Qoku v. Gonzales , 156 F. App'x 703 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-60938
Summary Calendar
BELUL QOKU,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
____________________
On Petition for Review from an Order of
the Board of Immigration Appeals
No. A27 231 251
_____________________
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Belul Qoku petitions for review from the Board of Immigration
Appeals’s denial of his motion to reopen a deportation order. For
the reasons below, we deny the petition.
I. Background
Qoku is an ethnic Albanian and a citizen of Macedonia, which
was formerly part of Yugoslavia. On February 21, 1987, Qoku
entered the United States illegally. Qoku was immediately taken
*
Pursuant to 5th Cir. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
into custody by the Immigration and Naturalization Service (“INS”).
On February 22, 1987, he was served with an Order to Show Cause and
Notice of Hearing (“OSC”). The OSC ordered him to appear at a
hearing on March 3, 1987, to show cause why he should not be
deported.
On February 26, 1987, Qoku entered into a written stipulation
with the INS (“the stipulation”). The stipulation states that Qoku
“admits all the allegations of fact and concedes the charge of
deportability.” Under the stipulation, the INS agreed to grant
Qoku additional time, until April 26, 1987, to submit a written
request for relief from deportation. Qoku agreed that if he failed
to submit such a written request, he would “accept a final order of
deportation” and “waive appeal from any order entered pursuant to
this stipulation.” The stipulation provided, in all capital
letters, “Respondent’s undersigned certifies that this stipulation
has been fully explained to and is entered into with the full
knowledge and consent of respondent.” It was signed by Qoku’s
attorney, Bertha Galindez; an INS representative; and the
immigration judge (“IJ”).
On the day of the stipulation, Galindez filed a motion to
reduce Qoku’s bond, noting the stipulation as a reason that bond be
lowered. The INS agreed to the reduction. Qoku paid his reduced
bond and was ordered released from custody “by agreement.”
Qoku failed to make an application for relief from deportation
by April 26. He was ordered deported to Yugoslavia on April 28,
2
1987. The IJ determined that Qoku was deportable “[u]pon the basis
of respondent’s admissions” and made the order “pursuant to
stipulation of 2-26-87.” The immigration court’s order further
states, “Copy of this decision has been served upon respondent.”
No further legal action was taken by any party until 1996.
On February 12, 1996, Qoku filed a motion to reopen the
immigration proceedings. He requested suspension of the
deportation order on the grounds that deportation would present an
extreme hardship. An IJ denied the motion, and Qoku did not
appeal.
Qoku filed a second motion to reopen on January 6, 2004.1 He
attacked the original deportation on several grounds. He also
sought suspension of deportation, asylum, and withholding of
removal. The IJ denied the motion, and the Board of Immigration
Appeals (“BIA”) affirmed, issuing a brief opinion. The IJ and the
BIA determined that most of Qoku’s claims were time-barred.
Regarding Qoku’s asylum and withholding of removal claims, the BIA
ruled that he had not made a prima facie case of persecution or
torture. Qoku petitions for review of the IJ’s and BIA’s orders.
II. Standard of Review
1
Current regulations limit aliens to one motion to reopen.
See 8 C.F.R. § 1003.23(b)(1) (2005). The Board of Immigration
Appeals determined below that Qoku’s motion was filed before the
effective date of that restriction and was therefore not “number-
barred.”
3
The BIA expressly adopted the IJ’s ruling and added its own
reasons for denying the motion to reopen. In such a situation, we
review both the IJ’s and the BIA’s decisions together. See
Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir. 2004); Guo
v. Gonzales, 2005 WL 2868311, *1 (5th Cir. Nov. 1, 2005)
(unpublished) (citing Polat v. Gonzales, 2005 WL 1274502, *1 (5th
Cir. May 27, 2005) (unpublished)).
