1

The Honorable Patrick J. Schiltz, United States District Judge for the District

of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-1688

___________

Imad Ibrahim Mouawad, *

*

Petitioner, *

* Petition for Review of an Order of the

v. * Board of Immigration Appeals.

* 

Alberto Gonzales, Attorney General *

of the United States of America, *

*

Respondent. *

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Submitted: November 16, 2006

 Filed: March 14, 2007 

___________

Before LOKEN, Chief Judge, MELLOY, Circuit Judge, and SCHILTZ, District

Judge.1

___________

MELLOY, Circuit Judge.

Imad Ibrahim Mouawad, a native and citizen of Lebanon, overstayed his tourist

visa to the United States and immigration authorities charged him as a removable alien

under 8 U.S.C. § 1227(a)(1)(B). Mouawad subsequently applied for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

The Immigration Judge (“the IJ”) denied all three applications, finding that
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Mouawad’s asylum application was untimely and that he did not meet his burden of

proving eligibility for withholding of removal or CAT relief. The Board of

Immigration Appeals (“the Board”) adopted and affirmed the decision of the IJ.

Mouawad now petitions this court for review of that decision. We deny the petition

in part, grant the petition in part, and remand for further proceedings.

I. BACKGROUND

Mouawad entered the United States legally on August 24, 2000, with a onemonth tourist visa. He overstayed the visa by more than three years. On November

23, 2003, immigration authorities commenced removal proceedings against him by

serving him with a notice to appear. At a master calendar hearing in February 2004,

Mouawad admitted removability and indicated his intent to file an application for

asylum, withholding of removal, and CAT relief. He formally filed that application

on March 31, 2004, and the IJ held a final removal hearing the following November.

A. Factual Background

Mouawad was the sole witness at the hearing, and we recount the substance of

his testimony here. Mouawad is a Lebanese Christian who grew up during Lebanon’s

war-torn 1980s. At a young age, he began working as a furniture craftsman.

Mouawad suffered some verbal harassment from the Syrian military and endured

recruitment attempts by Muslim militias during that time. According to Mouawad,

the militias “need[ed] people” to support them and therefore had no qualms about

recruiting Christians to serve their Muslim causes. 

Mouawad’s substantive claims for relief, however, arise primarily out of events

related to his service as a personal aide to a commandant in the Lebanese military

from 1995 to 1996. During that time, Mouawad received vague threats from

unfamiliar, unarmed civilians he believed were members of Hizballah, a group that
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the U.S. State Department has recognized as a foreign terrorist organization. These

men wanted Mouawad to join their cause and feed them military information;

Mouawad did not comply with their demands. Mouawad had similar contacts with

other men on subsequent occasions during his military service, and he believed these

men sometimes followed him while he was driving. He told the commandant of this

harassment, and the commandant merely warned Mouawad to be careful. The military

also undertook an investigation into whether Mouawad was giving information to

Hizballah and threatened to punish him by extending his mandatory term of service.

On October 27, 1997—one year after Mouawad’s discharge from the

military—an unknown person or group murdered Samir Daou, a neighbor and friend

of Mouawad who was engaged in some manner of covert employment. Mouawad

learned of the murder from watching the local television news in his apartment, which

identified Daou as a victim that evening. Mouawad immediately feared that the

perpetrators were from Hizballah and that his own life might be at risk. Later that

night, he heard loud knocking at his apartment door for half an hour. Through the

peephole, he could see there were several men outside. He heard a neighbor question

the men about their business there, and they told her they sought Mouawad because

they knew he was Daou’s friend. They also said they knew Mouawad was present

because his car was parked outside the apartment building. Mouawad did not open

the door until morning, after the men had left. He slipped out of the apartment

building and took refuge in a church for a week.

Mouawad did not return to his apartment, although he continued to drive his

same car and maintained his business relationships as a self-employed carpenter.

Investigators hired by Daou’s family found and interviewed Mouawad within a few

weeks after Daou’s murder. Mouawad later learned that their investigation pointed

to members of Hizballah as the culprits in the killing. Mouawad moved around

Lebanon and lived in several different places for the next three years. Mouawad did

not testify as to any further harassment during that period. His fears persisted
2

In the instant appeal, Mouawad argues that the IJ erred in making an adverse

credibility finding. The IJ made no such finding explicitly, saying only that he had

concerns about Mouawad’s credibility. To the extent that such general concerns may

be characterized as an adverse credibility finding, that finding would nevertheless be

irrelevant to this case because the grounds for the IJ’s decision do not depend upon

Mouawad’s credibility.

