Ait Ali, Smail v. Gonzales, Alberto R. ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 13, 2005
Decided December 19, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-1784
SMAIL AIT ALI,* Petition for Review of an Order
Petitioner, of the Board of Immigration
Appeals
v.
No. A75-101-858
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Algerian native Smail Ait Ali wants to reopen his asylum case, although he
filed his motion to reopen after the 90-day deadline passed. Hoping to excuse his
motion’s lateness, he maintains that the Board of Immigration Appeals should have
exempted it from the deadline because evidence that he recently decided to “come
out” and admit that he is a homosexual creates “changed circumstances” in his
At oral argument counsel explained that the petitioner’s first name is
*
Smail—not his last, as erroneously indicated in written submissions to this court.
No. 04-1784 Page 2
“country of nationality.” But since his choice to admit his homosexuality was a
change in personal circumstances rather than a change in country conditions, the
argument must fail. We deny his petition for review.
Ait Ali is a forty-one-year-old native of Algeria. He fled in 1995 to Canada,
where he abandoned an earlier asylum application. In 1997 he came to the United
States and applied again for political asylum. An Immigration Judge and the BIA
rejected his application. He did not seek review.
A year and a half after the BIA rejected his claim, Ait Ali filed a motion to
reopen because he is gay. He contended that, owing to psychological reasons arising
from Algeria’s anti-gay culture, he could not admit his sexuality earlier; instead, he
found the courage at an unspecified time, presumably after the proceedings, though
he did not expressly say when. The BIA denied the motion as too late since no
exception to the deadline applied.
Now, Ait Ali argues that the BIA abused its discretion, see Ajose v. Gonzales,
408 F.3d 393, 395 (7th Cir. 2005), when it denied the motion to reopen as untimely.
Regrettably, his arguments are largely irrelevant and difficult to follow. But he
maintains that his motion was exempt from the 90-day deadline applicable to
motions to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(i) (formerly § 1229a(c)(6)(C)(i));
8 C.F.R. § 1003.2(c)(2), because he adduced new evidence of changed circumstances
“arising in the country of nationality or the country to which removal has been
ordered” to justify asylum or withholding, see 8 U.S.C. § 1229a(c)(7)(C)(ii) (formerly
§ 1229a(c)(6)(C)(ii)); see also 8 C.F.R. § 1003.2(c)(3)(ii).
At the threshold, the Attorney General argues that Ait Ali didn’t exhaust his
administrative remedies because he neglected to raise this argument to the BIA.
But Ait Ali had argued to the BIA that psychological difficulty admitting his
homosexuality ought to justify permitting his late motion. True, that argument
sounds more like equitable tolling (which he abandons on appeal if he ever did raise
it), yet it’s the same argument that he’s now trying to force into the framework of
changed country conditions. Moreover, the BIA decided that no statutory
exceptions applied (changed country conditions is the principal such exception).
Therefore the problem isn’t non-exhaustion, see Yan v. Ashcroft, 393 F.3d 418,
422 & n.4 (3d Cir. 2005) (BIA had opportunity to address simple issue), but that, as
the BIA recognized, Ait Ali’s argument is a bad one.
Since Ait Ali says that he was born gay, the “change” that he is asserting was
the public admission, which occurred here, not in Algeria. Ait Ali relies on cases
holding that the BIA erred by not reopening for a Chinese petitioner who feared
persecution because she became pregnant with her second child in the United
States, Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004), and an Eritrean who changed
No. 04-1784 Page 3
religions in the United States, Fessehaye v. Gonzales, 414 F.3d 746 (7th Cir. 2005).
But in those cases the petitioner filed the motion to reopen within the 90-day
deadline, Guo, 386 F.3d at 560; Fessehaye, 414 F.3d at 749. When, by contrast, an
asylum applicant waits more than 90 days to file a motion to reopen based on a
change in personal circumstances here, like pregnancy or birth of a child, the
motion is too late. Zheng v. U.S. Dep't of Justice, 416 F.3d 129, 130–31 (2d Cir.
2005) (per curiam); see Ajose, 408 F.3d at 394.
Even if Ait Ali is arguing that the “change” is a newfound resentment by
individuals in Algeria who learned he was gay, as he hints in his brief, the BIA still
did not abuse its discretion. The exception for changed country conditions applies
only when evidence “was not available and would not have been discovered or
presented at the previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii)(formerly
§ 1229a(c)(6)(C)(ii)); see Haile v. Gonzales, 421 F.3d 493, 497 (7th Cir. 2005). But
Ait Ali never said when or how anyone in Algeria learned he was gay, or when he
learned of their discovery. He said only that “persons that knew [him] . . . have
been making statements about [his] homosexuality” and that his family disowned
him. The other affidavits and arguments he presented to the BIA are equally vague
and cannot help him establish the timing element. In any event, he fails to develop
this last argument in his brief, and it is thus waived, Ross Bros. Constr. Co., Inc. v.
Int’l Steel Servs., Inc., 283 F.3d 867, 875 (7th Cir. 2002).
Finally, Ait Ali’s reliance on Karouni v. Gonzales, 399 F.3d 1163 (9th Cir.
2005), for the proposition that he has made a prima facie case for asylum is
misplaced. Karouni was not a case about a motion to reopen, much less a late
motion to reopen. Because the BIA properly denied Ait Ali’s motion as untimely, we
need not address eligibility for asylum.
The Petition is DENIED.