F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C A R L O S A R N O L D O C O

N D E Q U E V E D O ; A M

A L I A C O N D E T U R

C I O S , Petitioners
,

v

.

W I L L I A M P. B A R

R , Attorney General, Respondent. N o. 18-70078

Ag ency Nos. A089-853-122 A089-853-120

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg u ed and Submitted December 9, 2019

Seattle, W a shing ton

F iled J anuary

24, 2020

B e fore: Susan P. Graber, Marsha S. B erz on, and Stephen A. Hig g inson, * Circuit J udg es.

Opinion by

J udg e Graber

* T h e H o n orab le Step h en A

. Hig g i n so n , U n i ted States Circu i t J u dg e f o r th e U.S. Co u rt o f A

pp eals f o r th e Fif th C ircu it, sittin g b y d esig n atio n

.C O N D E Q U E V E D O V

. B A R R 2

SUMMARY * *

Im m igration

The panel dismissed in part and denied in part a petition for review of the B o a

r d of I mmig r a tion Appeals’ denial o f withholding o f r emoval to a citiz en of Guatemala, holding that this court lacked jurisdiction to consi d e r petitioner’s renewed arg u ments concerning Convention Ag ainst Torture relief because that issue ex c eeded t he scope o f this court’s prior remand, and that substantial evi d e nce supported the B oard’s determination that the record did not establish that Guatemalan society recog niz es people w ho report the criminal activity

of g ang s to police as a distinct social g roup for purposes of withholdingrelief.

T h e p anel ex plained that the B oard properly c onclude d that it c ould not consider petitioner’s CAT claim on remand, where this court ex pressly disposed of that issue in the prior petition for review, and r emanded only for f urther consideration of petitioner’s withholding claim.

The panel held that substantial evidence supported the B oard’s determination that petitioner’s proposed social g roup of Guatemalans who report c ri m i n al a ctivity o f g ang s to police was not cog niz able due to the lack of society -specific

e vidence o f social d istinction. The panel ex plained t h at

a l thoug h country reports in evidence detailed the serio u s problem of g ang violence in Guatema l a , n o n e of those documents d iscussed reporting g ang violence to police, o r

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C O N D E Q U E V E D O V

. B A R R 3

any risks or barriers associated with doing so, n or did any o f those documents asser t t h at Guatemalan society recog niz e s those who, without more, report ga n g violence as a d istinct
g roup. Similarly
, the panel concluded that petiti o n er’s
t estimony failed to support a finding of social r ecog niti o n , where petitioner testified that, a s far as he knew, o n l y his family and friends—not the communit y i n g eneral—knew that he had filed a report with the police.

The panel concluded that p etitioner’s proposed social
g roup differed from the g roup recog niz ed in Henriquez-Rivas

v. Holder
, 707 F .3d 1081 (9th Cir. 2013) (en b a n c )
, people who testifie d publicly ag ainst g a ng members in criminal proceeding s, because Henriquez -Rivas had tes t ified in open court, and the Salvadoran g overnment had en a cted a special witness protection law to protect those who testify against violent criminals. I n contrast, althoug h petitioner reported his
g ang attack to the police, there was no evidence that he ever testified ag a inst g ang members, nor was th e r e evidence that Guatemalan s wh o merely make reports to the p olice a re offered special leg al protection. T h e p a nel noted that in Henriquez-Rivas , the court did not intend to sug g est that the public nature of one’s testimony was essential to social g roup cog niz ability
, but because i t was p u blic, the court d id not

a d d r ess w hether Henriquez -Rivas would have been elig ible had h er conduct been p r i v a t e. The panel ex plained that Henriquez-Rivas
, then, does not foreclose the possibility that

re p o r t i ng g ang violence to p olice could suffice to establish elig ibility
, i f, for ex ample, there was evidence that, in a specific country , people in the community knew who r eported crimes to the police, or if there were laws pro tecting those who did.C O N D E Q U E V E D O V

. B A R R 4

COUNSEL

Peter Hurtado (arg

ued), Seattle, Washing ton, for Petitioners.

Tim Ramnitz (arg

u ed), Tr i a l A ttorney ; Russell J .E. V erby
, Senior L itig ation Counsel; Shelley R. Goad, As sistant Director; J oseph H. Hunt, Assistant A ttorney General; Office of I mm i gration L itig ation, Civil Division, United States Department of J ustice, W ashing ton, D.C.; for Respondent.

