In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21‐2099
MATHUSALA MENGHISTAB,
Petitioner,
v.
MERRICK GARLAND, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A026‐649‐212
____________________
SUBMITTED JANUARY 5, 2022 — DECIDED JUNE 21, 2022
____________________
Before KANNE,1 WOOD, and BRENNAN, Circuit Judges.
WOOD, Circuit Judge. Petitioner Mathusala Menghistab, at
the time a lawful permanent resident of the United States,
pleaded guilty to rape in Indiana state court in 2011. Soon
thereafter, the Department of Homeland Security (the
1 Circuit Judge Kanne died on June 16, 2022, and did not participate
in the decision of this case, which is being resolved under 28 U.S.C. § 46(d)
by a quorum of the panel.
2 No. 21‐2099
Department) began the process of removing him to Ethiopia.
Because of his rape conviction and resulting sentence, Men‐
ghistab was barred from most forms of relief, including asy‐
lum, discretionary withholding of removal, and waiver of re‐
movability. He was eligible only to apply for deferral of re‐
moval under the Convention against Torture, and he did so.
An immigration judge denied him relief and the Board of Im‐
migration Appeals (the Board) affirmed. But the removal pro‐
cess was interrupted when Ethiopia refused to issue Men‐
ghistab a travel document. He was released from custody in
2013 and continued to live in the United States until, in late
2020, Ethiopia changed course and agreed to issue the travel
document.
That development prompted Department officials to de‐
tain Menghistab pending removal. He moved to reopen his
case, citing the changed circumstances in Ethiopia since his
proceedings closed, occasioned by the outbreak in November
2020 of the civil war in the Tigray region in northern Ethiopia.
The Tigray War has resulted in widespread attacks on civil‐
ians. Ethnic Eritreans, such as Menghistab, have suffered par‐
ticularly severe human‐rights violations. The Board denied
the motion without an evidentiary hearing, and Menghistab
petitioned this court for review. We conclude that a new hear‐
ing is needed to address two key issues: the materiality of the
war to Menghistab’s risk of torture; and the question whether
Menghistab is an Ethiopian citizen. We therefore grant Men‐
ghistab’s petition for review and remand for further proceed‐
ings.
I
The events giving rise to this case date back hundreds of
years, to the emergence of the numerous ethnolinguistic
No. 21‐2099 3
groups that together make up modern Ethiopian society. In
the interest of brevity, though, we begin the story in 1977,
when Colonel Mengistu Haile Mariam took power in Ethio‐
pia. Colonel Mengistu ruled Ethiopia as a Marxist dictator,
imprisoning many political prisoners. One of them was Men‐
ghistab’s father, who was detained and jailed on several occa‐
sions during the late 1970s and early 1980s. The Menghistab
family is of Eritrean origin, and during that period Eritrean
revolutionaries were waging a war of independence against
the Ethiopian government. Menghistab’s father apparently
was detained because he was suspected of supporting the in‐
dependence movement. Shortly after a stint behind bars
ended in 1982, Menghistab’s father was able to obtain a stu‐
dent visa, which the family used to flee to the United States.
In 1988, Menghistab and his family were granted asylum.
Menghistab adjusted status to become a lawful permanent
resident a year later. He has resided in the United States ever
since. Menghistab’s parents became naturalized citizens
around 2000, but Menghistab never took that step. In 2010,
Menghistab’s parents traveled to Ethiopia on U.S. passports.
They were detained briefly at the airport but were then per‐
mitted to enter and were not subjected to any further adverse
treatment during their trip. As best we can tell from the rec‐
ord, Menghistab himself has not traveled to Ethiopia since his
family fled the country in 1982.
In 2011, in an Indiana state court, Menghistab was charged
with and pleaded guilty to rape. Upon learning of that con‐
viction, the Department of Homeland Security asserted that
he was removable as an aggravated felon. See 8 U.S.C.
§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggra‐
vated felony at any time after admission is deportable.”); id.
4 No. 21‐2099
§ 1101(a)(43)(A) (defining “aggravated felony” to include
“rape”). Because of his rape conviction and resulting six‐year
sentence, Menghistab was ineligible for asylum, discretionary
withholding of removal, and a waiver of removability. He
sought and was denied deferral of removal pursuant to the
Torture Convention, but, as we have explained, he was not
removed in 2013 because Ethiopia refused to issue an appro‐
priate travel document.
