Jose Goulart v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE EDUINO ASSUMPCAO GOULART, No. 19-72007
Petitioner,
Agency No.
v. A030-516-243
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 16, 2021
Pasadena, California
Filed November 18, 2021
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
*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
2 GOULART V. GARLAND
SUMMARY **
Immigration
In a case in which Jose Eduino Assumpcao Goulart
moved the Board of Immigration Appeals to reconsider his
prior order of removal based on a change in law, the panel
held that the BIA did not abuse its discretion in denying
Goulart’s claim for equitable tolling of the 30-day motions
deadline.
Goulart was removed in 2013, after the BIA determined
that his conviction was a crime of violence under 18 U.S.C.
§ 16(b). In 2015, this court held that § 16(b) was
unconstitutionally vague and, in April 2018, the Supreme
Court affirmed in Sessions v. Dimaya, 138 S. Ct. 1204(2018). Goulart learned of the latter ruling on June 9, 2018,
when he was so informed by his former defense attorney,
and filed his motion for reconsideration on July 16, 2018.
In Lona v. Barr, 958 F.3d 1225 (9th Cir. 2020), this court
held that the BIA did not abuse its discretion in denying
equitable tolling, reasoning that the petitioner alleged no
facts suggesting a diligent pursuit of her rights in the years
between her removal and the change in law relevant to her
case. Here, the panel explained that Goulart likewise failed
to present any evidence suggesting that he diligently pursued
his rights during the time between his removal in 2013 and
when he learned of Sessions v. Dimaya in 2018. The panel
further explained that Goulart did not support his motion
with a declaration or any other evidence concerning his
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GOULART V. GARLAND 3
actions between 2013 and June 2018; thus, even assuming
that he was unaware of this court’s 2015 decision, the BIA
did not act arbitrarily or irrationally in determining that
Goulart failed to make reasonable efforts to pursue relief.
Concurring in the judgment, Judge VanDyke wrote
separately to emphasize his view that the dissent
misconstrued the due diligence standard and put forth a
warped interpretation of Lona. Judge VanDyke wrote that a
central flaw of the dissent was inappropriately assessing due
diligence based on actual knowledge of the change in the
law—a standard clearly contradicted by the reasoning in
Lona. Judge VanDyke also wrote that, under the dissent’s
analysis, a petitioner could seek reconsideration at a very late
date and still satisfy due diligence by submitting an affidavit
stating he was unaware of prior precedent. Judge VanDyke
also wrote that the cases cited by the dissent did not support
the conclusion that due diligence or equitable tolling could
depend on actual knowledge and that, even using principles
imported from other legal contexts (such as habeas cases),
Goulart failed to satisfy the standard for equitable tolling.
Judge VanDyke also wrote that one wonders: Why
would one champion charting a completely new and
unsupported path of legal reasoning just to avoid the lawful
removal of a convicted burglar? Judge VanDyke wrote that
in our system of government that means respecting the laws
passed by Congress, not bending them—including our
nation’s immigration laws.
Dissenting, Judge Korman concluded that principles of
law and equity required that Goulart be permitted to move
for reconsideration, explaining that the Supreme Court held
that the precise statute under which Goulart was deported
violated the Constitution. Judge Korman observed that,
under Judge Paez’s view, even if Goulart was unaware of
4 GOULART V. GARLAND
this court’s 2015 decision, the BIA reasonably concluded
that he failed to make reasonable efforts to pursue relief.
However, the BIA did not base its decision on Goulart’s
failure to present evidence that he was unaware of the 2015
decision; rather, the clear implication was that he was not
aware of that decision. Judge Korman contrasted this to
Lona, explaining that language in that case suggested that if
Lona had alleged that she was unaware of the court’s prior
ruling, she could have secured relief.
With respect to Judge VanDyke’s argument that actual
knowledge was irrelevant, Judge Korman wrote that the
Supreme Court has held that due diligence is demonstrated
by a petitioner’s prompt action as soon as he is in a position
to realize that he has an interest in challenging an adverse
decision. Judge Korman also observed that the BIA’s
decision in In re: Sergio Lugo-Resendez, 2017 WL 8787197(B.I.A. Dec. 28, 2017), made clear that a deported immigrant
acts with reasonable diligence so long as he acts promptly
once he learns of a relevant change in law. Judge Korman
concluded that Goulart met that standard.
