Awad v. Ashcroft, 02-1744.

• Decision Date: 02 May 2003
• Docket Number: No. 02-1744.,02-1744.
• Citation: 328 F.3d 336
• Parties: Khadije Ali AWAD, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

328 F.3d 336

Khadije Ali AWAD, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-1744.

United States Court of Appeals, Seventh Circuit.

Argued January 7, 2003.

Decided May 2, 2003.

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Richard H. Trais (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Dept. of Homeland Sec., Office of the Dist. Counsel, Chicago, IL, Richard M. Evans, Paul Fiorino (argued), Dept. of Justice, Civ. Div., Immigration Lit., Washington, DC, for Respondent.

Before COFFEY, ROVNER, and EVANS, Circuit Judges.

COFFEY, Circuit Judge.

Petitioner Khadije Awad,¹ a 50-year-old Lebanese national, entered the United States as a nonimmigrant visitor on March 1, 1988, with permission to remain until August 31, 1988. In August 1993, following the expiration of her visa, Awad filed an application for political asylum claiming that she was subjected to persecution in Lebanon from a "criminal government," non-Lebanese forces, politically motivated killings, and also claimed that in Lebanon her family was mistreated because she had married a Jordanian citizen.² The INS issued a Notice of Intent to Deny her application in February 1994, and followed with an Order to Show Cause on November 22, 1994. In May 1995, Awad married a United States citizen, Nabil Azo. Two days later, Awad filed a new application for asylum as well as an application for suspension of deportation, but Awad withdrew both applications in November 1995, believing that she could adjust her INS status through her marriage. In January 1996, INS approved her husband's alien relative visa petition naming Awad as the beneficiary. Before Awad's status was adjusted, however, the petition was nullified by an intervening divorce that June.

Awad moved to reopen her suspension of deportation application before the immigration judge ("IJ") on September 30, 1996, the same day that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") was signed into law. The IJ denied Awad's motion in November on the grounds that Awad was ineligible for relief because she had not accumulated the necessary seven years of continuous physical presence in the United States prior to the issuance of the November 1994, Order to Show Cause.³ Awad appealed to the Board of Immigration Appeals ("BIA"). In her brief to the BIA, Awad argued that she had met the seven-year continuous physical presence requirement, but the BIA upheld the IJ's decision on September 25, 2001.⁴ Awad's motion to reconsider and remand her previously withdrawn claim for asylum based on changed country conditions was also denied by the BIA on March 1, 2002.⁵ Awad now asks this Court to reverse the decision of the BIA and grant her motion to reconsider and remand on three grounds: (1) the BIA abused its discretion in denying Awad's appeal of the IJ's decision because the IJ incorrectly applied the "stop time" rule;⁶ (2) the BIA abused its discretion in denying Awad's motion to reconsider and remand her application for asylum; and (3) Awad was denied due process of law because her claim for asylum was never heard.

The INS initiated deportation proceedings against Awad with the November 22, 1994, Order to Show Cause, issued over two years before IIRIRA effectively amended the Immigration and Nationality Act ("INA"). Nonetheless, section 309(c) of IIRIRA contains various transitional rules that were implemented immediately upon enactment on September 30, 1996. Codified at 8 U.S.C. § 1101 nt. In the case at hand the non-superceded sections of the INA along with IIRIRA's transitional rules apply. Useinovic v. INS, 313 F.3d 1025, 1030 (7th Cir.2002).

Awad's claim that the IJ incorrectly interpreted the stop time rule is without merit. Under § 309(c)(4)(C) of IIRIRA, a petition for judicial review by this Court must be filed within 30 days of the date of the final order of deportation. Codified at 8 U.S.C. § 1101 nt. Awad never appealed the BIA's September, 2001, decision addressing the IJ's application of the stop time rule. Likewise, Awad failed to present the stop time issue to the BIA in her motion to reconsider and remand her application for asylum. Because Awad failed to raise the stop time issue in her motion to reconsider, she disregarded the statutory requirement that she exhaust all administrative remedies before seeking this Court's review of the INS decision.⁷ 8 U.S.C. § 1105a(c) (1995); Useinovic, 313 F.3d at 1035; Toptchev v. INS, 295 F.3d 714, 721 (7th Cir.2002); Singh v. Reno, 182 F.3d 504, 511 (7th Cir.1999); Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir.1993). Although the alleged misapplication of the stop time rule could have been addressed by the BIA had it been brought to the BIA's attention in the motion to reconsider, it was not. See Toptchev, 295 F.3d at 721. The exhaustion requirement is jurisdictional; thus, we lack jurisdiction to consider whether the IJ correctly interpreted the stop time rule. Useinovic, 313 F.3d at 1035; Toptchev, 295 F.3d at 721; Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Perez-Rodriguez v. INS, 3 F.3d 1074, 1081 (7th Cir.1993).

