United States Court of Appeals

For the First Circuit

No. 05-1272

MARIE CHAHID HAYEK,

Petitioner,

v.

ALBERTO GONZALES, ATTORNEY GENERAL

OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Circuit Judge,

Stahl, Senior Circuit Judge,

Lipez, Circuit Judge.

Saher Joseph Macarius on brief for petitioner.

Lyle D. Jentzer, Trial Attorney, Office of Immigration

Litigation, United States Department of Justice, with whom Peter D.

Keisler, Assistant Attorney General, Civil Division, and Douglas E.

Ginsburg, Senior Litigation Counsel, on brief for respondent. 

April 14, 2006
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Per curiam. Petitioner Marie Chahid Hayek, a native and

citizen of Lebanon, seeks review of the decision of the Board of

Immigration Appeals ("BIA") pretermitting her application for

asylum as time-barred and denying her applications for withholding

of removal and relief under the Convention Against Torture ("CAT")

because she did not meet her burden of proof. Hayek argues that

she is eligible for asylum based on the "changed circumstances"

exception to the filing deadline and that she has provided credible

testimony and corroborative evidence compelling a reasonable

factfinder to conclude that she is entitled to withholding of

removal and CAT relief. Because we lack jurisdiction to consider

her argument about the timeliness of her asylum application, and

because we reject the remainder of her arguments, we deny Hayek's

petition for review.

I.

On September 2, 1992, Hayek entered the United States as

a visitor, with authorization to remain for a temporary period not

to exceed one month. Eleven days after her arrival, she married

her fiancé, a Lebanese citizen who had arrived in the United States

three years before and overstayed. They both remained illegally in

the United States and later had two children, both of whom are

United States citizens. In 2000, Hayek's husband was deported to

Lebanon. 
-3-

On February 4, 2002, the Immigration and Naturalization

Service ("INS") served Hayek with a notice to appear, charging her

with being subject to removal for remaining in the United States

without authorization, pursuant to 8 U.S.C. § 1227(a)(1)(B). At a

hearing before an immigration judge ("IJ"), Hayek conceded

removability, but applied for asylum, withholding of removal, CAT

relief, and, in the alternative, voluntary departure. We summarize

the evidence that Hayek provided in support of her claims and

discuss the decisions of the IJ and the BIA.

A. Evidence before the IJ and BIA

In support of her application for asylum, withholding of

removal, and CAT relief, Hayek testified that she experienced a

series of threats and physical attacks while she was involved with

the Lebanese Forces, a Christian military and political group

opposed to the presence of Syrian forces in Lebanon. Hayek, a

Maronite Christian, joined the Lebanese Forces in 1982 and

eventually became responsible for various administrative activities

of the Lebanese Forces' political party and student group. 

The violent incidents began in early 1992, when Hayek was

participating in a political demonstration for the Lebanese Forces

party in Lebanon. Syrian and Lebanese soldiers hit and kicked the

demonstrators. Hayek, who was standing near the front of the

demonstration, was beaten with the soldiers' rifles. Two days

later, four soldiers came to her house. Hayek's mother helped
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Hayek leave the house through the back door, and Hayek hid in a

farmhouse in the mountains for several days. 

Approximately a month later in March 1992, when Hayek was

out of hiding and visiting a sick relative, two armed men in

civilian clothing stopped her as she was entering her car, calling

her "Officer Marie" and telling her, "you Christians, your days are

over." One of the men grabbed her by the neck and ripped up a

picture of a saint that she had placed in the dashboard of the car.

After the men left, Hayek again went into hiding for a month and a

half. 

A few months later, when Hayek was leaving a party at the

local university with some friends, Syrian men forced their vehicle

off the road and pulled the passengers out of the car. One of the

men, addressed by the others as "Corporal," grabbed Hayek by the

hair, forcibly kissed her, and attempted to rape her. Hayek

escaped and flagged down a passing car, fleeing to her sister's

house, where she received treatment from a doctor. 

Approximately four weeks later, Syrian intelligence

forces approached Hayek and her siblings at a local store. The men

questioned Hayek's brother about his identity. They did not

recognize Hayek but stated that they were looking for her. 

