuk’s asylum claim fails.

      Because Mygalyuk failed to establish eligibility for asylum, she necessarily

failed to meet the higher standard of eligibility for withholding of removal. See

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

      Finally, substantial evidence supports the agency’s denial of CAT relief

because Mygalyuk failed to establish it is more likely than not she will be tortured

if returned to Ukraine. See Wakkary, 558 F.3d at 1067-68.

      PETITION FOR REVIEW DENIED.


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