Our review of these decisions is quite limited. Motions to
reopen are “plainly disfavor[ed]” because there is a “strong public
interest” in the finality of immigration decisions. INS v. Abudu,
485 U.S. 94, 95–110 (1988). The BIA has wide latitude in deciding
whether to grant or deny a motion to reopen. Id. Accordingly, we
review the denial of a motion to reopen “under a highly deferential
abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 304
(5th Cir. 2005).
It is our duty to allow [the] decision to be made by the
Attorney General’s delegate, even a decision that we deem
in error, so long as it is not capricious, racially
invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than
the result of any perceptible rational approach.
Id.; see Bahramnia v. INS, 782 F.2d 1243, 1244–45 (5th Cir. 1986).
III. Discussion
A. Challenges to the 1987 Deportation Order and Suspension of
Deportation
In the proceedings below, Qoku challenged the 1987 deportation
order on several grounds. He claimed (1) ineffective assistance of
4
counsel,2 (2) that he did not agree to the stipulation signed by
Galindez, (3) that he lacked notice of the deportation order, and
(4) that he was denied due process. He also sought reopening for
suspension of deportation for extreme hardship. Qoku contends on
appeal that the IJ and BIA erred in rejecting these claims as time-
barred.
Ordinarily, motions to reopen “must be filed within 90 days of
the date of entry of a final order of . . . deportation . . . or
before September 30, 1996, whichever is later.” 8 C.F.R. §
1003.23(b)(1). The regulations provide certain exceptions to the
deadlines for filing motions to reopen where the original order was
“entered in absentia in deportation proceedings.” 8 C.F.R. §
1003.23(b)(4)(iii)(A). Qoku argues that he was ordered deported in
absentia and should have been considered eligible for these
exceptions. We disagree.
Under the statutory framework applicable for Qoku’s 1987 case,
deportability was generally determined “upon a record made in a
proceeding before a special inquiry officer.” 8 U.S.C. § 1252(b)
(1982). The alien had a right to attend the deportation hearing.
Id. If the alien “fail[ed] or refuse[d] to attend” the hearing,
2
Before the IJ and BIA, Qoku argued that Galindez, his
original attorney, was ineffective. Qoku claims for the first
time on appeal that the attorney who represented him on his first
motion to reopen in 1996 was also ineffective. Because this
claim was not raised before the IJ or BIA, we have no
jurisdiction to consider it. See Wang v. Ashcroft, 260 F.3d 448,
452–53 (5th Cir. 2001).
5
the IJ could proceed in his absence. Id. In Qoku’s case, there
was no proceeding conducted in his absence after he failed or
refused to attend. There was no hearing at all because Qoku was
ordered deported by agreement, “pursuant to stipulation of 2-26-
87.” The 1987 deportation order, entered by agreement and without
a hearing, does not qualify as a proceeding in absentia. See In
re Feldman, 2004 WL 1167332, *1 (BIA Feb. 17, 2004) (unpublished)
(per curiam) (holding that an “order . . . entered because the
respondent failed to file his application for relief within the
time set by the Immigration Judge” was not an in absentia
proceeding).
Since the 1987 proceedings were not in absentia, the ordinary
deadlines for motions to reopen apply to Qoku’s challenges to the
1987 deportation order and to his claim for suspension of
deportation. See 8 C.F.R. § 1003.23(b)(4)(i)–(iv) (providing an
exclusive list of “[e]xceptions to filing deadlines”).3 Qoku’s
second motion to reopen was filed more than seven years after the
September 30, 1996 deadline.4 The IJ and BIA did not abuse their
discretion in declining to reopen proceedings on the ground that
3
Qoku’s brief appears to assume that these ordinary time
constraints do not apply to ineffective assistance of counsel
claims. This is incorrect. See, e.g., Galvez Pineda v.
Gonzales, 427 F.3d 833, 835 (10th Cir. 2005).
4
Qoku expressly disavows any claim to equitable tolling of
the deadline for motions to reopen. Thus, we need not address
the ruling below that Qoku failed to exercise due diligence.
