CLD-129 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 20-2625 ___________
JOSE ANIBAL HERCULES HERCULES, a/k/a Jose Hercules, a/k/a Jose Torres Hercules, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A094-986-020) Immigration Judge: Jason L. Pope ____________________________________
Submitted on a Motion for Summary Action Pursuant to 3d Cir. LAR 27.4 and I.O.P. 10.6 March 25, 2021
Before: RESTREPO, MATEY and SCIRICA, Circuit Judges
(Opinion filed: April 6, 2021) ___________
OPINION * ___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM
Jose Anibal Hercules Hercules, a citizen of El Salvador who entered the United
States in 2008, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”)
final order of removal. The Government has moved for summary disposition. For the
reasons that follow, we grant that motion and will summarily deny the petition. 1
I.
In 2019, the Department of Homeland Security charged Hercules with being
removable for being present in the United States without having been admitted or paroled.
Hercules, through counsel, conceded that charge and applied for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). At the merits hearing
before the Immigration Judge (“IJ”), Hercules testified as follows.
When Hercules was in high school, members of the Mara Salvatrucha gang (“MS-
13”) recruited him to sell drugs for them. He declined their invitations; he did not want to
work for the gang because he was “focused on Christian things.” (A.R. at 135.) The gang
members told him that “if [he] said anything [to anyone],” “they were going to try to take
[his] life.” (Id. at 134.) On another occasion, they beat him up until his nose bled, took
his bicycle, and told him that “next time it will be different.” (Id. at 135.)
1 Although we have entertained the Government’s motion, we remind the Government that such a motion should typically be filed before the petitioner’s opening brief is due. See 3d Cir. LAR 27.4(b).
2 In 2004, around the time that Hercules graduated from high school, he witnessed
MS-13 gang members murder a police officer. The gang members were aware that
Hercules had witnessed the murder. When one or more of the gang members were arrested
for that crime, other MS-13 members approached Hercules and asked him if he had gone
to the police. Hercules told them, truthfully, that he had not done so.
Later, Hercules got a job at a gas station, at which point MS-13 members asked him
to sell drugs there. When he refused, they told him that “something could happen to [him]”
if he did not help them. (Id. at 143.) Hercules continued working at the gas station for the
next three years, during which time the gang members threatened him three to four times
per week. He then decided to flee El Salvador and come to the United States. After he
arrived here, the gang members threatened his family members living in El Salvador
(however, as the IJ noted, “it does not appear that the family has been physically harmed
in any way,” (id. at 60)), and “a young man” sent Hercules a text stating that he (Hercules)
“knew what could happen to [him],” (id. at 145-46).
Hercules’s counsel indicated at the merits hearing that Hercules was basing his
claims for asylum and withholding of removal solely on a proposed particular social group
(“PSG”) consisting of “young [Salvadoran] males who refuse to join a gang because of
their religious beliefs.” (Id. at 125.) 2 At the end of the hearing, the IJ denied Hercules’s
2 To qualify for asylum or withholding of removal, an applicant must establish, inter alia, that the harm he fears in his home country would be on account of his race, religion, nationality, membership in a particular social group, or political opinion. See Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir. 2008). 3 claims for relief and ordered his removal to El Salvador. The IJ began by explaining that
Hercules’s asylum claim was untimely (his counsel had conceded this point during the
hearing). Next, the IJ determined that Hercules’s claim for withholding of removal failed
because (1) the incidents in the past did not rise to the level of persecution, (2) his proposed
PSG was not cognizable, and (3) “there is no indication that the gang members targeted
[him] because of a specific religious belief that he may have held or any reason other than
the gang members wanting him to engage in criminal activity.” (Id. at 55.) Lastly, in
denying CAT relief, the IJ explained that (1) Hercules had not shown that it is more likely
than not that he would be tortured in El Salvador and (2) he (the IJ) could not find that it is
more likely than not that the Salvadoran government would consent or acquiesce to efforts
to torture Hercules. 3
Hercules, through counsel, appealed the IJ’s decision to the BIA. On July 22, 2020,
the BIA adopted and affirmed the IJ’s decision and dismissed the appeal. In doing so, the
BIA noted that Hercules had conceded that his asylum claim was untimely. Regarding
Hercules’s withholding claim, the BIA agreed with the IJ that Hercules’s proposed PSG
was not cognizable, “inasmuch as he did not establish the group’s social distinction.” (Id.
3 The IJ noted that two of the MS-13 leaders who had allegedly caused problems for Hercules had subsequently been imprisoned by the Salvadoran government, and that they were still in prison. The IJ also noted that, according to country reports for El Salvador that were prepared by the U.S. State Department, a court in that country had recently convicted 61 MS-13 members of various crimes, and a large number of gang members were currently incarcerated in Salvadoran prisons. The IJ predicted that the Salvadoran government “would pursue charges if [Hercules] would make them aware that he was being targeted by those gang members.” (A.R. at 59.) 4 at 3.) 4 Additionally, the BIA “f[ou]nd no clear error in the [IJ’s] determination that
[Hercules] did not establish that the gang members were targeting him based on his
religious beliefs, as opposed to seeking to recruit him into their criminal organization.” (Id.
at 4.) As for Hercules’s CAT claim, the BIA “discern[ed] no clear error in the factual
findings of the [IJ] with regard to the probability of torture,” and the BIA agreed with the
IJ that Hercules “has not demonstrated that the Salvadoran government would acquiesce
to his torture by gang members.” (Id.)
