Metro

Federal judge denies gay Ugandan woman’s plea for release, stay of removal

The Rev. Hall Kirkham (left) embraced a woman from Uganda, whose daughter is trying to stay in the US to escape persecution because she is gay.
JONATHAN WIGGS/GLOBE STAFF
The Rev. Hall Kirkham (left) embraced a woman from Uganda, whose daughter is trying to stay in the US to escape persecution because she is gay.

A Massachusetts federal court judge ruled late Thursday that he has no jurisdiction to delay deportation proceedings of a gay Ugandan woman who has said she believes she could be persecuted, and even killed, if she returns to Uganda, where homosexuality is illegal and punishable by life in prison.

Judge F. Dennis Saylor IV said that by law, the decision of whether to stay the removal of the woman while government officials weigh her claim for asylum based on her sexuality rests with immigration authorities, not the federal district court.

“The Court is unwilling to ignore or defy the law, even in highly sympathetic circumstances,” he wrote in a 21-page ruling. “To do so would be a fundamental violation of its most basic responsibilities.”

Advertisement

The Globe is withholding the woman’s name at her attorneys’ request because they fear her sexual status could put her in danger if she is deported back to Uganda.

Get Fast Forward in your inbox:
Forget yesterday's news. Get what you need today in this early-morning email.
Thank you for signing up! Sign up for more newsletters here

In his decision, Saylor cited a 2005 law known as the “Real ID Act” that stripped courts of the authority to review challenges by immigrants to final orders of removal “in the plainest of language.”

Saylor’s decision followed an impassioned plea Tuesday by the woman’s attorneys, who argued that sending her back to Uganda could be tantamount to a death sentence. They had asked Saylor to order the woman’s release from custody of the Office of Immigrations and Customs Enforcement, whose officers arrested her May 31, and argued that Saylor had the authority to stay orders of removal so the woman could at least have a chance to plead her case to immigration officials.

They noted that other judges had done so, notably Massachusetts Chief District Judge Patti B. Saris, who in 2017 delayed efforts to deport 51 Indonesian Christians back to their Muslim-majority country.

Harvey Kaplan, one of the woman’s attorneys, said he was “shocked” by Saylor’s decision.

Advertisement

“Sometimes judges look for every reason to be helpful and sometimes judges look for every reason not to be,” Kaplan said. “We feel like that’s what happened here.”

Andrew Lelling, US attorney for Massachusetts, supported the judge’s ruling in a statement.

“Judge Saylor’s ruling re-affirms that federal district courts have only a narrow role to play in reviewing immigration disputes beyond detention issues,” he said. “By law, any other dispute should be resolved by the Executive Branch through the immigration authorities. I applaud Judge Saylor for rejecting the temptations of judicial activism and following the rule of law.

And John Mohan, the spokesman for ICE, which was accused by the woman’s lawyers of detaining her unlawfully, said they were “gratified” by Saylor’s decision.

It “confirms the appropriateness of our actions in this case,” Mohan said.

Advertisement

Kaplan said Saylor’s decision could be appealed to the First Circuit Court of Appeals. The woman also has a motion to reopen her immigration case before the Board of Immigration Appeals, or BIA, which has the power to order a stay of removal order once ICE gives a deportation date. Melanie Shapiro, another attorney for the woman, said an official at the BIA told her she may know by next week whether a stay would be issued.

Meanwhile, Shapiro said, the woman’s 9-year-old daughter, a US citizen, is missing “precious time” with her mother, who is being held in a Suffolk County jail.

“Now she doesn’t know if and when her mom will come home,” Shapiro said.

The Ugandan woman 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 apprehended by ICE and given a final order of removal, but was released and allowed to remain free as she contested her deportation. In 2015, the BIA rejected her immigration claim that she be allowed to stay in the country in part because of her sexual status, which Saylor noted in his decision.

“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,” Saylor wrote.

He said her credibility also was undermined by the “lies” she told under oath during her 2012 trial, some of which she has continued to tell immigration officials.

“To be sure, there are ample reasons to question [her] story,” Saylor wrote. “But whether she is telling the truth as to her sexual orientation and other circumstances of her life is not for this Court to decide.”

Shapiro said her client, a devout Christian, has known she was gay since she was a teenager “but because of cultural and religious stigma and that homosexuality is a crime in Uganda, she had to hide who she was.”

She finally came out to her family in 2014 after she fell in love with another inmate while in detention, Shapiro said. The woman’s sexuality has been confirmed by family members, friends, and her former partner, she said.

“There is overwhelming evidence that she is gay,” Shapiro said.

Sarah Sherman-Stokes, associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University, said that even though the Real ID Act stripped district courts of jurisdiction in some immigration matters, judges can still consider personal circumstances in a case. “They do in fact have the authority to stay deportation when they think a person’s due process rights are at risk,” she said.

Maria Cramer can be reached at mcramer@globe.com. Follow her on Twitter @globemcramer.