PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
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
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.
Howard, Chief Judge, Torruella and Selya, Circuit Judges.
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.
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.
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).
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.
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. 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.
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.
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.