OP INION

GRAB ER, Circuit J udg e:

Petitioner Carlos Arnoldo Conde Qu e v edo, a citiz e n o f Guatemala, testified to an immig ration j u dg e (“I J ”) that Guatemalan g a

ng members attacked him twice. He fears that he will be attacked ag ain if he returns to Guatemala because he reported the g ang ’s criminal activity to the p o l i ce. The B oard of I mmig ration Appeals (“B I A”) rejected Petitioner’s request for w ithholding of r emoval because, it concluded, the record does not establish that Guatemalan society recog niz e s “people who report the crimin a l a ctivity of g ang s to police”

as a d istinct social g r o u p

. W e deny the p etition as to withholding of removal and dismiss Petitioner’s other challeng e for lack of jurisdiction.C O N D E Q U E V E D O V

. B A R R 5

B ACKGROUND

Petitioner entered the United States in 2001 on a visitor’s visa. 1 I n 2009, he applied f or asy lum, withhold i n g o f removal, and relief under the Convention Ag ainst Tort u r e ( “CAT”). Petitioner’s claim is founded on his h a vin g b e e n attacked and seriously injured by Guatemalan g ang members

on two o cc a s i ons and on his fear that those g ang members would further h arm him, if he returned to Guatemala, because he had reported their earlier attacks to the police.

Petitioner had a merits hearing b e f ore an I J in 2011. The I J denied his applications f or r e l i e f

. The B I A dismissed Petitioner’s a p p e al in 2012. With respect to withholding o f removal, the B I A h e ld t h a t Petitioner had failed to demonstrate that he belong s to a particular social g roup.

Petitioner soug ht our review. I n 2014, we denied in part and g ranted in part the petition for review. Conde Quevedo

v. Holder
, 585 F

. App’x 492 (9th Cir. 2 0 1 4 ) ( unpublished). W e upheld the denial of Petitioner’s c laims for asy lum a nd CAT relief. Id. B ut w e remanded the claim for withholding of removal so the B I A c ould consider the effect of new Ninth Circuit and B I A decisions. Id. at 492–93 (citing Pirir-Boc v

. Holder
, 750 F .3d 1077 (9th Cir. 2014); Cordo b a v. H older
,

1 Carlo s A rn o ld o Co n d e Qu ev ed o is th e lead p etitio n er. H is w if e, A m alia Co n de T u rcio s, also a citizen of Gu atem ala, is a rid er p etitio n er. Sh e en t ered th e Un ited States in 2 0 0 0

. Sh e testif ied b ef o re th e IJ th at, in 1 9 9 5 or 1 9 9 6
, h er g ran d p aren ts h ad b een k id n ap ed b y g an g m em bers. Bu t sh e d i d n o t testif

y th at th is w as th e so u rce o f h er f ear o f f u tu re h arm if sh e

w ere to retu rn to Gu atem ala, an d Petitio n ers d o n o t arg u e th at o n ap p eal. A s th e case reach es u s, th en , A m alia Co n d e T u rcio s’ claim s are e n t i r e l y d ep en d en t o n h er h u s b an d ’ s. Fo r sim p licity
, ref

eren ces in th e tex t to

“ Petitio n er” ref

er to th e lead p etitio n er, Carlo s A rn o l d o C o n d e Qu ev ed o

.C O N D E Q U E V E D O V

. B A R R 6

726 F .3d 1106 (9th C i r. 2 0 13); Henriquez-Rivas v

. H older
, 707 F .3d 1 081 (9th Cir. 2013) ( en banc); Matter of M-E-V-G-

, 26 I

. & N. Dec. 2 27 (B .I .A. 2014); and Matter of W -G- R-
, 26 I

. & N. Dec. 208 (B

. I

. A. 2014)). Those decisions c larified the interpretation of a “ p a r ticular social g r oup” and the applicable standard of review.

The B I A then remanded the matter t o a n I J for f

actfinding and additional proceeding s “ not inconsistent with the Ninth Circuit’s order.” An I J h e l d two additional hearing s. At the hearing s, the I J clarified that the only issue before the
court was the claim for withholding of removal. Petitioner’s proposed social g roup f

or purposes of w ithholding of removal

was “people who report t h e criminal activity of g ang s to police.”

W h ile Petitioner was living in Gu a t emala, h e was attacked and seriously

injured twice by g ang members. The first a ttack was an attempted r obbery in 2 000, during which
g ang members stabbed Petitioner in the a bdomen. His father reported that incident to the police. G ang members a ttacked Petitioner a second time in 2001 and stabbed him in the arm. Petitioner a

nd his father tog ether reported the second incident
to the polic e

. They met with o ne police officer at the precinct.