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nevertheless, and he traveled to Syria in April 2000 to obtain a visa for entry into the

United States. He spent four months winding up his financial affairs in Lebanon, then

traveled to the United States in August of that year. His parents later told him not to

return because men had come to their home looking for him.

Mouawad’s visa expired in September 2000, but Mouawad overstayed it and

has remained in the United States. He paid $1,000 to enter a sham marriage with an

American woman shortly after his arrival in this country; she did not file appropriate

immigration paperwork for him, and he soon divorced her. He later entered another

marriage with a Canadian citizen. She was seeking annulment of that marriage at the

time of Mouawad’s hearing.

B. The IJ’s Decision

The IJ stated that he had “significant concerns” about Mouawad’s credibility,

though he did not make an explicit finding of adverse credibility.2

 Despite these

concerns, the IJ based his decision on grounds other than Mouawad’s questionable

credibility, and he denied relief to Mouawad on all three of his claims. First, the IJ

found that Mouawad’s 2004 application for asylum was time-barred under 8 U.S.C.

§ 1158(a)(2)(B), which sets a one-year filing deadline upon the date of an alien’s

arrival in the United States. The IJ noted that he may excuse this deadline upon a

showing of changed circumstances affecting asylum eligibility or “extraordinary

circumstances relating to the delay in filing an application,” id. § 1158(a)(2)(D), but

found that Mouawad’s excuse for his late filing—an inadequate understanding of
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English and asylum procedures upon his arrival—failed to qualify as “extraordinary.”

The IJ also found that explanation in conflict with Mouawad’s own admission that he

engaged in a sham marriage shortly after entering the country, an act that suggests

some knowledge of American immigration law.

Second, the IJ found that Mouawad did not meet the statutory requirements for

withholding of removal. The IJ noted that Mouawad had not suffered harm that rose

to the level of persecution in Lebanon, but the IJ did not decide the claim on the

ground that Mouawad lacked a well-founded fear of future persecution due to his

failure to testify as to sufficiently severe abuse in the past. Instead, he denied

Mouawad’s claim for withholding of removal because Hizballah’s purported efforts

to coerce Mouawad’s cooperation in their cause did not amount to persecution on a

protected ground. Third, the IJ denied Mouawad’s application for CAT relief on the

sole ground that Mouawad’s fears related to Hizballah, rather than officials of the

Lebanese or Syrian governments. The IJ did grant Mouawad the privilege of

voluntary departure from the United States.

Mouawad appealed to the Board, which affirmed and adopted the decision of

the IJ without a separate opinion. Mouawad now petitions this court for review of that

decision and raises a number of issues, only three of which warrant discussion: (1)

that the IJ should have excused the one-year filing deadline for Mouawad’s asylum

application; (2) that substantial evidence does not support the IJ’s denial of

Mouawad’s application for withholding of removal; and (3) that substantial evidence

does not support the IJ’s denial of Mouawad’s application for CAT relief. 
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II. DISCUSSION

A. Asylum

Mouawad first argues that the IJ should have waived the one-year filing

deadline for Mouawad’s asylum application. See 8 U.S.C. § 1158(a)(2)(B)

(establishing the one-year deadline); id. § 1158(a)(2)(D) (waiving the deadline when

the alien can show, “to the satisfaction of the Attorney General[,] . . . changed

circumstances which materially affect the applicant’s eligibility for asylum or

extraordinary circumstances relating to the delay in filing an application”). On appeal,

Mouawad contends that he showed both “extraordinary circumstances” (namely his

lack of secondary schooling and minimal understanding of the English language upon

arriving in the United States) and “changed circumstances” (namely the increase in

regional tensions in Lebanon after the 9/11 terrorist attacks). Therefore, he argues that

the IJ should have excused his untimely filing and reached the merits of his claim for

asylum.