Responding to the question why he would “champion”
the cause of a convicted burglar, Judge Korman pointed to
the judicial oath, which was adopted in the Judiciary Act of
1789, and requires judges to “administer justice without
respect to persons, and do equal right to the poor and to the
rich.” Judge Korman further wrote that the panel was not
called to decide whether Goulart is a good person, but rather
whether a person who has been banished from the United
States without legal justification should be permitted to seek
to return.
GOULART V. GARLAND 5
COUNSEL
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.
OPINION
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
(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.
6 GOULART V. GARLAND
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, 138 S. Ct. 1204, 1210 (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
GOULART V. GARLAND 7
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
1
Goulart also argues that our 2015 holding in Dimaya was not
settled law until the Supreme Court affirmed in 2018. That argument is
meritless because the BIA is generally bound by our precedent in cases
arising from this circuit. See Matter of Anselmo, 20 I. & N. Dec. 25, 31-
32 (B.I.A. 1989). Moreover, the BIA repeatedly applied Dimaya v.
Lynch between 2015 and 2018. See, e.g., Matter of Kim, 26 I. & N. Dec.
912, 914 n.1 (B.I.A. 2017) (explaining that the BIA addressed only
18 U.S.C. § 16(a) because Dimaya v. Lynch “deemed § 16(b) to be
unconstitutionally vague” and noting that certiorari had been granted).
8 GOULART V. GARLAND
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
GOULART V. GARLAND 9
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, 138
S. Ct. 1204 (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
10 GOULART V. GARLAND
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 that Lona had not “shown that some
extraordinary circumstance stood in her way and prevented
timely filing of her motion based on [earlier Supreme Court
and Ninth Circuit decisions]” that the Ninth Circuit’s 2015
opinion “plainly followed.” Id. (emphasis added) (citation,
internal quotation marks, and internal alteration marks
omitted). The court explained that “our holding in [the Ninth
Circuit’s 2015 opinion] adhered to the methodology
established by” those earlier Supreme Court and Ninth
Circuit decisions, and the 2015 opinion was thus “an
application of existing law . . . that we characterized as not
GOULART V. GARLAND 11
complicated.” Id. (citation, internal quotation marks, and
internal alteration marks omitted). 1
In this case, Goulart’s motion embodies the same
defects. Goulart relies on the Supreme Court’s holding in
Sessions that the statutory definition of “crime of violence”
is unconstitutionally vague. Sessions, 138 S. Ct. at 1210.
But as noted above, that decision affirmed the Ninth
Circuit’s 2015 decision in Dimaya v. Lynch, 803 F.3d 1110(9th Cir. 2015), where our court reached the same
conclusion. Sessions, 138 S. Ct. at 1223; see also Dimaya,
803 F.3d at 1120. Goulart, like Lona, has provided no
evidence that he diligently pursued his rights between his
removal and the Supreme Court’s 2018 Sessions opinion, but
neither has he shown that some extraordinary circumstance
stood in his way and prevented timely filing of his motion
based on the Ninth Circuit’s Dimaya decision, with which
the Supreme Court agreed in Sessions.
Herein lies the central flaw of the dissent, which
concludes that Goulart diligently pursued his rights “by
filing his motion less than two months after he learned about
the Supreme Court’s . . . decision.” But the dissent
inappropriately assesses due diligence based on when
Goulart gained actual knowledge of the change in the law—
1
This reasoning refutes the dissent’s implication that Lona faulted
the petitioner for failing to seek reconsideration after the earlier Supreme
Court case because it was precedent from the Supreme Court. As
explained above, the Lona court faulted the petitioner for failing to seek
reconsideration based on the first decision that could have provided
relief—given that the Ninth Circuit’s 2015 decision “plainly followed”
prior precedent—not because that first decision was issued by the
Supreme Court in particular. See Lona, 958 F.3d at 1232.
12 GOULART V. GARLAND
a standard that is clearly contradicted by the reasoning in
Lona.
The Lona court rejected petitioner’s knowledge-based
argument that she was entitled to equitable tolling because
she filed her motion “as soon as she discovered her eligibility
for termination of removal proceedings” based on the Ninth
Circuit’s 2015 decision. Lona, 958 F.3d at 1228–29. Instead
of looking to Lona’s knowledge of case law and when she
discovered it as the basis for the diligence inquiry, the court
considered whether she exercised “due diligence in
discovering and raising the error,” id. at 1231 (emphasis
added), highlighting “the lack of evidence that Lona took
any action prior to our [2015 decision].” Id. at 1232
(emphasis added). Just like Lona, Goulart fails to establish
that he diligently pursued his rights in this case—not because
he failed to present evidence establishing that he “was
unaware of our 2015 decision,” but because he failed to
provide evidence that he took any action to discover and
raise the error identified in our 2015 Dimaya decision.
