                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 25 2010

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




                              FOR THE NINTH CIRCUIT



 ROMAN IVANOVICH POSTOENKO,                       No. 06-73030

               Petitioner,                        Agency No. A098-532-923

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

               Respondent.



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

                             Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Roman Ivanovich Postoenko, a native and citizen of Russia, petitions for

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

from an immigration judge’s (“IJ”) decision denying his application for asylum,

          *
             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, and we therefore deny Postoenko’s request for oral
argument. See Fed. R. App. P. 34(a)(2).

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withholding of removal, and protection under the Convention Against Torture

(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence findings of fact, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85

(9th Cir. 2006), and de novo questions of law, Vasquez-Zavala v. Ashcroft, 324

F.3d 1105, 1107 (9th Cir. 2003). We deny in part and dismiss in part the petition

for review.

       Substantial evidence supports the IJ’s denial of asylum, because Postoenko

failed to demonstrate that the harms he suffered on account of his religion when he

was at school amounted to persecution, see Gu v. Gonzales, 454 F.3d 1014, 1019-

21 (9th Cir. 2006) (no past persecution where petitioner was detained for three

days, beaten and interrogated), that the 2004 skinhead incident was on account of a

protected ground, see Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004), or

that he was or will be persecuted on account of his religion for avoiding

conscription, see Zehatye, 453 F.3d at 1187. Substantial evidence further supports

the IJ’s denial of asylum because Postoenko’s voluntary return to Russia

undermines his well-founded fear of future persecution. See Kumar v. Gonzales,

439 F.3d 520, 524 (9th Cir. 2006).

       Because Postoenko did not establish eligibility for asylum, it necessarily




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follows that he did not satisfy the more stringent standard for withholding of

removal. See Zehatye, 453 F.3d at 1190.

       Substantial evidence supports the IJ’s denial of CAT relief because

Postoenko failed to show it was more likely than not he would be tortured if he

returns to Russia. See Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir. 2007).

       We lack jurisdiction to consider Postoenko’s claims that the IJ erred in

misstating the record regarding when he left for the United States and the

circumstances surrounding his conscription because he failed to raise them before

the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Accordingly,

we reject Postoenko’s contention that the BIA erred by failing to address these

claims.

       Finally, we decline to reach those issues raised for the first time by

Postoenko in his reply brief, including his contentions that the IJ abused his

discretion by failing to: (1) consider the 2002 skinhead attack and police

harassment; (2) question Postoenko about the severity of the 2004 skinhead attack;

and (3) question whether Postoenko’s mother knew of the 2004 skinhead attack.

See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues raised

for the first time in the reply brief are waived.”).

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.


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