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

                                                 FILED
                                                                           January 4, 2010

                                     No. 09-60278                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



NIXSA IDALIA SORTO-DE PORTILLO,

                                                   Petitioner
v.

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

                                                   Respondent




                          On Petition for Review of an Order
                         of the Board of Immigration Appeals


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Nixsa Idalia Sorto-De Portillo (“Petitioner”) petitions for review of the
Board of Immigration Appeals’ (“BIA”) denial of her application for withholding
of removal. Yet, when, as in this case, the BIA “affirm[ed] without opinion” the
reasoning of the Immigration Judge (“IJ”), “the decision of the [IJ], and not the
Board’s summary affirmance, [is] the proper subject of judicial review.” Soadjede
v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003). We conclude that the IJ’s denial
of Petitioner’s application was correct and therefore deny the petition.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60278

       “To be eligible for withholding of removal, an applicant must demonstrate
a ‘clear probability’ of persecution upon return.” Roy v. Ashcroft, 389 F.3d 132,
138 (5th Cir. 2004) (quoting Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994)).
“A clear probability means that it is more likely than not that the applicant’s life
or freedom would be threatened by persecution on account of either his [or her]
race, religion, nationality, membership in a particular social group, or political
opinion.” Id. Petitioner argued below, as well as on appeal, that her “anti-gang
values” and “her refusal to abide” by the rules set forth by local gangs,
particularly their demands for money, led to her persecution and qualify her as
a member of a particular social group, the community against gangs.1 However,
the IJ stated in an oral order that Petitioner’s personal political views or refusal
to pay bribes to local gangs were insufficient to qualify her as a member of a
protected social group as each was not an “immutable characteristic,” which is
necessary to form the basis of a social group.
       In general, “[i]n a petition for review . . . determinations as to purely legal
questions are reviewed de novo.” Andrade v. Gonzales, 459 F.3d 538, 542 (5th
Cir. 2006). Findings of fact must be upheld “‘unless any reasonable adjudicator
would be compelled to conclude to the contrary.’” Kane v. Holder, 581 F.3d 231,
237 (5th Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). There is some question as
to whether the agency’s construction of what constitutes a “social group” is
entitled to deference—either Chevron or Skidmore, see Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co.,
323 U.S. 134 (1944)—and even if it is a determination of law or fact. See Ramos-
Lopez v. Holder, 563 F.3d 855, 858-60 (9th Cir. 2009) (stating that “the BIA’s


       1
        Petitioner also implies that her anti-gang values could constitute a “political opinion”
qualifying her for withholding of removal. However, as she fails to cite even one authority
supporting this argument, the argument is waived. See FED . R. APP . P. 28(a)(9)(A) (Appellant’s
brief must contain his or her “contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies....”).

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determination, in a published disposition” of what is a social group “is entitled
to Chevron deference,” but not addressing the deference given to unpublished
dispositions); Argueta-Rodriguez v. INS, No. 95-2367, 1997 WL 693064, at *5
(4th Cir. Oct. 29, 1997) (unpublished) (Ervin, J, concurring in judgment)
(reviewing the debate as to whether this determination is one of law or fact).
This is an open issue in this Circuit. Nonetheless, because we conclude that
Petitioner’s argument fails under the most liberal standard of review, de novo
review, we need not reach that issue here.
      We find no basis on which to reverse the IJ’s determination that Petitioner
failed to establish that she was a member of a particular social group so as to
qualify for withholding of removal. “To establish that he [or she] is a member of
a ‘particular social group,’ an applicant must show that he [or she] was a
member of a group of persons that share a common immutable characteristic .
. . .” Mwembie v. Gonzales, 443 F.3d 405, 414-15 (5th Cir. 2006). Numerous other
cases, like the IJ’s opinion in this case, have held that one’s personal anti-gang
values or antagonistic relationship with gangs does not amount to a common
immutable characteristic establishing a particular social group. See, e.g., Cua-
Tumax v. Holder, No. 08-61083, 2009 WL 2957332, at *3 (5th Cir. Sept. 15, 2009)
(unpublished) (“We, like the BIA and IJ, hold that Cua-Tumax has failed to
establish that he is a member of any particular social group. The categories of
youth and gang recruitment are overly broad and offer no meaningful basis for
distinguishing Cua-Tumax from other persons.”); Villanueva-Amaya v. Holder,
No. 08-60794, 2009 WL 2900266, at *2 (5th Cir. Sept. 10, 2009) (unpublished)
(“The petitioners failed to present compelling evidence that young Honduran
males exposed to gang violence are part of [a] particular social group, who have
common immutable characteristics.”). We find no basis on which to distinguish
these cases, where petitioners shared similar experiences with an identifiable
group and still were not found to be members of a social group, from the instant

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case, where Petitioner fails to articulate how one would identify the members of
her alleged social group and does not suggest that others participated in like
activities or shared in her experiences. Therefore, we uphold the IJ’s
determination.
      Because we uphold the IJ’s determination that Petitioner failed to
demonstrate that she had the requisite status for withholding of removal, we
need not reach her other arguments.
      For the foregoing reasons, the petition is DENIED.




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