     Case: 19-60368       Document: 00515522838         Page: 1     Date Filed: 08/11/2020




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

                                                                                  FILED
                                     No. 19-60368                           August 11, 2020
                                   Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
MILTON ENRIQUE MENDEZ-REYES,

                                                  Petitioner

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A206 136 766


Before BARKSDALE, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Milton Enrique Mendez-Reyes, a native and citizen of El Salvador, seeks
review of the Board of Immigration Appeals’ (BIA) order affirming an
immigration judge’s (IJ) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(CAT). Each claim fails.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-60368

      First, Mendez contends the IJ and BIA lacked jurisdiction over his
proceedings, and service of his notice to appear (NTA) was improper, because
his NTA was defective. Mendez never contested his NTA’s validity before the
IJ or the BIA. Consequently, he has failed to exhaust this issue, and we lack
jurisdiction to consider it. See Omari v. Holder, 562 F.3d 314, 318–21 (5th Cir.
2009).
      He also claims the IJ and BIA erred in denying his application for asylum
and withholding of removal. (Mendez abandoned any claim for relief under the
CAT by failing to adequately brief it. See Soadjede v. Ashcroft, 324 F.3d 830,
833 (5th Cir. 2003) (citation omitted).)
      “We review only the BIA’s decision, unless the IJ’s decision has some
impact on [it].” Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012)
(internal quotation marks and citation omitted). “When the BIA affirms the
IJ’s decision without an opinion, as is the case here, the IJ’s decision is the final
agency decision for purposes of judicial review on appeal.” Chen v. Gonzales,
470 F.3d 1131, 1134 (5th Cir. 2006) (citation omitted). In reviewing that
decision, we review legal conclusions de novo and factual findings for
substantial evidence.      Orellana-Monson, 685 F.3d at 517–18 (citations
omitted).
      The determinations an alien is ineligible for asylum and withholding of
removal are factual findings. Chen, 470 F.3d at 1134 (citations omitted). On
substantial-evidence review, such factual findings will not be disturbed “unless
[our] court decides not only that the evidence supports a contrary conclusion,
but also that the evidence compels it”. Orellana-Monson, 685 F.3d at 518
(emphasis in original) (internal quotation marks and citation omitted). In that
regard, “petitioner has the burden of showing that the evidence is so compelling




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                                  No. 19-60368

that no reasonable factfinder could reach a contrary conclusion”. Id. (internal
quotation marks and citation omitted).
      Regarding Mendez’ asylum claim, “[a]sylum is discretionary and 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 [(PSG)], or
political opinion”.   Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005)
(internal quotation marks and citation omitted). The alien seeking asylum
must establish that one of these protected bases “was or will be at least one
central reason for persecuting the applicant”. Tamara-Gomez v. Gonzales, 447
F.3d 343, 348 (5th Cir. 2006) (citations omitted).
      Mendez asserts substantial evidence compels our finding, contrary to the
IJ’s determination, that he suffered past persecution, and has a well-founded
fear of future persecution, based on his membership in a PSG: “Salvadoran
Men Opposed to the Economic Relationship between the Government and the
Gangs”. But, because (and as the IJ determined) Mendez fails to proffer a
legally cognizable PSG, his asylum claim fails.
      This is because “to establish persecution based on membership in a
particular group”, petitioner must demonstrate 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, 685 F.3d at 518
(internal quotation marks and citations omitted). Such a group must have:
(1) social visibility, making them “readily identifiable in society”; and
(2) particularity such that the “group can accurately be described in a manner
sufficiently distinct that the group would be recognized, by the society in
question, as a discrete class of persons”. Id. at 519 (citations omitted).



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                                  No. 19-60368

      Our court has previously declined to recognize variously proffered PSGs
based on individuals being subjected to gang violence due to their refusing to
join a gang or accede to its demands. See, e.g., id. at 521–22; see also Villatoro
v. Holder, 504 F. App’x 267, 267–68 (5th Cir. 2012) (finding no error in BIA’s
determining “individuals targeted by gangs in El Salvador because of age and
who cannot turn to the Government to protect them and who fear future harm
since residing in the United States” was not a cognizable PSG). Mendez has
not shown his proposed PSG is meaningfully different from those groups our
court has refused to recognize.
      And, “[b]ecause the level of proof required to establish eligibility for
withholding of removal is higher than that required for asylum, [Mendez’]
failure to establish eligibility for asylum is dispositive of [his] claim[ ] for
withholding of removal”. Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006)
(citation omitted).
      DISMISSED in part; DENIED in part.




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