Goulart v. Garland

• Decision Date: 18 November 2021
• Docket Number: No. 19-72007,19-72007
• Citation: 18 F.4th 653
• Parties: Jose Eduino Assumpcao GOULART, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.4th 653

Jose Eduino Assumpcao GOULART, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-72007

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 2021 Pasadena, California

Filed November 18, 2021

Matthew H. Springmeyer (argued), Law Office of Matthew H. Springmeyer, San Diego, California, for Petitioner.

Andrew B. Insenga (argued), Trial Attorney; Anthony P. Nicastro, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Richard A. Paez and Lawrence VanDyke, Circuit Judges, and Edward R. Korman,^* District Judge.

Opinion by Judge Paez ;

Concurrence by Judge VanDyke ;

Dissent by Judge Korman

PAEZ, Circuit Judge:

Petitioner Jose Eduino Assumpcao Goulart, a native and citizen of Brazil, petitions for review of the Board of Immigration Appeal's ("BIA") decision denying his motion for reconsideration. Specifically, Goulart argues that the BIA erred in concluding that the motion was untimely and denying equitable tolling. We have jurisdiction under 8 U.S.C. § 1252. See Mata v. Lynch , 576 U.S. 143, 147-48, 135 S.Ct. 2150, 192 L.Ed.2d 225 (2015). Because the BIA did not abuse its discretion, Lona v. Barr , 958 F.3d 1225, 1229 (9th Cir. 2020), we deny Goulart's petition.

"A motion to reconsider a final order of removal generally must be filed within thirty days of the date of entry of the order." Id. at 1230 (citing 8 U.S.C. § 1229a(c)(6)(B) ). The filing deadline is subject to equitable tolling "when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error." Id. (quoting Iturribarria v. INS , 321 F.3d 889, 897 (9th Cir. 2003) ); see Bonilla v. Lynch , 840 F.3d 575, 582 (9th Cir. 2016) (describing the three factors considered when "determin[ing] whether a petitioner exercised due diligence"). Tolling is available "in cases where the petitioner seeks excusal from untimeliness based on a change in the law that invalidates the original basis for removal." Lona , 958 F.3d at 1230. In Lona , the petitioner argued that she was entitled to equitable tolling because she filed her motion for reconsideration as soon as she discovered new case law making her eligible for relief. Id. at 1228-29. We held that the BIA did not abuse its discretion in denying equitable tolling because the petitioner "alleged no facts ... suggesting a diligent pursuit of her rights in the intervening years between her removal" and the relevant change in law. Id. at 1232.

Like the petitioner in Lona , Goulart failed to present any evidence suggesting that he diligently pursued relief during the years between his removal and the relevant change in law. Goulart was removed in 2013, after the BIA determined that his prior conviction was a crime of violence under 18 U.S.C. § 16(b). Two years later, we held that 18 U.S.C. § 16(b) was unconstitutionally vague and thus potentially invalidated the basis for Goulart's order of removal. See Dimaya v. Lynch , 803 F.3d 1110, 1120 (9th Cir. 2015). The Supreme Court affirmed our decision in April 2018. See Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1210, 200 L.Ed.2d 549 (2018). Goulart learned of the Supreme Court's ruling on June 9, 2018, when he was so informed by his former defense attorney, and first filed his motion for reconsideration on July 16, 2018.

In his motion, Goulart failed to present any evidence suggesting that he diligently pursued his rights during the time between 2013, when he was removed, and 2018, when he learned of Sessions v. Dimaya and filed the motion to reconsider. See Lona , 958 F.3d at 1232 ; Bonilla , 840 F.3d at 583 (holding that the BIA did not abuse its discretion in denying equitable tolling when there was a six-year gap in the petitioner's pursuit of legal advice). Goulart did not support his motion with a declaration or any other evidence concerning his actions between 2013 and June 2018; thus, even assuming that Goulart was unaware of our 2015 decision, the BIA did not act arbitrarily or irrationally in determining that Goulart failed to "ma[ke] reasonable efforts to pursue relief." Bonilla , 840 F.3d at 583 (citation omitted). Therefore, there is no basis to conclude that the BIA abused its discretion in denying Goulart's claim for equitable tolling. Lona , 958 F.3d at 1232 (citation omitted).¹

PETITION FOR REVIEW DENIED.