Petitioner did n ot know whether the people who a ttacked him knew that he and his father had reported the attacks to the police, but he speculated tha t t h e y f ound out. Petitioner believed that the second attack occurred because g ang members knew that his father had reported the f i r s t incident to the police. Althoug h his attackers did not say any thing to him during the second attack, they did not take the money that he had with him. Petitioner testified that he was afraid toC O N D E Q U E V E D O V

. B A R R 7

return to Guatemala because he believed that g ang members would try to kill him because he had reported the second attack to the police. Petitioner submitted for the record State Department Human Rig hts Reports f rom 2010 and 2014 a

nd

a Cong ressional Research Se r v ice report titled G angs in Central America

.

The I J found that there was no evidence that people who report criminal g ang a ctivity to the p o l i c e are a particular social g roup in Guatemala. The I J thu s c o n cluded that Petitioner’s “ application for asy lum
, w i t h h o l d i ng , relief under the Torture Convention is denied.”

The B I A dismissed P etitioner’s timely appeal. I t ruled that there was no c lea r e r r o r in the I J ’s determination
reg arding the proposed particular social g roup. I n a footnote, the B I A ex plained that, because the N inth Circuit h ad remanded only the withholding of r emoval claim, it would
not “readdress [ Petitioner’s] e lig ibility for relief under [ CAT] ” despite Petitio n e r ’s arg ument that it should. Petitioner timely

petitions for review.

STANDARDS OF REVI EW

W e review de novo t h e B I A’s determinations on questions of law and mix ed questions of law and fact. Cordoba
, 726 F .3d at 1 1 1 3

. W e r eview for substantial evidence the B I A’s factual fin d i n gs

. Bringas-Rodriguez v

. Sessions
, 850 F .3d 1051, 1059 (9th Cir. 2017) (en banc)C O N D E Q U E V E D O V

. B A R R 8

D I SCUSSI ON

A. Convention Against Torture

W e lack jurisdiction to review Petitioner’s renewed
arg ument concerning CAT r elief. Our 2 014 decision denied the petition as to Petitioner’s asy lum and CAT claims a nd remanded for further proceeding s only as to withho l d i n g o f

remov a l

. T h e B I A “has no p ower to ex pand our remand bey ond t h e b o undary o rdered by our court.” MendezGutierrez v. Gonzales , 444 F .3d 1168, 1173 (9th Cir. 2006). The B I A “was bound b y the scope of our remand to resolve the only remainin g i ssue:” w ithholding of removal. I d. A s it recog niz e d, th e BI A could n ot consider CAT relief on remand because we ex p r e ssly disposed of that issue on review. Olivas-Motta v. W hitaker
, 910 F .3d 1271, 1 280 (9th Cir. 2018), petition for cert. filed
, __ U

. S.L .W

. __ (U.S. Sept. 3, 2019) (No. 19-282). The B I A properly addressed Petitioner’s CAT arg ument by noting that, “contrary to [ Petitioner’s] c ontention on appeal, the only issue before us is [ Petitioner’s] elig ibility for withholding of removal under the Act, and w e will not readdress [his] e lig ibility for relief under [ CAT] .”

B

. W ithholding of Removal

The B I A’s decision on r emand rested solely o n its determination that Petitioner had not established a cog niz able social g roup

. T h u s , the only question b efore us is whether “people who report the criminal activity of g a ng s to p o l ice” comprise a “particular social g roup” in Guatemala.C O N D E Q U E V E D O V

. B A R R 9

1. Legal Framework

“The term ‘particular social g roup’ is ambig u ou s

. ” Henriquez-Rivas
, 707 F

. 3 d a t 1083. W e have held that the B I A’s interpretation of the phrase—as articulated in M-E-VG-
, 26 I

. & N. Dec. 227, a n d W

- G

- R

- , 26 I

. & N. Dec. 208—is entitled to Chevron deference. Reyes v. Lynch
, 842 F .3d 1125, 1135 (9th Cir. 2 016). I n those two decisions, the B I A held that
, t o establish that a proposed social g roup is
cog niz able f

o r purposes of w ithholding of removal, an applicant must show that the propos e d social g roup is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity , and (3) socially distinct within the society in q uestion.” M

-E-V-G-
, 26 I

. & N

. Dec. at 237.

The “social distinction” prong of th e a n a l y sis “refers to social recog nition.” Rios v. Lynch
, 807 F .3d 1123, 1 127 (9th Cir. 2015) (quoting M-E-V-G-
, 2 6 I

. & N. Dec. a t 2 4 2 ). Recog nition of a g roup is determined by “the perception o f the society in q

uestion, r ather than b y t h e p e rception of the persecutor.” Id. (quoting M-E-V-G-
, 26 I