Awad's second argument, that the BIA abused its discretion in denying Awad's motion to reconsider and remand her application for asylum, also fails. Because Awad submitted new evidence in support of her motion to reconsider—a State Department report on human rights in Lebanon—the BIA construed the motion as a motion to reopen, pursuant to 8 C.F.R. § 3.2. The BIA concluded that Awad failed to establish a prima facie case that she was eligible for asylum and the BIA's decision whether to grant a motion to reopen is discretionary. § 3.2(a). Accordingly, we will review the BIA's denial of Awad's motion to reopen for an abuse of discretion. Krougliak v. INS, 289 F.3d 457, 460 (7th Cir.2002); Arreola-Arellano v. INS, 223 F.3d 653, 655 (7th Cir.2000); Tittjung v. Reno, 199 F.3d 393, 396 (7th Cir.2000); Conti v. INS, 780 F.2d 698, 701 (7th Cir.1985); Diaz-Salazar v. INS, 700 F.2d 1156, 1159 (7th Cir.1983). We review the BIA's determinations under a "highly deferential version of the substantial evidence test, which requires us to affirm if the Board's decision to deny asylum is `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Karapetian v. INS, 162 F.3d 933, 936 (7th Cir.1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). The BIA's findings will be rejected only if the evidence is "`so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.'" Karapetian, 162 F.3d at 936 (quoting Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812). Moreover, the BIA's denial of Awad's motion to reopen "will be upheld `unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.'" Mansour v. INS, 230 F.3d 902, 907 (7th Cir.2000) (quoting Wijeratne v. INS, 961 F.2d 1344, 1348 (7th Cir.1992)); accord Guan v. INS, 49 F.3d 1259, 1261 (7th Cir.1995); Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir.1985). "The BIA can deny a motion to reopen on any of the following three independent grounds: (1) `failure to establish a prima facie case for the underlying relief sought'; (2) `failure to introduce previously unavailable, material evidence'; and (3) `a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought.'" Mansour, 230 F.3d at 907 (quoting INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)); accord INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).

The BIA found that Awad had failed to establish a prima facie case that she was eligible for asylum. To establish eligibility for asylum, Awad needed to demonstrate that she was a "refugee" as defined by 8 U.S.C. § 1101(a)(42)(A). "Refugees" are people who are unable or unwilling to return to the country of their nationality because of "a well-founded fear of persecution⁸ on account of race, religion, nationality, membership in a particular social group, or political opinion." § 1101(a)(42)(A); accord Sharif v. INS, 87 F.3d 932, 935 (7th Cir.1996). An applicant for asylum must demonstrate that her fear of persecution is both subjectively genuine and objectively reasonable. Bhatt v. Reno, 172 F.3d 978, 981 (7th Cir.1999). "To satisfy the objective prong, [Awad] must have brought forth `specific detailed facts' supporting the reasonableness of [her] fear of being singled out for persecution." Meghani v. INS, 236 F.3d 843, 847 (7th Cir. 2001).

In contrast to the requirement that she demonstrate her fear with specific detailed facts, the entire substantive portion of Awad's motion contained only three vague sentences:

If this motion were granted, Ms. Awad will pursue her application for asylum because if forced to return to Lebanon, Ms. Awad has a reasonable and well-founded fear that she would face persecution. Ms. Awad fears persecution because she is a Christian-Assyrian who would suffer persecution within Muslim controlled Lebanon. Additionally, women are targets of mistreatment in Lebanon, according to the Country Reports on Human Rights Practices for 1999.

With her motion, Awad submitted the State Department's report in which she referred. The BIA did not abuse its discretion when it refused to accept that the three vague sentences referred to above were sufficient to establish a prima facie case of Awad's eligibility for asylum. See Bhatt, 172 F.3d at 982 (affirming the BIA's conclusion that the petitioner's uncorroborated testimony that he was threatened and beaten by Hindu militants failed to establish his well-founded fear of persecution); Johnson v. INS, 962 F.2d 574, 577 (7th Cir.1992) (finding the applicant's affidavit outlining his...