Roman Ivanovich Postoenko v. ERIC H. HOLDER Jr., Attorney General

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, and we therefore deny Postoenko’s request for oral
argument. See Fed. R. App. P. 34(a)(2).
PR/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMAN IVANOVICH POSTOENKO,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 06-73030
Agency No. A098-532-923
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Roman Ivanovich Postoenko, a native and citizen of Russia, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for asylum,
FILED
FEB 25 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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withholding of removal, and protection under the Convention Against Torture
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence findings of fact, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85
(9th Cir. 2006), and de novo questions of law, Vasquez-Zavala v. Ashcroft, 324
F.3d 1105, 1107 (9th Cir. 2003). We deny in part and dismiss in part the petition
for review.
Substantial evidence supports the IJ’s denial of asylum, because Postoenko
failed to demonstrate that the harms he suffered on account of his religion when he
was at school amounted to persecution, see Gu v. Gonzales, 454 F.3d 1014, 1019-
21 (9th Cir. 2006) (no past persecution where petitioner was detained for three
days, beaten and interrogated), that the 2004 skinhead incident was on account of a
protected ground, see Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004), or
that he was or will be persecuted on account of his religion for avoiding
conscription, see Zehatye, 453 F.3d at 1187. Substantial evidence further supports
the IJ’s denial of asylum because Postoenko’s voluntary return to Russia
undermines his well-founded fear of future persecution. See Kumar v. Gonzales,
439 F.3d 520, 524 (9th Cir. 2006).
Because Postoenko did not establish eligibility for asylum, it necessarily

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follows that he did not satisfy the more stringent standard for withholding of
removal. See Zehatye, 453 F.3d at 1190.
Substantial evidence supports the IJ’s denial of CAT relief because
Postoenko failed to show it was more likely than not he would be tortured if he
returns to Russia. See Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir. 2007).
We lack jurisdiction to consider Postoenko’s claims that the IJ erred in
misstating the record regarding when he left for the United States and the
circumstances surrounding his conscription because he failed to raise them before
the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Accordingly,
we reject Postoenko’s contention that the BIA erred by failing to address these
claims.
Finally, we decline to reach those issues raised for the first time by
Postoenko in his reply brief, including his contentions that the IJ abused his
discretion by failing to: (1) consider the 2002 skinhead attack and police
harassment; (2) question Postoenko about the severity of the 2004 skinhead attack;
and (3) question whether Postoenko’s mother knew of the 2004 skinhead attack.
See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues raised
for the first time in the reply brief are waived.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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