FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE EDUINO ASSUMPCAO GOULART,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 19-72007

Agency No.

A030-516-243

OPINION

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 satisfy due diligence by submitting an affidavit 

stating he was unaware of prior precedent. Judge VanDyke 

also wrote that the cases cited by the dissent did not support

the conclusion that due diligence or equitable tolling could 

depend on actual knowledge and that, even using principles 

imported from other legal contexts (such as habeas cases), 

Goulart failed to satisfy the standard for equitable tolling.

Judge VanDyke also wrote that one wonders: Why 

would one champion charting a completely new and 

unsupported path of legal reasoning just to avoid the lawful 

removal of a convicted burglar? Judge VanDyke wrote that

in our system of government that means respecting the laws 

passed by Congress, not bending them—including our 

nation’s immigration laws.

Dissenting, Judge Korman concluded that principles of 

law and equity required that Goulart be permitted to move 

for reconsideration, explaining that the Supreme Court held 

that the precise statute under which Goulart was deported 

violated the Constitution. Judge Korman observed that, 

under Judge Paez’s view, even if Goulart was unaware of 
4 GOULART V. GARLAND

this court’s 2015 decision, the BIA reasonably concluded 

that he failed to make reasonable efforts to pursue relief. 

However, the BIA did not base its decision on Goulart’s 

failure to present evidence that he was unaware of the 2015 

decision; rather, the clear implication was that he was not 

aware of that decision. Judge Korman contrasted this to

Lona, explaining that language in that case suggested that if 

Lona had alleged that she was unaware of the court’s prior 

ruling, she could have secured relief.

With respect to Judge VanDyke’s argument that actual 

knowledge was irrelevant, Judge Korman wrote that the 

Supreme Court has held that due diligence is demonstrated 

by a petitioner’s prompt action as soon as he is in a position 

to realize that he has an interest in challenging an adverse 

decision. Judge Korman also observed that the BIA’s 

decision in In re: Sergio Lugo-Resendez, 2017 WL 8787197 

(B.I.A. Dec. 28, 2017), made clear that a deported immigrant 

acts with reasonable diligence so long as he acts promptly 

once he learns of a relevant change in law. Judge Korman 

concluded that Goulart met that standard.

Responding to the question why he would “champion” 

the cause of a convicted burglar, Judge Korman pointed to 

the judicial oath, which was adopted in the Judiciary Act of 

1789, and requires judges to “administer justice without

respect to persons, and do equal right to the poor and to the 

rich.” Judge Korman further wrote that the panel was not 

called to decide whether Goulart is a good person, but rather 

whether a person who has been banished from the United 

States without legal justification should be permitted to seek 

to return.
GOULART V. GARLAND 5

COUNSEL

Matthew H. Springmeyer (argued), Law Office of Matthew 

H. Springmeyer, San Diego, California, for Petitioner.

Andrew B. Insenga (argued), Trial Attorney; Anthony P. 

Nicastro, Assistant Director; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.

OPINION

PAEZ, Circuit Judge:

Petitioner Jose Eduino Assumpcao Goulart, a native and 

citizen of Brazil, petitions for review of the Board of 

Immigration Appeal’s (“BIA”) decision denying his motion 

for reconsideration. Specifically, Goulart argues that the 

BIA erred in concluding that the motion was untimely and 

denying equitable tolling. We have jurisdiction under 

8 U.S.C. § 1252. See Mata v. Lynch, 576 U.S. 143, 147-48 

(2015). Because the BIA did not abuse its discretion, Lona 

v. Barr, 958 F.3d 1225, 1229 (9th Cir. 2020), we deny 

Goulart’s petition.

“A motion to reconsider a final order of removal 

generally must be filed within thirty days of the date of entry 

of the order.” Id. at 1230 (citing 8 U.S.C. § 1229a(c)(6)(B)). 

The filing deadline is subject to equitable tolling “when a 

petitioner is prevented from filing because of deception, 

fraud, or error, as long as the petitioner acts with due 

diligence in discovering the deception, fraud, or error.” Id.

(quoting Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 

2003)); see Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir. 
6 GOULART V. GARLAND

2016) (describing the three factors considered when 

“determin[ing] whether a petitioner exercised due 

diligence”). Tolling is available “in cases where the 

petitioner seeks excusal from untimeliness based on a 

change in the law that invalidates the original basis for 

removal.” Lona, 958 F.3d at 1230. In Lona, the petitioner 

argued that she was entitled to equitable tolling because she 

filed her motion for reconsideration as soon as she 

discovered new case law making her eligible for relief. Id. 

at 1228-29. We held that the BIA did not abuse its discretion 

in denying equitable tolling because the petitioner “alleged 

no facts . . . suggesting a diligent pursuit of her rights in the 

intervening years between her removal” and the relevant 

change in law. Id. at 1232.

