Fabian-Soriano v. Barr ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-2052
MAURICIO FABIAN-SORIANO,
Petitioner,
v.
WILLIAM P. BARR,*
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, and Lynch,
Circuit Judges.
Megan M. O'Neill, Anne Y. Lee, and Covington & Burling LLP on
brief for petitioner.
Robert Michael Stalzer, Trial Attorney, Office of Immigration
Litigation, Joseph H. Hunt, Assistant Attorney General, Civil
Division, and Stephen J. Flynn, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
William P. Barr has been substituted for former Attorney General
Jefferson B. Sessions, III as the respondent.
May 31, 2019
LYNCH, Circuit Judge. The primary issue in this
immigration case is whether the statutory bar in 8 U.S.C.
§ 1252(a)(2)(C) strips this court of jurisdiction over Mauricio
Fabian-Soriano's petition for judicial review of a Board of
Immigration Appeals' decision adopting and affirming an
Immigration Judge's denial of Fabian's request for withholding of
removal under the Immigration and Nationality Act § 241(b)(3), 8
U.S.C. § 1231(b)(3).
Because Fabian is removable due to his conviction for a
state crime involving moral turpitude, we lack jurisdiction under
8 U.S.C. § 1252(a)(2)(C) to consider Fabian's challenge to the
denial of withholding of removal. He raises no colorable legal or
constitutional claims. We also lack jurisdiction to consider
Fabian's argument, made for the first time in his brief to us,
that he is part of a particular social group consisting of "persons
who oppose gang membership and face continuous threatening
behavior after resisting recruitment, even after informing the
police and seeking their assistance and protection." He did not
exhaust that argument.
We dismiss the petition for review for lack of
jurisdiction.
I.
Fabian entered the United States near McAllen, Texas
without inspection in October 2013. On November 10, 2017, Fabian
- 3 -
was convicted of indecent assault and battery on a person fourteen
years or older, in violation of Massachusetts General Laws chapter
265, § 13H. On February 7, 2018, officers from U.S. Immigration
and Customs Enforcement conducted a routine check to identify
removable aliens at the Suffolk County House of Correction in
Massachusetts where Fabian was incarcerated. The ICE check
revealed Fabian's unlawful status, and the Department of Homeland
Security initiated removal proceedings against him on March 1,
2018. DHS charged him with being inadmissible under 8 U.S.C.
§ 1182(a)(6)(A)(i), as an alien present in the United States
without being admitted or paroled, and 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), as an alien who had been convicted of a
crime involving moral turpitude.
On March 19, 2018, Fabian appeared pro se before an IJ
in Massachusetts, who, after granting several continuances at
Fabian's request, found Fabian removable.1 On March 27, 2018,
Fabian again appeared pro se before the IJ to submit his
application for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). In the alternative,
Fabian requested voluntary departure.
1 At that March 19 hearing, Fabian admitted to entering
the United States without being admitted or paroled after
inspection by an immigration officer, and to the indecent assault
and battery conviction.
- 4 -
At a merits hearing on April 26, 2018, Fabian again
appeared pro se, and was provided an interpreter. He was the only
witness. He testified that he was fearful of returning to El
Salvador because he had resisted recruitment by the MS-13 gang.
Beginning in August 2013, he said, MS-13 members sent him four or
five anonymous messages telling him to attend a "jumping"
initiation, during which a new gang recruit is tortured for
thirteen seconds. Fabian testified that he received the messages
"on [his] phone." Fabian ignored these messages.
On September 15, 2013, Fabian said, four people dressed
in black, with ski masks covering their faces and weapons in their
hands, knocked on his door. He did not open the door, but hid out
of sight. Fabian texted his brother, a police officer in a
different town, about what was happening. Fabian's brother
contacted the local police, who sent a patrol car to Fabian's
house, causing the masked people to hide. When the masked people
finally left the next morning, Fabian fled to his aunt's house,
where he remained until he came to the United States. He has
received one anonymous threatening message on Facebook since then.
Fabian admitted that no one has harmed, mistreated, or threatened
his family in El Salvador, but he still feared that MS-13 would
harm or mistreat him if he returned because of his refusal to join
the gang.
- 5 -
On April 26, 2018, the IJ denied Fabian's applications
for relief and ordered him removed. The IJ found Fabian credible
and that he genuinely feared returning to El Salvador. The IJ
denied Fabian's request for withholding of removal because Fabian
failed to meet his burden to establish harm or mistreatment rising
to the level of past persecution. The IJ found that the messages
from MS-13 members were not "so menacing as to cause significant
actual suffering and harm," particularly since Fabian had not
provided "medical or any other documentation that he continued to
suffer in some way from th[o]se threats." Alternatively, the IJ
found that "even if the sum total of the respondent's past
experiences did amount to persecution, there has been no showing
. . . that any past persecution or any well-founded fear or clear
probability is on account of a protected ground." That is, "there
[was] no showing that the threats were on account of his race,
religion, political opinion, social group, or nationality."
