Case: 20-60658 Document: 00515893099 Page: 1 Date Filed: 06/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60658 June 9, 2021
Summary Calendar Lyle W. Cayce
Clerk
Jose Alberto Hercules, also known as Jose Hercules
Guillen,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A095 068 455
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Jose Alberto Hercules, a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’ (BIA) dismissing his appeal
of an immigration judge’s (IJ) denial of withholding of removal and relief
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60658 Document: 00515893099 Page: 2 Date Filed: 06/09/2021
No. 20-60658
under the Convention Against Torture (CAT). Although Hercules also
sought voluntary departure, he does not challenge its denial, and any such
claim is deemed abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th
Cir. 2003).
In considering the BIA’s decision (and the IJ’s, to the extent it
influenced the BIA), questions of law are reviewed de novo; factual findings,
for substantial evidence. E.g., Orellana-Monson v. Holder, 685 F.3d 511, 517–
18 (5th Cir. 2012). Whether an applicant is eligible for withholding of
removal or relief under CAT is a factual finding which, as noted above, is
reviewed for substantial evidence. See Chen v. Gonzales, 470 F.3d 1131, 1134
(5th Cir. 2006) (citations omitted). Under that standard, the BIA’s factual
findings are conclusive unless the record compels a contrary finding. Wang
v. Holder, 569 F.3d 531, 536–37 (5th Cir. 2009).
First, Hercules contends the BIA erred in determining he failed to
allege a cognizable particular social group (PSG) for purposes of his
withholding-of-removal claim. “To be eligible for withholding of removal,
an applicant must demonstrate a clear probability of persecution upon
return” on account of a statutorily protected ground, such as his membership
in a PSG. Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (internal
quotation marks and citation omitted). The BIA correctly concluded
Hercules’ originally proposed PSG, “Salvadoran men who fear violence and
delinquency in their home country”, was not a cognizable PSG because it was
circularly defined by the feared persecution. See Gonzales-Veliz v. Barr, 938
F.3d 219, 232 (5th Cir. 2019).
Although Hercules attempted to allege a new PSG before the BIA,
“Salvadoran males”, the BIA declined to consider that PSG because it was
not presented to the IJ. Such a ruling does not constitute reversible error.
See Cantarero Lagos v. Barr, 924 F.3d 145, 151 (5th Cir. 2019).
2
Case: 20-60658 Document: 00515893099 Page: 3 Date Filed: 06/09/2021
No. 20-60658
In addition, Hercules maintains his hearing testimony presented an
additional PSG: individuals deported from the United States, who would be
perceived by gang members and other criminals to have money. The IJ found
that, to the extent he alleged such a group, it was not cognizable. Hercules
never asserted to the BIA that he had presented such a group or that it
constituted a valid PSG; his failure to exhaust this contention renders our
court unable to review the claim. Omari v. Holder, 562 F.3d 314, 318 (5th Cir.
2009); Roy, 389 F.3d at 137.
Hercules maintains the IJ failed to clarify the PSG. If an alien has not
precisely delineated his proposed PSG, the IJ has an obligation to seek
clarification to ensure full development of the record. Cantarero-Lagos, 924
F.3d at 151–52 (citing Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191
(BIA 2018)). Hercules alleged a precise, albeit unsuccessful, PSG before the
IJ. The IJ, therefore, had no duty to seek clarification. (Because Hercules
failed to allege a cognizable PSG, analysis of his claims regarding past and
future persecution is unnecessary. See INS v. Bagamasbad, 429 U.S. 24, 25–
26 (1976).)
Finally, Hercules contends he was entitled to relief under the CAT.
As the BIA recognized, he did not challenge the IJ’s adverse ruling on this
ground in his appeal to the BIA. We therefore lack jurisdiction to consider
the claim. See Omari, 562 F.3d at 318; Roy, 389 F.3d at 137.
DISMISSED in part; DENIED in part.
3