6
these claims were untimely.5
B. Due Process Challenge to 2004 Proceedings
Qoku incorrectly argues that the BIA ignored both his claim
under the Convention Against Torture (“CAT”) and evidence he
submitted of changed conditions in Macedonia, thereby violating his
right to due process. The BIA opinion stated:
The respondent . . . argued on appeal that proceedings
should be reopened because there have been changed
conditions in Macedonia, and he fears persecution or
torture if he returns. Notwithstanding the changes in
the respondent’s country, the Board cannot conclude that
the respondent is prima facie eligible for asylum or
withholding of removal based upon changes in Macedonia.
Nothing presented with the respondent’s motion or appeal
establishes that the respondent would likely prevail if
the record was reopened and remanded for a hearing.
In re Qoku, A27-231-251 (BIA Sep. 23, 2004) (emphasis added). The
BIA need not “write an exegesis on every contention.” Efe v.
Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002). We require “merely
that it consider the issues raised . . . in terms sufficient to
enable a reviewing court to perceive that it has heard and thought
and not merely reacted.” Id. In Roy v. Ashcroft, 389 F.3d 132,
139–40 (5th Cir. 2004), we held that the BIA was not required to
separately analyze a claim where this Court could infer the BIA’s
implicit reasons for denying it. The BIA’s consideration in the
5
Qoku complains that the BIA failed to consider evidence he
submitted in support of his claim for suspension of deportation.
The BIA determined, however, that Qoku’s motion was untimely. It
need not have addressed the merits of a time-barred claim. See 8
C.F.R. § 1003.23(b)(1).
7
instant case, while brief, was sufficient. See Selimi v. Ashcroft,
360 F.3d 736, 739–40 (7th Cir. 2004). The opinion did address
Qoku’s CAT claim,6 acknowledge the evidence he submitted, and
explain the ground for denying his claims. Qoku’s due process
argument fails.
C. Asylum
The time limitations on motions to reopen do not apply to
asylum claims based on changed country conditions. 8 C.F.R. §
1003.23. Qoku argues that the BIA erred in determining that he did
not make a prima facie showing of eligibility for asylum. We find
no abuse of discretion. See Bahramnia, 782 F.2d at 1244-45. The
Supreme Court has recognized that the BIA may deny a motion to
reopen if it determines that the applicant “has not established a
prima facie case for the underlying relief sought.” Abudu, 485
U.S. at 104–05. To make a prima facie showing of eligibility for
asylum, movants must demonstrate a reasonable likelihood that they
have met the requirements for the relief sought. Flores v. INS,
786 F.2d 1242, 1247 (5th Cir. 1986). Eligibility for asylum
“requires a showing of past persecution or a well-founded fear of
persecution” on account of race, religion, nationality, membership
6
The BIA’s holding that Qoku was not prima facie eligible
for withholding of removal is responsive to his CAT claim. The
only claim under CAT exempt from the ordinary time restraints on
motions to reopen is withholding of removal. See 8 C.F.R. §
1003.23(b)(4).
8
in a particular social group, or political opinion. Roy, 389 F.3d
132, 138 (5th Cir. 2004). Qoku is an ethnic Albanian, a Muslim,
and involved with an Albanian political organization. He claims
asylum on these bases.
1. Past Persecution
Qoku argues that he presented a prima facie case of past
persecution. Qoku introduced evidence of several incidents of
mistreatment by the Yugoslavian Communist regime.7 First, Qoku’s
father was mistreated based on his political opinions.
Specifically, the authorities arrested him and terminated him from
his job. Additionally, Qoku’s father was arrested a second time in
1989 and “questioned by authorities as to where his son had gone.”
Incidents of persecution against a family member may demonstrate
past persecution only if they show “a pattern of persecution
closely tied to the asylum applicant.” Chinwendu v. Ashcroft, 112
Fed. Appx. 982, 983 (5th Cir. 2004) (unpublished) (per curiam)
(citing Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir.
