IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60145

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

December 4, 2013

Lyle W. Cayce

Clerk

 

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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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