                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3357
                                    ___________

Abdi Gelle Mohamed,                      *
                                         *
             Petitioner,                 *
                                         * Petition for Review
v.                                       * of an Order of the
                                         * Board of Immigration Appeals.
Alberto R. Gonzales, United              *
States Attorney General,                 *
                                         *
             Respondent.                 *
                                    ___________

                              Submitted: September 29, 2006
                                 Filed: November 27, 2006
                                  ___________

Before WOLLMAN, BOWMAN, and BENTON, Circuit Judges.
                        ___________

BENTON, Circuit Judge.

      Abdi Gelle Mohamed, a convicted sex offender, resists removal to his native
Somalia. Mohamed's case has a tortuous path, from state probate court, to state
criminal court, from six conferences with an immigration judge for removal
proceedings, to the Board of Immigration Appeals, to this court on appeal, back to the
Board, to federal district court for habeas proceedings, and finally to this court under
the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(5).
                                         I.

       Mohamed illegally entered the United States in February 1998. He claims (1)
to suffer from a mental illness, and (2) to be a member of the minority outcaste
Midgan clan in Somalia. Mohamed maintains he experienced persecution in Somalia,
including physical abuse. He was granted asylum despite entering this country
illegally, but never became a lawful permanent resident.

       In August 1998, Mohamed sexually molested a ten-year-old girl who lived in
his apartment building in Minneapolis. Criminal proceedings stalled for more than
two years while Mohamed was adjudged incompetent to stand trial. In May 2000, a
probate court ordered him committed to the Minnesota Security Hospital. Mohamed
was convicted in November 2000 of Criminal Sexual Conduct in the First Degree,
Minn. Stat. § 609.342. He was sentenced to 32 months of imprisonment, followed by
16 months of supervised release. With credit for time served, Mohamed completed
his prison sentence in April 2001, but thereafter remained at the Hospital.

       The INS commenced removal proceedings in June 2001, charging Mohamed
as an alien present in the United States without being admitted or paroled, 8 U.S.C.
§ 1182(a)(6)(A)(I), and as an alien convicted of a crime involving moral turpitude, 8
U.S.C. § 1182(a)(2)(A)(i)(I). Mohamed does not contest either that his entry was
illegal or that his crime involves moral turpitude. Instead, Mohamed seeks
withholding of removal under the Convention Against Torture. The IJ continued the
removal hearing three times so Mohamed could obtain counsel, but he chose to
proceed pro se. Because Mohamed was confined to the Hospital, hearings were by
video conference. After the final removal hearing in August 2002, the IJ ordered
Mohamed removed to Somalia.




                                         -2-
       Mohamed appealed to the Board of Immigration Appeals. Counsel entered his
appearance in January 2003. Through counsel, Mohamed filed a brief, requested a
hearing by a three-member panel, and moved to amend the brief. The Board affirmed
without opinion in May 2003. Following Mohamed's appeal to this court, the Board
sua sponte vacated the May decision, re-opened proceedings, and in November 2003
re-affirmed with a short per curiam. The Board acknowledged that Mohamed "is
mentally ill," but found "no evidence in the record which convinces us that the
respondent was unable to comprehend the nature of the [removal] proceedings." This
court then dismissed Mohamed's petition for review without prejudice in December
2003.

      While the Board proceedings and his first appeal to this court were pending,
Mohamed petitioned for a writ of habeas corpus in federal district court. The court
granted the petition on May 23, 2005, and ordered a new removal hearing to evaluate
Mohamed's competency. Mohamed v. TeBrake, 371 F. Supp. 2d 1043 (D. Minn.
2005).

       On May 11, 2005, the President signed the REAL ID Act, denying the writ of
habeas corpus to an alien resisting a removal order. On August 2, 2005, over
Mohamed's opposition, the district court amended its judgment, transferring the case
to this court. This case is a petition for review of the Board's November 2003
decision.

                                         II.

       Mohamed mainly advances an as-applied constitutional challenge to the REAL
ID Act. This court reviews de novo constitutional questions and questions of law
related to the IJ's order. Flores v. Ashcroft, 354 F.3d 727, 729 (8th Cir. 2003);
Amador-Palomares v. Ashcroft, 382 F.3d 864, 866 (8th Cir. 2004).