Two weeks later, Hayek fled Lebanon. Using a visa that

a friend in the United States helped her to obtain, Hayek arrived

in the United States in September 1992. She stayed at the home of
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her sister, where her fiancé -- a former member of the Lebanese

Forces who had arrived in the United States three years earlier --

had also been staying. She married her fiancé approximately eleven

days later. 

When asked why she failed to apply for asylum upon her

arrival or at any time prior to the removal proceedings, Hayek

explained, "I was very scared . . . because I know what's going to

happen to me if I went back there." Hayek holds a college degree.

When asked if she had any further contact with the Lebanese Forces,

Hayek stated that she ended her participation in their activities

when she left the country. However, she explained that, in 2001,

she had called her uncle, a member of the Lebanese Forces with whom

Hayek had worked closely. He warned her not to come back because

Syrian intelligence forces had detained and tortured him and other

Lebanese Forces members and still sought to question Hayek. Hayek

did not submit an affidavit from this uncle confirming the

conversation. Hayek noted in her affidavit that the police had

come to her home in Lebanon to arrest her on three occasions in

1996 and 1999.

Along with her testimony, Hayek submitted additional

evidence in support of her claims. She presented two witnesses.

Fares Hayek, Hayek's brother-in-law, testified that he knew Hayek

in Lebanon and that they were both members of the Lebanese Forces.

Khalil Hayek, Hayek's husband's cousin, stated that he was a clerk
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who did paperwork for the Lebanese Forces and that he knew Hayek

when they were both members of the group. Neither affiant

testified to the attacks that Hayek claimed to have suffered. 

Hayek also submitted written statements from various

individuals in Lebanon. Archbishop Bechara Rahi, head of the

Maronite Archbishopric in Jbeil, Lebanon, stated that Hayek is a

member of the Lebanese Forces Party; that she was forced to leave

Lebanon due to the political and security situation in that

country; and that "the current situation in the country still

prevents her from returning," but provided no specific facts. Eli

Maroun Zagib, a selectman of the town of Amsheat, Lebanon, stated

that Hayek is wanted by the police "for her belonging to the party

of the Lebanese forces," but also provided no details. 

Perhaps the most helpful written statement was from Dr.

Antoine B. Issa, who stated that he treated Hayek for bruises

caused by a physical attack in 1992, but provided no details as to

the attack or treatment. Fouad Malik, Commander of the Lebanese

Forces, stated that Hayek was a member of the Lebanese Forces from

1982 until 1989. This, as the government points out, is

inconsistent with Hayek's own testimony that she was an active

member until 1992, when she said the persecution began.

Hayek also submitted country conditions reports,

including the State Department 2002 and 1999 Country Reports on

Lebanon, the Amnesty International 1999 Annual Report on Lebanon,
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several Human Rights Watch documents, and various reports and

articles discussing Syrian involvement in Lebanon and the treatment

of anti-Syrian demonstrators and protestors. 

B. The IJ and BIA Decisions

After a hearing on the merits, the IJ pretermitted

Hayek's request for asylum on the ground that it was untimely filed

under 8 U.S.C. § 1158(a)(2)(B), which states that an applicant for

asylum should file an application within one year of his or her

arrival in the United States. The IJ concluded that no changed or

extraordinary circumstances exist to justify an exception to the

one-year deadline. 

The IJ also denied Hayek's application for withholding of

removal and CAT protection. Although he did not explicitly make a

lack of credibility finding, the IJ found that she had not, through

her testimony, met her burden, and expressed doubts about the

truthfulness of her testimony. The IJ found that the petitioner's

marriage to her fiancé eleven days after they were reunited "casts

doubt upon the veracity of her story." He rejected her claim that

she came to the United States to avoid persecution. He found it

"more likely that the respondent arranged to come to the United

States to marry her fiancé." He also noted the fact that the

petitioner had never previously applied for political asylum,

stating that "[i]n the ordinary case . . . an individual would

arrive in this country and within a year after their arrival would,
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if they were genuine, submit an application for asylum during a

period of time when certain facts might be able to be

substantiated." He found her explanation of her reasons for not

applying for asylum (that she was scared to go to the Immigration

Service) to be "disingenuous at best."

