Case: 13-60145 Document: 00512460019 Page: 1 Date Filed: 12/04/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60145 December 4, 2013
Summary Calendar
Lyle W. Cayce
Clerk
JAIME ANTONIO TORRES-VILLASANA,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089 936 753
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
Jaime Antonio Torres-Villasana, a native and citizen of Mexico, petitions
this court for review of a decision of the Board of Immigration Appeals (BIA)
affirming the decision of the immigration judge (IJ) denying his applications
for cancellation of removal and withholding of removal. He argues that the IJ
violated his due process rights by denying his application for cancellation of
removal without holding a full hearing. He also argues that the IJ erred as 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60145
matter of law by denying his application for withholding of removal. The
Government argues that this court lacks jurisdiction over Torres-Villasana’s
petition for review based on the criminal alien bar and the exhaustion doctrine.
Judicial review of a final removal order is available only if the alien has
exhausted all administrative remedies as of right. 8 U.S.C. § 1252(d)(1).
Failure to exhaust administrative remedies creates a jurisdictional bar to this
court’s consideration of an issue. Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir.
2001). “An alien fails to exhaust his administrative remedies with respect to
an issue when the issue is not raised in the first instance before the BIA –
either on direct appeal or in a motion to reopen.” Id. at 452-53.
Torres-Villasana’s sole argument before the BIA related to the IJ’s
alleged errors regarding his determination that Torres-Villasana was not
eligible for withholding of removal. Because Torres-Villasana failed to
challenge the denial of the application for cancellation of removal by raising
his due process argument before the BIA, the exhaustion doctrine precludes
this court’s review of the issue. Wang, 260 F.3d at 452. Accordingly, the
petition for review is dismissed in part for lack of jurisdiction as to this claim.
Before this court, Torres-Villasana argues that the IJ erred as a matter
of law by finding that he was not eligible for withholding of removal because
the testimony and evidence established that it was more likely than not that
he would be persecuted if he were forced to return to Mexico. Specifically, he
argues that he would more likely than not have his freedom and life threatened
by gangs, cartels, and corrupt police based on his avoidance of joining their
criminal enterprise. The Government argues that this court lacks jurisdiction
to entertain Torres-Villasana’s claim, which merely challenges the factual
determinations underlying the IJ’s decision, in light of the criminal alien bar
set forth in 8 U.S.C. § 1252(a)(2)(C).
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We pretermit this jurisdictional issue because Torres-Villasana’s
arguments are without merit. See Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 327-
28 (5th Cir. 2004). The IJ’s determination that Torres-Villasana is not eligible
for withholding of removal is reviewed using the substantial evidence
standard. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). “The
applicant has the burden of showing that the evidence is so compelling that no
reasonable factfinder could reach a contrary conclusion.” Id. To obtain
withholding of removal, an applicant must show a clear probability that he will
be persecuted upon his return to his home country. Roy v. Ashcroft, 389 F.3d
132, 138 (5th Cir. 2004). “A clear probability means that it is more likely than
not that the applicant’s life or freedom would be threatened by persecution on
account of either his race, religion, nationality, membership in a particular
social group, or political opinion.” Id.
Torres-Villasana argues that he will be subject to persecution based on
his membership in a particular social group, namely, young males targeted by
drug cartels for recruitment. To show persecution based on membership in a
particular social group, the alien must show he is a member “of a group of
persons that share a common immutable characteristic that they either 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 citation omitted). In
considering whether a particular social group exists, the BIA considers “(1)
whether the group’s shared characteristic gives the members the requisite
social visibility to make them readily identifiable in society and (2) whether
the group can be defined with sufficient particularity to delimit its
membership.” Id. at 519 (internal quotation marks and citation omitted).
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The particular social group proposed by Torres-Villasana is overly broad.
There was no evidence that the cartels targeted “young men with any
particular political orientation, interests, lifestyle, or any other identifying
factors.” Orellana-Monson, 685 F.3d at 521-22 (internal quotation marks and
citation omitted). Accordingly, Torres-Villasana’s proposed particular social
group lacks particularity. See id. As such, he was not entitled to withholding
of removal. See Roy, 389 F.3d at 138. The petition for review is denied in part
as to this claim.
DISMISS IN PART FOR LACK OF JURISDICTION; DENY IN PART.
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