Damien Williams v. Merrick Garland

59 F.4th 620

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 16, 2022
• Docket: 20-1854
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1854

DAMIEN DONOVAN WILLIAMS, a/k/a Damian Donavan Williams,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: December 7, 2021 Decided: November 16, 2022

Before RUSHING, Circuit Judge, and MOTZ and FLOYD, Senior Circuit Judges.

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.

ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Lindsay Colbert Dunn, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jeffrey Bossert Clark, Acting Assistant Attorney General, Brian Boynton, Acting Assistant Attorney General, John S. Hogan, Assistant Director, Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 2 of 69

FLOYD, Senior Circuit Judge:

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.

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I.

A.

Under the Immigration and Nationality Act (INA), noncitizens 1 who commit certain

crimes become removable from the United States. 8 U.S.C. § 1227(a)(2)(A). When

noncitizens are permanent residents, however, they may ask the Attorney General to cancel

their removal to avoid causing “exceptional and extremely unusual hardship” to their

families—but only if they did not commit an aggravated felony. Id. § 1229b(a)(3),

(b)(1)(D). Noncitizens who did, even permanent residents, face swift and enduring

consequences. They receive only abbreviated judicial review, with the courts entertaining

only legal and constitutional—but not factual—challenges to “the final order of removal.”

Id. § 1252(a)(2)(C)–(D). And they can never return to the United States. They become, in

the immigration parlance, permanently “inadmissible.” Id. § 1182(a)(9)(A)(ii).

When the DHS brought removal proceedings against Williams in 2005, the INA

defined “aggravated felony” to include all “crime[s] of violence” specified in 18 U.S.C.

§ 16 punishable by imprisonment of at least one year. Section 16, in turn, defined crimes

of violence in two ways: “an offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of another” and a felony

1 We use “noncitizen” in place of the statutory “alien,” which has been recognized as an “archaic and dehumanizing” term. Maria Sacchetti, ICE, CBP to Stop Using ‘Illegal Alien’ and ‘Assimilation’ Under New Biden Administration Order, Wash. Post (Apr. 19, 2021), https://www.washingtonpost.com/immigration/illegal-alien-assimilation/2021/04/19/9a2f 878e9ebc-11eb-b7a8-014b14aeb9e4_story.html; see also, e.g., Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020).

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“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” the offense. 18 U.S.C. § 16(a)–(b).

In the years following Williams’s removal, the Supreme Court and the BIA twice

refashioned § 16’s definitions. First, in 2010, the Court held that “physical force” must

mean “violent force”—“force capable of causing physical pain or injury to another person.”

Johnson v. United States, 559 U.S. 133, 139–40 (2010). And applying Johnson, the BIA

determined that offenses which by their terms encompass the “slightest touching of

another” no longer qualify as crimes of violence under § 16(a). In re Velasquez, 25 I. &

N. Dec. 278, 282–83 (BIA 2010). 2 Second, in 2018, the Court struck § 16(b) as

unconstitutionally vague on its face. Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018).

Taken together, these decisions permit the DHS to remove noncitizens for committing an

aggravated felony only upon proof of violent force.

Noncitizens so removed may ask the agency to reopen or reconsider the order. A

motion to reopen recites “new facts” not previously available, while a motion to reconsider

2 In determining whether an offense qualifies as a crime of violence, courts apply a categorical approach, meaning they “consider only the elements of the statute of conviction rather than the defendant’s conduct underlying offense.” Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014). Occasionally, courts consider statutes “divisible” because they “set forth multiple crimes, with varying elements—and some of the crimes set forth therein would pass the categorical inquiry if examined on their own.” Bah v. Barr, 950 F.3d 203, 206 (4th Cir. 2020) (citation omitted). In such cases, courts modify the categorical approach “to determine what crime, with what elements, a defendant was convicted of.” Id. at 207 (citation omitted). Either way, courts “focus on the elements, rather than the facts, of a crime” because “Congress predicated deportation on convictions, not conduct.” Id. at 206–07 (citations omitted). Thus, the BIA’s ruling: Offenses that encompass mere offensive touching categorically cannot satisfy §16(a)’s definition of a crime of violence and, correspondingly, cannot confer a basis for removal.

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specifies “errors of law or fact in the previous order.” 8 U.S.C. § 1229a(c)(6)(C), (7)(B).

Noncitizens may file one of each. They have thirty days to request reconsideration and

ninety to move to reopen. Id. § 1229a(c)(6)(B), (7)(C). If the BIA declines, noncitizens

may petition the appropriate court of appeals. But courts will not review the underlying

removal order by that same petition; noncitizens must file “separate petitions” laying out

errors in those separate decisions. Stone v. INS, 514 U.S. 386, 395 (1995).

B.

Damien Donovan Williams is a native and citizen of Jamaica. He moved to the

United States in July 1987, when he was just six years old, and became a permanent

resident in October of that same year. His mother, three of his four siblings, his long-term

girlfriend (now wife), and his four children are all U.S. citizens.

In February 2003, Williams was convicted of assault and battery of a police officer,

obstructing justice, disorderly conduct, and failure to appear under Virginia law. See Va.

Code Ann. §§ 18.2-57(C), 18.2-460, 18.2-415, 19.2-128. The three substantive offenses

arose out of a single incident, when Williams resisted an officer’s spraying him with mace

after he was already in handcuffs. Williams then failed to appear because of conflicting

court dates: he was in one courtroom when he was called in another.

In September 2005, the DHS initiated removal proceedings, contending Williams

was removable for having committed both an aggravated felony—the assault and battery

on the police officer—and two crimes involving moral turpitude (CIMTs)—the same

assault and battery and the failure to appear. See 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii) (listing

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aggravated felony and multiple CIMTs as separate grounds for removability). Williams

had trouble retaining a pro bono attorney, even with the four continuances the immigration

judge (IJ) allowed. But during the fifth hearing, an attorney sitting in the courtroom agreed

to take on his case. With this attorney’s help, Williams denied removability and asked the

IJ to terminate the proceedings. The IJ agreed Williams’s conviction did not rise to an

aggravated felony but still ruled him removable for committing two CIMTs.

Williams then requested cancellation of removal. The government maintained that

Williams committed an aggravated felony, rendering him ineligible, but did not otherwise

oppose his request. After a hearing, the IJ issued a short oral decision allowing Williams

to stay. The government appealed to the BIA, arguing once more that Williams’s assault

on the officer amounted to an aggravated felony, and this time, the agency agreed. It

determined the assault qualified as a crime of violence under both §§ 16(a) and (b).

Williams never appealed the IJ’s CIMT decision—it did not affect his ability to request

cancellation of removal—but he did file a motion to reconsider the BIA’s aggravated-

felony ruling, which the BIA denied. Williams’s attorney then ended his representation,

leaving Williams to petition this Court pro se. We denied the petition, Williams v.

Gonzales, 234 F. App’x 113 (4th Cir. 2007), and the DHS deported Williams to Jamaica.

As discussed, in the ensuing years, the Court decided Johnson and Dimaya, and the

BIA applied Johnson to battery offenses that include the mere touching of another—

indeed, the very offense of which Williams was convicted, Va. Code Ann. § 18.2-57. But

Williams remained unaware. As he would later explain in an affidavit to the BIA, he

worked as a groundskeeper in exchange for room and board and served as a maintenance

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man on weekends, earning only about $20 per job. He had no access to the Internet. And

his only pro bono lawyer had long cut all ties. Williams’s family, themselves earning only

about $20,000 per year, barely managed to visit him in Jamaica and did not have the funds

to repeatedly hire attorneys to check whether the law had changed.

In 2019, Williams was finally able to marry his girlfriend, Lawaren Person. The

same year, unfortunately, the lung disease Person had previously kept in check aggravated

significantly, and Person’s doctors advised her against spending time in polluted countries

like Jamaica. Out of desperation, Person consulted an immigration attorney in April 2019

to determine if any avenues had opened up to allow her husband back in. The attorney

requested Williams’s file from the DHS under the Freedom of Information Act, which

arrived towards the end of June 2019. Quickly appreciating the upshot of Johnson and

Dimaya, she filed for reconsideration just one month later, in July 2019. She asked the

BIA to either equitably toll the time and number limitations on Williams’s motion or to

reconsider sua sponte. In support of the application, Williams attached declarations from

himself and Person explaining why his living conditions in Jamaica and her scarce wages

in the United States had precluded them from retaining an attorney until 2019.

The government did not oppose Williams’s motion, but the BIA still denied his

request. It did not dispute that Williams’s conviction no longer qualified as a crime of

violence but declined to equitably toll the statutory limits, faulting Williams for failing to

explain why he “had not regularly sought out pro bono counsel prior to April 2019 to stay

informed on the status of the law” and why Person did not “assist him from the United

States.” A.R. 5. The Board also declined to reconsider sua sponte, again citing Williams’s

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nondiligence in ferreting out U.S. immigration law. Williams timely petitions for review

of both rulings. 3

II.

Before we can delve into the substance of the BIA’s equitable-tolling decision, we

must determine how much of it we have jurisdiction to review, what standard of review we

should employ, and whether the statutory deadline for a motion to reconsider can be

equitably tolled at all. We take these in turn, beginning here with jurisdiction.

As discussed, § 1252(a)(2)(C) prohibits courts of appeals to “review any final order

of removal against an alien who is removable by reason of having committed” certain

specified crimes, including aggravated felonies and multiple CIMTs. 8 U.S.C.

§ 1252(a)(2)(C). Both parties agree that if § 1252(a)(2)(C) applies, § 1252(a)(2)(D)

nonetheless permits us to review “constitutional claims or questions of law.” Id.

§ 1252(a)(2)(D). The parties also agree that questions of law include whether “the Board

incorrectly applied the equitable tolling due diligence standard to the ‘undisputed’ (or

established) facts.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). But

Williams resists this threshold determination. He argues § 1252(a)(2)(C) does not apply at

all, that we have authority to review the BIA’s factual errors, as well.

3 In 2020, the Department of Justice amended 8 C.F.R. § 1003.2(a) to prohibit the BIA from reconsidering final orders of removal sua sponte except to correct ministerial errors, see Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 81,588, 81,591 (Dec. 16, 2020), but a federal court has since enjoined the implementation of the amendment nationwide, see Centro Legal de la Raza v. Exec. Off. for Immigr. Rev., 524 F. Supp. 3d 919, 928–29, 980 (N.D. Cal. 2021).

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The only factual ruling in play concerns the BIA’s determination that Williams’s

2019 attorney offered her services pro bono. Williams contends the BIA reasoned from

that (incorrect) conclusion that he could have found pro bono representation at any time,

enabling him to monitor the immigration law through the years. And because he did not,

he must not have acted diligently. But the fact was Person had to pay the attorney for her

work. And that undercuts the BIA’s diligence ruling: That Person spent money out of her

impossibly tight budget demonstrates just how difficult it is to find a pro bono immigration

attorney, even from inside the United States. This one factual issue may be modest in

scope, but it breeds critical jurisdictional consequences for our future cases. In the end, we

agree with Williams that the INA never meant to bar judicial review of collateral facts far

removed from the underlying “final order of removal.” 8 U.S.C. § 1252(a)(2)(C).

In the deportation context, a “final order of removal” refers to an order “concluding

that the alien is deportable or ordering deportation.” Nasrallah v. Barr, 140 S. Ct. 1683,

1690 (2020) (quoting 8 U.S.C. § 1101(a)(47)(A)). That order becomes “final, and

reviewable, when issued.” Stone, 514 U.S. at 405. And its “finality is not affected by the

subsequent filing of a motion to reconsider.” Id. That is why, when we review the BIA’s

refusal to reconsider its removal decision, “the merits of the underlying” decision “are not

before us.” Jean v. Gonzales, 435 F.3d 475, 481 (4th Cir. 2006). To reach those merits, a

noncitizen must file a “separate petition[ ] for review.” Stone, 514 U.S. at 395. These are

nonnegotiable, “jurisdictional” constraints. Yurova v. Lynch, 606 F. App’x 82, 83 (4th Cir.

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2015) (citation omitted). But they also reflect common sense. It is “axiomatic” that before

the BIA can reconsider a removal order, “there must first be an order of removal” to be

reconsidered—especially where, as here, Williams was actually “removed pursuant to a

valid order” twelve years ago. Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2284, 2287–

88 (2021) (quoting In re I-S-, 24 I. & N. Dec. 432, 433 (BIA 2008)).

Still, it would blink reality to decline to review a factual challenge to the BIA’s

removal order only to then review “that same” challenge “dressed as a motion to

reconsider.” Jean, 435 F.3d at 481. And were we asked to decide factual questions that

“affect the validity of the final order of removal”—such as, for example, whether and how

Williams resisted arrest—we would certainly lack jurisdiction under § 1252(a)(2)(C).

Nasrallah, 140 S. Ct. at 1691. But that is not what Williams asks us to do. He asks only

that we correct the BIA’s misconception that he successfully retained pro bono counsel

when he finally moved for reconsideration. That conclusion was “adjunct” in every sense

to the agency’s prior “substantive” determination that Williams committed an aggravated

felony and was therefore removable. Kucana v. Holder, 558 U.S. 233, 248 (2010); Guzman

Chavez, 141 S. Ct. at 2287 (distinguishing “withholding-only proceedings” from “removal

orders” because the two proceedings “address two distinct questions”). And indeed, we

have already recognized our jurisdiction to consider such collateral factual matters, albeit

without expressly tracing the source of that authority. Just two terms ago, we agreed to

review the BIA’s refusal to reconsider a final order removing a criminal noncitizen on

grounds that the noncitizen’s “new arguments were waived” and “that his request to present

the additional evidence . . . was untimely.” Cucalon v. Barr, 958 F.3d 245, 253–54 (4th

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Cir. 2020). We did not once mention § 1252(a)(2)(C)’s jurisdictional bar in examining the

BIA’s reconsideration decision, even as elsewhere in the opinion we painstakingly

explained that “we lack jurisdiction to review an order of removal based on an alien’s

conviction of an aggravated felony.” Id. at 249 (emphasis added).