The IJ characterized Hayek's testimony as "general and

meager" and said her testimony was "more in the nature of a

cliche." Hayek had asserted that there were identified people who

had firsthand knowledge of her persecution and were still in

contact with her, but she had failed to provide corroborating

statements from those individuals. As a result, the IJ found her

testimony about the events that took place some eleven years

earlier "unsubstantiated and unsupported." The IJ did not comment

specifically on the items of corroborative evidence that she had

submitted or on her testimony that an uncle had warned her in 2001

not to return. He concluded that Hayek had failed to provide him

with the necessary evidence to establish whether the events she

testified to had ever occurred, and that his sense of the matter

was "that these events did not occur."

The IJ also noted that the documentary evidence went

against her claim that she would be persecuted if she returned to

Lebanon, in two respects: there was no evidence that Syrian forces

or Lebanese forces were persecuting Christians and there was no

basis to think that events eleven years before would lead them to
Hayek submitted a letter from Msgr. Joseph Lahoud, of Our Lady of 1

the Cedars of Lebanon Church, who performed her marriage ceremony.

Msgr. Lahoud stated that the "circumstances that surrounded

[Hayek's] marriage were unusual and were of concern to me," but

"because of cultural difficulties the couple were facing, it became

understandable." He noted that both Hayek and her fiancé were

staying with Hayek's sister, and, since they were unmarried,

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harm her. The IJ concluded that "it is not more likely than not

that she would be persecuted if she returns to Lebanon, and

certainly it does not appear . . . to be more likely than not that

she would be tortured if she returns to that country." He did find

Hayek eligible for voluntary departure, noting that she has two

United States citizen children and no criminal record.

Hayek appealed the IJ's decision to the BIA. In her

appeal, she argued that the IJ erred by not finding that the

warning that Hayek received from her uncle in 2001 was evidence of

"changed circumstances" justifying the filing of her asylum

application past the one-year deadline. She also challenged the

IJ's denial of her withholding of removal and CAT claims based on

the lack of corroborative evidence, arguing that she did provide

supporting evidence of her claims (the testimony of her relatives

and the written statements) and that her "inability to obtain

physical evidence" should not be fatal to her application. In

addition, Hayek submitted the testimony of the leader of her church

in the United States as "new evidence" indicating that her marriage

was not planned, and therefore, she argued, not the reason for her

arrival in the United States. Hayek also argued that the IJ 1
"[t]his arrangement was foreign to the Lebanese tradition, culture

and more so to the Maronite religion." Msgr. Lahoud stated that he

"realized that this sudden marriage took place almost without

preparation" and noted that "no invitations were sent, no parents

were in sight, nor did they have a wedding celebration." 

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improperly concluded that the background documentary evidence of

record does not reflect that Syrian or Lebanese forces are

currently persecuting Christians.

The BIA issued a short opinion affirming and adopting the

IJ's decision. The BIA specifically stated that "we agree that the

respondent did not present reasons for failing to file her

application for asylum within one year of arrival in the United

States that rise to the level of extraordinary circumstances, nor

did the respondent present evidence of changed circumstances that

materially affects her eligibility for asylum." In responding to

Hayek's argument that the IJ failed to consider her corroborating

evidence, the BIA stated that "the evidence to which she refers .

. . would not change the outcome in these proceedings." The BIA

also stated that the "country conditions information . . . also

does not change the outcome here." The BIA concluded that Hayek

"did not demonstrate that she experienced past persecution or

torture, or that she has a well-founded fear of future persecution

in Lebanon. She further has not shown that it is more likely than

not that she would suffer future persecution or torture upon return

to her homeland." 
-11-

II.

On appeal, Hayek raises two main arguments. First, she

argues that she has established "changed circumstances" justifying

an exception to the one-year asylum filing deadline. Second, she

argues that she met her burden of proof for her withholding of

removal and CAT claims. Specifically, she challenges the IJ's

failure to credit her testimony as establishing past persecution

and argues that the IJ erred in not considering her corroborative

evidence.