To explain events since 2013, we must briefly return to the
historical narrative. In 1991, Eritrea won de facto independence
from Ethiopia, with de jure independence following two years
later. Since that time, Eritrea has been ruled by an oppressive
dictatorship led by Isaias Afwerki. Also in 1991, an Ethiopian
revolutionary coalition overthrew Colonel Mengistu. The Tig‐
ray People’s Liberation Front (TPLF) spearheaded that coali‐
tion. The word “Tigray” in that organization’s name refers to
a region in Ethiopia’s far north, along the border with Eritrea.
Tigrayans, who reside mainly in that region, are the fourth‐
largest ethnic group in Ethiopia, making up about six percent
of the population. Despite their limited population share, Tig‐
rayans have dominated post‐revolutionary Ethiopian politics
because of the TPLF’s central role in overthrowing the Men‐
gistu dictatorship. Importantly for our purposes, Tigrayans
are not the same ethnic group as the Tigrinya or the Tigre, the
two largest ethnic groups in Eritrea. (That said, the Eritrean
Tigrinya and the Ethiopian Tigrayans speak different dialects
of the same language, which is—confusingly—also called Ti‐
grinya, while the Tigre speak a closely related but not mutu‐
ally intelligible language called Tigre.)
Ethiopia, led by the TPLF, and Eritrea, led by Afwerki,
fought a bloody war from 1998 to 2000. (A cold(er) war
No. 21‐2099 5
continued until 2018.) During the period of active belliger‐
ence, the Ethiopian government expelled thousands of ethnic
Eritreans, including many who held Ethiopian citizenship. A
substantial population also moved in the other direction. As a
result of the violence and destabilization along the border
during the war, as well as the depressed economic conditions
in Eritrea and the oppressive practices of the Afwerki regime,
a large Eritrean refugee community wound up in Ethiopia.
Before the ongoing Ethiopian civil war broke out, many of
those refugees were residing in camps in Tigray.
In April 2018, Abiy Ahmed Ali became the prime minister
of Ethiopia. Abiy is an ethnic Oromo, not a Tigrayan. The
Oromo are the plurality ethnic group in Ethiopia, accounting
for about 35 percent of the overall population. They reside
mainly in the south, south‐central, and west‐central portions
of the country. Though he was a member of a party in the rul‐
ing coalition when elected, Abiy’s election marked a sea
change in Ethiopian politics, because it brought about the end
of Tigrayan domination of that coalition. Since he took office,
Abiy has marginalized the TPLF and its political supporters,
designating the organization as a terrorist group and recon‐
stituting the ruling coalition to exclude Tigrayans. Abiy also
has negotiated a peace agreement and diplomatic thaw with
Eritrea, formally ending the cold war that had been in place
since open hostilities between the two countries ended in
2000. For his efforts, Abiy was awarded the 2019 Nobel Peace
Prize.
In November 2020, a civil war broke out between Tig‐
rayans and the Abiy‐led Ethiopian central government, with
most fighting concentrated in Tigray. We draw our account of
the events of that war, which has continued to unfold while
6 No. 21‐2099
this case has been pending, from both the evidence in the rec‐
ord and the State Department’s Country Reports for Ethiopia
and Eritrea. See Ayele v. Holder, 564 F.3d 862, 872–73 (7th Cir.
2009) (recognizing that a court may take judicial notice of
Country Reports and other similar sources when they provide
the “most recent evidence” of a relevant country’s changing
conditions). The civil war was immediately marked by wide‐
spread war crimes committed by both sides. For instance, the
State Department reports that the TPLF executed “approxi‐
mately 500” “non‐Tigrayan seasonal laborers” en masse in a
single incident less than a week into the war. U.S. Dep’t of
State, 2020 Country Reports on Human Rights Practice: Ethi‐
opia, at https://www.state.gov/reports/2020‐country‐reports‐
on‐human‐rights‐practices/ethiopia. Ethiopian state forces
quickly countered with similar atrocities against ethnic Tig‐
rayans. Such events led the U.S. Secretary of State in March
2021 to describe the events in Tigray as “ethnic cleansing.” See
CNN Politics, “Blinken: Acts of ‘ethnic cleansing’ committed
in Western Tigray,” Mar. 10, 2021, at
https://www.cnn.com/2021/03/10/politics/blinken‐tigray‐eth‐
nic‐cleansing/index.html.