The Supreme Court confronted a similar challenge in Nasrallah and came to a

similar conclusion. Nasrallah asked whether courts of appeals can review factual rulings

underpinning Convention Against Torture (CAT) orders for criminal noncitizens or

whether CAT orders merge into final orders of removal so that § 1252(a)(2)(C)’s

limitations apply to CAT determinations, too. 140 S. Ct. at 1688. The Court held review

appropriate, in part because, unlike the facts underlying the order of removal, factual

“issues related to a CAT order will not typically have been litigated prior to the alien’s

removal proceedings” in any Article III court. Id. at 1693. And yet those issues, which

“may range from the noncitizen’s past experiences in the designated country of removal,

to the noncitizen’s credibility, to the political or other current conditions in that country,”

may be “critical to determining” the whole course of the noncitizen’s future. Id. Congress,

the Court reasoned, could not have intended to strip courts of jurisdiction over these

collateral rulings when it barred “further relitigation of the underlying factual bases for

those criminal convictions.” Id.

And a jurisdictional bar would be doubly inappropriate here, where Williams’s

argument on the merits “would itself be reviewable.” Kucana, 558 U.S. at 250. Williams

argues that, as a matter of law, he can no longer be classed an aggravated felon after

Johnson and Dimaya. Not only does § 1252(a)(2)(D) give us jurisdiction to review that

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“question of law,” see Guevara-Solorzano v. Sessions, 891 F.3d 125, 131 (4th Cir. 2018),

but the government does not even dispute that Williams would succeed on it. And yet, the

government’s rule would leave us powerless to meaningfully review the BIA’s threshold,

procedural determination that cut short Williams’s only hope of reuniting with his family.

That cannot be what Congress had in mind when drafting § 1252(a)(2)(C).

Longstanding exercise of judicial review of the Board’s reconsideration decisions,

the history of the relevant statutory provisions, the presumption favoring judicial review,

and separation-of-powers concerns all reinforce this conclusion.

Motions to reconsider and reopen have long been understood to provide “an

‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration

proceedings.” Kucana, 558 U.S. at 242 (quoting Dada v. Mukasey, 554 U.S. 1, 18 (2008)).

And federal-court review of these administrative decisions dates to at least 1916. Id. For

the first eight of those decades, no statutory authority governed judicial review—Attorney

General regulations first addressed reopening and reconsideration requests in 1941 and

then again in 1958, when the BIA was established, but they, of course, said nothing of our

jurisdiction to review them. See id. at 249 (citing New Regulations Governing the Arrest

and Deportation of Aliens, 6 Fed. Reg. 68, 71–72 (Jan. 4, 1941); Miscellaneous

Amendments to Chapter, 23 Fed. Reg. 9115, 9118–19 (Nov. 26, 1958)). It was not until

1996, when Congress enacted the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA), that motions to reopen and reconsider took on a statutory

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dimension. See 8 U.S.C. § 1229a(c)(6) (largely codifying the 1958 regulations). “In the

same legislation, Congress amended the INA aggressively to expedite removal of aliens

lacking a legal basis to remain in the United States,” including by passing § 1252(a)(2)(C).

Kucana, 558 U.S. at 249 (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S.

471, 475 (1999)). But it said nothing about extending § 1252(a)(2)(C) to our review of

reopening and reconsideration motions, even though it could have easily “so specified

together with its codification of directions on filing [those] motions.” Id. at 250. Instead,

“Congress left the matter where it was”: The BIA has discretion to grant or deny such

motions, and we “retain jurisdiction to review” all aspects of the BIA’s decisions except

where our review clearly conflicts with § 1252(a)(2)(C)’s core statutory aims. Id.; accord

Mata v. Lynch, 576 U.S. 143, 148 (2015) (explaining that federal courts “have reviewed

[reopening and reconsideration] decisions for nearly a hundred years” without express

statutory directive and that IIRIRA “left that authority in place” (citing Kucana, 558 U.S.

at 242–51)). 4

4 To be sure, in addition to our traditional authority, Mata also cited § 1252(b)(6), which consolidates “any review sought of a motion to reopen or reconsider” with “the review of the [underlying] order.” 576 U.S. at 147–48 (cleaned up) (quoting 8 U.S.C. § 1252(b)(6)). But Mata cited the provision to illustrate only that Congress “expressly contemplate[d]” our jurisdiction to review BIA denials to reopen or reconsider—and left it unchanged—not to suggest that our only jurisdictional basis to review those denials flows from our authority to review final removal orders. Id. at 147. For if Mata believed that, it would not have reviewed the BIA’s denial to equitably toll the limitations on a motion to reopen—removal orders, after all, do not implicate equitable tolling. See also Nasrallah, 140 S. Ct. at 1691 (rejecting the government’s argument that CAT rulings merge into final removal orders because § 1252(b)(9) consolidates “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States” with “judicial review of a final order” and holding instead that § 1252(b)(9) “simply establish[es] that a (Continued)

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Any lingering doubt over our authority to review factual challenges to the BIA’s

denials to reopen or reconsider cannot survive the “familiar principle of statutory

construction: the presumption favoring judicial review of administrative action.” Kucana,

558 U.S. at 251. Because courts had already been consistently applying that presumption

when Congress passed IIRIRA in 1996, e.g., Bowen v. Mich. Acad. of Fam. Physicians,

476 U.S. 667, 670 (1986), we can assume Congress “legislate[d] with knowledge of” that

presumption. Kucana, 558 U.S. at 252 (quoting McNary v. Haitian Refugee Ctr., Inc., 498

U.S. 479, 496 (1991)). So the statutory question becomes not whether IIRIRA created

jurisdiction, but whether IIRIRA “clear[ly] and convincing[ly] . . . dislodge[d]” it. Id.

(quoting Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 64 (1993)). Because IIRIRA did no

such thing, we continue to exercise our jurisdiction as we always have, reviewing even the

factual challenges to BIA refusals to reopen and reconsider.

Foundational separation-of-powers considerations point us in the same direction.

Congress well knew how to expressly delegate final authority over motions to reopen or

reconsider to the Department of Justice. Where it has not done so, courts should not “place

in executive hands authority to remove cases from the Judiciary’s domain.” Id. at 237;

accord Costello v. INS, 376 U.S. 120, 127–28 (1964) (advising caution “before adopting a

construction of [the statute] which would, with respect to an entire class of aliens,

completely nullify a procedure so intrinsic a part of the legislative scheme”); INS v. St. Cyr,

533 U.S. 289, 320 (2001) (recognizing “the longstanding principle of construing any

CAT order may be reviewed together with the final order of removal” (quoting 8 U.S.C. § 1252(b)(9))).

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lingering ambiguities in deportation statutes in favor of the alien” (quoting INS v. Cardoza-

Fonseca, 480 U.S. 421, 449 (1987))). 5

C.

We are not alone in so understanding federal-court jurisdiction over the BIA’s

reopening and reconsideration decisions. The Ninth Circuit, for example, has accepted

jurisdiction to review the agency’s factfinding where the Board “did not rely on [a

noncitizen’s] conviction of a crime involving moral turpitude” but on its determination that

the noncitizen had “not demonstrated a change in country conditions material to his claim

for relief.” Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). The Fifth Circuit

has gone even further, claiming jurisdiction to resolve “any factual questions necessary” to

resolve questions of law. Diaz v. Sessions, 894 F.3d 222, 224–25, 227 & n.4 (5th Cir.

2018) (invoking §1252(a)(2)(D)’s command that “nothing shall preclude” judicial review

of legal claims). And like this Court in Cucalon, the Eleventh Circuit has assumed

authority to review collateral factual questions on petitions from motions to reopen and

reconsider without any reference to the criminal-noncitizen bar. See Abakporo v. U.S. Att’y

Gen., No. 20-12750, 2021 WL 3598346, at *5–6 (11th Cir. Aug. 13, 2021); Israel v. U.S.

5 We have previously suggested in a nonpublished, nonprecedential decision that final orders of removal subsume motions to reopen and reconsider, implicating the § 1252(a)(2)(C) bar. Rangolan v. Mukasey, 302 F. App’x 133, 136 (4th Cir. 2008). We reached that conclusion because we read § 1252(a)(1)—which confirms federal-court jurisdiction over “final orders of removal”—as providing “our only basis” to review such motions. Id. We now believe that a too-narrow interpretation after Mata and Kucana.

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Att’y Gen., 861 F. App’x 371, 374 (11th Cir. 2021), cert. denied sub nom. Israel v. Garland,

No. 21-6352, 2022 WL 89583 (U.S. Jan. 10, 2022).

In the obverse, the Second Circuit has declined jurisdiction where the “orders are

sufficiently connected that permitting review of a motion to reopen when § 1252(a)(2)(C)

bars review of the final order of removal would provide an improper backdoor method of

challenging a removal order.” Durant v. INS, 393 F.3d 113, 115 (2d Cir. 2004), as

amended (Feb. 1, 2005); see also Santos-Salazar v. U.S. Dep’t of Just., 400 F.3d 99, 103

(2d Cir. 2005) (declining to review the Board’s denial of reconsideration, where petitioner

asked the court to “revoke the final Order of deportation”).

The through-line in these decisions demonstrates that courts of appeals look to the

reasons the BIA gave when fixing the bounds of their jurisdiction. Where the Board finds

the substance of a removal order makes reopening or reconsideration imprudent, the courts

decline jurisdiction to avoid creating a “loophole” that “would thwart the clear intent of

Congress that the courts not review” factual predicates to the agency’s decisions to remove

criminal noncitizens. Jean, 435 F.3d at 481 (quoting Rodriguez v. Ashcroft, 253 F.3d 797,

800 (5th Cir. 2001)). But where the BIA declines to reopen or reconsider in view of

collateral issues, the courts have appropriately claimed jurisdiction to review.

Our own analysis of the neighboring § 1252(a)(2)(B), which strips federal courts of

jurisdiction to review the agency’s discretionary decisions, further counsels jurisdiction

over the factual question here. In that context, we “examine the basis for the BIA’s

decision” to determine our jurisdiction because § 1252(a)(2)(B) “divests courts of

jurisdiction only over BIA decisions that address the merits of an alien’s request for relief

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pursuant to those sections.” Obioha v. Gonzales, 431 F.3d 400, 406 (4th Cir. 2005)

(quoting Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999)). In Obioha, for example, the

Board declined to remand because a noncitizen “failed to seek cancellation of removal”

before the IJ “when she had the opportunity to do so” and “failed to present the elements

of prima facie eligibility for cancellation of removal in her motion” to remand. Id. at 407.

We deemed those “procedural failure[s]” “unrelated to the merits of a discretionary

decision on cancellation of removal” and proceeded to review. Id. We have upheld that

approach since. E.g., Jean, 435 F.3d at 481; Sorcia v. Holder, 643 F.3d 117, 126 (4th Cir.

2011); Agidi v. Garland, No. 20-2116, 2021 WL 5003416, at *1 (4th Cir. Oct. 28, 2021).

The same principle holds true here. Williams asked us to consider a factual

challenge “unrelated to the merits” of the final removal order, Obioha, 431 F.3d at 407—

or, put in Nasrallah’s words, a challenge that cannot “affect the validity of the final order

of removal,” 140 S. Ct. at 1691. We hold we have jurisdiction to resolve it. 6

6 Williams offers yet another jurisdictional basis. He proposes we begin by reviewing the agency’s original determinations that Williams committed the aggravated felony and the two CIMTs. This Court has authority to do so, Williams asserts, because it always has jurisdiction “to determine whether a petitioner actually has triggered the statute’s jurisdiction stripping provision.” Kporlor v. Holder, 597 F.3d 222, 225 (4th Cir. 2010); see also, e.g., Guevara-Solorzano, 891 F.3d at 131. If we agree he did not commit those crimes, Williams continues, § 1252(a)(2)(C) never comes into play at all. That analysis would be relatively straightforward as to Williams’s aggravated-felony conviction—as discussed, not even the government disputes that Johnson and Dimaya compel that result. But the two CIMTs present a higher and perhaps insurmountable hurdle, for Williams never appealed the IJ’s CIMT finding to the BIA. An argument can be made that we may consider an unexhausted claim for the limited purpose of determining our jurisdiction, but such a restricted approach would likely run afoul of the law-of-the-case doctrine. And our unpublished decisions have already declined to do so, albeit without considering this nuanced argument. E.g., Obomighie v. Holder, 480 F. App’x 225, 227 (4th Cir. 2012). Because we find jurisdiction for other reasons, we do not reach this question.

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III.

Also at the threshold, we must grapple with the standard of review. Both parties

agree, as they must, that the ultimate “decision to grant or deny a motion to reopen or

reconsider is within the discretion of the Board.” 8 C.F.R. § 1003.2. Federal courts of

appeals have correspondingly “employed a deferential, abuse-of-discretion standard.”

Kucana, 558 U.S. at 242, 250; see also Jean, 435 F.3d at 483; Lawrence v. Lynch, 826 F.3d

198, 203 (4th Cir. 2016). And yet, argues Williams, the Supreme Court recently held that

the specific question before us today—whether a petitioner exercised sufficient diligence

to warrant equitable tolling—constitutes a “question of law.” Guerrero-Lasprilla, 140 S.

Ct. at 1068. Williams accordingly asks us to review that narrow, subsidiary question de

novo. We agree with Williams, though not for the reasons he offers.

The question presented in Guerrero-Lasprilla asked whether the term “questions of

law” in § 1252(a)(2)(C) “includes the application of a legal standard to undisputed or

established facts.” 140 S. Ct. at 1067. The Court held it does, that all mixed questions of

law and fact present questions of law for purposes of the jurisdictional bar. Id. Williams

takes from that conclusion that equitable-tolling determinations require de novo review.

But the Court predicated its decision on § 1252(a)(2)(C)’s “basic purpose of providing an

adequate substitute for habeas review” as well as on the “traditional understandings and

basic principles: that executive determinations generally are subject to judicial review.”

Id. at 1069, 1073 (citation omitted). The Court was also troubled that “interpreting the

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Limited Review Provision to exclude mixed questions would effectively foreclose judicial

review of the Board’s determinations so long as it announced the correct legal standard.”

Id. at 1070. Those are uniquely jurisdictional concerns—much the same we just considered

in Part II. They have to do with whether, not how, federal courts may review agency

decisions. And the Court expressly declined to answer what its § 1252(a)(2)(C) holding

means for “the proper standard for appellate review of a district, bankruptcy, or agency

decision that applies a legal standard to underlying facts.” Id. at 1069.

Admittedly, there is some tension in characterizing a question as legal when

determining jurisdiction but as factual or discretionary when choosing the standard of

review. But our own precedent, too, has drawn this distinction. Cruz-Quintanilla v.

