                                                                           FILED
                              NOT FOR PUBLICATION                           DEC 29 2010

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




                              FOR THE NINTH CIRCUIT



DONG GEN PIAO,                                    No. 08-70573

               Petitioner,                        Agency No. A098-445-408

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

               Respondent.



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

                             Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and CLIFTON, Circuit Judges.

       Dong Gen Piao, a native and citizen of China, petitions 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”). We have jurisdiction


          *
             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).
under 8 U.S.C. § 1252. We review de novo questions of law, and we review for

substantial evidence factual findings. See Husyev v. Mukasey, 528 F.3d 1172,

1177-78 (9th Cir. 2008). We deny the petition for review.

      The record does not compel the conclusion that Piao established

extraordinary circumstances excusing his untimely filed asylum application. See 8

C.F.R. § 1208.4(a)(5).

      Piao does not contend he suffered past persecution but claims he will be

persecuted on account of his practice of Falun Gong. Substantial evidence

supports the agency’s denial of withholding of removal because the problems his

wife has experienced do not compel the conclusion that it is more likely than not

that he will suffer future persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1184-

85 (9th Cir. 2003).

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

because Piao failed to establish it is more likely than not he would be tortured if

removed to China. See Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir. 2009).

We do not consider the country report Piao references in his opening brief because

our review is limited to the administrative record underlying the immigration

judge’s decision. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).

      PETITION FOR REVIEW DENIED.


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