United States Court of Appeals
For the First Circuit
No. 06-2658
YAACOUB ELIAS MELHEM,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
William P. Joyce on brief for petitioner.
Benjamin J. Zeitlin, Office of Immigration Litigation,
United States Department of Justice, Peter D. Keisler, Assistant
Attorney General, and Terri J. Scadron, Assistant Director, on
brief for respondent.
August 24, 2007
LYNCH, Circuit Judge. The petitioner, Yaacoub Elias
Melhem, a native and citizen of Lebanon, seeks review of the denial
of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). The Board
of Immigration Appeals (BIA), in its own opinion, affirmed the
Immigration Judge's (IJ) determinations that Melhem's application
for asylum was time-barred, that his testimony was not credible and
he had not provided corroborating evidence, and that he had not
carried his burden of proof with respect to his withholding of
removal and CAT claims. Melhem was allowed voluntary departure.
We deny the petition for review.
I.
Melhem left Lebanon on July 29, 2000, and lawfully
entered the United States with a Lebanese passport and a non-
immigrant visitor visa that same day. He was authorized to remain
in the United States until January 27, 2001, but he did not depart
by that date, rendering his continued presence in the United States
unlawful. Melhem lived first with his maternal uncle, who is a
naturalized citizen, and then with his brother, who is lawfully in
the United States on a student visa. Melhem testified that he did
not attend school in the United States and that he did not work in
the United States until he received his work visa in 2004, after he
had filed for asylum.
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On February 4, 2003, the Immigration and Naturalization
Service1 (INS) instituted removal proceedings against Melhem. In
an appearance before an IJ on June 12, 2003, Melhem conceded the
allegations in the Notice to Appear but sought relief from removal.
On August 8, 2003, Melhem filed an application for asylum,
withholding of removal, and protection under the CAT.
At a hearing on April 15, 2005, the IJ determined that
Melhem's asylum application was time-barred because he had not
filed for asylum within one year of his arrival in the United
States, as required by 8 U.S.C. § 1158(a)(2), and he had not
demonstrated either changed or extraordinary circumstances
warranting an exception to the one-year rule. In an oral decision
rendered on May 16, 2005, the IJ also denied Melhem's requests for
withholding of removal and protection under the CAT, based largely
on his finding that Melhem's testimony was not credible.
In a November 13, 2006 opinion, the BIA affirmed the IJ's
determination that Melhem's asylum application was time-barred. It
also affirmed the IJ's adverse credibility finding, noting specific
inconsistencies and omissions catalogued by the IJ, and agreed that
the lack of credible testimony meant that Melhem had not met his
burden of proof regarding his eligibility for withholding of
1
The functions of the INS were shortly thereafter subsumed by
the Department of Homeland Security.
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removal or for protection under the CAT. Melhem timely petitioned
this court for review.
II.
Melhem makes several claims on his petition for review.
First, he argues that the IJ erred in his adverse credibility
finding. Second, he asserts that his asylum request should have
been granted. Third, he argues that the IJ wrongly denied him
withholding of removal and protection under the CAT. The BIA
rejected each of these claims, and so do we.
As a preliminary matter, we lack jurisdiction over
Melhem's asylum application because the IJ found his application to
be time-barred and the BIA affirmed that determination. 8 U.S.C.
§ 1158(a)(3); see also Sharari v. Gonzales, 407 F.3d 467, 473 (1st
Cir. 2005). Melhem's attempt to cloak his factual disagreement
with the BIA in the garb of due process to avoid this
jurisdictional bar is unavailing.2 See Pan v. Gonzales, 489 F.3d
80, 84 (1st Cir. 2007).
2
Melhem also argues that the IJ's refusal to allow Melhem to
amend his application to state that he was a member of the Lebanese
Forces denied him a full and fair trial and demonstrated that the
IJ had prejudged his claim. This argument is without merit.
Melhem had been asked several times under oath whether his
application was complete and true. He claimed that his lawyer had
filled out his application and that his English was not good enough
to catch the mistake, yet he slipped into English several times
during the hearing. Melhem's assertion that the IJ's refusal went
beyond "expressions of impatience, dissatisfaction, annoyance, [or]
even anger" is not borne out by the record. Liteky v. United
States, 510 U.S. 540, 555-56 (1994).
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We do have jurisdiction to review the BIA's denial of
relief under the CAT and withholding of removal. We review the
BIA's decision under the deferential substantial evidence standard.
Jean v. Gonzales, 461 F.3d 87, 90 (1st Cir. 2006); Long v.
Gonzales, 422 F.3d 37, 40 (1st Cir. 2005). That is, we accept the
BIA's decision "unless any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B);
see also Long, 422 F.3d at 40.
