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First Circuit Refuses to Order Reopening of Asylum Proceedings for Lesbian from Uganda

Posted on: July 28th, 2019 by Art Leonard No Comments

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.

Impatient Christians File Suit Against EEOC’s Interpretation of Title VII and Seek Exemption from Recognizing Same-Sex Marriages

Posted on: April 3rd, 2019 by Art Leonard No Comments

The U.S. Pastor Council (on behalf of itself and others similarly situated), and Braidwood Management, Inc., a business claiming to have religious objections concerning the employment of LGBTQ people (on behalf of itself and others similarly situated), have jointly filed suit in the U.S. District Court for the Northern District of Texas (Fort Worth Division), seeking a declaratory judgment that the Equal Employment Opportunity Commission’s interpretation of Title VII to protect LGBTQ people from employment discrimination violates the federal Religious Freedom Restoration Act and the First Amendment, and they seek to enjoin the federal government from enforcing these policies against any employer who objects to homosexual or transgender behavior on religious grounds.  U.S. Pastor Council & Braidwood Management Inc. v. Equal Employment Opportunity Commission, Case No. 4:18-cv-00824-O (U.S. Dist. Ct., N.D. Texas, filed March 29, 2019).  They seek class certification and nation-wide injunctive relief.  Other named defendants include EEOC Chair Victoria A. Lipnic and Commissioner Charlotte A. Burrows, Attorney General William P. Barr, and the United States of America.  (Lipnic and Burrows are the only currently serving EEOC commissioners, as Trump’s nominees to fill three vacancies were not confirmed in the last session of the Senate, and the Commission as a body lacks a quorum to act at present.)

The headline’s reference to “impatient Christians” points to the Supreme Court’s unexplained delay in deciding whether to grant writs of certiorari in three pending cases that pose the question whether Title VII can be interpreted, as it has been by the EEOC and some circuit courts of appeals, to prohibit employment discrimination because of an individual’s sexual orientation or gender identity.  If the Supreme Court finally takes these cases and decides them during its October 2019 Term, this lawsuit could be at least partially mooted.  But the complaint ranges more broadly, tempting the court (and ultimately the Supreme Court) to reconsider two of its constitutional precedents that are not beloved by the Court’s current conservative majority: Employment Division v. Smith and Obergefell v. Hodges.

The docket number of the case indicates that it has been assigned to District Judge Reed O’Connor, which means that it is highly predictable that the plaintiffs will get much of the relief they are seeking from the district court.  In earlier lawsuits, Judge O’Connor issued nationwide injunctions against the federal government’s enforcement of Obamacare and Title IX in gender identity cases, disagreeing that the term “discrimination because of sex” could be construed to extend to gender identity.  See Franciscan Alliance v. Burwell, 227 F.Supp.3d 660 (N.D. Tex. Dec. 31, 2016) (Obamacare); Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) (Title IX).  Since the current political appointees leading the Justice Department probably agree with the plaintiff’s position on all or most of the claims raised in this complaint, one reasonably suspects that any serious defense can only be mounted by Intervenors, and the government would only appeal pro-plaintiff rulings by Judge O’Connor in order to get a rubber stamp approval from the 5th Circuit on the way to the Supreme Court. Trump has worked hard to cement a conservative majority on the 5th Circuit, having quickly filled five of the vacancies preserved for him by the Senate’s refusal to confirm Obama nominees to the circuit courts.  A new vacancy waits to be filled, and more elderly Republican appointees on the circuit (two active Reagan appointees who have been there more than thirty years) are likely to retire soon enough.

