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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.

2nd Circuit Remands CAT Claim by Gay Jamaican Man

Posted on: August 16th, 2016 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit has remanded to the Board of Immigration Appeals (BIA) for reconsideration a claim for relief under the Convention Against Torture (CAT) by a gay man from Jamaica who was subject to deportation based on some state law convictions in Connecticut.  Walker v. Lynch, 2016 WL 4191844, 2016 U.S. App. LEXIS 14554 (August 9, 2016).  The panel, consisting of Circuit Judges Pierre N. Leval, Reena Raggi, and Raymond J. Lohier, Jr., found that the BIA had misapplied the law and inexplicably failed to respond to strong evidence from the U.S. State Department’s Human Rights Report on Jamaica as well as from a former leader of a Jamaican gay rights group about the dangers facing men known to be gay in Jamaica.

The court designated this decision as an “unpublished summary order,” so it does not include a detailed account of what the petitioner claimed to have happened to him growing up in Jamaica, but it mentions his claim that he was raped by an uncle, who allegedly threatened to “slit his throat for revealing the rapes and spreading rumors” that the uncle is gay, and that a cousin (the son of this uncle) had threatened to kill him “for levying accusations of homosexuality” at the cousin’s brother and father, who were “the two individuals responsible for his childhood sexual traumas.” The petitioner claimed that he was widely known to be gay in Jamaica.

The petitioner is resorting to a CAT claim because his criminal record in the U.S. precludes an application for asylum or withholding of removal. A non-citizen can be deported by the government, even if there is a probability that he would be subjected to persecution in his home country, if he is convicted of a serious crime in the U.S. The court in this case is not specific about the crimes for which the petitioner was convicted, merely commenting in passing that he was found to be removable “by reason of having been convicted of, inter alia, an aggravated felony and a controlled substance offense.”  In order to claim protection against deportation to his home country under the CAT, the petitioner has to show that (1) “it is more likely than not that he or she would be tortured if removed to the proposed country of removal” and (2) “government officials would inflict such torture, or otherwise acquiesce in it.”  In this context, torture is defined as being “subjected to acts ‘by which severe pain or suffering is intentionally inflicted for any reason based on discrimination of any kind.’”  Acquiescence by the government describes a situation where the government “knows of or is willfully blind to anticipated acts of torture and breaches its legal responsibility to prevent it.”

The main evidence presented to the Immigration Judge (IJ) in addition to the petitioner’s credible claims about sexual assault and threats from relatives was a 2013 Human Rights Report published by the U.S. State Department, the kind of document that is supposed to carry great weight in these kinds of proceedings. The court wrote that this document “states that, in Jamaica – where laws criminalize ‘acts of gross indecency … between persons of the same sex’ – lesbian, gay, bisexual, and transgender (“LGBT”) individuals suffer ‘serious human rights abuses, including assault with deadly weapons, ‘corrective rape’ of women accused of being lesbians, arbitrary detention, mob attacks, stabbings, harassment . . . by hospital and prison staff, and targeted shootings.”  The Report “further states that ‘brutality against [gay men], primarily by private citizens, was widespread in the community,’ and that ‘gay men hesitated to report such incidents against them because of fear for their physical well-being.’  Moreover, ‘although individual police officers expressed sympathy for the plight of the LGBT community and worked to prevent and resolve instances of abuse, the police force in general did not recognize the extent and seriousness of violence against members of the LGBT community, and failed to investigate such incidents.”

The court also referred to a letter from “the former director of the Jamaica Forum for Lesbians, All-Sexuals & Gays (‘J-FLAG’),” placed in evidence before the IJ, which stated that while “there have been improvements in the overall response of the police in the past year, the police frequently refuse to investigate crimes against gay individuals.” As a result, said the letter, “gay Jamaicans are not simply subject to violent persecution, but also are understood as safe targets for robbery, extortion and murder because of their outcast status.”

