Garfield Lawrence v. Loretta Lynch

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: A045-612-966. [999857509]. [15-1834]

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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.,

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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.

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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.
Lawrence

is

a

native

Background
and

citizen

of

Jamaica

and

was

admitted into the United States in 1996 as a lawful permanent
resident.
Lawrence
convictions.

has

multiple

Virginia

state

court

marijuana

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

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§ 1227(a)(2)(A)(ii),

for

two

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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

substance.

Lawrence

admitted the convictions and conceded removability.

He denied

that

he

relating

qualified

protection

from

to

as

a

an

removal

controlled

aggravated

under

the

felon

and

Convention

also

sought

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
According

to

was
his

removed

to

Jamaica

declaration,

Lawrence

on

January

31,

immediately

2013.

sought

to

pursue his immigration case from Jamaica but ran into multiple
difficulties.

He

moved

three
4

times

and

struggled

to

find

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employment.

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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
September

these

2013,

hurdles,

Lawrence

while
was

doing

able

to

online

research

contact

the

in

Post-

Deportation Human Rights Project at Boston College (the “Human
Rights

Project”),

resources

to

a

clinical

deported

program

immigrants.

He

focused

on

initially

providing

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,

with

him

relevant

which

“[o]ver

stated
the

documents.

that

. .
A.R.

.

she
next

77.

“communicated
several
But

sporadically”

months”

Chicco

to

observed

obtain
that

“obtaining and sending documents was difficult for [Lawrence]
due to his limited access to modes of communication.”
5

Id.

Once

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she

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determined

that

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Lawrence

had

a

strong

case,

Chicco

“immediately undertook efforts to place the case on a pro bono
basis”

elsewhere

Rights Project.
the

Capital

due

to

“resource

A.R. 78.
Area

constraints”

at

the

Human

She eventually referred the case to

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

cancellation of removal under 8 U.S.C. § 1229b(a).
Moncrieffe,

he

argued

that

his

convictions

of

seeking

Relying on

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

considered

as

window,

timely

he

based

requested
on

equitable

that

his

motion

tolling.

be

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,

requested that the Board reopen his case sua sponte.

6

Lawrence

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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

filed “more
2013]

should

than

decision”

Lawrence’s

2

be

years

in

considered
after

the

Moncrieffe.

[Supreme]

A.R.

In

Id.

Lawrence’s

case

did

not

he

[April

particular,

acted with due diligence” during that period.
that

not

4.

that

Court’s

show

found

d[id]

given

sufficiently

also

“documents

timely,”

that

[he]

The Board

“present[]

an

exceptional situation that would warrant” sua sponte reopening.
Id.
Lawrence timely filed a petition for review and asserts
that

we

have

government,

jurisdiction

however,

under

contests

8

U.S.C.

jurisdiction

§

1252(a).
in

addition

The
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

turpitude.”
bar

of

on

his

“crimes

8 U.S.C. § 1227(a)(2)(A)(ii).

§ 1252(a)(2)(C)

jurisdiction

over

questions of law.”
that

based

Lawrence

therefore

anything

but

raises

a

moral

The jurisdictional

precludes

our

exercising

“constitutional

Id. § 1252(a)(2)(D).

merely

involving

claims

or

The government asserts

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

jurisdictional bar.

exception

to

the

criminal

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.”
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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

reversed

should

be

“only

if

capricious, or contrary to law.”
180,

182

(4th

convincing.”

Cir.

2009).

It

the

decision

is

arbitrary,

Sadhvani v. Holder, 596 F.3d
“need

only

be

reasoned,

not

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.
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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.”
307. 2

Id. at

A petitioner who relies on “extraordinary circumstances”

must

also

show

diligently.”

that

“he

has

been

pursuing

his

rights

Holland v. Florida, 560 U.S. 631, 649 (2010).

“The diligence required for equitable tolling purposes is
reasonable diligence, not maximum feasible diligence.”
653.

The

requiring

inquiry

is

court

to

a

“fact-intensive
“assess[]

the

and

Id. at

case-specific,”

reasonableness

of

petitioner’s actions in the context of his or her particular
circumstances.”
2011).

Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir.

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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lest

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circumstances

of

individualized

supplant the rules of clearly drafted statutes.”

hardship
Kuusk, 732

F.3d at 305.

We cannot “loose the rule of law to whims about

the

of

adequacy

excuses,

divergent

responses

to

claims

hardship, and subjective notions of fair accommodation.”
Lawrence

maintains

that

the

Board

applied

a

of

Id.

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

principles”
record.”

“vague

and

and

untethered

“disregard[ed]

from

substantial

applicable
portions

legal

of

the

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.
decision
heightened

suggests

that

diligence

Board

never

Board

expressly

the

First, nothing in the Board’s
Board

standard.

mentioned

Lawrence

“reasonable

stated

that

applied

an

emphasizes

diligence.”

Lawrence

improperly

had

“not

that

the

However,

the

sufficiently

show[n] that [he] acted with due diligence.”

A.R. 4 (emphasis

added).

“[t]he

And

we

define

“due

diligence”
11

as

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.”
(emphasis
explains

Diligence, Black’s Law Dictionary (10th ed. 2014)

added).
that

diligence.”

Lest

Id.

be

any

diligence”

“due

there

doubt,

is

“[a]lso

the

dictionary

termed

reasonable

In short, the Board set forth the correct

standard.
It also applied that correct standard.
equitable

tolling

because

Lawrence’s

The Board denied

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.”).
“did

not

filed.”
outlining

show

that

A.R. 4.
his

his

motion

In the Board’s view, Lawrence
should

be

considered

timely

Although Lawrence submitted some documents

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
Id.

after

he

contacted

the

Human

Rights

Project.

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
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127

(2d

circumstances

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Cir.

2008)).

presented”

fell

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But

he

short

motion should be considered timely.”
In

addressing

adequately

the

undertook

the

contends was missing.

failed
of

to

do

that:

“show[ing]

“the

that

his

Id.

“circumstances
individualized

presented,”
inquiry

the

that

Board

Lawrence

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

dressing; they bear out in the analysis.

are

not

mere

window-

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
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the problems actually accounted for his lengthy delay.
n.1.

A.R. 4

The Board acknowledged Chicco’s statement that Lawrence

had “difficulties in obtaining and sending documents regarding
his

criminal

explain”

convictions.”

why

obvious

Id.

But

alternative

Lawrence

routes

to

“d[id]
obtain

not
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
Lawrence’s

view,

demanding

an

Id.

explanation

And contrary to
for

why

a

time-

consuming course of action qualifies as “reasonable diligence”
is

not

tantamount

diligence.”

to

the

Board

requiring

“maximum

feasible

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.
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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.
as

a

The Board thus appropriately used the passage of time

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.
correct

standard

in

Having articulated and applied the

reviewing

Lawrence’s

claim

for

equitable

tolling, the Board did not abuse its discretion.
Nor

did

it

abuse

its

discretion

for

procedural deficiencies that Lawrence asserts.

either

of

the

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

reasonably

relating
detailed

to
in

the

communications

doing

so.

While

issues
the

--

and

was

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)

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(“[T]he BIA is not required to discuss every piece of evidence
when it renders a decision.”).
Likewise,
assertion,

we

the

conclude
Board

that,

provided

explanation for its decision.”

contrary
a

to

Lawrence’s

sufficiently

“reasoned

Tassi, 660 F.3d at 719.

Again,

as discussed above, the Board explained that Lawrence failed to
carry

his

burden

of

accounting

for

throughout the two-year period.

his

reasonable

diligence

Lawrence might disagree with

this conclusion, but, as noted, the Board’s decision “need only
be reasoned, not convincing.”
We

conclude

that

the

M.A., 899 F.2d at 310.
Board

appropriately

rejected Lawrence’s request for equitable tolling.

analyzed

and

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).
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B. Sua Sponte Reopening
Lawrence alternatively argues that the Board should have
reopened

the

determined

case

equitable

sua

sponte,

tolling

was

regardless

of

appropriate.

whether
See

8

it

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

Appeal: 15-1834

Doc: 45

Filed: 06/17/2016

Pg: 18 of 18

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.
18