Whitaker, for example, concluded that government acquiescence in torture is a legal

question when determining the standard of review but a factual one for purposes of federal-

court jurisdiction. 914 F.3d 884, 889 (4th Cir. 2019) (citing Saintha v. Mukasey, 516 F.3d

243, 247–50 (4th Cir. 2008)). We reasoned the different outcomes possible because the

two inquiries pursue different aims: The standard of review concerns competency and

expertise, it asks, in essence, how prudent it would be to defer to the decisionmaker below,

but § 1252(a)(2)(C) speaks to “the division of authority between the Executive and the

judiciary.” Id. at 891. Guerrero-Lasprilla, of course, has overruled Cruz-Quintanilla’s

jurisdictional holding, as the ultimate question of whether a government acquiesces to

torture involves “applying the law to decided facts.” Id. at 890 (citation omitted). But its

animating principle remains: A jurisdictional ruling does not mechanically translate into

the standard of review; we must determine for ourselves which standard governs.

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We begin with the common-sense principle that the Board’s decision to decline

reconsideration, discretionary as it is at day’s end, usually builds upon a variety of

subsidiary legal and factual conclusions. The Board may, for example, deny the motion

because a noncitizen brings no new law to its attention. Or it may disagree with the

noncitizen’s interpretation of the new law, concluding he nonetheless lacks a legal path to

relief. In still other cases, the Board may forego any determination as to the noncitizen’s

substantive entitlement to relief and decline to reconsider on procedural grounds. See INS

v. Abudu, 485 U.S. 94, 104 (1988) (surveying the different reasons the BIA may decline to

reopen). The route the Board chooses, in turn, frames our review: Did the Board “distort[ ]

or disregard[ ] important aspects of the applicant’s claim”? Tassi v. Holder, 660 F.3d 710,

719 (4th Cir. 2011). Did it “make rulings that are based ‘on an inaccurate perception of

the record’”? Id. (quoting Jian Tao Lin v. Holder, 611 F.3d 228, 237 (4th Cir. 2010)). Did

it act “contrary to the law”? Id. All of these are ways to assess whether, overall, the Board

abused its discretion. But courts must separate out the subsidiary factual or legal or mixed

factual and legal determinations to understand why the Board denied the motion. And they

must apply the usual standards to review those subsidiary determinations: de novo for law,

Guerrero-Lasprilla, 140 S. Ct. at 1069, substantial evidence for fact, Biestek v. Berryhill,

139 S. Ct. 1148, 1153 (2019), and, as the Court has recently clarified, either de novo or

substantial evidence for mixed questions, depending on “whether answering [them] entails

primarily legal or factual work,” U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt.

LLC v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967 (2018) (explaining that “[m]ixed

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questions are not all alike,” some turn on “developing auxiliary legal principles of use in

other cases,” while others “immerse courts in case-specific factual issues”).

The government asks us to short-circuit this common-sense approach and consider

only whether the Board abused its discretion overall. That may be appropriate where the

Board “leap[s] over” substantive and procedural questions “and simply determine[s]” it

will deny relief as a matter of “discretion” even if a noncitizen proves his legal claim.

Abudu, 485 U.S. at 105 (allowing the agency to do so where “the ultimate grant of relief is

discretionary”). But that is not what the Board did here. And we “may uphold agency

action only on the grounds the agency invoked when it took the action.” Michigan v. EPA,

576 U.S. 743, 758 (2015) (citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)).

Undaunted, the government holds out Jean, 435 F.3d at 482–83, Lawrence, 826

F.3d at 203, and an older Supreme Court case, INS v. Doherty, 502 U.S. 314, 323 (1992),

as mandating abuse-of-discretion review for all reconsideration decisions. But none of

these cases supports the government’s position in the way it claims. In Jean, the Board

denied a noncitizen’s request to reconsider its previous refusal to cancel removal because

it could “find no new legal argument” in Jean’s motion. 435 F.3d at 483 (citation omitted).

We affirmed under abuse of discretion, and rightly so. There was nothing legal or factual

about the Board’s conclusion; we needed to ascertain only that “the BIA supplied a rational

explanation” for its denial. Id. But we clarified that “our review [was] limited to the

motion to reconsider” as Jean never petitioned for review of the Board’s original ruling

that she was not entitled to cancellation of removal. Id. at 482. Had Jean done so, we

would have focused on the specific reason the BIA gave for its decision—“that Jean was

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statutorily precluded from demonstrating good moral character”—and we would have

reviewed it de novo. Id. Even though “cancellation of removal” ultimately calls for “a

discretionary form of relief,” we explained, whether Jean was statutorily precluded from

that relief was a “legal,” “not a discretionary decision.”. Id.

The same goes for Lawrence. Although we noted that we review the ultimate denial

to reopen “for abuse of discretion,” Lawrence’s specific challenge was narrower: He

maintained “the Board applied a heightened diligence standard that required absolute

diligence rather than reasonable diligence and therefore committed an error of law.” 826

F.3d at 203–04. Correspondingly, we analyzed whether the Board “set forth the correct

standard.” Id. at 204. We held that it did, because the Board understood “due diligence”

as “we define” that term—not because the Board gave its own legal interpretation of the

term to which we deferred. Id. (emphasis added) (citation omitted). Our review of the

narrow legal question was thus de novo—in deed, if not by express terms.

Finally, the government ignores the critical context behind Doherty’s

pronouncement that “the abuse-of-discretion standard applies to motions to reopen

regardless of the underlying basis of the alien’s request for relief.” 502 U.S. at 323 (cleaned

up) (citation omitted). It reads “regardless of the underlying basis” as setting the abuse-of-

discretion standard for all motions to reopen no matter why the BIA denied them. But

Doherty (and Abudu, where the phrase originated) held only that the same standard applies

“regardless” of whether a noncitizen asks to reopen to consider his “claims for asylum [or

his] claims for withholding of deportation,” because the two involve substantially the same

inquiries. See id. at 324; Abudu, 485 U.S. at 99 n.3. Neither case said anything about

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applying the same standard “regardless” of whether the BIA issued a decision rooted in

fact, discretion, or law. Quite the opposite, the Court declined to espouse a standard for

reviewing a denial to reopen on grounds that “the movant has not established a prima facie

case for the underlying substantive relief sought.” 485 U.S. at 104; see also 502 U.S. at

323. If anything, those cases reinforce our conclusion that the proper standard depends on

the discrete question we must review, not some broader conclusions the BIA could have

but did not, in fact, draw.

None of this is novel or controversial. We have repeatedly held across immigration

decisions—yes, even where the BIA had discretion to ultimately withhold relief—that “we

review legal questions de novo” and factual decisions for “substantial evidence.” Diaz de

Gomez v. Wilkinson, 987 F.3d 359, 363 (4th Cir. 2021) (asylum); see also, e.g., Gonzalez

Galvan v. Garland, 6 F.4th 552, 561 (4th Cir. 2021) (cancellation of removal); Gonzalez

v. Garland, 16 F.4th 131, 145 (4th Cir. 2021) (motions to remand). That makes good sense:

A self-contained factual finding is either supported by the record or not; a legal conclusion

is either right or wrong. And that is why the abuse-of-discretion standard itself directs

courts to reverse where an agency “distorts” the record or acts “contrary to law.”

Lawrence, 826 F.3d at 203 (cleaned up) (citations omitted).

Unsurprisingly, our sister circuits likewise parse out the predicate questions that

form the building blocks for BIA decisions. The Third and the Fifth Circuits have both

recently confirmed that although they “appl[y] a highly deferential abuse-of-discretion

standard” to the BIA’s day-end “denial of a motion to reopen,” as part of that analysis, they

“review[ ] legal conclusions de novo and factual findings for substantial evidence.”

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Guerrero-Lasprilla v. Barr, 822 F. App’x 254, 257 (5th Cir. 2020) (asking whether the

BIA “err[ed]” in holding the noncitizen could have filed earlier); see Darby v. U.S. Att’y

Gen., 1 F.4th 151, 159 (3d Cir. 2021) (setting forth the same standard); Liang v. U.S. Att’y

Gen., 15 F.4th 623, 626–30 (3d Cir. 2021) (Jordan and Ambro, JJ., concurring) (clarifying

that the court applied de novo review to the specific question that needed resolving—

whether the maltreatment a noncitizen alleged amounted to past persecution—even where

the BIA’s denial of asylum was discretionary overall). The Sixth Circuit offers more of

the same. In Singh v. Rosen, for example, the court acknowledged Congress left

cancellation of removal to agency discretion but reasoned that the underlying question of

whether removal would pose “exceptional and extremely unusual hardship” to a

noncitizen’s family involves “applying the law to a set of facts” and so requires de novo

review when the court “expound[s] on the law.” 984 F.3d 1142, 1152–54 (6th Cir. 2021)

(quoting U.S. Bank, 138 S. Ct. at 967), reh’g denied (Feb. 11, 2021).

We see no reasoned principle by which to single out BIA denials to reopen or

reconsider from scores of other discretionary agency decisions. See Abudu, 485 U.S. at

105 (observing that the BIA has discretion to deny relief in swaths of cases, including

“asylum, suspension of deportation, and adjustment of status”). Consequently, we worry

that applying abuse of discretion indiscriminately to all subsidiary questions here would

reverberate across and likely jeopardize decades of that settled jurisprudence. We decline

to do so and instead confirm the staple principle that appellate courts must match the

standard of review to the specific rationale the BIA gave for its decision.

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That part was straightforward. The harder question is how exactly to characterize

BIA tolling determinations. In the past, we have given conflicting answers to this question.

In some cases, “where the relevant facts [were] undisputed and the district court denied

equitable tolling as a matter of law, we review[ed] the district court’s decision de novo.”

Rouse v. Lee, 339 F.3d 238, 248 (4th Cir. 2003) (en banc). But in “other circumstances,”

we suggested “abuse of discretion” may be more appropriate. Id. Rouse itself applied

abuse of discretion to the district court’s determination that, “accepting all of the facts

Rouse pled about his health to be true, his medical condition did not amount to an

extraordinary circumstance beyond his control that prevented him from filing.” Id. at 248

& n.10. But if Rouse was meant to signal some broader shift to a more deferential standard,

our follow-on cases have not embraced it. While they continue to dutifully recite Rouse’s

mantra that our Court “typically” reviews “equitable tolling arguments only for abuse of

discretion,” they go on to consider anew whether the “facts demonstrate a failure to bring

a timely claim.” Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir. 2014) (cleaned up) (citing

Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003)); accord Ott v. Md. Dep’t of Pub.

Safety & Corr. Servs., 909 F.3d 655, 658 (4th Cir. 2018); Warfaa v. Ali, 1 F.4th 289, 293

(4th Cir. 2021). That later approach seems right to us.

Consider first Guerrero-Lasprilla. The Court, as noted above, expressly reserved

the question of the “proper standard” of review. 140 S. Ct. at 1069. But it prescribed that

the answer must “turn on practical considerations, such as whether the question primarily

requires courts to expound on the law . . . or rather immerses courts in case-specific factual

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issues,” because diligence for equitable-tolling purposes presents a “mixed question of law

and fact.” Id. (cleaned up) (quoting U.S. Bank, 138 S. Ct. at 966–67). What the Court

squarely did not contemplate was putting equitable tolling to agency discretion. See Singh,

984 F.3d at 1150, 1154 (reading Guerrero-Lasprilla as setting to one side “mixed

question[s] about whether the facts found by the immigration judge [satisfy] the legal test,”

where courts must choose between de novo and some version of substantial-evidence

review, and to the other side “discretionary question[s],” which call for the abuse-of-

discretion standard); Mejia-Espinoza v. U.S. Att’y Gen., 846 F. App’x 140, 143 n.5 (3d Cir.

2021) (distinguishing “a mixed question of law and fact” considered in Guerrero-Lasprilla

from a “discretionary determination” (citation omitted)); cf. In re EuroGas, Inc., 755 F.

App’x 825, 831 (10th Cir. 2019) (legal, factual, mixed, and discretionary decisions pose

“distinct” questions and require courts to “apply[ ] the appropriate standard of review to

each”).

Consider also what courts (and agencies) mean when they speak of diligence for

equitable-tolling purposes. They do not contemplate diligence in “general[ ],” quotidian

terms but prescribe a “precise and elevated standard” an applicant must satisfy. Gonzalez

Galvan, 6 F.4th at 560. The applicant must demonstrate, based on the totality of the

circumstances, that he made a “reasonable” effort to pursue his claims in the face of

extraordinary obstacles standing in his way. Holland v. Florida, 560 U.S. 631, 653 (2010).

And if the applicant meets that standard, we are told he is “entitled to equitable tolling.”

Id. at 649 (emphasis added) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see

also, e.g., Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016).

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That simply does not look like a determination left to agency discretion. See 8 U.S.C.

§ 1231(b)(2)(C) (the agency “may disregard” a noncitizen’s country of choice if “the

Attorney General decides that removing the alien to the country is prejudicial to the United

States”); id. § 1158(a)(1) (any noncitizen present in the United States “may apply for

asylum”); id. § 1255 (“the Attorney General may adjust the status of the alien” under

certain conditions); cf. 17 U.S.C. § 505 (“the court in its discretion may allow the recovery

of full costs”); Gall v. United States, 552 U.S. 38, 46 (2007) (because Sentencing

Guidelines are no longer mandatory, the district court has discretion in how to apply them).

A noncitizen’s entitlement to equitable tolling, in short, implicates a “matter of right,” not

“grace.” St. Cyr, 533 U.S. at 308.

When it comes to reviewing the BIA’s equitable-tolling rulings, then, our only

choice should be between de novo and substantial evidence, depending on whether we

think our review “entails primarily legal or factual work.” U.S. Bank, 138 S. Ct. at 967. 7

Those inquiries are not always “easy to separate,” Wainwright v. Witt, 469 U.S. 412, 429

(1985), but, on balance, we think de novo is a better fit. We begin with how U.S. Bank

itself characterizes legal decisionmaking: as “elaborating on a broad legal standard” and

7 Although Pennington, Maypa, Ott, and Warfaa all declared this Court should analyze equitable tolling de novo because the question requires us to map facts onto a legal standard, such general pronouncements appear wanting after U.S. Bank—all mixed questions involve applying “a legal test” to “the historical facts.” U.S. Bank, 138 S. Ct. at 966. We must instead decide whether equitable tolling (and diligence in particular) calls for primarily legal or factual determinations. Id. at 967. Because we have “never squarely addressed th[at] issue”—not even in Ott or Warfaa, decided post-U.S. Bank—we do so here. Brecht v. Abrahamson, 507 U.S. 619, 630–31 (1993); see also Fernandez v. Keisler, 502 F.3d 337, 343 n.2 (4th Cir. 2007).

