                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 22 2012

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




                            FOR THE NINTH CIRCUIT



ZHONGGUI CAO,                                    No. 10-71953

              Petitioner,                        Agency No. A099-402-038

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

              Respondent.



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

                        Argued and Submitted June 13, 2012
                                Honolulu, Hawaii

Before: SCHROEDER, CALLAHAN, and N.R. SMITH, Circuit Judges.




       Zhonggui Cao, a native and citizen of China, petitions for review of a

decision of the Board of Immigration Appeals (BIA) affirming an immigration

judge’s (IJ) denial of his application for asylum and withholding of removal. We

have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
BIA’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.

2006). We deny the petition for review.

1.    Substantial evidence supports the BIA’s finding that Cao did not suffer past

persecution where he was detained for two days, without physical injury, and

warned once not to participate in Christian house churches. See Gu v. Gonzales,

454 F.3d 1014, 1019-21 (9th Cir. 2006) (brief detention, beating, and interrogation

did not compel a finding of past persecution by Chinese police on account of

unsanctioned religious practice); see also Prasad v. INS, 47 F.3d 336, 340 (9th Cir.

1995) (“Although a reasonable factfinder could have found this incident sufficient

to establish past persecution, we do not believe that a factfinder would be

compelled to do so.”).

2.    Substantial evidence also supports the BIA’s finding that Cao does not have

a well-founded fear of future persecution. See Gu, 454 F.3d at 1021-22. Because

Cao did not suffer from past persecution, he does not have a rebuttable

presumption of future persecution. See 8 C.F.R. § 1208.13(b)(1). Cao has not

demonstrated even a ten percent chance of future persecution. Al-Harbi v. INS,

242 F.3d 882, 888 (9th Cir. 2001). His similarly situated wife remains in China

and continues to participate in house church activities without incident. See

Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (“An applicant’s claim of


                                          2
persecution upon return is weakened, even undercut, when similarly-situated

family members continue to live in the country without incident . . . .” (internal

quotation marks and citation omitted)), superseded by statute on other grounds as

stated in Ramadan v. Gonzalez, 479 F.3d 646, 650 (9th Cir. 2007). While other

members of Cao’s house church have been arrested, there is no evidence regarding

the details of the arrest. Lastly, country reports do not indicate that future

persecution is likely, because Cao is not a prominent leader nor in a large house

church group. See Molina-Estrada v. INS, 293 F.3d 1089, 1095-96 (9th Cir. 2002).

Thus, “[a] reasonable factfinder would not be compelled to conclude that [Cao]

either suffered past persecution or has a well-founded fear of persecution.” Gu,

454 F.3d at 1022. Accordingly, Cao’s asylum claim fails.

3.     Cao did not assert that the BIA erred in denying withholding of removal in

his opening brief. Thus, it is waived. See Martinez-Serrano v. INS, 94 F.3d 1256,

1259 (9th Cir. 1996) (issue not argued in opening brief deemed waived). Even if

not waived, because Cao failed to establish his eligibility for asylum, he

necessarily failed to meet the higher standard of eligibility for withholding of

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

      PETITION FOR REVIEW DENIED.




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