Not only does the dissent plainly contradict Lona, but
under its analysis, a petitioner could seek reconsideration of
his immigration proceedings at a very late date and still
satisfy his due diligence requirements for equitable tolling
by simply submitting an affidavit to the BIA stating he was
unaware of prior precedent. This holding would lead to the
reopening of any magnitude of immigration proceedings
well after the fact, which severely undermines the interest of
finality in such proceedings. Cf. INS v. Doherty, 502 U.S.
314, 322–23 (1992) (in analyzing the regulation governing
reopening and reconsideration, the Court explained that
“[m]otions for reopening of immigration proceedings are
disfavored . . . . This is especially true in a deportation
proceeding, where, as a general matter, every delay works to
GOULART V. GARLAND 13
the advantage of the deportable alien who wishes merely to
remain in the United States” (internal citation omitted)).
Furthermore, while the dissent strings together a series
of assertions about due diligence and equitable tolling
principles, none of the cited cases support the conclusion that
due diligence or equitable tolling could depend on actual
knowledge of a change in the law without some previous
action on Goulart’s part. See Niz-Chavez v. Garland, 141 S.
Ct. 1474, 1478 (2021) (discussing the sufficiency of a notice
to appear and not once mentioning the standard for due
diligence or equitable tolling). 2 Of the cases quoted, the
binding precedent most closely on point—Avagyan v.
Holder, 646 F.3d 672 (9th Cir. 2011)—undermines the
dissent’s conclusion, because it directs courts to consider
2
See also Holland v. Florida, 560 U.S. 631, 653 (2010) (concluding
defendant demonstrated diligence by “wr[iting] his attorney numerous
letters seeking crucial information and providing direction; . . .
repeatedly contact[ing] the state courts, their clerks, and the Florida State
Bar Association . . . . And, [finally,] . . . prepar[ing] his own habeas
petition pro se” when he found out that his attorney failed to meet the
AEDPA deadline); Johnson v. United States, 544 U.S. 295, 308 (2005)
(assessing the “question of how to implement the statutory mandate that
a petitioner act with due diligence in discovering the crucial fact of the
vacatur,” not a change in the law (emphasis added)); Doe v. United
States, 853 F.3d 792, 794, 802 (5th Cir. 2017) (rejecting equitable tolling
of Doe’s Fifth Amendment claim based on the government accusing him
of a crime during criminal proceedings in which he was not a defendant
because the claim accrued “when Doe was ‘named’ as a criminal actor
without being indicted,” noting that even a mistaken belief that his claim
had not accrued would not have warranted tolling); Bracey v.
Superintendent Rockview SCI, 986 F.3d 274, 285–86 (3d Cir. 2021)
(interpreting when “the factual predicate of the claim[s] . . . could have
been discovered through the exercise of due diligence” under 28 U.S.C.
§ 2244(d)(1)(D), not a change in law (emphasis added)); Wilson v.
Beard, 426 F.3d 653, 659 (3d Cir. 2005) (same); Starns v. Andrews,
524 F.3d 612, 616 (5th Cir. 2008) (same).
14 GOULART V. GARLAND
“whether petitioner took reasonable steps to investigate . . .
or . . . whether petitioner made reasonable efforts to pursue
relief,” id. at 679—neither of which Goulart did here. See
also id. at 682 (“The question is, therefore, whether
[petitioner] made reasonable efforts to pursue relief until she
learned of counsel’s ineffectiveness.” (emphasis added)).
Looking at how this court has assessed a change in the
law as the basis for unearthing a final judgment in other
contexts is likewise unhelpful to the dissent. In the context
of a Rule 60(b) motion to reopen habeas proceedings, we
have explained that “a change in the law should not
indefinitely render preexisting judgments subject to
potential challenge. Rather, individuals seeking to have a
new legal rule applied to their otherwise final case should
petition the court for reconsideration with a degree of
promptness.” Bynoe v. Baca, 966 F.3d 972, 986 (9th Cir.
