Selimi, Aisha v. Ashcroft, John

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 02-1453 & 02-2923

BESEM SELIMI, AISHA SELIMI, VJOLCA SELIMI,

RASHIDA SELIMI, and KUJTESA SELIMI,

Petitioners,

v.

JOHN D. ASHCROFT, ATTORNEY GENERAL,

Respondent.

____________

Petitions for Review of a Decision

of the Board of Immigration Appeals.

Nos. A72 484 314, 315, 316, and 317

____________

ARGUED SEPTEMBER 18, 2003—DECIDED MARCH 10, 2004

____________

Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit

Judges.

EVANS, Circuit Judge. Besem Selimi and his wife Aisha

on her own behalf and that of their three daughters—

Rashida, Kujtesa, and Vjolca—filed separate motions to re-

open their exclusion proceedings in order to obtain asylum,

withholding of deportation, or protection under Article 3

of the United Nations Convention Against Torture of 1998

(CAT), Pub. L. 105-277, 112 Stat. 2681. The Board of

Immigration Appeals denied their motions and they ap-

2 Nos. 02-1453 & 02-2923

pealed. The appeals raise essentially the same issues and

have been consolidated for our consideration.

Besem Selimi is an ethnic Albanian citizen of Macedonia.

He was granted lawful permanent residence in the United

States in 1991. At that time, his wife and daughters, also

ethnic Albanian citizens of Macedonia, remained behind in

that country. Two years later, in May 1993, Mr. Selimi

traveled to Macedonia to bring his wife, his daughters, and

a cousin back with him to this country. Mrs. Selimi, her

daughters, and the cousin traveled with falsified Yugosla-

vian passports.

As is recounted in an earlier case, Selimi v. INS, 312 F.3d

854 (7th Cir. 2002), when they arrived in New York they

were detained by the Immigration and Naturalization

Service (INS). Mr. Selimi admitted to purchasing falsified

passports for his family, and the INS proceeded to charge

him with excludability for alien smuggling pursuant to

8 U.S.C. § 1182(a)(6)(E)(i), the Immigration and

Naturalization Act (INA). Mr. Selimi conceded excludability

and, following an evidentiary hearing, an immigration

judge (IJ) found him ineligible for a waiver. He appealed to

the Board of Immigration Appeals, which affirmed the IJ’s

decision. We dismissed a petition for review of that decision.

The INS also placed Mrs. Selimi and her daughters in

exclusion proceedings, charging them with immigration

violations in that they (1) fraudulently procured a visa or

other documentation and sought to procure entry into the

United States by willfully misrepresenting a material fact;

(2) were not in possession of valid nonimmigrant visas; (3)

were not in possession of valid travel documents; and (4)

were not in possession of valid immigrant visas. They

eventually conceded excludability and indicated an intent

to seek asylum. However, they did not actually apply for

asylum at that time, despite having their case continued for

that purpose.

Nos. 02-1453 & 02-2923 3

Following a hearing in 1994, the IJ ordered Mrs. Selimi

and her daughters excluded. They did not appeal that

decision. Neither did they depart this country. As a con-

sequence, they were ordered to present themselves for

deportation on April 9, 2001.

As we said, all of the Selimis filed motions to reopen the

proceedings against them. On June 5, 2001, Mr. Selimi

wanted to reopen his exclusion proceedings to enable him

to present evidence of a change in country conditions in

Macedonia. He contended that the conflict between Alba-

nian separatists and the Macedonian military, which began

in January 2001, constituted a change in country conditions

relevant to his previously filed applications for asylum and

withholding of deportation, as well as a potential basis for

protection under CAT. His request was summarily dis-

missed for failure to satisfy the requirements of 8 C.F.R. §

3.2(c)(1). The Board noted that Mr. Selimi had never been

arrested or otherwise bothered by Macedonian authorities,

except on one occasion when his house was searched, and

that he did not meet the essential statutory or regulatory

requirements that the new evidence sought to be offered

was material and not available at the former hearing.

