Nantume v. Barr , 931 F.3d 35 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1911
CATHERINE LEONI NANTUME,
Petitioner,
v.
WILLIAM P. BARR,
Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
Melanie Shapiro, with whom Law Office of Melanie Shapiro,
Harvey Kaplan, and Harvard Law School Immigration and Refugee
Clinic at Greater Boston Legal Services, were on brief, for
petitioner.
Scott Grant Stewart, Deputy Assistant Attorney General, Civil
Division, U.S. Department of Justice, with whom Joseph H. Hunt,
Assistant Attorney General, Kiley Kane, Senior Litigation Counsel,
Office of Immigration Litigation, and Jane T. Schaffner, Trial
Attorney, Office of Immigration Litigation, were on brief, for
respondent.
July 23, 2019
SELYA, Circuit Judge. In Sihotang v. Sessions, 900 F.3d
46 (1st Cir. 2018), we explained that "[m]otions to reopen —
especially untimely motions to reopen — are disfavored in
immigration cases. Consequently, an alien who seeks to reopen
removal proceedings out of time ordinarily faces a steep uphill
climb." Id. at 48. This case aptly illustrates the difficulty of
the ascent.
We do not gainsay that the conditions the petitioner
must face in her homeland are disturbing — but the Board of
Immigration Appeals (BIA) determined that those conditions had not
materially changed during the relevant period; they simply had
persisted. Mindful both that our standard of review is deferential
and that hard cases often have the potential to make bad law, see
United States v. Clark, 96 U.S. 37, 49 (1877) (Harlan, J.,
dissenting) (quoting Lord Campbell in East India Co. v. Paul, 7
Moo. P.C.C. 111); Lopez de Hincapie v. Gonzales, 494 F.3d 213, 221
(1st Cir. 2007), we uphold the BIA's refusal to reopen the
petitioner's removal proceedings.
I. BACKGROUND
The petitioner, Catherine Leoni Nantume, is a Ugandan
national. In October of 2001, she entered the United States by
means of a visitor's visa, which allowed her to remain for six
months. She overstayed and, following her marriage to a male
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United States citizen, became a lawful permanent resident in March
of 2004. See 8 U.S.C. § 1186a(a).
The government subsequently challenged the validity of
the marriage and, nearly eight years after the fact, proved that
it was a sham. The petitioner was convicted of conspiring to
defraud the United States, see 18 U.S.C. § 371, and the district
court sentenced her to a one-year term of immurement. While
serving her prison sentence, the petitioner met a female prisoner
with whom she developed a romantic relationship. This relationship
outlasted the petitioner's incarceration and led to the petitioner
"coming out" as a lesbian.
Shortly after the petitioner's release from custody,
removal proceedings began. At a hearing held on February 20, 2014,
the petitioner admitted the factual allegations set out in the
charging document (the Notice to Appear) and conceded
removability.1 She later conceded that she was not eligible for
any relief from removal. The immigration judge (IJ) ordered her
removed to Uganda on May 12, 2014 — a final agency order that the
petitioner did not appeal.
1 Although the petitioner conceded removability on other
grounds, she did not concede that she was an alien who had been
convicted of a crime involving moral turpitude. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I); id. § 1227(a)(2)(A)(i). Her efforts to
defeat that charge ultimately proved unsuccessful.
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Roughly two months later, the petitioner — represented
by new counsel — filed a timely motion to reopen her removal
proceedings, seeking to apply for asylum, withholding of removal,
and protection under the United Nations Convention Against Torture
(CAT). She likewise sought a stay of removal. The petitioner
predicated these filings namely on her recent self-identification
as a lesbian, which established her membership in the lesbian,
gay, bisexual, and transgender (LGBT) community. At the same time,
she complained of the passage of a new law in Uganda (signed on
February 24, 2014) that criminalized homosexuality as a felony
offense. On August 11, 2014, the IJ denied the petitioner's motion
to reopen, finding that the evidence on which she relied — that
is, the evidence of her nascent sexual identity and the passage of
the anti-homosexuality law — was previously available and could
have been discovered and presented at her merits hearing. The BIA
rejected the petitioner's appeal of this denial on February 6,
2015. The petitioner did not seek judicial review of the BIA's
ruling.
