FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS ARNOLDO CONDE

QUEVEDO; AMALIA CONDE TURCIOS,

Petitioners,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 18-70078

Agency Nos.

A089-853-122

A089-853-120

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 9, 2019

Seattle, Washington

Filed January 24, 2020

Before: Susan P. Graber, Marsha S. Berzon,

and Stephen A. Higginson,* Circuit Judges.

Opinion by Judge Graber

* The Honorable Stephen A. Higginson, United States Circuit Judge

for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2 CONDE QUEVEDO V. BARR

SUMMARY**

Immigration

The panel dismissed in part and denied in part a petition

for review of the Board of Immigration Appeals’ denial of

withholding of removal to a citizen of Guatemala, holding

that this court lacked jurisdiction to consider petitioner’s

renewed arguments concerning Convention Against Torture

relief because that issue exceeded the scope of this court’s

prior remand, and that substantial evidence supported the

Board’s determination that the record did not establish that

Guatemalan society recognizes people who report the

criminal activity of gangs to police as a distinct social group

for purposes of withholding relief.

The panel explained that the Board properly concluded

that it could not consider petitioner’s CAT claim on remand,

where this court expressly disposed of that issue in the prior

petition for review, and remanded only for further

consideration of petitioner’s withholding claim. 

The panel held that substantial evidence supported the

Board’s determination that petitioner’s proposed social group

of Guatemalans who report criminal activity of gangs to

police was not cognizable due to the lack of society-specific

evidence of social distinction. The panel explained that

although country reports in evidence detailed the serious

problem of gang violence in Guatemala, none of those

documents discussed reporting gang violence to police, or

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CONDE QUEVEDO V. BARR 3

any risks or barriers associated with doing so, nor did any of

those documents assert that Guatemalan society recognizes

those who, without more, report gang violence as a distinct

group. Similarly, the panel concluded that petitioner’s

testimony failed to support a finding of social recognition,

where petitioner testified that, as far as he knew, only his

family and friends—not the community in general—knew

that he had filed a report with the police. 

The panel concluded that petitioner’s proposed social

group differed from the group recognized in Henriquez-Rivas

v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), people

who testified publicly against gang members in criminal

proceedings, because Henriquez-Rivas had testified in open

court, and the Salvadoran government had enacted a special

witness protection law to protect those who testify against

violent criminals. In contrast, although petitioner reported his

gang attack to the police, there was no evidence that he ever

testified against gang members, nor was there evidence that

Guatemalans who merely make reports to the police are

offered special legal protection. The panel noted that in

Henriquez-Rivas, the court did not intend to suggest that the

public nature of one’s testimony was essential to social group

cognizability, but because it was public, the court did not

address whether Henriquez-Rivas would have been eligible

had her conduct been private. The panel explained that

Henriquez-Rivas, then, does not foreclose the possibility that

reporting gang violence to police could suffice to establish

eligibility, if, for example, there was evidence that, in a

specific country, people in the community knew who reported

crimes to the police, or if there were laws protecting those

who did. 
4 CONDE QUEVEDO V. BARR

COUNSEL

Peter Hurtado (argued), Seattle, Washington, for Petitioners.

Tim Ramnitz (argued), Trial Attorney; Russell J.E. Verby,

Senior Litigation Counsel; Shelley R. Goad, Assistant

Director; Joseph H. Hunt, Assistant Attorney General; Office

of Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for Respondent.

