Mohamad Chehab v. Eric Holder, Jr. , 538 F. App'x 466 ( 2013 )

Case: 12-60588 Document: 00512335479 Page: 1 Date Filed: 08/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 8, 2013
No. 12-60588 Lyle W. Cayce
Clerk
MOHAMAD HASAN CHEHAB,
Petitioner,
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an order of the
Board of Immigration Appeals
BIA No. A094 971 252
Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Petitioner Mohamad Hasan Chehab (“Chehab”), a native and citizen of
Lebanon, petitions for review of an order entered by the Board of Immigration
Appeals (“BIA”), dismissing his appeal from an order of removal. In its order,
the BIA agreed with the Immigration Judge’s conclusions that Chehab had not
shown that he was a refugee for purposes of 8 U.S.C. § 1101(a)(42)(A) because
he had not shown that he had a well-founded fear of future persecution in
Lebanon based on either his neutral political opinion or his membership in an
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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asserted particular social group, namely, single Lebanese men born after 1973
who refuse to join Hezbollah. Chehab now petitions this court for review of the
BIA’s order and also asserts that his asylum claim was prejudiced by ineffective
assistance of counsel. We DENY his petition.
I. BACKGROUND
In 2008, Chehab was charged with being removable as an alien who had
arrived in this country without being admitted or inspected. Chehab conceded
the charge. However, he argued that he was eligible for asylum under 8 U.S.C.
§ 1101(a)(42)(A) because he had a well-founded fear of persecution based on
“race, religion, nationality, membership in a particular social group, or political
opinion.”
In October 2008, Chehab requested sixty days to “identify an appropriate
expert witness” and to obtain corroborating documents. The Immigration Judge
(“IJ”) granted Chehab until January 5, 2009, more than the sixty days
requested. The proceedings were subsequently reassigned to a different IJ who,
in a March 31, 2009 hearing, set Chehab’s merits hearing for January 22, 2010
and required both parties to submit exhibits, witness lists, and other
documentation by December 22, 2009. Chehab’s counsel failed to file any
documents by the deadline, instead filing numerous documents on January 11,
2010. In the cover letter filing the exhibits, Chehab’s counsel notified the court
that “we will be bringing an expert witness, Mr. Joseph Hage, to testify on my
client’s behalf.” The letter and accompanying documents did not include any
additional information about the purported expert, such as identifying the
witness’ qualifications or summarizing his testimony.
At the hearing, the Government objected to the admission of the evidence
and the expert’s testimony. The IJ excluded the documents as untimely and the
expert witness’ testimony for lack of information about the expert’s
qualifications. At the hearing, Chehab contended that he was eligible for asylum
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because he had been subjected to physical abuse and threats from Hezbollah
members who wanted Chehab to join Hezbollah and because he held neutral
political views. Chehab argued that he was a member of a “particular social
group,” for 8 U.S.C. § 1101(a)(42)(A) purposes, namely that of single Lebanese
men born after 1973 who refuse to join Hezbollah.
The IJ found Chehab was not credible and denied him asylum. Moreover,
the IJ reasoned that even were Chehab credible, he would still be ineligible for
asylum because his political neutrality was not a recognizable political opinion
and because he had not shown that he was a member of a “particular social
group.” Upon review, the BIA affirmed the IJ’s determination, for the reasons
stated in the IJ’s decision, that Chehab had not established a nexus based on
political opinion. The BIA then analyzed Chehab’s “particular social group”
contention and affirmed the IJ. The BIA did not review the IJ’s credibility
determination because “even if credible, the respondent is unable to meet all of
the statutory requirements for the relief he seeks.” Finally, the BIA held that
Chehab had not established that his counsel’s ineffective assistance prejudiced
his claim.1
II. ASYLUM
A. Standard of Review
“We generally have authority to review only the decision of the BIA. When
the IJ’s ruling affects the BIA’s decision, however, we also review the decision
of the IJ.” Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007) (citations omitted).
We review the BIA’s legal conclusions de novo, and we “defer to [its]
interpretation of immigration regulations if the interpretation is reasonable.”
Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (citations omitted).
We will uphold the BIA’s factual findings if they are supported by substantial
1
The BIA addressed several other claims that Chehab raised. As Chehab does not raise
them before this court, we do not discuss them.
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evidence, “that is, unless the evidence is so compelling that no reasonable
factfinder could fail to find otherwise.” Id. (citation omitted). The conclusion
that an alien is not eligible for asylum is a factual finding and is therefore
reviewed under the deferential substantial-evidence standard. Chen v. Gonzales,
470 F.3d 1131, 1134 (5th Cir. 2006).
B. Discussion2
“An alien is eligible for asylum if the Attorney General or the Secretary of
Homeland Security determines that the alien is a refugee.” Zhu, 493 F.3d at 594
(citing 8 U.S.C. § 1158(b)(1)(A)). A refugee is someone “who is unable or
unwilling to return to, or is unable or unwilling to avail himself or herself of the
protection of [his or her country of nationality] because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42).
