March 1, 2017
for Review of an Order of the Board of Immigration Appeals.
Posner, Sykes, and Hamilton, Circuit Judges.
POSNER, Circuit Judge.
Sudan is a very large region in northeastern Africa, the site
of a number of ancient civilizations that flourished along
the Nile. It became an independent nation in 1956 (before
that it had been controlled by Britain and Egypt), but since
2011 it has accommodated two nations-the Republic of the
Sudan and the Republic of South Sudan. Until 2011, when the
southern half of the nation broke away to form the Republic
of South Sudan, the Sudan was the largest nation in Africa.
population of the Republic of the Sudan is almost entirely
Muslim, whereas most of the population of the Republic of
South Sudan practices Christianity or African traditional
religion. The religious difference between the two nations is
germane to this immigration case, as we'll see.
petitioner, Deng Arej, was born in South Sudan before it was
an independent nation, and was sent as a child to live in the
northern part of Sudan because his parents were afraid that
if he remained in the south he'd be drafted into the
south's army as a child soldier. When relocated to the
north he concealed both his Christian faith and his southern
ethnicity to avoid being killed by northern soldiers. Later,
fearing that he would be drafted into the northern army, he
fled to Egypt. He was admitted to the United States as a
refugee in 2005. Though a native of South Sudan, now as we
said an independent nation, he remains a citizen of the
Republic of the Sudan.
the United States, Arej committed a series of assaults (one
in a fight that resulted in a death, although he was not
convicted of murder) and was sentenced to two years in
prison. In April 2014, after he completed his prison
sentence, an immigration judge ordered him removed (i.e.,
deported) to the Republic of the Sudan. He might have
preferred to be removed to South Sudan, now that it's an
independent nation, as he is of South Sudanese origin and a
Christian-but the record does not say which nation he
prefers: probably, as we'll see, neither. There have been
previous removals of Sudanese immigrants, but it is unclear
how many of them were removed to the northern republic and
how many to the southern, and how many removed to one of the
two countries moved or tried to move to the other.
January 2015, awaiting removal more than eight months after
having been ordered removed, Arej sought U.S. asylum on the
ground that South Sudan (to which he may have intended to
move from the Republic of the Sudan were he removed to that
republic) was "increasingly volatile and dangerous"
and by May 2014 on the brink of civil war. And as he
wasn't even a citizen of the country, he might be unable
to obtain protection from its government. He may have thought
it obvious that he shouldn't be removed to the north
either, in view of his vulnerability to persecution there,
being Christian; in any event he was opposing, on plausible
grounds, removal to either country.
missed the 90-day deadline for filing a motion to reopen the
proceedings, however, which would have allowed him to
petition for asylum. But he sought an exception to the
deadline on the basis of changed circumstances since the
issuance of the removal order. A civil war in South Sudan had
broken out in December 2013 and by February 2015 a South
Sudanese legal scholar was quoted in evidence that Arej
submitted to the Board of Immigration Appeals as reporting
that 20 percent of his country's population had been
displaced and an "untold number" of them killed.
Removed to the north, Arej would be in danger as a
southerner, but if therefore he fled to the south, he would
find himself in the midst of a civil war. He was between a
rock and a hard place.
immigration judge denied Arej's motion to reopen (a
motion that if granted would have made it possible for him to
apply for asylum in the United States), remarking that Arej
"states no facts constituting changed
circumstances." He appealed to the Board of Immigration
Appeals, which however dismissed his appeal perfunctorily,
remarking-inaccurately-that the fact that there was a
"'[civil] war ... in progress [in South Sudan]'
... does not amount to a showing that circumstances have
materially changed in Sudan or South Sudan since the time of
the entry of the order of removal." That remark ignored
the growing violence in the south during this period. Further
ignoring evidence, the Board added that Arej had failed to
present evidence that "establishes that, since the time
of his ultimate removal hearing, conditions have materially
changed in Sudan or South Sudan." That was incorrect; he
had presented such evidence, which we summarized above.
has conceded that he qualifies as a criminal alien under 8
U.S.C. § 1252(a)(2)(C), so our review of the Board's
decision is limited to issues of law. 8 U.S.C. §
1252(a)(2)(D). But it was a serious legal error for the Board
to have ignored Arej's evidence. As we noted in
Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.
2008), the Board cannot make a reasoned decision to deny a
motion to reopen if it ignores the evidence that a petitioner
a competent immigration service would not ignore world
events. The dramatically worsening conditions in South Sudan
have been widely reported, with the young nation described as
"cracking apart" and United Nations officials
raising concerns about genocide. See, e.g., Jeffrey
Gettleman, "War Consumes South Sudan, a Young Nation
Cracking Apart, " New York Times, March 4,
2017, https://nyti.ms/21HeELw. "Tens of thousands of
civilians have been killed"; "every major
cease-fire that has been painstakingly negotiated by African
and Western officials has been violated"; and
"dangerous fissures are opening up within the South
Sudanese military." Id. And time doesn't
stand still. The Board's order dismissing Arej's
appeal from the immigration judge's denial of his motion
to reopen was issued on May 8, 2015-almost two years ago.
Considering that Arej has not yet been removed and that the
order was perfunctory, the Board should consider whether he
should be allowed to present evidence concerning
current conditions in the two Sudans. See 8 C.F.R.
petition for review is therefore granted, the decision of the
Board vacated, and the case remanded to the Board for further