                                                                             FILED
                             NOT FOR PUBLICATION                              MAR 25 2010

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




                             FOR THE NINTH CIRCUIT



 ENELE MAAFU TUIFAGALELE,                          No. 07-70903

               Petitioner,                         Agency No. A078-185-527

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

               Respondent.



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

                             Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Enele Maafu Tuifagalele, a native and citizen of Fiji, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order denying his motion to remand

and dismissing his appeal from an immigration judge’s (“IJ”) decision denying his



          *
             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).

PR/Research
application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. We review for substantial evidence factual findings, Nagoulko v. INS, 333

F.3d 1012, 1015 (9th Cir. 2003), and de novo claims of due process violations in

removal proceedings, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We

review for abuse of discretion the BIA’s denial of the motion to remand.

Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny the petition for

review.

       Substantial evidence supports the IJ’s finding that, even if Tuifagalele’s

asylum application was timely, the discrimination and harassment he experienced

on account of his Tongan ethnicity and his support for Indo-Fijians did not rise to

the level of persecution. See Nagoulko, 333 F.3d at 1016-17; see also Padash v.

INS, 358 F.3d 1161, 1166 (9th Cir. 2004). Substantial evidence also supports the

IJ’s finding that Tuifagalele failed to establish a well-founded fear of future

persecution. See id. Accordingly, Tuifagalele’s asylum claim fails. In light of our

disposition regarding Tuifagalele’s asylum claim, we do not address his due

process and equal protection contentions relating to the BIA’s denial of his asylum

application as untimely.




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       Because Tuifagalele did not establish eligibility for asylum, it necessarily

follows that he did not satisfy the more stringent standard for withholding of

removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

       Substantial evidence supports the IJ’s denial of CAT relief, because

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

returned to Fiji. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir. 2004).

       Tuifagalele’s contention that his due process rights were violated because

the IJ rushed through the hearing and denied him the opportunity to fully and

properly present his case fails because he did not demonstrate prejudice. See Lata

v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial

prejudice for a petitioner to prevail on a due process claim). Tuifagalele’s

contention that the BIA deprived him of due process and equal protection by

misapplying the law to the facts of his case is not supported by the record. See id.

       Finally, the BIA did not abuse its discretion in denying Tuifagalele’s motion

to remand proceedings because he failed to demonstrate the evidence he submitted

was previously unavailable. See 8 C.F.R. § 1003.2(c)(1). We reject Tuifagalele’s

conclusory equal protection contention relating to the BIA’s consideration of his

explanations contained in the motion to remand.

       PETITION FOR REVIEW DENIED.


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