1991)); see Jalloh v. Gonzales, 418 F.3d 920, 923 (8th Cir. 2005).
We cannot conclude that the BIA was required to find that the
7
According to United States Department of State reports
introduced into evidence by Qoku, the Yugoslavian Communist state
broke up in 1991. Qoku is now a resident of Macedonia, which is
a “parliamentary democracy with multiethnic party representation
and a popularly elected president.” U.S. Dep’t of State,
Macedonia, The Former Yugoslav Republic of, Country Reports on
Human Rights Practices - 2001 (Mar. 4, 2002) (hereinafter “2001
Country Report”).
9
several, decades-old incidents involving Qoku’s father met this
standard.
Second, Qoku introduced evidence that the Yugoslavian regime
learned that he had attended demonstrations in favor of democracy
in the United States and threatened to arrest him if he returned to
Yugoslavia. Mere harassment and threats do not rise to the level
of persecution. Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir.
2004). In short, the BIA’s implicit determination that Qoku has
not suffered past persecution was not an abuse of discretion.
2. Well-Founded Fear of Future Persecution
Qoku argues that he presented a prima facie showing of a well-
founded fear of future persecution. To establish that a fear of
persecution is “well-founded,” aliens must show that their fear is
“objectively reasonable.” See Zhao v. Gonzales, 404 F.3d 295, 307
(5th Cir. 2005). Qoku has not introduced any evidence that he
would be singled out for persecution by the Macedonian government.
Under such circumstances, an alien is required to establish
a pattern or practice of persecution of a group of
persons similarly situated . . . on account of race,
religion, nationality, membership in a particular social
group, or political opinion . . . .
Id. (emphasis added); 8 C.F.R. § 1208.13.
In support of his claim that changed circumstances in
Macedonia demonstrated a well-founded fear of persecution, Qoku
introduced a declaration from Dr. Bernd J. Fischer, a professor of
Balkan history at Indiana University, Fort Wayne. He also attached
10
country reports from the United States Department of State and from
two nongovernmental human rights organizations. The documents
detail frequent incidents of police brutality against ethnic
Albanians, which occasionally resulted in the death of the victims.
The police often arbitrarily arrested and detained ethnic
Albanians. They also occasionally abused and selectively enforced
laws against members of opposition political parties. Paramilitary
groups committed human rights abuses against ethnic Albanians and
killed civilians. See generally 2001 Country Report.
Although these documents certainly “paint a picture of
political turmoil, civil strife, and many human rights abuses,”
they also suggest that the worst abuses occurred during—and as a
result of—the government’s effort to contain an insurgency which
ended in 2001. Selimi, 360 F.3d at 740 (addressing similar
evidence of abuse against ethnic Albanians in Macedonia). Between
February and July of that year, Albanian Nationalists engaged in
brutal attacks against governmental forces. According to the
Department of State, insurgents also beat and killed civilians and
engaged in “ethnic cleansing.” Record evidence suggests
improvement in the Macedonian government’s human rights record
since the end of the Albanian Nationalist insurgency.
By August 2001, the government and insurgents had negotiated
a cease-fire and “signed the Framework Agreement and its annexes,
which laid the groundwork for the preservation of a peaceful,
11
unitary, multiethnic state with improved civil rights for minority
groups.” 2001 Country Report. In September 2001, the
international community began training new police officers that
were incorporated into more ethnically diverse units. Importantly,
according the Helsinki Committee for Human Rights, the number of
incidents of police brutality decreased during 2002, after the end
of the conflict. Additionally, according to the latest evidence
introduced by Qoku, two ethnic Albanian parties were part of the
governing coalition.8
We do not mean to imply that serious governmental mistreatment
of individuals similarly-situated to Qoku no longer occurs in post-
insurgency Macedonia. In light of our extraordinarily deferential
standard of review, however, we cannot conclude that Qoku
established a prima facie case that the Macedonian government is
currently engaged in a “pattern or practice” of persecution. The
Seventh Circuit recently reviewed a motion to reopen on similar
evidence. It held that an ethnic Albanian family failed to
demonstrate “a prima facie case of a reasonable fear of future
persecution” in Macedonia based on human rights abuses occurring
during the insurgency. See Selmi, 360 F.3d at 741; see also
Hasanago v. Ashcroft, 136 Fed. Appx. 424, 426 (2nd Cir. 2005)
8
Qoku provided comparatively little evidence that Muslims
in Macedonia are persecuted on account of their religion. The
evidence reveals religious tension in the country, but according
to the Department of State, the government “generally respects”
the right to religious freedom.
