Garfield Kenault LAWRENCE, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
No. 15-1834
United States Court of Appeals, Fourth Circuit
June 17, 2016
Argued: May 10, 2016; Decided: June 17, 2016
Finally, the Supremacy Clause commands:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
NAAMJP makes the bold—if not borderline frivolous—move to challenge Rule 701, a federal rule adopted pursuant to a federal statute. Accordingly, the Supremacy Clause has no bearing. NAAMJP focuses on the fact that Rule 701 incorporates Maryland state licensing requirements, but ignores the fact that nothing prohibits federal law from incorporating state standards. See Augustine v. Dep‘t of Veterans Affairs, 429 F.3d 1334, 1340 (Fed. Cir. 2005) (citing NLRB v. Natural Gas Util. Dist. Of Hawkins Cnty., 402 U.S. 600, 603, 91 S.Ct. 1746, 29 L.Ed.2d 206 (1971)). Rule 701 clearly incorporates state licensing requirements for attorneys in Maryland and beyond. Rule 701‘s use of these state standards, however, does not transform Rule 701 into a state law. Rule 701 remains a federal rule prescribed pursuant to a federal statute. Thus, Rule 701 in no way violates the Supremacy Clause.
III. CONCLUSION
To summarize, Rule 701 does not violate the First Amendment, the Equal Protection Clause, the Rules Enabling Act, or the Supremacy Clause. Consequently, we affirm the decision of the district court in granting the motion to dismiss.
AFFIRMED
American Immigration Council; National Immigration Project of the National Lawyers Guild, Amici Supporting Petitioner.
ARGUED: Heidi Rachel Altman, Capi-
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.
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
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
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 employ-
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, 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (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 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
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.
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
II. Discussion
A. Equitable Tolling
Lawrence‘s primary argument on appeal is that the Board erred in denying his
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.”
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
Turning to the merits, we review the denial of a motion to reopen for abuse of discretion. See
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
“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 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—as “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 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
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 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.” 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 653.3
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 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 Law-
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) (“[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
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
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.
Lawrence provides no convincing basis for the Court to distinguish Mosere and
III. Conclusion
For all these reasons, Lawrence‘s petition for review of the Board‘s decision is
DISMISSED IN PART AND DENIED IN PART.
Luther SCOTT, Jr., for himself and all other persons similarly situated; Louisiana State Conference of the NAACP, for themselves and all other persons similarly situated, Plaintiffs-Appellees v. Tom SCHEDLER, in his official capacity as the Louisiana Secretary of State, Defendant-Appellant.
No. 15-30652
United States Court of Appeals, Fifth Circuit.
Date Filed: 06/15/2016