Eritrea, too, has played a significant role in the conflict.
Shortly after fighting broke out, Eritrea joined the hostilities
on the side of the Ethiopian government. Its main purpose in
doing so appears to have been to use the war as cover to kill
or forcefully repatriate the Eritrean refugees in Tigray, many
of whom are hostile to the Afwerki regime. According to the
State Department’s most recent reports, Eritreans in Tigray
(caught, it seems, between a rock and a hard place) have suf‐
fered some of the worst atrocities of the war. See U.S. Dep’t of
State, 2021 Country Reports on Human Rights Practices: Eri‐
trea, at https://www.state.gov/reports/2021‐country‐reports‐
No. 21‐2099 7
on‐human‐rights‐practices/eritrea. Human‐rights organiza‐
tions and the State Department agree that the war has resulted
in the extrajudicial killing of Eritrean refugees and the
weaponization of rape. As a consequence, in late 2020, thou‐
sands of Eritrean refugees fled Tigray in the direction of Ad‐
dis Ababa. Reliable statistics since then are exceedingly hard
to come by, but it appears to be well within the realm of plau‐
sibility that a majority of the Eritrean refugees in Tigray who
did not flee the war zone in time have now been killed or dis‐
appeared—most likely by means of forceful repatriation to
Eritrea or conscription. See U.S. Dep’t of State, 2021 Country
Reports on Human Rights Practices: Ethiopia, at
https://www.state.gov/reports/2021‐country‐reports‐on‐hu‐
man‐rights‐practices/ethiopia (noting that as of October 2021,
the United Nations High Commissioner for Refugees “could
not account for the whereabouts of more than 6,000 Eritrean
refugees” in Tigray). And those who remain have been sub‐
jected to extreme violence, torture, starvation, rape, and dis‐
placement. In short, Tigray is presently one of the most dan‐
gerous places on earth, and the Eritrean refugees who are still
in the region risk death or torture on a near‐daily basis.
The same sources paint a similarly dire picture of condi‐
tions in Eritrea. The State Department reports that the Af‐
werki regime carries out “arbitrary or unlawful killings” on a
regular basis and often subjects political prisoners and other
detainees to physical and psychological torture. U.S. Dep’t of
State, 2020 Country Report on Human Rights Practices: Eri‐
trea, at https://www.state.gov/reports/2020‐country‐reports‐
on‐human‐rights‐practices/eritrea. One frequently used tor‐
ture method described in the State Department’s 2020 re‐
port—nicknamed “helicopter”—entails tying the prisoner’s
hands and legs behind him, then leaving him face‐down on
8 No. 21‐2099
the ground for 48 hours or more. Id. And the risk of oppres‐
sive treatment is considerable even for civilians not in formal
detention. Nearly all Eritrean citizens between the ages of 18
and 50 are legally obligated to perform so‐called “national
service.” This often entails conscripted military service in the
Eritrean armed forces now fighting in Tigray. National ser‐
vice may also entail unpaid forced labor—for instance, work‐
ing “72‐hour weeks in a mine.” Id. And citizens’ terms in na‐
tional service often last indefinitely “under threats of deten‐
tion, torture, or punishment of their families.” Id. In some doc‐
umented cases, terms of forced labor justified as national ser‐
vice have lasted as long as 17 years. Id.
With recent developments in hand, we return once again
to Menghistab. Just a few weeks after the Tigray War broke
out, Ethiopia changed course and issued him a travel docu‐
ment. The record does not shed any light on the reasons for
the about‐face, or on the odd timing. Nor does the record
make clear what sort of document Ethiopia issued. In this
court’s past experience, Ethiopia will sometimes issue a lais‐
sez‐passer, rather than a passport, to deportees from the
United States. See Haile v. Holder, 591 F.3d 572, 575–76 (7th Cir.
2010). A laissez‐passer is a limited‐purpose travel document
that does not establish the bearer’s citizenship.
After Ethiopia issued the travel document, Immigration
and Customs Enforcement, intending to execute the still‐valid
order of removal, detained Menghistab. Menghistab then
moved to reopen his case in light of the changed circumstance
of the Tigray War. The Board denied his motion. It concluded
that although Menghistab had met his burden to show that
conditions had changed in Ethiopia, he had not shown that
the change was material to his claim to relief under the
No. 21‐2099 9
Convention. The Board did not conduct a new evidentiary
hearing, relying instead on the evidence already in the record
as well as that submitted by Menghistab with his motion to
reopen. We granted Menghistab a stay of removal pending
disposition of his petition for review.
