Zakaria Bullen Wani Site v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3244
ZAKARIA BULLEN WANI SITE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A079-816-708
ARGUED JUNE 9, 2011—DECIDED AUGUST 26, 2011
Before MANION, WOOD, and HAMILTON, Circuit Judges.
WOOD, Circuit Judge. South Sudan declared its indep-
endence from Sudan on July 9, 2011, making it the
world’s newest nation. President Barack Obama formally
recognized the new Republic of South Sudan on the
same day. See http://www.whitehouse.gov/the-press-
office/2011/07/09/statement-president-barack-obama-
recognition-republic-south-sudan. This was exactly one
month after we heard oral arguments in Zakaria Bullen

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2 No. 10-3244
Wani Site’s petition, in which he contends that the
Board of Immigration Appeals (the Board or BIA) errone-
ously denied his application for deferral of removal to
Sudan under the Convention Against Torture (CAT). We
point this out because Wani Site’s hometown, Juba, is
now the capital of South Sudan, and so the geopolitical
circumstances framing his petition have changed funda-
mentally. Aside from that, Wani Site identifies three
legal errors in the opinion of the Immigration Judge (IJ)
rejecting his claim; the Board, he argues, either repeated
or ignored those errors when he appealed to it. These
errors, in his view, led the IJ and the Board mistakenly to
conclude that he was not likely to be tortured if removed
to (old) Sudan, and thus he was not entitled to relief under
the Torture Convention. The government does not dispute
that the agency’s analysis is riddled with legal errors.
Instead it contends that we have no jurisdiction to
review the Board’s conclusion that Wani Site is unlikely
to be tortured in Sudan. The government also avers that
it no longer plans to remove Wani Site to Sudan any-
way, and so we should dismiss this case as moot. In
light of the three undisputed legal errors in the Board’s
analysis, the government’s contention that it does not
intend to remove Wani Site to Sudan, and the changed
circumstances there, we grant the petition for review
and remand for further proceedings.
I
Sudan has a long history of violence and instability,
arising in large part from racial and religious conflicts.

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No. 10-3244 3
Civil war has raged intermittently since Sudan gained
its independence from Egypt and Great Britain in 1956.
In 1972, a peace treaty quelled the violence by granting
regional autonomy to roughly what is now South Sudan.
But civil war erupted again in 1983, when the govern-
ment based in the North revoked the South’s autonomy
and imposed Shari’a law on the entire country. Violence
and human rights abuses, most prominently the
genocide in Darfur, regrettably have been a part of the
status quo. See Niam v. Ashcroft, 354 F.3d 652, 656 (7th
Cir. 2004) (discussing “Sudan’s terrible human rights
record”).
Wani Site is from Juba, which as we noted is the new
capital of South Sudan. He and his family are practicing
Christians, which made them a minority in their home-
land. (Christians are not only a minority in the former
Sudan as a whole; according to the State Department, the
Southern Sudanese practice mainly indigenous traditional
beliefs, although Christian missionaries have converted
some. See http://www.state.gov/r/pa/ei/bgn/5424.htm.)
In 1989, Wani Site’s father was arrested by the Sudanese
Army for cooperating with the Sudan People’s Libera-
tion Movement (SPLM), a group that had long opposed
the government. Wani Site never heard from his father
again; he presumes that his father is dead. Following
his father’s disappearance, Wani Site’s mother, entrusting
her children to the care of their uncle, left the country
to find work. Shortly thereafter, the army arrested his
uncle based on suspected involvement with the SPLM.
The uncle too was never heard from again. Wani Site
and his siblings then went to live with another uncle,

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4 No. 10-3244
yet the government continued to target them. In 1992,
Wani Site’s brother was arrested on suspicion of trans-
mitting information on behalf of the SPLM while
returning from Christian missionary work. The next
year, members of the army raped one of his sisters.
To escape this incessant violence, the family moved
from Juba to the capital in the North, Khartoum. While
in public school there, the army targeted Wani Site for
conscription. Shortly thereafter, he dropped out of school
to avoid fighting for a military that, in his view, was
killing his own people. In 1996, the army arrested and
badly beat his surviving uncle for supporting the SPLM.
At that point, the family, except for one sister, fled
Sudan for Egypt. They lived there until 2001, when they
were admitted to the United States as refugees. Wani
Site became a lawful permanent resident in 2007, at the
age of 29.
With those horrors behind him, a new chapter of
troubles began in 2008. That year, Wani Site was con-
victed of aggravated criminal sexual abuse under
Illinois law. This led the Department of Homeland
Security (DHS) to serve him with a Notice to Appear
charging that he was removable on various grounds
because of that conviction. He conceded removability,
lost all of his claims for relief before the IJ and the
Board, and now appeals solely the denial of deferral of
removal under the CAT. See 8 C.F.R. § 1208.17. His argu-
ment is that the Sudanese government will detain
and torture him upon arrival in Khartoum because he
is a failed asylum seeker and fled Sudan in part to