Whether to grant asylum to an eligible individual is a matter of “complete
discretion” left to the Attorney General or the Secretary of Homeland Security.
Zhu, 493 F.3d at 594 (citations omitted).
Chehab has never asserted that his request for asylum was based on race,
religion, or nationality. Although he argued before the IJ and the BIA that he
was entitled to asylum based on his neutral political opinion, he does not raise
that argument before this court. Therefore, he has waived that issue.3 See
Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004) (citations omitted). Chehab
argues that he qualifies for asylum based on his “membership in a particular
2
In his petition, Chehab argues that the IJ’s credibility determination was clearly
erroneous. As noted above, the BIA did not address this conclusion because it found that the
IJ had correctly determined Chehab had not established a nexus to an eligible category. As
we agree with the BIA’s decision to affirm, we also need not consider this alternative
argument.
3
Similarly, Chehab has not argued before this court that the BIA improperly
determined that he waived any review of the IJ’s order denying his applications for
withholding of removal and Convention Against Torture (“CAT”) protection.
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social group.” See 8 U.S.C. § 1101(a)(42). That social group, according to
Chehab, is single Lebanese men born after 1973 who refuse to join Hezbollah.
In order to establish persecution based on membership in a particular
social group for asylum purposes, the alien must show that he is a member “of
a group of persons that share a common immutable characteristic that they
either cannot change or should not be required to change because it is
fundamental to their individual identities or consciences.” Orellana-Monson v.
Holder, 685 F.3d 511, 518 (5th Cir. 2012) (internal quotation marks and citations
omitted). In assessing whether a particular social group exists, the BIA
considers “(1) whether the group’s shared characteristic gives the members the
requisite social visibility to make them readily identifiable in society and (2)
whether the group can be defined with sufficient particularity to delimit its
membership.” Id. at 519 (internal quotation marks and citation omitted). The
BIA’s interpretation of “a particular social group” is entitled to deference unless
it is arbitrary and capricious, which Chehab has not argued. See id. at 520-21.
We find our decision in Orellana-Monson to be instructive in this case.
There, one of the petitioners sought asylum based on his membership in the
particular social group of Salvadoran males between the ages of eight and fifteen
who had refused to join a pervasive street gang. 685 F.3d at 515-16. We agreed
with the BIA that the proposed group lacked particularity because it was
“exceedingly broad and encompasse[d] a diverse cross section of society.” Id. at
521. We also agreed with the BIA that the proposed group lacked the necessary
social visibility because there was “little evidence that people who were recruited
to join gangs but refused to do so would be ‘perceived as a group’ by society.” Id.
at 522. Noting that there was no indication that the gang itself would see people
who refused to join as a group within Salvadoran society, we concluded that it
was more likely that the gang would perceive those who refused to join just as
it does any other person who went against the gang’s interest. Id. Therefore,
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because the petitioner’s proposed goup lacked particularity and social visibility,
we upheld the BIA’s decision that it did not meet the requirements of a
particular social group for asylum purposes. Id.
The BIA found that Chehab did not satisfy either of its “particular social
group” requirements, and we conclude that the reasoning in Orellana-Monson
is directly applicable here. Accordingly, we hold that Chehab has not
established that the evidence compels a conclusion contrary to that of the BIA.
III. EXPERT WITNESS EXCLUSION
Chehab argues that he was denied due process when the IJ excluded
testimony by his expert witness “solely based on blind adherence” to the timing
rules contained in the Immigration Court Practice Manual.
A. Standard of Review
Removal proceedings must be conducted “in accord with due process
standards of fundamental fairness.” Bouchikhi v. Holder, 676 F.3d 173, 180 (5th
Cir. 2012). We review due process claims de novo. Id. (citation omitted). To
prevail on such a claim, an alien must show substantial prejudice resulted from
the alleged violation. Id. Chehab must at least show that the IJ’s assessment
and exclusion of the purported expert witness, Hage, was an abuse of discretion.
See id.B. Discussion
The Government objected to Chehab’s expert witness, noting that
Chehab’s notice to the court that he intended to call an expert witness to testify
was not only late, but also lacked any summary of the witness’ proposed
testimony, any information about the expert’s area of expertise, and a
curriculum vitae. Chehab’s counsel explained that the late notice was due to the
difficulty in securing the witness, but still did not provide the witness’
qualifications or proposed testimony.
