                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

XUEQIANG XU,                                    No.    12-73356

                Petitioner,                     Agency No. A089-992-399

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                               Submitted May 24, 2017**

Before:      THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

      Xueqiang Xu, a native and citizen of China, petitions pro se 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”). Our


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

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

Cir. 2006). We deny in part and dismiss in part the petition for review.

      We do not consider the materials Xu references in his opening brief that are

not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th

Cir. 1996) (en banc).

      Substantial evidence supports the BIA’s conclusion that, even if credible,

Xu’s experiences in China did not rise to the level of persecution. See Nagoulko v.

INS, 333 F.3d 1012, 1016-17 (9th Cir. 2003) (record did not compel finding of past

persecution where petitioner did not suffer economic deprivation rising to the level

of persecution and did not suffer any significant physical harm); see also Jiang v.

Holder, 611 F.3d 1086, 1095 (9th Cir. 2010) (petitioner “cannot qualify for refugee

status solely on the basis of [his wife’s] forced abortion”). Substantial evidence

also supports the BIA’s conclusion Xu failed to establish a well-founded fear of

future persecution. See Gu v. Gonzales, 454 F.3d 1014, 1022 (9th Cir. 2006)

(applicant did not present compelling evidence of a well-founded fear of future

persecution). Thus, Xu’s asylum claim fails.

      In this case, because Xu failed to establish eligibility for asylum, his

withholding of removal claim fails. See Zehatye, 453 F.3d at 1190. We lack

jurisdiction to consider Xu’s contentions regarding a pattern and practice of


                                          2                                      12-73356
persecution or membership in a disfavored group. See Barron v. Ashcroft, 358

F.3d 674, 678 (9th Cir. 2004) (petitioner must exhaust claims in administrative

proceedings below).

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

because Xu failed to show it is more likely than not he would be tortured by or

with the consent or acquiescence of the Chinese government. See Silaya v.

Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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