# Garfield Lawrence v. Loretta Lynch

> Court of Appeals for the Fourth Circuit · June 17, 2016 · 826 F.3d 198

URL: https://www.frixlaw.com/law-library/cases/3214393

## Case

- **Full name:** 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
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** June 17, 2016
- **Citations:** 826 F.3d 198; 2016 U.S. App. LEXIS 10991; 2016 WL 3361592
- **Precedential status:** Published
- **Opinion:** Opinion by Agee
- **Judges:** Wilkinson, Agee, Davis
- **Cited by:** 69 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3214393

## How later opinions describe it (automated extraction)

- affirming that this court lacks jurisdiction to review how the Board exercises its sua sponte discretion
- holding that the court has jurisdiction to determine whether the BIA applied the correct equitable tolling standard
- stating the equitable tolling analysis requires a “fact-intensive and case-specific” inquiry (quotation marks removed)
- reaffirming that this court “lack[s] jurisdiction to review how the Board exercises its sua sponte discretion”

## Opinion text

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.

6
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

7
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.

10
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

11
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.

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3214393. Public record. Not legal advice.