Like the petitioner in Lona, Goulart failed to present any 

evidence suggesting that he diligently pursued relief during 

the years between his removal and the relevant change in 

law. Goulart was removed in 2013, after the BIA determined 

that his prior conviction was a crime of violence under 

18 U.S.C. § 16(b). Two years later, we held that 18 U.S.C. 

§ 16(b) was unconstitutionally vague and thus potentially 

invalidated the basis for Goulart’s order of removal. See 

Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015). The 

Supreme Court affirmed our decision in April 2018. See

Sessions v. Dimaya, 138 S. Ct. 1204, 1210 (2018). Goulart 

learned of the Supreme Court’s ruling on June 9, 2018, when 

he was so informed by his former defense attorney, and first 

filed his motion for reconsideration on July 16, 2018.

In his motion, Goulart failed to present any evidence 

suggesting that he diligently pursued his rights during the 

time between 2013, when he was removed, and 2018, when 

he learned of Sessions v. Dimaya and filed the motion to 

reconsider. See Lona, 958 F.3d at 1232; Bonilla, 840 F.3d 
GOULART V. GARLAND 7

at 583 (holding that the BIA did not abuse its discretion in 

denying equitable tolling when there was a six-year gap in 

the petitioner’s pursuit of legal advice). Goulart did not 

support his motion with a declaration or any other evidence 

concerning his actions between 2013 and June 2018; thus, 

even assuming that Goulart was unaware of our 2015 

decision, the BIA did not act arbitrarily or irrationally in 

determining that Goulart failed to “ma[ke] reasonable efforts 

to pursue relief.” Bonilla, 840 F.3d at 583 (citation omitted). 

Therefore, there is no basis to conclude that the BIA abused 

its discretion in denying Goulart’s claim for equitable 

tolling. Lona, 958 F.3d at 1232 (citation omitted).1

PETITION FOR REVIEW DENIED.

VANDYKE, Circuit Judge, concurring in the judgment:

There’s a guy, let’s call him “John.” Due to some poor 

personal choices, John is broke and looking for a quick way 

to get cash. He thinks about his wealthy, older aunt who 

lives alone and decides that taking some of her money is the 

solution (she has more than she needs anyway, he justifies to 

himself). He debates whether to break into her house during 

the day while she is gone volunteering at a homeless shelter 

1 Goulart also argues that our 2015 holding in Dimaya was not 

settled law until the Supreme Court affirmed in 2018. That argument is 

meritless because the BIA is generally bound by our precedent in cases 

arising from this circuit. See Matter of Anselmo, 20 I. & N. Dec. 25, 31-

32 (B.I.A. 1989). Moreover, the BIA repeatedly applied Dimaya v. 

Lynch between 2015 and 2018. See, e.g., Matter of Kim, 26 I. & N. Dec. 

912, 914 n.1 (B.I.A. 2017) (explaining that the BIA addressed only 

18 U.S.C. § 16(a) because Dimaya v. Lynch “deemed § 16(b) to be 

unconstitutionally vague” and noting that certiorari had been granted).
8 GOULART V. GARLAND

or whether to break in at night while she sleeps. Concerned 

that her neighbors will see him break in during the day, John 

decides to break in at night. What John doesn’t know is that 

just last week, the legislature passed a law increasing the 

prison sentence for burglary by 10 additional years if a house 

is occupied when the burglar breaks in. The new law 

captured lots of media attention, but John, being low on 

money, had cut off his internet and cable access. As a result, 

John didn’t know about this new law.

John breaks into his aunt’s house in the middle of the 

night while she’s sleeping and steals cash, jewelry, and a 

number of expensive electronics. When he predictably gets 

caught for the burglary, he learns for the first time that he 

will face another decade in prison because he opted to burgle 

his aunt’s house while she was at home. John protests, 

arguing that he was unaware of the new law. He submits an 

affidavit to that effect and provides final notices from the 

internet and cable companies indicating when they shut off 

service to his apartment, so he had no way to know about the 

law. Should a judge decide not to impose the increased 

sentence because John didn’t know about the change in the 

law? Of course not. As a general rule, we treat people as if 

they have constructive notice of any change in the law; 

actual ignorance of the law is no defense. Nor should it be 

used as a sword, like our dissenting colleague seems inclined 

to promote here.

