Kaweesa v. Ashcroft
| Citation | 345 F.Supp.2d 79 |
| Decision Date | 18 November 2004 |
| Docket Number | No. CIV.A.04-10513-WGY.,CIV.A.04-10513-WGY. |
| Parties | Juliette KAWEESA, Petitioner, v. John D. ASHCROFT, Attorney General, Bruce Chadbourne, Interim Field Director for Detention and Removal, Boston Field Office, Bureau of Immigration and Customs Enforcement, Kathleen M. Dennehy, Acting Commissioner, Massachusetts Dep't of Corrections, and the Bureau of Immigration and Customs Enforcement Respondents. |
| Court | U.S. District Court — District of Massachusetts |
Elizabeth Broderick, Lowell, MA, for Juliette Nalubwama Kaweesa, Petitioner.
Alexandra F. Dufresne, Boston College Immigration and Asylum Project, Newton, MA, for Juliette Nalubwama Kaweesa, Petitioner.
Mark J. Grady, United States Attorney's Office, Boston, MA, for Bruce Chadbourne, John D. Ashcroft, Kathleen M. Dennehy, Respondents.
Daniel Kanstroom, Law Office of Daniel Kanstroom, Somerville, MA, for Juliette Nalubwama Kaweesa, Petitioner.
Ara H. Margosian, Law Offices of Ara H. Margosian, P.C., Watertown, MA, for Juliette Nalubwama Kaweesa, Petitioner.
Mark E. Pelosky, The Law Office of Mark E. Pelosky, Chelsea, MA, for Juliette Nalubwama Kaweesa, Petitioner.
Habeas petitioner Juliette Kaweesa ("Kaweesa") seeks review of an order of removal entered in absentia, and of the refusals of the hearing officer and the Board of Immigration Appeals ("BIA") to reopen her case and to consider her for asylum or for withholding of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment1 ("Convention Against Torture"). The respondents (the "government") argue that this Court lacks jurisdiction over Kaweesa's claims, and that they fail on the merits. For the reasons stated below, the Court holds that it has habeas jurisdiction over at least one of Kaweesa's claims, but that the proper course is to transfer the case to the United States Court of Appeals for the First Circuit for consideration of a claim that lies exclusively within that court's jurisdiction.
I. INTRODUCTION
A. Factual Background and Procedural History
The Court's description of the factual background relies on Kaweesa's contentions, which are supported by record evidence.
Kaweesa served as a Christian minister in a well-known preaching and music ministry in Kampala, Uganda, and worked primarily with women and children. See Pet. for Writ of Habeas Corpus and Emergency Mot. for Prelim. Inj. Staying Removal [hereinafter "Pet."] [Doc. No. 10] Exs. 2.6 (4/9/04 Aff. of Rev. Baker Katende), 8 (motion to reopen removal proceedings), 10 (Kaweesa's Declaration). Her ministry involved preaching, singing, and leading prayer groups. Id. She became involved with a group called Human Rights Africa, and shared that group's message of respect for women with the women to whom she spoke through her ministry. Id. Ex. 10; see id. Ex. 3 (application for asylum).
Kaweesa's husband, Stephen, was the pastor of the Heritage Revived Church in Uganda until he was taken away from their home by government security officers in 1994. Id. Exs. 2-3, 8, 10. He was never heard from again and is presumed dead. Id. Kaweesa believes that her husband and her brother were involved in a rebel freedom movement or opposition party. Id. Kaweesa also has information that both her parents and her brother have been killed. Id. Ex. 2.1 (copy of 4/12/04 Grodin Aff.) [hereinafter "4/12/04 Grodin Aff."], ¶ 20.
Soon after her husband was disappeared,2 Kaweesa was detained by government security forces while she was about to speak at one of her church's "Crusades." Pet. Exs. 2-3, 8, 10. Men in military uniforms took her to military barracks outside Kampala, where she was detained, interrogated, beaten, kicked, and raped by several different men. Id. The interrogations focused particularly on her activities with women and children. See Kaweesa Decl. [Doc. No. 6] ¶ 3. She was released from detention, and entered the United States on August 2, 1994, on a B visa that she had obtained to attend a religious conference. Id. ¶ 4. According to the government, Kaweesa was authorized to remain in the United States until February 1, 1995, and has remained in the country unlawfully since then. Resp'ts Mem. [Doc. No. 25] at 1.
Kaweesa filed a pro se application for asylum on October 28, 1997, and on February 22, 1999, her case was referred to a hearing officer for lack of detail. See Pet. Exs. 3, 4 (referral notice). According to the government, removal proceedings were begun against her by an administrative Notice to Appear dated February 23, 1999, and she was charged with deportability under 8 U.S.C. § 1227(a)(1)(B), as being an alien who has remained in the United States for a time longer than permitted. Resp'ts Mem. at 1; see id. Ex. 1 (Notice of Removal). Thus it appears that she came to the government's attention because of her asylum application.