2020) (emphasis added) (quoting Phelps v. Alameida,
569 F.3d 1120, 1138 (9th Cir. 2009) (reasoning that such
promptness “respects the strong public interest in timeliness
and finality” (citation and internal quotation marks
omitted))).
Because the dissent relies on cases interpreting due
diligence and equitable tolling under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), see 28 U.S.C.
§ 2244(d), it seems only appropriate to consider our court’s
case law in that area. In Bryant v. Arizona Attorney General,
this court considered whether the petitioner was entitled to
equitable tolling of AEDPA’s statute of limitations because
he did not have access to case law interpreting the statute.
499 F.3d 1056, 1057 (9th Cir. 2007). The court applied a
two-part test—essentially the same one applicable here—
assessing: (1) whether petitioner “has been pursuing his
rights diligently, and (2) [whether] some extraordinary
GOULART V. GARLAND 15
circumstances stood in his way.” Id. at 1061 (citation
omitted). The court denied equitable tolling, see id.,reasoning that because petitioner was “unaware of”
AEDPA’s statute of limitations until August 2001—more
than a year after the statute of limitations had expired—“the
unavailability of case law interpreting [AEDPA’s] statute of
limitations during that time period could not have been the
cause of [petitioner’s] late-filed petition” in order to justify
equitable tolling. Id. at 1060. Most importantly, the court
did not grant equitable tolling based on what clearly seemed
to be the cause of petitioner’s untimely habeas petition—i.e.,
that petitioner had only learned of AEDPA’s statute of
limitations through the government’s answer to his habeas
petition more than two years after he had access to the
statutory text. See id. at 1060–61. The court’s lack of
concern for when petitioner gained actual knowledge of
AEDPA’s statute of limitations as a basis for granting
equitable tolling again undermines the rationale of the
dissent.
In assessing the diligence prong, the Bryant court also
found persuasive that petitioner “made no effort to seek
relief” from the time his last petition for post-conviction
relief in state court was denied until he filed a motion to
recall the mandate in state court nearly four years after
AEDPA went into effect. Id. at 1061. Judge Korman
himself has previously denied equitable tolling in the
AEDPA context for a lack of diligence where the petitioner
“took no apparent action” on his case for over five years.
Matos v. Superintendent, Wash. Corr. Facility, No. 13-CV-
2326 (ERK)(CLP), 2014 WL 5587518, at *2 (E.D.N.Y.
Nov. 3, 2014) (emphasis added). Here, there is no evidence
that Goulart took any action in the nearly five years between
his removal from the United States and his efforts to seek
reconsideration. Goulart has thus failed to satisfy the
16 GOULART V. GARLAND
standard for equitable tolling, even using principles
imported from other legal contexts. 3
Finally, although the dissent hints that our conclusion
today is driven, at least in part, by “the desire to remove
convicted burglars from this country,” it’s not. It’s
motivated by a desire to follow the law and enforce the
finality of legal decisions unless good cause exists to revisit
them. Our decision follows a well-established path in that
respect. But one wonders: Why would one champion
charting a completely new and unsupported path of legal
reasoning just to avoid the lawful removal of a convicted
burglar? I agree with Judge Korman’s laudable paean to
doing equal justice. But in our system of government that
means respecting the laws passed by Congress, not bending
them—including our nation’s immigration laws.
For all of the reasons set forth above, I respectfully
concur in the judgment.
3
The dissent excuses the applicability of such principles in this
context, in part because many immigrants are “poor, uneducated,
unskilled in the English language, and effectively unable to follow
developments in the American legal system . . . .” But Goulart speaks
English. Not only does he speak it, Goulart conversed with the IJ in
English on multiple occasions, and the police department identified his
English-speaking abilities as “good” on Goulart’s inmate report. He did
not require a translator when he entered his guilty plea for burglary. As
for his ability to follow developments in the American legal system,
Goulart was admitted to the United States as a lawful permanent resident
at the age of seven in 1970—before I was born. Goulart is not the
uninformed, helpless alien that the dissent suggests.
KORMAN, District Judge, dissenting:
Petitioner Jose Eduino Assumpcao Goulart, a lawful
permanent resident of the United States since the age of
seven, was deported to Brazil in 2013. Goulart had been
convicted of burglary in California, which the Board of
Immigration Appeals (“BIA”) concluded was a crime of
violence that rendered him deportable under Ninth Circuit
precedent at the time. On April 17, 2018, five years after his
removal, the Supreme Court held unconstitutional the
federal statute upon which Goulart’s deportation was
justified. Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The
Supreme Court did so in a case involving the precise statute
of which Goulart was convicted: first-degree burglary under
California law. Id. at 1211. Thus, he could not be removed
based on his burglary conviction.
