USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 1 of 69 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. 2 USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 3 of 69 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). …
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