Lawrence v. Lynch

• Decision Date: 17 June 2016
• Docket Number: No. 15-1834,15-1834
• Citation: 826 F.3d 198
• Parties: 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: U.S. Court of Appeals — Fourth Circuit

826 F.3d 198

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.

No. 15-1834

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 2016

Decided: June 17, 2016

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.

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 8 U.S.C. § 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 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 , ––– U.S. ––––, 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 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.

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 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.” Boakai v. Gonzales , 447 F.3d 1, 4 (1st Cir. 2006) ; see also Lagos v. Keisler , 250 Fed.Appx. 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, 112 S.Ct. 719, 116 L.Ed.2d 823 (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 ...