On June 9, 2018, Goulart was told about that holding by
his former criminal defense attorney. He retained
immigration counsel, who first filed a reconsideration
motion on July 16, 2018, only 90 days after the Supreme
Court decided Dimaya and less than 2 months after Goulart
learned of the decision. Nevertheless, the BIA held that,
despite pursuing his reconsideration motion immediately
upon learning of the Supreme Court’s decision in Dimaya,
Goulart failed to exercise due diligence because the Ninth
Circuit reached the same conclusion three years earlier in
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015).
Under these circumstances, the BIA held that petitioner
was not entitled to equitable tolling of the deadline for filing
a motion for reconsideration that applies “in cases where the
petitioner seeks excusal from untimeliness based on a
change in the law that invalidates the original basis for
removal.” Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir.
2020). Nevertheless, based on the record in that case, we
18 GOULART V. GARLAND
held that Lona was not entitled to equitable tolling. Indeed,
the BIA decision denying Lona’s motion to reconsider relied
on the fact that she “had a full and fair opportunity to raise
arguments similar to the ones” she raised on reconsideration,
but that she had failed to make such arguments when she
waived appeal “from the Immigration Judge’s order of
removal.” Certified Admin. Record at 3, Lona, 958 F.3d
1225 (No. 17-70329); see also Lona, 968 F.3d at 1229.
While Judges Paez and VanDyke cite to Lona in their
separate opinions to affirm the denial of Goulart’s motion
for reconsideration, they do so for different reasons. Judge
Paez reasons that the motion to reconsider was untimely
because “Goulart did not support his motion with a
declaration or any other evidence concerning his actions
between 2013 and June 2018.” Thus, even if Goulart “was
unaware of our 2015 decision,” in Judge Paez’s view the
BIA reasonably concluded that Goulart failed to make
“reasonable efforts to pursue relief.” But the BIA did not
base its decision on Goulart’s failure to present evidence
establishing that he was unaware of our 2015 decision.
Certified Admin. Record at 3. Indeed, the BIA did not even
address Goulart’s knowledge of the 2015 decision.
Moreover, although Goulart did not submit an affidavit in
support of his reconsideration motion, he represented in the
motion itself that “[h]e first learned of the decision on June
9, 2018 when his criminal defense attorney alerted him to the
case.” The clear implication is that Goulart was not aware
of our prior ruling. This stands in contrast to our decision in
Lona, in which we upheld the BIA’s denial of a motion to
reconsider because the petitioner “alleged no facts—before
the IJ, the BIA, or on appeal before us—suggesting a
diligent pursuit of her rights.” Lona, 958 F.3d at 1232
(italics added). Indeed, although Judges Paez and VanDyke
both quote this language, they do so by eliminating the
GOULART V. GARLAND 19
phrase suggesting that if Lona had alleged that she was
unaware of our prior ruling, she could have secured relief.
Judge VanDyke goes beyond Judge Paez’s analysis by
arguing that whether Goulart had actual knowledge of the
change in law is irrelevant and that Goulart should have
pursued relief even if he did not know that relief was
available. I address this argument in some detail later in this
opinion. Before doing so, it is important to define “due
diligence.” My colleagues fail to do so, leaving in place the
bizarre holding that a lay person born in a foreign country
and who has been removed from the United States based on
established (albeit erroneous) precedent must meet the same
standard as a member of the immigration bar to “keep
abreast of changes in the law and its practice.” Model Rules
of Pro. Conduct r. 1.1 cmt. 8 (9th ed. 2019).
But “[t]he diligence required for equitable tolling
purposes is ‘reasonable diligence,’ not ‘maximum feasible
diligence.’” Holland v. Florida, 560 U.S. 631, 653 (2010)
(internal citations omitted). Black’s Law Dictionary defines
“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.” In
deciding what constitutes reasonable diligence, courts
“focus the inquiry on what event, in fairness and logic,
should have alerted the average lay person to act to protect
his rights.” Doe v. United States, 853 F.3d 792, 802 (5th Cir.