Judge Korman’s dissent would have us adopt an actual 

knowledge standard for determining whether Petitioner Jose 

Eduino Assumpcao Goulart, also a convicted burglar of an 

inhabited dwelling, is eligible for reconsideration of his 

immigration proceedings. This case only requires a 

straightforward application of our decision in Lona v. Barr, 

958 F.3d 1225 (9th Cir. 2020), and as in Lona, I would deny
GOULART V. GARLAND 9

the petition for review. I write separately to emphasize that 

the dissent misconstrues the due diligence standard to 

establish eligibility for equitable tolling and puts forth a 

warped interpretation of Lona.

As Judge Paez’s opinion correctly identifies, we review 

the denial of a motion for reconsideration for abuse of 

discretion. Lona, 958 F.3d at 1229. But before we dive into 

the BIA’s analysis, I think it is helpful to take a step back 

and summarize how Goulart arrived at the BIA. After his 

conviction of burglary of an inhabited dwelling, Goulart was 

placed in removal proceedings, and ultimately removed from 

the United States in 2013. Approximately five years after 

his removal, Goulart moved for reconsideration, arguing that 

a 2018 Supreme Court decision, Sessions v. Dimaya, 138 

S. Ct. 1204 (2018), rendered his conviction no longer a 

“crime of violence” aggravated felony and therefore 

invalidated the legal basis for his removal. Because Goulart 

filed such a motion more than six years after the BIA’s

decision—clearly beyond the thirty-day deadline for 

motions to reconsider, see 8 U.S.C. § 1229a(c)(6)(B)—he 

needed to establish that he was entitled to equitable tolling 

of that deadline. He asserted that tolling was appropriate 

because he filed his “motion after discovering that he is not 

deportable,” which was “as soon as practicable after finding 

out about the [Supreme Court] decision.”

The BIA determined he was not entitled to equitable 

tolling because the “change” in the law identified by Goulart 

in the Supreme Court’s 2018 Sessions decision had, in fact, 

already occurred in 2015 when the Ninth Circuit reached the 

same result. The BIA therefore concluded that Goulart 

failed to demonstrate reasonable diligence by filing his 

motion for reconsideration three years later in 2018. Lona is 

dispositive on this issue. Understanding how the dissent 
10 GOULART V. GARLAND

deviates from Lona requires a more in-depth look at Lona

itself and its obvious similarities to this case.

In Lona, after her conviction of second-degree burglary, 

Lona was placed in removal proceedings and ultimately 

removed from the United States in April 2013. 958 F.3d 

at 1228. Several years after her removal, Lona moved for 

reconsideration, arguing that a Ninth Circuit opinion issued 

in 2015 rendered her conviction no longer an aggravated 

felony and therefore invalidated the legal basis for her 

removal. See id. She asserted that she was entitled to 

equitable tolling of the thirty-day deadline for 

reconsideration “because she filed her motion as soon as she 

discovered her eligibility for termination of removal 

proceedings,” id. at 1229 (emphasis added), which was “as 

soon as practicable” after the Ninth Circuit’s 2015 decision 

came down. Id. at 1230. Sound familiar?

But Lona’s motion suffered some fatal flaws. The Lona

court reasoned that Lona “alleged no facts . . . suggesting a 

diligent pursuit of her rights in the intervening years between 

her removal and [the Ninth Circuit’s 2015 decision]” that 

caused her to seek reconsideration. Id. at 1232. But the 

analysis in Lona did not end there. The Lona court also 

found persuasive that Lona had not “shown that some 

extraordinary circumstance stood in her way and prevented 

timely filing of her motion based on [earlier Supreme Court 

and Ninth Circuit decisions]” that the Ninth Circuit’s 2015 

opinion “plainly followed.” Id. (emphasis added) (citation, 

internal quotation marks, and internal alteration marks 

omitted). The court explained that “our holding in [the Ninth 

Circuit’s 2015 opinion] adhered to the methodology 

established by” those earlier Supreme Court and Ninth 

Circuit decisions, and the 2015 opinion was thus “an 

application of existing law . . . that we characterized as not 
GOULART V. GARLAND 11

complicated.” Id. (citation, internal quotation marks, and 

internal alteration marks omitted).1

In this case, Goulart’s motion embodies the same 

defects. Goulart relies on the Supreme Court’s holding in 

Sessions that the statutory definition of “crime of violence” 

is unconstitutionally vague. Sessions, 138 S. Ct. at 1210. 

But as noted above, that decision affirmed the Ninth 

Circuit’s 2015 decision in Dimaya v. Lynch, 803 F.3d 1110 

(9th Cir. 2015), where our court reached the same 

conclusion. Sessions, 138 S. Ct. at 1223; see also Dimaya, 

803 F.3d at 1120. Goulart, like Lona, has provided no 

evidence that he diligently pursued his rights between his 

removal and the Supreme Court’s 2018 Sessions opinion, but 

neither has he shown that some extraordinary circumstance 

stood in his way and prevented timely filing of his motion 

based on the Ninth Circuit’s Dimaya decision, with which 

the Supreme Court agreed in Sessions.

