FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 November 30, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11889

Non-Argument Calendar

________________________

Agency No. A79-417-097

ALI HASSAN JASEM, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 30, 2005)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:
 On November 25, 2002, President Bush signed into law the Homeland Security Act of 1

2002, Pub. L. No. 107-296, 116 Stat. 2135. This legislation created a new Department of

Homeland Security, abolished the INS, and transferred its functions to the new department. 

2

Ali Hassan Jasem, through counsel, petitions this Court for review of the

Board of Immigration Appeals’ (“BIA’s”) final order affirming the immigration

judge’s (“IJ’s”) decision, denying Jasem’s claims for asylum and withholding of

removal under the Immigration and Nationality Act (“INA”), and for withholding

of removal under the United Nations Convention on Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (“CAT”). In his appeal brief,

Jasem moves this Court to remand his case to the BIA for consideration, or to take

judicial notice, of evidence allegedly proving changes in country conditions in Iraq

since the BIA issued its removal order. Jasem also argues that substantial evidence

did not support (1) the IJ’s adverse credibility determination; (2) the IJ’s and the

BIA’s determination that humanitarian asylum was not warranted, pursuant to 8

C.F.R. § 1208.13(b)(1)(iii); and (3) the IJ’s and the BIA’s conclusions that Jasem

was not statutorily eligible for withholding of removal under the CAT. For the

reasons set forth more fully below, we deny Jasem’s motion to remand or to take

judicial notice of new evidence, and we deny his petition for review.

On September 7, 2001, Jasem, a native and citizen of Iraq, illegally entered

the United States and was detained. The Immigration and Naturalization Service

(“INS”) subsequently served Jasem with a notice to appear (“NTA”), charging 1
Because this case was initiated while the INS still was in existence, this memorandum refers to

the agency as the INS. 

 As the IJ noted in his decision denying relief, although Jasem testified that he was born 2

in 1962, his brother Kazim was born in 1955, and his brother Falah was born in 1953, Jasem also

testified that “[m]y older brother’s name is Falah Hassan Jasem. And my youngest brother’s

name is Kazim Hassan Jasem.” Additionally, as discussed above, Jasem included in his

application, in explaining why officials questioned him about Falah’s disappearance, that Jasem

3

him with removability, pursuant to INA § 212(a)(7)(A)(i)(I), 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), for entering the United States without proper documentation. 

In November 2001, during a preliminary hearing before an IJ, Jasem admitted the

facts contained in his NTA and conceded removability. 

In December 2001, Jasem filed a counseled application for asylum and for

withholding of removal under the INA and the CAT. Jasem asserted in his

application that, if he returned to Iraq, he would be persecuted by the government

on account of his religious affiliations and political opinions imputed to him as a

Shiite Muslim, and as the “first next person old enough for questioning” about his

brother’s disappearance. 

On September 24, 2003, at a hearing on Jasem’s application for relief from

removal, Jasem, who was the sole witness, offered the following testimony. Jasem

was 41 years’ old, was born in Baghdad, Iraq, and was a Shiite Muslin. Jasem had

a sister who lived in the United States, and a wife, son, mother, four sisters, and an

older brother, Kazim, who lived in Baghdad. Jasem’s oldest brother, Falah, had

disappeared in November 1981, during Iraq’s war with Iran. 

2
“was the first next person old enough for questioning (my brother’s son is not old enough).” 

When the IJ questioned Jasem about this apparent inconsistency, Jasem stated that the

government officials had questioned him, rather than his older brother Kazim, because Kazim

was partially deaf and illiterate. 

4

Jasem further testified that, in July 1991, officials with General Intelligence,

a government agency, had come to his home and questioned him for approximately

an hour and a half about his brother Falah, whom the officials believed had

defected from the Iraq army in 1981, and had joined a group that was loyal to the

Iranians. After Jasem denied having had any contact with Falah since his

disappearance, the officials left, but stated that they would return. In September

1991, the “same people” returned to Jasem’s home, made similar inquiries about

Falah, and explained that they had stopped paying Falah’s salary to Falah’s wife

because the officials believed that Falah was a traitor to Iraq. 

