Besem Selimi, Aisha Selimi, Vjolca Selimi, Rashida Selimi, and Kujtesa Selimi v. John D. Ashcroft, Attorney General

TERENCE T. 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 reopen 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 appealed. 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 Yugoslavian 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)®, the Immigration and *738Naturalization Act (INA). Mr. Selimi conceded excludability and, following an evi-dentiary 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 nonimmi-grant 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 ease continued for that purpose.

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 consequence, 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 Albanian 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 dismissed 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 daughters, an application for asylum and withholding of deportation, 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 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.

*739The 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, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988), and, in fact, a motion to reopen is strongly disfavored. INS v. Doherty, 502 U.S. 314, 112 S.Ct. 719, 116 L.Ed.2d 823 (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 eases.” Abudu, 485 U.S. at 107, 108 S.Ct. 904.

Under the regulations applicable to these proceedings, motions to reopen must be filed within 90 days after the 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)(h). 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 independent 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 introduced “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, 108 S.Ct. 904.

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 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 decisions, however, is that *740the 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 discretion.

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 persecution 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 determining 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (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

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 Albanians 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 public discourse, but, it seems, primarily at the hands of Albanian society itself. The news reports detail an insurgency 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:

[Political turmoil alone does not permit the judiciary to stretch the definition of “refugee” to cover sympathetic, yet statutorily ineligible, asylum applicants. Immigration policy is the clear purview of the legislative branch, and Congress *741has 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 Sel-imis 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 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 ease 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 Affiíimed; the petition for review is Denied.

. According to the United States Department of State, the insurgency 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.