Nantume v. Barr
Opinion
In
Sihotang
v.
Sessions
,
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
,
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 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
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.
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 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 *38 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 finality and the expeditious processing of [immigration] proceedings.' "
Sihotang
,
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
,
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
,
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
,
*39 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.
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
,
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.
To begin, the 2014 anti-homosexuality statute was signed into law before the petitioner's merits hearing 6 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 *40 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 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
,
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 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
,
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
,
*41
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
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,
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
,
The Executive Branch has the power to assist aliens trapped in this sort of cultural snare.
See
III. CONCLUSION
We need go no further. For the reasons elucidated above, we deny the petition for judicial review.
So Ordered .
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
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
,
Here, the country of nationality and the country of removal are one and the same: Uganda.
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
,
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.
In 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.
Reference
- Full Case Name
- Catherine Leoni NANTUME, Petitioner, v. William P. BARR, Attorney General, Respondent.
- Cited By
- 8 cases
- Status
- Published