Herein lies the central flaw of the dissent, which 

concludes that Goulart diligently pursued his rights “by 

filing his motion less than two months after he learned about 

the Supreme Court’s . . . decision.” But the dissent 

inappropriately assesses due diligence based on when 

Goulart gained actual knowledge of the change in the law—

1 This reasoning refutes the dissent’s implication that Lona faulted 

the petitioner for failing to seek reconsideration after the earlier Supreme 

Court case because it was precedent from the Supreme Court. As 

explained above, the Lona court faulted the petitioner for failing to seek 

reconsideration based on the first decision that could have provided 

relief—given that the Ninth Circuit’s 2015 decision “plainly followed” 

prior precedent—not because that first decision was issued by the 

Supreme Court in particular. See Lona, 958 F.3d at 1232.
12 GOULART V. GARLAND

a standard that is clearly contradicted by the reasoning in 

Lona.

The Lona court rejected petitioner’s knowledge-based 

argument that she was entitled to equitable tolling because 

she filed her motion “as soon as she discovered her eligibility

for termination of removal proceedings” based on the Ninth 

Circuit’s 2015 decision. Lona, 958 F.3d at 1228–29. Instead 

of looking to Lona’s knowledge of case law and when she 

discovered it as the basis for the diligence inquiry, the court 

considered whether she exercised “due diligence in 

discovering and raising the error,” id. at 1231 (emphasis 

added), highlighting “the lack of evidence that Lona took 

any action prior to our [2015 decision].” Id. at 1232 

(emphasis added). Just like Lona, Goulart fails to establish 

that he diligently pursued his rights in this case—not because 

he failed to present evidence establishing that he “was 

unaware of our 2015 decision,” but because he failed to 

provide evidence that he took any action to discover and 

raise the error identified in our 2015 Dimaya decision.

Not only does the dissent plainly contradict Lona, but 

under its analysis, a petitioner could seek reconsideration of 

his immigration proceedings at a very late date and still 

satisfy his due diligence requirements for equitable tolling 

by simply submitting an affidavit to the BIA stating he was 

unaware of prior precedent. This holding would lead to the 

reopening of any magnitude of immigration proceedings 

well after the fact, which severely undermines the interest of 

finality in such proceedings. Cf. INS v. Doherty, 502 U.S. 

314, 322–23 (1992) (in analyzing the regulation governing 

reopening and reconsideration, the Court explained that 

“[m]otions for reopening of immigration proceedings are 

disfavored . . . . This is especially true in a deportation 

proceeding, where, as a general matter, every delay works to 
GOULART V. GARLAND 13

the advantage of the deportable alien who wishes merely to 

remain in the United States” (internal citation omitted)).

Furthermore, while the dissent strings together a series 

of assertions about due diligence and equitable tolling 

principles, none of the cited cases support the conclusion that 

due diligence or equitable tolling could depend on actual 

knowledge of a change in the law without some previous 

action on Goulart’s part. See Niz-Chavez v. Garland, 141 S. 

Ct. 1474, 1478 (2021) (discussing the sufficiency of a notice 

to appear and not once mentioning the standard for due 

diligence or equitable tolling).2 Of the cases quoted, the 

binding precedent most closely on point—Avagyan v. 

Holder, 646 F.3d 672 (9th Cir. 2011)—undermines the 

dissent’s conclusion, because it directs courts to consider 

2 See also Holland v. Florida, 560 U.S. 631, 653 (2010) (concluding 

defendant demonstrated diligence by “wr[iting] his attorney numerous 

letters seeking crucial information and providing direction; . . .

repeatedly contact[ing] the state courts, their clerks, and the Florida State 

Bar Association . . . . And, [finally,] . . . prepar[ing] his own habeas 

petition pro se” when he found out that his attorney failed to meet the 

AEDPA deadline); Johnson v. United States, 544 U.S. 295, 308 (2005) 

(assessing the “question of how to implement the statutory mandate that 

a petitioner act with due diligence in discovering the crucial fact of the 

vacatur,” not a change in the law (emphasis added)); Doe v. United 

States, 853 F.3d 792, 794, 802 (5th Cir. 2017) (rejecting equitable tolling 

of Doe’s Fifth Amendment claim based on the government accusing him 

of a crime during criminal proceedings in which he was not a defendant 

because the claim accrued “when Doe was ‘named’ as a criminal actor 

without being indicted,” noting that even a mistaken belief that his claim 

had not accrued would not have warranted tolling); Bracey v. 

