IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60588

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

United States Court of Appeals

Fifth Circuit

F I L E D

August 8, 2013

Lyle W. Cayce

Clerk

* 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

1The 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 wellfounded 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, 685F.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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