Between September 1991 and December 2000, when Jasem left Iraq,

government officials visited him approximately 15 times, each time attempting to

get him to reveal information about Falah or Falah’s whereabouts. In July 1995,

during one of these visits, government officials came to Jasem’s home and escorted

him blindfolded in a vehicle to an eight-by-five-foot “red room,” which had a

cupboard and a bathroom. The officials left Jasem in the “red room” overnight,

after which time they took him to another room and interrogated him. During this

interrogation, which lasted approximately an hour, an officer (1) again asked Jasem
 In addition to this information, Jasem stated during cross-examination that, during the 3

1996 detention, government officials hit him in the eye and in the back, cut his lip, pushed him,

and kicked him. Jasem, however, also clarified that government officials did not beat him

during any other visit. 

5

about Falah, and (2) stated that Jasem was a Shiite who “belong[ed] to Iran.” 

Moreover, in February 1996, government officials drove Jasem blindfolded to

another location to be interrogated. After Jasem again stated that he had no

information, he was detained overnight and then told that he needed to bring

information in the future. 

3

In addition to stating generally that these officials visited him twice in 1997

and three times in 1998, Jasem testified that, in January 2000, the officials took

him to an office, at which Jasem was interrogated by an official whom Jasem

believed was high ranking in the Iraqi government. After Jasem informed this

official that he had no information, the official told Jasem that the government had

a new method that it intended to use on him to get him to cooperate. This official

then instructed another person to take Jasem to “the place with the snakes.” Jasem

was taken to a glass-walled room that had a snake lying in one corner. 

During the two to three hours that Jasem was left in the room with the snake,

he called the guard to take him to use the restroom. When the guard eventually

responded, the snake was in front of Jasem and the guard told Jasem he had to
 As the IJ noted in his decision denying relief from removal, Jasem did not mention this

4

incident either during his initial interview with an immigration officer, as part of his credible fear

interview, or in his application for relief.

6

wait. The guard later took Jasem to the “red room,” where Jasem spent the night

before being taken to the official for another interrogation. 

4

In November 2000, the last time the government officials visited Jasem, they

took him to a new office and, this time, advised him in a threatening manner that, if

he did not cooperate, the officials were going to turn his case over to a “special

court.” The officials then took Jasem to the “red room,” where he stayed for seven

days before the officials took him back to an office for additional interrogation. 

When Jasem arrived at the office, the official injected Jasem with an unknown

substance to “relax” him. When Jasem stated that he knew nothing about Falah,

the official yelled at him, called him names, and again told him that, if he did not

give them information within the next month, they would take him to a “special

court.” Jasem stated that he believed that this “special court” meant a court where

he would have no rights, and the government either would order him killed or

jailed. Thus, in December 2000, after Jasem was released, he left Iraq. 

Jasem further stated that, after he left Iraq, his family sent him letters

warning him that government officials had continued looking for him and had

brought to Jasem’s home a police order, directing him to appear at the Intelligence

Agency Center. One of Jasem’s sisters also informed him in a letter that the
 In support of Jasem’s application, he also filed copies of (1) the summons, directing 5

him to appear at the Intelligence Center; and (2) transcribed letters from his sisters. 

 In addition to Jasem’s testimony, on the day of the hearing, he introduced into evidence 6

(1) a letter from a special agent with the U.S. Department of Homeland Security, confirming that

Jasem cooperated in providing assistance to the government in an international alien smuggling

case; (2) a September 2003 news article relating that, based on decisions adopted by the United

States High Commissioner for Refugees (“UNHCR”), following the explosion of the United

Nations’ office in Baghdad, repatriation of Iraqi nationals living in Iran would not be pursued;

(3) a September 2003 article from the Miami Herald, involving interviews with leaders of

guerillas cells in Iraq who were devoted to fighting the presence of the United States in Iraq; and

(4) the UNHCR’s (i) June 2003 appeal for aid from the United States to meet humanitarian needs

in Iraq, (ii) July 2003 warning for countries not to return refugees to Iraq, and (iii) August 2003

recommendation that countries maintain a ban on forced returns of persons to Iraq, including

rejected asylum seekers, because potential persecution might emanate from non-state agents. 

