                             NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                      AUG 24 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 WENQIANG XU,                                      No.   12-73428

              Petitioner,                          Agency No. A088-463-496

    v.
                                                   MEMORANDUM*
 LORETTA E. LYNCH, Attorney General,

              Respondent.

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

                             Submitted August 16, 2016**

Before:        O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.

         Wenqiang Xu, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) 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


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the

agency’s factual findings. Zehatye v. Gonzalez, 453 F.3d 1182, 1184-85 (9th Cir.

2006). We deny the petition for review.

      We do not consider new evidence that was not part of the record before the

agency. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc).

      The record does not compel the conclusion that the mistreatment Xu

suffered in China rose to the level of past persecution. See Gu v. Gonzales, 454

F.3d 1014, 1019-21 (9th Cir. 2006) (arrest, beating, interrogation, and three-day

detention for illegal house church activity did not rise to the level of persecution);

see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1 (1992) (“[t]o reverse the

BIA finding [the court] must find that the evidence not only supports that

conclusion, but compels it”) (emphasis in original). Substantial evidence supports

the agency’s determination that Xu did not establish a well-founded fear of future

persecution. See id. at 1021-22; Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001)

(claim of future persecution weakened when similarly-situated family members

continue to live in the country without incident). Thus, we deny the petition as to

Xu’s asylum claim.

      Because Xu did not establish eligibility for asylum, his withholding of

                                           2                                    12-73428
removal claim necessarily fails. See Zehatye, 453 F.3d at 1190.

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

because Xu failed to establish that he would more likely than not be tortured by or

with the consent or acquiescence of a government official if returned to China.

See Zheng v. Holder, 644 F.3d at 829, 835-36 (9th Cir. 2011).

      PETITION FOR REVIEW DENIED.




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