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Nantume v. Smith

United States District Court, D. Massachusetts

July 19, 2018

YOLANDA SMITH, Respondent.


          F. Dennis Saylor, IV United States District Judge.

         This is 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.

         Nantume 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.

         Her 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.

         During 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.

         Nantume completed her sentence in 2014; she was then taken into ICE custody. On May 12, 2014, an immigration judge ordered her removal to Uganda.

         On July 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.[1] The immigration judge denied her motion to reopen, and the U.S. Board of Immigration Appeals (“BIA”) subsequently dismissed her appeal.

         However, 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.

         On May 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.

         She 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.

         In the 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.

         There 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.

         Nantume 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.

         The persecution and mistreatment of gays and lesbians in Uganda, and throughout much of Africa and the Middle East, is well-documented.[2] 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.

         Not 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.[3] 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.

         So it 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.

         Put 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.[4] To do so would be a fundamental violation of its most basic responsibilities.

         There 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.

         I. Background

         A. Factual Background

         Catherine 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.).

         On 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.).

         Subsequently, 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 citizen. (Id.).

         On June 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.

         Before sentencing, on October 9, 2012, Judge Woodcock issued an opinion making factual findings that Nantume had committed perjury. Id.[5] 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.[6] He further identified 17 specific facts about which she had lied. Id. at *11-12.[7] 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.

         Nantume 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.).

         Because 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.

         On July 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. ¶ 21).

         On 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.).

         Because 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, as follows:

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).

         The BIA 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. (Id.).

         Over 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 her release.

         On May 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.

         At the time of the arrest, Nantume was given a Notice of Revocation of Release. (Id. ¶ 5).[8] 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 government ...

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