Superintendent Rockview SCI, 986 F.3d 274, 285–86 (3d Cir. 2021) 

(interpreting when “the factual predicate of the claim[s] . . . could have 

been discovered through the exercise of due diligence” under 28 U.S.C. 

§ 2244(d)(1)(D), not a change in law (emphasis added)); Wilson v. 

Beard, 426 F.3d 653, 659 (3d Cir. 2005) (same); Starns v. Andrews, 

524 F.3d 612, 616 (5th Cir. 2008) (same).
14 GOULART V. GARLAND

“whether petitioner took reasonable steps to investigate . . .

or . . . whether petitioner made reasonable efforts to pursue 

relief,” id. at 679—neither of which Goulart did here. See 

also id. at 682 (“The question is, therefore, whether 

[petitioner] made reasonable efforts to pursue relief until she 

learned of counsel’s ineffectiveness.” (emphasis added)).

Looking at how this court has assessed a change in the 

law as the basis for unearthing a final judgment in other 

contexts is likewise unhelpful to the dissent. In the context 

of a Rule 60(b) motion to reopen habeas proceedings, we 

have explained that “a change in the law should not 

indefinitely render preexisting judgments subject to 

potential challenge. Rather, individuals seeking to have a 

new legal rule applied to their otherwise final case should 

petition the court for reconsideration with a degree of

promptness.” Bynoe v. Baca, 966 F.3d 972, 986 (9th Cir. 

2020) (emphasis added) (quoting Phelps v. Alameida, 

569 F.3d 1120, 1138 (9th Cir. 2009) (reasoning that such 

promptness “respects the strong public interest in timeliness 

and finality” (citation and internal quotation marks 

omitted))).

Because the dissent relies on cases interpreting due 

diligence and equitable tolling under the Antiterrorism and 

Effective Death Penalty Act (“AEDPA”), see 28 U.S.C. 

§ 2244(d), it seems only appropriate to consider our court’s 

case law in that area. In Bryant v. Arizona Attorney General, 

this court considered whether the petitioner was entitled to 

equitable tolling of AEDPA’s statute of limitations because 

he did not have access to case law interpreting the statute. 

499 F.3d 1056, 1057 (9th Cir. 2007). The court applied a 

two-part test—essentially the same one applicable here—

assessing: (1) whether petitioner “has been pursuing his 

rights diligently, and (2) [whether] some extraordinary 
GOULART V. GARLAND 15

circumstances stood in his way.” Id. at 1061 (citation 

omitted). The court denied equitable tolling, see id., 

reasoning that because petitioner was “unaware of” 

AEDPA’s statute of limitations until August 2001—more 

than a year after the statute of limitations had expired—“the 

unavailability of case law interpreting [AEDPA’s] statute of 

limitations during that time period could not have been the 

cause of [petitioner’s] late-filed petition” in order to justify 

equitable tolling. Id. at 1060. Most importantly, the court 

did not grant equitable tolling based on what clearly seemed 

to be the cause of petitioner’s untimely habeas petition—i.e., 

that petitioner had only learned of AEDPA’s statute of 

limitations through the government’s answer to his habeas 

petition more than two years after he had access to the 

statutory text. See id. at 1060–61. The court’s lack of 

concern for when petitioner gained actual knowledge of 

AEDPA’s statute of limitations as a basis for granting 

equitable tolling again undermines the rationale of the 

dissent.

In assessing the diligence prong, the Bryant court also 

found persuasive that petitioner “made no effort to seek 

relief” from the time his last petition for post-conviction 

relief in state court was denied until he filed a motion to 

recall the mandate in state court nearly four years after 

AEDPA went into effect. Id. at 1061. Judge Korman 

himself has previously denied equitable tolling in the 

AEDPA context for a lack of diligence where the petitioner 

“took no apparent action” on his case for over five years. 

Matos v. Superintendent, Wash. Corr. Facility, No. 13-CV2326 (ERK)(CLP), 2014 WL 5587518, at *2 (E.D.N.Y. 

Nov. 3, 2014) (emphasis added). Here, there is no evidence 

that Goulart took any action in the nearly five years between 

his removal from the United States and his efforts to seek 

reconsideration. Goulart has thus failed to satisfy the 
16 GOULART V. GARLAND

standard for equitable tolling, even using principles 

imported from other legal contexts.3

Finally, although the dissent hints that our conclusion 

today is driven, at least in part, by “the desire to remove 

convicted burglars from this country,” it’s not. It’s 

motivated by a desire to follow the law and enforce the 

finality of legal decisions unless good cause exists to revisit 

them. Our decision follows a well-established path in that 

respect. But one wonders: Why would one champion 

charting a completely new and unsupported path of legal 

reasoning just to avoid the lawful removal of a convicted 

burglar? I agree with Judge Korman’s laudable paean to 

doing equal justice. But in our system of government that 

means respecting the laws passed by Congress, not bending 

them—including our nation’s immigration laws.

