Feb. 7, 2017 – A woman with ties to a terrorist group that has targeted the Ethiopian government recently lost her case to stay in the U.S. but her removal to Ethiopia is on hold until there’s proof she won’t be tortured there, a federal appeals court has ruled.

In S.A.B v. Boente, Nos. 15-1834 (Feb. 2, 2017), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit ruled that petitioner cannot obtain asylum status in the U.S. but she cannot be deported to Ethiopia while under threat of torture.

The woman, identified as S.A.B., is an Ethiopian citizen who entered the U.S. in 2004 on a visitor’s visa that expired that same year. While in the U.S., she applied for asylum and for withholding of removal. Those claims were denied in Immigration Court.

She was deemed “removable” or “deportable” to Ethiopia for overstaying the visa. But S.A.B. renewed her claims on the basis that if removed to Ethiopia, she would be subjected to torture by the Ethiopian government, which had previously tortured her.

The record revealed that S.A.B. was a former member of the Oromo Liberation Front (OLF), which opposes the Ethiopian government. The Oromo people are the largest ethnic group in Ethiopia and OLF believes the government discriminates against them.

Now in her 60s, S.A.B. admitted her former OLF membership and admitted to materially supporting OLF in the form of minor donations, solicitations, and recruitment efforts.

In 2002, after the Ethiopian government reported that OLF was responsible for killings, S.A.B. said she was imprisoned and tortured but never tried or sentenced. Her husband disappeared and was not found. S.A.B. fled the country upon her release from prison.

A U.S. immigration judge ruled that S.A.B. was not entitled to asylum or withholding of removal from the U.S. because of her ties to the OLF, which the judge classified as a “Tier III” terrorist organization under U.S. federal law.

Specifically, under 8 U.S.C. section 1182(a)(3)(B)(vi), persons affiliated with “terrorist organizations” are ineligible to be admitted into the U.S., by visa or otherwise.

A “Tier III” terrorist organization includes a “group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engaged in” defined “terrorist activities.” S.A.B. admitted her OLF affiliation, but on appeal she argued that the OLF is not a terrorist organization and if it was, she didn’t know that it was.

Those subject to deportation for supporting a terrorist group can still seek asylum protection if they demonstrate clear evidence that they did not know.

A history professor at Valparaiso University who specializes in Ethiopian politics testified on S.A.B.’s behalf. He said bombings and other attacks against the Ethiopian government had been attributed to OLF but there was no verifiable or credible evidence that OLF and not some other group was actually responsible for those violent acts.

But the three-judge panel, in an opinion by Judge Richard Posner, noted that S.A.B. should have been aware of evidence that OLF engaged in terrorist activity, based on credible sources that linked OLF to attacks against the Ethiopian government.

“[T]he immigration judge had enough evidence to conclude that the OLF had committed a number of violent acts, killing a significant number of people, over a period of years that included the years in which SAB was a member,” Judge Posner wrote.

Posner also noted that S.A.B. should have been aware of the OLF’s activities. He noted that OLF claimed responsibility for a 2002 bombing that killed 14 people.

“Indeed there were numerous reports of OLF violence between 2001 and 2004 … including some from the OLF’s official channel – the ‘Voice of Oromo Liberation,’” Judge Posner wrote for the three-judge panel. “SAB, solidly middle class, a business woman, could not have missed all these reports or reasonably thought all of them fraudulent.”

The panel affirmed the lower immigration judge’s finding that S.A.B. knowingly supported a terrorist organization and that she was barred from obtaining asylum, even though the judge also found that she would likely be tortured if deported to Ethiopia.

But the panel also affirmed the lower immigration judge’s determination that S.A.B.’s removal to Ethiopia must be deferred if she is under the threat of torture.

Under 8 C.F.R. section 1208.17 (deferral of removal under the Convention Against Torture), “removal to the country where he or she is more likely than not to be tortured shall be deferred until such time as the deferral is terminated.” Termination could occur if a removal subject can no longer show that a deportation will likely result in torture.