IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60289

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

July 24, 2018

Lyle W. Cayce

Clerk

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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, ArceAguirre 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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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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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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