### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 (“Cheh ab ” ) , a native and citizen of Lebanon, petitions for review of an order entered by the Board of Immigration Appeals (“BIA”), dismissing his appeal from a n order of removal. In its order, the B IA agreed with the Immigration J udge’s c o nclusions that Chehab had not shown that he w a s a refugee for purposes of 8 U.S.C. § 1 101(a)(42)(A) because he had not shown that he h ad a well-founded fear o f future per s ecution in Lebanon based on e ither his neutral political opinion o r his m embership in an U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 8, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60588 Document: 00512335479 Page: 1 Date Filed: 08/08/2013No. 12-60588

asserted particular social group, namely, single Lebanese m en born a fter 1973 who refuse to join Hezbollah. Chehab now p etitions this court for review of the BIA’s order a nd also asserts that his asylum claim w as prejudiced by ineffective assistance of counsel. We DENY his petition. I. BACKGROUND In 2008, Chehab was charged with b eing removable as an alien who had arrived in this country without being a dmitted or inspected. C hehab c onceded the c harge. However, he argued that he was eligible for asylum under 8 U.S.C. § 1 101(a)(42)(A) because h e h a d a well-founded fear of persecution based on “race, religion, nationality, m embership in a particular social group, or political opinion.” In October 2008, Chehab requested sixty days t o “identify an appropriate expert witness” and to obtain corroborating documents. The Immigration Judge (“IJ”) granted Chehab until January 5, 2 009, more than the sixty days requested. The proceedings were subsequently r eassigned t o a different IJ who, in a March 31, 2009 hearing, set Chehab’s merits hearing for January 22, 2010 and required both parties to s ubmit e xhibits, witness lists, and other documen t a tion by December 22, 2009. Chehab’s counsel failed to file any documents b y the deadline, instead filing numerous d o cuments on J anuary 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 incl u de any additional i nformation about the p u r p o r ted 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 l ac k o f i nformation about the expert’s qualifications. At the hearing, Chehab contended that he was e ligible f or asylum

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because he had been subjected to physical abuse and threats from H ez b o l l ah members who wanted Chehab to j o i n Hezbollah and because he held neutral political views. Chehab argued that he w a s a m e m ber of a “p articular social group,” for 8 U.S.C. § 1 101(a)(42)(A) purposes, namely that of single Lebanese men born after 1973 who refuse to join Hezbollah. The IJ f o und Chehab was not c redible and denied h i m asylum. Moreover, the IJ reasoned that e ven were Chehab c r edible, he w ould still be ineligible for asylum because his political n eutrality was not a recognizable political opinion and because he had not show n t hat he was a member of a “particular social group.” Upon review, the BIA affirmed th e I J’s determination, for the reasons stated in the IJ’s d ecision , t h a t Chehab had n ot established a nexus based on political opinion. The BIA then a n a lyzed Chehab’s “particular social group”

c ontention a nd affirmed the IJ. The BIA did not r eview the IJ’s c redibility determination b ecause “even if credible, the respondent i s 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 r eview o nly the d e cision 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 5 8 8, 593 (5th Cir. 2 007) (citations omitted). W e r eview the BIA’s legal conclusions de novo, and we “defer to [ i t s ] interpretati o n of immigration regulations if the interpretation is r easonable.” Tesfamichael v. Gonzales , 469 F.3d 109, 113 (5th Cir. 2 006) (citations omitted). We wil l u p h old the BIA’s f actual findings if they are s upported by substantial

1 The BIA ad d res s ed s everal other claim s that Chehab rais ed

. As Chehab d oes not rais e them bef

ore this court, w e d o not dis cus s them

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evidence, “that i s, unless the evidence is so compe l l ing that n o reasonable factfinder could fail to find otherwise.” I d

. ( c i t ation omitted). The c o nclusion that an alien is not eligible for asylum i s a factual finding a nd is therefo r e

r evi e w e d u n d e r th e d e f e r e nti al s ub s t a ntial-evidence standard. Chen v . Go nza les , 470 F.3d 1131, 1134 (5th Cir. 2006). B. Discussion 2 “An alien is eligible f

or asylum if the Attorney General or the S ecretary of Homeland Security determines that the a lien is a refugee.” Zhu , 493 F.3d at 594 (citing 8 U .S.C. § 1158(b)(1)(A)). A refugee is someone “who is u n able or unwilling to return to, or is u n able o r unwilling to avail himself or herself of the protection of [his or h er country of nationality] because of persecution or a wellfounded fear of persecution on account of r a ce, r eligion, nationality, membership in a p a rticular social group, or p o litical opinion.” 8 U .S.C. § 1 101(a)(42). Wh e t h e r to grant asylum to an eligible individual is a matter of “comple t e discretion” left to the Attorney General or the Secretary of Homeland S ecurity. Zhu , 493 F.3d at 594 (citations omitted). Chehab has never asserted that h is 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 n eutral p o litical opinion, he d oes not raise that argument before this court. Therefore, he has waived that issue

