                                                                           FILED
                             NOT FOR PUBLICATION                            APR 25 2012

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




                             FOR THE NINTH CIRCUIT



JOSE MERCEDES RIOS-FLORES,                       No. 08-72876

               Petitioner,                       Agency No. A094-371-830

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

               Respondent.



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

                             Submitted April 17, 2012 **

Before:        LEAVY, PAEZ, and BEA, Circuit Judges.

       Jose Mercedes Rios-Flores, a native and citizen of El Salvador, petitions for

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

from an immigration judge’s decision denying his application for withholding of

removal and protection under the Convention Against Torture (“CAT”). We have


          *
             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 under 8 U.S.C. § 1252. We review for substantial evidence factual

findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and we deny the

petition for review.

         Substantial evidence supports the agency’s conclusion that the beating and

subsequent threat Rios-Flores suffered did not rise to the level of persecution. See

Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (beating and repeated

threats of harm or death were not “so severe as to compel a finding of past

persecution”). Substantial evidence also supports the agency’s determination that

Rios-Flores did not establish a clear probability of future persecution. See

Canales-Vargas v. Gonzales, 441 F.3d 739, 747 (9th Cir. 2006) (concluding that

threats received thirteen years prior did not establish clear probability of future

persecution). Accordingly, Rios-Flores’ withholding of removal claim fails.

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

because Rios-Flores failed to establish it is more likely than not he will be tortured

upon return to El Salvador. See Wakkary, 558 F.3d at 1067-68.

         Finally, we decline to consider the new evidence Rios-Flores references in

his opening brief because our review of the BIA’s order is limited to the

administrative record. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en

banc).


                                           2                                     08-72876
PETITION FOR REVIEW DENIED.




                       3      08-72876
