Zeqiri v. Mukasey

• Decision Date: 03 June 2008
• Docket Number: No. 07-1103.,07-1103.
• Citation: 529 F.3d 364
• Parties: Gzime ZEQIRI and Albulen Zeqiri, Petitioners, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

529 F.3d 364

Gzime ZEQIRI and Albulen Zeqiri, Petitioners, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 07-1103.

United States Court of Appeals, Seventh Circuit.

Argued November 29, 2007.

Decided June 3, 2008.

Justin R. Burton (argued), Kriezelman Burton & Associates, Chicago, IL, for Petitioners.

Rebecca Niburg (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

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 Macedonia. 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 Naturalization 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 Macedonia; much of Macedonia's ethnic Albanian population lives in northwestern Macedonia.

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 Macedonia, 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 indiscriminately 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 country'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 university building and began to forceably evict faculty 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 conflict 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 neighbors. 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 expressed fear at the prospect of returning to Macedonia, and so INS officials allowed Zeqiri entry under the Visa Waiver Program. See 8 C.F.R. § 217.4(a)(1). An immigration 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 member 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 proceedings" 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 immigration 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 because Zeqiri had arrived in the United States on September 8, 2001 but did not file an asylum application until October 3, 2002. Zeqiri argued that "extraordinary circumstances" 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, and she had no family in the United States. She also claimed that the "shock and trauma" of her recent experiences in Macedonia rendered her incapable of meeting the deadline. The immigration judge rejected these arguments. 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 application 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 applications 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 General." 8 U.S.C. § 1158(a)(2)(D).

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. Gonzales, 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...