Garfield Lawrence v. Loretta Lynch , 826 F.3d 198 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1834
GARFIELD KENAULT LAWRENCE,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
---------------------------------
AMERICAN IMMIGRATION COUNCIL; NATIONAL IMMIGRATION PROJECT OF
THE NATIONAL LAWYERS GUILD,
Amici Supporting Petitioner.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: May 10, 2016 Decided: June 17, 2016
Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Petition dismissed in part and denied in part by published
opinion. Judge Agee wrote the opinion, in which Judge Wilkinson
and Senior Judge Davis joined.
ARGUED: Heidi Rachel Altman, CAPITAL AREA IMMIGRANTS’ RIGHTS
COALITION, Washington, D.C., for Petitioner. Matthew Allan
Spurlock, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Morgan Macdonald, CAPITAL AREA
IMMIGRANTS’ RIGHTS COALITION, Washington, D.C., for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, John S. Hogan, Senior Litigation Counsel, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. Kristin Macleod-Ball,
AMERICAN IMMIGRATION COUNCIL, Washington, D.C.; Trina Realmuto,
NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD,
Boston, Massachusetts, for Amici Curiae.
2
AGEE, Circuit Judge:
Petitioner Garfield Lawrence seeks review of the Board of
Immigration Appeals’ (the “Board” or “BIA”) decision denying his
motion to reopen as untimely and denying his request for sua
sponte reopening. The Board denied the request, concluding that
Lawrence failed to demonstrate due diligence in pursuing his
claim. On appeal, Lawrence principally asserts that the Board
applied the wrong standard to the equitable tolling inquiry.
For the reasons discussed below, we conclude that the Board
acted within its discretion in denying equitable tolling and
that we lack jurisdiction to review its decision to deny sua
sponte reopening.
I. Background
Lawrence is a native and citizen of Jamaica and was
admitted into the United States in 1996 as a lawful permanent
resident.
Lawrence has multiple Virginia state court marijuana
convictions. In August 2006, he was convicted of a marijuana
distribution offense and sentenced to six months’ imprisonment.
Then, in February 2009, he was convicted of two felony marijuana
distribution counts and sentenced to two years’ imprisonment.
In 2011, the Department of Homeland Security (“DHS”) issued
a notice to appear charging Lawrence as removable under 8 U.S.C.
3
§ 1227(a)(2)(A)(ii), for two convictions for crimes involving
moral turpitude; under § 1227(a)(2)(A)(iii), for a conviction of
an aggravated felony offense relating to the illicit trafficking
of a controlled substance; and under § 1227(a)(2)(B)(i), for a
conviction relating to a controlled substance. Lawrence
admitted the convictions and conceded removability. He denied
that he qualified as an aggravated felon and also sought
protection from removal under the Convention Against Torture
(“CAT”).
After a hearing, the immigration judge denied the CAT claim
and ordered Lawrence’s removal to Jamaica. The judge ruled that
Lawrence’s convictions for distribution of marijuana constituted
“drug trafficking” aggravated felonies under 8 U.S.C.
§ 1101(a)(43)(B), making Lawrence ineligible for cancellation of
removal. See 8 U.S.C. § 1229b(a)(3). Lawrence appealed the
decision, and the Board affirmed on December 4, 2012. The 90-
day statutory period to file a motion to reopen began on that
date. See id. § 1229a(c)(7)(C)(i) (providing that a “motion to
reopen shall be filed within 90 days of the date of entry of a
final administrative order of removal”).
Lawrence was removed to Jamaica on January 31, 2013.
According to his declaration, Lawrence immediately sought to
pursue his immigration case from Jamaica but ran into multiple
difficulties. He moved three times and struggled to find
4
employment. When he did find regular work, over a year after
his deportation, the position was in an isolated, rural area
that limited his access to international communication.
Lawrence represented that he used a prepaid cell phone, but the
reception in his area was too weak to sustain a call. And he
stated that reaching an internet café required a 45-minute taxi
ride, an expense he claimed he could not afford regularly due to
his small weekly salary.
Despite these hurdles, while doing online research in
September 2013, Lawrence was able to contact the Post-
Deportation Human Rights Project at Boston College (the “Human
Rights Project”), a clinical program focused on providing
resources to deported immigrants. He initially communicated
with a legal fellow who conducted a case intake and collected
background information. An attorney with the Human Rights
Project, Jessica Chicco, later determined that Lawrence might
have a claim under the Supreme Court’s 2013 decision in
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).