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“developing auxiliary legal principles of use in other cases.” 138 S. Ct. at 967. Because

equitable tolling was originally a concept fashioned by judges, see, e.g., Am. Pipe &

Constr. Co. v. Utah, 414 U.S. 538, 558 (1974), our cases continue to “provide legal

interpretations” of the doctrine. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1200

(2021) (concluding that copyright’s fair-use questions should be reviewed de novo after

U.S. Bank because the Court’s interpretations of that judge-made doctrine “still provide . . .

general guidance for future cases”). In this very case, the parties quarrel over when we

should start the diligence clock; they question the scope of the obligation a noncitizen’s

family has to research the law or hire a lawyer on the noncitizen’s behalf; they argue over

what level of vigilance we can fairly expect from a noncitizen who has lived in another

country for over a decade before the United States finally changed the law. “This type of

work is legal work.” Id. (“developing auxiliary legal principles” includes deciding that

“the scope of fair use is narrower with respect to unpublished works” and that “wholesale

copying aimed at creating a market substitute is presumptively unfair” (citations omitted)).

And to the extent our work involves incidental factual determinations, we are asked

to do no more here than in any other case that tasks courts with determining whether a

person acted reasonably in view of the totality of the circumstances—decisions courts have

historically made de novo. E.g., United States v. Arvizu, 534 U.S. 266, 275 (2002) (whether

police had “reasonable suspicion” to effectuate a stop); Elder v. Holloway, 510 U.S. 510,

513, 516 (1994) (whether an officer’s conduct “violate[s] clearly established statutory or

constitutional rights of which a reasonable person would have known” (citation omitted));

Johnson v. Am. United Life Ins. Co., 716 F.3d 813, 823 (4th Cir. 2013) (“whether a

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reasonable person, with background and characteristics similar to the insured, would have

viewed the injury as highly likely to occur as a result of the insured’s intentional conduct”

(citation omitted)); Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 411 (4th Cir.

2013) (whether “a reasonable person” would find supervisor behavior “objectively

offensive” so as to amount to battery); United States v. Jones, 678 F.3d 293, 299 (4th Cir.

2012) (whether “all the circumstances surrounding [a police] encounter” “would have

communicated to a reasonable person that the person was not free” to leave (citation

omitted)); Foretich v. Cap. Cities/ABC, Inc., 37 F.3d 1541, 1551 (4th Cir. 1994) (“whether

a defamation plaintiff is a limited-purpose public figure” (citations omitted)).

Also relevant is that the decision to deny equitable tolling was made by the BIA,

not the IJ. U.S. Bank explained that the appropriate standard of review “reflects which

‘judicial actor is better positioned’ to make the decision.” 138 S. Ct. at 967 (quoting Miller

v. Fenton, 474 U.S. 104, 114 (1985)); see also, e.g., Buford v. United States, 532 U.S. 59,

64 (2001) (rejecting de novo review where “the district court is in a better position than the

appellate court to decide whether a particular set of individual circumstances” meets the

legal test); Wainwright, 469 U.S. at 429 (juror bias presents a factual issue because the

court’s “predominant function in” resolving it “involves credibility findings whose basis

cannot be easily discerned from an appellate record”). The BIA held no hearing, took no

evidence, made no credibility determinations below. It merely read Williams’s motion and

the written declarations attached. We can conduct this analysis just as well.

Indeed, even where the BIA reviews an IJ’s equitable-tolling determination, it does

so “de novo,” In re Lugo-Resendez, 2017 WL 8787197, at *3 (BIA 2017), in keeping with

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the agency’s “analytical approach to deciding cases,” which “focuses on the qualities of

adjudication that best suit the different decisionmakers,” Board of Immigration Appeals:

Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,890 (Aug. 26,

2002). 8 We see no reason to abandon that approach at the courts of appeals, to

conceptualize as factual the same question the BIA deemed legal below.

We are finally comforted by the fact that the Supreme Court and other circuits

appear to approach equitable tolling as a matter of law. In Holland, the Court held the

district court’s “conclusion was incorrect” because the facts before it readily established

reasonable diligence. 560 U.S. at 653. Nowhere did the Court refer—much less defer—

to the lower courts’ rationales. See id. The Court simply determined for itself that Holland

acted with diligence. See id. at 671 (Scalia, J., dissenting) (lamenting the Court’s reach

because the court of appeals had no opportunity to pass on the question). More recently,

Menominee Indian Tribe denied equitable tolling because the “Tribe offere[d] no

circumstances” that were “both extraordinary and beyond its control.” 577 U.S. at 257

8 Following Lugo-Resendez, we would likely reverse the BIA even under the abuse-of- discretion standard. There, the BIA held “equitable tolling of the reopening deadline [was] appropriate” even though a noncitizen did not discover a change in the law until two years after the Supreme Court promulgated its decision (as compared to Williams’s one) and then waited an additional two months to ask to reopen after his discovery (again, as compared to Williams’s one). 2017 WL 8787197, at *3. And still the BIA excused the delay— thirteen years overall—because the noncitizen “was unaware that the law affecting his removability could change,” “no one in his family has attended law school or become an attorney, he was unable to follow legal developments in the United States” after he was removed to Mexico, and he could not “afford to regularly consult with an attorney.” Id. Without explanation, the BIA reached the opposite result here. That falls far short of the kind of “reasoned decisionmaking” an agency must engage in. Judulang v. Holder, 565 U.S. 42, 53 (2011).

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(emphasis omitted). Once again, the Court said nothing about deferring to a lower court’s

determination on this question. See id. Several circuit courts have followed that same path.

See Zhao v. INS, 452 F.3d 154, 159 (2d Cir. 2006) (holding “the BIA erred” in determining

the motion to reopen time-barred); Fernandez Taveras v. U.S. Att’y Gen., 842 F. App’x

762, 763 n.1 (3d Cir. 2021) (applying “the equitable tolling standard ‘to undisputed or

established facts’” “de novo” (quoting Nkomo v. U.S. Att’y Gen., 986 F.3d 268, 272 (3d

Cir. 2021))), cert. denied sub nom. Taveras v. Garland, 142 S. Ct. 771 (2022); Zaldivar

Anzardo v. U.S. Att’y Gen., 835 F. App’x 422, 426 (11th Cir. 2020) (characterizing

“equitable tolling” as a “question[ ] of law”); Guerrero-Lasprilla, 822 F. App’x at 256

(concluding the “BIA did not err” in denying equitable tolling because “an uncertain legal

landscape” did not constitute “an extraordinary circumstance” (quoting Menominee Indian

Tribe, 557 U.S. at 258)). And we ourselves have required de novo review for analogous

questions, including whether maltreatment an immigrant suffers amounts to torture,

whether a government’s response to that torture constitutes acquiescence, whether an

immigrant will experience extreme hardship upon being deported, and whether an

immigrant entered into a marriage in good faith. See Cruz-Quintanilla, 914 F.3d at 890;

Upatcha v. Sessions, 849 F.3d 181, 186 (4th Cir. 2017); Gonzales Galvan, 6 F.4th at 561.

Those questions appear to us indistinguishable in any material respect from the BIA’s

equitable-tolling determination below. 9

9 The government protests Upatcha and Cruz-Quintanilla concerned the standard of review the BIA applies to the IJ’s decisions, not the standard by which appellate courts review the BIA. But as we already explained, we find it difficult to understand why the same question would be legal before the BIA but factual or discretionary before the courts of appeals.

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We thus hold that the BIA’s decision to deny equitable tolling presents a mixed

question we must review de novo. And as always, we review the lone subsidiary, factual

issue—whether Williams’s attorney represented him pro bono—for substantial evidence.

IV.

The last preliminary question we must decide is whether the statutory time and

number limitations on motions for reconsideration can be tolled at all. In Holland, the

Court held that “AEDPA’s statutory limitations period can be tolled for equitable reasons.”

560 U.S. at 645. Without setting forth any rigid factors, the Court observed that the

provision “is not jurisdictional,” it “does not contain language that is ‘unusually

emphatic,’” does not provide a “particularly long” limitations period, and that equitable

tolling would not “undermine[ ] AEDPA’s basic purposes.” Id. at 645, 647–48 (citations

omitted). Those are equally true of § 1229a(c)(6). Nothing in the INA “set[s] forth ‘an

inflexible rule requiring dismissal whenever’ its ‘clock has run.’” Id. at 645 (citation

omitted). The language is not emphatic—§ 1229a(c)(6) states just once that noncitizens

must file within thirty days of the final removal order. The time to file is much shorter

than AEDPA’s one-year period. And, as this very case illustrates, there are good reasons

to equitably toll both the time and number limitations to accommodate changes in the U.S.

immigration law that would allow noncitizens to reunite with their families.

Even more to the point, this Court has already permitted the BIA to equitably toll

the ninety-day deadline to file a motion to reopen. See Kuusk v. Holder, 732 F.3d 302, 305

(4th Cir. 2013). The statutory text addressing motions to reopen and reconsider is

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functionally identical. Compare 8 U.S.C. § 1229a(c)(6)(B) (the motion to reconsider

“must be filed within 30 days of the date of entry of a final administrative order of

removal”), with id. § 1229a(c)(7)(C)(i) (“the motion to reopen shall be filed within 90 days

of the date of entry of a final administrative order of removal”). And the government agrees

we should treat them the same. See Resp. Br. 17 n.2. So do other circuits. See Lona v.

Barr, 958 F.3d 1225, 1230 (9th Cir. 2020); Gonzales-Alarcon v. Macias, 884 F.3d 1266,

1270 (10th Cir. 2018); see also Lugo-Resendez v. Lynch, 831 F.3d 337, 343 (5th Cir. 2016)

(tolling numeric limitations); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) (same);

Zhao, 452 F.3d at 159–60 (same). We join in this understanding and hold the statutory

time and number limitations for motions to reconsider subject to equitable tolling.

With those background principles in mind, we turn, finally, to the merits of

Williams’s claim. Noncitizens seeking equitable tolling must demonstrate they “ha[ve]

been pursuing [their] rights diligently” but “extraordinary circumstances beyond [their]

control made it impossible to file within the statutory deadline.” Lawrence, 826 F.3d at

204 (citations omitted). That is a high bar, to be sure, making tolling available “‘only

sparingly,’ not in ‘a garden variety claim of excusable neglect.’” Kuusk, 732 F.3d at 306

(quoting Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990)). But it is not

“insurmountable.” Warfaa, 1 F.4th at 294. A noncitizen needs to act only with

“reasonable,” “not maximum feasible diligence.” Holland, 560 U.S. at 653 (citations

omitted). We readily conclude that Williams has done just that.

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As our starting point, we consider the proper point in time from which to measure

Williams’s diligence. In 2010, the Supreme Court held that “violent force” means “force

capable of causing physical pain or injury.” Johnson, 559 U.S. at 139–40. Applying

Johnson that same year, the BIA ruled that a Va. Code Ann. § 18.2-57 conviction no longer

qualified as an aggravated felony under § 16(a) because it comprised the “slightest

touching of another.” Velasquez, 25 I. & N. Dec. at 281 (citation omitted). But the agency

had found Williams committed an aggravated felony under both §§ 16(a) and (b). So it

was not until 2018, when the Court struck § 16(b) as unconstitutionally vague, that

Williams became entitled to relief. See Dimaya, 138 S. Ct. at 1223. In denying equitable

tolling below, however, the BIA alluded multiple times to Williams’s obligation to

“regularly [seek] out pro bono counsel.” A.R. 5; see also id. (faulting Williams for failing

to seek “assistance from pro bono counsel prior to, or soon after” Dimaya (emphasis

added)). The BIA thus appeared to base its diligence ruling at least in part on Williams’s

conduct before 2018. With that we cannot agree—before 2018, Williams had no “rights”

to pursue. See Holland, 560 U.S. at 649 (clarifying that equitable tolling asks whether a

petitioner “has been pursuing his rights diligently” (emphasis added) (citation omitted)).

The government protests we cannot avoid Lawrence, which observed that a

noncitizen must “demonstrate that he acted with due diligence during the entire period he

[seeks] to toll.” 826 F.3d at 205 (cleaned up) (discussing Rashid v. Mukasey, 533 F.3d 127

(2d Cir. 2008)). But the government places more weight on that quotation than it can bear:

The same paragraph that cited Rashid considered only whether Lawrence showed diligence

“during the two years after” the Supreme Court changed immigration law and “the year-

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and-a-half after he contacted” the lawyer about that legal change. Id. at 204–05. Nowhere

did we discuss Lawrence’s conduct before the Supreme Court’s ruling—that is, before

Lawrence became entitled to cancellation of removal—or intimate we would do so in future

cases.

Unscrupulous reliance on Rashid is all the more unconvincing because Rashid did

not deal with a change in the law but with ineffective assistance of counsel. That type of

claim lends itself to a different analysis: Although in some cases, it will be truly beyond a

noncitizen’s ken to understand counsel’s inadequacy, in most circumstances, courts are

right to ask whether a noncitizen at least “follow[ed] up with his attorney after the DHS

decision” or tried to “obtain new counsel” because doing so might have helped uncover the

inadequacy early on. Rashid, 533 F.3d at 133. Yet visiting additional attorneys before

2018 would not have helped Williams. In 2006, he argued three times to the IJ and the

BIA that his conviction should not be classified as an aggravated felony because “use of

force is not an element” of Va. Code Ann. § 18.2-57. A.R. 320 (original proceedings before

the IJ); see also id. at 97 (defending the IJ’s ruling that the Virginia statute “did not comport

with the requirements under federal law defining a crime of violence” on government’s

appeal to the BIA); id. at 80 (reasoning that “use of force must be an element of the crime

and the Virginia Statute text is unambiguous that force is not listed as an element” on first

motion for reconsideration to the BIA). That is the exact argument the Supreme Court

would finally accept in 2010. But in 2006, the BIA turned Williams down twice. As did

this Court. See Williams, 234 F. App’x at 114 (denying his petition).

