Imad Ibrahim Mouawad v. Alberto Gonzales , 479 F.3d 589 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1688
___________
Imad Ibrahim Mouawad, *
*
Petitioner, *
* Petition for Review of an Order of the
v. * Board of Immigration Appeals.
*
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: November 16, 2006
Filed: March 14, 2007
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Before LOKEN, Chief Judge, MELLOY, Circuit Judge, and SCHILTZ, District
Judge.1
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MELLOY, Circuit Judge.
Imad Ibrahim Mouawad, a native and citizen of Lebanon, overstayed his tourist
visa to the United States and immigration authorities charged him as a removable alien
under 8 U.S.C. § 1227(a)(1)(B). Mouawad subsequently applied for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
The Immigration Judge (“the IJ”) denied all three applications, finding that
1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, sitting by designation.
Mouawad’s asylum application was untimely and that he did not meet his burden of
proving eligibility for withholding of removal or CAT relief. The Board of
Immigration Appeals (“the Board”) adopted and affirmed the decision of the IJ.
Mouawad now petitions this court for review of that decision. We deny the petition
in part, grant the petition in part, and remand for further proceedings.
I. BACKGROUND
Mouawad entered the United States legally on August 24, 2000, with a one-
month tourist visa. He overstayed the visa by more than three years. On November
23, 2003, immigration authorities commenced removal proceedings against him by
serving him with a notice to appear. At a master calendar hearing in February 2004,
Mouawad admitted removability and indicated his intent to file an application for
asylum, withholding of removal, and CAT relief. He formally filed that application
on March 31, 2004, and the IJ held a final removal hearing the following November.
A. Factual Background
Mouawad was the sole witness at the hearing, and we recount the substance of
his testimony here. Mouawad is a Lebanese Christian who grew up during Lebanon’s
war-torn 1980s. At a young age, he began working as a furniture craftsman.
Mouawad suffered some verbal harassment from the Syrian military and endured
recruitment attempts by Muslim militias during that time. According to Mouawad,
the militias “need[ed] people” to support them and therefore had no qualms about
recruiting Christians to serve their Muslim causes.
Mouawad’s substantive claims for relief, however, arise primarily out of events
related to his service as a personal aide to a commandant in the Lebanese military
from 1995 to 1996. During that time, Mouawad received vague threats from
unfamiliar, unarmed civilians he believed were members of Hizballah, a group that
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the U.S. State Department has recognized as a foreign terrorist organization. These
men wanted Mouawad to join their cause and feed them military information;
Mouawad did not comply with their demands. Mouawad had similar contacts with
other men on subsequent occasions during his military service, and he believed these
men sometimes followed him while he was driving. He told the commandant of this
harassment, and the commandant merely warned Mouawad to be careful. The military
also undertook an investigation into whether Mouawad was giving information to
Hizballah and threatened to punish him by extending his mandatory term of service.
On October 27, 1997—one year after Mouawad’s discharge from the
military—an unknown person or group murdered Samir Daou, a neighbor and friend
of Mouawad who was engaged in some manner of covert employment. Mouawad
learned of the murder from watching the local television news in his apartment, which
identified Daou as a victim that evening. Mouawad immediately feared that the
perpetrators were from Hizballah and that his own life might be at risk. Later that
night, he heard loud knocking at his apartment door for half an hour. Through the
peephole, he could see there were several men outside. He heard a neighbor question
the men about their business there, and they told her they sought Mouawad because
they knew he was Daou’s friend. They also said they knew Mouawad was present
because his car was parked outside the apartment building. Mouawad did not open
the door until morning, after the men had left. He slipped out of the apartment
building and took refuge in a church for a week.
Mouawad did not return to his apartment, although he continued to drive his
same car and maintained his business relationships as a self-employed carpenter.
Investigators hired by Daou’s family found and interviewed Mouawad within a few
weeks after Daou’s murder. Mouawad later learned that their investigation pointed
to members of Hizballah as the culprits in the killing. Mouawad moved around
Lebanon and lived in several different places for the next three years. Mouawad did
not testify as to any further harassment during that period. His fears persisted
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nevertheless, and he traveled to Syria in April 2000 to obtain a visa for entry into the
United States. He spent four months winding up his financial affairs in Lebanon, then
traveled to the United States in August of that year. His parents later told him not to
return because men had come to their home looking for him.
Mouawad’s visa expired in September 2000, but Mouawad overstayed it and
has remained in the United States. He paid $1,000 to enter a sham marriage with an
American woman shortly after his arrival in this country; she did not file appropriate
immigration paperwork for him, and he soon divorced her. He later entered another
marriage with a Canadian citizen. She was seeking annulment of that marriage at the
time of Mouawad’s hearing.
B. The IJ’s Decision
The IJ stated that he had “significant concerns” about Mouawad’s credibility,
though he did not make an explicit finding of adverse credibility.2 Despite these
concerns, the IJ based his decision on grounds other than Mouawad’s questionable
credibility, and he denied relief to Mouawad on all three of his claims. First, the IJ
found that Mouawad’s 2004 application for asylum was time-barred under 8 U.S.C.
§ 1158(a)(2)(B), which sets a one-year filing deadline upon the date of an alien’s
arrival in the United States. The IJ noted that he may excuse this deadline upon a
showing of changed circumstances affecting asylum eligibility or “extraordinary
circumstances relating to the delay in filing an application,” id. § 1158(a)(2)(D), but
found that Mouawad’s excuse for his late filing—an inadequate understanding of
2
In the instant appeal, Mouawad argues that the IJ erred in making an adverse
credibility finding. The IJ made no such finding explicitly, saying only that he had
concerns about Mouawad’s credibility. To the extent that such general concerns may
be characterized as an adverse credibility finding, that finding would nevertheless be
irrelevant to this case because the grounds for the IJ’s decision do not depend upon
Mouawad’s credibility.
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English and asylum procedures upon his arrival—failed to qualify as “extraordinary.”
The IJ also found that explanation in conflict with Mouawad’s own admission that he
engaged in a sham marriage shortly after entering the country, an act that suggests
some knowledge of American immigration law.
Second, the IJ found that Mouawad did not meet the statutory requirements for
withholding of removal. The IJ noted that Mouawad had not suffered harm that rose
to the level of persecution in Lebanon, but the IJ did not decide the claim on the
ground that Mouawad lacked a well-founded fear of future persecution due to his
failure to testify as to sufficiently severe abuse in the past. Instead, he denied
Mouawad’s claim for withholding of removal because Hizballah’s purported efforts
to coerce Mouawad’s cooperation in their cause did not amount to persecution on a
protected ground. Third, the IJ denied Mouawad’s application for CAT relief on the
sole ground that Mouawad’s fears related to Hizballah, rather than officials of the
Lebanese or Syrian governments. The IJ did grant Mouawad the privilege of
voluntary departure from the United States.
Mouawad appealed to the Board, which affirmed and adopted the decision of
the IJ without a separate opinion. Mouawad now petitions this court for review of that
decision and raises a number of issues, only three of which warrant discussion: (1)
that the IJ should have excused the one-year filing deadline for Mouawad’s asylum
application; (2) that substantial evidence does not support the IJ’s denial of
Mouawad’s application for withholding of removal; and (3) that substantial evidence
does not support the IJ’s denial of Mouawad’s application for CAT relief.
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II. DISCUSSION
A. Asylum
Mouawad first argues that the IJ should have waived the one-year filing
deadline for Mouawad’s asylum application. See 8 U.S.C. § 1158(a)(2)(B)
(establishing the one-year deadline); id. § 1158(a)(2)(D) (waiving the deadline when
the alien can show, “to the satisfaction of the Attorney General[,] . . . changed
circumstances which materially affect the applicant’s eligibility for asylum or
extraordinary circumstances relating to the delay in filing an application”). On appeal,
Mouawad contends that he showed both “extraordinary circumstances” (namely his
lack of secondary schooling and minimal understanding of the English language upon
arriving in the United States) and “changed circumstances” (namely the increase in
regional tensions in Lebanon after the 9/11 terrorist attacks). Therefore, he argues that
the IJ should have excused his untimely filing and reached the merits of his claim for
asylum.
At the threshold, we must determine whether Congress has granted our court
jurisdiction to decide this issue. Mouawad concedes that this court lacked jurisdiction
to review a determination that an asylum application was untimely prior to the passage
of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. See 8 U.S.C.
§ 1158(a)(3) (“No court shall have jurisdiction to review any determination of the
Attorney General under paragraph (2).”); Ismailov v. Reno, 263 F.3d 851, 855 (8th
Cir. 2001) (finding that this court lacks subject-matter jurisdiction to review a
petitioner’s claim that the Board erred by failing to find extraordinary circumstances
related to his untimely asylum application). Nevertheless, Mouawad argues that the
REAL ID Act’s affirmation of our jurisdiction to review “constitutional claims or
questions of law,” REAL ID Act of 2005 § 106(a)(1)(A)(iii), 119 Stat. 231, 310,
codified at 8 U.S.C. § 1252(a)(2)(D), narrows the scope of § 1158(a)(3) and enables
our court to hear his claim that the IJ erred in finding that Mouawad failed to
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demonstrate extraordinary circumstances or changed conditions “to the satisfaction
of [the IJ]” within the meaning of 8 U.S.C. § 1158(a)(2)(D).
Mouawad does not raise any colorable constitutional challenges or questions
of law as to the IJ’s determinations that Mouawad failed to meet the deadline and
failed to show sufficient extraordinary or changed circumstances, however.3
Furthermore, this court has rejected the same argument in other cases subsequent to
the passage of the REAL ID Act. See Jallow v. Gonzales, 472 F.3d 569, 571 (8th Cir.
2007); Tolego v. Gonzales, 452 F.3d 763, 766 (8th Cir. 2006); Wijono v. Gonzales,
439 F.3d 868, 871 (8th Cir. 2006); Ignatova v. Gonzales, 430 F.3d 1209, 1213-14 (8th
Cir. 2005). Thus, because the IJ determined that the untimeliness of Mouawad’s
asylum application was not excused by exceptional circumstances or changed
conditions within the meaning of 8 U.S.C. § 1158(a)(2)(D), we lack jurisdiction to
review Mouawad’s asylum claim.
B. Withholding of Removal
There is no similar one-year requirement for applications for withholding of
removal, however, and therefore we have jurisdiction to review the IJ’s denial of that
ground for relief. 8 U.S.C. § 1252(a); see Wijono, 439 F.3d at 872 (reviewing a denial
of withholding of removal despite having no jurisdiction to review the denial of
asylum relief on the basis of untimeliness). To qualify for withholding of removal,
an applicant must show a “clear probability,” Zhuang v. Gonzales, 471 F.3d 884, 891
3
Citing law from our sister circuits, Mouawad does make one arguably legal
contention with regard to the denial of his asylum claim: that the IJ failed to
sufficiently explain or make an individualized assessment of changed conditions with
regard to his finding that Mouawad failed to qualify for a waiver of the deadline. This
argument lacks merit. Even if we were to find jurisdiction on this issue, we note that
the IJ’s decision directly addressed the only reasons Mouawad gave him for the late
filing, and it provided adequate explanation as to why those reasons were insufficient
under the standards of 8 U.S.C. § 1158(a)(2)(D).
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(8th Cir. 2006), that “his or her life or freedom would be threatened in the proposed
country of removal on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 C.F.R. § 1208.16(b). An applicant
may make the requisite showing by one of two means. First, the applicant may show
past persecution on the basis of one of the protected grounds listed above, thus
creating a rebuttable presumption that his life or freedom would be threatened upon
removal. 8 C.F.R. § 1208.16(b)(1). Second, the applicant may qualify for
withholding of removal if he or she establishes that “it is more likely than not that he
or she would be persecuted” upon removal based upon one of the protected grounds
upon removal. 8 C.F.R. § 1208.16(b)(2). We review the denial of an application for
withholding of removal for substantial evidence, and will reverse the decision of the
IJ only if the record compels the conclusion that Mouawad qualified for withholding
of removal. Wijono, 439 F.3d at 872.
We find substantial evidence to support the IJ’s decision here, because
Mouawad’s testimony does not compel the conclusion that any past or feared future
persecution at the hands of Hizballah was or would be on account of a protected
ground. Mouawad testified to his Maronite Christian beliefs, but nowhere in the
record does he suggest that Hizballah harassed him because of those beliefs. See INS
v. Elias-Zacarias, 502 U.S.478, 483 (1992) (“Elias-Zacarias objects that he cannot be
expected to provide direct proof his persecutors’ motives. We do not require that. But
since the statute makes motive critical, he must provide some evidence of it, direct or
circumstantial.”). Indeed, Mouawad testified that his religious beliefs were irrelevant
to his alleged persecutors. He claimed that Hizballah members first approached him
because they wanted him to provide inside information on the Lebanese military, and
that the religion of those from whom they seek support “doesn’t matter” to the Muslim
militias in Lebanon. Thus, Mouawad failed to establish a clear probability of
persecution on the basis of his religion upon his return to Lebanon.
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Similarly, Mouawad did not establish that Hizballah sought (or will seek) him
out for persecution on the basis of a political opinion. At oral argument, he contended
that his refusal to give military secrets to Hizballah amounted to the assertion of a
political opinion of opposition to that group’s aims, or at least caused Hizballah to
impute that opinion to him. Without other evidence to support that assertion,
Mouawad’s argument is substantially identical to the argument the Supreme Court
heard and rejected in Elias-Zacarias, 502 U.S. at 481-82. We are therefore bound to
reject it here.
Substantial evidence supports the IJ’s decision to deny Mouawad’s application
for withholding of removal because Mouawad’s testimony would not compel a
reasonable factfinder to conclude that any persecution he suffered or may suffer would
be on account of a protected ground. Because we find this ground for denial of
Mouawad’s claim legally sufficient, we need not address the IJ’s other stated reasons
for the denial.
C. Recent Events in Lebanon
Much of Mouawad’s argument with regard to his asylum and withholding of
removal claims focuses upon recent events in Lebanon, including the well-publicized
armed conflict between Hizballah and Israeli forces during the summer of 2006. Both
the IJ and the Board denied Mouawad’s claims prior to these events, and therefore any
impact they have upon Mouawad’s claims is not a proper issue for this court in this
appeal. If Mouawad wishes to address these recent events before an adjudicative
body, the appropriate course is to bring a motion to reopen before the Board on the
basis of changed circumstances in Lebanon. 8 C.F.R. § 1003.2(c)(1), (3)(ii). At oral
argument, Mouawad informed this court that he has done so, and that the Board had
not yet ruled upon that motion. Thus, given the posture of this case, we do not
consider recent events in Lebanon for the purposes of this appeal.
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D. Convention Against Torture
To qualify for relief under the CAT, an alien must instead establish “that it is
more likely than not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 1208.16(c)(2). For applicants, this standard for relief
is more onerous than the standards for asylum and withholding of removal in certain
respects; for example, “persecution” for the purposes of asylum and withholding of
removal may encompass abuse that is less severe than “torture” for the purposes of the
CAT. See Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir. 2005) (noting the CAT’s
“narrow definition” of torture). The standards for CAT relief are less onerous,
however, in that they do not require an applicant to show that he fears future harm on
the basis of any statutorily-defined ground.
To constitute “torture” under the CAT, the relevant act(s) must be “inflicted by
or at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” Id. § 1208.18(a)(1). For the purposes of the
CAT, “acquiescence” exists when “the public official, prior to the activity constituting
torture, ha[s] awareness of such activity and thereafter breach[es] his or her legal
responsibility to intervene.” 8 C.F.R. § 1208.18(a)(7). This inquiry centers upon the
willfulness of a government’s non-intervention. A government does not acquiesce in
the torture of its citizens merely because it “is aware of torture but powerless to stop
it,” Ramirez-Peyro v. Gonzales, No. 06-1569, 2007 WL 542235, at *2 (8th Cir. Feb.
23, 2007), but it does cross the line into acquiescence when it shows “willful blindness
toward the torture of citizens by third parties.” Menjivar v. Gonzales, 416 F.3d 918,
923 (8th Cir. 2005).
As with claims for withholding of removal, we review the factual basis for an
IJ’s denial of a CAT claim for substantial evidence. Ibrahim v. Gonzales, 434 F.3d
1074, 1078-79 (8th Cir. 2006). “The grounds upon which an administrative order
must be judged are those upon which the record discloses that its action was based.”
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SEC v. Chenery, 318 U.S. 80, 87 (1943). Therefore, if “the IJ’s holding is insufficient
to allow us to conduct any meaningful review of [his] decision,” we must remand the
case to the Board for further explanation or reconsideration. Hailemichael v.
Gonzales, 454 F.3d 878, 884 (8th Cir. 2006).
Here, the IJ denied Mouawad’s CAT claim on the sole ground that he failed to
show that any harm he may face would be inflicted by the Lebanese or Syrian
governments. The IJ’s entire discussion of the CAT claim was as follows:
Regarding a claim under Article 3 of the Convention Against Torture,
the group that respondent stated his primary fear relates to is Hezbollah.
He has not indicated any fear of the government of Lebanon. To qualify
for relief under the Torture Convention, you must establish that you fear
being tortured by or at the instigation of, or with the consent or
acquiescence of, a government official. There is really no evidence here
that the respondent has any fears relating to the government of Lebanon.
Any claims relating to the Syrian authorities are severely undercut by the
fact that the respondent has made three trips to Syria, legally crossing the
border into that country with his Lebanese passport. In summary, the
respondent has not met his burden of proof to establish a basis for a
Torture Convention claim.
Substantial evidence certainly supports the IJ’s denial of Mouawad’s CAT
claim insofar as it relates to torture at the hands of the Lebanese or Syrian
governments directly. But the IJ’s opinion does not address the question of whether
Hizballah—the group that Mouawad allegedly fears, and the group whose acts
constitute the primary basis for his request for relief—commits such acts with the
acquiescence of the Lebanese government. We cannot say that the question of
acquiescence was unworthy of discussion. Contrary to the government’s assertion in
its brief that “there is no evidence that [the alleged harassment] came at the hands of
persons that the government of Lebanon was unwilling or unable to control,” we find
several facts in the record on this issue. At the time of Mouawad’s hearing, the most
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recent State Department report on Lebanon noted that the Lebanese government had
made no attempt to disarm Hizballah, and a report from the British government stated
that a number of Hizballah members had been elected to the Lebanese parliament and
that the Lebanese government’s control over the group was limited. In addition,
Mouawad testified that Lebanon is “completely different than here” in that “the police
can’t do anything for you” there. As a result, Hizballah was the only group in
Lebanon that can “kill and run and nobody will find out how.” Mouawad testified
that he brought complaints about the threats and harassment by Hizballah to his
superior military officer as early as 1995, but the military took no action to protect
him. Instead, Mouawad said that officers began questioning him as to whether he was
leaking information to Hizballah, and they threatened to detain him beyond his
mandatory term of service as a form of punishment.
Despite this evidence, the IJ never explicitly considered whether the Lebanese
government acquiesces in Hizballah’s acts of violence and intimidation, nor whether
there is a sufficient likelihood that Mouawad would be tortured by Hizballah members
if returned to Lebanon. The IJ’s failure to address these issues leaves us unable to
conduct any meaningful review of his decision as it relates to Mouawad’s CAT claim.4
The government also argues that the facts in Mouawad’s case do not suggest
that it is more likely than not that he would suffer torture upon his return to Lebanon,
regardless of the affiliation of the feared torturers. The government is free to make
4
This is not to say that an IJ must always perform separate analyses of an
applicant’s claims for asylum, withholding of removal, and relief under the CAT. In
many cases, including this one, the alien applies for all three forms of relief and
supports that application with the same factual allegations. In such cases, a separate
CAT analysis is generally necessarily only when the grounds for denying a claim for
asylum or withholding of removal rest upon eligibility requirements that are in
addition to, or more stringent than, the eligibility requirements under the CAT. See
Samedov, 422 F.3d at 708.
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that argument upon remand to the Board. As noted above, however, the IJ’s decision
did not include such a finding. As such, we decline the government’s invitation to
violate the principles of Chenery, and we remand the case to the Board for further
proceedings.
III. CONCLUSION
For the foregoing reasons, we hold that we lack jurisdiction to review the IJ’s
finding that Mouawad’s asylum application was untimely. We also deny the petition
for review insofar as it relates to his claim for withholding of removal, and we grant
the petition for review insofar as it relates to his CAT claim.
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