In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1103
GZIME ZEQIRI and ALBULEN ZEQIRI,
Petitioners,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A79-417-107/108
____________
ARGUED NOVEMBER 29, 2007—DECIDED JUNE 3, 2008
____________
Before CUDAHY, POSNER, and EVANS, Circuit Judges.
CUDAHY, Circuit Judge. Gzime Zeqiri and her eleven-
year-old son, Albulen, arrived at Miami International
Airport on September 8, 2001 carrying false Slovenian
passports. They were, however, actually citizens of Mace-
donia. They had recently fled the ethnic conflict that
consumed much of that country during the spring
and summer of 2001. They were admitted into the
United States under the Visa Waiver Program but failed
to file their asylum applications within a year of their
arrival, as required by the Immigration and Naturaliza-
2 No. 07-1103
tion Act (INA) and the regulations promulgated under
it. The Zeqiris attempted to persuade an immigration
judge that “extraordinary circumstances” excused their
late filing but the judge dismissed their applications as
untimely and rejected their claims for withholding of
removal and relief under the Convention Against Torture.
The Board of Immigration Appeals (Board) dismissed
their appeal in a brief order that affirmed and adopted
the findings of the immigration judge.
Zeqiri now appeals from the Board’s decision.1 We
dismiss much of her petition for review because she
raises issues regarding the timeliness of her asylum
application that she never raised before the Board and
over which, in any event, we lack jurisdiction. Because
she failed to exhaust her administrative remedies with
respect to these issues, they are deemed forfeited. We
deny the rest of her petition because we believe that the
Board’s decisions were supported by sufficient evidence.
I.
Gzime Zeqiri and her son are natives of Macedonia.
Zeqiri was born in the town of Zhutova, which lies in
the northwestern corner of Macedonia, close to the border
with Albania and Kosovo. She lived at her father’s house
and she worked on the family farm. The Zeqiris are ethnic
Albanians and thus part of an ethnic minority in Macedo-
nia; much of Macedonia’s ethnic Albanian population
lives in northwestern Macedonia.
1
Albulen Zeqiri premised his right to relief on his mother’s
application. See 8 U.S.C. § 1158(b)(3)(A). For simplicity’s
sake, we refer only to Gzime Zeqiri’s application.
No. 07-1103 3
In early 2001, a violent conflict broke out between an
ethnic Albanian insurgent group known as the National
Liberation Army (NLA) and Macedonian military and
police forces. The conflict began in February 2001 when
the NLA launched an insurgency near the Kosovo
border; it spread through northern and western Macedo-
nia, often proceeding village by village. The conflict peaked
during late spring and early summer before a peace
agreement was reached in the fall. Allegations of
serious human rights abuses have been leveled on both
sides of the conflict. Human rights groups report that
villages under NLA control were shelled indiscrim-
inately by the Macedonian military. The government
denies those charges and accuses the NLA of using
civilian populations as human shields. In either case, it is
clear that innocent civilians were caught in the cross-fire.
Over 170,000 people were displaced from their homes
by the fighting. Many never returned.
Zhutova, where Zeqiri lived, is a small town; the
nearest city of any size is Tetova. Zeqiri’s sister was
a faculty member at the University of Tetova (the coun-
try’s most prominent Albanian-language university)
and Zeqiri would often visit her there. In February 2001,
Zeqiri was traveling on a train from Zhutova to Tetova
when a grenade exploded in another car; although the
explosion was powerful, it did not derail the train and
Zeqiri did not learn about it until after she disembarked.
She claims that the bomb was placed by Macedonian
security forces to kill ethnic Albanians.
Apparently, the University of Tetova was perceived
as overly sympathetic to the ethnic Albanian cause. In
March 2001, Macedonian security forces stormed a uni-
versity building and began to forceably evict faculty
4 No. 07-1103
members. Zeqiri and her sister were inside the building
at the time. They were expelled from the building and
Zeqiri found herself swept up in a large student protest
that had gathered around the university. Macedonian
security forces were trying to disperse the crowd and
began rounding up students. Zeqiri tried to explain that
she was not a student but was arrested anyway, along
with her sister. Zeqiri was handcuffed and taken to a
local jail, where she was held for two days. Zeqiri testified
that she was intimidated and “psychologically abused”
while in custody. Before she was released, the guards
threatened to “strangle” her if she was caught helping
the students in the future. Zeqiri’s sister was roughed
up a bit by security forces, although “not too bad[ly],” but
Zeqiri was not beaten or physically abused while in jail.
There were, however, reports that students had died
while in police custody.
Meanwhile, Zhutova had become engulfed in the con-
flict between the NLA and Macedonian security forces.