Moreover, In May 2003, prior to the hearing, Jasem filed 24 articles and reports, documenting

abuses that occurred during the reign of Saddam Hussein’s regime. 

7

officials had confiscated a medical center that he had operated for 12 years and had

burned his vehicle. Moreover, when Jasem’s family attempted to report this 5

burning, the police informed them that only the owner of the vehicle could make a

report. Jasem also testified that, despite the change in regime in Iraq between his

departure and the evidentiary hearing, and despite the fact that the government

officials who had persecuted him no longer were part of the government, he

believed that he would be subject to reprisals by these persons because he

previously had refused to cooperate with them. 

6

The record also contained the U.S. State Department’s 2002 Country

Reports on Human Rights Practices for Iraq (“2002 Country Reports”). This

document included that, in 2002, although Iraq claimed to be a democratic

republic, political power rested exclusively in “a harshly repressive one-party
8

apparatus dominated by Saddam Hussein al-Tikriti and members of his extended

family,” and Iraq’s human rights record remained extremely poor. Under Saddam

Hussein’s regime, the government summarily executed alleged political opponents

and leaders of the Shiite religious community, along with persons who merely

were associated with opposition groups. The government also was responsible for

disappearances and torturing persons suspected of, or related to persons suspected

of, among other things, opposition politics, economic crimes, and military

desertion. Although Iraq’s Constitution and legal code explicitly prohibited

arbitrary arrests and detentions, the authorities routinely engaged in these

activities, along with denying detainees access to lawyers and fair public trials. 

The government, however, introduced three articles from the Miami Herald,

dated September 22 and 23, 2003, which included the following headlines: “Iraq’s

governing council takes U.N. seat,” “Bush rejects call for quick Iraq handover,”

and “Iraq will be democratic, two leaders say.” These articles discussed the

changed political climate in Iraq following the fall of Saddam Hussein’s regime in

March 2003. Moreover, the IJ stated that he “would be taking administrative

notice of changes that ha[d] occurred in the country of Iraq, because they were of

such a notable degree.” 

At the conclusion of this hearing, the IJ issued an oral decision, denying

Jasem’s application for asylum and withholding of removal under the INA and
9

CAT, and ordering him removed to Iraq. After summarizing the evidence in the

record, the IJ determined that, although Jasem’s testimony, if true, established past

persecution, his testimony lacked credibility. In reaching this adverse credibility

determination, the IJ cited to (1) inconsistencies between Jasem’s testimony and

his application on the ages of his brothers and the reason why Jasem was contacted

about Falah’s disappearance; (2) Jasem’s failure to state earlier all the facts to

which he testified during his removal hearing, including that he was placed in a

cell with a snake; and (3) inconsistencies in the record relating to Jasem’s

testimony that he was detained and beaten in 1995. 

Alternatively, the IJ determined that, even if the IJ were to consider Jasem’s

testimony as credible, asylum was not warranted because a fundamental change in

the country conditions had occurred, and Jasem had no well-founded fear of future

persecution upon his return to Iraq. The IJ specifically noted that, in light of the

end of Saddam Hussein’s regime—the regime under which Jasem had resided

before he entered the United States—a fundamental change in the country’s

conditions had occurred. The IJ also noted that, although “chaos” and “armed

strife” remained in Iraq, the evidence in the record showed that, through military

force, monies, and other assistance, Iraq was becoming a democratic country, free

from the abuses described in the 2002 Country Reports. The IJ discussed that, due

to these changed country conditions, Jasem also was not eligible for withholding of
10

removal under the INA and the CAT. In addition, the IJ clarified that, although it

understood that it could grant humanitarian asylum based on past persecution

alone, the record did not reflect that Jasem would face problems on his return to

Iraq, other than those associated with earning a livelihood. 

Jasem appealed the IJ’s decision to the BIA. In a supporting brief, Jasem

argued that the IJ’s decision denying him asylum and withholding of removal

under the INA and the CAT should be reversed because the IJ erred in (1) making

an adverse credibility finding based on alleged inconsistencies and omissions in the

record that either did not exist or were not central to Jasem’s claims; (2) finding

changed circumstances sufficient to rebut a presumption of a well-founded fear;

and (3) failing to consider that, even if changed country conditions existed, a grant

of asylum was warranted for humanitarian reasons. 

