Federal Appeals Court Refuses to Reopen Asylum Proceedings for Lesbian from Uganda
By Arthur S. Leonard. This article will appear in the August edition of LGBT Bar NY’s LGBT Law Notes, the most comprehensive monthly publication of LGBT legal Developments here and abroad. Subscribe:
The U.S. Court of Appeals for the 1st Circuit denied a petition by a lesbian from Uganda to order the Board of Immigration Appeals (BIA) to reopen her immigration case, finding that nothing she had introduced in support of her second petition for reopening showed that conditions for LGBT people in Uganda had gotten worse since the original proceeding in which she was ordered to be removed back to her home country. Nantume v. Barr, 2019 WL 3296962, 2019 U.S. App. LEXIS 21952 (July 23, 2019). Senior Circuit Judge Bruce Selya conceded the “disturbing” evidence concerning the situation of LGBT people in Uganda, but the panel found that this was beside the point on an untimely second motion to reopen, in which the primary issue is whether the petitioner had new evidence to present that conditions were worse than when the BIA originally ruled in her case.
The Petitioner entered the U.S. on a six month visitor’s visa in October 2001, overstayed the visa, and married a male U.S. citizen, attaining the status of lawful permanent resident in March 2004. But immigration authorities challenged the marriage’s validity, and ultimately proved that it was a sham marriage entered solely for immigration purposes. The Petitioner was convicted of conspiring to defraud the U.S. and was sentenced to a year in prison, after which removal proceedings were begun. While in prison, she “met a female prisoner with whom she developed a romantic relationship,” wrote Judge Selya. “This relationship outlasted the petitioner’s incarceration and led to the petitioner ‘coming out’ as a lesbian.” During the removal proceedings, she admitted the allegations of the Notice to Appear and conceded removability, as well as conceding that she was not entitled to any relief from removal, and the Immigration Judge (IJ) ordered her removed to Uganda on May 12, 2014. In other words, her counsel at that time appears not to have tried to overcome the taint of the felony conviction for a sham marriage by asserting a refugee claim based on her new-found sexual orientation. She did not appeal the IJ’s removal order, it a final agency order. But, she did not leave.
Apparently, this fiasco led her to find new counsel. Two months later, as fervent anti-gay propaganda in Uganda inspired the legislature to consider a draconian new anti-gay criminal law, and represented by her new counsel, who were evidently more tuned-in to the LGBT issue than her prior counsel, she filed a timely motion to reopen her removal proceedings, seeking to apply for asylum, withholding of removal, and protection under the Convention against Torture (CAT). She sought a stay of the outstanding removal order, predicating these filings on her recent identification as a lesbian and thus a member of a social class recognized under U.S. immigration law for purposes of refugee status, depending of course on a finding that members of the LGBT community are subject to persecution in their home country.
Since the Petitioner had never been “out” as a lesbian in Uganda, she had no incident of actual persecution of herself to present, so her case for re-opening relied on two “new” facts: that she now identified as an “out” lesbian, and that Uganda had passed a new anti-gay law, in support of her contention that conditions for LGBT people in Uganda were worsening. The problem she had was that these were not really “new” facts with respect to her original removal hearing. She had already identified as a lesbian at that time, and the new law was actually signed by the President of Uganda while her original removal hearing was in progress. Her original counsel, perhaps oblivious to this issue, had made nothing of them. The court’s opinion says nothing about this, but it strikes us as possible that she had not told her original counsel that she was a lesbian, but apparently her new representatives made a valiant attempt to repair that problem.
On August 11, 2014, the IJ denied her petition to reopen the case, and the BIA rejected her appeal of this ruling on February 6, 2015. She did not seek judicial review at that time. Although she was thus still subject to the original removal order, she remained in the U.S. In the meantime, the 2014 anti-gay law in Uganda was declared to have been invalidly enacted in a ruling bythat nation’s highest court. A new law was passed in 2016, denying recognized non-governmental organization status to any groups formed to work for LGBT rights. On June 25, 2018, the Petitioner filed a second motion to reopen her removal case, which was untimely under the rules governing these proceedings, but she attached “a trove of documents (including country conditions reports, family correspondence, photographs, and a psychiatric assessment) aimed in part at showing changed circumstances.” The BIA rejected this motion as well, finding that it was procedurally barred, and, besides, that her new evidence had “failed to establish a material change in Ugandan country conditions.” This time, she petitioned for judicial review. While her petition was pending at the 1st Circuit, she was finally removed from the U.S. back to Uganda, but the court stated in a footnote, “Her removal does not affect the justiciability of her petition for review.”