Mrs. Selimi and her daughters also sought to reopen their

exclusion proceedings in order to allow them to apply for

asylum, withholding of exclusion, and for protection under

CAT. They argued that country conditions in Macedonia

had changed to such an extent since their last hearing that

they had a well-founded fear of future persecution and that

it was more likely than not that they would be tortured if

they returned to Macedonia. Along with the motion, Mrs.

Selimi presented, on her own behalf and that of her daugh-

ters, an application for asylum and withholding of deporta-

tion, dated April 5, 2001.

On July 10, 2001, the IJ denied Mrs. Selimi’s motion to

reopen proceedings, finding that the motion “[did] not fall

4 Nos. 02-1453 & 02-2923

within the regulatory exception for untimely reopening” and

that she had offered insufficient evidence to warrant

reopening. The IJ found that she did not “allege that she

was ever harmed in the past or tortured in Macedonia

because of her Albanian nationality,” nor did she present

documents or evidence that she supported any Albanian

separatist group, which would make her a target for harm.

Finally, the IJ found that Mrs. Selimi’s case should not be

reopened as a matter of discretion because she did not

provide any reason why she failed to depart when she was

originally ordered to leave in 1994. The Board dismissed

her appeal on January 25, 2002, finding, in part, that she

failed to show prima facie eligibility for relief.

The issue before us is whether the Board’s denial of

the motions to reopen the proceedings constituted an abuse

of discretion. It is undisputed that the cases arise under

former § 106(a) of the INA, 8 U.S.C. § 1105a(a) (1994), as

modified by the transitional rules for judicial review of

deportation orders in § 309(c)(4) of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

8 U.S.C. § 1158(a). These provisions govern review of all

final orders of deportation issued after October 30, 1996, in

cases commenced before April 1, 1997, the effective date of

IIRIRA.

The Board has broad discretion in deciding whether to

grant or deny a motion to reopen, see 8 C.F.R. § 103.2; INS

v. Abudu, 485 U.S. 94 (1988), and, in fact, a motion to

reopen is strongly disfavored. INS v. Doherty, 502 U.S. 314

(1992). As the Supreme Court has emphasized, there is a

“strong public interest in bringing litigation to a close as

promptly as is consistent with the interest in giving the

adversaries a fair opportunity to develop and present their

respective cases.” Abudu, 485 U.S. at 107.

Under the regulations applicable to these proceedings,

motions to reopen must be filed within 90 days after the

Nos. 02-1453 & 02-2923 5

date on which the final administrative decision was made

or on or before September 30, 1996. 8 C.F.R. § 3.2(c)(2). The

Selimis’ motions are far outside the time limits. However,

the time limits do not apply to a motion to reopen the

proceedings “[t]o apply or reapply for asylum or withholding

of deportation based on changed circumstances arising in

the country of nationality . . . if such evidence is material

and was not available and could not have been discovered

or presented at the previous hearing[.]” 8 C.F.R.

§ 3.2(c)(3)(ii). Similarly, even a timely motion to reopen

cannot be granted “unless it appears to the Board that

evidence sought to be offered is material and was not

available and could not have been discovered or presented

at the former hearing . . . .” 8 C.F.R. § 3.2(c)(1).

The Supreme Court has set out “at least three inde-

pendent grounds” on which the Board may deny a motion to

reopen. First, it may determine that the applicant has not

established a prima facie case for the underlying relief.

Secondly, it may determine that the applicant has not in-

troduced “previously unavailable, material evidence” or, in

the case of an asylum application, that the applicant “has

not reasonably explained his failure to apply for asylum

initially.” Finally, if the relief requested is discretionary,

the Board may simply determine that the applicant “would

not be entitled to the discretionary grant of relief.” Abudu,

485 U.S. at 104-05.

The decisions on both Mr. and Mrs. Selimi’s motions are

somewhat muddled and therefore a bit difficult to review.