2017) (internal quotation omitted). Indeed, we have held
that the threshold question in determining due diligence is
whether “a reasonable person in petitioner’s position would”
have suspected the “error underlying [his] motion to
reopen.” Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir.
2011).
20 GOULART V. GARLAND
Due diligence, however, as the Third Circuit recently
held, does not require a petitioner to “continuously monitor
public sources for years . . . on the unlikely chance that he
might learn something which would be useful to his case.”
Bracey v. Superintendent Rockview SCI, 986 F.3d 274, 286
(3d Cir. 2021) (internal quotation and alterations omitted).
Indeed, even widespread publication of relevant information
is not always sufficient for a court to hold that a petitioner
failed to act with due diligence. See Wilson v. Beard,
426 F.3d 653, 662 (3d Cir. 2005) (holding that the habeas
petitioner “had no expectation that the news media would be
a source of information about his case nearly thirteen years
after his conviction” despite the fact that news stories
relevant to his Batson claim were widely published in the
press). Rather, “[t]he essential question is not whether the
relevant information was known by a large number of
people, but whether the petitioner should be expected to take
actions which would lead him to the information.” Id.; see
also Starns v. Andrews, 524 F.3d 612, 618 (5th Cir. 2008)
(collecting cases).
Consistent with the holdings in these cases, the Supreme
Court has held that due diligence is demonstrated by
“prompt action on the part of the petitioner as soon as he is
in a position to realize that he has an interest in challenging”
an adverse decision. Johnson v. United States, 544 U.S. 295,
308 (2005). Goulart exhibited such diligence by filing his
motion less than two months after he learned about the
Supreme Court’s Dimaya decision from his former criminal
defense attorney. Indeed, Goulart had no motive to delay
pursuing relief, nor was the agency prejudiced by the delay.
In a case that mirrors the circumstances here, the Arizona
Supreme Court held that equity did not bar a party’s claim
based on a change in law, despite her ignorance that the law
had changed six years prior, because the party had no reason
GOULART V. GARLAND 21
to believe the law had changed until she learned about it
while consulting with an attorney on a separate matter.
Flynn v. Rogers, 834 P.2d 148, 153 (Ariz. 1992).
In Lona v. Barr, on which my colleagues rely, we held
that “claims based on changes in the law are not unheard of,
nor are they prohibited.” 958 F.3d at 1230–31. We went on
to apply the framework set forth in the Fifth Circuit’s
decision in Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir.
2016), and the BIA decision on remand that followed the
explicit instructions of the Fifth Circuit, In re: Sergio Lugo-
Resendez, 2017 WL 8787197 (B.I.A. Dec. 28, 2017). Lugo-
Resendez involved a comparable issue of when equitable
tolling was appropriate based on a change in law where, as
here, the immigrant’s conviction no longer rendered him
deportable. See Lona, 958 F.3d at 1231. The Fifth Circuit
“remanded for further factual development of Lugo-
Resendez’s claim that he was entitled to equitable tolling”
based on a change in law. Id.
The BIA was told “not to apply the equitable tolling
standard too harshly because denying an alien the
opportunity to seek [relief]—when it is evident that the basis
for his removal is now invalid—is a particularly serious
matter.” Lugo-Resendez, 831 F.3d at 345 (internal
quotations omitted). “As the Supreme Court recently
reminded, the core principle of equitable tolling is to escape
the ‘evils of archaic rigidity’ and ‘to accord all the relief
necessary to correct . . . particular injustices.’” Id. (quoting
Holland, 560 U.S. at 650). Therefore, “the BIA should give
due consideration to the reality that many departed aliens are
poor, uneducated, unskilled in the English language, and
effectively unable to follow developments in the American
legal system—much less read and digest complicated legal
decisions.” Id.22 GOULART V. GARLAND
The BIA followed that instruction and held that Lugo-
Resendez was entitled to equitable tolling even though he
had not moved to reopen until more than two years after the
Fifth Circuit had ruled that immigrants in his shoes were
eligible for relief. In re: Sergio Lugo-Resendez, 2017 WL
8787197, at *1–3. Indeed, the BIA applied equitable tolling
even though Lugo-Resendez had taken no steps to pursue
relief for more than eight years “because he was told on
multiple occasions that there was nothing that could be done
about his case and he was unaware that the law affecting his
removability could change.” Id. at *3. Lugo-Resendez acted
only when he “heard about a man” who had been able to seek
relief after that man had been deported, and at that time
asked his daughter to visit an immigration attorney on his
behalf. Lugo-Resendez, 831 F.3d at 340. After his daughter
did so and “informed him that it was possible to reopen his
case,” Lugo-Resendez “immediately gathered the money
and asked the immigration attorney to file his request to
reopen.” Id. (internal alterations omitted).