Lawrence included a declaration from Chicco with his motion
to reopen, which stated that she “communicated sporadically”
with him “[o]ver the . . . next several months” to obtain
relevant documents. A.R. 77. But Chicco observed that
“obtaining and sending documents was difficult for [Lawrence]
due to his limited access to modes of communication.” Id. Once
5
she determined that Lawrence had a strong case, Chicco
“immediately undertook efforts to place the case on a pro bono
basis” elsewhere due to “resource constraints” at the Human
Rights Project. A.R. 78. She eventually referred the case to
the Capital Area Immigrants’ Rights Coalition (“CAIR”),
Lawrence’s current counsel.
On May 19, 2015, Lawrence (represented by CAIR) moved to
reopen his removal proceedings for the purpose of seeking
cancellation of removal under 8 U.S.C. § 1229b(a). Relying on
Moncrieffe, he argued that his convictions were not drug
trafficking aggravated felonies and that he should have been
permitted to seek cancellation of removal.
Because Lawrence filed his motion to reopen far outside the
90-day statutory window, he requested that his motion be
considered as timely based on equitable tolling. Lawrence
argued that filing the motion to reopen within 90 days “was
impossible” because it was “based on . . . Moncrieffe, which was
not announced until 140 days after [the] final administrative
removal order was entered” and that he was “diligent in pursuing
the legal assistance necessary to draft and file a motion to
reopen his case from abroad and could not reasonably be expected
to have filed earlier.” A.R. 55. Alternatively, Lawrence
requested that the Board reopen his case sua sponte.
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DHS opposed Lawrence’s motion as untimely. In June 2015,
the Board denied the motion because Lawrence had not “show[n]
that his motion should be considered timely,” given that he
filed “more than 2 years after the [Supreme] Court’s [April
2013] decision” in Moncrieffe. A.R. 4. In particular,
Lawrence’s “documents d[id] not sufficiently show that [he]
acted with due diligence” during that period. Id. The Board
also found that Lawrence’s case did not “present[] an
exceptional situation that would warrant” sua sponte reopening.
Id.
Lawrence timely filed a petition for review and asserts
that we have jurisdiction under 8 U.S.C. § 1252(a). The
government, however, contests jurisdiction in addition to
opposing the petition on the merits.
II. Discussion
A. Equitable Tolling
Lawrence’s primary argument on appeal is that the Board
erred in denying his request for equitable tolling. In
Lawrence’s view, the Board failed to apply the proper analysis
to determine whether he pursued his claim with due diligence.
He contends that the Board rigidly focused only on the amount of
time that had passed between the adjudication of removal and the
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filing of the motion to reopen without sufficiently considering
all the circumstances.
We must first determine whether we have jurisdiction to
review this claim. Even if Lawrence is correct that none of his
convictions constitute an aggravated felony post-Moncrieffe, he
remains removable based on his “crimes involving moral
turpitude.” 8 U.S.C. § 1227(a)(2)(A)(ii). The jurisdictional
bar of § 1252(a)(2)(C) therefore precludes our exercising
jurisdiction over anything but “constitutional claims or
questions of law.” Id. § 1252(a)(2)(D). The government asserts
that Lawrence merely raises a factual dispute. Lawrence
counters that the gravamen of his appeal concerns whether the
Board applied the wrong standard in conducting the equitable
tolling inquiry -– an issue of law.
We take Lawrence’s argument at face value and conclude that
we do have jurisdiction over that narrow issue. Whether the
Board applied the correct standard is a question of law that
falls within § 1252(a)(2)(D)’s exception to the criminal
jurisdictional bar. See Tran v. Gonzales, 447 F.3d 937, 943
(6th Cir. 2006) (exercising jurisdiction over the question of
“whether the BIA used the correct standard”). However, if the
Board did apply the correct standard, our jurisdiction does not
extend to a “simpl[e] disagree[ment]” with the Board’s “factual
determination that [Lawrence] had not exercised due diligence.”
