PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
M. O'Neill, Anne Y. Lee, and Covington & Burling LLP
on brief for petitioner.
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.
Torruella, Selya, and Lynch, Circuit Judges.
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).
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.
dismiss the petition for review for lack of jurisdiction.
entered the United States near McAllen, Texas without
inspection in October 2013. On November 10, 2017, Fabian 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.
March 19, 2018, Fabian appeared pro se before an IJ in
Massachusetts, who, after granting several continuances at
Fabian's request, found Fabian removable. 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.
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.
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.
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 ...