# United States Court **of Appeals**  **f or 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) deni al of withholding of removal and relief

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 9, 2021 Lyle W. Cayce Clerk Case: 20-60658 Document: 00515893099 Page: 1 Date Filed: 06/09/2021No. 20

- 60658

2 under the Convention Against Tortur e (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 e xtent 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, t he BIA’s factual findings are conclusive unless the record compels a contrary finding. Wang v. Holder , 569 F.3d 531, 5 36

– 37 (5th Cir. 2009)

. First, Hercules contends the BIA erred in determining he failed to allege a cognizable particular social group (PS G) 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. 20 04 ) (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 . S uch a ruling does not constitute reversible error. See Cant arero Lagos v. Barr , 924 F.3d 145, 151 (5th Cir. 2019). Case: 20-60658 Document: 00515893099 Page: 2 Date Filed: 06/09/2021No. 20

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3 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

. Omar i 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. Canta r ero

- Lago s , 924 F.3d at 151

– 52 (citing Matter of W

- Y

- C

- & H

- O

- B

- , 27 I. & N. Dec. 189, 19 1 (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 fut ure 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 t he 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

. Case: 20-60658 Document: 00515893099 Page: 3 Date Filed: 06/09/2021