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In the end, even Rashid acknowledged the diligence inquiry centers on when a

noncitizen “knew or should have known” of his rights. 533 F.3d at 132. That is a

functional test. We do not ask, in a vacuum, whether Williams should have contacted X

number of attorneys over the twelve years he spent in Jamaica, but whether he “reasonably

should have” discovered Dimaya before 2019. Zhao, 452 F.3d at 158, 159; accord

Holland, 560 U.S. at 649. Taking stock of the totality of the circumstances Williams

presented, the answer to that question is no.

The Board opined Williams could have discovered his eligibility sooner had he

“regularly” sought the advice of a pro bono attorney. A.R. 5. Because Williams learned

of Dimaya only a year after the Court issued the decision, the Board must have required

Williams to consult with an attorney more “regularly” than that. But recall that, even when

Williams lived in the United States, he had trouble securing a pro bono attorney—and the

IJ recognized as much, granting him four requests for continuance. And Person ultimately

felt compelled to spend the little money she had to pay an attorney—we agree here with

Williams that substantial evidence does not support the BIA’s conclusion that the attorney

acted pro bono, see id. at 9 (showing she checked “no” next to acting “pro bono” when

entering her appearance). Expecting Williams to have secured a pro bono attorney so often

as to discover Dimaya before 2019 is not reasonable. Nor is expecting him to “maintain[ ]

contact with” the attorney who represented him in 2006—an alternative the BIA advised.

Id. at 5. That attorney ended his representation in 2007, before Williams could even

petition this Court to review the BIA’s original removal decision. Williams had no reason

to think he would renew his representation after Williams was deported.

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Accepting the difficulties of finding pro bono representation, the government

suggests Williams could have hired an attorney. But again, by the time Dimaya came out

in 2018, Williams had been in Jamaica for eleven years. So, to successfully discover

Dimaya sooner than 2019, Williams would had to have hired an attorney more than once

per year throughout those years. Yet Williams makes only a few dollars a week after room

and board. He has no access to the Internet. The government’s suggestion simply cannot

be squared with the realities of Williams’s life. And not even the BIA demanded that.

The BIA did, however, fault Williams’s wife for failing to “stay informed on the

status of the law,” “even considering [the] family’s low income.” Id. For one, the BIA

cited no law (and we find none) that would allow us to impute her conduct to Williams.

For another, the BIA misunderstood the nature of the relationship between them. The pair

has two children together, ages twenty and seventeen, but Person has two other children,

ages sixteen and fourteen, who are “stepchildren” to Williams. Id. at 24, 27. The couple

thus did not have the continuous relationship the BIA presumed. And in any event, Person

is not an attorney. She does not know how to conduct legal research. And she makes only

$20,000 per year, which goes to support her four children, to manage her lung disease, and

to make occasional trips to Jamaica so that Williams’s children can see their father. We

cannot agree it was reasonable for Person to stay abreast of immigration law for eleven

years—and do so with such frequency that she would have discovered Dimaya before

2019.

The government finally asks us not to consider the meeting with the attorney in 2019

at all, calling it a fortuitous happenstance. Person, the government suggests, retained the

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attorney because she thought Williams might be able to return to the United States now

that they were married rather than as part of some periodic check on the status of

immigration law. But a noncitizen can certainly hire an attorney to both check on how his

legal status has changed following a marriage and how the legal landscape itself has

changed. We decline to trample on attorney-client privilege by scrutinizing what was said

in the meeting and what possible grounds for cancellation of removal Person advanced.

Nor do we find anything nefarious in that Person sought out counsel after her lungs

deteriorated. Finally obtaining “good legal advice” upon a change in personal

circumstances “does not mean [Williams] was dilatory for failing to obtain such advice

sooner”; “there is a difference between diligence and desperation.” Gordillo v. Holder,

640 F.3d 700, 706 (6th Cir. 2011).

On top of that, Williams has been exceedingly diligent after he learned of Dimaya.

His attorney filed for reconsideration just one month after receiving Williams’s records

from the DHS under the Freedom of Information Act. Even though diligence after

discovery is not determinative, as Williams would have us hold, it still demonstrates

Williams did not sleep on his rights. Compare Sun v. Mukasey, 555 F.3d 802, 806 (9th

Cir. 2009) (granting petition largely because the applicant “acted with admirable diligence

after retaining new counsel,” even where years went by after initial ineffective assistance

of counsel), with Wang v. Bd. of Immigr. Appeals, 508 F.3d 710, 715 (2d Cir. 2007)

(faulting an immigrant for waiting several months to file a motion to reconsider after he

found out about a change in the law). At bottom, Williams’s rights hinged on complicated,

multistep decisions handed down by the Supreme Court, not “garden variety” attorney

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negligence Williams could have easily discovered on his own. See Holland, 560 U.S. at

652 (citation omitted). Still, he discovered his rights just one year after the Court

enunciated them. Giving “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,” Lugo-Resendez, 831 F.3d at 345, we hold

Williams could not “reasonably have been expected to have filed earlier.” Pervaiz v.

Gonzales, 405 F.3d 488, 490 (7th Cir. 2005) (Posner, J.); accord Sun, 555 F.3d at 806 (two-

year delay did not evidence “lack of due diligence” under the circumstances). We

accordingly vacate the BIA’s diligence ruling.

* * *

Because the BIA determined Williams not diligent, it did not consider whether

Johnson and Dimaya presented an extraordinary circumstance that would warrant equitable

tolling. In previous cases, the BIA has held that Supreme Court decisions that significantly

change the legal landscape meet this bar. See Lugo-Resendez, 2017 WL 8787197, at *1,

*3 (discussing Lopez v. Gonzalez, 549 U.S. 47 (2006), which held that the noncitizen’s

drug offense no longer qualified as an aggravated felony); In re G-D-, 22 I. & N. Dec.

1132, 1135 (BIA 1999) (characterizing “a fundamental change in the principles of the law”

as an “exceptional” circumstance warranting sua sponte reopening); see also Lona, 958

F.3d at 1230 (“The BIA may equitably toll this statutory filing deadline, including in cases

where the petitioner seeks excusal from untimeliness based on a change in the law that

invalidates the original basis for removal.”). Still, the “ordinary” rule demands we remand

to the BIA to decide this issue in the first instance, INS v. Orlando Ventura, 537 U.S. 12,

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18 (2002), and the parties do not oppose that course. We thus remand to the BIA to decide

whether the legal changes in Johnson and Dimaya constitute extraordinary circumstances

and whether, on the whole, Williams’s request to reconsider merits a favorable exercise of

discretion. But we caution, as other courts have done before us, that denial of equitable

tolling here would create a “particularly serious” concern, as it would preclude Williams

from seeking cancellation of removal “when it is evident that the basis for his removal is

now invalid.” Lugo-Resendez, 831 F.3d at 345. 10

VI.

For the foregoing reasons, we GRANT the petition, VACATE the judgment of the

BIA, and REMAND the case for further proceedings consistent with this opinion.

10 In alternative, Williams asks that we hold the BIA legally erred in declining to reconsider sua sponte under 8 C.F.R. § 1003.2(a). The government objects we have no jurisdiction to review committed to agency discretion by law because “there are no meaningful standards for courts to apply in review.” Mosere v. Mukasey, 552 F.3d 397, 401 (4th Cir. 2009). But whether Mosere applies to legal errors “underlying” the BIA’s exercise of “its sua sponte power” is a question we expressly left open in Lawrence, 826 F.3d at 207 n.5, in 2016. Because we agree with Williams on equitable tolling, we do not decide this question. We note, however, that at least seven of our sister circuits recognize jurisdiction to review such legal errors. See Thompson v. Barr, 959 F.3d 476, 483 (1st Cir. 2020); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); Pllumi v. U.S. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011); Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 355 (5th Cir. 2018); Fuller v. Whitaker, 914 F.3d 514, 519 (7th Cir. 2019); Bonilla v. Lynch, 840 F.3d 575, 586–88 (9th Cir. 2016); Reyes-Vargas v. Barr, 958 F.3d 1295, 1300 (10th Cir. 2020).

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RUSHING, Circuit Judge, dissenting:

The majority tasks itself with deciding three threshold questions of law in this case:

(1) whether the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(C) applies to a petition seeking

review of a Board of Immigration Appeals decision denying reconsideration of a prior

removal order; (2) under what standard we review a Board decision denying equitable

tolling of the limits on motions to reconsider for lack of diligence; and (3) “whether the

statutory deadline for a motion to reconsider can be equitably tolled at all.” Supra, at 8.

Only the last question is actually open in our Circuit. Prior decisions have conclusively

answered the jurisdictional question and set the standard of review. Yet the majority

purports to resolve these questions anew in contradiction of our precedent as well as that

of the Supreme Court and our sister courts of appeals. I respectfully dissent.

By way of background, federal law allows a noncitizen to file one motion to

reconsider within 30 days of a final order of removal. 8 U.S.C. § 1229a(c)(6). Petitioner

filed his second motion to reconsider 12 years and 10 months after the Board issued his

final order of removal. He asked the Board to equitably toll the time and number

limitations, which required him to show that he had been diligently pursuing his rights.

Petitioner admitted that he did “not do anything for the previous twelve years or so” since

he was removed. A.R. 25. But he stated that his wife contacted an attorney once, in April

2019. As a result, Petitioner learned that his assault conviction no longer qualified as an

aggravated felony due to intervening Board and judicial decisions and that he might be

eligible to apply for cancellation of removal. After this discovery, Petitioner claimed, he

diligently sought relief. The Board denied Petitioner’s request for equitable tolling and so

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necessarily denied his motion to reconsider as time- and number-barred. It also denied sua

sponte reopening. See 8 C.F.R. § 1003.2(a) (2020).

Petitioner asks us to vacate the Board’s decisions based on our own reassessment of

his diligence, including what he claims is a factual misstatement by the Board. But

Petitioner recognizes that 8 U.S.C. § 1252(a)(2)(C) strips us of jurisdiction to review

questions of fact because, in addition to his assault conviction, he was also removable for

having committed multiple “crimes involving moral turpitude,” 8 U.S.C.

§ 1227(a)(2)(A)(ii). To avoid this jurisdictional limitation, Petitioner urges us to reverse

the 2006 moral turpitude ruling against him, despite his failure to exhaust his challenge to

that ruling before the Board. Acknowledging the “perhaps insurmountable hurdle” erected

by Petitioner’s failure to exhaust, the majority declines to resolve his argument. Supra, at

17 n.6.

Instead, the majority issues a sweeping ruling neither advanced nor briefed by either

party: It holds that Section 1252(a)(2)(C)’s jurisdictional bar does not apply to petitions

for review of the Board’s denial of reconsideration or reopening because those decisions

are not “final order[s] of removal.” Undoubtedly, no party made this argument because

our Court has already held the opposite, as have all the other courts of appeals to consider

the question. By changing course, the majority today creates a lopsided 1-to-10 circuit

split.

The majority then reviews the Board’s equitable tolling determination de novo. But

our cases have consistently reviewed the Board’s equitable tolling decisions—including its

due diligence assessments—under a more deferential abuse-of-discretion standard.

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Applying the correct standard here, the Board did not abuse its discretion in denying

reconsideration based on the arguments and evidence Petitioner presented to the Board.

And, as we have also held in previous decisions, we lack jurisdiction to review the Board’s

denial of sua sponte reopening. Accordingly, I would deny the petition for review in part

and dismiss in part.

The Immigration and Nationality Act (INA) provides for judicial review of “a final

order of removal” against a noncitizen. 8 U.S.C. § 1252(a). Section 1252(a)(2)(C),

however, forbids any court from reviewing “any final order of removal against an alien

who is removable by reason of having committed” certain crimes, including aggravated

felonies and crimes involving moral turpitude. Subparagraph (D) explains that courts

nevertheless retain jurisdiction to consider “constitutional claims or questions of law” in

such instances. Id. at § 1252(a)(2)(D). Practically speaking, then, subparagraph (C)

forbids “appeals of factual determinations.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062,

1073 (2020).

We have jurisdiction to review so-called “mixed questions” of law and fact. Id. at

1069. Everyone agrees that applying the legal standard for equitable tolling to undisputed

or established facts is a such a question. And everyone agrees that subparagraph (C) denies

us jurisdiction to review questions of fact in a petition from the Board’s final order of

removal against a criminal noncitizen. But the majority contends that subparagraph (C)

does not apply to petitions from the Board’s decision declining to reconsider its removal

order against the same criminal noncitizen because the decision denying reconsideration is

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not itself a “final order of removal” within the meaning of the INA. Precedent from all

corners refutes that conclusion. And even if it were an open question, the majority’s

analysis is incorrect.

It is well settled that Board decisions denying reopening or reconsideration are

treated as final orders of removal in Section 1252(a), including for purposes of

subparagraph (C)’s jurisdictional bar. The Supreme Court’s decisions compel this

conclusion. Our Court has so held. And our sister circuits have “uniformly” agreed.

Musangu v. Holder, 517 Fed. App. 166, 168 (4th Cir. 2013).

The Supreme Court has long held that “jurisdiction to review ‘final order[s] of

removal’” in Section 1252(a)(1) “encompasses review of decisions refusing to reopen or

reconsider such orders.” Reyes Mata v. Lynch, 576 U.S. 143, 147 (2015). When the Board

issues a deportation order and then later denies a motion to reconsider that order, “two

separate final orders” exist that a court of appeals has jurisdiction to review. Stone v. INS,

514 U.S. 386, 395 (1995). Accordingly, “this Court and our sister circuits have

traditionally interpreted ‘final order of deportation’ . . . to include a BIA order denying a

motion to reopen” or reconsider. Stewart v. INS, 181 F.3d 587, 593 (4th Cir. 1999).

This understanding of “final order of removal” in Section 1252(a)’s jurisdictional

grant applies equally to the same phrase in subparagraph (C)’s jurisdictional restriction.

Indeed, that is the entire premise of the Supreme Court’s decision in Guerrero-Lasprilla v.

Barr, 140 S. Ct. 1062 (2020). The petitioners in that case were removed from the country

after committing drug crimes specified in subparagraph (C). After the time for seeking

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reconsideration or reopening had passed, the petitioners asked the Board to reopen their

removal proceedings because intervening judicial and Board decisions had rendered them

eligible for discretionary relief. The Board denied the petitioners’ requests for equitable

tolling, concluding that they had failed to demonstrate due diligence. Id. at 1067. As the

Supreme Court explained, “in this kind of immigration case (involving aliens who are

removable for having committed certain crimes), a court of appeals may consider only

‘constitutional claims or questions of law.’” Id. at 1068 (quoting 8 U.S.C.