There is an indication in both decisions that the motions

were denied for a failure to meet the exception to the time

limitation for filing a motion. Particularly in Mrs. Selimi’s

application, we find the statement that “[w]e agree with the

Immigration Judge that the applicants have failed to

establish that they have been targeted for persecution or

torture in the past or that they will be in the future as

required for the regulatory exception for timely filing of a

6 Nos. 02-1453 & 02-2923

motion.” (Emphasis added.) It is certainly arguable that the

Selimis rely on events in Macedonia occurring in early

2001, evidence about which was, of course, not available at

the time of their original proceedings or, indeed, within 90

days thereafter.

The most clearly stated basis for the administrative de-

cisions, however, is that the Selimis failed to make out a

prima facie claim for asylum, withholding of exclusion, or

protection under CAT. It is on this basis that the decisions

must be upheld unless they constitute an abuse of discre-

tion.

Under the INA, an alien is eligible for a discretionary

grant of asylum if he is a “refugee.” A “refugee” is one who

is “unable or unwilling” to return to his country of origin

“because of persecution or a well-founded fear of persecu-

tion on account of race, religion, nationality, membership in

a particular social group, or political opinion[.]” 8 U.S.C. §

1101(a)(42)(A); 8 C.F.R. § 208.13(b). The test for determin-

ing whether an asylum applicant has a well-founded fear of

persecution has both subjective and objective elements. He

must show not just a subjective fear, but also that a

reasonable person in his shoes would fear persecution.

Sivaainkaran v. INS, 972 F.2d 161 (7th Cir. 1992). If an

applicant meets the definition of refugee, then the Attorney

General has the discretion to grant asylum. INS v. Elias-

Zacarias, 502 U.S. 478 (1992). The Selimis contend that the

events in Macedonia in 2001 demonstrate their well-

founded fear of future persecution if they are deported to

that country.1

1

According to the United States Department of State, the in-

surgency ended in July 2001. In September 2002, there were free

elections in Macedonia in which opposition parties, including

an ethnic Albanian party, won a majority of seats. See U.S.

Department of State, Country Reports on Human Rights Practices

for 2002.

Nos. 02-1453 & 02-2923 7

The Selimis present a considerable number of documents

to support their contention, including the 2001 Human

Rights Watch World Report on Macedonia and the 2000

U.S. State Department Country Report on Human Rights

Practices for Macedonia. Parenthetically, we note that to

the extent the latter supports their claim on the merits, it

undermines their claims that events in 2001 constitute a

new situation which requires reopening of their cases. That

aside, these documents detail police abuse of ethnic Alba-

nians in Macedonia, including murders and suspicious

deaths at the hands of the police. They recount an incident

of the Macedonian military shelling a town and beating

residents. The Selimis also present evidence of domestic

violence in Macedonia. The documents reveal the plight

of ethnic Albanian women and their exclusion from pub-

lic discourse, but, it seems, primarily at the hands of

Albanian society itself. The news reports detail an insur-

gency in early 2001 by ethnic Albanians seeking more voice

in the life of the country.

It is clear that the documents paint a picture of political

turmoil, civil strife, and many human rights abuses. But

they are abuses directed primarily toward people active in

the insurgency, an insurgency in which the Selimis were

not involved. There is nothing to support a claim that the

Selimis personally are the target of persecution. Their

claims for asylum come down to the fact that they are

ethnic Albanians and that as such they may suffer some

undeniably unpleasant consequences of being part of a

minority group in a country which, in 2001, was the site of

an insurgency, an insurgency by an ethnic group which

constitutes approximately 30 percent of the population. As

we have said some years ago in Sivaainkaran, 972 F.2d at

165:

[P]olitical turmoil alone does not permit the judiciary to

stretch the definition of “refugee” to cover sympathetic,

yet statutorily ineligible, asylum applicants. Immigra-

8 Nos. 02-1453 & 02-2923

tion policy is the clear purview of the legislative branch,

and Congress has adopted a policy of limited asylum

eligibility.

We continued by pointing out that “a more lenient and

compassionate policy would qualify the entire population of

many war-torn nations for asylum.” Here, it might qualify

30 percent of the population of Macedonia. We cannot find

that the Selimis have demonstrated a prima facie case of a

reasonable fear of future persecution requiring the Attorney

General to exercise his discretion to grant them asylum, nor

can we find it an abuse of discretion to deny the request to

reopen the case.