In March 2005, the BIA affirmed and adopted without opinion the IJ’s

decision as to the IJ’s adverse credibility determination. The BIA, however, also

added that, even if Jasem had been credible, there had been a fundamental change

in circumstances in Iraq, such that Jasem did not have a well-founded fear of

persecution based on his original claims for asylum and withholding of removal. 

The BIA explained that it was taking administrative notice of the fact that Saddam

Hussein’s regime in Iraq had been replaced, the Ba’ath Party no longer was in

power, and Iraq, which subsequently was being governed by a Governing Council,
11

was made up of different religions and political parties, with different agendas,

and, therefore, represented all sections of Iraqi society. The BIA also stated that,

although it recognized that the situation in Iraq was unstable, and that Ba’ath Party

loyalists were still physically present in Iraq, the basis of Jasem’s claims for relief

was from the Ba’ath Party itself, and he could avoid these loyalists by relocating to

another part of Iraq. Jasem then filed this timely petition for review.

As a preliminary matter, as part of his brief on appeal, Jasem moves us to

take judicial notice of political developments in Iraq that have occurred since the

BIA issued its order affirming the IJ’s decision in March 2005. Jasem also

attaches for our review four newspaper articles, which he contends show ongoing

“gross, flagrant and mass violations of human rights in Iraq.” 

Before the enactment of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546, 

we utilized 28 U.S.C. § 2347(c) to invoke our discretionary authority to remand

immigration cases, such that new non-record evidence could be admitted on

appeal, or cases could be remanded for the BIA or the IJ to consider this evidence

in the first instance. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1278 (11th Cir.

2001). The IIRIRA, however, expressly prohibits a court reviewing a BIA removal

order from remanding a case for the consideration of additional evidence. See INA

242(a)(1), 8 U.S.C. § 1252(a)(1). Moreover, the IIRIRA provides that “the court
12

of appeals shall decide the petition only on the administrative record on which the

order of removal is based.” INA § 242(b)(4)(A), 8 U.S.C. § 1252(b)(4)(A). Thus,

we have concluded that we “cannot find, or consider, facts not raised in the

administrative forum.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.

2005); see also Al Najjar, 257 F.3d at 1278 (holding in a transitional rules case that

we “cannot engage in fact-finding on appeal, nor may we weigh evidence that was

not previously considered below”). Accordingly, to the extent Jasem is moving us

to remand his case to the IJ or the BIA, or to consider new evidence of changed

country conditions, we are foreclosed from granting this relief. 

Issue 1: The IJ’s adverse credibility determination

Jasem argues that the IJ’s adverse credibility determination must be

overturned because none of the IJ’s factual determinations is supported by

substantial evidence, and, even if substantial evidence existed, the alleged

inconsistencies on which the IJ relied either were explained or were insignificant in

light of the overwhelming weight of other evidence Jasem submitted. When the

BIA issues a decision, we review only that decision, except to the extent that the

BIA expressly adopts the IJ’s decision. Chacon-Botero v. U.S. Atty Gen., No. 04-

16422, manuscript op. at 5 (11th Cir. Oct. 6, 2005). “Insofar as the BIA adopts the

IJ’s reasoning, we will review the IJ’s decision as well.” Id. (internal quotation

and marks omitted). Because the BIA expressly adopted, without opinion, the IJ’s
13

reasoning as to Jasem’s credibility, we review only the IJ’s adverse credibility

determination. See id. However, because the BIA articulated its reasons for

adopting the IJ’s other determinations, we review the decisions of both the IJ and

the BIA in deciding Jasem’s remaining arguments. See id. (reviewing the

decisions of both the IJ and the BIA when the BIA expressly adopted the IJ’s

reasoning and briefly articulated its reasons for do so). 

