Deng Arej v. Loretta Lynch
Filed opinion of the court by Judge Posner. The petition for review is therefore granted, the decision of the Board vacated, and the case remanded to the Board for further proceedings consistent with this opinion. Richard A. Posner, Circuit Judge; Diane S. Sykes, Circuit Judge, concurring in the judgment; and David F. Hamilton, Circuit Judge. [6829394-1]  [15-2061]
United States Court of Appeals
For the Seventh Circuit
JEFF SESSIONS, Attorney General of the United States,
Petition for Review of an Order of the
Board of Immigration Appeals.
ARGUED MARCH 1, 2017 — DECIDED MARCH 28, 2017
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The Sudan is a very large region in
northeastern Africa, the site of a number of ancient civiliza‐
tions that flourished along the Nile. It became an independ‐
ent nation in 1956 (before that it had been controlled by Brit‐
ain and Egypt), but since 2011 it has accommodated two na‐
tions—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.
The population of the Republic of the Sudan is almost en‐
tirely Muslim, whereas most of the population of the Repub‐
lic of South Sudan practices Christianity or African tradi‐
tional religion. The religious difference between the two na‐
tions is germane to this immigration case, as we’ll see.
The petitioner, Deng Arej, was born in South Sudan be‐
fore 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 ref‐
ugee in 2005. Though a native of South Sudan, now as we
said an independent nation, he remains a citizen of the Re‐
public of the Sudan.
Once in the United States, Arej committed a series of as‐
saults (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 pre‐
ferred to be removed to South Sudan, now that it’s an inde‐
pendent nation, as he is of South Sudanese origin and a
Christian—but the record does not say which nation he pre‐
fers: probably, as we’ll see, neither. There have been previ‐
ous 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.
In 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 una‐
ble 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, be‐
ing Christian; in any event he was opposing, on plausible
grounds, removal to either country.
He had missed the 90‐day deadline for filing a motion to
reopen the proceedings, however, which would have al‐
lowed him to petition for asylum. But he sought an excep‐
tion 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. Re‐
moved to the north, Arej would be in danger as a southern‐
er, but if therefore he fled to the south, he would find him‐
self in the midst of a civil war. He was between a rock and a
But the immigration judge denied Arej’s motion to reo‐
pen (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 circumstanc‐
es.” He appealed to the Board of Immigration Appeals,
which however dismissed his appeal perfunctorily, remark‐
ing—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 Su‐
dan 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 hear‐
ing, conditions have materially changed in Sudan or South
Sudan.” That was incorrect; he had presented such evidence,
which we summarized above.
Arej 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 presents.
Furthermore, a competent immigration service would
not ignore world events. The dramatically worsening condi‐
tions in South Sudan have been widely reported, with the
young nation described as “cracking apart” and United Na‐
tions officials raising concerns about genocide. See, e.g., Jef‐
frey Gettleman, “War Consumes South Sudan, a Young Na‐
tion Cracking Apart,” New York Times, March 4, 2017,
https://nyti.ms/2lHeELw. “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. § 1003.2(a).
The petition for review is therefore granted, the decision
of the Board vacated, and the case remanded to the Board
for further proceedings consistent with this opinion.
SYKES, Circuit Judge, concurring in the judgment. Deng
Arej, a citizen of Sudan, was admitted to this country as a
refugee in 2005 and thereafter committed multiple violent
crimes in the State of Kentucky. Between December 2010 and
May 2013, he was charged and convicted of these crimes in
several separate state-court proceedings and was sentenced
to serve short concurrent prison terms. The Department of
Homeland Security thereafter initiated proceedings to
remove him from this country. His serious criminal conduct
made him removable on several grounds. See 8 U.S.C.
§ 1227(a)(2)(A)(ii) (making aliens removable for committing
a crime of moral turpitude); id. § 1227(a)(2)(E)(i) (making
aliens removable for committing a crime of domestic violence); id. § 1227(a)(2)(A)(iii) (making aliens removable for
committing an aggravated felony).
During the removal proceedings, Arej declined the opportunity to apply for asylum, withholding of removal, or
deferral of removal under the Convention Against Torture.