VANDYKE, Circuit Judge, concurring in the judgment:

There's a guy, let's call him "John." Due to some poor personal choices, John is broke and looking for a quick way to get cash. He thinks about his wealthy, older aunt who lives alone and decides that taking some of her money is the solution (she has more than she needs anyway, he justifies to himself). He debates whether to break into her house during the day while she is gone volunteering at a homeless shelter or whether to break in at night while she sleeps. Concerned that her neighbors will see him break in during the day, John decides to break in at night. What John doesn't know is that just last week, the legislature passed a law increasing the prison sentence for burglary by 10 additional years if a house is occupied when the burglar breaks in. The new law captured lots of media attention, but John, being low on money, had cut off his internet and cable access. As a result, John didn't know about this new law.

John breaks into his aunt's house in the middle of the night while she's sleeping and steals cash, jewelry, and a number of expensive electronics. When he predictably gets caught for the burglary, he learns for the first time that he will face another decade in prison because he opted to burgle his aunt's house while she was at home. John protests, arguing that he was unaware of the new law. He submits an affidavit to that effect and provides final notices from the internet and cable companies indicating when they shut off service to his apartment, so he had no way to know about the law. Should a judge decide not to impose the increased sentence because John didn't know about the change in the law? Of course not. As a general rule, we treat people as if they have constructive notice of any change in the law; actual ignorance of the law is no defense. Nor should it be used as a sword, like our dissenting colleague seems inclined to promote here.

Judge Korman's dissent would have us adopt an actual knowledge standard for determining whether Petitioner Jose Eduino Assumpcao Goulart, also a convicted burglar of an inhabited dwelling, is eligible for reconsideration of his immigration proceedings. This case only requires a straightforward application of our decision in Lona v. Barr , 958 F.3d 1225 (9th Cir. 2020), and as in Lona , I would deny the petition for review. I write separately to emphasize that the dissent misconstrues the due diligence standard to establish eligibility for equitable tolling and puts forth a warped interpretation of Lona .

As Judge Paez's opinion correctly identifies, we review the denial of a motion for reconsideration for abuse of discretion. Lona , 958 F.3d at 1229. But before we dive into the BIA's analysis, I think it is helpful to take a step back and summarize how Goulart arrived at the BIA. After his conviction of burglary of an inhabited dwelling, Goulart was placed in removal proceedings, and ultimately removed from the United States in 2013. Approximately five years after his removal, Goulart moved for reconsideration, arguing that a 2018 Supreme Court decision, Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), rendered his conviction no longer a "crime of violence" aggravated felony and therefore invalidated the legal basis for his removal. Because Goulart filed such a motion more than six years after the BIA's decision—clearly beyond the thirty-day deadline for motions to reconsider, see 8 U.S.C. § 1229a(c)(6)(B) —he needed to establish that he was entitled to equitable tolling of that deadline. He asserted that tolling was appropriate because he filed his "motion after discovering that he is not deportable," which was "as soon as practicable after finding out about the [Supreme Court] decision."

The BIA determined he was not entitled to equitable tolling because the "change" in the law identified by Goulart in the Supreme Court's 2018 Sessions decision had, in fact, already occurred in 2015 when the Ninth Circuit reached the same result. The BIA therefore concluded that Goulart failed to demonstrate reasonable diligence by filing his motion for reconsideration three years later in 2018. Lona is dispositive on this issue. Understanding how the dissent deviates from Lona requires a more in-depth look at Lona itself and its obvious similarities to this case.

In Lona , after her conviction of second-degree burglary, Lona was placed in removal proceedings and ultimately removed from the United States in April 2013. 958 F.3d at 1228. Several years after her removal, Lona moved for reconsideration, arguing that a Ninth Circuit opinion issued in 2015 rendered her conviction no longer an aggravated felony and therefore invalidated the legal basis for her removal. See id. She asserted that she was entitled to equitable tolling of the thirty-day deadline for reconsideration "because she filed her motion as soon as she discovered her eligibility for termination of removal proceedings," id. at 1229 (emphasis added), which was "as soon as practicable" after the Ninth Circuit's 2015 decision came down. Id. at 1230. Sound familiar?

But Lona's motion suffered some fatal flaws. The Lona court reasoned that Lona "alleged no facts ... suggesting a diligent pursuit of her rights in the intervening years between her removal and [the Ninth Circuit's 2015 decision]" that caused her to seek reconsideration. Id. at 1232. But the analysis in Lona did not end there. The Lona court also found persuasive...