United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITIONER'S PETITION FOR
A WRIT OF HABEAS CORPUS
Dennis Saylor, IV United States District Judge.
a habeas petition involving an immigration matter. Petitioner
Catherine Nantume is a Ugandan citizen who is subject to a
final order of removal from the United States. She has filed
a petition for a writ of habeas corpus challenging her
detention by immigration authorities.
has an extensive history of immigration fraud. She entered
the United States on October 2, 2001. In 2002, she entered
into a sham marriage with a United States citizen. She used
that “marriage” to obtain permanent residency
status in 2007; she later applied to be naturalized as a
citizen. Before that could happen, however, she was indicted
for conspiring to defraud the United States.
trial took place in March 2012 in the District of Maine.
Although she was not required to do so, she took the stand
and testified. She claimed that the marriage was real, and
told a detailed story about meeting and falling in love with
her husband (who, in truth, she met the day of the wedding).
The jury nonetheless convicted her on March 28, 2012.
the sentencing phase of her case, Judge Woodcock issued an
opinion concluding that her story was entirely false, and
that she had perjured herself at least 17 times as to
specific facts. She was ultimately sentenced to a one-year
term of imprisonment.
completed her sentence in 2014; she was then taken into ICE
custody. On May 12, 2014, an immigration judge ordered her
removal to Uganda.
30, 2014, Nantume moved to reopen her removal proceeding. She
claimed, for the first time, that she had recently realized
that she was a lesbian, and sought asylum on the ground that
gays and lesbians are subject to persecution in
Uganda. The immigration judge denied her motion to
reopen, and the U.S. Board of Immigration Appeals
(“BIA”) subsequently dismissed her appeal.
ICE was unable to secure necessary travel documents from the
Ugandan government to effectuate the removal order at that
time. Accordingly, she was released in November 2014, subject
to various reporting conditions.
1, 2018, ICE was notified that Uganda would issue the travel
documents once Nantume was taken into custody. ICE then
arrested her on May 31, 2018.
filed this habeas petition pursuant to 28 U.S.C. § 2241.
The petition chiefly raises procedural and substantive
due-process claims under the Fifth Amendment. In substance,
Nantume contends that her detention is unconstitutional and
that she should be released immediately.
meantime, on June 25, 2018, Nantume also filed a renewed
motion to reopen her case, and a motion to stay her removal,
with the BIA. Again, the basis for those motions is her
contention that she will suffer persecution as a lesbian if
forced to return to Uganda.
are three basic issues in these proceedings. The first is
whether Nantume is being held illegally in violation of the
Constitution and laws of the United States. It is
emphatically clear that this Court has jurisdiction to decide
that question. The second issue is whether Nantume should be
granted asylum in the United States; the third is whether her
removal should be stayed pending resolution of the asylum
question. As to those issues, it is equally clear that this
Court is without jurisdiction. By law, the power to establish
immigration controls, and to establish a process for
resolving immigration disputes, rests with Congress, subject
only to the restraints of the Constitution. Congress has
created a statutory procedure that does not include a role
for the district courts; indeed, it has expressly stripped
district courts of jurisdiction to hear such disputes. Such
issues are remitted by law to the immigration authorities,
subject to review by the Courts of Appeals.
has not formally moved in this Court to reopen her case or to
stay her removal. Instead, she made those requests to the
proper authority, the BIA. Those motions remain pending.
Nonetheless, at oral argument in the hearing of this case,
her counsel described her sympathetic circumstances and
requested that this Court employ its equitable powers to stay
her removal and keep her in the United States. When the Court
questioned its power to do so, counsel responded in substance
that the Court was taking an unduly narrow and myopic view of
its jurisdiction, and that it was up to the Court to prevent
a grave injustice. That argument, although not made as a
formal motion, deserves a thoughtful response.
persecution and mistreatment of gays and lesbians in Uganda,
and throughout much of Africa and the Middle East, is
well-documented. It is yet another chapter in the long
catalogue of human cruelty and misery across the globe. By
contrast, the United States, whatever its imperfections, is a
free and tolerant society-not just of gays and lesbians, but
of minorities generally. The United States is also, of
course, a safe, stable, and economically prosperous nation,
and its people, on the whole, are generous and compassionate.
surprisingly, millions of individuals attempt to enter and
remain in the United States, legally and illegally, seeking
to avoid discrimination, sexual abuse, torture, war, famine,
extreme poverty, or even genocide. Many of those individuals
apply for asylum to avoid returning to their home countries.
It is no exaggeration to say that virtually all of those
cases involve sympathetic facts, many to a high degree.
Virtually all of the applicants will be worse off, and many
will be in danger, if they are forced to return. And many, if
not most, immigration matters involve separated
families. But because our borders are not completely
open, not everyone can be admitted. Someone-that is, some
government official or board-has to decide which claims are
sufficiently meritorious to be granted.
is here. Someone has to decide whether Nantume is telling the
truth in connection with her claim for asylum; whether she
will be subject to persecution if she returns to Uganda;
whether she should be granted asylum in the United States;
and whether her removal should be stayed pending those
decisions. By law, those questions are not to be resolved by
a United States District Judge; they are to be resolved by
immigration authorities (in this case, the BIA), subject to
judicial review by the United States Court of Appeals.
simply, there is a procedure to address such claims, and that
procedure does not involve this Court. The Court is unwilling
to ignore or defy the law, even in highly sympathetic
circumstances. To do so would be a fundamental violation
of its most basic responsibilities.
is, however, a role for this Court, and that is to determine
whether Nantume is being detained in violation of the
Constitution and laws of the United States, such that release
from custody is warranted. For the reasons set forth below,
the Court finds that she is not. Accordingly, the petition
will be dismissed.