Zeqiri’s village, like many others, was often surrounded
by Macedonian forces. On July 12, 2001, Zeqiri and her
family, fearing for their safety, fled their home and crossed
the border into Albania, along with many of their neigh-
bors. She later learned that her house had been burned to
the ground. Her father gave her money to purchase false
Slovenian passports, and Zeqiri bought plane tickets for
the United States.
The Zeqiris arrived at Miami International Airport on
September 8, 2001. They were immediately questioned
by Immigration and Naturalization Service (INS) officials.
Although they were carrying fake passports, they ex-
pressed fear at the prospect of returning to Macedonia,
and so INS officials allowed Zeqiri entry under the Visa
No. 07-1103 5
Waiver Program. See 8 C.F.R. § 217.4(a)(1). An immigra-
tion officer also conducted a short interview of Zeqiri,
which was conducted in her native tongue. Zeqiri was
asked if she was a member of any political organizations.
She said that she was “Islamic” but denied being a mem-
ber of any political group. She was also asked whether
she had ever been arrested in the past. She answered “no.”
A transcript of the interview was taken; Zeqiri checked
it for accuracy and signed the bottom of the page. INS
officials then placed the Zeqiris into “asylum only pro-
ceedings” and served her with a Notice of Referral
to Immigration Judge (Form I-863), which specifically
noted her request for asylum. Zeqiri was reminded that
she had to apply for asylum within one year. See 8 U.S.C.
§ 1158(a)(2)(B). Zeqiri and her son were then released.
On December 10, 2001, Zeqiri was notified that she
had a master calender hearing before an immigration
judge on March 22, 2002. Zeqiri appeared in court on that
date, but her hearing was continued until September 20,
2002, at which time the immigration judge told her that
she had fifteen days to file an application. (The immigra-
tion judge apparently did not notice that the application
was already late.) On October 3, 2002, the Zeqiris filed
their applications for asylum.
On August 1, 2005, the immigration judge denied the
petitioners’ applications for relief. The judge found
that Zeqiri’s application for asylum was untimely be-
cause Zeqiri had arrived in the United States on Septem-
ber 8, 2001 but did not file an asylum application until
October 3, 2002. Zeqiri argued that “extraordinary cir-
cumstances” justified her delay in filing. She claimed
that she could not have filed on time because she did not
speak English, she was unfamiliar with the legal system,
6 No. 07-1103
and she had no family in the United States. She also
claimed that the “shock and trauma” of her recent experi-
ences in Macedonia rendered her incapable of meeting
the deadline. The immigration judge rejected these argu-
ments. The judge noted that Zeqiri had advantages that
other applicants often do not have: She had the aid of
an interpreter at the airport, she had a friend who lived
in the United States and she was specifically warned
about the one-year deadline. The immigration judge also
denied her other requests for withholding of removal;
he did not credit the story regarding her arrest at the
University of Tetova because it contradicted the answers
she gave to INS officials at the Miami airport. On December
15, 2006, the Board dismissed Zeqiri’s appeal in a brief
order.
II.
We first address the dismissal of Zeqiri’s asylum ap-
plication as untimely. To qualify for a discretionary
grant of asylum, an applicant must demonstrate “by
clear and convincing evidence” that the application was
filed within one year of his or her entry into the United
States. See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 208.4(a). It is
undisputed that Zeqiri’s application was not filed within
one year of her arrival in the United States. Late applica-
tions may be accepted, however, if the applicant can
show “either the existence of changed circumstances
which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the
delay in filing an application within the period.” See 8
U.S.C. § 1158(a)(2)(D). Such extenuating circumstances
must be proved “to the satisfaction of the Attorney Gen-
eral.” 8 U.S.C. § 1158(a)(2)(D).
No. 07-1103 7
Under the REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 231, 310-11 (2005), our jurisdiction to review the
timeliness of asylum applications is limited to the
review of “constitutional claims or questions of law.” 8
U.S.C. § 1252(a)(2)(D). We review neither the factual
findings nor the discretionary determinations made by
the immigration judge or by the Board. See Vasile v. Gonza-
les, 417 F.3d 766, 768 (7th Cir. 2005). Put simply, “questions
of law” are “situations in which a case comes out one
way if the Constitution or statute means one thing, and
the other way if it means something different.” Viracacha
v. Mukasey, 518 F.3d 511, 515 (7th Cir. 2008).
Zeqiri is no doubt conscious of the restrictions placed
on our review by § 1252(d)(1), for she has abandoned
the argument she made before the immigration judge
and the Board that “extraordinary circumstances” pre-
vented her from filing on time. This should come as
no surprise, because a determination whether “extraordi-
nary circumstances” or “changed circumstances” exist
typically involves factual determinations that we do not
review. See Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th
Cir. 2007); Vasile, 417 F.3d at 768-69. Indeed, we have
even suggested that such determinations may be commit-
ted to agency discretion by law. See Vasile, 417 F.3d at 768-
69. Thus, any argument along those lines would have
been futile.
