                                                         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that this opinion should not be published and is not precedent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