Furthermore, to the extent that the IJ’s and the BIA’s decisions were based

on legal determinations, our review is de novo. D-Muhumed v. U.S. Att’y Gen.,

388 F.3d 814, 817 (11th Cir. 2004). On the other hand, the IJ’s and the BIA’s

factual determinations are reviewed under the substantial evidence test, and we

“must affirm the [] decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Al Najjar, 257 F.3d at

1283-84 (quotation and marks omitted). “Under the substantial evidence test, we 

review the record evidence in the light most favorable to the agency’s decision and

draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386

F.3d 1022, 1027 (11th Cir. 2004) (en banc), cert. denied, 125 S.Ct. 2245 (2005). 

Thus, a finding of fact will be reversed “only when the record compels a reversal;

the mere fact that the record may support a contrary conclusion is not enough to

justify a reversal of the administrative findings.” Id.
14

A credibility determination also is reviewed under the substantial evidence

test; thus, we “may not substitute its judgment for that of the [IJ] with respect to

credibility findings.” D-Muhumed, 388 F.3d at 818. If credible, an alien’s

testimony may be sufficient to sustain the burden of proof without corroboration. 

Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). “The weaker an

applicant’s testimony, however, the greater the need for corroborative evidence.” 

Id. Indications of reliable testimony include consistency on direct examination,

consistency with the written application, and the absence of embellishments. See

In re B-, 21 I & N Dec. 66, 70 (BIA 1995); see also Dailide v. U.S. Att’y Gen., 387

F.3d 1335, 1343 (11th Cir. 2004) (affirming the BIA’s adverse credibility

determination, which was based upon its finding that the alien’s testimony

conflicted with his answers to interrogatories and other documentary evidence). 

“Conversely, an adverse credibility determination alone may be sufficient to

support the denial of an asylum application.” Forgue, 401 F.3d at 1287. However,

“an adverse credibility determination does not alleviate the IJ’s duty to consider

other evidence produced by an asylum applicant.” Id. If an applicant produces

evidence beyond his own testimony, “it is not sufficient for the IJ to rely solely on

an adverse credibility determination in those instances.” Id. Furthermore, “the IJ

must offer specific, cogent reasons for an adverse credibility finding.” Id.

(quotation omitted). “Once an adverse credibility finding is made, the burden is on
 Congress recently passed the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 7

(May 11, 2005), which, among other changes, provides that reviewing courts now must give

greater deference to an IJ’s credibility determinations, and that inconsistences, inaccuracies, or

falsehoods identified by an IJ giving rise to an adverse credibility determination may be made

without regard to whether they were central to the applicant’s claim. See INA § 208(b)(1)(B), 8

U.S.C. § 1158(b)(1)(B) (2005). The REAL ID Act, however, states that these provisions “shall

apply to applications for asylum, withholding, or other relief from removal made on or after” the

date the Act was enacted. See Pub.L.No. 109-13, 119 Stat. at 305. We have not issued a

published opinion on either the applicability of these changes to credibility determinations, or

when they take effect. Nevertheless, because the application of the Act to this case would not

change the outcome, we need not decide these issues here. 

15

the applicant alien to show that the IJ’s credibility decision was not supported by

‘specific, cogent reasons[,]’ or was not based on substantial evidence.” Id.

(quotation omitted).7

Here, the IJ offered “specific, cogent reasons” for his adverse credibility

finding. These reasons also were supported by substantial evidence in the record. 

To the extent the IJ cited to inconsistencies relating to the ages of Jasem’s brothers,

Jasem testified during his removal hearing that he was the youngest. Jasem,

however, also testified during this hearing that “[m]y older brother’s name is Falah

Hassan Jasem. And my youngest brother’s name is Kazim Hassan Jasem.”

Additionally, Jasem included in his asylum application, in explaining why officials

questioned him about Falah’s disappearance, that Jasem “was the first next person

old enough for questioning (my brother’s son is not old enough).” Although Jasem

subsequently attempted to explain this inconsistency and why the officials had not,

instead, questioned his older brother Kazim, by stating that Kazim was partially
16

deaf and illiterate, the IJ properly considered the consistency of Jasem’s testimony

with his written application. See Dailide, 387 F.3d at 1343. Moreover, this

inconsistency related to Jasem’s reason why he believed he was persecuted in the

past and would be persecuted in the future.

