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

360 F.3d 736, 2004 U.S. App. LEXIS 4573
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 10, 2004
Docket02-1453, 02-2923
StatusPublished
Cited by66 cases

This text of 360 F.3d 736 (Besem Selimi, Aisha Selimi, Vjolca Selimi, Rashida Selimi, and Kujtesa Selimi v. John D. Ashcroft, Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Besem Selimi, Aisha Selimi, Vjolca Selimi, Rashida Selimi, and Kujtesa Selimi v. John D. Ashcroft, Attorney General, 360 F.3d 736, 2004 U.S. App. LEXIS 4573 (7th Cir. 2004).

Opinions

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 [738]*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.

[739]*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 ...

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Bluebook (online)
360 F.3d 736, 2004 U.S. App. LEXIS 4573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/besem-selimi-aisha-selimi-vjolca-selimi-rashida-selimi-and-kujtesa-ca7-2004.