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