The IJ concluded based on this evidentiary record that the petitioner had failed to show “government acquiescence” because there was “insufficient evidence that the Jamaican government ‘indirectly condones the torture’ of gay individuals,” and the BIA approved this based on its conclusion that the evidence “does not describe whether the failure to investigate in most cases was purposeful and because of the victim’s sexuality.” The 2nd Circuit panel found that the IJ’s statement “appears to have ‘totally overlooked’ the contrary record evidence, and the BIA’s statement “appears to have misapplied the applicable standard by ‘conflating’ the CAT’s ‘specific intent requirement with the concept of state acquiescence.”  In other words, it is not necessary for the petitioner to show that the government wants people to torture gays or intends to leave gays at the mercy of the mob; it is enough to show that the government “know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it.”  In short, if gays in Jamaica can’t depend on the government to bring to bear reasonable law enforcement efforts to combat anti-gay persecution amidst an environment that is extreme hostile to gay people, the standard set by the CAT has been met.

In this regard, the CAT standard resembles the “deliberate indifference” standard the courts use in 8th Amendment cases challenging prison living conditions that pose serious risk of harm to inmates.  The plaintiff has to show that government officials are aware of the situation and are effectively refusing to deal with it, leaving the plaintiff in danger of serious harm.  This sounds very much like what the State Department found in Jamaica.  (As a matter of political note, it is worth observing that during the Bush Administration the State Department itself seemed willfully blind to anti-gay persecution in many of its Human Rights Reports, while the Obama Administration, with Hillary Clinton and John Kerry heading the State Department, provided much more inclusive and accurate reporting about anti-gay conditions around the world.)

“Accordingly,” wrote the court, “we remand for the agency to consider, consistent with the controlling precedent referenced, whether it is more likely than not that [Petitioner] will be tortured if removed to Jamaica and that the government will acquiesce in such torture, particularly in light of (1) the evidence discussed herein regarding the general failure of the Jamaican police to investigate crimes against gay individuals, and (2) [Petitioner’s] testimony regarding threats he received from family members.”

The ruling is an effective bench-slap against the BIA for ignoring the strongly-worded State Department Human Rights report on Jamaica – a report that is regularly confirmed by press accounts of anti-gay activity in the country – and a major victory for the Petitioner’s attorney on appeal, Jon Bauer of the Legal Clinic at the University of Connecticut School of Law.

7th Circuit Remands Gay Mexican’s Withholding of Removal Claim to BIA

Posted on: August 28th, 2013 by Art Leonard No Comments
A panel of the U.S. Court of Appeals for the 7th Circuit has granted a petition for review of the Board of Immigration Appeals’ (BIA) decision to deny withholding of removal to a gay, HIV-positive man from Mexico, finding that the BIA had failed to comply with a  regulation governing review of Immigration Judge (IJ) decisions by engaging in de novo review of facts decided by the IJ.  Rosiles-Camerana v. Holder, 2013 U.S. App. LEXIS 17551, 2013 WL 4457283 (August 21, 2013).  The court, in an opinion by Circuit Judge Frank Easterbrook, remanded the case to the BIA for “proceedings consistent with this opinion.”

The petitioner, a Mexican citizen, was brought to the U.S. in 1977, when he was ten years old, and became a permanent resident but never applied for citizenship.  He was convicted on a charge of indecent solicitation of a minor, a felony, lost his permanent resident status and was ordered to be removed to Mexico.  He argued that as an openly gay HIV-positive man, he faced a risk of persecution or torture if deported to Mexico, and sought withholding of removal and protection under the Convention Against Torture (CAT).  He persuaded the IJ, who granted both withholding relief under the statute and  under the CAT, only to be reversed by the BIA.  On remand, the IJ “adhered to his position,” but the BIA stubbornly adhered to its position, again reversing the IJ, and petitioner sought relief from the court of appeals.