Fabian appealed the IJ's decision to the BIA in a pro se
filing. The BIA adopted and affirmed the IJ's decision. The BIA
held that Fabian "ha[d] not made any specific arguments regarding
the [IJ's] decision and ha[d] not meaningfully challenged any of
the findings or conclusions underlying the denial of his
applications for relief and protection." The BIA declined to
consider Fabian's argument that he was eligible for asylum due to
- 6 -
his political opinion, because Fabian had not made that argument
before the IJ.
Represented by counsel, Fabian filed a petition for
review of the BIA's decision on October 24, 2018. Fabian was
removed to El Salvador on November 21, 2018. All agree that his
removal does not moot his petition.
II.
Fabian's petition challenges the denial of withholding
of removal on the grounds that (1) he did suffer past persecution,
(2) the agency decision failed to give "reasoned consideration" to
whether Fabian was more likely than not to face future persecution,
and (3) Fabian described a particular social group that the agency
wrongly rejected.2 We lack jurisdiction to consider his arguments.
A. We Lack Jurisdiction Over Fabian's Challenge
The INA provides that "no court shall have jurisdiction
to review any final order of removal against an alien who is
removable by reason of [a conviction for a crime involving moral
2 Before this court, Fabian does not challenge the denial
of his request for asylum under INA § 208(a), 8 U.S.C. § 1158(a);
for protection under the CAT, 8 C.F.R. §§ 1208.16(c), 1208.18; or
for voluntary departure under INA § 240B(b), 8 U.S.C. § 1229c(b).
Fabian also does not challenge the denial of his request for
additional continuances to find an attorney for his merits hearing
before the IJ. Nor does he revive his argument, made for the first
time before the BIA, that he suffered past persecution or was
likely to face future persecution on account of his political
opinion.
- 7 -
turpitude]."3 8 U.S.C. § 1252(a)(2)(C). Nevertheless, under the
REAL ID Act of 2005, Pub. L. No. 109–13, 119 Stat. 231, 310 (2005),
this court retains jurisdiction to review "constitutional claims
or questions of law raised upon a petition for review." Id.
§ 1252(a)(2)(D).
Fabian attempts, unsuccessfully, to characterize his
claims as raising colorable issues of law. Under well settled
First Circuit precedent, where the agency has utilized the correct
legal standards in a reasoned opinion and the petitioner challenges
a determination about the sufficiency of the evidence to meet his
burden of proof, no colorable legal or constitutional claim is
presented.4 See Ayeni v. Holder, 617 F.3d 67, 70–71 (1st Cir.
3 Fabian properly concedes that his conviction for
indecent assault and battery of a person fourteen years or older
is a crime involving moral turpitude.
4 Fabian cites to Ramadan v. Gonzales, 479 F.3d 646 (9th
Cir. 2007), which held that "jurisdiction over 'questions of law'
as defined in the Real ID Act includes not only 'pure' issues of
statutory interpretation, but also application of law to
undisputed facts." Id. at 648. In that case, the Ninth Circuit
held that it could review the BIA's application of the changed or
extraordinary circumstances exception to the one-year asylum
deadline when the facts are not disputed. Id. That is not our
law and Fabian has not developed any argument as to why we should
adopt Ramadan's approach, so he has waived this argument. See
Negeya v. Gonzales, 417 F.3d 78, 85 (1st Cir. 2005).
Moreover, the Ninth Circuit has acknowledged that it is
"alone in interpreting the REAL ID Act to allow for such broad
review," at least in the context of the changed or extraordinary
circumstances exception. Al Ramahi v. Holder, 725 F.3d 1133, 1138
n.2 (9th Cir. 2013). Most other circuits disagree. Id.
(collecting cases); see, e.g., Viracacha v. Mukasey, 518 F.3d 511,
515 (7th Cir. 2008) ("Because no administrative case can be decided
- 8 -
2010) ("The petitioner's claim that the BIA failed to accord
sufficient weight to the seriousness of his son's asthma is a
factual claim. Cloaking it in the garb of legal error does not
alter its nature."); Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir.
2006) (holding that the "assertion that the IJ (and thus, the BIA)
misconstrued the evidence and, in the bargain, relied too heavily
on a vague and general report of changed country conditions . . .
is a classic claim of factual error"); Elysee v. Gonzales, 437
F.3d 221, 223–24 (1st Cir. 2006) (holding that the petitioner's
arguments, including that "unfair weight [was] given to the fact
that [petitioner's] underlying convictions stemmed from incidents
of domestic violence" were "not constitutional claims or questions
of law but attacks on the factual findings made and the balancing
of factors engaged in by the IJ"); see also Rashad v. Mukasey, 554
F.3d 1, 5 (1st Cir. 2009) (holding that the allegation that the
agency failed to "fully evaluate" an aspect of a claim is just
another attack on weighing facts, "which is simply a factual claim
masqueraded as a legal challenge"). We have consistently held
that the REAL ID Act does not permit "review of the BIA's factual
findings as to credibility, evidentiary weight, and satisfaction
of a correctly framed burden of proof." Conteh, 461 F.3d at 63;
see Larngar v. Holder, 562 F.3d 71, 79 (1st Cir. 2009) ("Under
without applying some law to some facts, [Ramadan's] understanding
of § 1252(a)(2)(D) vitiates all clauses in the statute . . . .").