Instead, Zeqiri presses an entirely new set of arguments,
all of which are carefully framed as questions of law.
She argues, for example, that the one-year filing deadline
for asylum applications does not apply in proceedings
under 8 U.S.C. § 1223. Alternately, she also argues that
the one-year time period should have been tolled from
September 9, 2001 until November 2001, when the I-863
8 No. 07-1103
form was finally filed with the immigration court. Finally,
and again in the alternative, she argues that her oral
request for asylum at the airport and its memorialization
in the I-863 form was enough to satisfy the statutory
requirements of 8 U.S.C. § 1158(a)(2)(B). These are, of
course, all questions of law.
But Zeqiri did not raise any of these arguments before the
immigration judge. They do not appear in her notice of
appeal to the Board or in the brief in support of her appeal.
Under the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110
Stat. 3009-546 (1996), a failure to exhaust administrative
remedies generally precludes our review. See 8 U.S.C.
§ 1252(d)(1). Zeqiri claims that the scope of this exhaus-
tion requirement is extremely narrow. In essence, she
argues that it only requires her to appeal the immigra-
tion judge’s decision to the Board and obtain a final,
adverse decision before resorting to federal court. We
believe that it requires more than that. Courts have
almost universally interpreted § 1252(d)(1) to require that
specific legal issues be presented to the Board for its
consideration. See Ramani v. Ashcroft, 378 F.3d 554, 559
(6th Cir. 2004); Theodoropoulos v. INS, 358 F.3d 162, 171
(2d Cir. 2004); Marrero v. INS, 990 F.2d 772, 779 (3d Cir.
1993); Alvarez-Flores v. INS, 909 F.2d 1, 8 (1st Cir. 1990);
Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990); Vargas
v. INS, 831 F.2d 906, 907-08 (9th Cir. 1987); Youssefinia v.
INS, 784 F.2d 1254, 1258 (5th Cir. 1986).
This rule makes perfect sense. If the Board is to serve
its function as a primary interpreter of the INA, it must be
given the first opportunity to pass upon questions of
law presented by the Act. See INS v. Aguirre-Aguirre, 526
U.S. 415, 424-25, 119 S. Ct. 1439, 143 L. Ed. 2d 590 (1999);
No. 07-1103 9
INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S. Ct. 1207,
94 L. Ed. 2d 434 (1987). Congress, of course, delegated the
broad authority to implement and enforce federal im-
migration law to the Attorney General. See U.S.C.
§ 1103(g)(2) (2006). The Attorney General has, in turn,
delegated the power to interpret the INA to the Board. See
8 C.F.R. § 1003.1(d)(1). The Board’s special expertise in
interpreting the INA is particularly helpful given the
Act’s intricate and often Byzantine structure. See McCarthy
v. Madigan, 503 U.S. 140, 145 112 S. Ct. 1081, 117 L. Ed. 2d
291 (1992). Zeqiri was required to give the Board an
opportunity to pass upon the particular legal arguments
and contentions that she now raises. See Korsunskiy v.
Gonzales, 461 F.3d 847, 849 (7th Cir. 2006); Abdelqadar v.
Gonzales, 413 F.3d 668, 670-71 (7th Cir. 2005). Because
Zeqiri did not exhaust her remedies, her newly raised
arguments are deemed waived and this portion of
her petition is dismissed for want of jurisdiction.2 See
8 U.S.C. § 1252(d)(1).
III.
Despite the untimeliness of her asylum application,
Zeqiri is still eligible for withholding of removal. See 8
C.F.R. § 208.3(b). We must bear in mind, however, that
the Board rejected Zeqiri’s argument that she was eligible
2
The failure to exhaust is also fatal to Zeqiri’s constitutional
claim. Although petitioners are not required to raise constitu-
tional claims that the Board is powerless to address, see Feto
v. Gonzales, 433 F.3d 907, 912 (7th Cir. 2006), they are required
to raise constitutional claims based on “procedural failings”
that the Board could have remedied, see Pjetri, 468 F.3d at 481.
10 No. 07-1103
for withholding. Thus, Zeqiri “must show that ‘the evi-
dence not only supports that conclusion, but compels
it.’ ” See 8 U.S.C. § 1252(b)(4)(B).
An alien may not be removed from the United States “if
the Attorney General decides that the alien’s life or free-
dom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a par-
ticular social group, or political opinion.” 8 U.S.C.
