Niam v. Ashcroft

• Citation: 354 F.3d 652
• Decision Date: 07 January 2004
• Docket Number: No. 03-1115.,No. 02-4292.,02-4292.,03-1115.
• Parties: Nourain B. NIAM, Petitioner, and Peter Blagoev, Iordanka Kissiova, and Iana Kissiova, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

354 F.3d 652

Nourain B. NIAM, Petitioner, and Peter Blagoev, Iordanka Kissiova, and Iana Kissiova, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-4292.

No. 03-1115.

United States Court of Appeals, Seventh Circuit.

Argued November 13, 2003.

Decided January 7, 2004.

Godfrey Y. Muwonge (argued), Milwaukee, WI, Justin R. Burton, Chicago, IL, for Petitioners.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Earle Wilson (argued), Jeffrey S. Bucholtz, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

We have consolidated for decision two petitions to review decisions by the Board of Immigration Appeals denying asylum. The petitions raise different issues, but are related in suggesting, together with other recent cases in this and other circuits, see, e.g. Georgis v. Ashcroft, 328 F.3d 962, 968-70 (7th Cir.2003); Kerciku v. INS, 314 F.3d 913, 918-19 (7th Cir.2003) (per curiam); Begzatowski v. INS, 278 F.3d 665, 670-71 (7th Cir.2002); Mansour v. INS, 230 F.3d 902, 908-09 (7th Cir.2000); Vujisic v. INS, 224 F.3d 578, 581 (7th Cir.2000); Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir.1999); Secaida-Rosales v. INS, 331 F.3d 297, 312 (2d Cir.2003); Hernandez v. Reno, 258 F.3d 806, 813-14 (8th Cir.2001); Reyes-Melendez v. INS, 342 F.3d 1001, 1008 (9th Cir.2003), a pattern of serious misapplications by the board and the immigration judges of elementary principles of adjudication. In Galina v. INS, 213 F.3d 955, 958 (7th Cir.2000), we stated forthrightly: "the Board's analysis was woefully inadequate, indicating that it has not taken to heart previous judicial criticisms of its performance in asylum cases [citing cases]. The elementary principles of administrative law, the rules of logic, and common sense seem to have eluded the Board in this as in other cases."

We begin with 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. He 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. But when he entered Sudan from Chad he was apprehended by Sudanese border police. They took his passport and directed him to follow them to an office where he could retrieve it. He demurred and they let him return to Chad, but without the passport. He left Chad for Nigeria, later returned to Chad, and then went back to Nigeria. But when he learned that a Sudanese security officer had come to the Nigerian town where he lived, asking questions about him, he managed (using a new Chadian passport) to obtain a visa to study in the United States. Once here, however, he didn't enroll in school, and so was ordered removed (deported).

Because he hadn't requested asylum within a year of arriving in the United States (missing the deadline by 19 days), he was ineligible for asylum. 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 208.4(a)(2); Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir.2003). But he was eligible to request withholding of removal. "[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3); see Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003). But to obtain that relief Niam had to show a "clear probability" that he would be persecuted if he returned to Sudan. INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); Tesfu v. Ashcroft, 322 F.3d 477, 481 (7th Cir.2003). The immigration judge ruled that Niam hadn't proved this and so turned down his request, and the Board of Immigration Appeals affirmed.

The immigration judge's analysis was so inadequate as to raise questions of adjudicative competence. The first point he made in support of his refusal to grant withholding of removal was that 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. There has been no regime change; Omar al-Bashir remains in power. Next the immigration judge said that "there is no evidence of recriminations following [Niam's] attempted reentry to Sudan." The choice of the word "recriminations" is peculiar. If what the immigration judge meant was that the Sudanese government did not react to Niam's attempted reentry, it is another factual error, since it was after the attempted reentry that Sudanese security was asking questions about Niam in Nigeria. Maybe what the immigration judge meant by "no evidence of recriminations" was that the border police who seized Niam when he reentered the Sudan let him return to Chad rather than dragging him off to prison, but the immigration judge didn't say that; nor is there any suggestion that the border police had access to a database listing all members of the Umma Party or all officials of the former regime.