Kaweesa was sent a notice that her Master Calendar hearing was scheduled for May 13, 1999, but she misremembered the date as May 17, 1999. See Pet. Exs. 8, 10. She failed to attend the May 13, 1999 hearing, and the hearing officer entered an order of removal in absentia.
When she realized her mistake, on or about May 17, 1999, she went to the Immigration Court and asked to speak to the hearing officer. 6/7/04 Kaweesa Aff. ¶ 5. The clerk told her that she could file a Motion to Reopen, so she filed a handwritten Motion to Reopen on May 19, 1999, and later retained Attorney Daniel Cashman ("Cashman") to supplement her Motion. See Pet. Exs. 8 (Motion to Reopen), 10. The Immigration Service did not oppose Kaweesa's Motion. Id. Ex. 5 (hearing officer's Denial of Motion). It is unclear from the record whether it is common for motions to reopen to go unopposed, or whether there was something special about Kaweesa's case.
On June 23, 1999, the hearing officer denied Kaweesa's Motion to Reopen. In denying the Motion, the hearing officer stated:
Although the respondent's error is not incomprehensible, she has failed to demonstrate that exceptional circumstances beyond her control prevented her from attending these proceedings. The respondent could have easily contacted the Court to verify her hearing date to avoid her dilemma.
The BIA affirmed without opinion on May 6, 2002. Kaweesa's brief had argued that the hearing officer should have excused Kaweesa's failure to attend her hearing on grounds of exceptional circumstances, and that the BIA was in any case free to consider her asylum claim, even if an order of removal in absentia was in place. See Pet. Ex. 6 (). Cashman informed Kaweesa of the denial via a letter, but never informed her that he no longer wished to represent her. 6/7/04 Kaweesa Aff. ¶¶ 10-12. He never contacted Kaweesa again, and never responded to any of her telephone calls. Id. ¶ 11. He never informed her of her legal options, such as the possibility of appealing her case to the First Circuit. See id. ¶ 12.
In June or July 2002, Kaweesa consulted with Alex Almondel, who held himself out as an immigration attorney. See id. ¶¶ 14-15, 19-24. She paid him $1,500 in cash to appeal the BIA decision. Id. ¶ 16. She spoke to him in August 2002, at which time he told her that he had filed what she refers to as her "Motion to Reopen/Appeal." Id. ¶ 17. He showed her a blue piece of paper that was supposedly a receipt from the BIA, indicating that it had received her appeal. Id. ¶ 18. From August 2002 until March or April 2003, Kaweesa repeatedly called him, and he kept stating that he had not received a response from the BIA. Id. ¶¶ 20-21. As far as Kaweesa was concerned, Almondel was pursuing her claims in a legally appropriate manner.
In April 2003, an article in a Boston newspaper revealed that Almondel was misrepresenting himself as an immigration attorney, even though he was not a licensed attorney in Massachusetts. Id. ¶ 22. Once Kaweesa saw this article, she immediately consulted Attorney Elizabeth Broderick ("Broderick"). Id. ¶ 23. At this time Kaweesa discovered that Almondel had never submitted the papers he claimed he had submitted. Id. ¶ 24. Broderick immediately submitted a Motion to Reopen to the BIA, filing it on July 25, 2003. Id. ¶ 25. On June 17, 2003, shortly before the motion was filed, Kaweesa was detained and placed in the Bristol House of Correction. 4/12/04 Grodin Aff. ¶ 21.
The BIA denied Kaweesa's motion on November 12, 2003. Pet. Ex. 9 [hereinafter "11/12/2003 BIA Order"], at 1. The BIA began by noting that the motion to reopen was untimely; it had to be filed by September 30, 1996, or within 90 days of the BIA's previous decision, whichever was later. Id. (citing 8 C.F.R. § 1003.2(c)(2)). The BIA then noted that there is an exception where a motion to reopen is untimely or numerically barred, if the respondent can demonstrate that changed circumstances giving rise to the new request for asylum have arisen in the country of nationality. Id. (citing 8 C.F.R. §§ 1003.2(c)(2), (3)(ii)). The BIA stated that "[a]n alien can meet this requirement by providing sufficient facts and supporting documentary evidence, through affidavits or other evidentiary material, to establish prima facie eligibility for the relief sought as required by 8 C.F.R. § 1003.2(c)(1)." Id. It held that Kaweesa had not met her burden. Id.
The BIA stated that Kaweesa had failed to make a prima facie showing of eligibility for relief. Id. In particular, she did not "explain why she waited nearly one year after the Board's decision, and nearly two years after the alleged event to file her motion alleging changed country conditions." Id. at 1-2. It also noted that although Kaweesa had submitted a photograph of her son "showing what may be a scar on his head," she had submitted no medical reports, police reports, or affidavits explaining how the injuries were sustained. Id. at 2. It pointed to her failure to explain why the Ugandan...
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