Nantume v. Barr

• Decision Date: 23 July 2019
• Docket Number: No. 18-1911,18-1911
• Citation: 931 F.3d 35
• Parties: Catherine Leoni NANTUME, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

931 F.3d 35

Catherine Leoni NANTUME, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-1911

United States Court of Appeals, First Circuit.

July 23, 2019

Melanie Shapiro, Providence, RI, with whom Law Office of Melanie Shapiro, Harvey Kaplan, Boston, MA, 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.

Before Howard, Chief Judge, Torruella and Selya, Circuit Judges.

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, 24 L.Ed. 696 (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 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.

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 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, 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

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-, 24 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 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.

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, 929 F.3d 177, 181–83 (1st Cir. 2019) [No. 18-1630, 2019 WL...