                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       February 14, 2006

                                                                 Charles R. Fulbruge III
                             No. 05-20174                                Clerk



ABDEL ALRAHMAN AL-MOUSA

                                                    Petitioner - Appellant
versus


ALBERTO R. GONZALES, et al.

                                                   Respondents - Appellees


          Appeal from the United States District Court
               for the Southern District of Texas
                         (No. H-04-4189)



Before GARWOOD, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant     Abdel      Alraham    Al-Mousa    (“Al-Mousa”)

challenges the district court’s denial of his petition for habeas

corpus on the basis that he is entitled to relief under the

Convention Against Torture (“CAT”).

                        I. FACTS & PROCEEDINGS

A.   Background

     Al-Mousa     was   deported    to    his   native   country,       Syria,

approximately one year ago.        He testified before the Immigration



     *
      Under 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Judge (“IJ”) that he left his home in Hama, Syria in 1982 after

units of the Syrian military massacred several members of his

family in an action against the city of Hama, which at the time was

a stronghold of militant opposition to the Syrian government.       Al-

Mousa testified that he became an outspoken critic of the Syrian

government following the massacre, and was subsequently imprisoned

and tortured for three months.       After his release, he resided in

Jordan until 1992, when he moved to the United States.

     B.    Proceedings

     In   February    1998,   the   government   initiated   deportation

proceedings against Al-Mousa because he was present in the United

States in violation of United States law,1 and he was convicted of

making false statements to immigration authorities, a crime of

moral turpitude.2    Al-Mousa then petitioned for asylum on the basis

that he feared torture at the hands of the Syrian government if he

was deported.    The IJ found that Al-Mousa was not a credible

witness and, as there was no corroborating evidence to support Al-

Mousa’s alleged anti-government statements, the IJ denied asylum.

The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision

without discussion.    Al-Mousa then appealed to this court, and we

denied his appeal in an unpublished opinion.

     In March 2004, the government took Al-Mousa into custody


     1
      8 U.S.C. § 1227(a)(1)(B).
     2
      Id. at § 1227(a)(2)(A)(i).

                                     2
pending deportation.   Al-Mousa petitioned the district court for a

writ of habeas corpus in November 2004 alleging, inter alia, that

the government was deporting him in violation of its obligations

under the CAT.   The district court dismissed the petition on the

basis that it lacked jurisdiction because Al-Mousa could have

raised his CAT claim on direct review before either the BIA or this

court, but he failed to do so.   Al-Mousa appeals from this order.

                           II. ANALYSIS

     At the outset, the parties dispute whether we should treat

this case as an appeal of a denial of a habeas corpus petition

under 28 U.S.C. § 2241, or a petition for review under the Real ID

Act of 2005, which became effective May 11, 2005 —— while this

appeal was pending.    The Real ID Act amends the Immigration and

Nationality Act to eliminate habeas review of orders of removal.

Specifically, the law provides that:

          Notwithstanding any other provision of law (statutory or
          non-statutory), including section 2241 of Title 28, or
          any other habeas corpus provision... a petition for
          review filed with an appropriate court of appeals in
          accordance with this section shall be the sole and
          exclusive means for judicial review of an order of
          removal issued under any provision of this chapter.3

Although Congress was silent as to the effect of the Real ID Act on

§ 2241 cases pending on appeal, we have held that “habeas petitions

on appeal as of May 11, 2005... are properly converted into




     3
      8 U.S.C. § 1252(a)(5).

                                 3
petitions for review.”4        Accordingly, we will treat Al-Mousa’s

appeal as a petition for review.

     Section 1252(d) provides that we may review a petition only

if, inter alia, the alien exhausts his administrative remedies. An

alien can fulfill this obligation by raising the issue on direct

appeal to the BIA.5     Here, Al-Mousa could have raised his CAT claim

on direct review before either the BIA or this court, but he failed

to raise his CAT claim until now.            Accordingly, under section

1252(d), we cannot review Al-Mousa’s claim because he failed to

exhaust his administrative remedies.

     Al-Mousa contends that he is excused from the requirement that

he exhaust his administrative remedies under Eduard v. Ashcroft.6

Al-Mousa’s   reliance    on   Eduard   is   misplaced.   In   Eduard,   the

petitioners alleged facts that may have entitled them to asylum

under CAT in their petition, but they failed to expressly identify

CAT as the legal theory under which they sought relief until the

case was on direct review.7        Under those circumstances, we held

that the petitioners had sufficiently raised a CAT claim and

remanded to the IJ for reconsideration.8         Al-Mousa’s situation is

     4
      Rosales v. Bureau of Immigration and Customs Enforcement,
426 F.3d 733, 736 (5th Cir. 2005).
     5
      Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
     6
      379 F.3d 182 (5th Cir. 2004).
     7
      Id. at 185.
     8
      Id. at 196.

                                       4
distinctly different.       In Eduard the CAT had come into force before

the alien executed his asylum application.               Here, by contrast, the

CAT did not come into force until after Al-Mousa had appealed to

the BIA; the CAT came into effect while his appeal was pending

before the BIA, but before he filed his brief with the BIA;

notwithstanding that the CAT was in effect when that brief was

filed it makes no mention of the CAT (nor was any mention of the

CAT made in Al-Mousa’s appeal to this court).               While he stated in

his petition for asylum that he feared torture if deported to

Syria,   Al-Mousa    ——     unlike   the   Eduard        petitioners      ——   never

identified CAT as one of the legal theories underlying his claim to

the BIA or to this court on direct review.               Simply alleging facts

without articulating a legal theory for recovery is insufficient to

exhaust administrative remedies as to the unstated legal theory.

Instead, an alien must at the very least place the BIA on notice of

the legal theory to which those facts apply during the direct

review   process.     Thus,     Al-Mousa’s    argument           is   unpersuasive.

Moreover, Al-Mousa is not entitled to relief because under 8 U.S.C.

§ 1252(d)(2) “[a] court may review a final order of removal only if

. . . another court has not decided the validity of the order,

unless the reviewing court finds that the petition presents grounds

that   could   not   have     been   presented      in     the    prior    judicial

proceeding.”

                              III.   CONCLUSION



                                       5
    For the foregoing reasons, Al-Mousa’s petition for review is

DENIED.




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