Motion for Reconsideration Leads to Ninth Circuit Brouhaha

“John the burglar”, Deuteronomy, and Congress’s restrictions on alien respondents

By Andrew R. Arthur on November 23, 2021

On November 18, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Goulart v. Garland. It denied an appeal from Board of Immigration Appeals (BIA) order, denying a motion to reconsider filed by a Brazilian national who was ordered removed in 2013. The case is unexceptional, except for the brouhaha it triggered between two of the judges on the three-judge panel, and the congressional restriction it reinforced.

Facts of the Case and the Big Change in the Law

Goulart was convicted of first-degree burglary under Cal. Penal Code Ann. §§ 459, 460(a), ostensibly for burglary of an inhabited dwelling. At the time of his removal proceedings, such convictions were deemed aggravated felonies under section 101(a)(43)(F) of the Immigration and Nationality Act (INA), that is “a crime of violence (as defined in [18 U.S.C. § 16] , but not including a purely political offense) for which the term of imprisonment at least one year”. I will get back to the provision referenced therein.

Consequently, he was removed from the United States to Brazil in 2013, where he apparently is today.

Returning to 18 U.S.C. § 16, that provision defines the term “crime of violence” in two separate ways. Under subsection 16(a), a crime of violence is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”.

If you click on the link to burglary in the first degree under California law, you will see that the use of physical force is not an element of the crime, and therefore it cannot be a crime of violence under subsection 16(a).

Thus, if first degree burglary is a crime of violence, it must be so defined under subsection 16(b), “any other offense that is a felony and 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 committing the offense.”

As an INS prosecutor and an immigration judge, I applied that subsection often, and usually in the burglary context. Burglaries of occupied dwellings were traditionally considered crimes of violence under 18 U.S.C. § 16(b) because of the substantial risk that the occupant of the dwelling would defend his or her property, and the assailant would thereafter use force against the occupant.

In 2015, however, the Ninth Circuit issued a decision in Dimaya v. Lynch that threw that settled law into doubt. There, the court considered the same burglary statute under which Goulart was convicted in almost the exact same scenario, that of an alien facing removal charged with an aggravated felony.

The Ninth Circuit concluded that 18 U.S.C. § 16(b), as incorporated into the aggravated felony definition in section 101(a)(43)(F) of the INA, was unconstitutionally vague—essentially invalidating removals on aggravated felony grounds where the underlying crime was burglary under California law.

In April 2018, the Supreme Court – considering the government’s appeal of that decision – affirmed the Ninth Circuit, in a case now titled Sessions v. Dimaya. Personally, I disagreed with that opinion (as I explained in a July 2020 post), but I am not on the Supreme Court, and defer to judicial assessments.

Therefore, had Goulart been facing removal for his crime in 2015, or 2018, he would not have been deemed removable, but that was not the case. He had been removed, as noted, in 2013 under then-prevailing law.

Goulart’s Motion to Reconsider

Goulart apparently found out about the Supreme Court’s decision on June 9, 2018, when his former criminal defense attorney told him about it, and Goulart filed a motion to reconsider his removal order with the BIA on July 16, 2018.

Here’s the problem. Under section 240(c)(6)(B) of the INA, motions to reconsider must be filed within 30 days of the entry of the final order of removal, meaning that Goulart’s motion was about five years too late.

Under Ninth Circuit precedent, however, that 30-day deadline can be extended under a concept known as “equitable tolling”, but only when the “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.” That can include changes in the law, such as in Dimaya.

Due Diligence, and the Ninth Circuit’s Decision

What this case came down to, therefore, was whether Goulart had exercised the requisite “due diligence” in filing his motion to reconsider.

Judge Richard Paez, writing for the majority, held that “Goulart failed to present any evidence suggesting that he diligently pursued relief during the years between his removal and the relevant change in law”, particularly since, in his case, the law had effectively changed in 2015.

Specifically, Judge Paez noted that “Goulart did not support his motion with a declaration or any other evidence concerning his actions between 2013 and June 2018”, suggesting that if Goulart had submitted such an affidavit, his case might have turned out differently—but even that is not clear, thanks to the concurrence I will explain below.