The most recent BIA decision said that “the probability of future harm is a legal question that we review de novo” and “in assessing the probability of harm de novo, we may give different weight to the evidence than did the Immigration Judge.”  The BIA accepted the IJ’s findings of “historical fact” but “disagreed with the IJ about the risk implied by those facts.”  Most particularly, the IJ was convinced by expert testimony about murders of gay men in Mexico that there would be a substantial risk to the petitioner if he were deported.  But the BIA looked at the same statistics and drew a different conclusion.  The IJ was impressed that there were 148 documented hate crime murders of gays in Mexico between 1995 and 2006.  The BIA looked at that number, did its own calculations, and concluded that this meant that it was “unlikely (a risk of no more than 1 in 100,000) that any given gay man would be killed in any given year.”  Thus, the IJ’s conclusion that anti-gay murders were “frequent” did not impress the BIA, which found that petitioner failed to meet the burden of showing that there was a “clear probability” that he would be murdered if returned to Mexico. 

Wrote Easterbrook, “The Board treated the risk of future harm” – which is a dispositive issue in this kind of case – “as a matter of legislative fact, and it took the view that decisions on mixed (or ‘ultimate’) questions are open to plenary decision” on review.  The court agreed with the petitioner that “the Board made a legal error by engaging in this kind of review, pointing particularly to a regulation, 8 C.F.R. Sec. 1003.1(d)(3), that provides that “The Board will not engage in de novo review of findings of fact determined by an immigration judge,” which would include “findings as to credibility of testimony” which would be subject to a “clearly erroneous” standard for reversals.  In this case, the BIA did not reject the IJ’s findings of fact, but took the position that the determination of whether petitioner would incur a probability of persecution was not the kind of factual finding to which it need defer. 

Easterbrook noted that there is a split of authority among the circuit appeals courts about how to review such BIA decisions, and the 7th Circuit panel favored the authority represented by a 3rd Circuit decision, Kaplun v. Attorney General, 602 F.3d 260 (2010), holding that “the Board is entitled to adopt an independent view about whether a potential harm identified by an IJ amounts to ‘persecution’ or ‘torture,’ but that an IJ’s predictions (which it called the ‘present probability of a future event’) – such that a particular harm is ‘likely’ should an alien return to his native land – are ‘facts’ under clause (i) [of the regulation], and the Board’s role is limited to identifying clear error by the IJ.”

The question here, as Easterbrook puts it, is whether predictions about the probability of persecution depend primarily on country conditions, “not (necessarily) on facts unique to the alien.”  If country conditions are the most important concern, there would be much less reason to defer to findings of historical fact concerning the alien in question in reaching a sound judgment about such probability.  Easterbrook points to the concern that different IJs might reach sharply different conclusions about the probability that a gay man deported to a particular country would be subjected to persecution there, but notes the potential salience of historical facts, regardless of the overall country conditions.  In this case, the petitioner contends that “he is at greater risk” than other gay men.  “He is not only gay and HIV positive but also ‘out’ and planning to live openly with his partner.  He contends, and the IJ found, that his family has disowned him and will not offer any support.  He adds that, because he has lived in the United States most of his life and does not know contemporary Mexican customs, he will find it hard to avoid attracting attention from persons who might do him harm.  And he stresses that injuries (and deprivation of economic opportunities) short of death may amount to persecution.”

The court decided that “the question for the Board on remand is thus not whether aggregate data imply that Rosiles-Camerana is likely to be killed, but whether the IJ clearly erred in finding that he is more likely than not to be persecuted.”  That is not a question for the court to decide, but “for the Board in the first instance.”  However, the court’s summary of the petitioner’s argument makes it sound like a strong claim for individualistic fact-finding.   The court’s powers of review are limited by statute in light of the petitioner’s conviction of a felony, which leaves a large range of discretion to the Board.  On the other hand, the regulation governing the Board’s appellate authority constrains it substantially in second-guessing IJ fact-finding, as this decision shows.

