925 F.3d 552
1st Cir.2019Background
- Mauricio Fabian-Soriano entered the U.S. without inspection in 2013 and was later convicted in Massachusetts of indecent assault and battery (crime involving moral turpitude).
- DHS initiated removal proceedings after ICE discovered his unlawful status while he was incarcerated; the IJ found him removable and heard his pro se applications for asylum, withholding of removal, and CAT protection.
- Fabian testified he feared return to El Salvador because he refused MS-13 recruitment, received anonymous threatening messages, and experienced an attempted home intimidation that prompted police involvement; no physical harm to him or his family was shown.
- The IJ found Fabian credible but concluded the threats did not rise to past persecution and, alternatively, that any harm was not on account of a protected ground; the IJ denied relief and ordered removal.
- The BIA adopted and affirmed the IJ’s decision, holding Fabian failed to meaningfully challenge the findings and did not raise certain arguments (e.g., political opinion) before the IJ.
- Fabian petitioned this Court for review represented by counsel; the government moved to dismiss for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(a)(2)(C) bars review of withholding denial where petitioner is removable for a CIMT conviction | Fabian contends the Court can review the denial (frames some claims as legal) | Gov't: statutory bar applies; only constitutional or colorable legal questions survive under REAL ID Act | Dismissed — §1252(a)(2)(C) bars review; no colorable legal/constitutional claim shown |
| Whether the agency erred by failing to give "reasoned consideration" to future-persecution standard | Fabian argues agency did not adequately analyze likelihood of future persecution | Gov't: agency applied correct legal standard and gave reasoned consideration; dispute is factual | Dismissed as factual challenge not reviewable under REAL ID Act |
| Whether the threats and incidents constituted past persecution | Fabian: threats and home intimidation amount to past persecution | Gov't: evidence insufficient to show persecution-level harm | Dismissed — factual determination (insufficient evidence) not reviewable |
| Whether Fabian exhausted a particular-social-group (PSG) claim ("persons who oppose gang membership...") | Fabian raises new PSG definition on appeal | Gov't: PSG formulation was not raised before IJ/BIA; failure to exhaust bars review | Dismissed for failure to exhaust administrative remedies |
Key Cases Cited
- Ayeni v. Holder, 617 F.3d 67 (1st Cir.) (REAL ID Act does not permit review of factual determinations dressed as legal claims)
- Conteh v. Gonzales, 461 F.3d 45 (1st Cir.) (courts cannot review BIA factual findings as legal questions under REAL ID)
- Rashad v. Mukasey, 554 F.3d 1 (1st Cir.) (agency’s weighing/evaluation of evidence is factual and generally not reviewable)
- Un v. Gonzales, 415 F.3d 205 (1st Cir.) (agency failed to address an avenue for proving withholding — comparison point)
- Enwonwu v. Gonzales, 438 F.3d 22 (1st Cir.) (BIA failed to address IJ’s second ground when reversing CAT relief — comparison point)
- Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.) (contrasting approach on REAL ID Act review scope; Ninth Circuit views some applications-of-law-aspects as reviewable)
- Perez-Rabanales v. Sessions, 881 F.3d 61 (1st Cir.) (failure to exhaust new particular-social-group formulations bars judicial review)