Decided: June 17, 2016
The Fourth Circuit dismissed in part and denied in part a petition.
In 1996, Garfield Lawrence was admitted to the United States as a lawful permanent resident. Lawrence, who is originally a native of Jamaica, has had multiple Virginia state court marijuana convictions. As a result of theses marijuana convictions, the Department of Homeland Security (DHS) issued a notice to appear charging Lawrence as removable for crimes involving moral turpitude, for a conviction of an aggravated felony offense relating to the illicit trafficking of a controlled substance, and for a conviction relating to a controlled substance. Lawrence admitted to the convictions but denied that he qualified as an aggravated felon. The Plaintiff 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 as “drug trafficking” aggravated felonies, making Lawrence ineligible for cancellation of removal. Lawrence appealed and the Board of Immigration Appeals affirmed on December 4, 2012. The 90-day statutory period to file a motion to reopen began on that date. Lawrence was removed to Jamaica on January 31, 2013, where he said he continued to pursue his immigration case despite difficulties of moving three times, finding employment, and living in a rural area that limited his access to international communication. In September 2013, Lawrence was able to contact the Post-Deportation Human Rights Project at Boston College where a lawyer there determined that Lawrence might have a claim under the Supreme Court’s 2013 decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). The case was eventually referred to the Capital Area Immigrants’ Rights Coalition (CAIR), the Plaintiff’s current counsel. On May 19, 2015, Lawrence moved to reopen his removal proceedings for the purpose of seeking a cancellation of removal. Because Lawrence missed the 90-day statutory window, he requested his motion be considered as timely based on equitable tolling. The Board denied the motion because Lawrence had not shown that he had acted with due diligence during the 2 years after the Supreme Court’s decision in Moncrieffe and the Board also determined that Lawrence’s case did not present an exceptional situation to warrant sua sponte reopening. Lawrence filed a motion for review.
Lawrence argued on appeal that the Board applied the wrong standard to determine equitable tolling. A petitioner seeking equitable tolling must prove (1) the Government’s wrongful conduct prevented the petitioner form filing a timely motion; or (2) extraordinary circumstances beyond the petitioner’s control made it impossible to file within the statutory deadline. A petitioner relying on extraordinary circumstances must show he has been pursuing his rights diligently. The level of diligence by the petitioner must be reasonable. Lawrence argued that the Board applied a higher level of diligence and if the correct level of diligence were applied, Lawrence would have met reasonable diligence. The court determined that the Board made no error and that due diligence was the same as reasonable diligence. Lawrence failed to account for his burden of reasonable diligence throughout the two-year period. The Board was within their discretion to deny reopening the case because Lawrence failed to meet the required level of diligence needed for equitable tolling. The court did not address Lawrence alternative argument that the Board should have reopened the case sua sponte because it did not have jurisdiction to review how the Board exercises its sua sponte discretion.