We agree with the BIA that the IJ's credibility
determination is sufficiently supported by the record. The BIA
described specific inconsistencies and omissions in Melhem's
account on which the IJ relied when finding Melhem's testimony to
be incredible. Melhem claimed persecution based on his political
opinion and membership in a specific social group, yet he did not
list his membership in the Lebanese Forces in either his
application or his supporting affidavit, even though he later
testified that he was a member. On his application, Melhem stated
that he attended the American University of Technology in Lebanon
from March until May 2001, but when questioned about his attendance
during his hearing, Melhem stated that he was in the United States
during that time. Other notable inconsistencies between Melhem's
original application and affidavit and his later testimony include
the presence of Hizbollah and Islamic Jihad at the anti-Syrian
demonstrations in which Melhem participated in 1999 and 2000 and
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the assertion that Syrian agents were looking for him after he fled
Lebanon. Melhem's attempts to explain away these and other
inconsistencies are unavailing.
To qualify for withholding of removal, Melhem must
establish that his "life or freedom would be threatened in
[Lebanon] on account of race, religion, nationality, membership in
a particular social group, or political opinion." 8 C.F.R.
§ 208.16(b); see also Awad v. Gonzales, 463 F.3d 73, 76 (1st Cir.
2006). If he cannot demonstrate that he has suffered past
persecution, he must establish that it is "more likely than not"
that he will suffer future persecution should he return to Lebanon.
8 C.F.R. § 208.16(b)(2); see also Awad, 463 F.3d at 76.
Because the IJ can disregard or discount evidence he
finds incredible, "an adverse credibility determination can prove
fatal to a claim for . . . withholding of removal" if the applicant
cannot meet his burden of proof without relying on his own
testimony. Pan, 489 F.3d at 86. Such is the case here. Melhem
provided very little additional evidence to support his account of
past persecution. Given Melhem's close contact with his family,
and given the presence of his mother and brother in New England at
the time of his hearing, his failure to offer corroboration is
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notable.3 See Chahid Hayek v. Gonzales, 445 F.3d 501, 508-09 (1st
Cir. 2006).
Melhem also failed to provide sufficient evidence that
his fear of future persecution is well-founded. It is not clear
why Syrian agents would still be looking for him based on his
participation in two student demonstrations and two day-long
detentions that occurred over seven years ago. Cf. id.
(discounting applicant's fear of future persecution because she
last participated in a Lebanese Forces activity more than eleven
years previously). Further, general reports that some members of
a certain group are persecuted in a country do not establish that
it is more likely than not that the applicant himself will suffer
persecution upon his return. Awad, 463 F.3d at 77. The BIA did
not err in upholding the IJ's conclusion that Melhem did not carry
his burden of proof for his withholding of removal claim.
To qualify for relief under the CAT, Melhem must
establish that it is "more likely than not that he . . . would be
tortured if removed to [Lebanon]." 8 C.F.R. § 208.16(c)(2); see
also Awad, 463 F.3d at 77. Evidence of past torture inflicted upon
the applicant can help meet this burden of proof. 8 C.F.R.
§ 208.16(c)(3). Torture means "severe pain or suffering, whether
physical or mental," that is "inflicted by or at the instigation of
3
The IJ had specifically requested such familial
corroboration at a preliminary hearing.
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or with the consent or acquiescence of a public official or other
person acting in an official capacity." Id. § 208.18(a)(1); see
also Awad, 463 F.3d at 77.
Melhem presented no credible evidence to support his CAT
claim. He claimed he had been tortured when he was twice detained
by Syrian agents, but the IJ found this testimony to be not
credible.4 The IJ also determined that it was not "more likely
than not" that Melhem would be tortured on his return to Lebanon.
In affirming this conclusion, the BIA pointed out that Melhem's
father and the rest of his family have lived safely in Lebanon
since Melhem's departure, even though his father was allegedly
detained and physically abused for five days by Syrian forces in
1986, and his parents have traveled safely to and from the United
States several times in recent years. Melhem attempts to explain
his father's safety by arguing that the Syrian forces in Lebanon
are only interested in young dissidents. Yet his brothers -- whom
he listed as members of the Lebanese Forces in his application and
affidavit -- have also remained safely in Lebanon. See Ouk v.
Gonzales, 464 F.3d 108, 111 (1st Cir. 2006) (discounting
applicant's fear of persecution where her family remained safely in
4
Among other inconsistencies, Melhem testified that after he
was detained and tortured in January 2000, he did not leave his
parents' house again until July 2000, when he left for the United
States. Yet on his application he had listed his school attendance
as stretching from 1996 into 2001, a discrepancy noted by both the
IJ and the BIA.
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Cambodia and traveled to and from the United States); Chahid Hayek,
445 F.3d at 508-09 (sustaining finding of no likelihood of future
persecution where applicant's parents and siblings had lived
unharmed in Lebanon since her departure). We agree with the BIA
that the IJ reasonably concluded that Melhem failed to meet his
burden of proof on his CAT claim.
We deny the petition for review.
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