Judge Korman’s Dissent: The “Bizarreness” of the Majority’s Holding

Judge Edward Korman, a district court judge sitting by designation, dissented, and in pointed terms. He described as “bizarre” the majority’s holding “that a lay person born in a foreign country” who has already “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.’”

He concluded 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.” (Emphasis added.).

In other words, the alien acts diligently if he or she files a motion to reconsider quickly after finding out about a change in the law that benefits him or her but is under no obligation to be diligent in determining whether such change has occurred to begin with.

Judge VanDyke Strikes Back, In Concurrence

Judge Lawrence VanDyke, writing in concurrence, was having none of that.

First, he compared Goulart to a hypothetical character named “John”, who protests his harsh sentence for burglarizing his aunt’s house while she was asleep on the grounds that he was unaware of the fact that the legislature had increased the penalties for burglary of an occupied dwelling the week before.

As Judge VanDyke concluded that hypothetical:

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.

He complained that Judge Korman would have the court adopt an “actual knowledge standard” for determining whether Goulart (“also a convicted burglar of an inhabited dwelling”) was eligible for reconsideration.

Judge VanDyke also noted that the change in the law that was the basis for Goulart’s motion was, in fact, the 2015 circuit court decision in Dimaya, not the Supreme Court’s 2018 affirmance of that decision, and that the BIA had correctly concluded that Goulart had failed to demonstrate due diligence by waiting three years after the Ninth Circuit’s decision to seek reconsideration of his removal order.

Nor did Goulart show that some “extraordinary circumstance” prevented him from filing that motion earlier, in Judge VanDyke’s estimation. Rather, he found, Judge Paez’s logic would base due diligence for reconsideration on when the alien removed from the United States “learned” about the change in the law (as noted above).

The issue, he concluded, was the petitioner’s “due diligence in discovering and raising the error”. (Emphasis in original.) In this vein, Judge VanDyke held:

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. (Internal citations omitted.)

In what was likely the most important portion of his concurrence, however, Judge VanDyke concluded that the dissent’s “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.”

The Case Gets Chippy

By the way, Judge VanDyke was not buying the fact that Goulart should receive special treatment because he is a layman and foreign born. The judge explained in a footnote that the record revealed “Goulart speaks English” and came to the United States at the age of seven in 1970 “before I was born”, concluding: “Goulart is not the uninformed, helpless alien that the dissent suggests.”

That was not the only chippiness between the concurrence and the dissent. Judge VanDyke took umbrage at Judge Paez’s “hint” that the court’s conclusion was “driven, at least in part, by ‘the desire to remove convicted burglars from this country’”.

He then questioned, however: “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 Paez struck back at that. He first cited to his judicial oath, which is based upon the Judiciary Act of 1789, requiring judges to “administer justice without respect to persons, and do equal right to the poor and to the rich.” He then sought recourse to “biblical teachings”, including Deuteronomy 1:17:

You shall not show partiality in judgment; you shall hear the small as well as the great; you shall not be afraid in any man’s presence, for the judgment is God’s. The case that is too hard for you, bring to me, and I will hear it.

I seriously doubt either jurist convinced the other.

The Importance of the Rule in Goulart

In any event, Congress set a short deadline for the filing of motions to reconsider removal orders exactly to avoid scenarios like this. Under the dissent’s logic, an alien respondent under a removal order could wait years to move for reconsideration, so long as the alien asserted that he or she had just found out about a potential favorable change in the law when seeking reconsideration.

Here, Goulart has been removed and is, again apparently, in Brazil, but Judge Paez’s rule would apply equally to an alien under a final order of removal in the United States who fails to act until removal is imminent, by simply asserting that he or she just found out about a possible change in the law.

Consideration of any reconsideration motion at that juncture would extend the alien’s unlawful presence in the United States indefinitely.

It was for good reason that Judge VanDyke cited to the Supreme Court’s decision in INS v. Doherty, where the Court held: “Motions for reopening of immigration proceedings are disfavored . . . This is especially true in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”

The rule in Goulart is a sound one: An alien respondent seeking reconsideration of an order of removal based on a change in the law must act diligently in not only filing a motion to reconsider, but also in identifying the change in the law to begin with. As the brouhaha in this decision makes clear, however, that not every federal judge sees that rule the same way.