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10-3244 Wani Site v. Holder

Immigration
Removal; Sudan

Where the proceedings below were riddled with legal errors, the government no longer plans to remove the petitioner, and the petitioner’s homeland of South Sudan became an independent nation after the proceedings, the petition to review the order of removal is granted.

“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 government retains broad discretion to designate a country 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 principles 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 definition 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 withheld 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.”

Petition Granted.

10-3244 Wani Site v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Wood, J.

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