Judge F. Dennis Saylor IV kept focusing on the Ugandan woman’s past — her conviction for marriage fraud and a finding that she had committed perjury to avoid punishment.
But the woman’s lawyer pleaded with Saylor to consider the persecution she could face as a lesbian if she were deported to her home country — imprisonment, torture, even death.
“If she is sent back to Uganda and she is killed, shame on us,” Harvey Kaplan said during a hearing Tuesday in federal court in Boston.
The woman, an unauthorized immigrant who has been in federal custody since May 31, sat quietly in green and red prison scrubs as Kaplan told Saylor that he had the authority not only to order her release, but to stay her deportation so she could make her case to stay in the United States, where she has lived since 2001.
Saylor was not convinced of the second point.
“I have no jurisdiction to stay removal,” Saylor said before a courtroom filled with two dozen of the woman’s supporters, including her mother and sisters, religious leaders, and advocates for gay, lesbian, and transgender immigrants who have been persecuted in their countries for their sexuality.
In 2009, a bill was introduced in Uganda that would have made being gay punishable by death. The bill stalled following an international outcry, particularly from the United States, but gays and lesbians in Uganda are subject to abuse and can still be sentenced to life in prison.
Tuesday’s hearing underscored the danger gay immigrants can face if deported, as well as the growing call for federal judges to intervene in removal proceedings.
Kaplan cited a 2017 decision to delay efforts to deport 51 Indonesian Christians back to their Muslim-majority country. This week, a judge in San Diego issued an order that barred the federal government from deporting newly reunited immigrant families.
Retired federal judge Nancy Gertner said judges “absolutely” can order a stay of removal to give immigrants a chance to plead their case.
Saylor “has the jurisdiction to make sure her procedural rights are respected,” Gertner said.
But Saylor said Tuesday he would be overstepping his bounds if he were to interfere with removal proceedings. He can only act if he believes a person was detained in violation of their constitutional rights, he said.
“We are a country that is governed by the rule of law,” Saylor said.
The US attorney’s office declined to comment. But Andrew Lelling, the US attorney for Massachusetts, has said that as deportation orders have surged, some judges have allowed their emotions to influence their interpretation of the law.
The Ugandan woman, whose name is not public because the case is under seal, came to the United States in 2001, overstayed her visa, then entered into a phony marriage that led to a conviction in 2012 and one-year prison sentence.
When she was released from prison, she was given a final order of removal, but was allowed to remain free as she contested her deportation.
Since then, her lawyers said she has checked in regularly with US Immigration and Customs Enforcement as she builds a case to stay based on the persecution she would face in Uganda and her ties to the United States — all of her relatives are lawful permanent residents or US citizens, including her 9-year-old daughter, she has taught the Luganda language at Harvard University and worked as a home health aide, and she has no record of violence.
Melanie Shapiro, a lawyer who specializes in helping gay immigrants and has worked with the woman since 2014, said ICE officers took her client from her home in shackles at 5:45 a.m. while her daughter slept.
“It’s very hard” for the girl, said the woman’s mother, who has been taking care of the child and was in court Tuesday. “She is always asking ‘When she is coming back?’ ”
The woman has been held in a Suffolk County jail since her arrest, a detention Shapiro said is unlawful.
Representatives for ICE and the Department of Justice declined to comment on the case.
The woman’s motion to reopen her immigration case is now before the Board of Immigration Appeals, which has the power to stay the order of removal but cannot issue it until the government provides a deportation date, Shapiro said.
“You have to have one foot out of the country before you can get a stay from the board,” she said.
Without a firm date from the government, Shapiro said Saylor is the only one with the power to stay the woman’s removal.
“People tell me it’s hell in Uganda, just hell,” said Judy Hanlon, pastor of Hadwen Park Congregational Church in Worcester, which helps gay, lesbian, and transgender immigrants.
Hanlon, who was in court Tuesday, said she has heard from a gay Ugandan woman who was raped by police officers in her native country to “correct” her sexuality. One woman told her she was raped by a “healer” in front of her father, then taken to the woods where she was ordered to spend the night naked.
“I’m absolutely sure she made mistakes,” Hanlon said of the Ugandan woman. “But none of them rise to the level of not being given the chance to explain why she needs [to stay.]”
After the hearing, Shapiro asked the officers escorting her if the woman could say hello to her family.
“It’s not allowed,” one officer said.
The woman stood in place for a few seconds and looked at her mother and sisters. She waved at them, put her hands over her mouth, then walked out of the courtroom.