     Case: 17-60760       Document: 00514787628         Page: 1     Date Filed: 01/09/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                  FILED
                                                                              January 9, 2019
                                     No. 17-60760
                                   Summary Calendar                            Lyle W. Cayce
                                                                                    Clerk


ADOLFO ANTONIO VIGIL-REYES; ELSIS ABIGAIL VIGIL-REYES; LESLY
GISELLE REYES-VIGIL,

                                                  Petitioners

v.

MATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A206 790 710
                                BIA No. A206 835 284
                                BIA No. A206 835 285


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Adolfo Antonio Vigil-Reyes (Vigil), his sister, and his niece, natives and
citizens of El Salvador, seek review of the Board of Immigration Appeals’ (BIA)
dismissal of their appeal of an immigration judge’s (IJ) denial of asylum and
withholding of removal.           Petitioners contend the evidence compels the


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-60760

conclusion they possessed a well-founded fear of persecution—because they
refused to become gang members—that is both subjectively and objectively
reasonable on account of their membership in a particular social group, which
they identified as “the family of Adolfo Antonio Vigil-Reyes”. Petitioners also
contend they are entitled to humanitarian asylum.
      The BIA’s findings of fact are reviewed for substantial evidence.
See Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009) (citation omitted).
“Under substantial evidence review, this court may not reverse the BIA’s
factual findings unless the evidence compels it.”     Id. at 536–37 (citations
omitted). Asylum may be granted to “an alien who is unable or unwilling to
return to his home country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion”. Zhang v. Gonzales, 432 F.3d 339,
344 (5th Cir. 2005) (internal quotation marks and citation omitted); 8 U.S.C.
§ 1101(a)(42)(A). In contrast, an applicant for withholding of removal must
demonstrate “a clear probability”, upon return to his native country, of
persecution on account of either his race, religion, nationality, membership in
a particular social group, or political opinion. See Roy v. Ashcroft, 389 F.3d
132, 138 (5th Cir. 2004); 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16.
      Evidence provided by petitioners, which included testimony of Vigil, does
not compel a decision contrary to the determination they did not qualify for
asylum. See Wang, 569 F.3d at 536–37; Tesfamichael v. Gonzales, 469 F.3d
109, 113, 116 (5th Cir. 2006). Accordingly, they also did not meet the higher
“clear probability” standard required for withholding of removal. See Roy, 389
F.3d at 138.
      Finally, petitioners did not challenge the IJ’s denial of humanitarian
asylum as an alternative remedy under 8 C.F.R. § 208.13(b)(1)(iii)(B) in their



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                                  No. 17-60760

appeal to the BIA. The issue is unexhausted, and our court, therefore, lacks
jurisdiction to consider it. See Roy, 389 F.3d at 137 (citing Wang v. Ashcroft,
260 F.3d 448, 452 (5th Cir. 2001)); Omari v. Holder, 562 F.3d 314, 324–25 (5th
Cir. 2009); 8 U.S.C. § 1252(d).
      DISMISSED, in part, for lack of jurisdiction and DENIED, in part.




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