7th Circuit vacates deporations to Bulgaria

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“There is evidence that Bulgaria’s former communist bigwigs, quickly recycled as socialists and now busy cosying up to the United States, retain significant power in Bulgaria and continue to pursue the old vendettas against anticommunists.” Hon. Richard A. Posner Seventh Circuit Court of Appeals

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 Department’s country report for Sudan, and testimony of two members of the Umma Party — both Sudanese who had been granted asylum — that government forces regularly torture, beat, harass, and arrest opponents of the government, the court concluded, “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 (emphasis in original).”

The court found that Niam is likely to be persecuted if returned to Sudan, stating, “once the Sudanese authorities discover who he is, they will realize that he violated the terms of his 1990 release, they will in all likelihood take him in for questioning, and, given the methods that Sudanese interrogators use, they will no doubt elicit a confession that he tried to reenter Sudan to spy for the Umma Party. One can easily imagine the sequel to such a confession. Is the probability of persecution ‘clear’?

That is for the immigration authorities to decide in the first instance in a proceeding free from the errors of the immigration judge that, taken as a whole, deprive the order of removal of a rational basis.”

Accordingly, the court vacated the order denying withholding of removal, and remanded the case to the immigration service for further proceedings.

Bulgaria

The second case involved Peter Blagoev, a Bulgarian who also sought withholding of removal.

The
court found that Blagoev comes from a prominent anti-communist family. The communists sentenced his grandfather to death when they took power in 1944, although the sentence was not carried out. Blagoev’s father was also persecuted by the communist regime, and an attack on his home with acetone, a powerful corrosive chemical, caused permanent injury to Blagoev’s mother.

Blagoev himself was first beaten in the basement of the local police station and suspended from school, when at age 16 he asked a guest lecturer at his school, “how come … if it’s so nice here everybody is trying to get out of here and go West.”

Blagoev also testified that he was discriminatorily denied protective clothing when radioactive clouds from the Chernobyl disaster wafted toward Bulgaria. He has also been fired from every job after expressing his political views, and was once severely beaten in the communist party headquarters.

Although the communist regime collapsed in 1989, since then, Blagoev has received death threats, his wife was assaulted, and her cousin murdered after filing a claim to recover land that had been stolen from him by the communists. The family finally fled the country when an attempt was made to abduct Blagoev’s stepdaughter.

The court acknowledged, “Ordinarily a person persecuted by a regime that later collapses does not have a well-founded fear that he will be persecuted should he return,” and that several of its previous cases speak favorably of the political changes in Bulgaria since the communist collapse.

However, the court concluded, “But there are collapses and then there are collapses. … there is evidence that Bulgaria’s former communist bigwigs, quickly recycled as socialists and now busy cosying up to the United States, retain significant power in Bulgaria, especially and quite relevantly over the security service, and continue to pursue the old vendettas against anticommunists, such as members of the Blagoev family.”

The court rejected the IJ’s finding that Blagoev had not suffered persecution and the IJ’s reliance on the U.S. State Department country report for Bulgaria, which stated, “political conditions have so altered in the past eight years as to remove any presumption that past mistreatment under the Communists will lead to future difficulties” for people (like the Blagoevs) who had given the communist regime a hard time.

The court rejected the finding that the Blagoevs were not victims of past persecution outright, and questioned the finding that they won’t be persecuted if returned.

Discussing the country report, the court observed, “The State Department naturally is reluctant to level harsh criticisms against regimes with which the United States has friendly relations. … The United States is not at all friendly to Sudan, which we bombed in 1998 and continue to designate as one of seven nations that sponsor terrorism, and the country report in Niam’s case pulls no punches in describing the atrocities committed by the Sudanese regime. (For all we know, it exaggerates those atrocities — but this is not contended.) But we are very friendly with the former communist states of central and eastern Europe, and so the country report on Bulgaria can be expected to emphasize the bright side of Bulgarian politics.”

The court also rejected the IJ’s finding that, because Blagoev did not leave Bulgaria until three years after the fall of the communists, he did not suffer past persecution, reasoning, “obviously an anticommunist does not leave his formerly communist country the day the communist regime falls. He expects improvement and only after it becomes clear that he will continue to be persecuted for his political beliefs by holdovers from the communist regime does he finally abandon hope of reform and leave.”

Expert Testimony

Finally, the court held it was error for the IJ to exclude Blagoev’s proposed expert testimony — a professor of political science who submitted an affidavit stating, “Bulgaria has undergone much less political and economic reform than other Eastern European countries, resulting in correspondingly greater official and semi-official violations of human rights.”

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The affidavit also asserted that the security service is run by mostly the same people who ran it under the communist regime, and there is no control over the service by parliament.

The IJ had initially ruled that the expert could testify by phone from Dartmouth, but he would not let her testify from Prague, Czechoslovakia. Discussing the ruling, the court stated, “This is one of the odder rulings in our experience. Prague does have phone service after all, and in fact the phone service between Prague and Chicago is quite comparable in acoustic quality and other relevant quality dimensions to the phone service between Hanover, New Hampshire and Chicago.”

Turning to the expert’s qualifications, the court found, “Johnson is an expert on postcommunist central and eastern European politics, a field that encompasses the subject of her testimony, and she obviously is a student of Bulgarian politics and, judging from her affidavit that the judge refused to admit into evidence, a knowledgeable one.”

Accordingly, the court vacated the denial of withholding of deporation for Blagoev, as well.

Click here for Case Analysis.

David Ziemer can be reached by email.