                                                                            FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS
                                                                    October 1, 2008
                                                                  Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                      Clerk of Court



IKENNA G. NKWONTA,

             Petitioner,

v.                                                      No. 07-9582
                                                    (Petition for Review)
MICHAEL MUKASEY,
United States Attorney General,

             Respondent.


                           ORDER AND JUDGMENT *


Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.



      Petitioner Ikenna G. Nkwonta, a native and citizen of Nigeria who is

proceeding in this appeal pro se, petitions for review of a decision of the Board of

Immigration Appeals (BIA) dismissing his appeal from the Immigration Judge’s

(IJ) decision denying his applications for asylum and restriction on removal under



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the Immigration and Nationality Act (INA). 1 We deny the petition for review and

affirm the denial of Mr. Nkwonta’s applications for asylum and restriction on

removal. 2

             I. Standards for Asylum and Restriction on Removal.

      We recently summarized the standards that must be met before a court can

grant asylum or restriction on removal to an illegal alien, such as Mr. Nkwonta, 3

who is seeking to avoid deportation due to a fear of persecution in their

homeland:

             First, in order to be eligible for asylum, an alien must
      demonstrate by a preponderance of the evidence that she is a refugee,
      meaning that she is outside the country of her nationality and “is
      unable or unwilling to return to . . . that country because of
      persecution or a well-founded fear of persecution on account of race,
      religion, nationality, membership in a particular social group, or
      political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also Elzour v.


1
       In his appeal to the BIA, Mr. Nkwonta did not appeal the IJ’s denial of
his: (1) application for protection under the Convention Against Torture;
(2) application for voluntary departure; and (3) motion for a continuance. See
Agency ROA at 2 n.1. We therefore do not need to consider those matters.
2
       Restriction on removal was known as “withholding of removal” before the
amendments to the INA made by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996. The regulations under the INA, however, retain the
former term “withholding of removal.” See 8 C.F.R. § 208.16(b). We will use
the statutory term “restriction on removal.” See Ismaiel v. Mukasey, 516 F.3d
1198, 1200 n.2 (10th Cir. 2008).
3
      We note that Mr. Nkwonta is not challenging the IJ’s findings that he is
removable from the United States because, in April 2005, he attempted to enter
the United States from Mexico without a valid entry document and made a false
statement to immigration officials regarding his employment status in this
country.

                                        -2-
      Ashcroft, 378 F.3d 1143, 1148-49 (10th Cir. 2004). She can establish
      refugee status in three ways: (1) by showing a well-founded fear of
      future persecution; (2) by showing past persecution sufficient to give
      rise to a presumption that she has a well-founded fear of future
      persecution; or (3) by showing past persecution so severe that it
      supports an unwillingness to return to the country where the
      persecution occurred. Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th
      Cir. 2005). To prove a well-founded fear of [future] persecution, “it
      need not be shown that the situation will probably result in
      persecution, but it is enough that persecution is a reasonable
      possibility.” INS v. Cardoza-Fonseca, 480 U.S. 421, 440 . . .
      (1987). . . .

             Second, an alien may apply for restriction on removal in order
      to avoid being returned to the country of persecution. Restriction on
      removal under the INA prohibits the removal of an alien to a country
      “if the Attorney General decides that the alien’s life or freedom
      would be threatened in that country because of the alien’s race,
      religion, nationality, membership in a particular social group, or
      political opinion.” 8 U.S.C. § 1231(b)(3)(A). Under the statute, the
      alien must establish “a clear probability of persecution[.]” Elzour,
      378 F.3d at 1149. Like an asylum claim, once an alien has shown
      past persecution, there is a “presumptive entitlement to restriction on
      removal on the same basis.” [Niang v. Gonzales, 422 F.3d 1187,
      1195 (10th Cir. 2005).]

Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335-36 (10th Cir. 2008).

      We have also recently reiterated the meaning of the term “persecution”:

      Although persecution is not defined in the INA, we have held that a
      finding of persecution requires the infliction of suffering or harm
      upon those who differ (in race, religion, or political opinion) in a
      way regarded as offensive and must entail more than just restrictions
      or threats to life and liberty. Such persecution may be inflicted by
      the government itself, or by a non-governmental group that the
      government is unwilling or unable to control.

