Filed: Apr. 14, 2006
Latest Update: Feb. 21, 2020
Summary: hearing on Kibuuka's applications for relief.See Sagaydak v. Gonzales, 405 F.3d 1035, 1037 (9th Cir.3, Kibuuka does not claim that he was unable to truthfully, respond to the IJ's question because of the depression that he, suffered because of his alleged experiences as a gay man in Uganda.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1437
ROBERT KIBUUKA,
Petitioner,
v.
ALBERTO R. GONZALES,
United States Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lipez, and Howard, Circuit Judges.
Michael D. Greenberg and Law Offices of Michael D. Greenberg
for petitioner.
Peter D. Keisler, Assistant Attorney General, Greg D. Mack,
Senior Litigation Counsel, and Jennifer Levings, Attorney, Office
of Immigration Litigation, Civil Division, on brief for
respondent.
April 14, 2006
Per Curiam. Robert Kibuuka, a native of Uganda,
petitions for review of a decision of the Board of Immigration
Appeals (BIA) affirming an order of removal against him. We
dismiss the petition in part for a lack of jurisdiction and deny
the remainder.
In January 2000, Kibuuka arrived in the United States on
a student visa to attend Troy State University in Alabama. In
March 2001, the Immigration and Naturalization Service (INS)
learned that Kibuuka had left school and issued him a notice to
appear at a removal hearing for not complying with the terms of his
visa.1 In September 2002, over 30 months after his arrival,
Kibuuka applied for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT).
In August 2003, an immigration judge (IJ) convened a
hearing on Kibuuka's applications for relief. Kibuuka was the only
witness. Kibuuka testified that he is a 33 year-old homosexual,
single male from Uganda, where homosexuality is illegal. In July
1999, Kibuuka attended the wedding of two men. The police raided
the wedding, beat several of the attendees, including Kibuuka,
interrogated other, and arrested the groom. Kibuuka was permitted
to leave. Thereafter, he went into hiding at his parents' home,
where he stayed until he left for the United States.
1
In March 2003, the relevant functions of the INS were
reorganized and transferred into the new Department of Homeland
Security.
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Kibuuka did not immediately attend Troy State because he
did not have enough money for tuition. Eventually, he attended the
university for one semester before withdrawing. While at school,
he did not divulge his sexual orientation because he did not think
that "there were many gay people" there. After withdrawing,
Kibuuka went to Boston, Massachusetts, where he worked delivering
furniture. At the conclusion of Kibuuka's testimony, the IJ asked
if he was presently involved in a romantic relationship with a
man. Kibuuka answered that he was not.
Kibuuka also submitted a report from a psychologist,
which recounted Kibuuka's history and concluded that Kibuuka
suffered from a major depressive disorder due to the treatment he
had received because of his sexual orientation. The report also
stated that Kibuuka's mental state gradually improved once he
arrived in the United States, but that his depression made him
"unable to apply for asylum based on his homosexuality during [the]
first year of his United States residence."
The IJ concluded that Kibuuka was not credible because
there were several material contradictions between his testimony
and the information included in the report. The IJ rejected the
asylum claim on the ground that the application was time barred
because it was not filed within one year of Kibuuka entering the
United States, and because Kibuuka had not established
extraordinary circumstances to justify the late filing. The IJ
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also rejected the withholding of removal and CAT claims because
Kibuuka failed to persuade him that he actually attended the 1999
wedding or that he was a "member of the gay community."
Kibuuka appealed to the BIA. He challenged the IJ's
time-bar ruling and also sought to reopen the hearing to present
"new" evidence that he was involved in a homosexual relationship on
the date of his initial hearing. The BIA summarily affirmed the
time-bar ruling and denied Kibuuka's motion to reopen because the
evidence of Kibuuka's romantic relationship was not new.
Kibuuka reasserts these claims in his petition for
review. He contends that the IJ erred by ruling his asylum
application untimely without explicitly considering whether his
depression should excuse the late filing. He also argues that the
BIA abused its discretion in denying the motion to reopen because
he did not understand that he needed to present evidence of his
involvement in a romantic relationship to prove that he was
homosexual.
An alien has one year from the date of arrival in the
United States to file an application for asylum unless the alien
demonstrates to the Attorney General's satisfaction that the delay
was caused by changed or extraordinary circumstances. See 8 U.S.C.