At the threshold, we must determine whether Congress has granted our court

jurisdiction to decide this issue. Mouawad concedes that this court lacked jurisdiction

to review a determination that an asylum application was untimely prior to the passage

of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. See 8 U.S.C.

§ 1158(a)(3) (“No court shall have jurisdiction to review any determination of the

Attorney General under paragraph (2).”); Ismailov v. Reno, 263 F.3d 851, 855 (8th

Cir. 2001) (finding that this court lacks subject-matter jurisdiction to review a

petitioner’s claim that the Board erred by failing to find extraordinary circumstances

related to his untimely asylum application). Nevertheless, Mouawad argues that the

REAL ID Act’s affirmation of our jurisdiction to review “constitutional claims or

questions of law,” REAL ID Act of 2005 § 106(a)(1)(A)(iii), 119 Stat. 231, 310,

codified at 8 U.S.C. § 1252(a)(2)(D), narrows the scope of § 1158(a)(3) and enables

our court to hear his claim that the IJ erred in finding that Mouawad failed to
3

Citing law from our sister circuits, Mouawad does make one arguably legal

contention with regard to the denial of his asylum claim: that the IJ failed to

sufficiently explain or make an individualized assessment of changed conditions with

regard to his finding that Mouawad failed to qualify for a waiver of the deadline. This

argument lacks merit. Even if we were to find jurisdiction on this issue, we note that

the IJ’s decision directly addressed the only reasons Mouawad gave him for the late

filing, and it provided adequate explanation as to why those reasons were insufficient

under the standards of 8 U.S.C. § 1158(a)(2)(D).

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demonstrate extraordinary circumstances or changed conditions “to the satisfaction

of [the IJ]” within the meaning of 8 U.S.C. § 1158(a)(2)(D). 

Mouawad does not raise any colorable constitutional challenges or questions

of law as to the IJ’s determinations that Mouawad failed to meet the deadline and

failed to show sufficient extraordinary or changed circumstances, however.3

Furthermore, this court has rejected the same argument in other cases subsequent to

the passage of the REAL ID Act. See Jallow v. Gonzales, 472 F.3d 569, 571 (8th Cir.

2007); Tolego v. Gonzales, 452 F.3d 763, 766 (8th Cir. 2006); Wijono v. Gonzales,

439 F.3d 868, 871 (8th Cir. 2006); Ignatova v. Gonzales, 430 F.3d 1209, 1213-14 (8th

Cir. 2005). Thus, because the IJ determined that the untimeliness of Mouawad’s

asylum application was not excused by exceptional circumstances or changed

conditions within the meaning of 8 U.S.C. § 1158(a)(2)(D), we lack jurisdiction to

review Mouawad’s asylum claim.

B. Withholding of Removal

There is no similar one-year requirement for applications for withholding of

removal, however, and therefore we have jurisdiction to review the IJ’s denial of that

ground for relief. 8 U.S.C. § 1252(a); see Wijono, 439 F.3d at 872 (reviewing a denial

of withholding of removal despite having no jurisdiction to review the denial of

asylum relief on the basis of untimeliness). To qualify for withholding of removal,

an applicant must show a “clear probability,” Zhuang v. Gonzales, 471 F.3d 884, 891
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(8th Cir. 2006), that “his or her life or freedom would be threatened in the proposed

country of removal on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 C.F.R. § 1208.16(b). An applicant

may make the requisite showing by one of two means. First, the applicant may show

past persecution on the basis of one of the protected grounds listed above, thus

creating a rebuttable presumption that his life or freedom would be threatened upon

removal. 8 C.F.R. § 1208.16(b)(1). Second, the applicant may qualify for

withholding of removal if he or she establishes that “it is more likely than not that he

or she would be persecuted” upon removal based upon one of the protected grounds

upon removal. 8 C.F.R. § 1208.16(b)(2). We review the denial of an application for

withholding of removal for substantial evidence, and will reverse the decision of the

IJ only if the record compels the conclusion that Mouawad qualified for withholding

of removal. Wijono, 439 F.3d at 872. 