Id. at 1337 (quotation omitted).




                                        -3-
     II. Mr. Nkwonta’s Persecution Allegations and Proceedings Below.

      Mr. Nkwonta claims that he suffered past persecution in Nigeria and has a

well-founded fear of future persecution if he is forced to return to Nigeria as a

result of his past membership in a student-cult group known as the “Black Axe

Confraternity.” In his brief on appeal, the United States Attorney General has

succinctly and accurately summarized Mr. Nkwonta’s allegations regarding his

experiences with the Black Axe Confraternity as follows:

      [In his application for asylum and restriction on removal,] Nkwonta
      asserted that during his first year at the University of Lagos, he was
      forced to join a “cult” named the “Black Axe Confraternity” (“Black
      Axe”) against his will. Nkwonta explained that the Black Axe
      “started out like fraternities here in the USA, [but it] became corrupt
      and evil and [was] used by corrupt politicians . . . to rig elections and
      also [commit] political assassinations.” Nkwonta further postulated
      that the organization “bullies, maims, and often kills innocent
      people” without recourse because it is sponsored by corrupt
      politicians and is uncontrollable by the Nigerian government.

             According to Nkwonta’s account, in November 2001, a friend
      and fellow student, Mohammed Danjuma (“Danjuma”), drove him
      and two other students to a secluded area following a party.
      Nkwonta reported that he was forced from the car at gunpoint and
      fifteen to twenty armed people forcefully conscripted him into the
      Black Axe by means of a “blood oath” and beatings. Nkwonta
      indicated that he was a reluctant member of the Black Axe for four
      months and that he grudgingly paid his dues and attended meetings
      because “there was no way I could avoid them.”

            However, Nkwonta asserted that in April 2002, he was able to
      renounce his membership in the Black Axe at a public rally upon the
      admonition of a “preacher based [] in the USA.” Nkwonta then
      recounted that two days after the rally, he was detained by the Lagos
      University Police and forced to divulge the names of the “Black Axe
      members who had forced me to join against my will.” Nkwonta

                                         -4-
      stated that he later learned that Danjuma was arrested and
      prosecuted.

            Continuing with his story, Nkwonta reported that following his
      disassociation with the Black Axe threatening notes were left on his
      mother’s car and his sister witnessed “a group of men wearing Black
      Axe colors gathered outside [his] home and fired shots in the air.”
      Furthermore, Nkwonta asserted that on September 9, 2002, four men
      “dressed in Black Axe clothing” abducted him, castigated him for
      being a traitor, beat him, tied him to the back of a car, and dragged
      him around a deserted soccer field. Nkwonta stated that he was
      hospitalized for five days and hired police protection.

            Nkwonta further alleged that his older brother, “who would
      pass as my twin,” was stabbed and beaten in October 2002,
      purportedly because “[the attackers] seemed to think he was me.”

Resp. Br. at 9-11 (first alteration added; citations to administrative record and

footnotes omitted).

      In February 2006, the IJ held a hearing on Mr. Nkwonta’s applications for

asylum and restriction on removal, and Mr. Nkwonta was represented by counsel

at the hearing. At the conclusion of the hearing, the IJ told Mr. Nkwonta’s

counsel that he had significant doubts about the merits of Mr. Nkwonta’s

applications, explaining that:

      one of the difficulties in the case in my opinion from
      [Mr. Nkwonta’s] perspective is to show a nexus between his claimed
      harm and any of the five statutory grounds for asylum. In this
      regard, I guess he would claim social group, but normally, the social
      group works when you’re a member of the social group being
      persecuted . . . . In addition, except in a few Circuits, voluntary
      associations of people are not social groups for purposes of the
      Immigration and Nationality Act. Rather, the Board of Immigration
      Appeals has told us to look for immutable characteristics or common
      traits that either cannot or shouldn’t, they should not be required to

                                         -5-
      change. So, I don’t see that [Mr. Nkwonta] is having any problems
      here because of membership in a social group. It’s almost like being
      a member of a gang, a criminal gang, and then leaving and having
      problems because your leaving.

Agency ROA at 152. In response to the IJ’s statements, Mr. Nkwonta’s counsel

stated that Mr. Nkwonta “is a member of a social group. It’s a social group of

students who are forced to join a violent fraternity. It’s uncontroverted testimony

that he was forced into it.” Id. at 153.