§ 1252(a)(2)(D)). In other words, subparagraph (C) prevented review of factual questions

even though the petitioners sought review of the denial of their motions to reopen instead

of their original removal orders. As the Court confirmed, in those cases, the statute “still

forbid[s] appeals of factual determinations.” Id. at 1073.

We have reached the same conclusion expressly in a similar case. Much like this

case, the petitioner in Lawrence v. Lynch moved to reopen his removal proceedings out of

time in order to seek cancellation of removal after an intervening judicial decision. 826

F.3d 198, 202 (4th Cir. 2016). The Board denied equitable tolling, concluding that the

petitioner failed to show due diligence. Id. In assessing our jurisdiction over the petition,

we noted that—just as in this case—even if the petitioner’s crimes no longer constituted

aggravated felonies, he remained removable based on his crimes involving moral turpitude.

Id. at 203. “The jurisdictional bar of § 1252(a)(2)(C),” we explained, “therefore precludes

our exercising jurisdiction over anything but ‘constitutional claims or questions of law.’”

Id. (quoting 8 U.S.C. § 1252(a)(2)(D)). It made no difference that the petition sought

review of the Board’s denial of reopening based on equitable tolling rather than the Board’s

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original removal order from years earlier. Subparagraph (C) applied because the petitioner

was “removable by reason of having committed” crimes involving moral turpitude. 8

U.S.C. § 1252(a)(2)(C). That decision squarely applies here.

The majority ignores this aspect of Lawrence and instead claims support from a

decision interpreting a different statutory provision. In Obioha v. Gonzales, 431 F.3d 400,

406 (4th Cir. 2005), we interpreted Section 1252(a)(2)(B)(i) “to preclude review only

where the basis for the [Board’s] discretionary decision addresses the merits of an

enumerated provision” in that statute. But see Patel v. Garland, 142 S. Ct. 1614, 1622

(2022) (explaining this provision encompasses judgments “of whatever kind,” “not just

discretionary judgments,” and any judgment “relating to the granting of relief”). The

majority extends a version of that reasoning to subparagraph (C), holding that we have

jurisdiction to consider “a factual challenge unrelated to the merits of the final removal

order.” Supra, at 17 (internal quotation marks omitted). But this analysis begins from the

erroneous premise that “final order[s] of removal” does not encompass decisions denying

reconsideration, a matter Obioha had “no need to consider.” Rangolan v. Mukasey, 302

Fed. App. 133, 136, 137 n.2 (4th Cir. 2008) (noting that “our decision in the case at hand”—

that subparagraph (C) “necessarily restricts our review of a denial of a criminal alien’s

motion to reopen removal proceedings to constitutional and legal questions”—“does not in

any way conflict with our recent holding in Obioha”). As the Supreme Court has

explained, “[s]ubparagraph (B) bars review of only one facet of the removal process

(consideration of discretionary relief) whereas subparagraph (C) prohibits review of the

entire proceeding (removal based on a criminal offense).” Patel, 142 S. Ct. at 1625–1626.

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The majority’s effort to curtail subparagraph (C) to forbid review only of factual

challenges related to the merits of the original removal order cannot be reconciled with

Lawrence or Guerrero-Lasprilla. In Lawrence, we held that subparagraph (C) precluded

our review of “the Board’s factual determination[s]” regarding “due diligence” made “in

conducting the equitable tolling inquiry.” 826 F.3d at 203 (internal quotation marks

omitted). We could hardly have been clearer that subparagraph (C) includes all factual

challenges, whether related to the original removal order or, as in that case, not related. 1

Likewise in Guerrero-Lasprilla. The petitioners there also sought review of the Board’s

equitable tolling decisions, but the Supreme Court stated that subparagraph (C) prevented

review of factual claims without considering it relevant that facts concerning due diligence

are unrelated to the merits of the original removal order. Guerrero-Lasprilla, 140 S. Ct. at

1067–1068, 1073.

Every other circuit to consider this question has applied subparagraph (C) to

petitions for review of Board decisions denying reconsideration or reopening. See, e.g.,

Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir. 2006); Durant v. INS, 393 F.3d 113, 115–116

(2d Cir. 2004), as amended (Feb. 1, 2005) (Sotomayor, J.); Cruz v. Att’y Gen., 452 F.3d

1 Cucalon v. Barr, 958 F.3d 245 (4th Cir. 2020), on which the majority relies, see supra, at 10–11, also does not support their reformulation. That case concerned whether a certain Virginia crime was an aggravated felony—a legal question that we recognized as falling within subparagraph (D)’s jurisdictional grant. See Cucalon, 958 F.3d at 249. In his motion to reconsider, the petitioner raised additional legal arguments in support of his claim. We agreed with the Board that those new arguments were waived and that, in any event, they would not change our legal conclusion that the Virginia statute was divisible. Id. at 254. We did not at all suggest that we could review the Board’s factual findings on reconsideration because they were “collateral factual matters.” Supra, at 10.

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240, 246–247 (3d Cir. 2006); Assaad v. Ashcroft, 378 F.3d 471, 474–475 (5th Cir. 2004);

Pepaj v. Mukasey, 509 F.3d 725, 726, 728 (6th Cir. 2007); Dave v. Ashcroft, 363 F.3d 649,

652 (7th Cir. 2004); Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008); Sarmadi v. INS,

121 F.3d 1319, 1321–1322 (9th Cir. 1997); Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th

Cir. 2004); Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1261–1262 (11th Cir. 2003). Until

today, our Court has acknowledged, and followed, this uniform line of authority. See

Musangu, 517 Fed. App. at 168 (“Circuit courts have uniformly held that the prohibition

against reviewing final orders of removal when the alien is removable for having been

convicted of an aggravated felony or other criminal offense extends to denial of motions

to reopen.”); Rangolan, 302 Fed. App. at 136–137 (observing that the “courts of appeals

that have considered this jurisdictional issue have reached the identical conclusion” that

subparagraph (C) “restricts our review of a denial of a criminal alien’s motion to reopen

removal proceedings to constitutional and legal questions”).

No other circuit has embraced the majority’s view. None of the decisions the

majority cites from other circuits holds that subparagraph (C) does not apply to petitions

from the denial of reconsideration or reopening or to “collateral” factual questions raised

in those petitions. Supra, at 10, 15–16. In Agonafer v. Sessions, the Ninth Circuit

recognized that subparagraph (C) applied to a petition from the denial of reopening but

discussed two exceptions to the jurisdictional bar: the subparagraph (D) exception for

constitutional claims and questions of law and an exception created by caselaw in that

circuit for “a denial of CAT relief on the merits.” 859 F.3d 1198, 1202 (9th Cir. 2017)

(internal quotation marks omitted). Even further afield, the Fifth Circuit in Diaz v. Sessions

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confronted a constitutional claim of ineffective assistance of counsel and determined that

subparagraph (D) gave it jurisdiction over that claim, including “factual disputes that are

necessary” to review the constitutional claim, but no others. 894 F.3d 222, 227 (5th Cir.

2018).

And in Durant v. INS, the Second Circuit squarely held that “when an alien has been

ordered removed because of a conviction for one of the offenses specified in

§ 1252(a)(2)(C), the jurisdictional bar imposed by this section also applies to an order

denying a motion to reopen removal proceedings.” 393 F.3d at 114. Nothing about that

decision hinged on whether the reasons for the Board’s denial of reopening were related to

the original removal order. To the contrary, the court “held that orders denying motions to

reopen removal proceedings were ‘sufficiently connected’ to final orders of removal that

the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) applied” categorically to orders denying

motions to reopen or reconsider. Sepulveda v. Gonzales, 407 F.3d 59, 64 (2d Cir. 2005)

(Sotomayor, J.) (quoting Durant, 393 F.3d at 115). We are indeed “alone” in holding to

the contrary. Supra, at 15.

Even if the applicability of subparagraph (C)’s jurisdictional bar were an open

question in this Circuit, the answer would be the same. As a reminder, the statute provides

that “no court shall have jurisdiction to review any final order of removal against an alien

who is removable by reason of having committed” certain specified crimes. 8 U.S.C.

§ 1252(a)(2)(C). In the INA, “jurisdiction to review ‘final orders[s] of removal’ . . .

encompasses review of decisions refusing to reopen or reconsider such orders.” Reyes

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Mata, 576 U.S. at 147 (quoting 8 U.S.C. § 1252(a)(1)). As it is for the grant of jurisdiction

over “final order[s] of removal” in Section 1252(a)(1), so it is for the limit on jurisdiction

over “final order[s] of removal” in subparagraph (C). See Guerrero-Lasprilla, 140 S. Ct.

at 1068. “‘[I]t is a normal rule of statutory construction that identical words used in

different parts of the same act are intended to have the same meaning.’” Pereira v.

Sessions, 138 S. Ct. 2105, 2115 (2018) (quoting Taniguichi v. Kan Pacific Saipan, Ltd.,

566 U.S. 560, 571 (2012)). That “natural presumption” is warranted here, where the phrase

is repeated within the same statutory subsection and in both instances describes the object

of judicial review. Env’t Defense v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (internal

quotation marks omitted).

This cohesive understanding of the jurisdictional statute makes sense given the close

connection between an original removal order and a subsequent motion to reopen or

reconsider. After all, both motions seek to undo the prior removal order. See 8 U.S.C.

§ 1229a(c)(6) & (7); Dada v. Mukasey, 554 U.S. 1, 12 (2008) (“A motion to reopen . . .

asks the Board to change its decision . . . .” (internal quotation marks omitted)). Unlike a

CAT order, which “does not affect the validity of a final order of removal,” Nasrallah v.

Barr, 140 S. Ct. 1683, 1694 (2020), the very purpose of a motion to reopen or reconsider

is to invalidate a prior removal order.

The majority’s conclusion that Board decisions denying reopening or

reconsideration are excluded from the phrase “final order[s] of removal” in Section 1252

not only contradicts Reyes Mata and Stone, see supra, at 44, it also creates uncertainty

throughout the jurisdictional statute. For example, the majority assures us that courts have

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jurisdiction to review petitions from decisions denying reopening or reconsideration even

without the affirmative grant of jurisdiction in Section 1252(a)(1). See supra, at 14–15 &

n.5. But excluding those decisions from the scope of that section has additional

consequences. Section 1252(a)(1) not only grants jurisdiction, it also restricts judicial

review of “a final order of removal” to “chapter 158 of Title 28, except as provided in

subsection (b) and except that the court may not order the taking of additional evidence

under section 2347(c) of such title.” 8 U.S.C. § 1252(a)(1). Under the majority’s approach,

those limitations apparently would not apply to judicial review of decisions denying

reopening or reconsideration. Similarly, a petition for judicial review of “an order of

removal under subsection (a)(1)” must be filed within 30 days of “the final order of

removal.” 8 U.S.C. § 1252(b)(1). If decisions denying reopening or reconsideration are

not among these final orders of removal, then this “jurisdictional” filing deadline does not

apply to petitions seeking review of those decisions. Stone, 514 U.S. at 405. The Supreme

Court and our precedent, however, foreclose that interpretation. See id. at 405–406

(explaining that a noncitizen may seek judicial review of the denial of reconsideration

within the statutory time limit); see, e.g., Tebonou v. Garland, 847 Fed. App. 190, 191 (4th

Cir. 2021) (dismissing petition for review of order denying motion to reopen as untimely);

Mota-Braga v. Barr, 831 Fed. App. 629, 629 (4th Cir. 2020) (same); Mburu v. Barr, 812

Fed. App. 166, 166–167 (4th Cir. 2020) (same); Martinez-Saenz v. Sessions, 720 Fed. App.

171, 172 (4th Cir. 2018) (same); Paglinawan v. Holder, 564 Fed. App. 736, 737 (4th Cir.

2014) (same as to order denying motions to reopen and reconsider).

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The majority invokes the “presumption favoring judicial review of administrative

action,” supra, at 14 (internal quotation marks omitted), but that presumption has no place

here. “Because ‘executive determinations generally are subject to judicial review,’ we

presume that review is available when a statute is silent.” Patel, 142 S. Ct. at 1627 (quoting

Guerrero-Lasprilla, 140 S. Ct. at 1069). Section 1252(a)(2)(C), however, is not silent. It

expressly strips courts of jurisdiction to review any final order of removal against a

criminal noncitizen, and “evidence ‘drawn from the statutory scheme as a whole’”

demonstrates that restriction includes orders denying reopening or reconsideration of a

prior removal order. Id. at 1627 (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349

(1984)).

Finally, the majority asserts that this issue concerns the separation of powers

between the three branches of our federal government. It does, but not in the way the

majority believes. The majority quotes Kucana v. Holder, expressing concern about courts

“‘plac[ing] in executive hands authority to remove cases from the Judiciary’s domain.’”

Supra, at 14 (quoting 558 U.S. 233, 237 (2010)). In Kucana, the Supreme Court addressed

whether the prohibition on judicial review of discretionary action in Section

1252(a)(2)(B)(ii) applied “not only to Attorney General determinations made discretionary

by statute, but also to determinations declared discretionary by the Attorney General

himself through regulation.” 558 U.S. at 237. Nothing about the issue before us, however,

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implicates the Executive in constraining judicial review. 2 Instead, we confront a situation

where Congress has by statute reduced our jurisdiction over certain immigration matters.

“A statute affecting federal jurisdiction ‘must be construed both with precision and with

fidelity to the terms by which Congress has expressed its wishes.’” Id. at 252 (quoting

Cheng Fan Kwok v. INS, 392 U.S. 206, 212 (1968)); see also Stone, 514 U.S. at 405. It is

the majority who transgresses the separation of powers by expanding its own jurisdiction

contrary to Congress’s direction.

Next, the majority questions which standard governs our review of the Board’s

decision denying equitable tolling on a motion to reopen or reconsider. A petitioner

seeking equitable tolling must prove that “(1) the Government’s wrongful conduct

prevented the petitioner from filing a timely motion; or (2) extraordinary circumstances

beyond the petitioner’s control made it impossible to file within the statutory deadline.”

