     Case: 18-60614      Document: 00515070212         Page: 1    Date Filed: 08/09/2019




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

                                                                               FILED
                                    No. 18-60614                          August 9, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
OCTAVIO SANCHEZ PEDROSA, also known as Octavio Sanchez,

                                                 Petitioner

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A022 415 928


Before REAVLEY, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Octavio Sanchez Pedrosa, a native and citizen of Mexico, has filed a
petition for review of a decision by the Board of Immigration Appeals (BIA).
The BIA dismissed his appeal from the immigration judge’s denial of his
request for withholding of removal. “[W]ithholding of removal is a mandatory
form of relief if an alien’s life or freedom would be threatened in the country of
removal because of the alien’s race, religion, nationality, membership in a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60614

particular social group, or political opinion.” Shaikh v. Holder, 588 F.3d 861,
864 (5th Cir. 2009). To establish membership in a particular social group, an
alien “must show that he was a member of a group of persons that share a
common characteristic that they either cannot change or should not be
required to change because it is fundamental to their individual identities or
consciences.” Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 352 (5th Cir. 2002);
see Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985). “However, the risk
of persecution alone does not create a particular social group.” Orellana-
Monson v. Holder, 685 F.3d 511, 518-19 (5th Cir. 2012) (internal quotation
marks, brackets, and citation omitted).
      We review the BIA’s factual conclusion that Sanchez Pedrosa is not
eligible for withholding under the substantial evidence standard. See Zhang
v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). Thus, reversal is unwarranted
unless we determine “not only that the evidence supports a contrary
conclusion, but also that the evidence compels it.” Orellana-Monson, 685 F.3d
at 518 (internal quotation marks and citation omitted).
      Sanchez Pedrosa contends that, if returned to Mexico, he will be harmed
by extortionists on account of his membership in a particular social group he
identifies as “small business owners who have resided in the U.S. from Mexico,
and are being targeted by [a gang known as] the Zetas.” The BIA agreed with
the immigration judge that Sanchez Pedrosa’s proposed group does not qualify
as a particular social group. Sanchez Pedrosa fails to show that the evidence
compels a conclusion that he is likely to suffer harm rising to the level of
persecution on account of his membership in a particular social group. See Arif
v. Mukasey, 509 F.3d 677, 680 (5th Cir. 2007); Orellana-Monson, 685 F.3d at
518; see also Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012)
(holding that extortion “by an anonymous group of individuals who perceive



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                                  No. 18-60614

petitioner’s family to be wealthy does not” warrant withholding of removal);
Acosta, 19 I. & N. Dec. at 234 (holding that members of a taxi cab cooperative
were not a particular social group because they could change their jobs).
      Sanchez Pedrosa also argues that the immigration court lacked
jurisdiction over his case because his notice to appear was deficient under
Pereira v. Sessions, 138 S. Ct. 2105 (2018). We lack jurisdiction to consider
this contention because it was not presented to the BIA. See Nunez v. Sessions,
882 F.3d 499, 505 n.2 (5th Cir. 2018) (holding that the court lacked jurisdiction
to consider an unexhausted contention that the notice to appear was defective).
      The petition for review is DENIED IN PART and DISMISSED IN PART
for lack jurisdiction.




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