UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at Foley Square, in the City of New York, on the 17th day of May, two thousand four.

Present: HON. PIERRE N. LEVAL, HON. ROBERT A. KATZMANN, Circuit Judges, and HON. J. GARVAN MURTHA,*

District Judge.

GALINA DAGENVALDE, Petitioner, No. 02-4289

-v-

IMMIGRATION AND NATURALIZATION SERVICE and JOHN ASHCROFT, Attorney General of the United States, Respondents.

Submitting For Petitioner: PAULETTE DETIBERIIS, Kuba, Mundy &

Associates, New York, N.Y.

Submitting For Respondents: DAVID S. RUBENSTEIN, Assistant United States Attorney (Sara L. Shudofsky, Assistant United States Attorney, on the brief), for David N. Kelley, United States Attorney for the Southern District of New York, New York, N.Y.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Board of Immigration Appeals be and hereby is AFFIRMED.

Petitioner Galina Dagenvalde, a native of the former Soviet Union and a legal permanent resident of Latvia, petitions this Court for review of the final order of removal of the Board of Immigration Appeals ("BIA"). We review the factual findings of the BIA and of the Immigration Judge ("IJ") pursuant to the "substantial evidence standard." Secaida-Rosales v. INS, 331 F.3d 297, 306-07 (2d Cir. 2003). "Under this standard, we will not disturb a factual finding if it is supported by 'reasonable, substantial, and probative' evidence in the record when considered as a whole." Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003). For the reasons that follow, we affirm.

Upon review of the record, we find that substantial evidence supports the IJ's determination that Dagenvalde failed to establish either past persecution or reasonable fear of future persecution. While the evidence shows that Dagenville was subjected to discrimination and harassment, a reasonable fact finder could have found that this treatment did not rise to the level of persecution. Accordingly, the IJ and BIA did not err in finding that Dagenvalde was not a refugee within the meaning of § 101(a)(42) of the Immigration and Nationality Act ("INA"), 8

U.S.C. § 1101(a)(42) (2000) and was therefore ineligible for asylum under INA § 208, 8 U.S.C.

§ 1158 (2000). See Melgar de Torres v. Reno, 191 F.3d 307, 311 (2d Cir. 1999). For the same reasons, the IJ properly determined that Dagenvalde failed to establish a "clear probability" that she would suffer persecution if returned to Latvia. She therefore failed to satisfy the more stringent standard necessary to prevail on her withholding of deportation claim. See 8 U.S.C.

§ 1231(b)(3) (2000); 8 C.F.R. § 208.16(b)(1); see also Zhang v. Slattery, 55 F.3d 732, 738 (2d Cir. 1995). Finally, Dagenvalde has waived her Convention Against Torture claim by failing to raise it on appeal to the BIA or in her brief to this Court. See Howell v. INS, 72 F.3d 288, 291

(2d Cir. 1995) ("[A] party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself.")

(internal quotation marks omitted).

Accordingly, Dagenville's instant petition is DENIED.

FOR THE COURT:

ROSEANN B. MacKECHNIE, CLERK By: Richard Alcantara, Deputy Clerk

[*]-. The Honorable J. Garvan Murtha, of the United States District Court for the District of Vermont, sitting by designation.