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S.A.B. v. Boente

United States Court of Appeals, Seventh Circuit

February 2, 2017

S.A.B., Petitioner,
Dana J. Boente, Acting Attorney General of the United States, Respondent.

          Argued January 4, 2017

         Petitions for Review of Orders of the Board of Immigration Appeals, No. AOOO-000-000, and of U.S. Citizenship and Immigration Services, a component of the Department of Homeland Security.

          Before Posner, Easterbrook, and Sykes, Circuit Judges.

          POSNER, Circuit Judge.

         We introduce this immigration case by noting that Jane's is a long-established British publisher of studies, often book-length, of (so far as relates to this case) warfare, weaponry, national security, electronic warfare, insurgency, terrorism, and related topics. See "Jane's Information Group/' Wikipedia, https://en.wik (visited Feb. 1, 2017, as were the other websites cited in this opinion). In 2006 and 2011 Jane's issued two confidential reports on the Oromo Liberation Front (OLF), which the reports describe as having become "the most robust armed group in Ethiopia in the late 1990s." See Jane's World Insurgency and Terrorism, Oromo Liberation Front (OLF) 1 (March 23, 2011) (we'll call it "Jane's Report (2011)"); Jane's World Insurgency and Terrorism, Oromo Liberation Front (OLF) 1 (May 31, 2006) ("Jane's Report (2006)").

         Though the Oromo are the largest ethnic group in Ethiopia, they consider themselves discriminated against by the Ethiopian government, which is the reason or a reason that the OLF would like to see the government overthrown. Jane's Report (2006) states at pages 2 and 4 that the OLF, founded in the early 1970s, has long conducted a "low level guerrilla campaign against the Ethiopian security forces, " in part from bases that it has established in countries neighboring Ethiopia, such as Kenya and Somalia. The 2011 report states at pages 1-3 that between 1973 and 2011 the OLF wreaked considerable havoc that included a number of killings of Ethiopian security personnel, though it had not come close to overthrowing the government. The immigration judge in this case classified the OLF as a "Tier III" terrorist organization, defined in 8 U.S.C. § 1182(a)(3)(B)(vi)(III) as "a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, " terrorist activity as defined in subsection iv of the above section.

         The petitioner is a former member of the OLF now living in the United States. Her name is not SAB, though that is the name that appears in the briefs; those are her initials; she or her lawyers are concerned that should her name appear in the briefs in this court or in our opinion, she or a member of her family, such as her sister, who had been imprisoned by the Ethiopian government possibly in an attempt to discover SAB's whereabouts after she'd fled the country, might become a target of the Ethiopian government. We'll refer to her by her initials rather than her name, but it would be unrealistic to think they actually conceal her identity; for the opinions of the Immigration Court and the Board of Immigration Appeals use her full name rather than her initials to identify her, and those opinions are public documents.

         An Ethiopian citizen now 61 years old, SAB came to the United States in 2004 on a visitor's visa that expired in December of that year. But rather than leave the United States she applied for asylum and alternatively for withholding of removal. When an asylum officer deemed her claims not credible, the Department of Homeland Security charged her in the Immigration Court with being "removable" (deportable) for having remained in the United States after the expiration of her visa, and therefore illegally. See 8 U.S.C. § 1227(a)(1)(B). She conceded removability, and the immigration judge designated Ethiopia as the country to which she would be removed. But she renewed her application for asylum and her alternative application for withholding of removal, basing both grounds for relief on fear that if removed to Ethiopia she would be tortured by the Ethiopian government because of her past membership (which she acknowledges) in the OLF.

         An Oromo, she had joined the OLF in 2001, three years before she came to the United States. She had attended the general meetings of the OLF in 2002 and 2003 and made small financial contributions to the organization, though as we'll note shortly she had helped the organization in other ways as well. In 2002 she'd seen reports on television that the OLF had killed people, but she claims not to have believed the reports because the television station was owned by the Ethiopian government. Subsequently her husband disappeared (and has never reappeared and may well be dead) and she was arrested and imprisoned for four months and, though never tried or sentenced, was tortured in prison.

         Her principal witness at her removal hearing was Dr. Charles Schaefer, a history professor at Valparaiso University in Indiana. He specializes in Ethiopian politics, having been born in Ethiopia and lived there for a number of years. He testified that while some bombings and other violent acts have been attributed to the OLF he thinks it unclear whether it rather than some other political group was actually responsible for them. Though aware of Jane's reports he thinks them "biased, market-driven and shoddily verified, " but he provided no evidence to support these suspicions. He contests, again without evidence, statements in our State Department's country reports that the OLF "regularly use[s] landmines." See U.S. Dep't of State, Bureau of Democracy, Human Rights, and Labor, Ethiopia Country Reports on Human Rights Practices 2001 (March 4, 2002), drl/rls/hrrpt/2001/af/8372.htm; U.S. Dep't of State, Bureau of Democracy, Human Rights, and Labor, Ethiopia Country Reports on Human Rights Practices 2002 (March 31, 2003), https://www.state.gOv/j/drl/rls/hrrpt/2002/18203.htm.

         He testified that he would expect SAB to "assume that the OLF is a non-violent organization, first and foremost [because] ... the OLF was a vehicle by which she could validate her Oromo identity." We don't understand the logic of that sentence; if belonging to the OLF validates an Oromo's identity, it does so whether the OLF is violent or peaceful. And finally he testified that he thought SAB would be imprisoned by the Ethiopian government if she returned to Ethiopia.

         The immigration judge ruled that while SAB is entitled to deferral of removal under the Convention Against Torture because (according to Schaefer's and other evidence) she indeed risks torture if returned to Ethiopia, owing to the Ethiopian government's continued fierce hostility to the OLF, she is not entitled to either asylum or withholding of removal. That's because she admits having been a member of the OLF and having "provided material support to the OLF, " a terrorist organization, when she solicited and donated funds to it, paid monthly dues, and recruited other Oromo women to join her OLF chapter. She further admits having heard television and radio reports in 2002 that the OLF was responsible for violent attacks. She would have understood those reports, as she is a relatively sophisticated person: a high school graduate who (more important) owned a business in Ethiopia and engaged in extensive international travel in support of the business.

         After the Board of Immigration Appeals affirmed the immigration judge and SAB appealed to us, she asked a component of the Department of Homeland Security usually referred to as USCIS (short for U.S. Citizenship and Immigration Services) to lift the terrorism bar that prevented her from obtaining asylum or withholding of removal. USCIS refused.

         As noted below, knowing support of a terrorist organization is a bar to asylum or withholding of removal. On the basis of the U.S. State Department country reports, Jane's reports, and other reputable information sources such as Human Rights Watch (conceded by Dr. Schaefer to be a credible source) and START (Study of Terrorism and Responses to Terrorism), and noting that Dr. Schaefer had no evidence that the OLF had not engaged in violence during the period in which SAB was a member, the immigration judge had enough evidence to conclude that the OLF ...

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