Hercules, proceeding pro se, timely petitioned for review of the agency’s decision.
After he filed his merits brief, the Government, in lieu of filing a response brief, moved to
summarily deny the petition. 5
II.
As a general matter, we have jurisdiction to review a final order of removal. See
8 U.S.C. § 1252(a)(1). However, because the agency denied Hercules’s asylum claim as
time-barred, our jurisdiction here is limited to reviewing the agency’s denial of his
withholding and CAT claims. See Issiaka v.
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CLD-129 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 20-2625 ___________
JOSE ANIBAL HERCULES HERCULES, a/k/a Jose Hercules, a/k/a Jose Torres Hercules, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A094-986-020) Immigration Judge: Jason L. Pope ____________________________________
Submitted on a Motion for Summary Action Pursuant to 3d Cir. LAR 27.4 and I.O.P. 10.6 March 25, 2021
Before: RESTREPO, MATEY and SCIRICA, Circuit Judges
(Opinion filed: April 6, 2021) ___________
OPINION * ___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM
Jose Anibal Hercules Hercules, a citizen of El Salvador who entered the United
States in 2008, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”)
final order of removal. The Government has moved for summary disposition. For the
reasons that follow, we grant that motion and will summarily deny the petition. 1
I.
In 2019, the Department of Homeland Security charged Hercules with being
removable for being present in the United States without having been admitted or paroled.
Hercules, through counsel, conceded that charge and applied for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). At the merits hearing
before the Immigration Judge (“IJ”), Hercules testified as follows.
When Hercules was in high school, members of the Mara Salvatrucha gang (“MS-
13”) recruited him to sell drugs for them. He declined their invitations; he did not want to
work for the gang because he was “focused on Christian things.” (A.R. at 135.) The gang
members told him that “if [he] said anything [to anyone],” “they were going to try to take
[his] life.” (Id. at 134.) On another occasion, they beat him up until his nose bled, took
his bicycle, and told him that “next time it will be different.” (Id. at 135.)
1 Although we have entertained the Government’s motion, we remind the Government that such a motion should typically be filed before the petitioner’s opening brief is due. See 3d Cir. LAR 27.4(b).
2 In 2004, around the time that Hercules graduated from high school, he witnessed
MS-13 gang members murder a police officer. The gang members were aware that
Hercules had witnessed the murder. When one or more of the gang members were arrested
for that crime, other MS-13 members approached Hercules and asked him if he had gone
to the police. Hercules told them, truthfully, that he had not done so.
Later, Hercules got a job at a gas station, at which point MS-13 members asked him
to sell drugs there. When he refused, they told him that “something could happen to [him]”
if he did not help them. (Id. at 143.) Hercules continued working at the gas station for the
next three years, during which time the gang members threatened him three to four times
per week. He then decided to flee El Salvador and come to the United States. After he
arrived here, the gang members threatened his family members living in El Salvador
(however, as the IJ noted, “it does not appear that the family has been physically harmed
in any way,” (id. at 60)), and “a young man” sent Hercules a text stating that he (Hercules)
“knew what could happen to [him],” (id. at 145-46).
Hercules’s counsel indicated at the merits hearing that Hercules was basing his
claims for asylum and withholding of removal solely on a proposed particular social group
(“PSG”) consisting of “young [Salvadoran] males who refuse to join a gang because of
their religious beliefs.” (Id. at 125.) 2 At the end of the hearing, the IJ denied Hercules’s
2 To qualify for asylum or withholding of removal, an applicant must establish, inter alia, that the harm he fears in his home country would be on account of his race, religion, nationality, membership in a particular social group, or political opinion. See Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir. 2008). 3 claims for relief and ordered his removal to El Salvador. The IJ began by explaining that
Hercules’s asylum claim was untimely (his counsel had conceded this point during the
hearing). Next, the IJ determined that Hercules’s claim for withholding of removal failed
because (1) the incidents in the past did not rise to the level of persecution, (2) his proposed
PSG was not cognizable, and (3) “there is no indication that the gang members targeted
[him] because of a specific religious belief that he may have held or any reason other than
the gang members wanting him to engage in criminal activity.” (Id. at 55.) Lastly, in
denying CAT relief, the IJ explained that (1) Hercules had not shown that it is more likely
than not that he would be tortured in El Salvador and (2) he (the IJ) could not find that it is
more likely than not that the Salvadoran government would consent or acquiesce to efforts
to torture Hercules. 3
Hercules, through counsel, appealed the IJ’s decision to the BIA. On July 22, 2020,
the BIA adopted and affirmed the IJ’s decision and dismissed the appeal. In doing so, the
BIA noted that Hercules had conceded that his asylum claim was untimely. Regarding
Hercules’s withholding claim, the BIA agreed with the IJ that Hercules’s proposed PSG
was not cognizable, “inasmuch as he did not establish the group’s social distinction.” (Id.