The BIA held that Lugo-Resendez had acted diligently
because he contacted his daughter as soon as he learned of
the change in law and then promptly filed a motion to
reopen. In re: Sergio Lugo-Resendez, 2017 WL 8787197,
at *3. The BIA also held that Lugo-Resendez faced
“extraordinary circumstances beyond his control” that
“prevented him from filing his motion until July 2014,”
namely that Fifth Circuit precedent foreclosed his ability to
successfully move to reopen until 2012. Id. (internal
quotations omitted). Thus, because Lugo-Resendez “filed
his motion within a reasonable period of time after he
learned of the change in law” permitting him to challenge his
deportation, the BIA held that equitable tolling was
appropriate. Id. The BIA rightly acknowledged that, as the
Fifth Circuit had instructed, it would be wrong “to apply the
GOULART V. GARLAND 23
equitable tolling standard too harshly,” because denying an
immigrant relief “when it is evident that the basis for his
removal is now invalid” is a “particularly serious matter.”
Id. (internal quotation omitted). Thus, as we observed in
Lona, Lugo-Resendez was entitled to equitable tolling
“because he pursued his rights with reasonable diligence and
extraordinary circumstances beyond his control prevented
him from filing his motion sooner,” 958 F.3d at 1231, and
he “filed his motion within a reasonable period of time after
he learned of the change in law.” Id. at 1231 n.6 (internal
quotation omitted).
The same is true of Goulart: as soon as he learned of the
change in law from his former attorney, he retained
immigration counsel and filed a motion for reconsideration
shortly thereafter, which the BIA held was sufficient to
entitle Lugo-Resendez to equitable tolling. In re: Sergio
Lugo-Resendez, 2017 WL 8787197, at *3. And the
extraordinary circumstance here is the same as the BIA
recognized in Lugo-Resendez, namely the pre-Dimaya
circuit precedent which rendered any challenge to his
deportation futile. Put another way, Lugo-Resendez makes
clear that a deported immigrant acts with reasonable
diligence so long as he acts promptly once he learns of a
change in law that removes the barrier to relief. That is true
even when the immigrant learns of the change in law years
after it occurred—in Lugo-Resendez’s case, more than two
years later. And we expressly relied in Lona on the opinions
of both the Fifth Circuit and BIA in Lugo-Resendez, while
concluding that Lona herself did not satisfy the test set out
in those opinions. 958 F.3d at 1230–32 & n.6.
Moreover, Goulart, like Lugo-Resendez, had no notice
“that the law affecting his removability could change.” In
re: Sergio Lugo-Resendez, 2017 WL 8787197, at *3.
24 GOULART V. GARLAND
Indeed, before he was deported, Goulart had argued that
burglary was not a crime of violence that rendered him
deportable, which the BIA explicitly rejected. Under these
circumstances, there was no basis for Goulart to be aware
that the law had changed until his attorney informed him. 1
As the Supreme Court has explained, “[i]mmigration law
can be complex, and it is a legal specialty of its own.”
Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Indeed,
immigration law can be so mystifying that the Supreme
Court has required defense counsel to inform their clients
that a guilty plea could result in their deportation. 2 Id.at 366–69.
Unlike Lugo-Resendez, Lona declined to toll the
deadline for a motion to reconsider because a Ninth Circuit
case, on which the petitioner relied, “plainly followed” a
decision issued nearly two years earlier by the Supreme
Court. 958 F.3d at 1232. In this case, by contrast, the motion
to reconsider followed almost immediately after the
controlling Supreme Court decision in Dimaya. While we
reached the same holding in Dimaya two years earlier, over
a strong dissent by Judge Callahan, that fact should be
irrelevant in determining Goulart’s due diligence. Even
assuming that an immigrant removed from the United States
should be expected to learn of high-profile immigration
1
By contrast, Lona withdrew her appeal to the BIA and was not
similarly on notice from the BIA that her claim lacked merit. Lona,
958 F.3d at 1228.
2
This holding has been expanded upon in the Federal Rules to
require judges to inform defendants during the plea colloquy that they
may be deported, denied citizenship, or denied future admission into the
United States. Fed. R. Crim. P. 11(b)(1)(O). That is because deportation
is, for all practical purposes, part of the “penalty” of a criminal
conviction. Padilla, 559 U.S. at 364–66.
