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

                                                 FILED
                                                                         December 16, 2009

                                     No. 09-60374                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



RAJU THAPA; POONAM THAPA; PAURAKH BIKRAM THAPA,

                                                   Petitioners
v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                   Respondent




                      On Petition for Review of an Order of the
                          Board of Immigration Appeals
                                BIA No. A 88 413 598
                                BIA No. A 88 413 599
                                BIA No. A 88 058 204


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
       The Thapa family petitions us for review of the Board of Immigration
Appeals's ("BIA") final order dismissing their appeal of the immigration judge's
("IJ") order of removal and denial of asylum. For the following reasons, we
DENY the petition.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 09-60374

1.   All of Petitioners' arguments are styled on behalf of lead Petitioner Raju
     Thapa ("Petitioner"). See 8 U.S.C. § 1158(b)(3). The IJ determined that
     Petitioner's application for asylum was untimely and that Petitioner failed
     to meet the procedural requirements for demonstrating "extraordinary
     circumstances" based on ineffective assistance of counsel. See 8 U.S.C. §
     1158(a)(2)(B), (D); 8 C.F.R. § 1208.4(a)(5)(iii)(A). The BIA affirmed the IJ's
     determination. Petitioner has provided no explanation why he failed to
     comply with the procedural requirements for his out-of-time application.
     We agree with the BIA's determination on this issue. Inasmuch as the IJ's
     decision to reject Petitioner's out-of-time application is based on the
     particular facts and circumstances of Petitioners' case, we have no
     jurisdiction to review such findings. See 8 U.S.C. § 1158(a)(3); Zhu v.
     Gonzales, 493 F.3d 588, 594-95 (5th Cir. 2007).
2.   Even if we were to excuse the filing requirements of 8 C.F.R.
     § 1208.4(a)(5)(iii)(A), Petitioner has otherwise failed to demonstrate that
     he is eligible for asylum as a "refugee" pursuant to 8 U.S.C.
     § 1101(a)(42)(A). Specifically, Petitioner has failed to demonstrate past
     persecution or a well-founded fear that he will be subject to future
     persecution based on his membership in a particular social group if he
     returns to Nepal. See § 1101(a)(42)(A); Eduard v. Ashcroft, 379 F.3d 182,
     188-89 (5th Cir. 2004). We are not persuaded that economic extortion is
     a form of persecution under immigration law; nor do Nepalese
     businessmen appear to be a particular social group meriting asylum
     protection. See, e.g., Davila-Mejia v. Mukasey, 531 F.3d 624, 629 (8th Cir.
     2008) (holding that "under BIA precedent, the term 'family business
     owner' is too amorphous to adequately describe a social group"); Himani
     v. Gonzales, 246 F. App'x 879, 882 (5th Cir. 2007) (unpub.) (kidnapping for
     extortion of a successful businessman did not support claim of

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                                No. 09-60374

     persecution); Lopez v. Gonzales, 192 F. App'x 19, 22 (1st Cir. 2006)
     (unpub.) (affirming IJ decision which held that economic extortion "'is
     not . . . what Congress contemplated when enacting the refugee statutes
     and creating asylum for people here in the United States'"); Garcia v. U.S.
     Attorney Gen., 143 F. App'x 217, 222 (11th Cir. 2005) (unpub.) ("Groups of
     people who are connected only on the basis of their economic status do not
     form a social group for asylum purposes.") (internal quotes and cites
     omitted).   Finally, there is substantial evidence supporting the BIA's
     determination that the Maoist rebels that purportedly extorted Petitioner
     were motivated by an economic interest and not a desire to persecute
     Petitioner. Cf. Dhakal v. Holder, 320 F. App'x 561, 2009 WL 766516, at
     *1 (9th Cir. Mar. 24, 2009) (unpub.); Lama v. Mukasey, 261 F. App'x 305,
     306 (2d Cir. 2008) (unpub.); Yadav v. Attorney Gen. of U.S., 179 F. App'x
     133, 135 (3d Cir. 2006) (unpub.). Petitioner is therefore ineligible for
     asylum.
3.   Petitioner argues that he is entitled to withholding of removal. However,
     "failure to establish eligibility for asylum is dispositive of claims for
     withholding of removal." Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir.
     2006).
4.   Finally, Petitioner argues that he is entitled to protection under the
     Convention against Torture.      However, we agree with the BIA that
     Petitioner failed to establish that it is more likely than not that he would
     be tortured if removed. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); Majd,
     446 F.3d at 595-96.
PETITION DENIED.




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