In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1932
S HERBANO M OOSA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A076 775 172
A RGUED S EPTEMBER 23, 2010—D ECIDED M AY 5, 2011
Before C UDAHY, F LAUM, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Sherbano Moosa, a citizen of
Pakistan, entered the United States on a visitor’s visa
in 1995 and remained after her visa expired. Moosa
was eventually ordered removed, but she apparently
ignored that command and remained in the country.
Nearly seven years later, Moosa filed a motion to reopen
her proceedings with the Board of Immigration Appeals
(“Board”). In her motion, Moosa argued that “changed
2 No. 10-1932
country conditions” in Pakistan made her eligible for
asylum and warranted reopening her case. Moosa also
asked the Board to reopen her case on its own motion.
Finding insufficient evidence of changed circumstances
and a failure to present a prima facie case for asylum,
the Board denied Moosa’s motion and declined to
reopen the proceedings on its own. Moosa now petitions
this court for review of the Board’s decision. She offers
three grounds for relief: first, that the Board abused its
discretion by denying her motion in a manner that ex-
ceeded its authority; second, that it used procedures
that fell below constitutional due process standards;
and third, that it committed legal error as it analyzed
her evidence of changed conditions. None of these is
enough to override the Board’s broad authority here,
however, and so we deny the petition for review.
I
Moosa legally entered the United States on a 6-month
non-immigrant visa in June 1995, but, as we noted, she
overstayed that term. Seeking to become a lawful perma-
nent resident, but without much more than this inten-
tion, Moosa applied for an adjustment of status to that
of permanent resident three years later. Moosa’s applica-
tion, however, offered no reason that the governing laws
would recognize for granting this relief, and not sur-
prisingly, her application was denied. See 8 U.S.C. §§ 1255-
58. The legacy Immigration and Naturalization Service
instituted removal proceedings against Moosa in 2000.
No. 10-1932 3
At her removal hearing before an Immigration Judge
(“IJ”), Moosa’s lawyer advised her to invoke her Fifth
Amendment right to remain silent. Consistent with
this questionable counsel, see INS v. Lopez-Mendoza, 468
U.S. 1032, 1038-39 (1984) (holding that a “deportation
proceeding is a purely civil action,” not a “criminal”
proceeding), Moosa refused to answer even the IJ’s
most basic questions, covering such topics as her
country of origin, her initial reasons for visiting the
United States, her reasons for pursuing permanent resi-
dency, and her marital status. Stymied, the IJ turned
to the information in Moosa’s adjustment of status ap-
plication; this made her removability obvious. Indeed,
Moosa’s attorney spoke up on one point and asserted
that Moosa had no fear of returning to Pakistan. The
IJ entered a removal order, and—on the basis of the law-
yer’s comment—noted that Moosa had no desire to seek
other relief, such as asylum, withholding of removal, or
a claim under Article 3 of the U.N. Convention Against
Torture. The Board affirmed without opinion in 2002.
Like many others before her, Moosa remained in the
country despite the removal order. See, e.g., Kucana v.
Holder, 130 S. Ct. 827, 832 (2010); Liang v. Holder, 626
F.3d 983, 984 (7th Cir. 2010); Cheng Chen v. Gonzales,
498 F.3d 758, 759 (7th Cir. 2007). Almost seven years
later, and represented by new counsel, Moosa filed a
motion to reopen her proceedings in 2009. Such
a motion ordinarily must be filed within 90 days, but
Moosa argued that changed circumstances in Pakistan
should exempt her from the time requirement. See
8 U.S.C. § 1229a(c)(7). To succeed, Moosa needed to point
4 No. 10-1932
to evidence materially related to her asylum applica-
tion and unavailable or undiscoverable at the time of
her initial hearing in 2001. Id. And, to be eligible for
asylum, Moosa would ultimately need to establish her
status as a “refugee” in Pakistan, which requires demon-
strating a well-founded fear of future persecution at-
tributable to her “race, religion, nationality, member-
ship in a particular social group, or political opinion.”