GOULART V. GARLAND 25
cases decided by the Supreme Court—as Goulart did here—
it would be unreasonable to expect him to scour the Ninth
Circuit docket on the off chance it would issue a decision
helpful to his case in the “labyrinthine maze of immigration
laws.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1040 (9th Cir.
2016) (McKeown, J., specially concurring). My colleagues
cannot plausibly argue that Goulart did not exercise due
diligence by failing to closely monitor this Court’s docket.
I acknowledge that there may be other areas of law, such
as the tolling of the statute of limitations with respect to
habeas corpus, that should merit a less generous standard.
As the Supreme Court has explained, “AEDPA’s
acknowledged purpose is to reduce delays in the execution
of state and federal criminal sentences.” Ryan v. Gonzales,
568 U.S. 57, 76 (2013) (internal quotations and alterations
omitted). A habeas petitioner who fails to timely move for
relief prejudices the prosecution twice over: first, when it is
required to exhume stale evidence to defend against habeas
relief, and second, if relief is granted, when the prosecution
may not be able to reconvene the witnesses or evidence at
any retrial.
Unlike the AEDPA context, however, there is no such
prejudice in cases like this, where the immigrant was
deported for reasons that all agree were invalid. See Lona,
958 F.3d at 1231 n.7. Significantly, the policy disfavoring
motions to reopen or to reconsider are based on the reality
that “as a general matter, every delay works to the advantage
of the deportable alien who wishes merely to remain in the
United States.” INS v. Doherty, 502 U.S. 314, 323 (1992).
Goulart, however, is not a deportable alien who wishes to
remain in the United States. To the contrary, he has already
been deported, and the purpose of his motion is to undo his
wrongful deportation.
26 GOULART V. GARLAND
Significantly, Judge Paez and Judge VanDyke offer no
explanation of what Goulart reasonably ought to have done
to pursue his rights before learning that he had rights to
pursue. Judge VanDyke instead offers the fable of John the
Burglar, who was ignorant that the legal penalty for burglary
had increased before he committed the burglary, to
demonstrate that ignorance of the law is no defense to a
crime. Judge VanDyke ignores the fact that Goulart’s
motion for reconsideration is not based on his ignorance of
the law at the time he committed his offense. Instead, it is
based on the argument that the offense did not render him
deportable because his offense did not meet the definition of
a crime of violence. And it has long been the case that a
defendant’s actual innocence is a sufficient basis to excuse
procedural defaults. See, e.g., Bousley v. United States, 523
U.S. 614, 623–24 (1998); Schlup v. Delo, 513 U.S. 298, 324–
27 (1995). More significantly, we have held that a petitioner
can file an untimely challenge to his conviction when a
change in law has rendered his conduct lawful. Alaimalo v.
United States, 645 F.3d 1042, 1046–47 (9th Cir. 2011).
These cases confirm that this Court should not preclude
Goulart from challenging the “particularly severe penalty”
of deportation when we now know that he was deported for
invalid reasons. Padilla, 559 U.S. at 365 (internal quotation
omitted). Indeed, as observed earlier, the Supreme Court has
held that a defendant must be advised that he could be
deported as a result of a guilty plea, in light of the major
significance of deportation to an immigrant living in this
country. Id. at 365–66, 373–74.
Goulart is not a sympathetic character. I can understand
the desire to remove convicted burglars from this country.
Indeed, Judge VanDyke questions why I have bothered to
“champion” the cause of a convicted burglar. The answer
should be obvious. The judicial oath, which was adopted in
GOULART V. GARLAND 27
the Judiciary Act of 1789, requires us to “administer justice
without respect to persons, and do equal right to the poor and
to the rich.” See 1 Stat. 73, 76 (codified at 28 U.S.C. § 453).
We take such an oath, which derives from biblical teachings,
see Deuteronomy 1:17, so as not to be blinded by our like or
dislike of the parties. We are not called to decide whether
Goulart is a good person, but rather whether a person who
has been banished from the United States without legal
justification should be permitted to seek to return. The
Supreme Court has held that the precise statute under which
Goulart was deported violates the Constitution. Principles
of law and equity require that he be permitted to move for
reconsideration in this case. I respectfully dissent.