Matters remained in limbo for more than three years. On
June 25, 2018, the petitioner again attempted to revive her case.
This time, she filed a motion to reopen before the BIA, along with
a motion for a stay of removal. Her second motion to reopen was
strikingly similar to her first: it sought the same relief on
nearly the same grounds, save for an added reference to a new
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Ugandan law, enacted in 2016. Because the petitioner's second
motion to reopen was untimely, she attached a trove of documents
(including country conditions reports, family correspondence,
photographs, and a psychiatric assessment) aimed in part at showing
changed circumstances. Notwithstanding these submissions, the BIA
denied the motion, determining that it was procedurally barred and
that the petitioner had failed to establish a material change in
Ugandan country conditions. This petition for judicial review
followed.2
II. ANALYSIS
In her petition for judicial review, the petitioner
challenges the BIA's denial of her second (untimely) motion to
reopen. She insists that the "evidence shows a deterioration of
conditions for LGBT individuals in Uganda" during the relevant
period. In her view, we should order the case reopened and remand
for a full evidentiary hearing.
We preface our discussion of these claims with familiar
lore. "Motions to reopen removal proceedings are disfavored
because they impinge upon 'the compelling public interests in
2
In the interim between the BIA's denial of her second motion
to reopen and oral argument in this court on her petition for
review, the petitioner was removed to Uganda. Her removal does
not affect the justiciability of her petition for review. See
Bolieiro v. Holder, 731 F.3d 32, 38-39 (1st Cir. 2013) (rejecting
"proposition that the post-departure bar precludes a noncitizen
who has departed the country from vindicating her statutory right
to seek reopening").
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finality and the expeditious processing of [immigration]
proceedings.'" Sihotang, 900 F.3d at 49 (quoting Bbale v. Lynch,
840 F.3d 63, 66 (1st Cir. 2016)). Consequently, "we review the
BIA's denial of a motion to reopen under a highly deferential
abuse-of-discretion standard." Pineda v. Whitaker, 908 F.3d 836,
840 (1st Cir. 2018). To "prevail under this standard, the movant
must carry the heavy burden of establishing that the BIA made an
error of law or acted in a manifestly arbitrary or capricious
manner." Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005).
We recognize, of course, that "[a]ppellate review in
this esoteric corner of the law plays out against a well-defined
statutory and regulatory mosaic." Beltre-Veloz v. Mukasey, 533
F.3d 7, 10 (1st Cir. 2008). The pieces of the mosaic that are
most prominent here set forth specific constraints on motions to
reopen. Such initiatives are restricted to a single motion to
reopen, which must be filed within ninety days of the final agency
order. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.23(b). These
restrictions, though, are not immutable: they may be relaxed if
an alien can establish "changed country conditions arising in the
country of nationality or the country to which removal has been
ordered." 8 U.S.C. § 1229a(c)(7)(C)(ii).3
3 Here, the country of nationality and the country of removal
are one and the same: Uganda.
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To fit within the narrow confines of the exception
applicable to untimely motions to reopen, an alien must breach two
barriers. 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. See Garcia-Aguilar v. Whitaker, 913 F.3d 215, 218
(1st Cir. 2019). Second, the alien must show prima facie
eligibility for the substantive relief that she seeks (here,
asylum, withholding of removal, and CAT protection). See Chen v.
Lynch, 825 F.3d 83, 87 (1st Cir. 2016). The alien must carry the
devoir of persuasion with respect to both of these requirements.
See id.; see also 8 U.S.C. § 1229a(c)(7)(B), (C)(ii).
For present purposes, we may start and end with the first
requirement: changed country conditions. In evaluating whether
the petitioner has satisfied this requirement, the BIA must compare
"the evidence of country conditions submitted with the motion to
those that existed at the time of the merits hearing." Liu v.
