Marie Chahid Hayek v. Alberto Gonzales, Attorney General of the United States

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.

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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

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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

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"[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."

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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.

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