Deng Arej v. Jeff Sessions
852 F.3d 665
| 7th Cir. | 2017Background
- Deng Arej, a Sudanese citizen born in what is now South Sudan, was admitted to the U.S. as a refugee in 2005 and later committed multiple violent crimes in Kentucky; an IJ ordered his removal in April 2014 and he waived appeal to the BIA.
- Arej filed a motion to reopen in January 2015—more than 90 days after the removal order—seeking to apply for asylum and asserting changed country conditions (civil war and worsening violence in South Sudan and risk if removed to Sudan).
- The IJ denied the untimely motion for failing to allege changed circumstances; Arej then appealed to the BIA and submitted documentary evidence of deteriorating conditions in South Sudan.
- The BIA issued a brief dismissal stating the additional evidence did not establish material change and that it had considered the totality of the record; it did not engage with the substance of Arej’s documentary submissions.
- Arej is a criminal alien, which limits judicial review of removal orders under INA §1252(a)(2)(C); however §1252(a)(2)(D) preserves review of legal and constitutional questions.
- The Seventh Circuit majority found the BIA legally erred by effectively ignoring Arej’s evidence and vacated and remanded; Judge Sykes concurred in the judgment on narrower grounds, finding a legal error in the BIA’s conclusory treatment but emphasizing limited appellate review scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA improperly denied motion to reopen by ignoring submitted evidence of changed country conditions | Arej: BIA ignored documentary evidence showing material change (South Sudan civil war), so denial was legal error | Gov: BIA considered the record and permissibly concluded evidence did not show material change; dismissal was within discretion | Majority: BIA erred by ignoring/discounting evidence; vacate and remand for further consideration |
| Whether court has jurisdiction to review BIA’s denial of motion to reopen for abuse of discretion given criminal-alien bar | Arej: claims of legal error justify review under §1252(a)(2)(D) | Gov: §1252(a)(2)(C) strips courts of jurisdiction over removal orders for criminal aliens, precluding review of reopening decision | Court: Jurisdiction is limited; factual-abuse-of-discretion review barred, but legal questions (e.g., whether BIA ignored evidence) are reviewable under §1252(a)(2)(D) |
| Whether BIA’s generic statement that it considered the totality of the record suffices where record contains significant country-condition evidence | Arej: Generic statement insufficient; Iglesias requires at least mention of key evidence to show meaningful consideration | Gov: Such boilerplate is adequate and indicates consideration of documents | Court: Cites Iglesias—conclusory statements can constitute legal error; remand required to ensure evidence is considered |
| Whether any error was harmless | Arej: N/A (seeking remand) | Gov: Argued harmless error in some contexts (not pressed here) | Court: Government did not raise harmless-error argument; remand ordered. Judge Sykes concurs but notes harmless-error not argued and declines to reach factual merits |
Key Cases Cited
- Iglesias v. Mukasey, 540 F.3d 528 (7th Cir. 2008) (concluding the BIA’s unexplained dismissal that ignores an alien’s submitted evidence can be legal error)
- Cruz-Mayaho v. Holder, 698 F.3d 574 (7th Cir. 2012) (holding lack of jurisdiction to review denial of reopening when petition challenges only discretionary factual findings)