. & N. Dec. at 242). “Social distinction” should be d etermined throug h a case-by

c a s e , “evidence-based inquiry as to w hether the releva n t society recog niz es [ the] proposed social g roup.” Pirir-Boc
, 750 F .3d at 1084. The a g e ncy may not reject a proposed social g roup w itho u t considering the evidence in the record that a specific society recog n iz es the g roup. Id. at 1083–84. The B I A’s c onclusion reg arding social distinction—whether there is evidence that a specific soci e t y recog niz es a social
g roup—is a question of fact t h a t w e review for substantial evidence. R eyes , 842 F .3d a t 1137–38; see also Alanniz v

. Barr
, 924 F .3d 1 061, 1069 ( 9 th Cir. 2019) (noting that the
cog niz ability of a social g roup c o n tains factual questions).C O N D E Q U E V E D O V

. B A R R 10

B ut the ultimate question is a leg al one: g iven those facts, is there a “particular social g roup”? Barbosa v

. Barr
, 926 F .3d 1053, 1059 (9th Cir. 2019) (citing Pirir-Bo c , 7 5 0 F .3d at 1081).

2. Analysis

Substantial evidence supports the B I A’s co n c l usion that “the r ecord is devoid of any society s p e cific evidence, such

as country reports, backg round documents, or news articles, which w ould establish that persons who ‘report the criminal activity of g a

ng s to the police’ are perceived or recog niz ed a s

a g roup by society in Guatemala.” T h e record c o n t ains two State Department Human Rig hts Rep orts and a Cong ressional Research Service report, all three o f which detail the serious problem of g ang violence in Guatema l a

. But none o f those documents discusses reporting g ang v i o l e nce to police, o r any risks or barriers associated with doing so. Nor, critically
, does any of those documents assert that Guatemalan society recognizes those who, without more, r e p ort g ang v iolence a s a distinct g roup.

Similarly
, Petitioner’s testimony fails to support a finding of social recog niti o n

. H e testified that, as far as h e knew, only his f

amily and friends—not the commu n ity in
g ene r al—knew that he h ad filed a report with the police. Although h e c onjectured that g ang members had found out, that testimony shows only ind ividual retaliation, not persecution on a ccount of membership in a distin c t s o cial
g roup. See Madrigal v. Holder , 716 F .3d 499, 506 (9th Cir. 2013) (noting that “mistreatment motivated purely b y personal retribution will not g ive rise to a valid asy lum claim”). Petitioner also a cknowledg ed that he was never called to testify in Guatemala ag ainst any g ang members, a ndC O N D E Q U E V E D O V

. B A R R 11

h e f u rt her testified that he had never spoken o u t publicl y ag ainst the g a

ng

. Given this r ecord, we ag ree with the B I A ’s conclusion that Petiti oner’s proposed social g roup is not cog niz able because o f the absence of society -specific evidence of social distinction.

Petitio n e r ’ s proposed g roup differs from the g roup proposed by the petitioner in Henriquez-Rivas
, 707 F .3d at 1092: people w ho testified publicly ag ainst g ang members in criminal p roceeding s. There, w e held t h a t substantial evidence did not support the B I A’s conclusion t h a t the proposed g roup was n ot socially distinct. Id. The petitioner in Henriquez -Rivas had testified in open court, and the Salvador a n l eg islature had enacted a special witness protection law to protect those who testify ag ainst vi o lent criminals. Id. Here, altho u gh Petitioner reported the attack
to the police, there was no evidence that he eve r t e s tified
ag ainst g a

ng members. Nor is there e vidence that G u a t e m a lans who merely make reports to the p olice a re offered special leg al protection.

W e noted in He n r iquez-Rivas that we did not “intend to sug g est that the public n ature of Henriquez

- Rivas’ testimony is e ssential to her e l ig ibility ” but, because it was public, we did not address whether she would have been elig ible had her conduct been private. Id. at 1 0 9 2 n.14. Henriquez-Rivas
, then, d o e s not foreclose the possibility that reporting g ang violence to p olice could suffice to establish elig ibility

. F o r

e x a m ple, if there were evidence that, in a specific count ry , people in the community knew who reported c r i m e s to the police, o r if there were laws protecting those who did, the proposed g roup potentially could be cog niz a

ble.C O N D E Q U E V E D O V

. B A R R 12

Here, however, Pe t i t i o ner met with only one police officer; he was not in the main public precinct room but in a separate room wh e n m a k ing the report; no evidence was taken f rom him; he w as n o t p h o tog raphed; and h e did not cooperate with the police bey ond making his c omplaint at the police o f fice. As noted, Petitioner presented no evidence of

a Guatemalan law or prog ram protecting those who, without
more, make police reports, and Petitioner presented no other evidence that Guatemalan society recog niz es those who just report criminal activity of g ang s to police a s a particular social g roup. T he B I A did not err i n c o n c l uding that Petitioner failed to e stablish membership in a cog niz able particular social g

roup.

P etition DISMISSED IN P ART a n d DENIED IN P A RT.