. 3 See Thuri v. Ashcroft , 380 F.3d 788, 793 (5th C ir. 2004) (citations omitted). Chehab

ar g u e s that he qualifies for asylum based on his “membership in a particular

2 I n his petition, Chehab argues that the IJ’s cred ibility d eterm ination w as clearly erroneous . As noted above, the BIA d id not ad d res s this conclus ion becaus e it f ound that the IJ had correctly d eterm ined Chehab had not es tablis hed a nexus to an eligible category. As
w e agree w ith the BIA’s d ecis ion to af firm , w e als o n e e d n o t cons id er this alternative argum ent.

3 Sim ilarly, Chehab has not argued bef ore this court that the BIA im p rop erly d eterm ined that he w aived any r e v i e w o f the IJ’s ord er d enying his ap plications f or w ithhold ing of rem oval and C onvention Agains t T orture ( “CAT”) p rotection. 4 Case: 12-60588 Document: 00512335479 Page: 4 Date Filed: 08/08/2013No. 12-60588

social group.” See 8 U.S.C. § 1101 ( a) ( 4 2 )

. That social group, according to Chehab, is single Lebanese men born after 1973 who refuse to join Hezbollah. In order t o 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 th at share a common immutable characteristic that they either cannot change or s hould not b e required to chang e b e c a u s e it is fundamental to their individual identities or consciences.” Orellana-Monson v. Holder , 685 F

. 3 d 5 1 1, 518 (5th Cir. 2012) (internal quotation marks a nd citations omitted). In a ssessing w hether a p a rticular social group e xists, the BIA considers “(1) whether the group’s shared characteristic gives the members the requisite social visibility to m ake them readily identifiable in s ociety and (2) whether the group can be defined with sufficient p articularity to delimit i t s membership.” Id. at 519 (internal quotation marks and citation omitted). The BIA’s interpretation of “a particular social group” i s entitled to d eference unless it is a rbitrary and capricious, which C hehab h as not argued. See id. a t 520-21. We find o ur d ecision in Orellana-Monson to be instructive in this case. There, one of the petitioners sought asylum based on his membership i n the particular social group of Salvadoran males between the ages of eight and fifteen who h ad refused to join a p ervasive s treet g ang. 6 85 F.3d at 515-16. W e agreed with the BIA that the proposed group lacked pa r t i cularity because it was “exceedingly broad and encompasse[d] a diverse cross section of society.” Id. at 521. We also agreed with the BIA that th e proposed group lacked the necessary social visibility because there was “littl e evidence that people w ho were recruited to j oin gangs but refused to do so would be ‘perceived as a group’ by society.” I d. 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, w e concluded that it

was more likely that the gang would perceive those who refused to join just as it does a n y o ther person w ho went a gainst the gang’s interest. I d. Therefore,

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because the petitioner’s p roposed goup l acked particularity and social visibility,

we u pheld the BIA’s decision t h a t it did not meet the r equirements of a particular social group for asylum purposes. Id. The BIA found that Chehab did not s atisfy either of i t s “particular social group” requirements, and we co nclude that the reasoning in Orellana-Monson is di rectly applicable h ere. Accordingly, we hold that C hehab has not established that the evidence compels a conclusion contrary to that of the BIA.

III. EXPERT WITNESS EXCLUSION Chehab argues tha t h e w as denied due process w hen the IJ excluded testimony by his expert witness “solely based o n blind adherence” to the timing rules contained in the Immigration Court Practice Manual. A. Standard of Review Removal pro c eedings must be conducted “in accord with due process standards of fundamental fairness.” Bouchikhi v . Holder , 676 F.3d 1 73, 180 (5th Cir. 2012). W e r eview due process claims de novo. Id. (citation o mitted). To prevail on such a claim, a n a lien m ust show substantial prejudice resulted from the alleged violation. Id. Chehab must at least show that the IJ’s assessment and exclusion of the p urported expert witness, H age, was an abuse of discretion. See id. B. Discussion The Government objected to Chehab’s exp e rt w itness, noting that Chehab’s notice to the court that he intended t o call an expert witness to testify

was not only late, but also lacked any summary of the w i t n e ss’ proposed testimony, any information about the expert’s a rea of expertise, and a curriculum vitae. Chehab’s counsel explained that the late notice was due to the difficulty in securing the wit n e s s , b u t still did not provide the witness’ qualifications or proposed testimony.