OPINION

GRABER, Circuit Judge:

Petitioner Carlos Arnoldo Conde Quevedo, a citizen of

Guatemala, testified to an immigration judge (“IJ”) that

Guatemalan gang members attacked him twice. He fears that

he will be attacked again if he returns to Guatemala because

he reported the gang’s criminal activity to the police. The

Board of Immigration Appeals (“BIA”) rejected Petitioner’s

request for withholding of removal because, it concluded, the

record does not establish that Guatemalan society recognizes

“people who report the criminal activity of gangs to police”

as a distinct social group. We deny the petition as to

withholding of removal and dismiss Petitioner’s other

challenge for lack of jurisdiction.
CONDE QUEVEDO V. BARR 5

BACKGROUND

Petitioner entered the United States in 2001 on a visitor’s

visa.1In 2009, he applied for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). Petitioner’s claim is founded on his having been

attacked and seriously injured by Guatemalan gang members

on two occasions and on his fear that those gang members

would further harm him, if he returned to Guatemala, because

he had reported their earlier attacks to the police.

Petitioner had a merits hearing before an IJ in 2011. The

IJ denied his applications for relief. The BIA dismissed

Petitioner’s appeal in 2012. With respect to withholding of

removal, the BIA held that Petitioner had failed to

demonstrate that he belongs to a particular social group.

Petitioner sought our review. In 2014, we denied in part

and granted in part the petition for review. Conde Quevedo

v. Holder, 585 F. App’x 492 (9th Cir. 2014) (unpublished). 

We upheld the denial of Petitioner’s claims for asylum and

CAT relief. Id. But we remanded the claim for withholding

of removal so the BIA could consider the effect of new Ninth

Circuit and BIA decisions. Id. at 492–93 (citing Pirir-Boc v.

Holder, 750 F.3d 1077 (9th Cir. 2014); Cordoba v. Holder,

1 Carlos Arnoldo Conde Quevedo is the lead petitioner. His wife,

Amalia Conde Turcios, also a citizen of Guatemala, is a rider petitioner. 

She entered the United States in 2000. She testified before the IJ that, in

1995 or 1996, her grandparents had been kidnaped by gang members. But

she did not testify that this was the source of her fear of future harm if she

were to return to Guatemala, and Petitioners do not argue that on appeal. 

As the case reaches us, then, Amalia Conde Turcios’ claims are entirely

dependent on her husband’s. For simplicity, references in the text to

“Petitioner” refer to the lead petitioner, Carlos Arnoldo Conde Quevedo.
6 CONDE QUEVEDO V. BARR

726 F.3d 1106 (9th Cir. 2013); Henriquez-Rivas v. Holder,

707 F.3d 1081 (9th Cir. 2013) (en banc); Matter of M-E-V-G-

, 26 I. & N. Dec. 227 (B.I.A. 2014); and Matter of W-G-R-,

26 I. & N. Dec. 208 (B.I.A. 2014)). Those decisions clarified

the interpretation of a “particular social group” and the

applicable standard of review.

The BIA then remanded the matter to an IJ for factfinding and additional proceedings “not inconsistent with the

Ninth Circuit’s order.” An IJ held two additional hearings. 

At the hearings, the IJ clarified that the only issue before the

court was the claim for withholding of removal. Petitioner’s

proposed social group for purposes of withholding of removal

was “people who report the criminal activity of gangs to

police.”

While Petitioner was living in Guatemala, he was

attacked and seriously injured twice by gang members. The

first attack was an attempted robbery in 2000, during which

gang members stabbed Petitioner in the abdomen. His father

reported that incident to the police. Gang members attacked

Petitioner a second time in 2001 and stabbed him in the arm. 

Petitioner and his father together reported the second incident

to the police. They met with one police officer at the

precinct.

Petitioner did not know whether the people who attacked

him knew that he and his father had reported the attacks to the

police, but he speculated that they found out. Petitioner

believed that the second attack occurred because gang

members knew that his father had reported the first incident

to the police. Although his attackers did not say anything to

him during the second attack, they did not take the money

that he had with him. Petitioner testified that he was afraid to
CONDE QUEVEDO V. BARR 7

return to Guatemala because he believed that gang members

would try to kill him because he had reported the second

attack to the police. Petitioner submitted for the record State

Department Human Rights Reports from 2010 and 2014 and

a Congressional Research Service report titled Gangs in

Central America.