8 U.S.C. § 1158(b)(1)(B).
Moosa argued that if forced to return to Pakistan she
faced a serious risk of persecution on account of her
membership in the social group of “single Westernized
women.” Moosa remains a committed Muslim, but she
maintains that, after 15 years of continuous residency
in the United States, she has come to identify with the
social and political beliefs of Western women. She holds
pro-democratic values; she believes herself entitled to
equal treatment with men; and she is accustomed to
exercising broad personal choice. Citing an influx of
Taliban forces in the northwest region of Pakistan near
the Swat Valley in 2009 (an area approximately 900 miles
from Moosa’s home)—and an attendant spread of strict
Sharia law there—Moosa argued that mistreatment of
women and other persons with Western values has esca-
lated. Moosa further claimed that women like her
are frequently harmed by religious leaders in the
Taliban, who force women to adhere to different social
roles than men, afford women fewer rights, and subject
them to physical violence if these women do not ade-
quately comply with the tenets of Islam as understood
in Sharia law or are perceived as opposing it. Moosa
No. 10-1932 5
believes that her time in the United States has made
her Westernization and opposition to certain tenets of
Islam either obvious or easily imputed to her, and thus
that she has a legitimate fear of persecution based on
her social group.
For support, Moosa pointed to a variety of sources:
news articles from 2008 and 2009 describing the rise of
the Taliban and spread of Sharia law in and around
the Swat Valley; reports from human rights groups de-
scribing conditions faced generally by women in
Pakistan (which are especially tough for those in rural
regions); a U.S. Department of State report from 2001 de-
scribing the Taliban’s “war against women” in Afghani-
stan; and the State Department’s 2008 human rights
report and its July 2009 travel warning for Pakistan.
Moosa also submitted an affidavit personally describing
her fear of persecution.
In an opinion signed by one member, the Board denied
Moosa’s motion, citing two grounds. First, it found that
Moosa failed to show changed circumstances because
the record was barren of any material, either in her
current motion or the administrative record generally,
that would establish country conditions in Pakistan at
the time of her 2001 hearing. Second, the Board found
that Moosa could not make out a prima facie case
for asylum because the evidence she submitted was
too speculative to demonstrate a well-founded fear of
persecution. In explaining its second finding, the Board
discussed the substance of Moosa’s evidence but noted
that Moosa failed to point to “specific passages” in
6 No. 10-1932
her numerous exhibits “that actually corroborate[] her
sweeping assertion regarding the treatment of single
women in Pakistan.” The Board did not mention Moosa’s
affidavit. It ultimately concluded that Moosa’s motion
did not demonstrate changed circumstances and denied
her request for asylum as untimely. Finding no excep-
tional circumstances, and again pointing to Moosa’s
failure to make out a prima facie showing for asylum, the
Board also denied Moosa’s request to reopen her pro-
ceedings as a matter of its discretion. This petition fol-
lowed.
II
Before this court, Moosa argues that the Board abused
its discretion in denying her motion to reopen. But in
light of the Board’s broad discretion to deny a motion to
reopen, see Kucana, 130 S. Ct. at 834, we will not reverse
the Board’s decision “unless it was made without a
rational explanation, inexplicably departed from estab-
lished policies, or rested on an impermissible basis such
as invidious discrimination against a particular race or
group.” Mansour v. INS, 230 F.3d 902, 907 (7th Cir. 2000)
(internal quotation marks and citations omitted).
A
Moosa first argues that the Board exceeded its authority
when it looked beyond the question whether she could
show changed circumstances in Pakistan and took a peek
at the merits of her case for asylum. In Moosa’s view,
No. 10-1932 7
the Board was not permitted to allow any spillover from
one issue to the other; instead, she insists, it had to keep
them strictly separated and consider only whether the
evidence she submitted is “based on changed country
conditions” in Pakistan, and whether that evidence
is “material and was not available and would not
have been discovered or presented at the previous pro-
ceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8 C.F.R.
§ 1003.2(c)(3)(ii). She notes in this connection that the
requirements for demonstrating eligibility for asylum
fall under a different statutory section, 8 U.S.C. § 1158(b).
Moosa’s theory makes no sense as a matter of sound
agency procedure, and (unfortunately for Moosa) it is
also at direct odds with the law. After analyzing
the evidence presented to it and providing a rational ex-
planation, the Board may deny a motion to reopen by
finding that “the movant has not established a prima
facie case for the underlying substantive relief sought.”