      After hearing further argument from counsel for both sides, the IJ entered

an oral decision denying Mr. Nkwonta’s applications for asylum and restriction

on removal, reasoning as follows:

             Even assuming that we accept [Mr. Nkwonta’s] story as true
      and correct in all respects, the Court believes [he] has failed to state
      any claim for asylum [or restriction on removal]. In this regard [Mr.
      Nkwonta’s] difficulties, he says, resulted from his -- essentially --
      conscription into a violent fraternity and then his difficulties with
      that organization upon his attempting to leave it. Again, here this in
      the Court’s view is not a social group situation as we have no
      immutable characteristics that are involved here, but rather we have
      an associational situation even though he says [] he was forced into
      this. It was a matter of association rather than any type of
      characteristic with which this particular respondent was born in terms
      of tribe or clan or other social group where we do have immutable
      characteristics. Again, the Court does not understand the 10th
      Circuit to be one that recognizes social group based on associational
      connections rather than immutable characteristics.

             Essentially, again, the Court’s unable to see here that [Mr.
      Nkwonta] has established a nexus even if we take his story as true
      between the difficulties he claims to have experienced in Nigeria and
      one of the five statutory grounds for asylum. The Court believes,
      therefore, that he has also failed to establish eligibility for
      [restriction on removal].

                                           -6-
Id. at 43-44.

        Mr. Nkwonta subsequently appealed to the BIA, and he was represented by

the same attorney in the BIA proceedings. The BIA dismissed the appeal,

concluding as follows:

        It has not been shown that the Immigration Judge erred in concluding
        that even assuming credibility, [Mr. Nkwonta] has not established the
        requisite nexus between any past or prospective harm and a protected
        ground under the Act. [Mr. Nkwonta] did not identify nor can we
        find any evidence in the record that would suggest that any harm
        inflicted on [him] by the Black Axe confraternity was motivated by
        actual or imputed political opinion. On appeal, [Mr. Nkwonta] also
        claimed, without any specificity, that he was persecuted by the
        confraternity on the basis of his membership in a particular social
        group. However, he has not specified the particular social group in
        which he has claimed membership. We are unable to conclude that
        [Mr. Nkwonta] has established that he experienced harm or faces a
        reasonable risk of harm on account of his membership in a
        “particular social group,” as this term has been defined for purposes
        of determining asylum eligibility. See Matter of A-M-E & J-G-U-,
        24 I&N Dec. 69 (BIA 2007); Matter of C-A-, 23 I&N Dec. 951 (BIA
        2006); Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). . . .

Id. at 3. 4




4
      The BIA also made an alternative finding to the effect that Mr. Nkwonta
put forth insufficient evidence to show that he “was persecuted and fears
persecution by a group that the government [of Nigeria] is unwilling or unable to
control as required for asylum and [restriction on] removal.” Agency ROA at 4.
Because we rely on the BIA’s initial determination of unprotected status to affirm
the denial of Mr. Nkwonta’s applications for asylum and restriction on removal,
we do not need to address this issue.

                                         -7-
        III. BIA’s Streamlining Regulations and Standards of Review.

      “Because this petition [for review] follows reasoned opinions from both the

IJ and BIA, we will first delineate the scope of our judicial review.” Diallo v.

Gonzales, 447 F.3d 1274, 1278 (10th Cir. 2006). As we recently explained:

             Until 1999, all appeals to the BIA were decided by
      three-member panels whose opinions constituted the final decision of
      the agency. Pursuant to regulations promulgated by the Attorney
      General in 1999 and 2002, the BIA now has three options: decision
      by a three-member panel with a full explanatory opinion, 8 C.F.R.
      § 1003.1(e)(6), summary affirmance by a single member of the board
      without opinion, id. § 1003.1(e)(4), or decision via a brief order by a
      single member of Board, affirming, modifying, or remanding the IJ’s
      decision, id. § 1003.1(e)(5). . . .

            Our scope of review depends upon which of these three forms
      the BIA decision takes. . . .