                                        -3-
      The Constitution provides: "The Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion the public Safety
may require it." U.S. Const. art. I, § 9, cl. 2. The REAL ID Act divests the federal
courts of habeas jurisdiction of a removal order. "[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 a removal order. 8 U.S.C. § 1252(a)(5). The
term "judicial review" includes habeas petitions. Id.

      Congress therefore must offer "a collateral remedy which is neither inadequate
nor ineffective to test the legality of a person's detention". Swain v. Pressley, 430
U.S. 372, 381 (1977). The substitute remedy must offer the same scope of review as
a habeas proceeding. Id. at 381-82.

        Mohamed bases his as-applied challenge to the REAL ID Act on the fact that
this court cannot consider his commitment order, because it is not part of the record
before this court. See 8 U.S.C. § 1252(b)(4)(A) ("the court of appeals shall decide the
petition only on the administrative record on which the order of removal is based").
Mohamed contends that essential to habeas review is the ability to offer evidence
outside the record. Mohamed concludes that the Act does not provide an adequate and
effective alternative to habeas review, and violates the Suspension Clause as applied
to him.

       Mohamed did not proffer the commitment order until this appeal. Mohamed
could have introduced the order during the removal proceedings, on appeal to the
Board (when he was represented by counsel), or through a motion to reopen under 8
U.S.C. § 1229a(c)(7). The district court on habeas review did quote the commitment
order although it was not part of the administrative record. In this appeal, Mohamed
has moved to amend the record to include the commitment order, which motion is
denied. See Ming Ming Wijono v. Gonzales, 439 F.3d 868, 875 n.4 (8th Cir. 2006)
(citing 8 U.S.C. § 1252(b)(4)(A) to deny petitioner's motion to supplement to the
administrative record with documents not presented to the IJ or to the Board).
                                         -4-
       This court is persuaded by Alexandre v. U.S. Attorney General, 452 F.3d 1204
(11th Cir. 2006). The petitioner there had the opportunity to add new evidence to the
record by a motion to reopen with the Board, and the Eleventh Circuit found the
REAL ID Act to be an adequate and effective substitute for habeas review. Id. at
1205-06. That Mohamed here failed to make such a motion, or otherwise to introduce
the commitment order until now, does not make the remedy inadequate or ineffective
as a matter of law. See also Puri v. Gonzales, 464 F.3d 1038, 1041-42 (9th Cir. 2006)
(petitioner offered new evidence in motion for reconsideration; Act upheld against
Suspension Clause challenge), Enwonwu v. Gonzales, 438 F.3d 22, 32-33 (1st Cir.
2006) (petitioner's motion to reopen rejected as untimely, but presented only questions
of law and not of fact; in dicta court stated that "the Act encompasses at least the same
review and the same relief as to Enwonwu as were available under prior habeas law.").

       This court may review all constitutional claims and questions of law in the
removal order, 8 U.S.C. § 1252(a)(2)(D). Congress has created a remedy as broad in
scope as a habeas petition. It is an adequate and effective substitute to test the legality
of a person's detention. See Swain, 430 U.S. at 381-82; see also INS v. St. Cyr, 533
U.S. 289, 314 n.38 (2001) ("As to the question of timing and congruent means of
review, we note that Congress could, without raising any constitutional questions,
provide an adequate substitute [to replace habeas proceedings for aliens resisting a
removal order] through the courts of appeals.").

                                            III.

       Mohamed argues that the IJ's failure to hold a competency hearing violated his
Fifth Amendment right to procedural due process. This right requires "the opportunity
to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge,
424 U.S. 319, 333 (1976). A mentally incompetent person, although physically
present, is absent from the hearing for all practical purposes. See Drope v. Missouri,
420 U.S. 162, 171 (1975). The test for mental competence in a criminal case is
whether an individual possesses "the ability to comprehend the nature and object of

                                           -5-
the proceedings against him, to consult with counsel, and to assist in preparing his
defense. . . ." Id. The precise contours of procedural due process depend on the
circumstances of the case and require consideration of several factors: the public and
private interests at stake and the risk of an erroneous deprivation. Mathews, 424 U.S.
at 335.