§§ 1158(a)(2)(B) & (D). This court cannot review an agency
determination that an asylum application was untimely. See 8
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U.S.C. § 1158(a)(3); Haoud v. Ashcroft, 350 F.3d 201, 204-05 (1st
Cir. 2004).
Kibuuka contends that we may address his claim because
the IJ did not consider his argument that his depression
constituted extraordinary circumstances justifying the late filing.
See Sagaydak v. Gonzales, 405 F.3d 1035, 1037 (9th Cir. 2005)
(remanding case to BIA where the IJ and BIA "failed to address"
petitioner's extraordinary circumstances claim). We reject the
premise of Kibuuka's argument. There is no reason for us to infer
that the IJ failed to consider Kibuuka's depression-related claim
in determining that he had failed to demonstrate extraordinary
circumstances.
Kibuuka's extraordinary circumstances argument was
premised on the psychological report's conclusion that he could not
timely file his asylum application due to depression. The IJ
admitted this report over the government's objection and clearly
read it, referring to it several times in his opinion. While the
IJ did not specifically address the depression-related claim in
rejecting Kibuuka's extraordinary circumstances argument, we are
confident, based on the record as a whole, that he considered it.
No more is required. See Enwonwu v. Gonzales, 438 F.3d 22, 35
(1st Cir. 2006) (stating that an IJ is not required to "spell out
every last detail of its reasoning where the logical underpinnings
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are clear from the record"). We therefore lack jurisdiction to
consider this aspect of Kibuuka's petition.2
We turn to Kibuuka's motion to reopen. The denial of a
motion to reopen is reviewed for abuse of discretion. Chen v.
Gonzales, 415 F.3d 151, 153 (1st Cir. 2005). In the interests of
finality, such motions are disfavored. See Mabikas v. INS,
358
F.3d 145, 148 (1st Cir. 2004). One predicate for a successful
motion to reopen to present additional evidence is that the
evidence must have been "previously unavailable." Fesseha v.
Ashcroft,
333 F.3d 13, 20 (1st Cir. 2003).
Kibuuka sought to reopen the hearing to introduce
evidence that he was involved in a homosexual relationship on the
date of his initial hearing. He acknowledges that this evidence
was available at the time of his hearing but claims that he did not
mention it because he did not think that presenting such
information was necessary to his case.
Kibuuka's admission that this evidence was available at
the initial hearing undermines his claimed entitlement to
2
Kibuuka also argues that the REAL ID ACT of 2005, Pub. L. No,
109-13, § 106(a)(1)(A)(iii), 119 Stat. 231-310 (codified at 8
U.S.C. § 1252(a)(2)(D)) empowers us to review the timeliness
determination because it grants this court authority to review
constitutional claims or questions of law. But the IJ's
determination that Kibuuka's depression was insufficient to
establish extraordinary circumstances was a discretionary judgment
to which § 1252(a)(2)(D) does not apply. See Mehilli v. Gonzales,
433 F.3d 86, 93 (1st Cir. 2005); see also Chen v. U.S. Dep't of
Justice,
434 F.3d 144, 151-55 (2d Cir. 2005).
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reopening. There is no question that the IJ specifically asked
Kibuuka if he was involved in a relationship with a man, and that
Kibuuka provided a false answer. Kibuuka claims that he
nevertheless should be allowed to present this evidence because he
did not know that his answer would be used by the IJ as a ground
for decision. There are two problems with this argument. First,
a witness obviously is not entitled to prevaricate simply because
he deems a question irrelevant. Rather, he must either object or
answer the question truthfully.3 Moreover, Kibuuka overstates the
record by suggesting that his false answer to the IJ's question was
the linchpin of the decision. The IJ primarily rejected Kibuuka's
claim because of inconsistencies between his testimony and the
information contained in the psychologist's report. And nothing
about Kibuuka's homosexual relationship would undercut the IJ's
primary basis for denying Kibuuka relief. There was no abuse of
discretion in denying Kibuuka's motion to reopen.
Dismissed in part and denied in part.
3
Kibuuka does not claim that he was unable to truthfully
respond to the IJ's question because of the depression that he
suffered because of his alleged experiences as a gay man in Uganda.
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