United States Court of Appeals

for the Fifth Circuit

No. 20-60658

Summary Calendar

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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

June 9, 2021

Lyle W. Cayce

Clerk

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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).

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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.

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