Similarly, to the extent the IJ relied on Jasem’s failure to include in his

application for relief his testimony on being detained in a room with a snake in

January 2000, a review of the record reflects that Jasem failed to mention this

incident either during his initial interview with an immigration officer, as part of

his credible-fear interview, or in his application for relief. Despite Jasem’s crossexamination testimony during his removal hearing that he was beaten while he was

detained in 1996, he neither stated that he was beaten during direct examination,

nor in his application. Moreover, although Jasem submitted a voluminous amount

of supporting documents on the country conditions in Iraq during Saddam

Hussein’s regime, along with evidence relating to his claim that he would face

prosecution in a “special court” if he was returned to Iraq, he did not submit

documentary evidence supporting his individual claims of past persecution. See

Yang, 418 F.3d at 1201. 

Thus, Jasem has failed to show that the IJ’s adverse credibility determination

“was not supported by ‘specific, cogent reasons[,]’ or was not based on substantial

evidence.” See Forgue, 401 F.3d at 1287. Regardless, as the government asserts
17

and as discussed below, even if the IJ erred in reaching its adverse credibility

determination, and even if Jasem established past persecution, he failed to establish

eligibility for asylum or withholding of removal because of changed country

conditions in Iraq.

Issue 2: The IJ’s and the BIA’s determinations that humanitarian asylum

was not warranted, pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)

Jasem also argues that the IJ erred in failing to consider that, even if a wellfounded fear of future persecution did not exist, a grant of humanitarian asylum

was warranted based on the severity and length of Jasem’s past persecution. 

Without citing to the record, Jasem contends that this exercise of authority was

warranted because he suffered ten years of interrogation, arbitrary detentions,

beatings, inadequate food and water, and severe psychological abuse and

intimidation. Jasem also asserts that, because his past persecutors remain in Iraq

and are being incorporated into the new government, he and his family still have

legitimate fears. 

As discussed above, because the BIA commented on why it was adopting

the IJ’s decision denying relief from removal, we review both the IJ’s and the

BIA’s decisions. See Chacon-Botero, No. 04-16422, manuscript op. at 5. An alien

who arrives in, or is present in, the United States may apply for asylum. INA

§ 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland Security and the
 Pursuant to the REAL ID Act, INA § 208(b)(1), 8 U.S.C. § 1158(b)(1), was amended

8

to add “The Secretary of Homeland Security or the Attorney General,” as if enacted on March 1,

2003. See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1) (2005). 

18

Attorney General have discretion to grant asylum if the alien meets the INA’s

definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is 8

defined as follows:

any person who is outside any country of such person’s nationality or,

in the case of a person having no nationality, is outside any country in

which such person last habitually resided, and who is unable or

unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of, that country because of persecution or a

well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion . . ..

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). “The asylum applicant carries

the burden of proving statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818.

To establish asylum eligibility, the petitioner must, with specific and

credible evidence, demonstrate (1) past persecution on account of a statutorily

listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause

future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. If the

petitioner demonstrates past persecution, there is a rebuttable presumption that he

has a well-founded fear of future persecution. 8 C.F.R § 208.13(b)(1). If he

cannot show past persecution, then the petitioner must demonstrate a well-founded

fear of future persecution that is both subjectively genuine and objectively
19

reasonable. Al Najjar, 257 F.3d at 1289. The subjective component can be proved

“by the applicant’s credible testimony that he or she genuinely fears persecution,”

while the objective component “can be fulfilled either by establishing past

persecution or that he or she has a good reason to fear future persecution.” Id.

(quotation omitted).

Jasem is not challenging on appeal the IJ’s and the BIA’s conclusions that,

even if he established past persecution, the government rebutted the presumption

of a well-founded fear of future persecution by establishing changed country

conditions. Thus, we deem any arguments relating these determinations

abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.

2005) (holding that the petitioner abandoned the issue of the denial of relief under

the CAT by not raising any challenges to it in her brief). Instead, Jasem is arguing

that, despite these changed country conditions, the IJ and BIA abused their

discretion in not granting him humanitarian asylum.