The complaint’s first count argues that the government has no compelling reason to enforce a prohibition against discrimination because of sexual orientation or gender identity against employers with religious objections, and thus that the EEOC as a federal agency should be found to be precluded from doing so under the Religious Freedom Restoration Act.  The second count argues that because Title VII exempts religious employers from its ban on religious discrimination, it is thereby not a law of “general applicability,” so Employment Division v. Smith, 494 U.S. 872 (1990), is “inapplicable” to the question whether imposing a non-discrimination obligation on employers who are subject to the statute (those with 15 or more employees) violates their constitutional Free Exercise rights under the 1st Amendment.  The complaint observes that the ministerial exemption to Title VII that the Supreme Court has found for religious institutions does not extend to businesses, and further does not extend to the non-ministerial employees of religious organizations, thus imposing a burden on both kinds of employers who are subject to Title VII’s ban on sex discrimination.  Furthermore, they argue that if the court disagrees with their characterization of Title VII and finds that Employment Division v. Smith would apply in their Free Exercise claim, that decision should be overruled (which, of course, the district court can’t do, but this lawsuit is obviously not intended to stop at the district court).  Justice Neil Gorsuch implied in his concurring opinion in Masterpiece Cakeshop last June that the Supreme Court should reconsider this precedent.

In terms of the practical impact of the EEOC’s position, the complaint says in its third count that Braidwood Management’s benefits administrator has amended its employee benefits plans to recognize same-sex marriages, complying with guidance on the EEOC’s website, and Braidwood wants to instruct the administrator to return to a traditional marriage definition, consistent with the employer’s religious beliefs.  Thus, part of the declaratory judgment plaintiffs seek would proclaim that employers with religious beliefs against same-sex marriage should be allowed to refuse to recognize them for employee benefits purposes.  In several counts, the complaint tempts the court to declare as illegitimate the Supreme Court’s Obergefell decision, and to excuse religious organizations and businesses from having to recognize same-sex marriages, except possibly in states where same-sex marriage became available through state legislation, unlike Texas, where it exists by compulsion of the federal courts (and certainly against the wishes of the state government).

In terms of standing issues, Braidwood points out that the EEOC has actively enforced its interpretation of Title VII by bringing enforcement actions and filing amicus briefs in support of LGBTQ plaintiffs against employers with religious objections, most prominently in the Harris Funeral Home case, in which the EEOC sued a business that had discharged a transgender employee because of the employer’s religious objections.  The funeral home prevailed in the district court on a RFRA defense, the trial judge finding that in the absence of RFRA the funeral home would have been found in violation of Title VII.  However, the 6th Circuit reversed in part, rejecting the district court’s RFRA analysis and finding a Title VII violation.  The funeral home’s petition for certiorari was filed in the Supreme Court last July, but that Court had made no announcement regarding a grant or denial at the time this complaint was filed on March 29 – impatient Christians, again.

The fourth count claims that the EEOC’s requirement that employers post a notice to employees announcing their protection under Title VII is unconstitutionally compelled speech.  “Employees who read this sign and see that Braidwood is categorically forbidden to engage in ‘sex’ discrimination will assume (incorrectly) that Braidwood is legally required to recognize same-sex marriage, extend spousal employment benefits to same-sex couples, and allow its employees into restrooms reserved for the opposite biological sex,” says the complaint, indicating that Braidwood’s proprietor “is not willing to have Braidwood propagate this message without sufficient clarification.”

The sixth count summons the Administrative Procedure Act to attack the EEOC’s issuance of guidance on its website concerning its interpretation of Title VII, claiming that this constitutes a “rule” that is subject to judicial review under that statute.  The complaint asks the court to “hold unlawful and set aside” the EEOC’s regulatory guidance, invoking Section 706 of the APA.  Braidwood Management also claims to speak in this count as representative of all businesses in the U.S. that “object to the constitutional reasoning in Obergefell, excluding employers in states where same-sex marriage was legalized through legislation.”

The complaint lists as plaintiffs’ counsel Charles W. Fillmore and H. Dustin Fillmore of Fort Worth (local counsel in the district court) and Jonathan F. Mitchell of Austin.  The heavy gun here is Mitchell, a former Scalia clerk and Texas Solicitor General who has been nominated by President Trump to be Chairman of the Administrative Conference of the United States (ACUS).  It seems ironic that Trump’s nominee is suing the federal government: the Justice Department and its head (in his official capacity) and the EEOC and its commissioners (in their official capacity), but despite naming the United States as a defendant, plaintiffs are not suing the president by name (in his official capacity, of course).