In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15‐1834, 15‐3874, 16‐1303
S.A.B.,
Petitioner,
v.
DANA J. BOENTE, Acting Attorney General of the United
States,
Respondent.
____________________
Petitions for Review of Orders of the Board of Immigration Appeals, No.
A000‐000‐000, and of U.S. Citizenship and Immigration Services,
a component of the Department of Homeland Security.
____________________
ARGUED JANUARY 4, 2017 — DECIDED FEBRUARY 2, 2017
____________________
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 pub‐
lisher 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
2 Nos. 15‐1834, 15‐3874, 16‐1303
“Jane’s Information Group,” Wikipedia, https://en.wik
ipedia.org/wiki/Jane%27s_Information_Group (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 TERROR‐
ISM, 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 Ethio‐
pia, 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 neighbor‐
ing 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 kill‐
ings 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,” ter‐
rorist activity as defined in subsection iv of the above sec‐
tion.
Nos. 15‐1834, 15‐3874, 16‐1303 3
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 be‐
come a target of the Ethiopian government. We’ll refer to her
by her initials rather than her name, but it would be unreal‐
istic to think they actually conceal her identity; for the opin‐
ions 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 De‐
cember 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” (deporta‐
ble) for having remained in the United States after the expi‐
ration of her visa, and therefore illegally. See 8 U.S.C.
§ 1227(a)(1)(B). She conceded removability, and the immi‐
gration 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 re‐
moved to Ethiopia she would be tortured by the Ethiopian
government because of her past membership (which she
acknowledges) in the OLF.
4 Nos. 15‐1834, 15‐3874, 16‐1303
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 be‐
lieved 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 Universi‐
ty 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 re‐
sponsible 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 con‐
tests, again without evidence, statements in our State De‐
partment’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 Hu‐
man Rights Practices 2001 (March 4, 2002), www.state.gov/j/
drl/rls/hrrpt/2001/af/8372.htm; U.S. Dep’t of State, Bureau of
Democracy, Human Rights, and Labor, Ethiopia Country Re‐
ports on Human Rights Practices 2002 (March 31, 2003),
https://www.state.gov/j/drl/rls/hrrpt/2002/18203.htm.
Nos. 15‐1834, 15‐3874, 16‐1303 5
He testified that he would expect SAB to “assume that
the OLF is a non‐violent organization, first and foremost [be‐
cause] … 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 iden‐
tity, 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 in‐
deed risks torture if returned to Ethiopia, owing to the Ethi‐
opian government’s continued fierce hostility to the OLF,
she is not entitled to either asylum or withholding of remov‐
al. 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 tel‐
evision and radio reports in 2002 that the OLF was responsi‐
ble for violent attacks. She would have understood those re‐
ports, 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 Immi‐
gration Services) to lift the terrorism bar that prevented her
6 Nos. 15‐1834, 15‐3874, 16‐1303
from obtaining asylum or withholding of removal. USCIS
refused.
As noted below, knowing support of a terrorist organiza‐
tion is a bar to asylum or withholding of removal. On the
basis of the U.S. State Department country reports, Jane’s re‐
ports, and other reputable information sources such as Hu‐
man 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 had committed a
number of violent acts, killing a significant number of peo‐
ple, over a period of years that included the years in which
SAB was a member.
But was SAB a terrorist by virtue either of her member‐
ship in the OLF or of her having provided “material sup‐
port” to it? See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). Obvious‐
ly she did provide material support: she donated money to
the OLF, recruited women to join it, and helped in fundrais‐
ing. Her support of the group was not major, but minor ma‐
terial support is still material support within the meaning of
the statute. See Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir.
2008).
Although a person who belongs to or provides material
support to a terrorist organization is presumed to know it is
indeed a terrorist organization, there is an escape hatch if the
alien can “demonstrate by clear and convincing evidence
that [he or she] did not know,” and “should not reasonably
have known [in other words, shouldn’t have been expected
to know], that the organization was a terrorist organization.”