We find substantial evidence to support the IJ’s decision here, because

Mouawad’s testimony does not compel the conclusion that any past or feared future

persecution at the hands of Hizballah was or would be on account of a protected

ground. Mouawad testified to his Maronite Christian beliefs, but nowhere in the

record does he suggest that Hizballah harassed him because of those beliefs. See INS

v. Elias-Zacarias, 502 U.S.478, 483 (1992) (“Elias-Zacarias objects that he cannot be

expected to provide direct proof his persecutors’ motives. We do not require that. But

since the statute makes motive critical, he must provide some evidence of it, direct or

circumstantial.”). Indeed, Mouawad testified that his religious beliefs were irrelevant

to his alleged persecutors. He claimed that Hizballah members first approached him

because they wanted him to provide inside information on the Lebanese military, and

that the religion of those from whom they seek support “doesn’t matter” to the Muslim

militias in Lebanon. Thus, Mouawad failed to establish a clear probability of

persecution on the basis of his religion upon his return to Lebanon.
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Similarly, Mouawad did not establish that Hizballah sought (or will seek) him

out for persecution on the basis of a political opinion. At oral argument, he contended

that his refusal to give military secrets to Hizballah amounted to the assertion of a

political opinion of opposition to that group’s aims, or at least caused Hizballah to

impute that opinion to him. Without other evidence to support that assertion,

Mouawad’s argument is substantially identical to the argument the Supreme Court

heard and rejected in Elias-Zacarias, 502 U.S. at 481-82. We are therefore bound to

reject it here. 

Substantial evidence supports the IJ’s decision to deny Mouawad’s application

for withholding of removal because Mouawad’s testimony would not compel a

reasonable factfinder to conclude that any persecution he suffered or may suffer would

be on account of a protected ground. Because we find this ground for denial of

Mouawad’s claim legally sufficient, we need not address the IJ’s other stated reasons

for the denial.

C. Recent Events in Lebanon

Much of Mouawad’s argument with regard to his asylum and withholding of

removal claims focuses upon recent events in Lebanon, including the well-publicized

armed conflict between Hizballah and Israeli forces during the summer of 2006. Both

the IJ and the Board denied Mouawad’s claims prior to these events, and therefore any

impact they have upon Mouawad’s claims is not a proper issue for this court in this

appeal. If Mouawad wishes to address these recent events before an adjudicative

body, the appropriate course is to bring a motion to reopen before the Board on the

basis of changed circumstances in Lebanon. 8 C.F.R. § 1003.2(c)(1), (3)(ii). At oral

argument, Mouawad informed this court that he has done so, and that the Board had

not yet ruled upon that motion. Thus, given the posture of this case, we do not

consider recent events in Lebanon for the purposes of this appeal.
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D. Convention Against Torture

To qualify for relief under the CAT, an alien must instead 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. § 1208.16(c)(2). For applicants, this standard for relief

is more onerous than the standards for asylum and withholding of removal in certain

respects; for example, “persecution” for the purposes of asylum and withholding of

removal may encompass abuse that is less severe than “torture” for the purposes of the

CAT. See Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir. 2005) (noting the CAT’s

“narrow definition” of torture). The standards for CAT relief are less onerous,

however, in that they do not require an applicant to show that he fears future harm on

the basis of any statutorily-defined ground.

To constitute “torture” under the CAT, the relevant act(s) must be “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.” Id. § 1208.18(a)(1). For the purposes of the

CAT, “acquiescence” exists when “the public official, prior to the activity constituting

torture, ha[s] awareness of such activity and thereafter breach[es] his or her legal

responsibility to intervene.” 8 C.F.R. § 1208.18(a)(7). This inquiry centers upon the

willfulness of a government’s non-intervention. A government does not acquiesce in

the torture of its citizens merely because it “is aware of torture but powerless to stop

it,” Ramirez-Peyro v. Gonzales, No. 06-1569, 2007 WL 542235, at *2 (8th Cir. Feb.

23, 2007), but it does cross the line into acquiescence when it shows “willful blindness

toward the torture of citizens by third parties.” Menjivar v. Gonzales, 416 F.3d 918,

923 (8th Cir. 2005). 

As with claims for withholding of removal, we review the factual basis for an

IJ’s denial of a CAT claim for substantial evidence. Ibrahim v. Gonzales, 434 F.3d

1074, 1078-79 (8th Cir. 2006). “The grounds upon which an administrative order

must be judged are those upon which the record discloses that its action was based.”
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SEC v. Chenery, 318 U.S. 80, 87 (1943). Therefore, if “the IJ’s holding is insufficient

to allow us to conduct any meaningful review of [his] decision,” we must remand the

case to the Board for further explanation or reconsideration. Hailemichael v.

