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

                                                                  FILED
                                                               October 22, 2008
                               No. 07-60918
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

MACKLIN ARISTIDES HERNANDEZ-PORTILLO

                                          Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

                                          Respondent


                    Petition for Review of an Order of the
                       Board of Immigration Appeals
                            BIA No. A95 069 861


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Macklin Aristides Hernandez-Portillo, a native and citizen of El Salvador,
petitions this court for review of the Board of Immigration Appeals’ (BIA)
decision dismissing his appeal of the Immigration Judge’s (IJ) denial of his
application for withholding of removal. Hernandez-Portillo contends that his
due process rights were violated when the IJ failed to conduct a fair and
accurate hearing and properly consider all of the evidence presented in support
of his application for withholding of removal. Because he failed to raise this

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-60918

issue before the BIA, this court lacks jurisdiction to consider the issue. See Roy
v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
      Hernandez-Portillo also contends that the BIA erred in affirming the IJ’s
denial of withholding of removal because he demonstrated a clear probability of
persecution on account of his membership in particular social group. Even if
Hernandez-Portillo established that he was a member of a particular social
group, the BIA’s determination that he failed to establish past persecution is
supported by substantial evidence, and the record does not compel a contrary
conclusion. See Mikhael v. INS, 115 F.3d 299, 304 (5th Cir. 1997). Further,
because Hernandez-Portillo failed to establish past persecution, he is not
entitled to a presumption that his life or freedom would be threatened upon his
return to El Salvador. See 8 C.F.R. § 1208.16(b)(1)(i). Moreover, although
Hernandez-Portillo argues generally that it is more likely than not that he would
be persecuted upon his return because “[t]here is a pattern and practice of
persecution directed towards young males in El Salvador forced and intimidated
into becoming gang members,” he failed to raise this issue before the BIA, and,
thus, this court lacks jurisdiction to consider the issue. See Roy, 389 F.3d at 137.
      Accordingly, Hernandez-Portillo’s petition for review is DENIED IN PART
and DISMISSED IN PART for lack of jurisdiction.




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