Conde Quevedo v. Barr
| Decision Date | 24 January 2020 |
| Docket Number | No. 18-70078,18-70078 |
| Citation | 947 F.3d 1238 |
| Parties | Carlos Arnoldo CONDE QUEVEDO; Amalia Conde Turcios, Petitioners, v. William P. BARR, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
On Petition for Review of an Order of the Board of Immigration Appeals, Agency Nos. AXXX-XX3-122, AXXX-XX3-120
Before: Susan P. Graber, Marsha S. Berzon, and Stephen A. Higginson,* Circuit Judges.
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.
Petitioner entered the United States in 2001 on a visitor’s visa.1 In 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 Conde Quevedo v. Holder , 585 F. App'x 492 (9th Cir. 2014) (unpublished).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 (). 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 fact-finding 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 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.
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)
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." Mendez-Gutierrez 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]."
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.
"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-V-G- , 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-by-case, "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) (). 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 ).
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...
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