The immigration judge also latched onto Niam's statement that the Bashir regime was not interested in him "personally" — Niam acknowledged that he had been only a minor official — but rather was targeting all members of opposition parties. The immigration judge said there was no evidence of this. He was again wrong. The State Department's 1998 Sudan country report stated that the Bashir regime has a practice of routinely persecuting political opponents: "Government forces regularly tortured, beat, harassed, arbitrarily arrested, and detained opponents or suspected opponents of the Government with impunity." And two members of the Umma Party, both Sudanese who had been granted asylum in the United States, testified that Niam would still be targeted by the Bashir regime as a political opponent even after an 11-year absence — that he would be "arrested at the airport or on the borders" and "disappear" for a long time.

The immigration judge stated that "even if it were established that the government persecutes all opposition party members, [Niam] admitted that he has not been active in the Omma [sic] Party since his arrival in the United States." This is a non sequitur. If the regime is after all opposition party members, it is irrelevant whether a member of an opposition party is active, especially when he's in a foreign country. Moreover, Niam didn't come to the U.S. until 1996 and for some and maybe all of the seven preceding years since he had left Sudan he had been active in the affairs of the Umma Party. Remember that the Party had sent him back to Sudan to spy for it. Furthermore, Niam attended graduate school in Nigeria during this period with financial assistance from the Party.

Finally, the immigration judge thought it significant that Niam's remaining relatives in Sudan had not been persecuted. However, those relatives are women, who were never active in political affairs. Niam's two brothers, who were, also fled the country. The immigration judge did not discuss the distinction. His analysis flatly failed to engage with the evidence presented to him.

On Niam's appeal from the immigration judge's decision, the Board of Immigration Appeals noted that the immigration judge had "incorrectly identified the regime in power in Sudan during his 1990 arrest." But the board declared the error "harmless," without, however, explanation. So far as appears, the board did not notice any of the immigration judge's other errors.

When the board writes an opinion, the opinion becomes the basis for judicial review of the decision of which the alien is complaining. INS v. Ventura, 537 U.S. 12, 15, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam); Begzatowski v. INS, supra, 278 F.3d at 669 n. 5. When as in this case the board's opinion merely supplements the immigration judge's opinion, the latter opinion as supplemented by the board's opinion becomes the basis for review. Angoucheva v. INS, 106 F.3d 781, 788-89 (7th Cir.1997) (per curiam); Krouchevski v. Ashcroft, 344 F.3d 670, 671 (7th Cir.2003). So it's as if the immigration judge, after writing his opinion, had, perhaps in response to a motion for reconsideration, discovered his error about the regime, acknowledged it, but pronounced it harmless. Cf. Fed.R.Civ.P. 59(e); Russell v. Delco Remy Division of General Motors Corp., 51 F.3d 746, 749 (7th Cir.1995); Charles v. Daley, 799 F.2d 343, 348 (7th Cir.1986). The difficulty with applying the analogy to this case is that the remainder of the immigration judge's opinion is riven with errors as well, as we have seen, and these were not noticed by the board and so the board's conclusion that the one error it did catch was harmless does not validate the immigration judge's decision to deny Niam relief.

Sudan's terrible human rights record — see, e.g., U.S. State Department, Report on Human Rights Practices in Sudan (2002); Human Rights Watch, World Report for Sudan (2003), http://www.hrw.org/wr2k3/africa12.html; Amnesty International, Sudan: No Impunity for Torturers, Sept. 2003, http://web.amnesty.org/library/Index; Sudan Peace Act, Pub.L. No. 107-245, 116 Stat. 1504 (2002), 50 U.S.C. § 1701 ("the acts of the Government of Sudan ... constitute genocide ... [and] Congress hereby condemns ... the Government of Sudan's overall human rights record") — which the immigration judge acknowledged, suggests that Niam is likely to be...