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C o n t r ary to Chehab’s a ssertions, the IJ did not refuse to admit Ha g e ’ s testimony solely b ecause the w itness l i st 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 g entleman m ay hav e c o me from long distances to be here today. B ut a gain, there’s [sic] certain rules and regulations that I need to follow in my proceedings. I f, perhaps, there h a d b een more information about this expert witness even provided a few days before t oday as f ar as his expe r t i se, I might have given more potential possibility to him testifying, but just informing the Court and Government counsel t h at “an e xpert witness” would be coming to testi f y t o today’s hearing is not s u fficient f or me, so I will n ot have him testify.
Thus, th e I J ’ s r e fusal was grounded on Chehab’s failure to provide any informa t ion to the court and opposing counsel a s t o the expert witness’ qualifications and/or proposed testimon y . We note that Chehab presents no argument related t o the IJ’s actual reasoning; instead, he treats the decision as purely based on lack of timeliness. “While the Feder a l Rules of Evidence are not b inding in removal proceedings,” they provide “helpful guidance.” Bouchikhi , 676 F .3d a t 1 80

. “An expert witne s s i s b r o a dly 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, t e chnical, or other specialized knowledge [that] will a ssist the trier of fact to unders t a n d t h e evidence or to determine a fact in issue.’” Id. (quoting Fed. R. Evid. 702) (citation omitted). Chehab p resented no ev i d e nce that would have enabled the IJ to determine the scope and basis of Hage’s purported expertise. It was, th erefore, not an abuse of discretion for the IJ to exclude Hage’s testimony. See id. at 180- 81.

7 Case: 12-60588 Document: 00512335479 Page: 7 Date Filed: 08/08/2013No. 12-60588 IV. INEFFECTIVE ASSISTANCE OF COUNSEL Chehab argues that the BIA erred in determining that, although Chehab met the procedural requirements set forth i n Matter of L ozada , 19 I. & N. Dec. 637, 637-40 ( BIA 1988), for raising a c laim o f i n e f f ective assistance o f counsel, he had not shown the requisite substantial prejudice t o prevail on such a claim. Chehab contends that he was prejudiced by counsel’s untimely filings because the exclusion o f the untimely submitted evidence “directly r e sulted 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 f

iled in conjunction with his appeal. The BIA routinely treats motions to remand a s 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, r acially invidious, utterly without f oundation in the evidence, or otherwise so aberrational that it is arbitra r y rather than the result of any perceptible rational approach.” Pritchett v. INS , 993 F.2d 80, 83 (5th Cir. 1993) ( p e r curiam) (internal quotation marks and citation omitted). B. Discussion To demonstrate ineffective assistance of counsel in an i mmigration proceeding, th e petitioner must demonstrate substantial prejudice resu l t i n g from counsel’s performance. Goonsuwan v. Ashcroft , 252 F .3d 3 83, 385 n.2 (5th Cir. 2001) ( c i tation omitted). Proving prejudice requires that the petitioner make a p rima facie showing that, absent c ounsel’s deficient performance, he would have b een entitled t o the relief h e sought. Miranda-Lores v. INS , 17 F.3d 84, 85 (5th Cir. 1994) (citation omitted).

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We first consider w hether Chehab has demonstrate d a ny p rejudice arising from the IJ’s r efusal t o permit his expert witness to t estify and exclusion of his documenta r y e v i dence. Chehab has never established his expert witness’ qualifications or s pecified the intended t estimony. Chehab asserts only that his purported expert “could have corroborated key aspects of Chehab’s t estimony and other evidence the IJ d eclined to credit: the reason Hezbollah targeted Mr. Chehab, Chehab’s credibility; and the nexus b e t w een the p e rsecution of Mr. Chehab and his membership in a particular social group.” This lack of specificity prevents Chehab from establishing a p rima facie s howing that, absent c ounsel’s deficient performance, he would have been entitled to the r e lief sought. See Ali

v. Holder , 484 F. App’x 993, 994 (5th C i r . 2012) (per curiam) (unpublis h e d); Korneenkov v. Holder , 3 47 F. App’x 9 3, 100 (5th Ci r . 2009) (per curiam) (unpublished) (citation omitted). Additionally, Chehab has not suggested that
any of the e xcluded documentary evidence would h ave affected the IJ’s ultimate determination that Chehab did not belong to a parti c ular social group. Accordingly, Chehab has not demons t r a t e d that the BIA abused its discretion in rejecting his claim of ineffective assistance of counsel and denying h is motion to remand. V. CONCLUSION For the foregoing reasons, Chehab’s petition for review is DENIED.

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