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Keywords

jurisdictionburden of proofjudicial review

jurisdictionprecedentappealburden of proofjudicial reviewliens

Related Cases

Fabian-Soriano v. Barr

Facts

Fabian entered the United States without inspection in October 2013 and was later convicted of indecent assault and battery in Massachusetts. Following his conviction, he was identified as a removable alien by ICE while incarcerated. During removal proceedings, he claimed fear of returning to El Salvador due to threats from the MS-13 gang after resisting recruitment. The IJ found him credible but denied his request for withholding of removal, stating he did not meet the burden of proof for past persecution.

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.

Issue

Whether the statutory bar in 8 U.S.C. 1252(a)(2)(C) strips the court of jurisdiction over Fabian's petition for judicial review of the BIA's decision denying his request for withholding of removal.

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).

Rule

The INA provides that no court shall have jurisdiction to review any final order of removal against an alien who is removable due to a conviction for a crime involving moral turpitude, as stated in 8 U.S.C. 1252(a)(2)(C).

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.

Analysis

The court applied the statutory bar to dismiss the petition, noting that Fabian's claims were primarily factual challenges rather than legal or constitutional claims. The court emphasized that the agency had utilized the correct legal standards and that the determination regarding the sufficiency of evidence for past persecution was a factual issue beyond its jurisdiction to review.

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.

Conclusion

The court dismissed the petition for review for lack of jurisdiction, affirming the BIA's decision.

We dismiss the petition for review for lack of jurisdiction.

Who won?

The government prevailed in the case because the court found that it lacked jurisdiction to review the BIA's decision due to the statutory bar.

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.'

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