Case: 19-60458 Document: 00515821689 Page: 1 Date Filed: 04/14/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 14, 2021 No. 19-60458 Summary Calendar Lyle W. Cayce Clerk Jose A. Hernandez Viera, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A 215 587 017 Before Barksdale, Graves, and Oldham, Circuit Judges. Per Curiam:* Jose A. Hernandez Viera, a native and citizen of Cuba, petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal of the Immigration Judge’s (IJ) order denying: asylum; withholding of removal; and relief under the Convention Against Torture * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60458 Document: 00515821689 Page: 2 Date Filed: 04/14/2021 No. 19-60458 (CAT). Hernandez contends: the IJ’s credibility finding was so vague that the BIA could not properly review it; the BIA erred by determining he waived his CAT claim by failing to properly raise it; the IJ’s denying him a continuance once he obtained counsel violated his statutory and constitutional rights to counsel; and the BIA erred by affirming the IJ’s finding that he is not eligible for asylum or withholding of removal. In considering the BIA’s decision (and the IJ’s decision, to the extent it influenced the BIA), questions of law are reviewed de novo; factual findings, for substantial evidence. Orellana-Monson v. Holder, 685 F.3d 511, 517–18 (5th Cir. 2012). Under the substantial-evidence standard, “[t]he alien must show that the evidence was so compelling that no reasonable factfinder could conclude against it”. Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009). First addressed is the IJ’s credibility finding. The IJ stated that, “from the limited testimony given, the [c]ourt . . . cannot find that [Hernandez] is not a credible witness”. Hernandez contends this “double-negative” prevented the BIA’s properly reviewing the IJ’s decision. The IJ found Hernandez was credible, but did not meet his burden of proof. The BIA echoed this, stating: “The [IJ] found [Hernandez] credible. . . . We agree with the [IJ] that [Hernandez] has not shown that the past mistreatment he suffered, although condemnable, rises to the level of persecution”. Considering the IJ’s statements in context, the BIA’s conclusions are based on the evidence presented and substantially reasonable. See Sharma v. Holder, 729 F.3d 407, 411 (5th Cir. 2013). Regarding waiver of Hernandez’ CAT claim for failure to properly raise it in the BIA, failure to exhaust an issue creates a jurisdictional bar. Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). “Petitioners fail to exhaust their administrative remedies as to an issue if they do not first raise the issue before the BIA, either on direct appeal or in a motion to reopen.” Omari v. 2 Case: 19-60458 …
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