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 
- 3 - 

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 
- 4 - 

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.
- 5 - 

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.
- 6 - 

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 
- 7 - 

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. 
- 8 - 

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 
- 9 - 

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 . . . .").
- 10 - 

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 
- 11 - 

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 
- 12 - 

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, 
- 13 - 

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.