1 We note that the Petitioner had named the Immigration and

Naturalization Service (“INS”) as a respondent in this action.

Under the judicial review provisions of § 242 of the Immigration

and Nationality Act, codified at 8 U.S.C. § 1252(b)(3)(A) (2000),

the Attorney General of the United States, not the INS, is the

proper respondent.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1744

KHADIJE ALI AWAD,

Petitioner,

v.

JOHN ASHCROFT,

ATTORNEY GENERAL,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals

No. A72-670-611

____________

ARGUED JANUARY 7, 2003—DECIDED MAY 2, 2003

____________

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, follow-
2 No. 02-1744

2 After following her husband to the United States, Awad and her

husband divorced.

3 At the time that Awad applied for suspension of deportation,

8 U.S.C. § 1254 was the governing statute. Section 1254(a) gave

the Attorney General the discretionary power to suspend deportation of an alien who “has been physically present in the United

(continued...)

ing 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,” nonLebanese 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
No. 02-1744 3

3 (...continued)

States for a continuous period of not less than seven years

immediately preceding the date of such application, and proves

that during all of such period he was and is a person of good moral

character; and is a person whose deportation would, in the opinion

of the Attorney General, result in extreme hardship to the alien

or to his spouse, parent, or child, who is a citizen of the United

States or an alien lawfully admitted for permanent residence.”

8 U.S.C. § 1254(a)(1) (1995).

4 Awad remarried Nabil Azo before her appeal to the BIA and

he filed a new alien relative visa petition again naming Awad

as the beneficiary. Nonetheless, the BIA refused to adjust Awad’s

INS status based upon her marriage because, at the time of the

BIA’s decision, Awad’s visa petition had yet to be approved. Awad

subsequently divorced Nabil Azo a second time.

5 Despite the fact that the IJ had never ruled on Awad’s asylum

application, the BIA construed Awad’s motion to reconsider and

remand as a motion to reopen her claim for asylum and then

concluded that Awad had not presented a prima facie case that

she would be subject to persecution upon returning to Lebanon.

Accordingly, the BIA denied Awad’s motion.

6 The so called “stop time” rule was created by IIRIRA. According

to the rule, the period of time to be counted towards the determi-

(continued...)

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
4 No. 02-1744

6 (...continued)

nation of whether an individual has met the continuous physical

presence in the United States requirement to qualify for

a suspension of deportation will end when the alien is served

with a Notice to Appear from the Attorney General. 8 U.S.C.

§ 1229b(d)(1). Section 203(a)(1) of the Nicaraguan Adjustment

and Central American Relief Act further states that the stop time

rule applies to Orders to Show Cause issued before, on, or after

the date of IIRIRA’s enactment. Codified at 8 U.S.C. § 1101 nt.

The retroactive application of the stop time rule has sustained

a challenge in this Court. Angel-Ramos v. Reno, 227 F.3d 942, 947-

48 (7th Cir. 2000).

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
No. 02-1744 5

7 Awad incorrectly asserts that the Ninth and Eleventh Circuits

hold that a motion to reopen renders the BIA’s decision nonfinal, and therefore non-appealable. Awad cites three cases in

support of her proposition. Fleary v. INS, 950 F.2d 711 (11th Cir.

1992); Chu v. INS, 875 F.2d 777 (9th Cir. 1989); Hyun Joon Chung

v. INS, 720 F.2d 1471 (9th Cir. 1983). Not only has this Court

expressly disagreed with these decisions, Rhoa-Zamora v.

INS, 971 F.2d 26, 32-33 (7th Cir. 1992); Akrap v. INS, 966 F.2d

267, 271 (7th Cir. 1992), but the Ninth Circuit cases were

superceded in 1990 by § 106(a)(6) of the INA, codified at 8 U.S.C.

§ 1105a(a)(6) (repealed 1996) (stating that a review of a motion

to reopen or reconsider a BIA order shall be consolidated with

the review of the order), and all three decisions were overruled.

Stone v. INS, 514 U.S. 386, 392, 397-98 (1995); Pablo v. INS, 72

F.3d 110, 112-13 (9th Cir. 1995).

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); Sing 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 recon-
6 No. 02-1744

sider—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

(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). 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
No. 02-1744 7

8 The “well-founded fear of persecution” standard is used to

determine eligibility for asylum instead of the “clear probability

of persecution” standard, which is used to determine eligibility

for the suspension of deportation. INS v. Stevic, 467 U.S. 407, 429

(1984). In regards to the clear probability standard the Supreme

Court stated, “[w]e have deliberately avoided any attempt to

state the governing standard beyond noting that it requires that

an application be supported by evidence establishing that it is

more likely than not that the alien would be subject to persecution . . . .” Id. at 429-30. However, because Awad did not ask the

BIA to reconsider her suspension of deportation application in

her motion to reconsider and remand, the clear probability standard is unhelpful in resolving the current dispute before this

Court.

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 (1992)); accord INS v. Abudu, 485 U.S.

94, 104-05 (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 wellfounded 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).
8 No. 02-1744

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 changed circumstances insufficient

to merit reopening his case). Awad presented the BIA

with no evidence to act upon, let alone evidence so compelling that no reasonable factfinder could fail to find her

requisite fear of persecution. Karapetian, 162 F.3d at 936.

Moreover, the State Department’s report that Awad

submitted is unhelpful to her case because it does not

set forth specific detailed facts explaining why Awad is

likely to be singled out for persecution. Rather, the report

merely states that, in 1999, women in Lebanon were

generally subjected to mistreatment. “It is well settled that

general, oppressive conditions that affect the entire population of a country do not provide a basis for asylum.” Petrovic

v. INS, 198 F.3d 1034, 1037 (7th Cir. 2000); accord
No. 02-1744 9

9 8 C.F.R. § 3.2(a), which governs motions to reopen or reconsider before the BIA, states in part that, “The decision to grant

or deny a motion to reopen or reconsider is within the discretion

of the Board, subject to the restrictions of this section. The Board

has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.”

Bradvica v. INS, 128 F.3d 1009, 1013 (7th Cir. 1997). This

principle is broadly interpreted to disqualify, as a wellfounded fear, persecution common to all members of a

minority. See Petrovic, 198 F.3d at 1037-38 (holding that

general conditions of persecution faced by all ethnic Serbians in Croatia do not alone establish petitioner’s wellfounded fear); Bevc v. INS, 47 F.3d 907, 910 (7th Cir. 1995)

(holding that Serbia’s campaign of ethnic cleansing against

non-Serbians did not demonstrate that petitioner, a

non-Serbian, would be singled out for persecution). Thus,

we are convinced that the BIA did not abuse its discretion in dismissing Awad’s motion to reopen her asylum

proceedings.

Awad’s final argument, that she was denied due process

of law because her claim for asylum was never heard, is

wholly devoid of merit. Awad presented only her application for the suspension of deportation to the IJ. Awad

had ample opportunity to apply for asylum and, in fact,

actually applied for asylum twice: once in August 1993 and

again in May 1995. Awad’s decision to withdraw her second application, after her marriage Nabil Azo, was a

tactical choice. Awad made a similar tactical decision by

not applying for asylum a third time when she moved to

reopen her case in September 1996. Moreover, the BIA

gave a reasoned opinion considering whether Awad had

made a prima facie showing of her eligibility for asylum

and concluded that she had not.9

 The fact that Awad’s

tactical choices ultimately turned out to be fruitless

cannot be imputed on the INS as a denial of due process.

The BIA’s decision is hereby AFFIRMED.
10 No. 02-1744

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-2-03