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Contrary to Chehab’s assertions, the IJ did not refuse to admit Hage’s
testimony solely because the witness list was filed past the deadline set for such
filings. Instead, the IJ stated,
[A]s to the expert witness, I can fully acknowledge and
appreciate that this gentleman may have come from
long distances to be here today. But again, there’s [sic]
certain rules and regulations that I need to follow in my
proceedings. If, perhaps, there had been more
information about this expert witness even provided a
few days before today as far as his expertise, I might
have given more potential possibility to him testifying,
but just informing the Court and Government counsel
that “an expert witness” would be coming to testify to
today’s hearing is not sufficient for me, so I will not
have him testify.
Thus, the IJ’s refusal was grounded on Chehab’s failure to provide any
information to the court and opposing counsel as to the expert witness’
qualifications and/or proposed testimony. We note that Chehab presents no
argument related to the IJ’s actual reasoning; instead, he treats the decision as
purely based on lack of timeliness.
“While the Federal Rules of Evidence are not binding in removal
proceedings,” they provide “helpful guidance.” Bouchikhi, 676 F.3d at 180. “An
expert witness is broadly defined as someone who is ‘qualified as an expert by
knowledge, skill, experience, training or education.’” Id. (quoting Fed. R. Evid.
702) (citation omitted). “An expert has ‘scientific, technical, or other specialized
knowledge [that] will assist the trier of fact to understand the evidence or to
determine a fact in issue.’” Id. (quoting Fed. R. Evid. 702) (citation omitted).
Chehab presented no evidence that would have enabled the IJ to
determine the scope and basis of Hage’s purported expertise. It was, therefore,
not an abuse of discretion for the IJ to exclude Hage’s testimony. See id. at 180-
81.
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IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Chehab argues that the BIA erred in determining that, although Chehab
met the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec.
637, 637-40 (BIA 1988), for raising a claim of ineffective assistance of counsel,
he had not shown the requisite substantial prejudice to prevail on such a claim.
Chehab contends that he was prejudiced by counsel’s untimely filings because
the exclusion of the untimely submitted evidence “directly resulted in the denial
of . . . [his] sole form of relief.”
A. Standard of Review
Chehab raised his ineffective assistance argument before the BIA in a
motion to remand filed in conjunction with his appeal. The BIA routinely treats
motions to remand as motions to reopen. See Ogbemudia v. INS, 988 F.2d 595,
600 (5th Cir. 1993). The BIA applies the same abuse-of-discretion standard to
a motion to remand as it does to a motion to reopen. Id. Such discretion is not
to be disturbed “so long as it is not capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so aberrational that it is arbitrary
rather than the result of any perceptible rational approach.” Pritchett v. INS,
993 F.2d 80, 83 (5th Cir. 1993) (per curiam) (internal quotation marks and
citation omitted).
B. Discussion
To demonstrate ineffective assistance of counsel in an immigration
proceeding, the petitioner must demonstrate substantial prejudice resulting
from counsel’s performance. Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th
Cir. 2001) (citation omitted). Proving prejudice requires that the petitioner
make a prima facie showing that, absent counsel’s deficient performance, he
would have been entitled to the relief he sought. Miranda-Lores v. INS, 17 F.3d
84, 85 (5th Cir. 1994) (citation omitted).
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We first consider whether Chehab has demonstrated any prejudice arising
from the IJ’s refusal to permit his expert witness to testify and exclusion of his
documentary evidence. Chehab has never established his expert witness’
qualifications or specified the intended testimony. Chehab asserts only that his
purported expert “could have corroborated key aspects of Chehab’s testimony
and other evidence the IJ declined to credit: the reason Hezbollah targeted Mr.
Chehab, Chehab’s credibility; and the nexus between the persecution of Mr.
Chehab and his membership in a particular social group.” This lack of specificity
prevents Chehab from establishing a prima facie showing that, absent counsel’s
deficient performance, he would have been entitled to the relief sought. See Ali
v. Holder, 484 F. App’x 993, 994 (5th Cir. 2012) (per curiam) (unpublished);
Korneenkov v. Holder, 347 F. App’x 93, 100 (5th Cir. 2009) (per curiam)
(unpublished) (citation omitted). Additionally, Chehab has not suggested that
any of the excluded documentary evidence would have affected the IJ’s ultimate
determination that Chehab did not belong to a particular social group.
Accordingly, Chehab has not demonstrated that the BIA abused its discretion
in rejecting his claim of ineffective assistance of counsel and denying his motion
to remand.
V. CONCLUSION
For the foregoing reasons, Chehab’s petition for review is DENIED.
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