The IJ found that there was no evidence that people who

report criminal gang activity to the police are a particular

social group in Guatemala. The IJ thus concluded that

Petitioner’s “application for asylum,withholding, relief under

the Torture Convention is denied.”

The BIA dismissed Petitioner’s timely appeal. It ruled

that there was no clear error in the IJ’s determination

regarding the proposed particular social group. In a footnote,

the BIA explained that, because the Ninth Circuit had

remanded only the withholding of removal claim, it would

not “readdress [Petitioner’s] eligibility for relief under

[CAT]” despite Petitioner’s argument that it should. 

Petitioner timely petitions for review.

STANDARDS OF REVIEW

We review de novo the BIA’s determinations on

questions of law and mixed questions of law and fact. 

Cordoba, 726 F.3d at 1113. We review for substantial

evidence the BIA’s factual findings. Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc)
8 CONDE QUEVEDO V. BARR

DISCUSSION

A. Convention Against Torture

We lack jurisdiction to review Petitioner’s renewed

argument concerning CAT relief. Our 2014 decision denied

the petition as to Petitioner’s asylum and CAT claims and

remanded for further proceedings only as to withholding of

removal. The BIA “has no power to expand our remand

beyond the boundary ordered by our court.” MendezGutierrez v. Gonzales, 444 F.3d 1168, 1173 (9th Cir. 2006). 

The BIA “was bound by the scope of our remand to resolve

the only remaining issue:” withholding of removal. Id. As

it recognized, the BIA could not consider CAT relief on

remand because we expressly disposed of that issue on

review. Olivas-Motta v. Whitaker, 910 F.3d 1271, 1280 (9th

Cir. 2018), petition for cert. filed, __ U.S.L.W. __ (U.S.

Sept. 3, 2019) (No. 19-282). The BIA properly addressed

Petitioner’s CAT argument by noting that, “contrary to

[Petitioner’s] contention on appeal, the only issue before us

is [Petitioner’s] eligibility for withholding of removal under

the Act, and we will not readdress [his] eligibility for relief

under [CAT].”

B. Withholding of Removal

The BIA’s decision on remand rested solely on its

determination that Petitioner had not established a cognizable

social group. Thus, the only question before us is whether

“people who report the criminal activity of gangs to police”

comprise a “particular social group” in Guatemala.
CONDE QUEVEDO V. BARR 9

1. Legal Framework

“The term ‘particular social group’ is ambiguous.” 

Henriquez-Rivas, 707 F.3d at 1083. We have held that the

BIA’s interpretation of the phrase—as articulated in M-E-VG-, 26 I. & N. Dec. 227, and W-G-R-, 26 I. & N. Dec.

208—is entitled to Chevron deference. Reyes v. Lynch, 842

F.3d 1125, 1135 (9th Cir. 2016). In those two decisions, the

BIA held that, to establish that a proposed social group is

cognizable for purposes of withholding of removal, an

applicant must show that the proposed social group is

“(1) composed of members who share a common immutable

characteristic, (2) defined with particularity, and (3) socially

distinct within the society in question.” M-E-V-G-, 26 I. & N.

Dec. at 237.

The “social distinction” prong of the analysis “refers to

social recognition.” Rios v. Lynch, 807 F.3d 1123, 1127 (9th

Cir. 2015) (quoting M-E-V-G-, 26 I. & N. Dec. at 242). 

Recognition of a group is determined by “the perception of

the society in question, rather than by the perception of the

persecutor.” Id. (quoting M-E-V-G-, 26 I. & N. Dec. at 242). 

“Social distinction” should be determined through a case-bycase, “evidence-based inquiry as to whether the relevant

society recognizes [the] proposed social group.” Pirir-Boc,

750 F.3d at 1084. The agency may not reject a proposed

social group without considering the evidence in the record

that a specific society recognizes the group. Id. at 1083–84. 