The issue for the court was two-fold. First, because this petition was untimely under the rules governing this process, did she qualify for an exception? “To fit within the narrow confines of the exception applicable to untimely motions to reopen, an alien must breach two barriers,” wrote Judge Selya. “First, the alien must show that the change in country conditions is material and must support that showing by evidence that was either unavailable or undiscoverable at the time of her merits hearing.” (Note that the merits hearing took place beginning on February 20, 2014, and consumed several hearing days extending over a period of weeks into May 2014.) “Second, the alien must show prima facie eligibility for the substantive relief that she seeks (here, asylum, withholding of removal, and CAT protection”), and she bears the burden of proof as to both.
The court decided that since the Petitioner had not met the burden of showing materially changed circumstances, her petition must be denied, regardless whether she could have shown prima facie eligibility for substantive relief. Indeed, the problem she faced was apparently insurmountable, because the situation for “out” LGBT people is, all concede, dire, but it has been so throughout the period covered by the Petitioner’s removal proceedings, and she missed the boat on this issue by not presenting the necessary evidence in her original proceeding. Her attempt to show that things had gotten worse “is belied by the record,” wrote Judge Selya, “which makes manifest that Uganda has historically and persistently discriminated against individuals who engage in same-sex sexual activity. . . To be sure, the submitted materials reflect an ongoing animus toward LGBT individuals in Uganda (manifested through harassment, violence, and the like). The record contains nothing, however, that fairly suggests a deepening of this animus over the relevant period. Instead, it discloses that the criminalization of same-sex sexual activity has ‘remained’ official policy [since colonial times] . . . Put bluntly, the situation is dreadful — but it has been dreadful throughout the relevant period. The petitioner’s submissions fail to show that the level of hostility, persecution, or other mistreatment intensified between May of 2014 (when the merits hearing concluded) and June of 2018 (when the petitioner’s second motion to reopen was filed).”
The court found that legislative activity in Uganda in 2014 and 2016 cited by the Petitioner did not change this conclusion. She could have brought up the 2014 sodomy law amendments during her initial hearing, but evidently did not, and the BIA had found that the more recent enactment did not materially change the treatment of LGBT individuals in Uganda. In light of these findings, the court concluded that the BIA had acted within its discretion in finding that Petitioner’s evidence did not show a material adverse change of conditions in Uganda during the relevant time, thus an essential ground for reopening the case was not met.
“Let us be perfectly clear,” wrote Selya. “We have no illusions about what is happening in Uganda with respect to LGBT individuals,” citing to Sexual Minorities Uganda v. Lively, 899 F. 3d 24 (1st Cir. 2018), reviewing an appeal in a case arising out of a ‘vicious and frightening campaign of repression against LGBTI persons in Uganda’ as found by the district court in that case. “We regard the views of the Ugandan government toward members of the LGBT community as benighted, and we know that the petitioner’s life in her homeland may prove trying. But the conditions that confront LGBT individuals in Uganda, though disturbing, are not new. Those conditions have persisted for decades, and they have not materially changed in the relatively brief interval between the conclusion of the petitioner’s 2014 merits hearing and the filing of her 2018 motion to reopen.”
The court pointed out that the Petitioner has one more possible route: to petition the Attorney General to parole her into the United States for “urgent humanitarian reasons.” Selya pointed out that the courts “are bound by a more rigid framework of legal rules and cannot reconstruct those rules to achieve particular results. It follows that our antipathy for certain of the norms that prevail in Uganda, without more, does not authorize us to bar the removal of a Ugandan national to that country.” Dickensian, no?
The three-judge panel of the 1st Circuit that decided this case is composed entirely of Republican appointees. Senior Circuit Judge Selya and Circuit Judge Torruella were appointed by Ronald Reagan, and Chief Circuit Judge Howard was appointed by George W. Bush.
The Petitioner is represented by Melanie Shapiro, with Harvey Kaplan and the Harvard Law School Immigration and Refugee Clinic at Greater Boston Legal Services on the brief. Perhaps they can quickly get up an application to Attorney General Barr for discretionary relief, but the Petitioner’s past conviction of a serious felony (fraud on the U.S. regarding her sham marriage) makes her case more difficult, due to the moral turpitude standards applied in withholding cases.