To be eligible for withholding of deportation, the Selimis

must shoulder a greater burden. They must demonstrate

that it is more likely than not they will face persecution

upon being returned to their home country. 8 C.F.R.

§ 208.16(b)(2). Ahmed v. Ashcroft, 348 F.3d 611 (7th Cir.

2003). But we have already determined that they do not

have a reasonable fear of future persecution. They have not

made out a prima facie case for withholding of deportation.

We also review denial of a request to reopen a case to

request protection under CAT for an abuse of discretion.

Mansour v. INS, 230 F.3d 902 (7th Cir. 2000). To establish

a prima facie case under CAT, the Selimis must show that

it is more likely than not that they would be tortured if they

were returned to Macedonia. 8 C.F.R. § 208.1(c)(2). Torture

is any

act by which severe pain or suffering, whether physical

or mental, is intentionally inflicted on a person for such

purposes as obtaining from him or her or a third person

information or a confession, punishing him or her for

any act he or she or a third person has committed or is

suspected of having committed, or intimidating or

coercing him or her or a third person, or for any reason

based on discrimination of any kind, when such pain or

Nos. 02-1453 & 02-2923 9

suffering is 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.

8 C.F.R. § 208.18(a)(1). This also is a more stringent

requirement than the requirements for asylum. Ahmed.

Given that their evidentiary materials do not establish a

prima facie case for persecution, the Selimis fall far short of

establishing a prima facie case that they will be tortured

upon their return to Macedonia.

The decision of the Board of Immigration Appeals is

AFFIRMED; the petition for review is DENIED.

DIANE P. WOOD, Circuit Judge, dissenting. As the

majority recognizes, the question before us is whether the

Board of Immigration Appeals abused its discretion when

it refused to reopen the asylum proceedings for the five

members of the Selimi family. It concedes that the Board’s

decisions on Mr. and Mrs. Selimis’ motions are “somewhat

muddled,” ante at 5, but that is the least of the flaws in

those decisions. The Board ignored pertinent facts about the

Selimis’ situation and important information in the record.

A decision based on such a weak foundation cannot with-

stand even the deferential review implied by the abuse of

discretion standard. I would send this case back to the

Board for a serious look at the Selimis’ case.

Under the governing regulations, asylum applicants have

an opportunity to file a motion to reopen if they wish to

offer evidence that is “material and was not available and

could not have been discovered or presented at [a] former

10 Nos. 02-1453 & 02-2923

hearing.” 8 C.F.R. 1003.2 (c)(1). In this case, Aisha Selimi

(along with her daughters) filed a motion to reopen in April

2001. Her husband Besem Selimi filed a similar motion in

June 2001. The Selimis requested reopening because an

armed conflict between the Macedonian government and

ethnic Albanian rebels had been underway since February

2001. The majority concedes, as it must, that the Selimis

had no crystal ball, and thus they could not have known

that conditions would degenerate in this way at the time of

their immigration proceedings in 1994 and 1995.

I have no quarrel with the proposition that the Board of

Immigration Appeals exercises broad discretion in deciding

whether to grant a motion to reopen. INS v. Abudu, 485

U.S. 94, 104 (1988). This discretion, however, is not abso-

lute. As this court has explained, the Board’s decision to

deny a motion to reopen need only be reasoned; it does not

have to be compelling or even convincing. Achacoso-Sanchez

v. INS, 779 F.2d 1260, 1266 (7th Cir. 1985). But we have

made it clear that the word “reasoned” means something.

Even though the Board does not have to “write an exegesis

on every contention,” it must at a minimum consider the

issues raised and “announce its decision in terms sufficient

to enable a reviewing court to perceive that it has heard

and thought and not merely reacted.” Mansour v. INS, 230

F.3d 902, 908 (7th Cir. 2000) (internal quotation marks

omitted). This deferential standard does not permit the

Board to act “without a rational explanation.” Nwaokolo v.