8
Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir. 2006); see also
Lagos v. Keisler, 250 F. App’x 562, 563 (4th Cir. 2007) (per
curiam) (unpublished) (stating that a “simpl[e] disagree[ment]”
with the Board’s denial of equitable tolling is “merely a
factual issue over which we lack jurisdiction”).
Turning to the merits, we review the denial of a motion to
reopen for abuse of discretion. See 8 C.F.R. § 1003.2(a)
(stating that the Board possesses discretion to deny motions to
reopen even where movant “has made out a prima facie case” to
reopen); INS v. Doherty, 502 U.S. 314, 323 (1992) (reiterating
that “the abuse-of-discretion standard applies to motions to
reopen regardless of the underlying basis of the alien’s request
for relief”). 1 The Board’s decision receives “extreme deference”
and should be reversed “only if the decision is arbitrary,
capricious, or contrary to law.” Sadhvani v. Holder, 596 F.3d
180, 182 (4th Cir. 2009). It “need only be reasoned, not
convincing.” M.A. v. INS, 899 F.2d 304, 310 (4th Cir. 1990) (en
banc), superseded by statute on other grounds. Still, we will
reverse the Board if it “fail[s] to offer a reasoned explanation
for its decision, or if it distort[s] or disregard[s] important
1
We have omitted internal quotation marks, alterations, and
citations here and throughout this opinion, unless otherwise
noted.
9
aspects of [an] applicant’s claim.” Tassi v. Holder, 660 F.3d
710, 719 (4th Cir. 2011).
Here, the Board denied Lawrence’s motion as untimely after
rejecting his request for equitable tolling. See Kuusk v.
Holder, 732 F.3d 302, 305-06 (4th Cir. 2013) (recognizing that
the principles of equitable tolling apply to “untimely motions
to reopen removal proceedings”). A petitioner seeking equitable
tolling must prove that “(1) the Government’s wrongful conduct
prevented the petitioner from filing a timely motion; or (2)
extraordinary circumstances beyond the petitioner’s control made
it impossible to file within the statutory deadline.” Id. at
307. 2 A petitioner who relies on “extraordinary circumstances”
must also show that “he has been pursuing his rights
diligently.” Holland v. Florida, 560 U.S. 631, 649 (2010).
“The diligence required for equitable tolling purposes is
reasonable diligence, not maximum feasible diligence.” Id. at
653. The inquiry is “fact-intensive and case-specific,”
requiring a court to “assess[] the reasonableness of
petitioner’s actions in the context of his or her particular
circumstances.” Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir.
2011). But this individualized inquiry has limits. As we have
cautioned, the use of equitable tolling “must be guarded and
2
Lawrence does not contend that any conduct by the
government prevented him from filing a timely motion to reopen.
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infrequent, lest circumstances of individualized hardship
supplant the rules of clearly drafted statutes.” Kuusk, 732
F.3d at 305. We cannot “loose the rule of law to whims about
the adequacy of excuses, divergent responses to claims of
hardship, and subjective notions of fair accommodation.” Id.
Lawrence maintains that the Board applied a heightened
diligence standard that required absolute diligence rather than
reasonable diligence and therefore committed an error of law.
According to Lawrence, if the Board had properly undertaken an
“individualized reasonableness inquiry . . . accounting for all
the facts in the record,” it would have found Lawrence to have
been “reasonably diligent.” Opening Br. at 23, 24. He
contends the Board’s analysis –- contrary to our guidance in
Tassi –- was “vague and untethered from applicable legal
principles” and “disregard[ed] substantial portions of the
record.” Id. at 19 (citing Tassi, 660 F.3d at 719).
We are not persuaded that the Board’s ruling suffered from
any of these asserted errors. First, nothing in the Board’s
decision suggests that the Board applied an improperly
heightened diligence standard. Lawrence emphasizes that the
Board never mentioned “reasonable diligence.” However, the
Board expressly stated that Lawrence had “not sufficiently
show[n] that [he] acted with due diligence.” A.R. 4 (emphasis
added). And we define “due diligence” as “[t]he diligence
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reasonably expected from, and ordinarily exercised by, a person
who seeks to satisfy a legal requirement or to discharge an
obligation.” Diligence, Black’s Law Dictionary (10th ed. 2014)
(emphasis added). Lest there be any doubt, the dictionary
explains that “due diligence” is “[a]lso termed reasonable
diligence.” Id. In short, the Board set forth the correct
standard.
