          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
           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


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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.


                                      - 4 -
            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.




                                    - 5 -
            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




                                     - 6 -
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.



                               - 7 -
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


                                - 8 -
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 . . . .").


                              - 9 -
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


                                   - 10 -
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


                              - 11 -
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,


                                  - 12 -
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.




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