Nos. 15‐1834, 15‐3874, 16‐1303 7
8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). SAB failed to meet that
standard (especially the second half), because among other
things the OLF claimed responsibility for a bombing that
killed 14 people in 2002, when SAB was living in Addis Ab‐
aba (the capital of Ethiopia) with ready access to radio and
television. Indeed there were numerous reports of OLF vio‐
lence between 2001 and 2004 (see, e.g., Nita Bhalla, “Ethiopia
Links Blast to Oromo Rebels,” BBC, October 2, 2002, http://
news.bbc.co.uk/2/hi/africa/2293185.stm; “OLF Claims Re‐
sponsibility for Bomb Blast,” IRIN, June 26, 2002,
http://www.irinnews.org/news/2002/06/26/olf‐claims‐respon
sibility‐bomb‐blast), including some from the OLF’s official
channel—the “Voice of Oromo Liberation.”
SAB, solidly middle class, a business woman, could not
have missed all these reports or reasonably thought all of
them fraudulent. Clearly she didn’t provide “clear and con‐
vincing evidence” that she had missed or disbelieved all of
them.
So the immigration judge found (and the Board of Immi‐
gration Appeals affirmed his finding) that SAB knowingly
supported a terrorist organization to which she belonged,
and this finding, the soundness of which we have no basis
for doubting, bars her from obtaining asylum in the United
States, see 8 U.S.C. § 1227(a)(4)(B)—that is, makes her de‐
portable despite the immigration judge’s also impeccable
finding that she is likely to be imprisoned and quite possibly
tortured if returned to Ethiopia, given that before leaving for
the United States she had been imprisoned and tortured in
prison because of her affiliation with the OLF, which contin‐
ues to be the Ethiopian government’s bête noir. We must
therefore deny the first petition for review that SAB filed in
8 Nos. 15‐1834, 15‐3874, 16‐1303
this case, which seeks asylum and withholding of removal.
The reader should bear in mind however that the removal
order, which is predicated on her being a member of a ter‐
rorist organization, can’t be executed as long she remains
under threat of torture if returned to Ethiopia. See 8 C.F.R.
§ 1208.17.
SAB has filed two other petitions for review. One asks us
to overrule the decision by USCIS not to lift the terrorism
bar. The other challenges the refusal of the Board of Immi‐
gration Appeals to set aside the removal order. USCIS is au‐
thorized to lift the bar for an individual or a Tier III terrorist
group, subject to exceptions inapplicable to SAB. See 8
U.S.C. § 1182(d)(3)(B)(i). And if it had lifted the bar, thereby
cutting the link between SAB and OLF, she would be eligible
for asylum and withholding of removal. But UCSIS declined
to lift the bar, and the statutory provision that we just cited
grants the agency “sole unreviewable discretion” whether to
do so. With the bar thus fixed in place, there is no basis for
our vacating the removal order. The petition is therefore
dismissed.
SABʹs third petition for review challenges the BIA’s deci‐
sion to deny her motion to reopen. The Board denied the
motion as untimely and found no reason to reopen it sua
sponte. We have jurisdiction to review a denial of a motion to
reopen; such review is consolidated with our review of the
final order of removal. See 8 U.S.C. § 1252(a)(1), (b)(6). But
we find no error in the Board’s refusal to reconsider its order
of removal in light of USCIS’s decision, because remember
that USCIS’s “sole unreviewable discretion” precludes the
Board’s reopening the proceeding. We therefore deny the
Nos. 15‐1834, 15‐3874, 16‐1303 9
third petition along with the first; the second we dismiss for
want of jurisdiction.
And so, to conclude, SAB’s petition for review of her fi‐
nal order of removal is denied, as is her petition for review
that challenges the BIA’s decision to deny her motion to reo‐
pen. Her remaining petition is dismissed for want of juris‐
diction to review USCIS’s discretionary rulings.