Nantume v. Barr, 931 F.3d 35

Background

Catherine Leoni Nantume, a Ugandan national, became a lawful permanent resident in 2004 after marrying a U.S. citizen; the marriage was later found to be a sham and she was convicted of conspiracy to defraud the United States.
Deportation proceedings culminated in a 2014 merits hearing where Nantume conceded removability; the IJ ordered removal and she did not appeal that final order.
Two months after the removal order Nantume (with new counsel) timely moved to reopen to apply for asylum/withholding/CAT based on newly asserted LGBT identity and a 2014 Ugandan anti-homosexuality statute; the IJ and then the BIA denied that motion as based on evidence that was available at the merits hearing.
In 2018 Nantume filed a second, untimely motion to reopen to the BIA, adding reference to the 2016 NGO Act and submitting country reports, family letters, photos, and a psychiatric assessment claiming worsened conditions for LGBT persons in Uganda.
The BIA denied the second motion as procedurally barred and for failure to show a material change in country conditions between the 2014 merits hearing and the 2018 filing; Nantume petitioned for judicial review. The court denies the petition.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA abused its discretion in denying an untimely motion to reopen by finding no material change in country conditions for LGBT persons in Uganda	Nantume: Evidence (country reports, 2014 and 2016 laws, personal docs) shows intensification of persecution and therefore a material change	Gov: Uganda has long-standing criminalization and hostility toward LGBT persons; petitioner’s evidence shows continuity, not material change	Held: No abuse of discretion; petitioner failed to show a material change in country conditions between 2014 and 2018
Whether the 2014 anti-homosexuality statute constituted a new, material change	Nantume: 2014 statute worsened conditions	Gov: 2014 statute was enacted before or around the merits hearing and was later nullified by Uganda’s Constitutional Court; thus not a valid changed-condition basis	Held: 2014 statute either predated the merits hearing or was nullified, so it does not show a material change
Whether the 2016 NGO Act materially worsened treatment of LGBT individuals	Nantume: NGO Act curtailed LGBT advocacy, worsening country conditions	Gov: Any effect is tangential and the record (including State Department report) does not show it changed treatment of LGBT persons	Held: BIA reasonably concluded NGO Act did not demonstrate a material change in country conditions
Whether the BIA failed to consider the 2017 State Department Country Report and other submitted materials	Nantume: BIA neglected or overlooked the 2017 Report and personal documents showing deterioration	Gov: BIA cited exhibit containing country reports and need not parse every page; the 2017 Report shows longstanding criminalization, not new deterioration	Held: No neglect; BIA sufficiently considered submissions and the 2017 Report did not indicate a material worsening

Key Cases Cited

Sihotang v. Sessions, 900 F.3d 46 (1st Cir. 2018) (motions to reopen are disfavored; untimely motions face steep burden)
Pineda v. Whitaker, 908 F.3d 836 (1st Cir. 2018) (denial of motion to reopen reviewed for abuse of discretion)
Garcia-Aguilar v. Whitaker, 913 F.3d 215 (1st Cir. 2019) (changed country conditions must be shown by evidence unavailable at time of merits hearing)
Chen v. Lynch, 825 F.3d 83 (1st Cir. 2016) (movant must show prima facie eligibility for relief and material changed country conditions)
Liu v. Holder, 727 F.3d 53 (1st Cir. 2013) (compare new evidence to conditions at merits hearing to assess material change)
Mejía-Ramaja v. Lynch, 806 F.3d 19 (1st Cir. 2015) (continuation of existing conditions is insufficient to show change)
Wang v. Lynch, 795 F.3d 283 (1st Cir. 2015) (personal circumstance changes alone do not meet changed-country-conditions exception)
Lie v. Holder, 729 F.3d 28 (1st Cir. 2013) (BIA’s assessment of persistence vs. change in conditions entitled to deference)
Perez-Rabanales v. Sessions, 881 F.3d 61 (1st Cir. 2018) (personal affidavits/assessments relevant to asylum eligibility but do not substitute for changed country conditions)
Lopez de Hincapie v. Gonzales, 494 F.3d 213 (1st Cir. 2007) (recognizing limits of appellate intervention in difficult cases)