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Fabian-Soriano v. Barr

United States Court of Appeals, First Circuit

May 31, 2019



          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.

          Before Torruella, Selya, and Lynch, Circuit Judges.

          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.


         Fabian 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.

         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.

         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.

         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 ...

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