II
The Convention forbids the removal of “a person to an‐
other State where there are substantial grounds for believing
that he would be subjected to torture.” Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, art. 3(1), Dec. 10, 1984, 1465 U.N.T.S. 85. Fed‐
eral regulations provide for two remedies pursuant to the
Convention: withholding of removal, 8 C.F.R. § 208.16(c); and
deferral of removal, id. § 208.17. Both remedies permit a
noncitizen to remain in the United States upon a showing of
“a substantial risk” that she “will be tortured if removed.” Ro‐
driguez‐Molinero v. Lynch, 808 F.3d 1134, 1136 (7th Cir. 2015).
Deferral of removal is, however, more limited than withhold‐
ing. Even if granted at first, deferral may later be terminated,
on the Department’s motion, if an immigration judge con‐
cludes that the noncitizen can no longer show a substantial
risk of torture. 8 C.F.R. § 208.17(d). Because of his rape con‐
viction, Menghistab is eligible only for deferral of removal.
See id. § 208.16(d)(2). At this juncture, though, we are not di‐
rectly concerned with the merits of his entitlement to that re‐
lief. The only question before us relates to the denial of his
motion to reopen.
We review for abuse of discretion the Board’s denial of a
motion to reopen. Xiao Jun Liang v. Holder, 626 F.3d 983, 988
(7th Cir. 2010). Normally, motions to reopen must be made
within 90 days of a final order. 8 U.S.C. § 1229a(c)(7)(C)(i). But
10 No. 21‐2099
an exception may apply when the motion “is based on
changed country conditions arising in the country of nation‐
ality or the country to which removal has been ordered” and
the change of conditions is “material.” Id. § 1229a(c)(7)(C)(ii);
see also 8 C.F.R. § 1003.2(c)(3)(ii). The parties agree that coun‐
try conditions in Ethiopia have changed. They disagree, how‐
ever, over whether the changes are material to Menghistab’s
entitlement to deferral of removal.
In addition to identifying a material change in country
conditions, Menghistab also has the burden to establish
“prima facie eligibility for the underlying relief sought.” Boika
v. Holder, 727 F.3d 735, 738 (7th Cir. 2013) (discussing general
rules for motions to reopen in the removal context). We re‐
view the Board’s findings of fact bearing on that aspect of
Menghistab’s petition under “the substantial‐evidence stand‐
ard,” meaning that “‘the agency’s findings of fact are conclu‐
sive unless any reasonable adjudicator would be compelled
to conclude to the contrary.’” Nasrallah v. Barr, 140 S. Ct. 1683,
1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)).
We review any relevant questions of law—“whether
American, foreign, or international”—de novo. Garcia v. Pinelo,
808 F.3d 1158, 1162 (7th Cir. 2015) (citing FED. R. CIV. P. 44.1).
A
We begin with the question whether Ethiopia will con‐
sider Menghistab to be its citizen. The Board concluded that
it would. It asserted that Menghistab has “admit[ted] that he
is an Ethiopian citizen by birth” and framed the materiality
analysis in terms of “how Ethiopian citizens of Eritrean ethnic‐
ity are currently being treated in Ethiopia.” (Emphasis
added.) We review the Board’s factual findings underpinning
No. 21‐2099 11
its citizenship determination deferentially, but the ultimate
question of Menghistab’s citizenship is one of law, not of fact,
and so we review de novo the Board’s conclusion on that point.
See Garcia, 808 F.3d at 1162; see also FED. R. CIV. P. 44.1 (“The
court’s determination [of foreign law] must be treated as a rul‐
ing on a question of law.”). Reasoning through foreign law is
“notoriously difficult, because the U.S. reader is likely to miss
nuances in the foreign law, to fail to appreciate the way in
which one branch of the other countryʹs law interacts with an‐
other, or to assume erroneously that the foreign law mirrors
U.S. law when it does not.” Bodum USA, Inc. v. La Cafetière,
Inc., 621 F.3d 624, 638–39 (7th Cir. 2010) (Wood, J., concur‐
ring). Accordingly, we proceed with a healthy measure of
caution.
