7th Circuit vacates deportations to Bulgaria, Sudan.

• Author: Ziemer, David

Byline: David Ziemer

The Seventh Circuit on Jan. 7 issued a scathing opinion in two consolidated cases, vacating the immigration authorities' refusal to withhold deportation of dissidents from Sudan and Bulgaria, respectively.

Sudan

The first applicant is Nourain B. Niam, who was an official of the government of Sudan when it was controlled by the Umma Party. The Umma regime was overthrown in 1989 by Omar al-Bashir. Niam was promptly fired and the following year was arrested and detained for three and a half weeks, during which he was questioned to the accompaniment of death threats, slaps, and kicks.

Niam was released after agreeing to tell the authorities if he left town, but without telling them he fled to Egypt and then to Chad, where Sudanese exiles had reconstituted the Umma Party. The Party's leaders persuaded Niam to agree to return to Sudan and act as a spy for the Party and help members escape.

When he entered Sudan from Chad, he was apprehended by Sudanese border police, who took his passport, but permitted him to return to Chad. Ultimately, he obtained a visa to study in the United States. Once here, however, he didn't enroll in school, and so was ordered removed.

Niam requested withholding of removal, arguing that his life or freedom would be threatened in Sudan because of "race, religion, nationality, membership in a particular social group, or political opinion," pursuant to 8 U.S.C. 1231(b)(3).

The immigration judge (IJ) held that Niam failed to prove this and rejected his request, and the Board of Immigration Appeals (BIA) affirmed. Niam appealed, and the Seventh Circuit reversed in a decision by Judge Richard A. Posner.

Wasting no time in expressing its opinion of the proceedings at the administrative level, Posner began, "The immigration judge's analysis was so inadequate as to raise questions of adjudicative competence."

First, the court noted that the IJ supported his refusal to grant withholding of removal because "there had been a regime change since Niam's being fired, arrested, detained, and beaten, so Niam has nothing to fear should he return to Sudan." In fact, there has been no regime change, and Omar al-Bashir remains in power.

The court also found fault with the IJ's findings that, "the Bashir regime was not interested in him 'personally,' ... but rather was targeting all members of opposition parties," and that Niam has not been active in the Umma Party since coming to the United States.

Citing the U.S. State...