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Bbale v. Lynch

United States Court of Appeals, First Circuit

October 24, 2016



          George Charles Maroun, Jr. and Maroun & Cabelus LLC on brief for petitioner.

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, John S. Hogan, Assistant Director, Office of Immigration Litigation, and Ashley Martin, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

          Before Thompson, Selya and Stahl, Circuit Judges.

          SELYA, Circuit Judge.

         The petitioner, Douglas Jimmy Bbale, seeks judicial review of a final decision of the Board of Immigration Appeals (BIA), which denied his motion to reopen removal proceedings. Discerning no abuse of the BIA's broad discretion, we deny the petition.

         I. BACKGROUND

         The petitioner, a Ugandan national, was admitted to the United States as a visitor for a six-month period that expired on November 22, 2000. He overstayed, and almost nine years elapsed before the Department of Homeland Security (DHS) instituted removal proceedings against him.

         The petitioner initially pursued an application to adjust his status to that of a lawful permanent resident based on a petition filed by his citizen-spouse. That strategy backfired when, on December 5, 2011, United States Citizenship and Immigration Services issued a notice of intent to revoke the petition, citing inconsistencies in the testimony of the petitioner and his wife.

         After withdrawing his adjustment application, the petitioner applied for asylum and withholding of removal.[1] His claim for asylum was predicated on an asserted fear of persecution in Uganda premised on genuine and imputed political opinion. Specifically, he alleged that in April of 1998, his father was imprisoned - and ultimately never seen again - because he was an active member of the Democratic Party of Uganda, a political party that opposed the Ugandan President, Yoweri Museveni. He added that between 1998 and 1999, he himself was detained by Ugandan police on four occasions. Withal, he was not physically harmed and the longest period he was detained was one day. The petitioner also suggested that his more recent political activities would subject him to persecution in Uganda: while living in the United States, the petitioner has organized and participated in anti-Museveni demonstrations.

         The petitioner also averred that in 2009 his brother was arrested in Uganda on a murder charge. The petitioner branded this arrest as bogus, contending that the Museveni government had fabricated allegations that his brother was practicing voodoo and witchcraft on small children, including child sacrifice. Although the brother was initially acquitted, he was subsequently convicted and remains in prison. According to the petitioner, both the arrest and prosecution were politically motivated, and his brother is innocent.

         The petitioner conceded removability in 2012 and later testified at a merits hearing in the immigration court on January 27, 2014. At the conclusion of the hearing, the immigration judge (IJ) denied the petitioner's applications for asylum and withholding of removal in a bench decision. The IJ denied the asylum application as untimely, noting that the petitioner had not alleged changed or extraordinary circumstances that could justify the 13-year delay in seeking asylum. The IJ also concluded that the petitioner had failed to establish his eligibility for withholding of removal.

         The petitioner appealed to the BIA. He argued that he did not apply earlier for asylum because he was not then aware of either the filing deadline or the severity of his brother's circumstances. With respect to withholding of removal, he argued that the IJ had failed to consider the connection between the accusations of witchcraft against his brother and the petitioner's membership in a family now associated with witchcraft. On June 10, 2015, the BIA rejected these arguments and dismissed the petitioner's appeal.

         The petitioner did not seek judicial review of the BIA's decision but, on August 10, 2015, moved to reopen removal proceedings. The petitioner submitted that a key witness - his niece - had been unable to testify at his merits hearing because she was mentally incapacitated due to the psychological trauma that she suffered as a result of her father's (the petitioner's brother's) immurement. He added ...

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