1231(b)(3)(A). The standard for withholding of removal
is higher than the standard for a grant of asylum. See
Firmansjah v. Gonzales, 424 F.3d 598, 604-05 (7th Cir. 2005).
To succeed on a withholding of removal claim, an
alien “must demonstrate a ‘clear probability’ that he or
she will face persecution in the country to which he or
she will be removed.” Id. at 605.
Typically, the applicant attempts to establish that she
was subject to past persecution; from this fact, one may
presume that she will be subject to future prosecution. See
BinRashed v. Gonzales, 502 F.3d 666, 670-71 (7th Cir. 2007).
Persecution entails “punishment or the infliction of
harm for political, religious, or other reasons that this
country does not recognize as legitimate.” DeSouza v. INS,
999 F.2d 1156, 1158 (7th Cir. 1993). Not every hardship
will suffice; there must be a showing that an alien was
“singled out” or otherwise “personally” persecuted. See
Tamas-Mercea v. Reno, 222 F.3d 417, 427 (7th Cir. 2000);
Sayaxing, 179 F.3d at 520; see also 8 C.F.R. § 208.13(b)(2)(i).
Thus, “conditions of political upheaval which affect the
populace as a whole or in large part are generally insuffi-
cient to establish eligibility for asylum.” Gonzalez v. INS,
77 F.3d 1015, 1021 (7th Cir. 1996); accord Ahmed v. Gonzales,
467 F.3d 669, 673 (7th Cir. 2006); Koval v. Gonzales, 418
F.3d 798, 805-06 (7th Cir. 2005); Sivaainkaran v. INS, 972
No. 07-1103 11
F.2d 161 (7th Cir. 2004). The INA “does not insure aliens
against unrest or civil war in their homelands.” Kobugabe
v. Gonzales, 440 F.3d 900, 902 (7th Cir. 2006). If it did, “the
entire population of many war-torn nations [would
qualify] for asylum.” Sivaainkaran v. INS, 972 F.2d 161
(7th Cir. 1992).
This principle creates quite a problem for Zeqiri, who
by her own admission was a farm worker who was not
engaged with any political group or organization. She
was not a part of the insurgency, nor was she a political
activist or a student. Zeqiri’s experiences might reflect
the general hardships faced by ethnic Albanians, but a
fear of ethnic persecution “common to all members of an
ethnic minority” is generally insufficient.3 Petrovic v. INS,
198 F.3d 1034, 1037 (7th Cir. 2000). Thus, Zeqiri must
present some evidence of particularized or personal
persecution.
Zeqiri’s best evidence of personal persecution was
her arrest at the University of Tetova. She testified that
she was personally threatened by Macedonian security
officers. The immigration judge, however, ruled that
Zeqiri’s testimony was not credible on this point, for it
contradicted the answers she gave at the Miami airport.
There is no question that Zeqiri understood the ques-
tion; she now claims that she did not tell the truth be-
cause she was frightened by her encounter with INS
officials. But the immigration judge is not required to
3
We should also note at this point that Zeqiri has made no
argument that ethnic Albanians in Macedonia are subject to a
“pattern or practice” of persecution, a finding that might
lessen her obligation to show that she would be “singled out
individually for persecution.” See 8 C.F.R. § 208.13(b)(2)(iii).
12 No. 07-1103
accept the petitioner’s explanation for “plain inconsisten-
cies” in her story. Feto, 433 F.3d at 911.
Once the arrest is removed from the picture, Zeqiri lacks
evidence of personal persecution. The bombing incident
on the train was certainly traumatic but she was not the
intended target. It appears that she was simply in the
wrong place at the wrong time. Further, there is no evi-
dence that Macedonian security forces singled out her
house; they surrounded and intimidated much of the
village. Similarly, although her home may have been
destroyed and her land occupied, there is no evidence that
this was not simply an incident in the larger conflict. Zeqiri
simply cannot show personal or particularized persecution,
so her claim for withholding of removal fails.
Zeqiri also claims that she is entitled to deferral of
removal under the Convention Against Torture, but this
claim is frivolous, as Zeqiri has no evidence to show that
it is “more likely than not” that if removed to Macedonia,
she will be subjected to torture. Boyanivskyy v. Gonzales,
450 F.3d 286, 292 n.3 (7th Cir. 2006); Dandan v. Ashcroft,
399 F.3d 567, 575 n.7 (7th Cir. 2003).
IV.
For the reasons discussed above, we dismiss the peti-
tion for lack of jurisdiction to the extent it challenges
the timeliness of the asylum application. We deny the
rest of the petition because the Board’s decisions were
supported by substantial evidence.
USCA-02-C-0072—6-3-08