Kuusk v. Holder, 732 F.3d 302, 307 (4th Cir. 2013). A petitioner who relies on

“extraordinary circumstances”—as Petitioner did here—“must also show that ‘he has been

pursuing his rights diligently.’” Lawrence, 826 F.3d at 204 (quoting Holland v. Florida,

560 U.S. 631, 649 (2010)).

Our Court has consistently reviewed the Board’s due diligence and equitable tolling

determinations under a deferential abuse-of-discretion standard. Because no decision of

2 Kucana’s discussion about what Congress “specified” and “left . . . where it was” in enacting IIRIRA, supra, at 13 (internal quotation marks omitted), addresses decisions left to Board discretion by statute versus regulation; it does not address Section 1252(a)(2)(C).

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the Supreme Court or en banc opinion of this Court has disturbed that precedent, this panel

is bound by it. And even if our precedent were in doubt, abuse of discretion is an

appropriate standard for judicial review of this fact-specific agency determination.

We review the denial of a motion to reopen or reconsider for abuse of discretion.

See 8 C.F.R. § 1003.2(a) (“The decision to grant or deny a motion to reopen or reconsider

is within the discretion of the Board, subject to the restrictions of this section.”); Cucalon

v. Barr, 958 F.3d 245, 253–254 (4th Cir. 2020) (motion to reconsider); Mosere v. Mukasey,

552 F.3d 397, 400 (4th Cir. 2009) (motion to reopen). In applying this standard, the

Board’s decision receives “extreme deference” and should be reversed “only if the decision

is arbitrary, capricious, or contrary to law.” Sadhvani v. Holder, 596 F.3d 180, 182 (4th

Cir. 2009) (internal quotation marks omitted); see also Cucalon, 958 F.3d at 254 (same);

Mosere, 552 F.3d at 400 (same); Jean v. Gonzales, 435 F.3d 475, 483 (4th Cir. 2006) (“In

applying this standard, we must affirm the BIA’s denial [of reconsideration] unless it

lacked a rational explanation, departed from established policies, or rested on an

impermissible basis.” (internal quotation marks omitted)). “It need only be reasoned, not

convincing.” Lawrence, 826 F.3d at 203 (internal quotation marks omitted). Yet the Board

abuses its discretion if it “fail[s] to offer a reasoned explanation for its decision, or if it

distort[s] or disregard[s] important aspects of the applicant’s claim.” Tassi v. Holder, 660

F.3d 710, 719 (4th Cir. 2011).

We have applied this abuse-of-discretion standard to Board decisions denying

equitable tolling. Indeed, this Court has consistently reviewed the Board’s equitable tolling

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decisions—including its due diligence assessments—for abuse of discretion. See Kuusk,

732 F.3d at 307 (“We therefore hold that the BIA did not abuse its discretion in determining

that equitable tolling was not warranted here.”); see also, e.g., Lawrence, 826 F.3d at 203–

206 (reviewing Board’s diligence assessment for abuse of discretion); Singh v. Garland,

No. 21-1662, 2022 WL 500505, at *1 (4th Cir. Feb. 18, 2022) (“We conclude that the

Board did not abuse its discretion in determining that equitable tolling was unwarranted

. . . .”); Chen v. Barr, 776 Fed. App. 801, 801–802 (4th Cir. 2019) (“We conclude that the

Board did not abuse its discretion in denying Chen equitable tolling on the basis that he

was not reasonably diligent . . . .”); Kinyanjui v. Sessions, 698 Fed. App. 753, 754 (4th Cir.

2017) (reviewing denial of equitable tolling for abuse of discretion); Onema v. Holder, 517

Fed. App. 139, 139 n.* (4th Cir. 2013) (“[W]e . . . find no abuse of discretion in [the

Board’s] alternate finding that Onema was not entitled to equitable tolling on the ground

that he failed to demonstrate that he acted with due diligence.”); Urga v. Holder, 461 Fed.

App. 319, 319 (4th Cir. 2012) (“[W]e conclude that the Board did not abuse its discretion

in finding that Urga was not sufficiently diligent to support equitable tolling . . . .”);

Perdomo v. Ashcroft, 112 Fed. App. 889, 890 (4th Cir. 2004) (“The Board did not abuse

its discretion in holding that . . . Perdomo did not establish the due diligence necessary to

invoke” equitable tolling.).

A published decision of a panel of this Court “becomes the law of the circuit and is

binding on other panels unless it is overruled by a subsequent en banc opinion of this court

or a superseding contrary decision of the Supreme Court.” Indus. TurnAround Corp. v.

NLRB, 115 F.3d 248, 254 (4th Cir. 1997) (internal quotation marks omitted). Petitioner

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contends that Guerrero-Lasprilla requires this Court to review the Board’s equitable

tolling decisions de novo. But, as the majority correctly recognizes, Guerrero-Lasprilla

decided a jurisdictional question and expressly declined to address “the proper standard for

appellate review.” Guerrero-Lasprilla, 140 S. Ct. at 1069; see id. (“[T]hese cases present

no such question involving the standard of review.”); see also supra, at 18–19. Nor does

Petitioner or the majority identify any other Supreme Court decision that “clearly

undermine[s]” our precedent applying abuse-of-discretion review. United States v.

Williams, 155 F.3d 418, 421 (4th Cir. 1998). Our decisions in Lawrence and Kuusk,

therefore, remain “the law in this Circuit, and we are bound to follow [them] here.” Stahle

v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016).

Yet the majority does not follow our precedent. It claims that our cases have

produced “conflicting answers,” but in support the majority cites only decisions outside the

immigration context, where we reviewed de novo a district court’s denial of equitable

tolling as a matter of law. Supra, at 25. 3 When reviewing the Board’s denial of equitable

tolling in the context of a motion to reopen or reconsider, however, our cases have not

wavered from applying abuse-of-discretion review in all circumstances. The majority

attempts to distinguish Lawrence, but that decision straightforwardly reviewed the Board’s

3 Even those cases limited de novo review to circumstances “where the relevant facts are undisputed and the district court denied equitable tolling as a matter of law,” applying abuse-of-discretion review in “all” other circumstances. Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003) (internal quotation marks omitted); see Warfaa v. Ali, 1 F.4th 289, 293–294 (4th Cir. 2021). The majority apparently rejects even that nuance, as it seems to require de novo review of “the BIA’s decision to deny equitable tolling” in every case, without concern for whether that decision rested on factual or legal determinations. Supra, at 32.

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equitable-tolling diligence determination for abuse of discretion. The Court first rejected

the petitioner’s claim that the Board articulated or applied an improperly heightened

diligence standard. 826 F.3d at 204–206; see id. at 203 (explaining that, under abuse-of-

discretion review, the Board should be reversed if its decision is “contrary to law” (internal

quotation marks omitted)). The Court then dispensed with the petitioner’s procedural

assignments of error, concluding that the Board did not “‘disregard[] important aspects of

[his] claim’” or fail to provide “a sufficiently ‘reasoned explanation for its decision.’” Id.

at 206 (quoting Tassi, 660 F.3d at 719). That is abuse-of-discretion review, plain and

simple.

Because our precedent demands that we review the Board’s denial of equitable

tolling in this context only for abuse of discretion, that ends the matter. Petitioner may

seek en banc review to overrule this Court’s prior decisions, but this panel is not at liberty

to fashion a standard of review different from that dictated by our precedent.

Even if our precedent were not crystal clear, a deferential standard is appropriate for

reviewing the Board’s equitable-tolling due-diligence determinations. 4 For starters, our

only guidance from positive law suggests abuse-of-discretion review. Federal regulation

provides that “[t]he decision to grant or deny a motion to reopen or reconsider is within the

discretion of the Board.” 8 C.F.R. § 1003.2(a); see Kucana, 558 U.S. at 242 (“Mindful of

the Board’s ‘broad discretion’ in such matters, however, courts have employed a

4 In his brief, the Attorney General advocates abuse-of-discretion review; he does not request any other deferential standard, such as substantial evidence or clear error.

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deferential, abuse-of-discretion standard of review.” (quoting INS v. Doherty, 502 U.S.

314, 323 (1992))).

Of course, the Board’s decision whether to reopen or reconsider will be based on its

resolution of the ground presented for that action. Here, the Board denied relief because

Petitioner failed to demonstrate sufficient diligence to warrant equitable tolling of the limits

on motions to reconsider. That issue too may be composed of subsidiary questions, which

are each reviewed according to their kind. For example, the Board “would necessarily

abuse its discretion if it based its ruling on an erroneous view of the law,” such as applying

the wrong legal standard for diligence. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

405 (1990). And, if the Board’s factfinding were reviewable in this case, it would be an

abuse of discretion to base its ruling on a factual determination unsupported by substantial

evidence. See id.; 8 U.S.C. § 1252(b)(4)(B). But what about the Board’s decision whether

the historical facts found satisfy the legal test for due diligence? This is a “mixed question

of law and fact.” Guerrero-Lasprilla, 140 S. Ct. at 1069.

Some mixed questions “call[] for review de novo” while others “call[] for

deferential review.” Id.; see U.S. Bank N.A. v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967

(2018) (“Mixed questions are not all alike.”). The majority, however, takes abuse-of-

discretion review off the table from the very beginning of its analysis by setting up a false

dichotomy between de novo and substantial evidence review on the one hand and leaving

the matter entirely to agency discretion on the other. See supra, at 25–27. But agency

discretion is not absolute. In the context of Board reopening and reconsideration decisions,

abuse-of-discretion review is deferential yet retains substantive and procedural elements:

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The Board’s decision must not be “arbitrary, capricious, or contrary to law,” Massis v.

Mukasey, 549 F.3d 631, 636 (4th Cir. 2008), may not rest on an impermissible basis, Jean,

435 F.3d at 483, must “offer a reasoned explanation,” and must not “distort[] or disregard[]

important aspects of the applicant’s claim,” Tassi, 660 F.3d at 719. See Direx Israel, Ltd.

v. Breakthrough Med. Corp., 952 F.2d 802, 814 (4th Cir. 1991), as amended (Jan. 7, 1992)

(“‘Abuse of discretion’ is a legal term of art; it is not a wooden term but one of flexibility,

dependent on the type of case in which it is to be applied and the posture of the case when

it arises.”). If the Board applies the correct law and observes these bounds on its

decisionmaking, then its choice within the resulting range of permissible decisions will not

be disturbed. See generally Harry T. Edwards & Linda A. Elliott, Federal Standards of

Review 83–85 (3d ed. 2018) (discussing abuse-of-discretion review of mixed questions),

259–260 (discussing arbitrary and capricious review). There is no reason abuse-of-

discretion review should not be among the “deferential” standards considered for deciding

this mixed question of law and fact. Guerrero-Lasprilla, 140 S. Ct. at 1069.

To determine the proper standard for this mixed question we ask “[w]hat is the

nature of the mixed question here” and which decisionmaker “is better suited to resolve

it?” Vill. at Lakeridge, 138 S. Ct. at 966. Mixed questions that “require courts to expound

on the law” typically receive de novo review, while mixed questions that “immerse courts

in case-specific factual issues” warrant deferential review. Id. at 967. For example, the

Supreme Court held that a bankruptcy court’s decision that a transaction was at arm’s

length when considering the facts “as a whole” was a case-specific mixed question

warranting clear-error review. Id. at 968. The Supreme Court applied the same deferential

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standard to a district court’s conclusion that a country qualified as a child’s habitual

residence under a “totality-of-the-circumstances” test. Monasky v. Taglieri, 140 S. Ct. 719,

730 (2020); see also Singh v. Rosen, 984 F.3d 1142, 1154 (6th Cir. 2021) (reviewing these

cases and concluding that whether removal would pose an “exceptional and extremely

unusual hardship” to a noncitizen’s family is “equally fact-bound” and so warrants

“deference to the Board”). 5

The legal standard for due diligence in equitable tolling is “reasonable diligence.”

Lawrence, 826 F.3d at 204. “The inquiry is ‘fact-intensive and case-specific,’ requiring a

court to ‘assess[] the reasonableness of petitioner’s actions in the context of his or her

particular circumstances.’” Id. (quoting Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir.

2011)); see Guerrero-Lasprilla, 140 S. Ct. at 1074 (Thomas, J., dissenting) (“To determine

whether a litigant has exercised due diligence, judges must conduct what this Court has

characterized as an ‘equitable, often fact-intensive’ inquiry, considering ‘in detail’ the

unique facts of each case to decide whether a litigant’s efforts were reasonable in light of

his circumstances.” (quoting Holland, 560 U.S. at 653–654)). Each diligence conclusion

turns on special facts that resist generalization: what actions did the noncitizen take to

pursue his rights; how frequently and over what timeframe did he act; what claims does he

seek to raise; what did he know or should he have known and when; what obstacles did he

face; and so forth. In other words, the decisionmaker “takes a raft of case-specific historical

facts, considers them as a whole, [and] balances them one against another” to determine

5 The majority incorrectly reports that the Singh court “require[d] de novo review” for this question. Supra, at 24.

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whether a particular person made reasonably diligent efforts to pursue certain of his rights

in the particular circumstances he faced. Vill. at Lakeridge, 138 S. Ct. at 968. 6 This is

factual work.

On the other side of the coin, “a fact-intensive mixed question like due diligence . . .

requires ‘[p]recious little’ ‘legal work.’” Guerrero-Lasprilla, 140 S. Ct. at 1076 (Thomas,

J., dissenting) (quoting Vill. at Lakeridge, 138 S. Ct. at 968). The majority’s own examples

of the “legal work” to be done in deciding due diligence illustrate the point. Supra, at 28

(internal quotation marks omitted). For example, “what level of vigilance we can fairly

expect from a noncitizen who has lived in another country for over a decade before the

United States finally changed the law,” supra, at 28, is not “a generally recurring, purely

legal matter” or “readily resolved by reference to general legal principles and standards

alone,” Buford v. United States, 532 U.S. 59, 65 (2001). Rather it “grows out of, and is

bounded by, case-specific detailed factual circumstances.” Id. Moreover, the fact-bound

nature of the diligence decision means even de novo review “will not much clarify legal

principles or provide guidance to other courts” assessing diligence in other circumstances.

Vill. at Lakeridge, 138 S. Ct. at 968; see also Buford, 532 U.S. at 65–66; Harris v.

Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (“As a discretionary doctrine that turns on

the facts and circumstances of a particular case, equitable tolling does not lend itself to

bright-line rules.” (internal quotation marks omitted)).

