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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60374

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

F I L E D

December 16, 2009

Charles R. Fulbruge III

Clerk
No. 09-60374

2

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
No. 09-60374

3

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.