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No. 10-3244 5
evade the draft. The IJ found that Wani Site credibly
described the events we have set forth above at his
removal hearing. His sister also testified at the hearing,
and the IJ similarly found her credible. After concluding
that there was plenty of evidence of past persecution,
the IJ nevertheless denied Wani Site’s claim for deferral
of removal because he failed to prove that it was more
likely than not that he would be tortured if returned
to Sudan. See 8 C.F.R. § 1208.16(c). Wani Site appealed
to the Board, which supplemented and affirmed the
IJ’s analysis, issuing a final order of removal to Sudan
on August 27, 2010. He now petitions for review before
our court.
II
The government’s position in this case simplifies the
task before us. Much of the government’s brief is devoted
to arguing that 8 U.S.C. § 1252(a)(2)(C) strips our juris-
diction to review the Board’s denial of Wani Site’s
request for deferral of removal under the CAT. But this
is not a case that requires us to revisit Issaq v. Holder,
617 F.3d 962, 970 (7th Cir. 2010), which held that the
jurisdiction-stripping provision has no force for deferral
of removal claims arising under the CAT. We can
resolve this case without wading anew into the juris-
dictional tangle for two independent reasons. First, the
government concedes that we have jurisdiction to
review legal errors, but it offers nothing to rebut Wani
Site’s argument that the Board’s decision is premised on
three such errors. See 8 U.S.C. § 1252(a)(2)(D) (securing

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6 No. 10-3244
jurisdiction to review legal questions). The government’s
silence on these issues operates as a forfeiture, see
Cincinnati Ins. Co. v. Eastern Atlantic Ins. Co., 260 F.3d
742, 747 (7th Cir. 2001), which means that Wani Site
prevails on the merits. Second, the independence of
South Sudan combined with the government’s repre-
sentation to this court that it has no intention of
removing Wani Site to Sudan persuades us that the
Board needs to take another look at this matter in light
of the profoundly changed political situation. See INS
v. Orlando Ventura, 537 U.S. 12, 16 (2002). (This is not a
case in which the government is simply refraining
from carrying out an otherwise unobjectionable order,
as in Jama v. Immigration and Customs Enforcement, 543
U.S. 335 (2005); here, the government itself has effec-
tively disavowed the existing order.)
Although Wani Site prevails because of the govern-
ment’s forfeiture, we briefly explain in the interest of
simplifying the proceedings on remand why Wani Site
is correct that the Board committed legal error. The
first legal error Wani Site identifies is the Board’s reliance
on the fact that his sister, who was not permitted to
flee Sudan with the rest of the family, has not been
tortured since his departure. This fact, in the Board’s
view, supports its conclusion that Wani Site is also
unlikely to be tortured upon return. But their two cases
are entirely different. Wani Site’s claim is based on his
status as a draft evader and a failed asylum seeker. It
makes no sense for the Board to focus on his sister,
since she does not share the characteristics that Wani
Site believes will make him vulnerable to torture at the

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No. 10-3244 7
hands of the government. See Niam, 354 F.3d at 655 (re-
jecting identical analysis in asylum case); Kourski v.
Ashcroft, 355 F.3d 1038, 1039 (7th Cir. 2004) (criticizing
Board and IJ for a “gaping hole” in its reasoning). In
other words, he is not basing his argument on his
family status, nor was his sister involved in any of
his actions.
Wani Site also complains that the Board’s conclusion
that he must have personal knowledge that he will be
tortured to support his application for deferral of
removal is erroneous. We have previously held that the
Board cannot require a person seeking relief to articulate,
with personal knowledge, how he knows he will be
tortured. See Bosede v. Mukasey, 512 F.3d 946, 959 (7th
Cir. 2008) (“We are confused as to what kind of further
proof the IJ expected. Short of presenting himself to
Nigerian authorities and waiting to see their reaction,
we do not fathom how, at this juncture, Bosede could do
more than take at face value” evidence showing that
persons in his position are likely to be tortured.). The
Board cannot require this sort of testimony from
people seeking relief, for it is impossible to provide.
Finally, Wani Site points to the Board’s failure to con-
sider evidence that he submitted showing that the Suda-
nese government persecutes repatriated nationals.
The Board recognized that the IJ failed to consider this
information, but it thought that the error was harmless
because the overlooked reports focus on people from
Darfur, while Wani Site is from Juba. True, the first
report in question, published by the United Nations

