Nantume v. Barr

United States Court of Appeals
For the First Circuit

No. 18-1911

CATHERINE LEONI NANTUME,

Petitioner,

v.

WILLIAM P. BARR,
Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

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

Melanie Shapiro, with whom Law Office of Melanie Shapiro,
Harvey Kaplan, 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.

July 23, 2019
 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 (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

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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.

1 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 8 U.S.C.
§ 1182(a)(2)(A)(i)(I); id. § 1227(a)(2)(A)(i). Her efforts to
defeat that charge ultimately proved unsuccessful.

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 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

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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

2
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, 731 F.3d 32, 38-39 (1st Cir. 2013) (rejecting
"proposition that the post-departure bar precludes a noncitizen
who has departed the country from vindicating her statutory right
to seek reopening").

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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

3 Here, the country of nationality and the country of removal
are one and the same: Uganda.

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 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-, 241

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

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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.

4 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, 699 F.3d 107, 111 (1st
Cir. 2012), these additional documents cannot be taken into
account, see 8 U.S.C. § 1252(b)(4)(A).
5 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.

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 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, ___ F.3d ___, ___, (1st Cir. 2019) [No. 18-1630,

2019 WL 2723367, at *3] (finding intensification where occasional

violence morphed into frequent violence). 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).

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.

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 To begin, the 2014 anti-homosexuality statute was signed

into law before the petitioner's merits hearing6 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 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

6In 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.

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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, 913 F.3d

at 221. This principle has particular pertinence here because the

petitioner submitted a compendium of country conditions reports as

a single exhibit (Exhibit G), and the BIA cited Exhibit G in its

decision. We have no basis for concluding that the BIA cited

Exhibit G without reviewing its component parts. Cf. Raza v.

Gonzales, 484 F.3d 125, 128 (1st Cir. 2007) (observing that "[i]t

is enough if the agency fairly considers the points raised by the

complainant and articulates its decision in terms adequate to allow

a reviewing court to conclude that the agency has thought about

the evidence and the issues and reached a reasoned conclusion").

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

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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, 806 F.3d at 21.

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, 881 F.3d 61, 66-67 (1st

Cir. 2018); see also Kadri v. Mukasey, 543 F.3d 16, 21 (1st Cir.

2008) (noting that "[s]exual orientation can serve as the

foundation for a claim of persecution, as it is the basis for

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inclusion in a particular social group"). We do not reach that

question: given the posture of this case, the petitioner must

first establish that there has been a material change in country

conditions. See Wang, 795 F.3d at 286 ("A change in personal

circumstances alone does not meet the standard for the exception

to the time bar for changed country conditions.").

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 id. at

286-87. She has failed to make such a showing.

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, 729 F.3d 28, 31 (1st Cir. 2013). "That

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conditions have failed to improve is not enough to show that they

have changed." Mejía-Ramaja, 806 F.3d at 21. Based on the record

before us, there is no principled way in which we can say that the

BIA abused its discretion in finding that the petitioner failed to

show a material change in country conditions.

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, 899 F.3d 24, 29 n.1 (1st

Cir. 2018) (reviewing appeal in case arising out of "vicious and

frightening campaign of repression against LGBTI persons in

Uganda" (quoting Sexual Minorities Uganda v. Lively, 254 F. Supp.

3d 262, 264 (D. Mass. 2017))). 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 Executive Branch has the power to assist aliens

trapped in this sort of cultural snare. See 8 U.S.C.

§ 1182(d)(5)(A) (granting Attorney General discretion to "parole

into the United States . . . on a case-by-case basis for urgent

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humanitarian reasons . . . any alien applying for admission to the

United States"). But 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.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we deny the petition for judicial review.

So Ordered.

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