Considerable difficulty arises from the circumstances of
Eritrea’s independence, which was achieved on May 24, 1993,
and its relationship with Ethiopia over the years. See CIA
World Factbook, Eritrea, Government, at
https://www.cia.gov/the‐world‐factbook/countries/eri‐
trea/#government. Menghistab concedes that he was born in
Addis Ababa (Ethiopia’s capital) in 1969. But that settles little.
In contrast with U.S. nationality law, which is characterized
by a jus soli conception of citizenship, Ethiopian law employs
a jus sanguinis logic. See Ethiopian Constitution, art. 6, § 1;
Ethiopian Nationality Law of 1930, § 1. Which is to say, Ethi‐
opian citizenship turns on parentage, not place of birth. In
1969, when Menghistab was born, Ethiopia claimed all of the
territory that comprises present‐day Eritrea and did not rec‐
ognize Eritrea as a country—and so, necessarily, it did not
acknowledge even the possibility of Eritrean citizenship. The
Board was thus correct that at birth Menghistab was an Ethio‐
pian citizen. But now that Ethiopia does recognize the
12 No. 21‐2099
Eritrean State, Menghistab’s status falls into a lacuna in Ethi‐
opian nationality law. By that law’s present logic, Menghistab
would be Eritrean, not Ethiopian, because his parents were
Eritrean. The question, then, is whether Ethiopia will deter‐
mine Menghistab’s citizenship based on legal conditions at
the moment of his birth, or instead at the moment of his return
to Ethiopia (should he be sent there).
This is not the first time we have faced this question. In
Haile v. Holder, 591 F.3d 572, 574–76 (7th Cir. 2010), we consid‐
ered the asylum application of an ethnic Eritrean born (as was
Menghistab) in Addis Ababa in the late 1960s who alleged
that he would be deemed Eritrean and stripped of his Ethio‐
pian citizenship if deported to Ethiopia. As of 2010, the Haile
court found “that readmission is not automatic and that re‐
turning Ethiopians of Eritrean ethnicity are often denied full
rights of citizenship.” Id. at 575.
Our own review of the record and the relevant provisions
of Ethiopian law give us no reason to disagree with Haile’s
conclusions. Evidence in the record establishes that Ethiopian
nationals of Eritrean origin often have been reclassified by
Ethiopia as Eritrean citizens. In the aftermath of the 1993 Eri‐
trean independence referendum, most of those people who
registered to vote were presumed to have elected Eritrean cit‐
izenship and were treated by the Ethiopian government—
which applies a near‐categorical bar to dual citizenship—as
having renounced any claim to be Ethiopians. Another wave
of denaturalizations documented in the record came with the
1998 Ethiopian–Eritrean War (though at least some of those
who were denaturalized during that conflict later had their
Ethiopian citizenship reinstated by the 2003 Proclamation).
No. 21‐2099 13
The government in our case has not identified any source
that casts doubt on Haile’s conclusions about Ethiopia’s more
recent treatment of returning persons of Eritrean ethnicity. In
short, while we cannot fully rule out that Ethiopia will treat
Menghistab as one of its citizens if he is removed, that out‐
come is far from certain. On the record that we have, we can‐
not share the Board’s confidence about what will happen.
And, as we now explain, recent events establish that Men‐
ghistab’s citizenship may well be material to his risk of tor‐
ture.
B
For his motion to reopen to succeed, Menghistab must
demonstrate that the changed conditions in Ethiopia or Eri‐
trea are material to his risk of torture. The Convention defines
torture broadly, to include
any act by which severe pain or suffering,
whether physical or mental, is intentionally in‐
flicted on a person for such purposes as obtaining
from him or a third person information or a con‐
fession, punishing him for an act he or a third per‐
son has committed or is suspected of having com‐
mitted, or intimidating or coercing him or a third
person, or for any reason based on discrimination
of any kind, when such pain or suffering is in‐
flicted by or at the instigation of or with the con‐
sent or acquiescence of a public official or other
person acting in an official capacity.
Convention against Torture, art. 1(1).
Menghistab suggests two sequences of events that could
result in his being tortured. First, Menghistab argues that he
14 No. 21‐2099
may be tortured within Ethiopia if he is treated as an Eritrean
refugee. As we have explained, the plight of Eritrean refugees
in Ethiopia is, at present, dire. Thousands have been executed
en masse by the militaries and militias fighting in Tigray.
