Williams v. Garland

Decision Date16 November 2022
Docket Number20-1854
PartiesDAMIEN DONOVAN WILLIAMS, a/k/a Damian Donavan Williams, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

Argued: December 7, 2021

Amended: February 9, 2023; February 10, 2023

On Petition for Review of an Order of the Board of Immigration Appeals


Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner.

Lindsay Colbert Dunn, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Jeffrey Bossert Clark, Acting Assistant Attorney General, Brian Boynton, Acting Assistant Attorney General, John S. Hogan, Assistant Director, Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before MOTZ and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge

FLOYD Senior Circuit Judge:

In 2006, the Department of Homeland Security (DHS) deported Petitioner Damien Donovan Williams, a permanent resident of the United States since he was six years old, because the Board of Immigration Appeals (BIA or the Board) deemed his altercation with the police an aggravated felony. Because of that designation, Williams was not allowed back into the United States, not even to visit. He would spend the next eleven years in Jamaica, working mostly for room and board, his U.S.-citizen mother, siblings, girlfriend, and children affording only a handful of trips to see him. 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 thirty-day deadline for filing such motions in view of the legal change. The BIA declined. It did not dispute that Williams is entitled to be readmitted into the country, but it rejected Williams's request to toll the limitations period, believing him insufficiently diligent in discovering his rights.

We cannot agree with that result. We hold that we have jurisdiction to review the BIA's decision and that we must review it de novo. And we vacate the Board's diligence determination, remanding to the BIA to consider the second prong of the equitable-tolling inquiry-whether the change in the law constituted an extraordinary circumstance-as well as the merits of Williams's claim.


Under the Immigration and Nationality Act (INA), noncitizens[1] who commit certain crimes become removable from the United States. 8 U.S.C. § 1227(a)(2)(A). Some permanent residents, however, may ask the Attorney General to cancel their removal, but only if they did not commit an aggravated felony. Id. § 1229b(a)(3). Noncitizens who did, even permanent residents, face swift and enduring consequences. They receive only abbreviated judicial review, with the courts entertaining only legal and constitutional-but not factual-challenges to "the final order of removal." Id. § 1252(a)(2)(C)-(D). And those noncitizens removed following a conviction for an aggravated felony become, in the immigration parlance, permanently "inadmissible." Id. § 1182(a)(9)(A)(ii). They may only return to the United States if granted advance consent to reapply for admission. Id.

When the DHS brought removal proceedings against Williams in 2005, the INA defined "aggravated felony" to include all "crime[s] of violence" specified in 18 U.S.C. § 16 punishable by imprisonment of at least one year. Section 16, in turn, defined crimes of violence in two ways: "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another" and a felony "that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of" the offense. 18 U.S.C. § 16(a)-(b).

In the years following Williams's removal, the Supreme Court and the BIA twice refashioned § 16's definitions. First, in 2010, the Court held that "physical force" must mean "violent force"-"force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 139-40 (2010). And applying Johnson, the BIA determined that offenses which by their terms encompass the "slightest touching of another" no longer qualify as crimes of violence under § 16(a). In re Velasquez, 25 I. & N. Dec. 278, 282-83 (BIA 2010).[2] Second, in 2018, the Court struck § 16(b) as unconstitutionally vague on its face. Sessions v. Dimaya, 138 S.Ct. 1204, 1223 (2018). Taken together, these decisions permit the DHS to remove noncitizens for committing an aggravated felony only upon proof of violent force.

Noncitizens so removed may ask the agency to reopen or reconsider the order. A motion to reopen recites "new facts" not previously available, while a motion to reconsider specifies "errors of law or fact in the previous order." 8 U.S.C. § 1229a(c)(6)(C), (7)(B). Noncitizens may file one of each. They have thirty days to request reconsideration and ninety to move to reopen. Id. § 1229a(c)(6)(B), (7)(C). If the BIA declines, noncitizens may petition the appropriate court of appeals. But courts will not review the underlying removal order by that same petition; noncitizens must file "separate petitions" laying out errors in those separate decisions. Stone v. INS, 514 U.S. 386, 395 (1995).


Damien Donovan Williams is a native and citizen of Jamaica. He moved to the United States in July 1987, when he was just six years old, and became a permanent resident in October of that same year. His mother, three of his four siblings, his long-term girlfriend (now wife), and his four children are all U.S. citizens.

In February 2003, Williams was convicted of assault and battery of a police officer, obstructing justice, disorderly conduct, and failure to appear under Virginia law. See Va. Code Ann. §§ 18.2-57(C), 18.2-460, 18.2-415, 19.2-128. The three substantive offenses arose out of a single incident, when Williams resisted an officer's spraying him with mace after he was already in handcuffs. Williams then failed to appear because of conflicting court dates: he was in one courtroom when he was called in another.

In September 2005, the DHS initiated removal proceedings, contending Williams was removable for having committed both an aggravated felony-the assault and battery on the police officer-and two crimes involving moral turpitude (CIMTs)-the same assault and battery and the failure to appear. See 8 U.S.C. § 1227(a)(2)(A)(ii)-(iii) (listing aggravated felony and multiple CIMTs as separate grounds for removability). Williams had trouble retaining a pro bono attorney, even with the four continuances the immigration judge (IJ) allowed. But during the fifth hearing, an attorney sitting in the courtroom agreed to take on his case. With this attorney's help, Williams denied removability and asked the IJ to terminate the proceedings. The IJ agreed Williams's conviction did not rise to an aggravated felony but still ruled him removable for committing two CIMTs.

Williams then requested cancellation of removal. The government maintained that Williams committed an aggravated felony, rendering him ineligible, but did not otherwise oppose his request. After a hearing, the IJ issued a short oral decision allowing Williams to stay. The government appealed to the BIA, arguing once more that Williams's assault on the officer amounted to an aggravated felony, and this time, the agency agreed. It determined the assault qualified as a crime of violence under both §§ 16(a) and (b). Williams never appealed the IJ's CIMT decision-it did not affect his ability to request cancellation of removal-but he did file a motion to reconsider the BIA's aggravated-felony ruling, which the BIA denied. Williams's attorney then ended his representation, leaving Williams to petition this Court pro se. We denied the petition, Williams v. Gonzales, 234 Fed.Appx. 113 (4th Cir. 2007), and the DHS deported Williams to Jamaica.

As discussed, in the ensuing years, the Court decided Johnson and Dimaya, and the BIA applied Johnson to battery offenses that include the mere touching of another- indeed, the very offense of which Williams was convicted, Va. Code Ann. § 18.2-57. But Williams remained unaware. As he would later explain in an affidavit to the BIA, he worked as a groundskeeper in exchange for room and board and served as a maintenance man on weekends, earning only about $20 per job. He had no access to the Internet. And his only pro bono lawyer had long cut all ties. Williams's family, themselves earning only about $20,000 per year, barely managed to visit him in Jamaica and did not have the funds to repeatedly hire attorneys to check whether the law had changed.

In 2019, Williams was finally able to marry his girlfriend Lawaren Person. The same year, unfortunately, the lung disease Person had previously kept in check aggravated significantly, and Person's doctors advised her against spending time in polluted countries like Jamaica. Out of desperation, Person consulted an immigration attorney in April 2019 to determine if any avenues had opened up to allow her husband back in. The attorney requested Williams's file from the DHS under the Freedom of Information Act, which arrived towards the end of June 2019. Quickly appreciating the upshot of Johnson and Dimaya, she filed for reconsideration just one month later, in July 2019. She asked the BIA to either equitably toll the time and number limitations on Williams's motion or to reconsider sua sponte. In support of the application, Williams attached declarations from himself and Person...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT