Mouawad v. Gonzales
| Decision Date | 14 March 2007 |
| Docket Number | No. 06-1688.,06-1688. |
| Citation | 479 F.3d 589 |
| Parties | Imad Ibrahim MOUAWAD, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Phillip Frederick Fishman, argued, Fishman & Binsfeld, Minneapolis, MN, for appellant.
Assistant U.S. Atty., Perry F. Sekus, argued, Minneapolis, MN (Asst. U.S. Atty., Gerald Wilhelm, on the brief), for appellee.
Before LOKEN, Chief Judge, MELLOY, Circuit Judge, and SCHILTZ, District Judge.1
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 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.
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.
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 "needed 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 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 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.
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 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.
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) (); id. § 1158(a)(2)(D) (). 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) (); Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir.2001) ()....
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