Thousands more have been tortured, displaced, raped, and
starved. The Board seemed to credit the factual accuracy of
Menghistab’s submissions, which thoroughly detail these
atrocities. It discounted Menghistab’s argument only because
it considered the treatment of Eritrean refugees in Ethiopia to
be irrelevant to the fate of an Ethiopian citizen of Eritrean eth‐
nicity. But if Menghistab is correct that Ethiopia will consider
him an Eritrean refugee rather than an Ethiopian citizen, his
submissions become relevant. Menghistab may, for instance,
be transported to a refugee camp in or near Tigray or be
turned over to the Eritrean forces now operating inside Ethi‐
opia with permission from the Ethiopian central government.
If either of those eventualities came to pass, overwhelming
evidence suggests that Menghistab would be tortured or exe‐
cuted.
And even if Menghistab manages to avoid detention and
remain in the capital region, where fighting has not so far oc‐
curred, he may still be tortured in the event of a crackdown
on the Eritrean refugee population now flocking to Addis Ab‐
aba. Eritreans remain deeply unpopular with large portions
of the Ethiopian public. The future treatment of the refugees
who escape the fighting is an unpredictable flash point in
Ethiopian politics. Moreover, Menghistab has submitted un‐
rebutted evidence that his name is recognizably Eritrean and
that he does not speak the languages of the politically ascend‐
ant non‐Eritrean and non‐Tigrayan ethnic groups. He is thus
a likely target in the event of any crackdown.
No. 21‐2099 15
Second, Menghistab argues that he also may be tortured
in Eritrea, in the event that Ethiopia elects to send him there.
As it did with his refugee theory, the Board discredited this
possibility because it assumed Menghistab would be treated
as an Ethiopian citizen, not because it disagreed with Men‐
ghistab’s account of changed country conditions in Eritrea. As
we have explained, those conditions are horrific. And the 2018
peace accord and ongoing military cooperation between Ethi‐
opia and Eritrea have rendered immigration‐enforcement co‐
operation between the two countries more feasible than it was
when Menghistab was first ordered removed. Thus, to the ex‐
tent that the Board misjudged Menghistab’s citizenship, this
theory may also establish a material change of conditions.
C
The Board also concluded that Menghistab’s failure to
show his prima facie eligibility for Convention relief provided
an independent basis to deny his motion. See Boika, 727 F.3d
at 738. A prima facie showing, though required, is not quite the
barrier to reopening the Board takes it to be. All Boika man‐
dates is that a petitioner present “sufficient evidence to
demonstrate a reasonable likelihood of success on the merits
so as to make it worthwhile to develop the issues further at a
full evidentiary hearing.” Id. at 742. As we have explained,
Menghistab has made out a reasonable case that Ethiopia may
not regard him as an Ethiopian citizen. In that case, he faces a
real possibility of torture. At this stage in the proceedings, that
suffices.
III
In his motion to reopen, Menghistab put forward consid‐
erable evidence establishing that the war in Tigray and
16 No. 21‐2099
accompanying military cooperation between Ethiopia and Er‐
itrea have increased the risk that Eritreans in Ethiopia will be
tortured. The Board’s main quibble was with the relevance of
that evidence to an Ethiopian citizen, which it assumed Men‐
ghistab to be. But that assumption was not warranted on the
record that was before the Board. Denying the motion to reo‐
pen without a full hearing addressing Menghistab’s citizen‐
ship and its materiality to his risk of torture was therefore an
abuse of discretion. Accordingly, we grant the limited relief
described below.
Before doing so, however, we note briefly the things we
do not decide today. First, we do not decide that Menghistab
has shown a material change of conditions. That decision, and
the decision whether to grant the motion to reopen, is the
Board’s to make in the first instance after it has conducted an
adequate hearing. Second, we do not resolve the question of
Menghistab’s citizenship. That, too, is for the Board, though
only its fact‐finding—not its legal conclusions—will be enti‐
tled to deference in the event of further review by this Court.
Third, we do not decide whether Menghistab is entitled to de‐
ferral of removal under the Convention against Torture.
The petition for review is GRANTED and the case is
REMANDED to the Board of Immigration Appeals. On remand,
the Board (or if it so chooses, an immigration judge) should
conduct an evidentiary hearing that addresses (1) whether
Ethiopia is likely to consider Menghistab to be one of its citi‐
zens; (2) whether changed conditions in Ethiopia are material
to the risk that Menghistab will be tortured if removed; and
(3) whether changed conditions in Eritrea are material to the
risk that Menghistab will be tortured if removed.