The BIA’s conclusion regarding social distinction—whether

there is evidence that a specific society recognizes a social

group—is a question of fact that we review for substantial

evidence. Reyes, 842 F.3d at 1137–38; see also Alanniz v.

Barr, 924 F.3d 1061, 1069 (9th Cir. 2019) (noting that the

cognizability of a social group contains factual questions). 
10 CONDE QUEVEDO V. BARR

But the ultimate question is a legal one: given those facts, is

there a “particular social group”? Barbosa v. Barr, 926 F.3d

1053, 1059 (9th Cir. 2019) (citing Pirir-Boc, 750 F.3d

at 1081).

2. Analysis

Substantial evidence supports the BIA’s conclusion that

“the record is devoid of any society specific evidence, such

as country reports, background documents, or news articles,

which would establish that persons who ‘report the criminal

activity of gangs to the police’ are perceived or recognized as

a group by society in Guatemala.” The record contains two

State Department Human Rights Reports and a Congressional

Research Service report, all three of which detail the serious

problem of gang violence in Guatemala. But none of those

documents discusses reporting gang violence to police, or

any risks or barriers associated with doing so. Nor, critically,

does any of those documents assert that Guatemalan society

recognizes those who, without more, report gang violence as

a distinct group.

Similarly, Petitioner’s testimony fails to support a finding

of social recognition. He testified that, as far as he knew,

only his family and friends—not the community in

general—knew that he had filed a report with the police. 

Although he conjectured that gang members had found out,

that testimony shows only individual retaliation, not

persecution on account of membership in a distinct social

group. See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir.

2013) (noting that “mistreatment motivated purely by

personal retribution will not give rise to a valid asylum

claim”). Petitioner also acknowledged that he was never

called to testify in Guatemala against any gang members, and
CONDE QUEVEDO V. BARR 11

he further testified that he had never spoken out publicly

against the gang. Given this record, we agree with the BIA’s

conclusion that Petitioner’s proposed social group is not

cognizable because of the absence of society-specific

evidence of social distinction.

Petitioner’s proposed group differs from the group

proposed by the petitioner in Henriquez-Rivas, 707 F.3d at

1092: people who testified publicly against gang members in

criminal proceedings. There, we held that substantial

evidence did not support the BIA’s conclusion that the

proposed group was not socially distinct. Id. The petitioner

in Henriquez-Rivas had testified in open court, and the

Salvadoran legislature had enacted a special witness

protection law to protect those who testify against violent

criminals. Id. Here, although Petitioner reported the attack

to the police, there was no evidence that he ever testified

against gang members. Nor is there evidence that

Guatemalans who merely make reports to the police are

offered special legal protection.

We noted in Henriquez-Rivas that we did not “intend to

suggest that the public nature of Henriquez-Rivas’ testimony

is essential to her eligibility” but, because it was public, we

did not address whether she would have been eligible had her

conduct been private. Id. at 1092 n.14. Henriquez-Rivas,

then, does not foreclose the possibility that reporting gang

violence to police could suffice to establish eligibility. For

example, if there were evidence that, in a specific country,

people in the community knew who reported crimes to the

police, or if there were laws protecting those who did, the

proposed group potentially could be cognizable.
12 CONDE QUEVEDO V. BARR

Here, however, Petitioner met with only one police

officer; he was not in the main public precinct room but in a

separate room when making the report; no evidence was

taken from him; he was not photographed; and he did not

cooperate with the police beyond making his complaint at the

police office. As noted, Petitioner presented no evidence of

a Guatemalan law or program protecting those who, without

more, make police reports, and Petitioner presented no other

evidence that Guatemalan society recognizes those who just

report criminal activity of gangs to police as a particular

social group. The BIA did not err in concluding that

Petitioner failed to establish membership in a cognizable

particular social group.

Petition DISMISSED IN PART and DENIED IN

PART.