Nantume is a citizen of Uganda. (Pet. ¶ 8). She entered
the United States on October 2, 2001, on a visitor visa.
(Nantume Mot. to Reopen Aff. ¶ 14). That visa expired on
April 1, 2002. (Id.).
August 19, 2002, she entered into a sham marriage with
Timothy Dancsak in Auburn, Maine. See United States v.
Nantume, 2012 WL 4794226, at *1 (D. Me. Oct. 9, 2012).
Dancsak was paid $500 to marry Nantume. (Id.).
Nantume and Dancsak attended an interview with Citizenship
and Immigration Services (“CIS”) on March 4,
2004, to obtain a change in Nantume's immigration status
based on marriage. (Id.). CIS granted that request,
allowing her conditional residency status as of March 4,
2004. (Id.). Sometime afterward, she filed a
petition for permanent residency status; in that petition,
she represented that she and Dancsak were still living
together. (Id.). CIS granted that petition on
January 23, 2007, and she became a lawful permanent resident
of the United States. (Id.). On January 14, 2010,
Nantume filed a petition with CIS to become a naturalized
15, 2011, the United States Attorney's Office for the
District of Maine filed an indictment charging Nantume with
one count of defrauding the United States by entering into a
sham marriage to gain citizenship. See Docket No. 1,
United States v. Nantume, No. 11-cr-00092-JAW (D.
Me.). After a three-day trial, she was convicted on March 28,
2012. See Nantume, 2012 WL 4794226, at *1.
sentencing, on October 9, 2012, Judge Woodcock issued an
opinion making factual findings that Nantume had committed
perjury. Id. He found that her “version of the
facts [was] utterly fanciful” and that she
“repeatedly and consciously lied under oath during her
federal trial.” Id. at *11. He further
identified 17 specific facts about which she had lied.
Id. at *11-12. Judge Woodcock concluded that she
“knowingly, willfully, and repeatedly lied under oath .
. . to fool the jury into acquitting her.” Id.
at *12. He ultimately imposed a two-level enhancement for
obstruction of justice in accordance with § 3C1.1 of the
Sentencing Guidelines. Id.
was sentenced to a term of imprisonment of one year, followed
by a term of supervised release of three years. See
Docket No. 83, United States v. Nantume, No.
11-cr-00092-JAW (D. Me.). That same day, she filed a notice
of appeal. See Docket No. 87, United States v.
Nantume, No. 11-cr-00092-JAW (D. Me.). The conviction
and sentence were affirmed by the First Circuit on October
31, 2013. See Docket No. 99, United States v.
Nantume, No. 11-cr-00092-JAW (D. Me.).
of that conviction, Immigrations and Customs Enforcement
(“ICE”) initiated removal proceedings against
Nantume. On May 12, 2014, an Immigration Judge
(“IJ”) found that she was removable pursuant to
INA §§ 223(a)(2)(A)(i), 237(a)(1)(A), and
237(a)(1)(G)(ii). (Pet. ¶ 19). The IJ further ordered
that she be removed to Uganda.
30, 2014, Nantume filed a motion to reopen her immigration
proceedings to apply for asylum under the Convention Against
Torture. (Id. ¶ 20). In her motion to reopen,
she stated for the first time to immigration authorities that
she had recently realized she was a lesbian and feared for
her safety if she was removed to Uganda. (See BIA
Order at 2). That motion was denied on August 11, 2014. (Pet.
September 10, 2014, Nantume appealed the IJ's denial to
the Board of Immigration Appeals (“BIA”).
(Id. ¶ 22). Around that time, the ICE Office of
Enforcement and Removal Operations (“ERO”)
planned to effectuate her removal to Uganda. (Id.
¶ 23). However, the Ugandan government cancelled her
travel documents, preventing the removal. (Id.).
ICE was unable to obtain the necessary travel documents,
Nantume was released subject to an order of supervision on
November 24, 2014. (Id. ¶ 24). When she was
released, she was given a document titled “Release
Notification.” The document stated, among other things,
ICE will continue to make efforts to obtain your travel
document that will allow the United States government to
carry out your removal pursuant to your order of deportation,
exclusion, or removal. . . . Once a travel document is
obtained, you will be required to surrender to ICE for
removal. You will, at that time, be given an opportunity to
prepare for an orderly departure.
(Pet. Resp. Ex. 4 at 1).
dismissed her appeal on February 6, 2015. (Pet. ¶ 25).
In its opinion, the BIA agreed with the IJ that Nantume had
not made a prima facie showing that she was
statutorily eligible for her proceedings to be reopened. (BIA
Order at 2-3). In particular, the BIA found that her
affidavit, which stated that she did not realize she was a
lesbian until she was detained by ICE, was not credible.
the next three and a half years, Nantume regularly checked in
at the ERO office in Burlington, Massachusetts. (Pet. ¶
26). There is no evidence that she violated any condition of
1, 2018, the Burlington ERO office received notice that the
Ugandan government would issue a travel document for Nantume
“after she was in ICE custody.”
(Greenbaum Decl. ¶ 6) (emphasis added). In order to
effectuate her final removal, ICE arrested Nantume on May 31,
2018. (Id. ¶ 4). She was not given an
opportunity to self-report.
time of the arrest, Nantume was given a Notice of Revocation
of Release. (Id. ¶ 5). At the same time, ICE
“explained the reasons why [it] was revoking her Order
of Supervision and offered Nantume an opportunity to respond
to such reasons.” (Id. ¶ 7). ICE
characterizes that meeting as an initial “informal
interview.” (Greenbaum Supp. Decl. ¶ 5). The
following day, Nantume's attorney, Melanie Shapiro,
contacted the Ugandan embassy to see whether the Ugandan