For all of the reasons set forth above, I respectfully 

concur in the judgment.

3 The dissent excuses the applicability of such principles in this 

context, in part because many immigrants are “poor, uneducated, 

unskilled in the English language, and effectively unable to follow 

developments in the American legal system . . . .” But Goulart speaks 

English. Not only does he speak it, Goulart conversed with the IJ in 

English on multiple occasions, and the police department identified his 

English-speaking abilities as “good” on Goulart’s inmate report. He did 

not require a translator when he entered his guilty plea for burglary. As 

for his ability to follow developments in the American legal system, 

Goulart was admitted to the United States as a lawful permanent resident 

at the age of seven in 1970—before I was born. Goulart is not the 

uninformed, helpless alien that the dissent suggests.
KORMAN, District Judge, dissenting:

Petitioner Jose Eduino Assumpcao Goulart, a lawful 

permanent resident of the United States since the age of 

seven, was deported to Brazil in 2013. Goulart had been 

convicted of burglary in California, which the Board of 

Immigration Appeals (“BIA”) concluded was a crime of 

violence that rendered him deportable under Ninth Circuit 

precedent at the time. On April 17, 2018, five years after his 

removal, the Supreme Court held unconstitutional the 

federal statute upon which Goulart’s deportation was 

justified. Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The 

Supreme Court did so in a case involving the precise statute 

of which Goulart was convicted: first-degree burglary under 

California law. Id. at 1211. Thus, he could not be removed 

based on his burglary conviction.

On June 9, 2018, Goulart was told about that holding by 

his former criminal defense attorney. He retained 

immigration counsel, who first filed a reconsideration 

motion on July 16, 2018, only 90 days after the Supreme 

Court decided Dimaya and less than 2 months after Goulart 

learned of the decision. Nevertheless, the BIA held that, 

despite pursuing his reconsideration motion immediately 

upon learning of the Supreme Court’s decision in Dimaya, 

Goulart failed to exercise due diligence because the Ninth 

Circuit reached the same conclusion three years earlier in 

Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015).

Under these circumstances, the BIA held that petitioner 

was not entitled to equitable tolling of the deadline for filing 

a motion for reconsideration that applies “in cases where the 

petitioner seeks excusal from untimeliness based on a 

change in the law that invalidates the original basis for 

removal.” Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 

2020). Nevertheless, based on the record in that case, we 
18 GOULART V. GARLAND

held that Lona was not entitled to equitable tolling. Indeed, 

the BIA decision denying Lona’s motion to reconsider relied 

on the fact that she “had a full and fair opportunity to raise 

arguments similar to the ones” she raised on reconsideration, 

but that she had failed to make such arguments when she 

waived appeal “from the Immigration Judge’s order of 

removal.” Certified Admin. Record at 3, Lona, 958 F.3d 

1225 (No. 17-70329); see also Lona, 968 F.3d at 1229.

While Judges Paez and VanDyke cite to Lona in their 

separate opinions to affirm the denial of Goulart’s motion 

for reconsideration, they do so for different reasons. Judge 

Paez reasons that the motion to reconsider was untimely 

because “Goulart did not support his motion with a 

declaration or any other evidence concerning his actions 

between 2013 and June 2018.” Thus, even if Goulart “was 

unaware of our 2015 decision,” in Judge Paez’s view the 

BIA reasonably concluded that Goulart failed to make 

“reasonable efforts to pursue relief.” But the BIA did not 

base its decision on Goulart’s failure to present evidence 

establishing that he was unaware of our 2015 decision. 

Certified Admin. Record at 3. Indeed, the BIA did not even 

address Goulart’s knowledge of the 2015 decision. 

Moreover, although Goulart did not submit an affidavit in 

support of his reconsideration motion, he represented in the 

motion itself that “[h]e first learned of the decision on June 

9, 2018 when his criminal defense attorney alerted him to the 

case.” The clear implication is that Goulart was not aware 

of our prior ruling. This stands in contrast to our decision in 

Lona, in which we upheld the BIA’s denial of a motion to 

reconsider because the petitioner “alleged no facts—before 

the IJ, the BIA, or on appeal before us—suggesting a 

diligent pursuit of her rights.” Lona, 958 F.3d at 1232 

(italics added). Indeed, although Judges Paez and VanDyke 

both quote this language, they do so by eliminating the 
GOULART V. GARLAND 19

phrase suggesting that if Lona had alleged that she was 

unaware of our prior ruling, she could have secured relief.

