7th Circuit delays removal of Ethiopian immigrant at risk of torture in homeland

The 7th Circuit Court of Appeals has temporarily halted the removal of an Indiana immigrant to Ethiopia after it found credible his fear of torture if he is returned to the African country.

Mathusala Menghistab and his family, who are of Eritrean ethnicity, fled their homeland of Ethiopia and were granted asylum in the United States in 1988. Although his parents became naturalized citizens in 2000, Menghistab did not take that step.

After he pleaded guilty to rape in Indiana in 2011, Menghistab was subjected to removal proceedings as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). The process to remove him was interrupted in 2013 when Ethiopia refused to issue Menghistab a travel document, but in 2020 the African nation changed its stance and agreed to provide the paperwork necessary to accept him back into the country.

As Immigration and Customs Enforcement resumed the removal process, Menghistab turned to the Board of Immigration Appeals. He sought to reopen his case because the African country was embroiled in a brutal civil war, and he argued his personal safety would be in danger if he returned to Ethiopia because ethnic Eritreans were being tortured.

The board denied Menghistab’s motion without an evidentiary hearing.

However, on appeal, the 7th Circuit granted Menghistab’s petition for review in Mathusala Menghistab v. Merrick Garland, Attorney General of the United States, 21-2099, noting that because he has a rape conviction, he is only eligible for deferral of removal.

The appellate panel highlighted the shifting circumstances by pointing out that while it could not “fully rule out that Ethiopia will treat Menghistab as one of its citizens,” that outcome is “far from certain.” As such, the panel found “overwhelming evidence” that indicates Menghistab will be tortured or executed if he is returned to Ethiopia.

“In his motion to reopen, Menghistab put forward considerable evidence establishing that the war in Tigray and accompanying military cooperation between Ethiopia and Eritrea have increased the risk that Eritreans in Ethiopia will be tortured,” Judge Diane Wood wrote for the court. “The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be.

“But that assumption was not warranted on the record that was before the Board,” Wood continued. “Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.”

The 7th Circuit emphasized the narrowness of its ruling. In remanding the case, it said the board should conduct an evidentiary hearing to determine whether Menghistab will be considered a citizen of Ethiopia and how the conditions in Ethiopia and Eritrea are material to his risk of torture.

In the citation of the opinion, the panel is listed as Wood and Judges Michael Brennan and Michael Kanne. A footnote explained that Kanne died on June 16 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.”

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