Biuma Malu was granted withholding of removal after a protracted legal challenge that included the filing of a petition for certiorari to the Supreme Court. Ms. Malu is a gender nonconforming lesbian from the Democratic Republic of Congo (DRC) who fled to the United States after her parents sold her to her uncle—a powerful military commander—to be his wife. For years, she lived in servitude, enduring regular sexual and physical violence. In 2000, she was finally able to flee the situation and escaped to the United States.
When Ms. Malu came to the United States, she felt free for the first time in her life and was therefore comfortable pursuing relationships with women. She has been out about her sexual orientation and has dated women exclusively for the past 10 years.
Despite the severity of the past harm that she endured and the clear probability of additional harm that she would face as a lesbian in the DRC, Ms. Malu was initially denied withholding of removal (a form of refugee protection). It took four years of fighting her case and 13 legal briefs to undo this denial.
September 2011:The Department of Homeland Security (DHS) detains Ms. Malu and issues a Final Administrative Removal Order (FARO) under INA § 238(b). DHS asserts that Ms. Malu’s conviction for misdemeanor battery is an aggravated felony. Pro se, Ms. Malu refuses to sign but indicates that she fears deportation to the DRC.
February 2012: Ms. Malu begins her court case in Atlanta, still without an attorney. Immigration Judge Cassidy informs Ms. Malu, “You have an aggravated felony” and explains how this limits her options.
September 2012: After a year with no lawyer, Judge Cassidy denies relief. He accepts that Ms. Malu is a lesbian but says her failure to produce a valid identity document is “fatal” to her case.
November 2012: NIJC begins representation at the Board of Immigration Appeals (BIA).
December 2012: A single member of the BIA affirms Judge Cassidy’s decision. Ms. Malu immediately appeals to the U.S. Court of Appeals for the Eleventh Circuit.
Ms. Malu is represented by NIJC and Sidley Austin LLP. Numerous LGBT and Immigrant Rights organizations, led by the National Center for Lesbian Rights, support the case as amicus curiae.
February 2013: After 18 months of detention in Ocilla, Georgia, Ms. Malu is released.
August 2014: The Eleventh Circuit issues a decision denying and dismissing Ms. Malu’s case. (For a summary of that decision, click here.)
October 2014: Ms. Malu files a petition for rehearing with the Eleventh Circuit.
The petition receives amicus support from the National Immigration Project, the American Immigration Lawyers Association, and the National Center for Lesbian Rights (writing on behalf of 7 LGBT and Immigrant Rights Groups). Attorneys from Jones Day LLP and Sutherland Asbill & Brennan LLP participated in these efforts.
Concurrent with the filing of the petition for rehearing, Ms. Malu files a motion to reopen with DHS asking it to Reopen and Rescind the September 2011 FARO, pointing to 8 C.F.R. § 103.5(a) as the basis for its authority to do so.
December 2014: The Eleventh Circuit denies Ms. Malu’s request for rehearing.
February 2015: Ms. Malu files a petition for Certiorari with the United States Supreme Court. The primary question presented is whether the Eleventh Circuit correctly held that Ms. Malu was required to exhaust administrative remedies by challenging her FARO directly with DHS, while detained and pro se, and within her first two weeks in detention.
NIJC and Sidley Austin LLP continue to represent Ms. Malu at this stage. The National Center for Lesbian Rights and Immigration Equality support this petition as amicus curiae. They are represented by attorneys from Ropes & Gray LLP.
April 2015: Without confessing error, DHS agrees to grant the motion to reopen that Ms. Malu had filed with DHS and to give her a second chance to seek protection in new proceedings before an immigration judge. This second chance is conditioned, however, on Ms. Malu agreeing to go back into immigration detention, albeit in Chicago where NIJC’s main office is located.
July 2015: DHS cancels the FARO issued to Ms. Malu in 2011 and gives her a notice to appear before an immigration judge in Chicago. Ms. Malu goes into immigration custody.
August 2015: Ms. Malu is granted withholding of removal and released from immigration custody, after having spent just six days in custody.
Legal Issues Involved in the Case
Ms. Malu’s case involved numerous legal issues over the course of the litigation. Those issues include:
1. Exhaustion of Challenges to Administrative Removal Orders. The main issue before the Supreme Court in Ms. Malu’s case was whether she should have been required to challenge the designation of her misdemeanor battery offense as an aggravated felony in the administrative process. The Eleventh Circuit concluded that she did, in direct conflict with other circuits, most notably the Fifth Circuit. See Valdiviez-Hernandez v. Holder, 739 F.3d 184 (5th Cir. 2013).
Ms. Malu argued that the administrative process for reviewing FAROs is limited to questions of fact and does not allow a legal challenge to the determination that a conviction is an aggravated felony. Ms. Malu contended that this position was supported by the following factors: (a) FAROs are reviewed by DHS officers who may lack legal training, (b) the time frame to respond to the FARO is just ten days, and (c) the form used to challenge a FARO and the governing regulations do not allow for legal challenges.
2. Appellate Jurisdiction. By the time Ms. Malu’s case made it to argument at the Eleventh Circuit, DHS had dropped any argument that the criminal conviction underlying the FARO was actually an aggravated felony. Ms. Malu asserted on appeal that, even if she was required to exhaust, the court still needed to address the question whether the crime was in fact an aggravated felony in order to determine the scope of its own jurisdiction.
3. Credibility and Corroboration. Ms. Malu also appealed Judge Cassidy’s decision on the merits, arguing that he had imposed a corroboration requirement that was unreasonable given her status as a pro se detainee. In particular, Judge Cassidy had demanded documentation of Ms. Malu’s life in the DRC even though she had explained that she cut off contact to the DRC after coming to the United States and had no way to obtain such documentation.
4. Access to Counsel. Though not an issue that was litigated directly in any federal court, Ms. Malu’s case is a clear illustration of the need for access to counsel, ideally at the earliest stages of proceedings.