Gonzales, 454 F.3d 878, 884 (8th Cir. 2006).

Here, the IJ denied Mouawad’s CAT claim on the sole ground that he failed to

show that any harm he may face would be inflicted by the Lebanese or Syrian

governments. The IJ’s entire discussion of the CAT claim was as follows:

Regarding a claim under Article 3 of the Convention Against Torture,

the group that respondent stated his primary fear relates to is Hezbollah.

He has not indicated any fear of the government of Lebanon. To qualify

for relief under the Torture Convention, you must establish that you fear

being tortured by or at the instigation of, or with the consent or

acquiescence of, a government official. There is really no evidence here

that the respondent has any fears relating to the government of Lebanon.

Any claims relating to the Syrian authorities are severely undercut by the

fact that the respondent has made three trips to Syria, legally crossing the

border into that country with his Lebanese passport. In summary, the

respondent has not met his burden of proof to establish a basis for a

Torture Convention claim.

Substantial evidence certainly supports the IJ’s denial of Mouawad’s CAT

claim insofar as it relates to torture at the hands of the Lebanese or Syrian

governments directly. But the IJ’s opinion does not address the question of whether

Hizballah—the group that Mouawad allegedly fears, and the group whose acts

constitute the primary basis for his request for relief—commits such acts with the

acquiescence of the Lebanese government. We cannot say that the question of

acquiescence was unworthy of discussion. Contrary to the government’s assertion in

its brief that “there is no evidence that [the alleged harassment] came at the hands of

persons that the government of Lebanon was unwilling or unable to control,” we find

several facts in the record on this issue. At the time of Mouawad’s hearing, the most
4

This is not to say that an IJ must always perform separate analyses of an

applicant’s claims for asylum, withholding of removal, and relief under the CAT. In

many cases, including this one, the alien applies for all three forms of relief and

supports that application with the same factual allegations. In such cases, a separate

CAT analysis is generally necessarily only when the grounds for denying a claim for

asylum or withholding of removal rest upon eligibility requirements that are in

addition to, or more stringent than, the eligibility requirements under the CAT. See

Samedov, 422 F.3d at 708.

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recent State Department report on Lebanon noted that the Lebanese government had

made no attempt to disarm Hizballah, and a report from the British government stated

that a number of Hizballah members had been elected to the Lebanese parliament and

that the Lebanese government’s control over the group was limited. In addition,

Mouawad testified that Lebanon is “completely different than here” in that “the police

can’t do anything for you” there. As a result, Hizballah was the only group in

Lebanon that can “kill and run and nobody will find out how.” Mouawad testified

that he brought complaints about the threats and harassment by Hizballah to his

superior military officer as early as 1995, but the military took no action to protect

him. Instead, Mouawad said that officers began questioning him as to whether he was

leaking information to Hizballah, and they threatened to detain him beyond his

mandatory term of service as a form of punishment.

Despite this evidence, the IJ never explicitly considered whether the Lebanese

government acquiesces in Hizballah’s acts of violence and intimidation, nor whether

there is a sufficient likelihood that Mouawad would be tortured by Hizballah members

if returned to Lebanon. The IJ’s failure to address these issues leaves us unable to

conduct any meaningful review of his decision as it relates to Mouawad’s CAT claim.4

The government also argues that the facts in Mouawad’s case do not suggest

that it is more likely than not that he would suffer torture upon his return to Lebanon,

regardless of the affiliation of the feared torturers. The government is free to make
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that argument upon remand to the Board. As noted above, however, the IJ’s decision

did not include such a finding. As such, we decline the government’s invitation to

violate the principles of Chenery, and we remand the case to the Board for further

proceedings.

III. CONCLUSION

For the foregoing reasons, we hold that we lack jurisdiction to review the IJ’s

finding that Mouawad’s asylum application was untimely. We also deny the petition

for review insofar as it relates to his claim for withholding of removal, and we grant

the petition for review insofar as it relates to his CAT claim.

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