       A mentally incompetent alien may be represented at a removal hearing by his
"attorney, legal representative, legal guardian, near relative, or friend who was served
with a copy of the notice to appear". 8 C.F.R. § 1240.4. Failing these, the custodian
"shall be requested to appear on behalf" of the alien. Id. The district court that
granted Mohamed's habeas petition held that it was an "abuse of discretion" for the IJ
not to hold a competency hearing, and avoided the constitutional issue altogether.
Mohamed v. TeBrake, 371 F. Supp. 2d 1043, 1047 (D. Minn. 2005).

       At his hearings, Mohamed answered the charges against him, testified in
support of his claim for withholding of removal, and arranged for two witnesses to
appear on his behalf. The transcripts show an individual who is aware of the nature
and object of the proceedings and who vigorously resists removal. The lack of a
competency hearing was not an abuse of discretion and did not violate Mohamed's
right to procedural due process.1

                                           IV.

       Mohamed also asserts due process violations in the interpreter's inability twice
to translate the Somali word for "schizophrenia" into English, and in the failure of the
video equipment to depict the scars on his back. To prevail, Mohamed must establish
prejudice, i.e., a showing "that the outcome of the proceedings may well have been



      1
       Mohamed unsuccessfully presented this claim to the Board. In ruling on
Mohamed's appeal of the IJ's decision and finding no evidence of incompetency, the
Board did not engage in "de novo factfinding," as Mohamed argues. Rather, the
Board based its decision on the evidence already in the record.
                                        -6-
different had the due process violation not occurred." Ismail v. Ashcroft, 396 F.3d
970, 974-75 (8th Cir. 2005).

       The record contains numerous references to the existence and specific nature
of Mohamed's mental illness. In his order, the IJ noted that Mohamed had been
"hearing voices" since the age of fifteen. Mohamed was not prejudiced by two one-
word translation failures. As to the scars, they were described to the IJ, who found
them as facts. The IJ concluded, based on inconsistencies in Mohamed's testimony,
that the scars did not result from torture as defined by the Convention Against Torture.
The cause of the scars, not their quality, is the relevant issue. Mohamed fails to
establish prejudice from any possible due process violation.

                                           V.

      Two witnesses testified for Mohamed at the removal hearing. One witness,
whose sister is married to Mohamed's brother, testified that Mohamed is Midgan. The
other witness testified that she knew Mohamed in Somalia some 15 years ago, and that
he is Midgan, displayed signs of mental illness then, and was ostracized from the
community and frequently beaten.

       Mohamed argues that the IJ erred by not making explicit credibility findings as
to these witnesses. An implicit credibility finding made in passing does not suffice.
Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 851 (8th Cir. 2004). Rather, absent an
explicit adverse credibility finding, a witness's testimony must be accepted as true.
Id.

      In his order the IJ commented that Mohamed offered "no objective
corroborating evidence" to support his application for relief under the Convention
Against Torture. The IJ made no explicit credibility finding but considered the
witnesses' testimony insubstantial. Torture under the Convention is defined as "an
extreme form of cruel and inhuman treatment intentionally inflicted by or with the
acquiescence of a person acting in an official capacity." Sheikh v. Gonzales, 427 F.3d

                                          -7-
1077, 1082 (8th Cir. 2005) (citing 8 C.F.R. § 208.18). The witnesses described
general ostracism and abuse at the hands of other Somalis, not torture by or with the
acquiescence of the government.

                                           VI.

       An applicant for withholding of removal under the Convention bears the burden
of proof "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). The IJ found incredible
Mohamed's claims to be Midgan and to having been tortured, observing that
Mohamed could find safe haven in the northern region of Somalia. The "very wide
discrepancies between the various stories told" by Mohamed himself provide ample
support for the IJ's order.

      The judgment of the Board is affirmed.

                        ______________________________




                                          -8-
