     Case: 17-60289      Document: 00514569440         Page: 1    Date Filed: 07/24/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 17-60289                           July 24, 2018
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
ELFEGO EMMANUEL ARCE-AGUIRRE, also known as David Arce-Aguirre,
also known as Manuel Arce, also known as Christian David Trevino,

                                                 Petitioner

v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A205 458 152


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Elfego Emmanuel Arce-Aguirre, a native and citizen of Mexico, petitions
for review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from the denial by an Immigration Judge (IJ) of his application for
withholding of removal and protection under the Convention Against Torture
(CAT).



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-60289

      We generally review only the BIA’s decision except to the extent that the
IJ’s ruling influences the BIA. Wang v. Holder, 569 F.3d 531, 536 (5th Cir.
2009). Here, the BIA approved of, and relied on, the IJ’s findings; thus, we
may review the decisions of the IJ and BIA. See Wang, 569 F.3d at 536.
      Additionally, we review for substantial evidence the determination that
an alien is not eligible for relief. Zhang v. Gonzales, 432 F.3d 339, 344 (5th
Cir. 2005).   Under that standard, this court may not reverse the factual
findings of the BIA unless the evidence compels it, i.e., the evidence must be
so compelling that no reasonable factfinder could conclude against it. Wang,
569 F.3d at 536-37.
      Arce-Aguirre challenges his prior deportation in 2012, arguing that
misinformation by a government agent caused him to waive his due process
rights and sign a stipulated request for removal. However, he did not raise
this as an issue in his appeal to the BIA. Accordingly, he has failed to exhaust
this issue and we lack jurisdiction to consider it. See Wang v. Ashcroft, 260
F.3d 448, 452-53 (5th Cir. 2001). For the first time in his reply brief, Arce-
Aguirre argues that his 2006 Texas conviction of attempted burglary did not
constitute a crime involving moral turpitude, and he contends that he is
entitled to apply for asylum. However, we will not consider arguments raised
for the first time in a reply brief. See Yohey v. Collins, 985 F.2d 222, 225 (5th
Cir. 1993).
      Additionally, Arce-Aguirre contends that he is entitled to withholding of
removal because he demonstrated that it was more likely than not that he
would be persecuted upon his return to Mexico based on his membership in a
social group comprised of “young, [m]ale, repatriated Mexicans raised in the
United States since childhood and who can’t speak Mexican Spanish.” “An
applicant for withholding of removal must show that it is more likely than not



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                                  No. 17-60289

that his life or freedom would be threatened by persecution on account of . . .
race, religion, nationality, membership in a particular social group, or political
opinion.” Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002) (internal quotation
marks and citation omitted); see 8 C.F.R. § 1208.16(b)(1)(iii). With regard to
membership in a particular social group, an alien must demonstrate that he is
a member of a group of persons that “share a common immutable characteristic
that they cannot change or should not be required to change because it is
fundamental to their individual identities or consciences.” Orellana-Monson
v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (internal quotation marks and
citations omitted).
      Substantial evidence supports a determination that Arce-Aguirre did not
establish that he was a member of a cognizable particular social group. See id.
at 518-19; Wang, 569 F.3d at 536-37. His description of his particular social
group is overbroad and fails to provide an adequate benchmark for determining
group membership. See Gonzalez-Soto v. Lynch, 841 F.3d 682, 684 (5th Cir.
2016); Orellana-Monson, 685 F.3d at 519, 521-22. Therefore, the record does
not compel a finding contrary to that of the BIA as to whether Arce-Aguirre
established his eligibility for withholding of removal. See Wang, 569 F.3d at
537; Efe, 293 F.3d at 906.
      Arce-Aguirre also argues that the BIA erred in determining that he was
not entitled to relief under the CAT because it misinterpreted and misapplied
the CAT’s definition of torture. He contends that he was beaten by unknown
men, that police made him stand up while in pain and took a bribe from him
to return him home after the beating, and that he was questioned at a military
checkpoint at gunpoint about his lack of identification and his whereabouts
before he was deported.




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                                  No. 17-60289

      For an alien to obtain relief under the CAT, he must show that it is more
likely than not that he would be tortured if he returned to the designated
country of removal. § 1208.16(c)(2). “Torture” includes any act by which severe
pain or suffering, either physical or mental, is intentionally inflicted on a
person for such purposes as intimidating or coercing him when the pain or
suffering is inflicted at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity.        8 C.F.R.
§ 1208.18(a)(1).
      Arce-Aguirre’s evidence of country conditions and past incidents does not
compel a finding that it is more likely than not that he will be tortured by or
with the consent or acquiescence of the Mexican government upon his return
to Mexico. See §§ 1208.16(c)(2), 1208.18(a)(1); Wang, 569 F.3d at 537. Notably,
he has provided no evidence, beyond his own speculation, that the beating that
he received from an unknown group of men was done by or with the
acquiescence of the Mexican government, and the record contains evidence
that the Mexican government has taken action to aid deportees and fight
corruption and criminal action. See § 1208.18(a)(7); Ramirez-Mejia v. Lynch,
794 F.3d 485, 493-94 (5th Cir. 2015); Chen v. Gonzales, 470 F.3d 1131, 1142-
43 (5th Cir. 2006); Tamara-Gomez v. Gonzales, 447 F.3d 343, 350-51 (5th Cir.
2006); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 354-55 (5th Cir. 2002).
      In light of the foregoing, Arce-Aguirre’s petition for review is DENIED.




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