Virginia Lawyers Weekly VA Lawyers Weekly
Where the petitioner was deported in 2006 because he allegedly committed an aggravated felony, but the Supreme Court held in 2018 that the type of offense he committed no longer qualified as an aggravated felony, and the petitioner moved to reconsider his original removal order in 2019, he acted with sufficient diligence as to overcome the usual 30-day deadline for filing such motions.
Background
In 2006, the Department of Homeland Security deported Damien Donovan Williams, a permanent resident of the United States since he was six years old, because the Board of Immigration Appeals, or BIA, deemed his altercation with the police an aggravated felony. In 2018, the Supreme Court ruled that the type of offense Williams committed no longer qualified as an aggravated felony.
Learning of that decision in 2019, Williams moved the BIA to reconsider its original removal order and to equitably toll the usual 30-day deadline for filing such motions in view of the legal change. The BIA rejected Williams’s request, believing him insufficiently diligent in discovering his rights.
Jurisdiction
Both parties agree that 8 U.S.C. § 1252(a)(2)(D) permits the court to review “constitutional claims or questions of law.” The parties also agree that questions of law include whether “the Board incorrectly applied the equitable tolling due diligence standard to the ‘undisputed’ (or established) facts.” But Williams argues that the court also has authority to review the BIA’s factual errors. The court holds that the Immigration and Nationality Act, or INA, never meant to bar judicial review of collateral facts far removed from the underlying “final order of removal.”
Standard
Both parties agree that the ultimate “decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board.” Federal courts of appeals have correspondingly “employed a deferential, abuse-of-discretion standard.” Williams nevertheless argues that the specific question of whether a petitioner exercised sufficient diligence to warrant equitable tolling is a “question of law” that should be reviewed de novo.
The court holds that appellate courts must match the standard of review to the specific rationale the BIA gave for its decision, meaning that “we review legal questions de novo” and factual decisions for “substantial evidence.” Mixed questions are reviewed either de novo or substantial evidence, depending on “whether answering [them] entails primarily legal or factual work.”
In this case, the parties quarrel over when the diligence clock should be started; they question the scope of the obligation a noncitizen’s family has to research the law or hire a lawyer on the noncitizen’s behalf and they argue over what level of vigilance can fairly be expected from a noncitizen who has lived in another country for over a decade before the United States finally changed the law. “This type of work is legal work.”
And to the extent this court’s work involves incidental factual determinations, it is asked to do no more here than in any other case that tasks courts with determining whether a person acted reasonably in view of the totality of the circumstances—decisions courts have historically made de novo. Here, the BIA held no hearing, took no evidence, made no credibility determinations below. It merely read Williams’s motion and the written declarations attached. This court can conduct this analysis just as well.
Tolling
The last preliminary question is whether the statutory time and number limitations on motions for reconsideration can be tolled at all. Nothing in the INA “set[s] forth ‘an inflexible rule requiring dismissal whenever’ its ‘clock has run.’” Even more to the point, this court has already permitted the BIA to equitably toll the 90-day deadline to file a motion to reopen, and the statutory text addressing motions to reopen and reconsider is functionally identical.
Merits
Noncitizens seeking equitable tolling must demonstrate they “ha[ve] been pursuing [their] rights diligently” but “extraordinary circumstances beyond [their] control made it impossible to file within the statutory deadline.” That is a high bar, to be sure. But it is not “insurmountable.” A noncitizen needs to act only with “reasonable,” “not maximum feasible diligence.” Williams has done just that. Because the BIA determined Williams not diligent, it did not consider whether Johnson and Dimaya presented an extraordinary circumstance that would warrant equitable tolling. The court thus remands to the BIA to make that determination.
Petition granted, judgment vacated and case remanded.
Dissenting opinion
Rushing, J., dissenting:
Applying the correct standard here, the BIA did not abuse its discretion in denying reconsideration based on the arguments and evidence petitioner presented to the BIA. And, as we have also held in previous decisions, we lack jurisdiction to review the BIA’s denial of sua sponte reopening. Accordingly, I would deny the petition for review in part and dismiss in part.
Williams v. Garland, Case No. 20-1854, Nov. 16, 2022. 4th Cir. (Floyd), from Board of Immigration Appeals. Benjamin Ross Winograd for Petitioner. Lindsay Colbert Dunn for Respondent. VLW 022-2-244. 69 pp.
