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Garfield Lawrence v. Loretta Lynch, 4th Cir. (2016)
Garfield Lawrence v. Loretta Lynch, 4th Cir. (2016)
No. 15-1834
Argued:
Decided:
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.
I.
Lawrence
is
native
Background
and
citizen
of
Jamaica
and
was
has
multiple
Virginia
state
court
marijuana
1227(a)(2)(A)(ii),
for
two
convictions
for
crimes
involving
substance.
Lawrence
He denied
that
he
relating
qualified
protection
from
to
as
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 Lawrences removal to Jamaica.
trafficking
aggravated
felonies
under
U.S.C.
The 90-
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
employment.
limited
his
access
to
international
communication.
And he
these
2013,
hurdles,
Lawrence
while
was
doing
able
to
online
research
contact
the
in
Post-
Project),
resources
to
clinical
deported
program
immigrants.
He
focused
on
initially
providing
communicated
information.
An
attorney
with
the
Human
Rights
claim
under
the
Supreme
Courts
2013
decision
in
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
Id.
Once
she
determined
that
Lawrence
had
strong
case,
Chicco
elsewhere
Rights Project.
the
Capital
due
to
resource
A.R. 78.
Area
constraints
at
the
Human
Immigrants
Rights
Coalition
(CAIR),
his
removal
proceedings
for
the
purpose
he
argued
that
his
convictions
of
seeking
Relying on
were
not
drug
statutory
considered
as
window,
timely
he
based
requested
on
equitable
that
his
motion
tolling.
be
Lawrence
have
filed
earlier.
A.R.
55.
Alternatively,
Lawrence
In June 2015,
the Board denied the motion because Lawrence had not show[n]
that
his
motion
filed more
2013]
should
than
decision
Lawrences
be
years
in
considered
after
the
Moncrieffe.
[Supreme]
A.R.
In
Id.
Lawrences
case
did
not
he
[April
particular,
not
4.
that
Courts
show
found
d[id]
given
sufficiently
also
documents
timely,
that
[he]
The Board
present[]
an
we
have
government,
jurisdiction
however,
under
contests
U.S.C.
jurisdiction
1252(a).
in
addition
The
to
II. Discussion
A. Equitable Tolling
Lawrences primary argument on appeal is that the Board
erred
in
denying
his
request
for
equitable
tolling.
In
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
moral
The jurisdictional
precludes
our
exercising
constitutional
Id. 1252(a)(2)(D).
merely
involving
claims
or
factual
dispute.
Lawrence
Whether the
within
1252(a)(2)(D)s
jurisdictional bar.
exception
to
the
criminal
However, if the
Board did apply the correct standard, our jurisdiction does not
extend to a simpl[e] disagree[ment] with the Boards factual
determination that [Lawrence] had not exercised due diligence.
8
the
Boards
denial
of
equitable
tolling
is
merely
for
abuse
of
discretion.
See
C.F.R.
1003.2(a)
the
abuse-of-discretion
standard
applies
to
motions
to
and
reversed
should
be
only
if
182
(4th
convincing.
Cir.
2009).
It
the
decision
is
arbitrary,
only
be
reasoned,
not
M.A. v. INS, 899 F.2d 304, 310 (4th Cir. 1990) (en
Still, we will
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).
Id. at
must
also
show
diligently.
that
he
has
been
pursuing
his
rights
The
requiring
inquiry
is
court
to
fact-intensive
assess[]
the
and
Id. at
case-specific,
reasonableness
of
As we have
infrequent,
lest
circumstances
of
individualized
hardship
Kuusk, 732
F.3d at 305.
the
of
adequacy
excuses,
divergent
responses
to
claims
maintains
that
the
Board
applied
of
Id.
heightened
reasonably
diligent.
Opening
Br.
at
23,
24.
He
was
principles
record.
vague
and
and
untethered
disregard[ed]
from
substantial
applicable
portions
legal
of
the
suggests
that
diligence
Board
never
Board
expressly
the
standard.
mentioned
Lawrence
reasonable
stated
that
applied
an
emphasizes
diligence.
Lawrence
improperly
had
not
that
the
However,
the
sufficiently
A.R. 4 (emphasis
added).
[t]he
And
we
define
due
diligence
11
as
diligence
added).
that
diligence.
Lest
due
Id.
there
be
any
doubt,
diligence
is
[a]lso
the
dictionary
termed
reasonable
standard.
It also applied that correct standard.
equitable
tolling
because
Lawrences
evidence
failed
to
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
be
considered
timely
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.
F.3d
127
(2d
circumstances
Cir.
2008)).
presented
fell
But
he
short
addressing
adequately
the
undertook
the
failed
of
to
do
that:
show[ing]
the
that
his
Id.
circumstances
individualized
presented,
inquiry
the
that
Board
Lawrence
A.R.
n.2.
These
comments
are
not
mere
window-
A.R. 4
criminal
explain
convictions.
why
obvious
Id.
But
alternative
Lawrence
routes
to
d[id]
obtain
not
the
view,
demanding
an
Id.
explanation
And contrary to
for
why
time-
not
tantamount
diligence.
to
the
Board
requiring
maximum
feasible
Additionally,
with
regard
to
the
application
of
the
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
After
noting the length of the filing delay, the Board discussed why
Lawrences evidence had not adequately accounted for that period
of time.
as
backdrop
against
which
it
considered,
and
rejected,
Lawrences arguments.
In sum, the Board conducted an appropriate, individualized
inquiry into whether Lawrence exhibited reasonable diligence to
warrant equitable tolling.
correct
standard
in
reviewing
Lawrences
claim
for
equitable
did
it
abuse
its
discretion
for
either
of
the
The
those
reasonably
relating
detailed
to
in
the
communications
doing
so.
While
issues
the
--
and
was
Board
did
not
See
15
we
the
conclude
Board
that,
provided
contrary
a
to
Lawrences
sufficiently
reasoned
Again,
his
burden
of
accounting
for
his
reasonable
diligence
conclude
that
the
appropriately
analyzed
and
It therefore
the
determined
case
equitable
sua
sponte,
tolling
was
regardless
of
appropriate.
whether
See
it
C.F.R.
Because
Mosere
is
the
rule
in
this
circuit,
we
III. Conclusion
For all these reasons, Lawrences petition for review of
the Boards decision is
DISMISSED IN PART AND DENIED IN PART.