It also applied that correct standard. The Board denied
equitable tolling because Lawrence’s evidence failed to
establish reasonable diligence, not because he failed to take
any maximally diligent step in filing his motion. See Jian Hua
Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) (“[The] petitioner
bears the burden of proving that he has exercised due diligence
in the period between discovering the [ground for reopening] and
filing the motion to reopen.”). In the Board’s view, Lawrence
“did not show that his motion should be considered timely
filed.” A.R. 4. Although Lawrence submitted some documents
outlining his difficulties, the Board determined that those
“documents d[id] not sufficiently show that [he] acted with due
diligence” during the two years after Moncrieffe or even the
year-and-a-half after he contacted the Human Rights Project.
Id. As the Board emphasized, Lawrence would have needed to
demonstrate that he “acted with due diligence during the entire
period” he sought to toll. Id. (citing Rashid v. Mukasey, 533
12
F.3d 127 (2d Cir. 2008)). But he failed to do that: “the
circumstances presented” fell short of “show[ing] that his
motion should be considered timely.” Id.In addressing the “circumstances presented,” the Board
adequately undertook the individualized inquiry that Lawrence
contends was missing. The Board not only ruled “[b]ased on the
circumstances presented,” id., but also explicitly noted that it
had “examine[d] the facts and circumstances presented in the
motion,” A.R. 4 n.2. These comments are not mere window-
dressing; they bear out in the analysis. The Board acknowledged
Lawrence’s argument that he had been “hampered by logistical and
communications problems,” and it cited the pages of his motion
that discuss those problems. See A.R. 4 (citing A.R. 54-57).
What’s more, the Board summarized two of Lawrence’s supporting
documents, declarations from him and from Chicco:
These documents state that the respondent contacted
the Post-Deportation Human Rights Project in September
2013; the attorney informed him about the possibility
of seeking reopening of his case under Moncrieffe v.
Holder; “[o]ver the course of the next several months”
they “communicated sporadically” until the attorney
obtained documents regarding the respondent’s
convictions; and in February 2015 this attorney
referred the respondent to his current counsel.
Id. (citations omitted).
The Board simply found Lawrence’s individual circumstances
to be insufficient. While the “communications problem” could
account for some delay, Lawrence provided “no detail” about how
13
the problems actually accounted for his lengthy delay. A.R. 4
n.1. The Board acknowledged Chicco’s statement that Lawrence
had “difficulties in obtaining and sending documents regarding
his criminal convictions.” Id. But Lawrence “d[id] not
explain” why obvious alternative routes to obtain the
information more efficiently were not available: perhaps “he or
the attorney could . . . have obtained relevant documents with
the assistance of his family . . . or by reviewing or obtaining
a copy of the administrative record.” 3 Id. And contrary to
Lawrence’s view, demanding an explanation for why a time-
consuming course of action qualifies as “reasonable diligence”
is not tantamount to the Board requiring “maximum feasible
diligence.” Holland, 560 U.S. at 653.
Additionally, with regard to the application of the
diligence standard, Lawrence argues that the Board improperly
focused on the length of the delay before he filed his motion –-
over two years after Moncrieffe. True, the diligence inquiry
cannot hinge on the elapsed time alone. See, e.g., Gordillo v.
Holder, 640 F.3d 700, 705 (6th Cir. 2011) (“[T]he mere passage
of time -– even a lot of time –- before an alien files a motion
3
We do not suggest that a petitioner must anticipate and
address every conceivable step he could have taken to file his
motion more quickly. But a petitioner’s failure to address why
he did not take basic, minimal steps to file more quickly is
relevant to the due diligence analysis.
14
to reopen does not necessarily mean she was not diligent.”).
But as discussed above, that is not what happened here. After
noting the length of the filing delay, the Board discussed why
Lawrence’s evidence had not adequately accounted for that period
of time. The Board thus appropriately used the passage of time
as a backdrop against which it considered, and rejected,
Lawrence’s arguments.
In sum, the Board conducted an appropriate, individualized
inquiry into whether Lawrence exhibited reasonable diligence to
warrant equitable tolling. Having articulated and applied the
correct standard in reviewing Lawrence’s claim for equitable
tolling, the Board did not abuse its discretion.