             “If the case is more significant than an (e)(4) case and less
      significant than an (e)(6) case,” [Cruz-Funez v. Gonzales, 406 F.3d
      1187, 1190 (10th Cir. 2005)], a single BIA member can decide the
      merits of the appeal and issue “a brief order, affirming, modifying, or
      remanding” the IJ’s order, 8 C.F.R. § 1003.1(e)(5). Such an order is
      a “middle ground . . . between the full opinion and summary
      affirmance options.” [Uanreroro v. Gonzales, 443 F.3d 1197,
      1203-04 (10th Cir. 2006)]. In Uanreroro we held that such an order
      constitutes “the final order of removal under 8 U.S.C. § 1252(a),”
      and thus the Court “will not affirm on grounds raised in the IJ
      decision unless they are relied upon by the BIA in its affirmance.”
      443 F.3d at 1203-04.

Sarr v. Gonzales, 474 F.3d 783, 789-90 (10th Cir. 2007).

      After addressing the merits of Mr. Nkwonta’s applications for asylum and

restriction on removal in a three-page decision, a single member of the BIA

“dismissed” Mr. Nkwonta’s appeal. See Agency ROA at 4. This was an

                                        -8-
erroneous disposition, however, because, while the controlling regulations

provide for “summary dismissals” by the BIA in certain limited circumstances,

see 8 C.F.R. § 1003.1(d)(2), none of those circumstances apply here. In addition,

the BIA member’s decision was clearly not a summary affirmance without an

opinion under § 1003.1(e)(4), as the member issued a substantive decision

addressing the merits of Mr. Nkwonta’s applications. As a result, we will treat

the BIA member’s disposition as a “brief order” under § 1003.1(e)(5) “affirming”

the IJ’s decision, and, in accordance with our precedent, we will review that order

as the final order of removal under 8 U.S.C. § 1252(a).

      “We review the BIA’s findings of fact under the substantial evidence

standard, and its legal determinations de novo.” Hayrapetyan, 534 F.3d at 1335.

“Under the substantial-evidence standard, our duty is to guarantee that [the

BIA’s] factual determinations are supported by reasonable, substantial and

probative evidence considering the record as a whole.” Niang, 422 F.3d at 1196

(quotation omitted). “The BIA’s findings of fact are conclusive unless the record

demonstrates that any reasonable adjudicator would be compelled to conclude to

the contrary.” Id. (quotation omitted). “In this circuit, the ultimate determination

whether an alien has demonstrated persecution is a question of fact, even if the

underlying factual circumstances are not in dispute and the only issue is whether

those circumstances qualify as persecution.” Hayrapetyan, 534 F.3d at 1335




                                         -9-
(quotation omitted). However, “[w]hat constitutes a particular social group is a

pure question of law that we review de novo.” Cruz-Funez, 406 F.3d at 1191.

                                    IV. Analysis.

      In the notice of appeal that he submitted to the BIA, Mr. Nkwonta asserted

that the IJ erred: (1) “in failing to find that [he] has been persecuted by the Black

Axe fraternity . . . on the basis of his political opinion and membership in a

particular social group because he was forced to join the Black Axe fraternity

against his will and take part in the induction ceremonies”; (2) “in failing to find

that [he] was persecuted by the Black Axe fraternity by having his life threatened

and by being beaten up by Black Axe fraternity members after he denounced his

membership in the fraternity”; and (3) “in failing to find that [he] has a

well-founded fear of future persecution if he returns to Nigeria because the Black

Axe Fraternity has already beaten him up.” Agency ROA at 32.

      As noted by the BIA member in his decision, however, in the brief that

Mr. Nkwonta submitted to the BIA, his counsel failed to identify any political

opinions which were held by or imputed to Mr. Nkwonta that were motivating the

conduct of the Black Axe members. Id. at 11-14; see also INS v. Elias-Zacarias,

502 U.S. 478, 482 (1992) (holding that persecution must be on account of the

victim’s political opinion or other protected characteristic, not that of the

persecutor). Likewise, Mr. Nkwonta has failed to identify any such political




                                         -10-
opinions in the pro se brief that he submitted to this court. This failure is fatal to

any political-opinion claim.