INS, 314 F.3d 303, 307 (7th Cir. 2002) (quoting Mansour,

230 F.3d at 907); Achacoso-Sanchez, 779 F.2d at 1265. Here,

we have no idea why the Board thought that the materially

changed country conditions in Macedonia in 2001 had no

bearing on the Selimis’ asylum applications; it was silent on

the point. For all that the record shows, it entirely failed to

consider the Selimis’ new evidence in reaching its decision

to deny relief.

Nos. 02-1453 & 02-2923 11

Although Macedonia avoided being drawn into the

Croatian and Bosnian conflicts between 1991-1995, its

location next to the southern Serbian province of Kosovo

and the close link between the ethnic Albanian populations

in Macedonia and Serbia made it virtually inevitable that

Macedonia would be affected by the 1998 ethnic conflict in

Kosovo. Indeed, the State Department Report for 2000

acknowledges a growing resentment between the Macedo-

nian police and ethnic Albanian citizens. See State Depart-

ment Country Report for 2000 at § 1.a. (describing the

deaths of two ethnic Albanians in policy custody). The ma-

jority seems to think that the Selimis’ decision to submit

the 2000 State Department report for the Board’s consider-

ation somehow undermines their claims surrounding the

events in 2001. See ante at 7. But the 2000 report provides

important context for what happened next in Macedonia, in

early 2001; taken together, the two reports show what a

significant turn for the worse took place.

Tensions in Macedonia boiled over in early 2001, when

the emergence of an ethnic Albanian insurgent group

known as the National Liberation Army (NLA) led to

months of armed conflict between government forces and

NLA rebels. Most of this fighting took place in NLA strong-

holds located in northwestern Macedonia, a region border-

ing the Selimis’ hometown of Kicevo. The record indicates

that when the fighting was at its heaviest, between Febru-

ary and August 2001, there were credible reports of serious

human rights violations committed by government forces

against ethnic Albanian civilians. Those atrocities were not

limited to NLA insurgents and pro-Albanian activists, as

the majority suggests. Besem’s affidavit in support of his

motion to reopen explained that he feared torture by

Macedonian forces who were “taking ethnic Albanian males

who are not supportive of the rebels to police stations,

beating them until the men ‘confess’ about their participa-

tion in the National Liberation Army or to extract informa-

12 Nos. 02-1453 & 02-2923

tion about the rebels.” Besem A.R. at 18. He alleged that he

had “every reason to fear that . . . as an ethnic Albanian

male, [he would] be subject to this type of torture to extract

information . . . .” Id. The State Department Country Report

for 2001 confirms that Besem had good reason to be con-

cerned. It states that during the conflict, “police beatings of

ethnic-Albanian males were common and frequently were

conducted with implements such as wooden bats, batons,

iron bars, and steel cables; such beatings occasionally

resulted in the death of victims. Police forced detainees to

sign confessions under torture implicating themselves and

others in NLA-related activities.” State Department

Country Report for 2001 at § 1.c. The report does not

indicate that this treatment was directed only at Albanian

rebels and activists. To the contrary, it describes numerous

incidents of abuse targeted at ethnic Albanian civilians

exactly like the Selimis. It was on the basis of these condi-

tions that the Selimis filed their motions to reopen in April

and June 2001.

As I have already noted, the Board gave no indication

that it considered these circumstances. With respect to

Besem’s motion to reopen, the Board denied relief be-

cause Besem “was never arrested, detained, or otherwise

bothered by the authorities in Macedonia except on one

occasion his house was searched for an unknown reason.

The applicant has visited Macedonia in the past with no

adverse consequences.” That is a breathtakingly unrespon-

sive comment in the face of a changed circumstances peti-

tion. Every one of the events the Board mentions occurred

long before 2001; they are wholly irrelevant to an analysis

of changed country conditions caused by the 2001 armed

conflict between government and NLA forces. In Aisha’s

case, the Board found that she had failed to make a prima

facie case for relief because the evidence simply showed that

“conditions in Macedonia and surrounding areas are

certainly volatile and subject to civil strife.” Unlike the

Nos. 02-1453 & 02-2923 13

State Department, the Board seems not to have realized

that what occurred in 2001 was far more severe than mere

civil unrest. This conflict pitted armed minority rebels

against government-backed forces, with ethnic Albanian

civilians caught in the crossfire.