3 The IJ noted that two of the MS-13 leaders who had allegedly caused problems for Hercules had subsequently been imprisoned by the Salvadoran government, and that they were still in prison. The IJ also noted that, according to country reports for El Salvador that were prepared by the U.S. State Department, a court in that country had recently convicted 61 MS-13 members of various crimes, and a large number of gang members were currently incarcerated in Salvadoran prisons. The IJ predicted that the Salvadoran government “would pursue charges if [Hercules] would make them aware that he was being targeted by those gang members.” (A.R. at 59.) 4 at 3.) 4 Additionally, the BIA “f[ou]nd no clear error in the [IJ’s] determination that
[Hercules] did not establish that the gang members were targeting him based on his
religious beliefs, as opposed to seeking to recruit him into their criminal organization.” (Id.
at 4.) As for Hercules’s CAT claim, the BIA “discern[ed] no clear error in the factual
findings of the [IJ] with regard to the probability of torture,” and the BIA agreed with the
IJ that Hercules “has not demonstrated that the Salvadoran government would acquiesce
to his torture by gang members.” (Id.)
Hercules, proceeding pro se, timely petitioned for review of the agency’s decision.
After he filed his merits brief, the Government, in lieu of filing a response brief, moved to
summarily deny the petition. 5
II.
As a general matter, we have jurisdiction to review a final order of removal. See
8 U.S.C. § 1252(a)(1). However, because the agency denied Hercules’s asylum claim as
time-barred, our jurisdiction here is limited to reviewing the agency’s denial of his
withholding and CAT claims. See Issiaka v. Att’y Gen., 569 F.3d 135, 137-38 (3d Cir.
2009). We review the agency’s factual findings underlying its denial of these latter two
4 To qualify as a PSG, a group must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 547 (3d Cir. 2018) (quoting In re M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)). 5 The Clerk has stayed the briefing schedule pending our disposition of the Government’s motion for summary disposition.
5 claims for substantial evidence, see Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.
2003), and we may not disturb those findings “unless any reasonable adjudicator would be
compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). We review questions
of law under a de novo standard, see Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.
2008), and we may take summary action if Hercules’s petition fails to present a substantial
question, see 3d Cir. I.O.P. 10.6.
Regarding the withholding claim, Hercules makes a barebones attack on the IJ’s
determination that the incidents in the past in El Salvador did not rise to the level of
persecution, and Hercules baldly alleges that the IJ was wrong in concluding that he
(Hercules) “do[es] not belong to a [PSG].” (Hercules’s Br. 5; see id. at 4.) Assuming for
the sake of argument that Hercules has done enough to preserve these arguments, see
Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d
Cir. 1994) (explaining that “a [brief’s] passing reference to an issue . . . will not suffice to
bring that issue before this court.” (ellipses in original) (quoting Simmons v. City of
Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991))), neither argument warrants relief here.
First, in upholding the IJ’s denial of the withholding claim, the BIA did not rely on the IJ’s
past-persecution determination. Second, even if we were to assume for the sake of
argument that Hercules’s proposed PSG is cognizable, his withholding claim would still
fail because the agency correctly concluded that he did not establish the requisite nexus
between the harm that he fears and his membership in that PSG. See Gonzalez-Posadas v.
Att’y Gen., 781 F.3d 677, 685 (3d Cir. 2015) (“[T]he applicant bears the burden of proving 6 that one central reason for the persecution was a protected characteristic.”). Indeed, there
is no evidence that MS-13 members did, or would, harm Hercules because of his religious
beliefs or because he had a religious-based reason for refusing to help them.
As for Hercules’s CAT claim, his brief merely asserts that the IJ “was wrong in
deciding that . . . [he] do[es] not deserve relief under the [CAT].” (Hercules’s Br. 5.) We
agree with the Government that this bald argument was insufficient to preserve a challenge
to the denial of his CAT claim. See Laborers’ Int’l Union of N. Am., AFL-CIO, 26 F.3d
at 398. But even if we were to conclude that Hercules did preserve this challenge, we
would find it meritless because Hercules has not demonstrated that substantial evidence
compels disturbing the agency’s finding that it is not more likely than not that (1) he would
be tortured in El Salvador, or (2) the Salvadoran government would acquiesce if the gang
members attempted to torture him.
Because Hercules’s petition does not raise a substantial question, we grant the
Government’s motion for summary disposition and will deny the petition. 6
6 To the extent that Hercules asserts that the BIA (1) did not address the facts or the law, and (2) dismissed his appeal without issuing an opinion, he appears to be referring to the BIA’s June 5, 2020 order affirming, without an opinion, the IJ’s denial of bond. But that BIA decision is not properly before us. See Bonhometre v. Gonzales, 414 F.3d 442, 446 & n.4 (3d Cir. 2005) (indicating that a habeas petition filed in federal district court is the means by which a non-citizen may challenge his immigration detention). 7