Goulart v. Garland, No. 19-72007 (9th Cir. 2021)
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Goulart, a citizen of Brazil. 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, the Ninth Circuit held that section 16(b) was unconstitutionally vague. In 2018, the Supreme Court affirmed in “Dimaya.” Goulart learned of the latter ruling on June 9, 2018, when he was so informed by his former defense attorney. He filed his motion for reconsideration based on a change in the law on July 16, 2018.
The Ninth Circuit held that the BIA did not abuse its discretion in denying Goulart’s claim for equitable tolling of the 30-day motions deadline. Goulart 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 Dimaya in 2018. Even assuming that he was unaware of the Ninth Circuit’s 2015 decision, the BIA did not act arbitrarily or irrationally in determining that Goulart failed to make reasonable efforts to pursue relief.
Court Description: 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 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
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