In Matter of Chen, 20 I & N Dec. 16 (BIA 1989), the BIA determined that,

even if the presumption of future persecution arising from past persecution has

been rebutted, an alien may have suffered such severe or atrocious forms of

persecution at the hands of the former regime such that it would be inhumane to

require the alien to return to his home country. Id. at 19. The BIA further

explained:
20

[T]here may be cases where the favorable exercise of discretion is

warranted for humanitarian reasons even if there is little likelihood of

future persecution . . .. It is frequently recognized that a person

who—or whose family—has suffered under atrocious forms of

persecution should not be expected to repatriate. Even though there

may have been a change of regime in the country, this may not always

produce a complete change in the attitude of the population, nor, in

view of his past experiences, in the mind of the refugee.

 Id. Applying this analysis, the BIA in Chen granted humanitarian asylum to an

applicant who had been disabled by torture and the denial of medical care during

China’s “Cultural Revolution,” and who was suffering from depression and

suicidal thoughts. Id. at 19-21.

This category of asylum is now codified at 8 C.F.R. § 1208.13(b)(1)(iii),

which provides that an IJ may grant an applicant humanitarian asylum on a

discretionary basis if the applicant has demonstrated “compelling reasons for being

unwilling or unable to return to the country arising out of the severity of the past

persecution,” or “a reasonable possibility that he or she may suffer other serious

harm upon removal to that country.” 8 C.F.R.§ 1208.13(b)(1)(iii)(A), (B). As

discussed above, “[t]he burden of proof is on the applicant for asylum to establish

that he is a refugee . . .. The testimony of the applicant, if credible, may be

sufficient to sustain the burden of proof without corroboration.” 8 U.S.C.

§ 1208.13(a). 

We have not in a previous opinion applied this regulation. The BIA,

however, has interpreted this form of relief to require an applicant first to show
 As persuasive authority, other circuits that have reviewed applications for humanitarian 9

asylum have concluded that this relief is reserved for the most extraordinary cases. See

Gonahasa v. U.S. INS, 181 F.3d 538, 544 (4th Cir. 1999) (holding that “[e]ligibility for asylum

based on severity of persecution alone is reserved for the most atrocious abuse”); Bucar v. INS,

109 F.3d 399, 405 (7th Cir. 1997) (characterizing humanitarian asylum as being reserved for

situations such as the German Jews, the victims of the Chinese “Cultural Revolution,” and

survivors of the Cambodian genocide); Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002)

(explaining that past persecution must have been so severe that it would “so sear a person with

distressing associations with his native country that it would be inhumane to force him to return

there, even though he is in no danger of future persecution”) (internal quotation omitted). 

21

“severe harm” and “long-lasting effects.” See In re N-M-A, 22 I & N Dec. 312,

326 (BIA 1998); see also Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320,

1327 n.4 (11th Cir. 2001) (explaining that an agency’s interpretation of its own

regulations is entitled to “great deference,” and that “[t]he degree of deference is

especially great in the field of immigration”).

9

In the instant case, contrary to Jasem’s argument on appeal, the IJ explicitly

stated that he had considered the applicability of humanitarian asylum. 

Nevertheless, the IJ concluded that the record did not reflect that Jasem would face

problems on his return to Iraq, other than those associated with earning a living. 

Indeed, at the time of the hearing, Jasem’s wife, son, mother, four sisters, and a

brother still were living in the Baghdad area. Moreover, although Jasem testified

that, for a period of approximately ten years, he suffered repeated detentions and

interrogations, including being beaten on one occasion and being placed in a room

with a snake, he did not testify that this treatment resulted in “severe harm” or 
22

“long-lasting effects.” See In re N-M-A, 22 I & N Dec. at 326. Thus, we conclude

that Jasem failed to show either extreme past persecution or compelling reasons

why humanitarian asylum was warranted in his case. See 8 C.F.R. § 1208.13(a),

(b)(1)(iii)(A), (B). 

