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

                                                 FILED
                                                                        September 15, 2009

                                     No. 08-61083                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JOSE ELISEO CUA-TUMAX

                                                   Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

                                                   Respondent




                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A 70 566 974


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Petitioner Jose Eliseo Cua-Tumax, a native and citizen of Guatemala,
seeks review of the order of the Board of Immigration Appeals (“BIA”) affirming
the immigration judge’s (“IJ’s”) decision denying his application for cancellation
of removal and asylum. We dismiss for lack of jurisdiction the part of his
petition that seeks cancellation of removal under 8 U.S.C. § 1229b, and we deny
the part of his petition that seeks asylum under 8 U.S.C. § 1158.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-61083

      We generally have authority to review only the BIA’s decision unless it is
influenced by that of the IJ, in which case we review both decisions.1 In the
instant case, the BIA offered its own analysis in affirming the IJ’s decision; we
therefore review only the BIA’s decision.
      Cua-Tumax contends that he is eligible for cancellation of removal under
8 U.S.C. § 1229b(b)(1) because he meets all of the statutory requirements,
including that his removal would cause his daughters, United States citizens, to
suffer an “exceptional and extremely unusual hardship.” 2 Congress, however,
has stripped us of jurisdiction to review claims for discretionary relief under
§ 1229b except when a petition involves a constitutional claim or question of
law.3 Cua-Tumax alleges no constitutional violation and we cannot recast as an
issue of law his claim based on the cumulative effect of financial and educational
hardship that his family would suffer. We therefore lack jurisdiction to consider
whether the BIA erred in denying cancellation of removal.
      Cua-Tumax next urges that the BIA erroneously denied his asylum claim
because it failed to recognize his status as a member of a “particular social
group” — “young men who have been actively recruited by gangs and have
refused to join them.” We review the BIA’s legal holdings de novo and its factual
findings for substantial evidence.4 The Secretary of Homeland Security or the
Attorney General, in his discretion, may grant asylum to “refugees” under 8
U.S.C. § 1158(b)(1).         To qualify as a refugee, a petitioner must establish
persecution or a well-founded fear of persecution in his country on the basis of




      1
          Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
      2
          See 8 U.S.C. § 1229b(b)(1)(D).
      3
          Id. § 1252(a)(2)(B)(i), (a)(2)(D); Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007).
      4
          Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).

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                                        No. 08-61083

any of five categories of which membership in a particular social group is one.5
Members of a particular social group “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.” 6 We, like the BIA and
IJ, hold that Cua-Tumax has failed to establish that he is a member of any
particular social group.7 The categories of youth and gang recruitment are
overly broad and offer no meaningful basis for distinguishing Cua-Tumax from
other persons.
PETITION DISMISSED IN PART; DENIED IN PART.




       5
           8 U.S.C. § 1101(a)(42)(A).
       6
        Mwembie v. Gonzales, 443 F.3d 405, 414–15 (5th Cir. 2006) (internal quotation marks
omitted).
       7
         See Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009) (deferring to the BIA’s
interpretation in holding that “young Honduran men who have been recruited by gangs but
refuse to join do not constitute a particular social group”). In a series of recent unpublished
— and therefore non-precedential — opinions, we have rejected claims that petitioners belong
to a particular social group based on their resistance to gang membership. See, e.g., Cruz-
Melgar v. Holder, No. 08-60456, 2009 WL 1744023, at *1 (5th Cir. June 22, 2009) (per curiam);
Orellana-Monson v. Holder, No. 08-60394, 2009 WL 1657037, at *1 (5th Cir. June 15, 2009)
(per curiam); Rivera-Barrera v. Holder, 322 F. App’x 375, 375–76 (5th Cir. 2009) (per curiam);
Cruz-Alvarez v. Holder, 320 F. App’x 273, 274 (5th Cir. 2009) (per curiam). Although we are
not bound by any of these decisions, we agree with their results, concluding that “Guatemalan
youths who resist gang recruitment” does not constitute a particular social group.

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