In addressing these arguments, we review the decision of

the BIA directly, but "[w]here the BIA deferred to or adopted the

IJ's reasons for denying [the petitioner's] claims, we review those

portions of the IJ's decision as part of the final decision of the

BIA." Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir.

2004). We conclude that we lack jurisdiction to consider Hayek's

argument about the timeliness of her asylum application, and our

review of the record regarding Hayek's withholding of removal and

CAT relief claims does not compel us to reject the findings of the

BIA. 

A. Timeliness of Hayek's Asylum Application

The government correctly argues that we have no

jurisdiction to review the BIA's decision that Hayek's application

for asylum was untimely and that the untimeliness was not excused.

See 8 U.S.C. § 1158(a)(3) ("No court shall have jurisdiction to
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review any determination of the Attorney General under [8 U.S.C. §

1158(a)(2), describing the one-year deadline for asylum

applications and exceptions.]"). 

This conclusion is unchanged by section 106(a) of the

REAL ID Act, which provides that "[n]othing in subparagraph (B) or

(C), or in any other provision of this chapter (other than this

section) which limits or eliminates judicial review, shall be

construed as precluding review of constitutional claims or

questions of law raised upon a petition for review." REAL ID Act

of 2005, Pub. L. No. 109-13, § 106(a)(1)(A)(iii), 119 Stat. 231

(codified at 8 U.S.C. § 1252(a)(2)(D)). In Mehilli v. Gonzales,

433 F.3d 86, (1st Cir. 2005), we explained that "[u]nder the terms

of this limited jurisdictional grant, discretionary or factual

determinations continue to fall outside the jurisdiction of the

courts of appeals, and BIA findings as to timeliness and changed

circumstances are usually factual determinations." Id. at 93

(citations and internal quotation marks omitted). We lack

jurisdiction to consider this matter.

B. Withholding of Removal and CAT Claims

We have jurisdiction over Hayek's claims for withholding

of removal and CAT relief. See Sharari v. Gonzales, 407 F.3d 467,

474 (1st Cir. 2005). In assessing these claims, we will "uphold

the BIA's determination if it is supported by reasonable,

substantial, and probative evidence on the record considered as a
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whole." Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir.

2004) (citation and internal quotation marks omitted). "Under the

highly deferential substantial evidence standard, we must uphold

the BIA's findings unless any reasonable adjudicator would be

compelled to conclude to the contrary." Gi Kuan Tai v. Gonzales,

423 F.3d 1, 4 (1st Cir. 2005) (citation and internal quotation

marks omitted).

An applicant for withholding of removal must "show either

that (i) he has suffered past persecution on account of [race,

religion, nationality, membership in a particular social group, or

political opinion] (thus creating a rebuttable presumption that he

may suffer future persecution), or (ii) it is more likely than not

that he will be persecuted on account of a protected ground upon

his return to his native land." Da Silva v. Ashcroft, 394 F.3d 1,

4 (1st Cir. 2005) (citing 8 C.F.R. § 208.16(b)). This is a more

rigorous standard than the standard for asylum. An applicant for

CAT relief "must bear the burden to prove, by objective evidence,

that it is more likely than not that he will be tortured if he is

deported." Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004)

(emphasis omitted) (citing 8 C.F.R. § 208.16(c)(2)). Under the

standards for both withholding of removal and CAT relief, "[t]he

testimony of the applicant, if credible, may be sufficient to

sustain the burden of proof without corroboration." 8 C.F.R.

§ 208.16(b),(c)(2). 
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Hayek argues that some of the IJ's stated reasons for

doubting her story -- her quick marriage to her fiancé and her

failure to file a timely asylum application -- are misplaced.

However, Hayek's testimony was general, meager, and often vague.

She failed to testify in detail or corroborate her story. Under

the circumstances of this case, and given her admitted contact with

sources who could have corroborated her story if it were true, the

IJ was justified in concluding that Hayek failed to meet her burden

of proof.

