Fabian-Soriano v. Barr
Opinion
*554
The primary issue in this immigration case is whether the statutory bar in
Because Fabian is removable due to his conviction for a state crime involving moral turpitude, we lack jurisdiction under
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 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
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.
*555 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 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 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.
*556 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 turpitude]."
3
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
,
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
,
"The presence vel non of either a constitutional or legal question is a matter of substance, not a function of labeling."
Ayeni
,
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
,
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
,
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
,
The petition for review is dismissed .
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.
Before this court, Fabian does not challenge the denial of his request for asylum under INA § 208(a),
Fabian properly concedes that his conviction for indecent assault and battery of a person fourteen years or older is a crime involving moral turpitude.
Fabian cites to
Ramadan
v.
Gonzales
,
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
,
Reference
- Full Case Name
- Mauricio FABIAN-SORIANO, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
- Cited By
- 3 cases
- Status
- Published