Judge VanDyke goes beyond Judge Paez’s analysis by 

arguing that whether Goulart had actual knowledge of the 

change in law is irrelevant and that Goulart should have 

pursued relief even if he did not know that relief was 

available. I address this argument in some detail later in this 

opinion. Before doing so, it is important to define “due 

diligence.” My colleagues fail to do so, leaving in place the 

bizarre holding that a lay person born in a foreign country 

and who has been removed from the United States based on 

established (albeit erroneous) precedent must meet the same 

standard as a member of the immigration bar to “keep 

abreast of changes in the law and its practice.” Model Rules 

of Pro. Conduct r. 1.1 cmt. 8 (9th ed. 2019).

But “[t]he diligence required for equitable tolling 

purposes is ‘reasonable diligence,’ not ‘maximum feasible 

diligence.’” Holland v. Florida, 560 U.S. 631, 653 (2010) 

(internal citations omitted). Black’s Law Dictionary defines 

“due diligence” as “[t]he diligence reasonably expected 

from, and ordinarily exercised by, a person who seeks to 

satisfy a legal requirement or to discharge an obligation.” In 

deciding what constitutes reasonable diligence, courts 

“focus the inquiry on what event, in fairness and logic, 

should have alerted the average lay person to act to protect 

his rights.” Doe v. United States, 853 F.3d 792, 802 (5th Cir. 

2017) (internal quotation omitted). Indeed, we have held 

that the threshold question in determining due diligence is 

whether “a reasonable person in petitioner’s position would” 

have suspected the “error underlying [his] motion to 

reopen.” Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 

2011).
20 GOULART V. GARLAND

Due diligence, however, as the Third Circuit recently 

held, does not require a petitioner to “continuously monitor 

public sources for years . . . on the unlikely chance that he 

might learn something which would be useful to his case.” 

Bracey v. Superintendent Rockview SCI, 986 F.3d 274, 286 

(3d Cir. 2021) (internal quotation and alterations omitted). 

Indeed, even widespread publication of relevant information 

is not always sufficient for a court to hold that a petitioner 

failed to act with due diligence. See Wilson v. Beard, 

426 F.3d 653, 662 (3d Cir. 2005) (holding that the habeas 

petitioner “had no expectation that the news media would be 

a source of information about his case nearly thirteen years 

after his conviction” despite the fact that news stories 

relevant to his Batson claim were widely published in the 

press). Rather, “[t]he essential question is not whether the 

relevant information was known by a large number of 

people, but whether the petitioner should be expected to take 

actions which would lead him to the information.” Id.; see 

also Starns v. Andrews, 524 F.3d 612, 618 (5th Cir. 2008) 

(collecting cases).

Consistent with the holdings in these cases, the Supreme 

Court has held that due diligence is demonstrated by 

“prompt action on the part of the petitioner as soon as he is 

in a position to realize that he has an interest in challenging” 

an adverse decision. Johnson v. United States, 544 U.S. 295, 

308 (2005). Goulart exhibited such diligence by filing his 

motion less than two months after he learned about the 

Supreme Court’s Dimaya decision from his former criminal 

defense attorney. Indeed, Goulart had no motive to delay 

pursuing relief, nor was the agency prejudiced by the delay. 

In a case that mirrors the circumstances here, the Arizona 

Supreme Court held that equity did not bar a party’s claim 

based on a change in law, despite her ignorance that the law 

had changed six years prior, because the party had no reason 
GOULART V. GARLAND 21

to believe the law had changed until she learned about it 

while consulting with an attorney on a separate matter. 

Flynn v. Rogers, 834 P.2d 148, 153 (Ariz. 1992).

In Lona v. Barr, on which my colleagues rely, we held 

that “claims based on changes in the law are not unheard of, 

nor are they prohibited.” 958 F.3d at 1230–31. We went on 

to apply the framework set forth in the Fifth Circuit’s

decision in Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 

2016), and the BIA decision on remand that followed the 

explicit instructions of the Fifth Circuit, In re: Sergio LugoResendez, 2017 WL 8787197 (B.I.A. Dec. 28, 2017). LugoResendez involved a comparable issue of when equitable 

tolling was appropriate based on a change in law where, as 

here, the immigrant’s conviction no longer rendered him 

deportable. See Lona, 958 F.3d at 1231. The Fifth Circuit 

“remanded for further factual development of LugoResendez’s claim that he was entitled to equitable tolling” 

based on a change in law. Id.