Holder, 727 F.3d 53, 57 (1st Cir. 2013) (quoting In re S-Y-G-, 241
I. & N. Dec. 247, 253 (BIA 2007)). "If the newly submitted evidence
reveals no more than a continuation of previously existing
conditions, it is inadequate to show changed country
circumstances." Chen, 825 F.3d at 87; see Mejía-Ramaja v. Lynch,
806 F.3d 19, 21 (1st Cir. 2015). Even where, as here, an alien
asserts a change in her personal situation along with changed
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country conditions, she must still establish a material change in
country conditions to cross the evidentiary threshold. See Wang
v. Lynch, 795 F.3d 283, 286 (1st Cir. 2015).
The chief claim of error mounted in this case relates to
the denial of the petitioner's untimely second motion to reopen.
The petitioner tries to circumvent the time-and-number bar by
arguing that the evidence she submitted to the BIA demonstrated
changed country conditions, specifically, the intensification of
persecution of LGBT individuals in Uganda.4
This argument is belied by the record, which makes
manifest that Uganda has historically and persistently
discriminated against individuals who engage in same-sex sexual
activity. For instance, one of the country conditions reports
tendered by the petitioner states unequivocally that "[c]onsensual
same-sex sexual conduct is illegal according to a colonial era
law."5 In other words, official hostility toward homosexual
activity in Uganda long predated the petitioner's applications for
relief.
4 As the government points out, some documents relied upon by
the petitioner in this court (including an assortment of Ugandan
legislative materials) were never submitted to the BIA. In as
much as we are constrained to consider only the record that was
before the agency, see Tay-Chan v. Holder, 699 F.3d 107, 111 (1st
Cir. 2012), these additional documents cannot be taken into
account, see 8 U.S.C. § 1252(b)(4)(A).
5 This reference to the "colonial era" is clearly a reference
to the time when Uganda was a British colony. Uganda gained its
independence in 1962.
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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. Cf.
Cabas v. Barr, ___ F.3d ___, ___, (1st Cir. 2019) [No. 18-1630,
2019 WL 2723367, at *3] (finding intensification where occasional
violence morphed into frequent violence). 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).
In an effort to obscure this reality, the petitioner
points to two recent laws enacted in Uganda (one in 2014 and the
other in 2016). These enactments, she says, made the situation
worse and, thus, the BIA abused its discretion in finding no
material change in country conditions. We do not agree.
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To begin, the 2014 anti-homosexuality statute was signed
into law before the petitioner's merits hearing6 and, therefore,
was available and discoverable at the time of that hearing. In
any event, the 2014 statute was nullified by the Ugandan
Constitutional Court shortly after the statute took effect.
Plainly, then, the 2014 law is a nullity and, a fortiori, does not
denote a material change in country conditions.
The 2016 law cited by the petitioner — the Non-
Governmental Organizations Act (NGO Act) — was signed by Uganda's
president in January of 2016. It was, therefore, unavailable to
the petitioner at her merits hearing.
The petitioner submits that the NGO Act "makes it more
difficult for LGBT advocacy organizations to operate." The BIA
acknowledged that this might be so, but it found that such a
tangential effect did not amount to a material change in country
conditions because it did "not materially change the treatment of
LGBT individuals" in Uganda. This finding is supported by the
2017 State Department Country Report (2017 Country Report), which
specifically mentions the NGO Act but does not identify any impact
that it might have on the treatment of LGBT individuals in Uganda.
Considering the record as a whole, we are satisfied that the BIA
6In her second motion to reopen, the petitioner represented
that her merits hearing concluded on May 12, 2014. Despite some
ambiguity in the record, we hold her to this representation.
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acted within the wide margins of its discretion in determining
that the NGO Act did not signal a material change in country
conditions.
The petitioner has a fallback position. She contends
that the BIA abused its discretion by "neglect[ing] to consider
. . . the 2017 State Department's Country Report on Uganda." This
contention is unconvincing.
It is common ground that the BIA is under no obligation
"to parse an alien's submissions one by one and cite book and verse
when rejecting the alien's conclusions." Garcia-Aguilar, 913 F.3d
at 221. This principle has particular pertinence here because the
petitioner submitted a compendium of country conditions reports as
a single exhibit (Exhibit G), and the BIA cited Exhibit G in its
decision. We have no basis for concluding that the BIA cited
Exhibit G without reviewing its component parts. Cf. Raza v.