The Board did not offer even the outline of a reasoned ex-

planation for why the actual circumstances in Macedonia

did not justify permitting the Selimis to reopen their

petition. In my opinion, this failure requires us to vacate

the Board’s decision. See Nwaokolo, 314 F.3d at

310 (finding that the Board had failed to indicate that it

had considered all of the material facts and circumstances).

Furthermore, the Board’s lack of consideration of the

changed country conditions fatally undermines its conclu-

sion that Besem and Aisha cannot make a prima facie

showing for asylum relief. The Selimis presented evidence

to show that the heaviest fighting occurred near their

village. Had the Selimis lived in southern or eastern

Macedonia, for example, their claims may have been

weaker. But maybe not: the record further suggests that

ordinary ethnic Albanian civilians may have been subject to

abuses as government forces went after NLA rebels. I note

that at oral argument the Selimis’ attorney stated that

when she took the family to immigration officials for

removal on April 9, 2001, she was informed that all depor-

tations to Macedonia were on hold as a result of the fight-

ing. On remand, the Board would have to decide whether

the Selimis have demonstrated a well-founded fear of future

persecution in light of these and other facts describing the

situation in Macedonia during 2001.

The majority hints (ante at 7) that it is concerned about

a floodgates phenomenon: if the Selimis are entitled to

asylum, why would the rest of the ethnic Albanians in

Macedonia (some 30% of the population) not also qualify?

The answer, I believe, is that these cases must be evaluated

one at a time, in accordance with the criteria for asylum

14 Nos. 02-1453 & 02-2923

that Congress has established. In fact, despite the upheav-

als in that country, it appears that only a trickle of claims

have been presented. Macedonians filed 111 asylum

applications in 2001 and 76 applications in 2002, and there

is no reason to believe that all of these applicants were

ethnic Albanians. See IMMIGRATION AND NATURALIZATION

SERVICE, DEPARTMENT OF JUSTICE, 2001 STATISTICAL

YEARBOOK OF THE IMMIGRATION AND NATURALIZATION

SERVICE 102 (2003), available at http://uscis.gov/graphics/

shared/aboutus/statistics/Yearbook2001.pdf; OFFICE OF

IMMIGRATION STATISTICS, DEPARTMENT OF HOMELAND

SECURITY, 2002 YEARBOOK OF IMMIGRATION STATISTICS

29 (2003), available at http://uscis.gov/graphics/shared/

aboutus/statistics/Yearbook2002.pdf. These filings represent

0.16%, or less than two-tenths of one percent, of all asylum

cases filed in this period. Id. Many people are attached to

their homes and would not leave no matter how bad things

got; others do not have the resources to leave their country;

and still others try and fail before the authorities in the

United States and other destinations. The Board, and we,

must decide the Selimis’ case in accordance with the law. If

Congress decides that the United States has become too

welcoming for asylum applicants, it is free to make what-

ever changes it desires, legislating against the backdrop of

the international obligations of the United States in this

area. See Murray v. The Charming Betsy, 2 Cranch (6 U.S.)

64, 118 (1804).

I would remand this case for the Board to consider more

carefully the Selimis’ claim that they are entitled to have

their applications for asylum reopened in light of changed

country circumstances. We have explained that, “[a]s a non-

factfinding body (and without foreign policy expertise), we

are ill-equipped to determine whether significant changes

may have occurred . . . and the degree to which those

changes may affect [an] application for asylum.”

Sivaainkaran v. INS, 972 F.2d 161, 166 (7th Cir. 1992).

Nos. 02-1453 & 02-2923 15

Whatever conclusion the Board might ultimately reach, it

first must consider the evidence presented by the Selimis

describing the events that occurred in 2001. Because the

Board did not do so, I respectfully dissent from the decision

denying their petition for review.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-10-04