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8 No. 10-3244
Human Rights Commission on Refugees (UNHCR), is
entitled “Position on Sudanese Asylum-Seekers From
Darfur.” But the Board has either misunderstood the
report, or it failed to read beyond the title. The report
discusses more than the plight faced by those in Darfur.
This excerpt from page one illustrates our point:
Forced returns to Sudan entail risks for certain catego-
ries of Sudanese, regardless of their place of origin, in-
cluding Darfurians. These categories include young
men of fighting age who are regularly singled out
for detention and interrogation. These arrests are
often pursuant to an administrative decree dated 28
February 1993, which authorized border authorities
to arrest returning Sudanese who left after the
June 1989 coup and have stayed away for more than
a year.
UN High Commissioner for Refugees, UNHCR’s Position
on Sudanese Asylum-Seekers From Darfur, February 10,
2006, available at http://www.unhcr.org/refworld/docid/
43f5dea84.html (last visited Aug. 10, 2011) (emphasis
added). Plainly, the Board missed the relevance of this
report to Wani Site’s case. The second report, contrary to
the Board’s conclusion, has nothing to do with Darfur.
Rather, it supports Wani Site’s contention that military
service in Sudan is mandatory and that Christian draft
evaders from the south are tracked down and punished
by the government—and not just punished in the
ordinary sense, but subjected to measures that qualify
as torture. Cf. Dobrican v. INS, 77 F.3d 164, 168 (7th
Cir. 1996) (no basis for asylum where military would

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No. 10-3244 9
punish equally all who fail to obey orders). The Board’s
rejection of Wani Site’s application for deferral of
removal based on a misunderstanding of the evidence is
no better than a rejection that takes no account of im-
portant evidence in the first instance. See Joshi v.
Ashcroft, 389 F.3d 732, 736-37 (7th Cir. 2004) (“A decision
that resolves a critical factual question without mention
of the principal evidence cannot be considered ade-
quately reasoned.”). Even if the government had not
forfeited its opportunity to defend these arguments on
the merits, these errors would have warranted a remand
to the Board for reconsideration.
What perplexes us about this case is why the govern-
ment itself did not move to remand to the Board once
it decided not to remove Wani Site to Sudan. It chose
instead to ask us to find that the petition is moot
solely because of counsel’s statement that Wani Site will
not be removed to Sudan. We decline the invitation.
As long as there is an outstanding removal order (which
as we understand the facts, there is) and this court
retains power to grant relief, the appeal is not moot. Cf.
Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006) (ob-
serving that a petition for review is moot only
when “we are unable to grant relief affecting the legal
rights of the parties”) (internal quotation marks and
citation omitted).
The government also asserted at oral argument that
once South Sudan declared its independence, it may
remove him to that country. We recognize that the gov-
ernment retains broad discretion to designate a country

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10 No. 10-3244
of removal for Wani Site. See 8 U.S.C. § 1231(b). But it
must exercise that authority in the appropriate way, not
for the first time in the middle of a petition for review.
We are in no position to comment on a plan to remove
Wani Site to the new nation of South Sudan before
the Board has considered the issue. See Orlando Ventura,
537 U.S. at 16 (“[W]e find that the well-established princi-
ples of administrative law [] require the Court of Appeals
to remand the ‘changed circumstances’ question to the
BIA.”). Finally, we point out that the relief Wani Site
seeks—deferral of removal under the CAT—is by defini-
tion temporary and country-specific. See 8 C.F.R.
§ 1208.16(f) (“Nothing in this section . . . shall prevent
the Service from removing an alien to a third country
other than the country to which removal has been with-
held or deferred.”). This means that even if Wani Site
had prevailed below, the government still could have
initiated proceedings to remove him to a country
other than Sudan, presumably including South Sudan
once diplomatic relations were established. But for
reasons that we do not understand, the government
has opted to attempt to win the right to remove Wani
Site to Sudan, rather than officially to abandon its
position before the Board—and this while assuring us
that it has no plans to remove him to Sudan anyway.
For the reasons we have set forth above, we GRANT
the petition for review and we REMAND for further pro-
ceedings.
8-26-11

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