Nor did it abuse its discretion for either of the
procedural deficiencies that Lawrence asserts. For the reasons
discussed above with regard to an individualized inquiry, we
disagree with Lawrence’s position that the Board “disregarded
important aspects of [his] claim.” Tassi, 660 F.3d at 719. The
Board discussed the most important aspects of Lawrence’s claim -
– those relating to the communications issues -- and was
reasonably detailed in doing so. While the Board did not
discuss each of Lawrence’s exhibits, it had no obligation to go
page by page through the evidence in making a ruling. See
Hadjimehdigholi v. INS, 49 F.3d 642, 648 n.2 (10th Cir. 1995)
15
(“[T]he BIA is not required to discuss every piece of evidence
when it renders a decision.”).
Likewise, we conclude that, contrary to Lawrence’s
assertion, the Board provided a sufficiently “reasoned
explanation for its decision.” Tassi, 660 F.3d at 719. Again,
as discussed above, the Board explained that Lawrence failed to
carry his burden of accounting for his reasonable diligence
throughout the two-year period. Lawrence might disagree with
this conclusion, but, as noted, the Board’s decision “need only
be reasoned, not convincing.” M.A., 899 F.2d at 310.
We conclude that the Board appropriately analyzed and
rejected Lawrence’s request for equitable tolling. It therefore
did not abuse its discretion in denying Lawrence’s motion to
reopen as untimely. 4
4 We note that even if Lawrence had received equitable
tolling and succeeded in his motion to reopen, the entire
endeavor could well have come to naught if the Attorney General
declined to grant Lawrence’s application for cancellation of
removal. That decision is discretionary and generally not
subject to judicial review. See 8 U.S.C. § 1252(a)(2)(B)(i).
While this is a policy matter within the purview of Congress and
the Executive Branch, we note that significant judicial
resources might be saved in certain cases if it were
alternatively established in the record that the Attorney
General would not exercise her discretion to grant cancellation
of removal. See Mena v. Lynch, No. 15-1009, --- F.3d ---, 2016
WL 1660166, at *5 n.7 (4th Cir. Apr. 27, 2016).
16
B. Sua Sponte Reopening
Lawrence alternatively argues that the Board should have
reopened the case sua sponte, regardless of whether it
determined equitable tolling was appropriate. See 8 C.F.R.
§ 1003.2(a) (providing that the Board “may at any time reopen or
reconsider on its own motion any case in which it has rendered a
decision”).
But we lack jurisdiction to review how the Board exercises
its sua sponte discretion. In Mosere v. Mukasey, 552 F.3d 397(4th Cir. 2009), we followed the lead of other circuits and
concluded that such Board rulings were unreviewable:
[B]ecause there are no meaningful standards by which
to evaluate the BIA’s decision not to exercise its
power to reopen under 8 C.F.R. § 1003.2(a), we find,
in concert with every court to have considered this
issue, that we lack jurisdiction to review the BIA’s
refusal to reopen [the petitioner’s] case sua sponte.
Id. at 398-99.
Lawrence provides no convincing basis for the Court to
distinguish Mosere and exercise jurisdiction over a sua sponte
decision. 5 Because Mosere is the rule in this circuit, we
decline jurisdiction over this issue.
5 Lawrence’s reliance on Mahmood v. Holder, 570 F.3d 466 (2d
Cir. 2009), is misplaced. There, the Second Circuit found
jurisdiction and remanded for the Board to reconsider exercising
its sua sponte discretion. Id. at 467. But it did so only
after concluding that the Board “may have . . . misperceived the
legal background and thought, incorrectly, that a reopening
(Continued)
17
III. Conclusion
For all these reasons, Lawrence’s petition for review of
the Board’s decision is
DISMISSED IN PART AND DENIED IN PART.
would necessarily fail.” Id. at 469. Even if we were to adopt
such an exception to Mosere, it would not apply here. Nothing
suggests the Board “misperceived” Lawrence’s underlying
Moncrieffe argument or thought the “reopening would necessarily
fail.” To the contrary, the Board declined to use its sua
sponte power because of the untimely filing: it concluded that
the case did not present an “exceptional situation” and noted
that the sua sponte power “is not meant to be used as a general
cure for filing defects.” A.R. 4.
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