                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 18 2011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



GUANGMIN LU,                                     No. 08-72606

               Petitioner,                       Agency No. A097-859-288

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

               Respondent.



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

                             Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       Guangmin Lu, a native and citizen of China, petitions pro se for review of

the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his application for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). Our


          *
             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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1

(1992). We deny the petition for review.

      Substantial evidence supports the agency’s finding that Lu’s arrest,

detention, and mistreatment by Chinese authorities on account of his participation

in a Christian house church do not rise to the level of persecution. See Gu v.

Gonzales, 454 F.3d 1014, 1019-21 (9th Cir. 2006) (detention, beating, and

interrogation did not compel a finding of past persecution by Chinese police on

account of unsanctioned religious practice); 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.”) (emphasis in original). Substantial evidence also

supports the agency’s finding that Lu failed to demonstrate he had a well-founded

fear of future persecution due to his participation in a Christian house church. See

Gu, 454 F.3d 1021-22; Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.

2002) (when a petitioner has not established past persecution the agency is entitled

to rely on a State Department report in considering whether there is a good reason

to fear future persecution). The evidence in the record does not support Lu’s

arguments, raised for the first time in his brief to the court, that he is a member of a


                                           2                                     08-72606
disfavored group, or that he is a member of a group subject to a pattern or practice

of persecution. Accordingly, Lu’s asylum claim fails.

         Because Lu failed to establish his eligibility for asylum, he 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 Lu has not shown that it is more likely than not he will be tortured if

returned to China. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.

2009).

         PETITION FOR REVIEW DENIED.




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