INS v. Abudu, 485 U.S. 94, 104 (1988); accord INS v. Doherty,
502 U.S. 314, 323 (1992); Mansour, 230 F.3d at 907. In
fact, the regulations on which Moosa relies directly
refute her position: “The Board has discretion to deny
a motion to reopen even if the party moving has made
out a prima facie case for relief.” 8 C.F.R. § 1003.2(a).
This is an entirely reasonable way to run things. The
Board is required to evaluate whether the alleged
changed circumstances are “material” to an applicant’s
request for asylum. This in turn invites the Board to
determine whether these changes provide the applicant
with a well-founded fear of persecution. We cannot
8 No. 10-1932
imagine the Board’s effectively performing that func-
tion, or providing a reasoned basis for why the
asserted changed circumstances alter (or fail to alter) its
assessment of an asylum applicant’s claim, without at
least the option of looking at whether there is a
plausible asylum claim at all. Cf. Zhu v. Holder, 622 F.3d
87, 92 (1st Cir. 2010) (noting that an applicant’s failure
to establish a “credible claim for asylum” provided a
basis for determining that “the alleged changes in country
conditions were immaterial”). It is more likely that it
would be an abuse of discretion for the Board to fail to
explain how the evidence of changed circumstances
relates (or fails to relate) to an asylum claim. See Nken v.
Holder, 585 F.3d 818, 822-23 (4th Cir. 2009); Gebreeyesus v.
Gonzales, 482 F.3d 952, 954-56 (7th Cir. 2007). Accordingly,
when the Board’s decision is supported by a rational
explanation, we have found no abuse of discretion when
it has looked at a movant’s prima facie case for asylum
in evaluating her motion to reopen. See, e.g., Liang, 626
F.3d at 991; Awad v. Ashcroft, 328 F.3d 336, 340-42 (7th
Cir. 2003). Doing so here was not beyond the Board’s
authority or an abuse of discretion.
B
Moosa next argues that the Board denied her constitu-
tional right to due process when it dismissed her motion
to reopen. In Moosa’s view, the Board deprived her of a
meaningful opportunity to be heard by inadequately
analyzing the evidence she included. Aside from contra-
dicting her prior claim that the Board may not analyze
No. 10-1932 9
this evidence at all, Moosa’s due process argument,
which we review de novo, is a non-starter. For support,
Moosa cites cases that discuss the right to due process
during a removal proceeding. E.g., Floroiu v. Gonzales,
481 F.3d 970, 974 (7th Cir. 2007); Kerciku v. INS, 314 F.3d
913, 917-19 (7th Cir. 2003) (per curiam). Moosa is not
saying, however, that her initial proceedings violated
her due process rights. She challenges only the Board’s
discretionary decision to deny her motion to reopen
those proceedings. Doherty, 502 U.S. at 323; 8 C.F.R.
§ 1003.2(a). But, because Moosa has no liberty or
property interest in obtaining discretionary relief,
Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008), her
“right to due process does not extend to proceedings that
provide only . . . such relief.” Hamdan v. Gonzales, 425
F.3d 1051, 1061 (7th Cir. 2005).
C
For her final argument, Moosa re-brands her com-
plaint that the Board failed adequately to analyze the
evidence as a claim of legal error. See Iglesias, 540 F.3d at
531. Though the Board’s discretion to deny a motion to
reopen is broad, that discretion is not unlimited; its
decisions must be supported by a reasoned explanation
that correctly reflects the law. Such an explanation is
impossible if the Board “completely ignores the evidence
that a petitioner presents,” id., and we have consistently
found an abuse of discretion where the Board ignores
or misapplies an applicant’s evidence. See, e.g., Joseph v.
Holder, 579 F.3d 827, 828, 830 (7th Cir. 2009) (discussing
10 No. 10-1932
prior remand); Kebe v. Gonzales, 473 F.3d 855, 857-58 (7th
Cir. 2007) (collecting cases).
As we noted above, the Board denied Moosa’s motion
to reopen on two separate grounds: the lack of evidence
of “changed” circumstances, and the failure to support
a prima facie case for asylum.