While Hayek could have helped herself by producing

specific corroborative testimony pertinent to the issues and

supporting her claims, she did not do so. This case does not

involve a question of whether corroborative evidence was

unavailable to the petitioner. She is the one who said in her

asylum application that her family had firsthand knowledge of the

persecution. But she produced no such evidence. We explain a bit

further.

Hayek provided no evidence corroborating her

participation with the Lebanese Forces party in 1992, the

demonstration at which soldiers beat her, or the threats and

questioning by Lebanese and Syrian soldiers that her mother,

siblings, and friends witnessed. Given Hayek's contact with

relatives and colleagues in Lebanon, it would be reasonable to

expect some corroboration of the 1992 incidents from these
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individuals. She provides no explanation for the absence of these

documents.

Instead, Hayek argues that she did submit some

corroborative evidence and that this evidence does sustain her

burden of proof. Hayek submitted several documents. However, none

of the witnesses who testified or documents she submitted

corroborate her testimony that she was a member of the Lebanese

Forces in 1992, when the attacks and threats against her allegedly

began. In fact, the letter from Fouad Malik, Commander of the

Lebanese Forces, states that Hayek "was part of the Lebanese

administrative forces since 1982 until 1989." While there may be

an explanation for why this date does not coincide with Hayek's

testimony, Hayek offers none. 

Also troubling is Hayek's failure to produce any

documents from her mother, siblings, or friends who, according to

Hayek's testimony, have first-hand knowledge of the threats that

are the basis of her claim of past persecution. For example, the

IJ heard testimony from Hayek regarding her mother's and siblings'

encounters with Lebanese and Syrian soldiers who questioned them

about Hayek's whereabouts, yet Hayek produced no letters from her

relatives to corroborate that testimony. We recognize that a

person's ability to obtain corroborating evidence from family

members or others in their native country "often depend[s] on the

social and political circumstances of a given country." Abdulai v.
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Ashcroft, 239 F.3d 542, 555 n.9 (3rd Cir. 2001). However, in this

case, Hayek testified that she has been in contact with her

relatives in Lebanon and that her parents and siblings in Lebanon

were not members of the Lebanese Forces and had not been arrested

or harassed by anyone. 

The letter from Dr. Issa stating only that he treated

Hayek for bruises suffered from a physical attack in 1992 is not

enough. Hayek does not present the necessary corroborative

evidence to meet her burden of proof. See Diab v. Ashcroft, 397

F.3d 35, 40 (1st Cir. 2005) (noting that a doctor's letter

describing scars from an attack would not establish that petitioner

was attacked on the basis of his religion). 

Because Hayek has failed to show past persecution, we

turn to the issues of whether Hayek has established her burdens as

to future persecution or torture. Having failed to establish past

persecution, Hayek is not entitled to a presumption of future

persecution. Palma-Mazariegos v. Gonzales, 428 F.3d 30, 35 (1st

Cir. 2005). She bears the burden of proving that it is more likely

than not that she will be persecuted or tortured based on a

statutorily protected ground if she is deported to Lebanon. Da

Silva, 394 F.3d at 4. Hayek argues that Lebanese and Syrian forces

will persecute and torture her because she is a Maronite Christian

and a former member of the Lebanese Forces. However, the IJ found

that "to the extent that the respondent has any likelihood of harm
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occurring to her, the events to which she has testified took place

more than 11 years ago" and current country conditions reports did

not support her claims of widespread persecution and torture of

Maronite Christians or former Lebanese Forces members. Substantial

evidence supports this finding. Hayek has not participated in any

activities with the Lebanese Forces since 1992, and her parents and

siblings have lived in Lebanon unharmed since that time. We are

not compelled, on this record, to conclude that Hayek has

demonstrated that it is more likely than not that she would now be

persecuted or tortured by Lebanese or Syrian forces upon her

deportation to Lebanon.

Lacking jurisdiction over Hayek's timeliness claim and

finding no error compelling us to reject any of the other findings

by the IJ or BIA, we affirm the decision and deny the petition for

review.

So ordered.