Gonzales, 484 F.3d 125, 128 (1st Cir. 2007) (observing that "[i]t
is enough if the agency fairly considers the points raised by the
complainant and articulates its decision in terms adequate to allow
a reviewing court to conclude that the agency has thought about
the evidence and the issues and reached a reasoned conclusion").
There is another — and more important — reason why the
petitioner's contention faces strong headwinds. The petitioner
points to nothing in the 2017 Country Report that plausibly
suggests the existence of a material change in country conditions
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for LGBT individuals. Nor does she point to any meaningful
inconsistency between the 2017 Country Report and the BIA's
decision.
Of course, the 2017 Country Report does describe the
"criminalization of same-sex consensual sexual conduct" as one of
"[t]he most significant human rights issues" in Uganda. But that
report does not indicate that the significance of the issue has
increased over the relevant period; to the contrary, it makes
pellucid that consensual same-sex conduct has been criminalized
ever since Uganda attained its independence. Thus, the report
"reveals no more than a continuation of previously existing
conditions." Mejía-Ramaja, 806 F.3d at 21.
The personal documents that the petitioner submitted to
the BIA (including correspondence and a psychiatric assessment) do
not require a different conclusion. The letters are mostly from
family members, who express concern for the petitioner's safety in
Uganda due to the mistreatment faced by LGBT individuals; the
psychiatric assessment attests to the petitioner's LGBT identity.
Those documents would have undeniable relevance were we to reach
the question of the petitioner's prima facie eligibility for
asylum. See Perez-Rabanales v. Sessions, 881 F.3d 61, 66-67 (1st
Cir. 2018); see also Kadri v. Mukasey, 543 F.3d 16, 21 (1st Cir.
2008) (noting that "[s]exual orientation can serve as the
foundation for a claim of persecution, as it is the basis for
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inclusion in a particular social group"). We do not reach that
question: given the posture of this case, the petitioner must
first establish that there has been a material change in country
conditions. See Wang, 795 F.3d at 286 ("A change in personal
circumstances alone does not meet the standard for the exception
to the time bar for changed country conditions.").
The petitioner nonetheless asserts that her "coming out"
as a lesbian, evidenced by certain of these submissions, is
relevant to an assessment of whether country conditions in Uganda
have materially changed. This assertion is unpersuasive. Although
the petitioner's "coming out" may mark a significant change in her
personal circumstances, any such change would be relevant only to
the extent that she can also demonstrate that conditions have
worsened generally for LGBT individuals in Uganda. See id. at
286-87. She has failed to make such a showing.
The short of it is that nothing in the collection of
personal documents submitted by the petitioner undermines the
BIA's finding that that "Uganda has longstanding animus towards
[the] LGBT community." Accordingly, we conclude that the BIA acted
within its discretion in finding that the papers submitted with
the petitioner's second motion to reopen demonstrated a
persistence of negative conditions for members of the LGBT
community in Uganda, not a material change in those conditions.
See Lie v. Holder, 729 F.3d 28, 31 (1st Cir. 2013). "That
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conditions have failed to improve is not enough to show that they
have changed." Mejía-Ramaja, 806 F.3d at 21. Based on the record
before us, there is no principled way in which we can say that the
BIA abused its discretion in finding that the petitioner failed to
show a material change in country conditions.
Let us be perfectly clear. We have no illusions about
what is happening in Uganda with respect to LGBT individuals. See,
e.g., Sexual Minorities Uganda v. Lively, 899 F.3d 24, 29 n.1 (1st
Cir. 2018) (reviewing appeal in case arising out of "vicious and
frightening campaign of repression against LGBTI persons in
Uganda" (quoting Sexual Minorities Uganda v. Lively, 254 F. Supp.
3d 262, 264 (D. Mass. 2017))). 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 Executive Branch has the power to assist aliens
trapped in this sort of cultural snare. See 8 U.S.C.
§ 1182(d)(5)(A) (granting Attorney General discretion to "parole
into the United States . . . on a case-by-case basis for urgent
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humanitarian reasons . . . any alien applying for admission to the
United States"). But 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.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
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