- 9 -
Conteh, the question of whether a party has established prima facie
eligibility for relief under the CAT could be characterized as, at
bottom . . . a question about whether a party has satisfied a
'correctly framed burden of proof.'" (citing Conteh, 461 F.3d at
63)).
Fabian does not claim that the agency used an incorrect
legal standard in assessing his claim for withholding of removal.
Rather, he is challenging the factual determination that the
evidence was insufficient to satisfy his burden to show that he
suffered past persecution and that, even if he had met this burden,
he had not shown that any past persecution or probability of future
persecution was on account of a protected ground. See Rashad, 554
F.3d at 5-6 (describing the petitioner's burden for withholding of
removal). Specifically, Fabian is challenging the factual
determination by the agency that the threats he received did not
rise to the level of persecution, which we lack jurisdiction to
review. See Conteh, 461 F.3d at 63; see also Morales-Morales v.
Sessions, 857 F.3d 130, 134 (1st Cir. 2017) ("We treat the rulings
below that [the petitioner] has not met his burden of demonstrating
past persecution as factual determinations subject only to the
highly deferential substantial evidence standard." (internal
quotation marks and alterations omitted)); Larngar, 562 F.3d at 76
("[T]he REAL ID Act's legislative history, in distinguishing
factual questions from legal ones, categorizes as factual those
- 10 -
questions that courts would review under the substantial evidence
standard." (internal quotation marks omitted)); Lumataw v. Holder,
582 F.3d 78, 92 (1st Cir. 2009) (reviewing whether the petitioner
had satisfied his burden for withholding of removal under the
"substantial evidence" standard).
"The presence vel non of either a constitutional or legal
question is a matter of substance, not a function of labeling."
Ayeni, 617 F.3d at 70–71. "For jurisdiction to attach, the claim
of constitutional or legal error must at least be colorable," id.
at 71, which these claims are not.
Fabian also attempts to avoid the jurisdictional bar by
arguing that the agency failed to give "reasoned consideration" to
whether Fabian was more likely than not to face future persecution.
This argument misapprehends both our law and the agency decision.
The agency gave reasoned consideration to Fabian's application
using the correct legal standard, and determined that he had not
met his burden to show that any past persecution or probability of
future persecution (if any) would be on account of a protected
ground.
Contrary to Fabian's argument, this case is unlike Un v.
Gonzales, 415 F.3d 205 (1st Cir. 2005), where the IJ and the BIA
"failed to address one of the two avenues open to an applicant for
proving entitlement to withholding of removal, i.e., whether he
had suffered past persecution on account of one of five proscribed
- 11 -
grounds." Id. at 208. Nor is this case like Enwonwu v. Gonzales,
438 F.3d 22 (1st Cir. 2006), where the BIA failed to address the
IJ's second ground for its decision when reversing the IJ's grant
of relief under the CAT. Id. at 35. Fabian's argument is nothing
more than a challenge to the agency's determination that he did
not present sufficient evidence to meet his burden for withholding
of removal, which we lack jurisdiction to review.
B. Fabian Failed to Exhaust His Particular Social Group Argument
Fabian's argument to this court that the IJ committed
legal error by rejecting Fabian's formulation of a particular
social group fares no better, as Fabian has not exhausted his
administrative remedies. See Ouk v. Gonzales, 464 F.3d 108, 111
(1st Cir. 2006). We lack jurisdiction to consider an alternative
description of a particular social group raised for the first time
on petition for review. Perez-Rabanales v. Sessions, 881 F.3d 61,
67 n.1 (1st Cir. 2018).
Before the IJ and the BIA, Fabian did not claim that he
was part of a particular social group of "persons who oppose gang
membership and face continuous threatening behavior after
resisting recruitment, even after informing the police and seeking
their assistance and protection." He only claimed that he was
targeted "[b]ecause they asked [him] to join the gang, and [he]
refused." "[C]ourts have historically loosened the reins for pro
se parties," Eagle Eye Fishing Corp. v. U.S. Dep't of Commerce,
- 12 -
20 F.3d 503, 506 (1st Cir. 1994), but pro se litigants are not
exempt from exhaustion requirements, see, e.g., Foster v. I.N.S.,
376 F.3d 75, 77-78 (2d Cir. 2004).
The petition for review is dismissed.
- 13 -