6 The majority offers examples of what it considers analogous determinations about reasonableness in other contexts that receive de novo review. See supra, at 28–29. Many of those examples arise “[i]n the constitutional realm,” where, the Supreme Court tells us, “the calculus changes.” Vill. at Lakeridge, 138 S. Ct. at 967 n.4.

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All of this indicates that the agency is “better suited” than the courts of appeals to

resolve the mixed question of due diligence for equitable tolling of the limits on motions

to reopen and reconsider. Vill. at Lakeridge, 138 S. Ct. at 966. The Board also “sees many

more” requests for tolling of the limits on motions to reopen and reconsider “than does an

appellate judge,” giving it experience that aids its decisionmaking. Buford, 532 U.S. at 64.

And as part of the executive agency charged with interpreting and applying our Nation’s

immigration laws, the Board possesses expertise and special familiarity with the

immigration context in which these claims arise and the general circumstances of removed

noncitizens.

The majority counters that the Board itself reviews de novo equitable-tolling

determinations made by immigration judges and “analogous questions.” Supra, at 29–31

& n.9. With respect for my colleagues in the majority, it is not “difficult to understand”

why we have required the Board to review such questions de novo even though that

standard does not govern our own review of the Board’s work. Supra, at 31 n.9. By

regulation, the Board is authorized to review “questions of law, discretion, and judgment

and all other issues in appeals from decisions of immigration judges de novo.” 8 C.F.R.

§ 1003.1(d)(3)(ii). As we have explained, this includes, “in cases involving mixed

questions of law and fact, the application of the governing legal standard to the facts found

by the immigration judge.” Cruz-Quintanilla v. Whitaker, 914 F.3d 884, 889 (4th Cir.

2019); see Upatcha v. Sessions, 849 F.3d 181, 184 (4th Cir. 2017). The only category

excluded from this list is “purely factual finding[s].” Cruz-Quintanilla, 914 F.3d at 889;

see 8 C.F.R. § 1003.1(d)(3)(i). To state the obvious, that regulation does not control our

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review of Board decisions. 7 Nor is there any conflict between conceptualizing due

diligence for equitable tolling as a “question of law, discretion,” “judgment,” or “other

issue” before the Board and a mixed question of law and fact on judicial review.

Given all this, the question of a noncitizen’s due diligence for equitably tolling the

limits on motions to reopen or reconsider Board removal orders is a mixed question calling

for deferential judicial review. It is unsurprising, then, that other courts of appeals continue

to review due diligence and equitable tolling under a deferential abuse-of-discretion

standard, even after Guerrero-Lasprilla. For example, in Flores-Moreno v. Barr, 971 F.3d

541 (5th Cir. 2020), the Fifth Circuit determined that it possessed jurisdiction to review the

Board’s equitable tolling decision as a mixed question of fact and law, id. at 544, and then

reviewed the Board’s tolling and due diligence determinations only for abuse of discretion.

See id. at 545 (“[T]he BIA did not abuse its discretion holding that Flores-Moreno failed

to pursue his rights diligently . . . .”). Other circuits have continued to do the same. See,

e.g., Diarrassouba v. Garland, No. 20-1105, 2022 WL 2517330, at *1 (2d Cir. July 7,

2022) (“The BIA did not abuse its discretion in determining that Diarrassouba did not

demonstrate due diligence as required for equitable tolling.”); Zhou v. U.S. Att’y Gen., No.

21-1453, 2022 WL 212311, at *4 (3d Cir. Jan. 25, 2022) (“[W]e find no abuse of discretion

in the BIA’s conclusion that Zhou failed to show due diligence.”); Njai v. Garland, No.

21-3764, 2022 WL 2903443, at *6 (6th Cir. July 22, 2022) (“[T]he BIA did not abuse its

7 As we explained in Cruz-Quintanilla, the standard of review there concerned “the division of labor within the agency itself.” 914 F.3d at 891. Here, however, the standard of review implicates “the division of authority between the Executive and the judiciary.” Id.

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discretion when it declined Njai’s equitable tolling argument . . . .”); Hernandez-Alvarez v.

Barr, 982 F.3d 1088, 1096 (7th Cir. 2020) (“We thus cannot conclude that the Board

abused its discretion in determining that equitable tolling was not warranted” for

petitioner’s motion to reconsider.); Tenorio v. Garland, No. 019-71321, 2022 WL 501567,

at *1 (9th Cir. Feb. 18, 2022) (“[I]t was not an abuse of discretion for the IJ and the BIA to

deny equitable tolling” on petitioner’s motion to reopen.); Berdiev v. Garland, 13 F.4th

1125, 1134 (10th Cir. 2021) (“[T]he BIA . . . did not abuse its discretion in determining

that Berdiev was not entitled to equitable tolling due to a lack of due diligence.”); Tejada-

Palacios v. Att’y Gen., No. 21-11717, 2022 WL 168802, at *2 (11th Cir. Jan. 19, 2022)

(“[T]he BIA did not abuse its discretion by concluding that equitable tolling was not

warranted because Tejada-Palacios had not pursued his rights diligently.”).

Until today, so did our Court. See supra, at 54–55. Finding that precedent amply

supported—not to mention binding—I would adhere to it.

We turn now to the merits of Petitioner’s claim. We can assume that the Board may

equitably toll the statutory time and number limits on motions to reconsider. See 8 U.S.C.

§ 1229a(c)(6). The parties agree that tolling is permissible, and we have held that the filing

deadline for motions to reopen is subject to equitable tolling. See Kuusk, 732 F.3d at 305;

8 U.S.C. § 1229a(c)(7)(C)(i). Even assuming tolling is available, however, the Board did

not abuse its discretion in denying it here.

Petitioner was deported to Jamaica in 2007. In his 2019 motion to reconsider,

Petitioner stated that he did “not do anything for the previous twelve years or so” to

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discover any change in the law, pursue his rights, or attempt to regain admission to the

United States. A.R. 25. Petitioner explained that he and his wife, who lived in the United

States, lived under “crushing poverty” and “could not on their own retain an attorney or be

apprised of the latest changes in Supreme Court interpretations.” A.R. 18–19. In April

2019, however, Petitioner’s wife consulted an attorney and, as a result, Petitioner learned

of intervening changes in the law—including the Supreme Court’s April 2018 decision in

Sessions v. Dimaya, 138 S. Ct. 1204 (2018)—that meant his assault conviction no longer

qualified as an aggravated felony. Counsel received Petitioner’s immigration records in

June 2019 and filed the motion to reconsider on his behalf in July 2019.

The Board denied equitable tolling because Petitioner did “not demonstrate[] that

he acted with due diligence in pursuing his latest motion to reconsider.” A.R. 4.

“Assuming” Petitioner had no claim for reconsideration until Dimaya, the Board concluded

that “the circumstances presented by [Petitioner] do not show he pursued his motion with

due diligence after the Supreme Court’s holding in Sessions v. Dimaya.” A.R. 4–5. 8 The

Board recounted Petitioner’s argument that he and his wife were too poor to afford internet

service or legal counsel and that he acted with diligence after he learned of Dimaya in April

2019. But the Board observed that Petitioner did “not explain[], even considering his

family’s low income, why they had not sought” pro bono counsel before April 2019. A.R.

5. The Board noted that Petitioner’s “prior counsels were pro bono” and “no explanation

8 Petitioner does not argue that the Board measured diligence from the wrong starting point in its analysis of his motion to reconsider. He does claim that the Board misidentified the date from which to measure diligence as part of denying sua sponte reopening, but as explained below, we lack jurisdiction to consider that claim.

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[is] given why he could not have maintained contact with counsel regarding the status of

the law affecting his removal,” especially considering the record evidence “that his wife

could assist him from the United States in maintaining contact with counsel.” A.R. 5. The

Board therefore concluded that Petitioner had not shown that “he acted with the reasonable

diligence that would ordinarily be expected from a person in his situation.” A.R. 5.

Before this Court, Petitioner principally contends that he took action after he learned

of Dimaya (by “happenstance,” as he calls it, Reply Br. 17) and it was unreasonable to

expect him to make any effort to stay abreast of developments in the law. In other words,

Petitioner disagrees with the very existence of the requirement to “show that ‘he has been

pursuing his rights diligently.’” Lawrence, 826 F.3d at 204 (quoting Holland, 560 U.S. at

649); see Credit Suisse Secs. (USA) LLC v. Simmonds, 566 U.S. 221, 227–229 & n.7 (2012)

(reasoning that an “actual-notice rule departs from usual equitable-tolling principles”).

Petitioner observes that his prior pro bono counsel was not obligated to continue the

attorney-client relationship after he was deported. But that mischaracterizes the Board’s

opinion, which noted that Petitioner gave “no explanation” why he could not contact his

prior counsel to seek information. A.R. 5. Petitioner also argues that the attorney his wife

contacted in April 2019 was retained, not pro bono as the Board stated, therefore it was

improper for the Board to fault him for not seeking pro bono counsel before April 2019.

The attorney’s status is a factual dispute we lack jurisdiction to consider. See 8 U.S.C.

§ 1252(a)(2)(C). But regardless of whether that attorney received payment, it was not

improper for the Board to consider, as part of its diligence assessment, that Petitioner did

not seek the advice of any counsel before April 2019.

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Ultimately, the Board set forth and applied the correct standard, conducted an

individualized inquiry that acknowledged Petitioner’s evidence and considered his

particular circumstances, and provided a reasoned explanation based on that evidence.

Petitioner disagrees with the Board’s conclusion, but he has failed to show that its decision

was “arbitrary, capricious, or contrary to law.” Lawrence, 826 F.3d at 203 (quoting

Sadhvani, 596 F.3d at 182); see Cucalon, 958 F.3d at 254.

In a footnote, the majority claims it would vacate the Board’s decision even under

the abuse-of-discretion standard because the Board found equitable tolling warranted in a

different case presenting somewhat similar facts and the agency did not supply “‘reasoned

decisionmaking’” for “reach[ing] the opposite result here.” Supra, at 30 n.8 (quoting

Judulang v. Holder, 565 U.S. 42, 53 (2011)). In that case, the Board found a deported

noncitizen reasonably diligent where he “made repeated efforts over the course of

approximately 3 years” after removal to “learn whether his proceedings could be

reopened,” but “abandoned these efforts” after he was told “on multiple occasions that

there was nothing that could be done.” In re: Sergio Lugo-Resendez, 2017 WL 8787197,

at *3 (BIA 2017). When the noncitizen later learned that the law affecting his case had

changed, he took “immediate[]” action. Id. Whatever the factual similarities and

differences between that case and this one, the majority’s reliance on Judulang is out of

place. In Judulang, the Supreme Court considered whether a certain Board policy was

arbitrary or capricious under the Administrative Procedure Act. See 565 U.S. at 52 (citing

5 U.S.C. § 706(2)(A)). Like other agencies, the Board must engage in “reasoned

decisionmaking” when it creates a binding rule or policy. Id. at 53. The Board’s

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unpublished decision in Lugo-Resendez did not establish such a rule or policy. And

reaching a different result based on different facts is not an abuse of discretion.

Accordingly, I would deny the petition for review of the Board’s decision denying

reconsideration.

Lastly, Petitioner contends that the Board erred by declining to reopen his case sua

sponte. Like every other circuit to have considered the issue, we have held that we lack

jurisdiction to review the Board’s denial of sua sponte reopening “because there are no

meaningful standards for courts to apply in review.” Mosere, 552 F.3d at 400 (collecting

cases); see 5 U.S.C. § 701(a)(2); Tamenut v. Mukasey, 521 F.3d 1000, 1003–1005 (8th Cir.

2008) (en banc).

Petitioner argues we should recognize an exception to this settled rule for reviewing

alleged legal errors. The majority does not resolve Petitioner’s argument but notes that

seven other circuits exercise jurisdiction to review some legal errors. Supra, at 40 n.10.

These circuits primarily have recognized a basis for jurisdiction when the Board denies sua

sponte reopening because it believes that some legal barrier prevents the exercise of its

discretionary authority. See Thompson v. Barr, 959 F.3d 476, 483–484 (1st Cir. 2020);

Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); Pllumi v. Att’y Gen., 642 F.3d 155,

161–163 (3d Cir. 2011); Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 355 (5th Cir.

2018); Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016); Reyes-Vargas v. Barr, 958 F.3d

1295, 1299–1300 (10th Cir. 2020); but see Fuller v. Whitaker, 914 F.3d 514, 519 (7th Cir.

2019) (claiming jurisdiction “to recognize and address constitutional transgressions and

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other legal errors that the Board may have committed in disposing of” a motion to reopen

sua sponte). 9

Petitioner’s alleged legal errors do not fall within this narrow category, so “[e]ven

if we were to adopt such an exception . . . , it would not apply here.” Lawrence, 826 F.3d

at 207 n.5. Petitioner claims the Board committed two reviewable legal errors. First, citing

Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002), the Board explained “that an alien’s

diligence in seeking to reopen proceedings is an appropriate consideration when

determining whether to grant sua sponte reopening.” A.R. 5. Petitioner argues that Matter

of G-C-L- does not stand for that proposition. Second, Petitioner argues the Board

misidentified the date from which it should measure his diligence. The Board, however,

did not treat Matter of G-C-L- or the operative date for evaluating Petitioner’s diligence as

legal barriers to exercising its discretion to reopen Petitioner’s removal proceedings sua

sponte. Rather, the Board recognized its authority to sua sponte reopen Petitioner’s case

but declined to do so because Petitioner did not satisfactorily explain his lack of diligence. 10

Thus, even assuming we have limited jurisdiction to correct certain legal errors, I would

dismiss this claim for lack of jurisdiction.

9 Three circuits have rejected similar arguments in whole or in part. See Rais v. Holder, 768 F.3d 453, 464 (6th Cir. 2014); Vue v. Barr, 953 F.3d 1054, 1057 (8th Cir. 2020); Butka v. Att’y Gen., 827 F.3d 1278, 1286 & n.7 (11th Cir. 2016); Lenis v. Att’y Gen., 525 F.3d 1291, 1292–1294 (11th Cir. 2008). 10 Indeed, Petitioner’s arguments about whether and how the Board may consider diligence in deciding whether to reopen sua sponte appear to raise exactly the sort of questions we lack any meaningful standard to evaluate. No statute or regulation “sets forth [any] factors for the BIA to consider in deciding whether to reopen sua sponte, places [any] constraints on the BIA’s discretion, [or] specifies [any] standards for a court to use to cabin the BIA’s discretion.” Tamenut, 521 F.3d at 1004.