Issue 3: The IJ’s and the BIA’s conclusions that Jasem was not statutorily

eligible for withholding of removal under the CAT 

Jasem last argues that the IJ and BIA erred in failing to consider

independently Jasem’s claim for withholding of removal under the CAT. Jasem

asserts that the IJ wrongly denied Jasem’s claim for CAT relief based on the IJ’s

finding that Jasem lacked credibility, and, thus, ignored documentary evidence in

the record reflecting that members of Saddam Hussein’s regime still were torturing

and killing Iraqi citizens. Jasem concludes that, because he established past torture

and that opponents of the regime change in Iraq still are torturing civilians, his case

should be remanded to the IJ for independent consideration of his CAT claim. 

As discussed above, we review both the IJ’s and the BIA’s decisions

denying CAT relief, see Chacon-Botero, No. 04-16422, manuscript op. at 5, and

their factual determinations are reviewed under the substantial evidence test, see Al

Najjar, 257 F.3d at 1283-84. To be entitled to mandatory withholding of removal

under the CAT, an applicant must 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.

§ 208.16(c)(2). “Torture” is defined as:
23

any act by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person for such purposes as obtaining

from him or her or a third person information or a confession,

punishing him or her for an act he or she or a third person has

committed or is suspected or having committed, or intimidating or

coercing him or her or a third person, or for any reason based on

discrimination of any kind, when such pain or suffering is 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.

8 C.F.R. § 208.18(a)(1). 

“Torture is an extreme form of cruel and inhuman treatment and does not

include lesser forms of cruel, inhuman or degrading treatment or punishment that

do not amount to torture.” 8 U.S.C. § 208.18(a)(2). We have concluded that the

burden of proof for an applicant seeking withholding of removal under the CAT,

like that for an applicant seeking withholding of removal under the INA, is higher

than the burden imposed on an asylum applicant. Al Najjar, 257 F.3d at 1303-04. 

Thus, if a petitioner fails to demonstrate a “well-founded fear of persecution”

sufficient to support an asylum claim, he or she likewise cannot demonstrate

“torture” sufficient to warrant relief under the CAT. Id. 

Here, because Jasem is not challenging the IJ’s and the BIA’s determinations

that he failed to demonstrate a “well-founded fear of persecution,” he cannot meet

the higher burden of demonstrating “torture” sufficient to warrant CAT relief. See

id. Regardless, even if Jasem established that, upon his return to Iraq, he will

suffer “an extreme form of cruel and inhuman treatment” at the hands of his past
24

persecutors who have remained in Iraq, see 8 U.S.C. § 208.18(a)(2), his argument

fails. Although Jasem is arguing that the IJ and the BIA erroneously relied solely

on the IJ’s adverse credibility determination in denying him withholding of

removal under the CAT, the record reflects that the IJ and the BIA, at least

implicitly, also examined Iraq’s changed country conditions. Moreover, Jasem has

not challenged the IJ’s determination that, following the demise of Saddam

Hussein’s regime, Iraq’s official government has changed, and these persecutors no

longer are in control. Thus, applying § 208.18(a)(1)’s definition of “torture,”

Jasem failed to show that, on return to Iraq, he will be tortured by a “public official

or other person acting in an official capacity.” See 8 C.F.R. § 208.18(a)(1). The

IJ’s and the BIA’s determinations that Jasem was not eligible for withholding of

removal under the CAT, therefore, were supported by substantial evidence in the

record and should be affirmed. See Al Najjar, 257 F.3d at 1283-84

Accordingly, we conclude that we are foreclosed under the IIRIRA from

either remanding Jasem’s case to the IJ or the BIA, or considering new evidence of

changed country conditions. We also conclude that Jasem has failed to show that

the IJ’s adverse credibility determination was not supported by “specific, cogent

reasons,” or was not based on substantial evidence in the record. Jasem has failed

to show that, assuming the availability of humanitarian asylum, this extraordinary

relief was warranted in this case. Furthermore, because Jasem failed to show that
25

he will be “tortured” by a “public official” on his return to Iraq, the IJ’s and the

BIA’s determinations that Jasem was not statutorily eligible for withholding of

removal under the CAT was supported by substantial evidence. We, therefore,

deny Jasem’s petition for review.

PETITION DENIED.