      As further recognized by the BIA member, Mr. Nkwonta’s counsel also

made no effort in the BIA proceedings to identify the particular social group in

which Mr. Nkwonta was claiming membership. Agency ROA at 11-14. On this

point, it was simply not enough for Mr. Nkwonta’s counsel to identify the Black

Axe Confraternity and then allege that Mr. Nkwonta had been harmed by

members of that group. Id. at 12. First, Mr. Nkwonta has never alleged that he

was persecuted because of his membership in the Black Axe Confraternity. To the

contrary, his alleged persecution is based on: (1) his forced and violent

conscription into the ranks of the Black Axe Confraternity; and (2) the harm he

endured after he denounced and left the group. In the proceedings before the

BIA, however, Mr. Nkwonta’s counsel failed to articulate a social-group status

belonging to Mr. Nkwonta that motivated either of these categories of alleged

persecution, and Mr. Nkwonta has duplicated that failure in the pro se brief that

he submitted to this court.

      Second, even if Mr. Nkwonta were claiming that he was persecuted because

of his membership in the Black Axe Confraternity, we can say unequivocally that

a criminal gang/cult like the Black Axe Confraternity does not qualify as a “social

group” under the “immutable characteristic” test that this court has adopted for

evaluating social-group persecution claims. See Niang, 422 F.3d at 1198-99

                                          -11-
(adopting definition of “particular social group” that BIA formulated in In re

Acosta, 19 I&N Dec. 211 (BIA 1985), 5 which requires a group of persons who all

share a common, immutable characteristic, i.e., a characteristic that the members

of the group either cannot change, or should not be required to change because it

is fundamental to their individual identities or consciences). To state the obvious,

membership in a criminal gang/cult is not something that a person either cannot

change or should not be required to change.

      Finally, as noted above, at the hearing before the IJ, Mr. Nkwonta’s counsel

did attempt to articulate a particular social group, arguing that Mr. Nkwonta

belonged to a social group consisting of “students who are forced to join a violent

fraternity.” Agency ROA at 153. We agree with the Attorney General, however,

that this “putative particular social group is overbroad and too indefinite to

constitute a ‘particular’ social group within the meaning of the INA.” Resp. Br.

at 31; see also In re S-E-G-, 24 I&N Dec. 579, 582 (BIA 2008) (noting that BIA’s

“recent decisions hold[] that membership in a purported social group requires that

the group have particular and well-defined boundaries”). Further, it is an

impermissible circular definition, defining a group in terms of those who suffer

persecution. See Rreshpja v. Gonzales, 420 F.3d 551, 555-56 (6th Cir. 2005)

(noting that “almost all of the pertinent decisions have rejected generalized,


5
     We note that the BIA overruled Acosta on other grounds in In re
Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

                                        -12-
sweeping [social group] classifications,” and that “a social group may not be

circularly defined by the fact that it suffers persecution. The individuals in the

group must share a narrowing characteristic other than their risk of being

persecuted.”).

      In sum, we agree with the Attorney General that, “[b]ecause [Mr.] Nkwonta

has never asserted that his initiation [into the Black Axe Confraternity] or his and

his family’s subsequent harm was in relation to anything other than the Black

Axe’s desire for additional conscripts or in retaliation for his defection, he has not

shown that his alleged persecution or fear thereof was on account of a protected

ground.” Resp. Br. at 32; (citing Ustyan v. Ashcroft, 367 F.3d 1215, 1217

(10th Cir. 2004) (finding no persecution where petitioner failed to show that his

beating, detention in a cell exposed to chlorine gas, and the destruction of his

home were on account of his ethnic identity or imputed political beliefs and not

simply in retaliation for his resistence to recruitment efforts); Bartesaghi-Lay v.

INS, 9 F.3d 819, 822-23 (10th Cir. 1993) (finding that reprisal for alien’s

rejection of solicitation to join drug-smuggling operation was not on account of a

protected ground)). Accordingly, the BIA did not commit a legal or factual error

in denying Mr. Nkwonta’s applications for asylum and restriction on removal.




                                         -13-
                              V. CONCLUSION.

      For the foregoing reasons, we DENY the petition for review and AFFIRM

the BIA’s denial of Mr. Nkwonta’s applications for asylum and restriction on

removal.


                                                 Entered for the Court


                                                 Jerome A. Holmes
                                                 Circuit Judge




                                      -14-
