FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE EDUINO ASSUMPCAO GOULART, No. 19-72007 Petitioner, Agency No. v. A030-516-243 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 16, 2021 Pasadena, California Filed November 18, 2021 Before: Richard A. Paez and Lawrence VanDyke, Circuit Judges, and Edward R. Korman, * District Judge. Opinion by Judge Paez; Concurrence by Judge VanDyke; Dissent by Judge Korman * The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 2 GOULART V. GARLAND SUMMARY ** Immigration In a case in which Jose Eduino Assumpcao Goulart moved the Board of Immigration Appeals to reconsider his prior order of removal based on a change in law, the panel held that the BIA did not abuse its discretion in denying Goulart’s claim for equitable tolling of the 30-day motions deadline. Goulart was removed in 2013, after the BIA determined that his conviction was a crime of violence under 18 U.S.C. § 16(b). In 2015, this court held that § 16(b) was unconstitutionally vague and, in April 2018, the Supreme Court affirmed in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Goulart learned of the latter ruling on June 9, 2018, when he was so informed by his former defense attorney, and filed his motion for reconsideration on July 16, 2018. In Lona v. Barr, 958 F.3d 1225 (9th Cir. 2020), this court held that the BIA did not abuse its discretion in denying equitable tolling, reasoning that the petitioner alleged no facts suggesting a diligent pursuit of her rights in the years between her removal and the change in law relevant to her case. Here, the panel explained that Goulart likewise failed to present any evidence suggesting that he diligently pursued his rights during the time between his removal in 2013 and when he learned of Sessions v. Dimaya in 2018. The panel further explained that Goulart did not support his motion with a declaration or any other evidence concerning his ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GOULART V. GARLAND 3 actions between 2013 and June 2018; thus, even assuming that he was unaware of this court’s 2015 decision, the BIA did not act arbitrarily or irrationally in determining that Goulart failed to make reasonable efforts to pursue relief. Concurring in the judgment, Judge VanDyke wrote separately to emphasize his view that the dissent misconstrued the due diligence standard and put forth a warped interpretation of Lona. Judge VanDyke wrote that a central flaw of the dissent was inappropriately assessing due diligence based on actual knowledge of the change in the law—a standard clearly contradicted by the reasoning in Lona. Judge VanDyke also wrote that, under the dissent’s analysis, a petitioner could seek reconsideration at a very late date and still …
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