The Board’s reasoning on the first ground does not
mention the rather unusual posture of this case, which
presents a request to reopen a proceeding for purposes
of seeking asylum where the earlier proceeding did not
involve asylum (and thus, understandably, did not
develop facts pertinent to such a claim). The Board noted
that Moosa’s motion included information related to
current conditions in Pakistan but was faulty because it
included no description of country conditions at the
time of her initial hearing in 2001. The Board reasoned
that without this prior background it could not derive a
baseline for comparing circumstances to determine
whether conditions had changed. Moosa responds that
the evidence she submitted described events which took
place in 2008 and 2009. By definition, these events
could not have taken place before her initial hearing. We
have no quarrel with Moosa’s assertion that an applicant
need not have a prior asylum application on the books
to provide the Board with information of “changed”
circumstances. But this does not help her here. Though
she could not rely upon documents available at the time
of her 2001 hearing, nothing prevented Moosa from
supporting her motion to reopen with country reports,
affidavits, or other information describing conditions in
No. 10-1932 11
Pakistan in 2001 that became available after the hearing.
If the government in power in 2009 has a policy of perse-
cuting a certain group, for example, one can point out
when that group took over. If it was some time after
2001, that would be evidence supporting a finding of
changed circumstances.
We readily acknowledge that there is nothing wrong
in principle with circumstantial evidence of changed
circumstances. The problem for Moosa is that her cir-
cumstantial evidence was incomplete. She submitted a
2009 State Department travel warning that militant
groups promised to “step up attacks against both civilian
and government targets in Pakistan’s cities,” and that
reported on events transpiring “in the last 14 months.” She
also submitted a 2008 State Department human rights
report that includes broader background information
on changes in how Pakistani women have been treated
over the past decade; in 2006, for example, the govern-
ment passed the Women’s Protection Act, which pre-
vented “Koranic punishments” for violations of Sharia
law “including amputation and death by stoning.” But
this evidence still fails to provide a baseline for compari-
son. Something like a State Department report from
2002 would have qualified as evidence that was unavail-
able in 2001, yet it could have furnished a basis for
finding that matters were changing for the worse.
Even if we were to find that the Board gave insuffi-
cient weight to the circumstantial evidence Moosa did
present, we would still have to reject Moosa’s petition.
The Board’s alternate ground for decision lies com-
12 No. 10-1932
fortably within its discretion. In finding that Moosa
failed to present a prima facie case for asylum, the Board
pointed out that she submitted evidence only of broad
social strife in Pakistan—that is, the rise of the Taliban
and the adoption of Sharia law—which occurred nearly
900 miles away from her hometown of Karachi. On the
basis of these facts, the Board found that Moosa’s
asserted fear of persecution on the basis of being a single
Westernized woman in Pakistan was too speculative to
warrant relief.
The reasons cited by the Board and its conclusions are
consistent with our repeated reminder that “general
conditions of hardship that affect entire populations . . .
are not persecution.” Ahmed v. Gonzales, 467 F.3d 669,
673 (7th Cir. 2006); see also Sharif v. INS, 87 F.3d 932,
935 (7th Cir. 1996) (“[H]arsh conditions shared by an
entire population do not amount to persecution. Nor
does punishment which results from violating a
country’s laws of general applicability, absent some
showing that the punishment is being administered for
a nefarious purpose.”). On a different, more partic-
ularized record, the Board may well come to the oppo-
site conclusion. We are obviously not saying that genu-
ine problems do not exist for women like Moosa. But
the responsibility for drawing lines here lies primarily
with the Board, which can act only on the facts put
before it.
We note finally that in reaching its conclusion re-
garding her prima facie case for asylum, the Board did
not discuss Moosa’s affidavit. It complained that Moosa
No. 10-1932 13
did not refer to “specific passages” that might corroborate
her asylum claim. If the Board had, as Moosa alleges,
ignored important parts of her evidence, we might be
concerned. But our review satisfies us that this is not a
case where the Board completely ignored the substance
of Moosa’s argument regarding her eligibility for asy-
lum. The fact that it did not single out her affidavit
for discussion is not enough to undermine its decision.
See, e.g., Kucana v. Holder, 603 F.3d 394, 395-97 (7th Cir.
2010); Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005)
(per curiam).
Accordingly, Moosa’s petition for review is D ENIED.
5-5-11