Immigration Review Panel Announces Same-Sex Marriage Recognition Rule

Posted on: July 19th, 2013 by Art Leonard 3 Comments

Shortly after the Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional on June 26 in U.S. v. Windsor, Department of Homeland Security Secretary Janet Napolitano announced that the immigration service under her department would recognize same-sex marriages that were valid where they were performed, using the “place of celebration rule.”  But her announcement, which varied from standard practice of considering whether a marriage was recognized where the couple was residing, the “place of domicile rule,” was not binding outside her department.  On July 17, the administrative body whose opinion on this would be crucial also opted for the “place of celebration rule,” as the Board of Immigration Appeals (BIA), a body within the Justice Department’s Executive Office for Immigration Review, ruled on a pending petition by a U.S. citizen seeking lawful resident status for his same-sex spouse.

The case is Matter of Oleg B. Zeleniak, 26 I & N Dec. 158, Interim Decision 3787, 2013 WL 3777692 (BIA July 17, 2013).

Serge Polajenko, a U.S. citizen, filed a Petition for Alien Relative, called an I-130, on March 10, 2010, on behalf of his husband, Oleg Zeleniak, after the men were married in Vermont.  The petition was denied on July 27, 2010, on the ground that DOMA, Section 3, barred immigration authorities from recognizing same-sex marriages.  Polajenko appealed to the BIA, which issued a decision on April 18, 2012, sending the case back to the National Benefits Center Director to address two issues: first, whether the Polajenko-Zeleniak marriage was valid under state law, and second, whether the marriage qualifies as bona fide as required by the Immigration and Nationality Act.  At that time, of course, the Justice Department was on record as finding that DOMA Section 3 was unconstitutional, and it had stopped defending the statute in litigation, but was committed to continuing to enforce it pending a final decision from the Supreme Court.  Remanding the case for these further determinations was, in effect, a holding action.

 The questions posed by BIA are two distinctly separate issues, arising under two different bodies of law.  The second concerns the requirement that a marriage be “bona fide,” not a marriage of convenience entered for the purpose of getting a “green card” (authorization to live and work in the United States), but rather a “real marriage” of parties intending to live as spouses.  In response to the BIA, the Director issued a new decision on June 19, 2012, finding that the couple was validly married under Vermont law, but refusing to consider whether the marriage was bona fide for immigration purposes and again denying a visa for Zeleniak.  Again Polajenko appealed.  This time, as litigation involving DOMA was coming to a climax in several federal courts and clearly headed to the Supreme Court, the BIA sat on the appeal, as it has on many pending cases, waiting for the Supreme Court to rule.

 The BIA’s new decision on Polajenko’s petition holds that the Windsor decision “removed Section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated.  This ruling is applicable to various provisions of the Act, including but not limited to” fiancée and fiancée visas, immigrant visa petitions, refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waivers of removability, cancellation of removal, and adjustment of status. 

 Thus, the BIA sustained Polajenko’s appeal, finding that the Director had already determined that the marriage is valid under Vermont law, “where the marriage was celebrated.  Thus, the sole remaining inquiry is whether the petitioner has established that his marriage to the beneficiary is bona fide.  We will remand the record to allow the Director to make that determination.” 

 The BIA’s ruling now becomes the precedent, and presumably a stream of rulings on backed-up appeals will follow. Although the BIA did not address the issue directly, presumably the place of celebration rule also extends to marriages between U.S. citizens and foreign nationals that take place outside the U.S., in one of the dozen or so other countries that allow same-sex marriages.  While Homeland Security has been issuing green cards over the past few weeks in response to I-130 petitions in accord with Napolitano’s direction, the BIA ruling lines up the Justice Department with Homeland Security on the important issue of “place of celebration,” which means that married same-sex couples will be recognized for immigration purposes, regardless of where they are living, so long as their marriages are found to be bona fide.