12
(unpublished) (affirming an IJ’s ruling that an ethnic Albanian did
not have a well-founded fear of persecution because “country
condition reports” revealed that “the conflict between the
Macedonian government and ethnic Albanians was abating”). In
short, the BIA did not abuse its wide discretion in determining
that Qoku had not shown a prima facie case for asylum.
D. Withholding of Removal
Qoku argued below that proceedings should be reopened for
withholding of removal. Withholding of removal claims, like asylum
claims, are exempt from the ordinary time restrictions on motions
to reopen. See 8 C.F.R. § 1003.23(b)(4)(i). Applicants may
qualify for withholding of removal by showing “more likely than
not” that they would be persecuted or tortured in the future. 8
C.F.R. § 1208.16. Qoku claims on appeal that the BIA erroneously
determined that he had not made a prima facie case for this
relief.9
The “more likely than not” burden for withholding of removal
is higher than the standard for asylum. See Eduard at 186 n.2.
Furthermore, “torture is more severe than persecution . . . .”
Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005); Roy 389 F.3d
9
Appellee Gonzales argues on appeal that Qoku’s CAT claim
was untimely because it was not filed “within June 21, 1999,” as
required by the regulations implementing CAT. 8 C.F.R. §
1208.18. The BIA did not reject Qoku’s CAT claim as untimely.
It found that he had not made a prima facie case of torture.
Accordingly, we must address this latter ground for denying Qoku
relief under CAT.
13
at 140 (“CAT standard of torture” is a “more stringent,” “higher
bar” than persecution). Thus, since the BIA did not abuse its
discretion in determining that Qoku did not make a prima facie case
of persecution, see supra Part III.C, it necessarily did not abuse
its discretion in finding that he had not made a prima facie case
for withholding of removal.10
E. Review by Single BIA Member
Lastly, Qoku claims that he was entitled to have the IJ’s
denial of his 2004 motion to reopen reviewed by a three-member
panel. See 8 C.F.R. § 1003.1(e)(6) (permitting review by a three-
member panel if, inter alia, an IJ decision “is not in conformity
with the law”) (emphasis added). This argument ignores that BIA
regulations expressly provide that a single Board member may “issue
a brief order affirming [or] modifying” the decision of an IJ. 8
C.F.R. § 1003.1(e)(5) (emphasis added). The BIA order under review
explicitly adopted and affirmed the IJ decision. Qoku has not
cited any authority for the proposition that the BIA must use a
three-member panel in such a situation. Additionally, Qoku’s
contention that the IJ’s decision was “not in conformity with the
law” under section 1003.1(e)(6) is premised on arguments that we
10
We recognize that claims for withholding of removal under
CAT will not invariably be a subset of persecution claims. CAT
claims, unlike persecution claims, do not require “any connection
between the applicant’s race, religion, nationality, membership
in a particular social group, or political opinion” and the
inflicted harm. Roy, 389 F.3d at 139–40.
14
have rejected above. Accordingly, the BIA did not err in hearing
Qoku’s appeal through a single Board member.
IV. Conclusion
The IJ and BIA did not abuse their discretion in denying
Qoku’s motion to reopen. Qoku’s petition for review is DENIED.
His motion seeking a stay of removal pending review of his petition
is DISMISSED as moot.
15