On April 23, 2014, an immigration judge ordered him removed to Sudan. Arej waived his right to appeal the removal
order to the Board of Immigration Appeals (“BIA” or “the
On January 9, 2015—more than eight months later—Arej
moved to reopen the removal proceedings, saying that he
now wished to apply for asylum “in the interest of justice
and humanitarian concerns.” A motion to reopen must be
filed within 90 days of the entry of the order of removal, id.
§ 1229a(c)(7)(C)(i), so his motion was untimely by more than
five months. An exception to the time bar exists if the alien
can demonstrate that conditions in the country to which he
has been ordered removed have materially changed since
the removal order was entered. Id. § 1229a(c)(7)(C)(ii). Arej
submitted no evidence and otherwise made no effort to fit
his case within this exception, so the immigration judge
denied the motion as untimely.
Arej appealed to the BIA and this time submitted documentary evidence in an effort to show a material change in
country conditions in the Sudan and South Sudan. The
Board rejected his argument and dismissed the appeal. Its
dismissal order refers in general terms to the “numerous
documents” Arej submitted on appeal and summarily
concludes that this “additional evidence” failed to establish
that conditions “materially changed in Sudan or South
Sudan” since the removal order was entered. The Board also
concluded “upon consideration of the totality of the record”
that sua sponte reopening was unwarranted.
Arej petitioned for review, but our jurisdiction is severely
limited by his status as a criminal alien; we do not have
authority to review the BIA’s decision for abuse of discretion.
More specifically, the Immigration and Nationality Act
(“INA”) provides that “no court shall have jurisdiction to
review any final order of removal against an alien who is
removable by reason of having committed a criminal offense
covered in … section 1227.” Id. § 1252(a)(2)(C). Without
jurisdiction to review the underlying removal order, we also
lack jurisdiction to review the denial of a motion to reopen
that order. Cruz-Mayaho v. Holder, 698 F.3d 574, 577 (7th Cir.
2012). But the INA preserves our jurisdiction to review
questions of law and constitutional claims. 8 U.S.C.
§ 1252(a)(2)(D). Accordingly, we lack jurisdiction to review
how the BIA evaluated and weighed Arej’s evidence or to
test its decision for abuse of discretion; we may review its
decision only for errors of law and constitutional infirmities.
My colleagues address jurisdiction only fleetingly,
though they do cite § 1252(a)(2)(D) and Iglesias v. Mukasey,
540 F.3d 528 (7th Cir. 2008). Iglesias holds that when an alien
asserts that the BIA “completely ignored the evidence he
presented,” he has raised “a good faith claim of legal error”
that counts as “a question of law” under § 1252(a)(2)(D). Id.
at 531. Relying on Iglegias, my colleagues conclude that the
Board ignored Arej’s evidence. Majority Op. at p. 4. That’s
The dismissal order is admittedly a brief summary disposition, but it’s clear that the Board was aware of the additional evidence Arej submitted on appeal. The Board
acknowledged in general terms that Arej submitted “numerous documents” on appeal and ruled that this “additional
evidence” is insufficient to show changed country conditions. The order also specifically states that the Board considered the “totality of the record” in declining to reopen sua
sponte. That’s more than the BIA said in Iglesias; the order
denying reopening in that case contained not a word about
the alien’s evidence. 540 F.3d at 531–32.
Still, other language in Iglesias suggests that Arej has indeed raised a colorable claim of legal error, though it’s very
narrow. Our opinion in Iglesias listed in summary fashion the
key items of evidence the petitioner had presented to the
BIA in his appeal. Id. at 532. We then say this: “Had the BIA
at least mentioned this evidence, we could have some confidence that these materials had been considered. Unfortunately, the brevity of the decision leaves us with the impression that the BIA committed legal error … .” Id. at 532. This
suggests to me that it’s a legal error under Iglesias for the
Board to deny a motion to reopen with a generic assurance
that it has considered the “totality of the record,” as it did
here. We have limited jurisdiction to correct that legal error,
but not to look for factual errors or an abuse of discretion.
In Iglesias we ultimately denied the alien’s petition for review, finding the legal error harmless. 540 F.3d at 532–33.
The government has not raised harmless error here, so that
argument is waived.
Accordingly, I agree with the court’s decision to vacate
the BIA’s order and remand for further proceedings, but I
arrive at that conclusion on narrower grounds. I respectfully
concur in the judgment only.
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