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Immigration Law

CA4 (2-1) on Jurisdiction, Standard of Review, Equitable Tolling: Williams v. Garland

Williams v. Garland - Petition for review granted, vacated, and remanded by published opinion. Senior Judge Floyd wrote the opinion in which Senior Judge Motz joined. Judge Rushing wrote a separate dissenting opinion.

"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." [NOTE: The dissenter, Judge Allison Rushing, is a Trump appointee: "Rushing’s nomination drew vocal opposition from a coalition of more than 200 civil rights organizations, the Leadership Conference on Civil & Human Rights, which is led by Vanita Gupta, who headed the Justice Department’s Civil Rights Division under President Barack Obama. “In their quest to remake the federal courts, Republicans rushed to confirm an inexperienced ideologue to a lifetime appointment in North Carolina despite her never having practiced there,” the coalition said in a statement. “Rushing has denounced marriage equality, opposed remedies for discriminatory lending practices, and rejected efforts to end housing discrimination against domestic and sexual violence survivors. Her record clearly shows she will not be a fair and independent judge — a reality with dire consequences for Fourth Circuit cases and the American people.”]

[Hats way off to litigation superstar Ben Winograd!]