The BIA was told “not to apply the equitable tolling 

standard too harshly because denying an alien the 

opportunity to seek [relief]—when it is evident that the basis 

for his removal is now invalid—is a particularly serious 

matter.” Lugo-Resendez, 831 F.3d at 345 (internal 

quotations omitted). “As the Supreme Court recently 

reminded, the core principle of equitable tolling is to escape 

the ‘evils of archaic rigidity’ and ‘to accord all the relief 

necessary to correct . . . particular injustices.’” Id. (quoting 

Holland, 560 U.S. at 650). Therefore, “the BIA should give 

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—much less read and digest complicated legal 

decisions.” Id.
22 GOULART V. GARLAND

The BIA followed that instruction and held that LugoResendez was entitled to equitable tolling even though he 

had not moved to reopen until more than two years after the 

Fifth Circuit had ruled that immigrants in his shoes were 

eligible for relief. In re: Sergio Lugo-Resendez, 2017 WL 

8787197, at *1–3. Indeed, the BIA applied equitable tolling 

even though Lugo-Resendez had taken no steps to pursue 

relief for more than eight years “because he was told on 

multiple occasions that there was nothing that could be done 

about his case and he was unaware that the law affecting his 

removability could change.” Id. at *3. Lugo-Resendez acted 

only when he “heard about a man” who had been able to seek 

relief after that man had been deported, and at that time 

asked his daughter to visit an immigration attorney on his 

behalf. Lugo-Resendez, 831 F.3d at 340. After his daughter 

did so and “informed him that it was possible to reopen his 

case,” Lugo-Resendez “immediately gathered the money 

and asked the immigration attorney to file his request to 

reopen.” Id. (internal alterations omitted).

The BIA held that Lugo-Resendez had acted diligently 

because he contacted his daughter as soon as he learned of 

the change in law and then promptly filed a motion to 

reopen. In re: Sergio Lugo-Resendez, 2017 WL 8787197, 

at *3. The BIA also held that Lugo-Resendez faced 

“extraordinary circumstances beyond his control” that 

“prevented him from filing his motion until July 2014,” 

namely that Fifth Circuit precedent foreclosed his ability to 

successfully move to reopen until 2012. Id. (internal 

quotations omitted). Thus, because Lugo-Resendez “filed 

his motion within a reasonable period of time after he 

learned of the change in law” permitting him to challenge his 

deportation, the BIA held that equitable tolling was 

appropriate. Id. The BIA rightly acknowledged that, as the 

Fifth Circuit had instructed, it would be wrong “to apply the 
GOULART V. GARLAND 23

equitable tolling standard too harshly,” because denying an 

immigrant relief “when it is evident that the basis for his 

removal is now invalid” is a “particularly serious matter.” 

Id. (internal quotation omitted). Thus, as we observed in 

Lona, Lugo-Resendez was entitled to equitable tolling 

“because he pursued his rights with reasonable diligence and 

extraordinary circumstances beyond his control prevented 

him from filing his motion sooner,” 958 F.3d at 1231, and 

he “filed his motion within a reasonable period of time after 

he learned of the change in law.” Id. at 1231 n.6 (internal 

quotation omitted).

The same is true of Goulart: as soon as he learned of the 

change in law from his former attorney, he retained 

immigration counsel and filed a motion for reconsideration 

shortly thereafter, which the BIA held was sufficient to 

entitle Lugo-Resendez to equitable tolling. In re: Sergio 

Lugo-Resendez, 2017 WL 8787197, at *3. And the 

extraordinary circumstance here is the same as the BIA 

recognized in Lugo-Resendez, namely the pre-Dimaya

circuit precedent which rendered any challenge to his 

deportation futile. Put another way, Lugo-Resendez makes 

clear that a deported immigrant acts with reasonable 

diligence so long as he acts promptly once he learns of a 

change in law that removes the barrier to relief. That is true 

even when the immigrant learns of the change in law years 

after it occurred—in Lugo-Resendez’s case, more than two 

years later. And we expressly relied in Lona on the opinions 

of both the Fifth Circuit and BIA in Lugo-Resendez, while 

concluding that Lona herself did not satisfy the test set out 

in those opinions. 958 F.3d at 1230–32 & n.6.

Moreover, Goulart, like Lugo-Resendez, had no notice 

“that the law affecting his removability could change.” In 

re: Sergio Lugo-Resendez, 2017 WL 8787197, at *3. 
24 GOULART V. GARLAND

Indeed, before he was deported, Goulart had argued that 

burglary was not a crime of violence that rendered him 

deportable, which the BIA explicitly rejected. Under these 

circumstances, there was no basis for Goulart to be aware 

that the law had changed until his attorney informed him.1

 

As the Supreme Court has explained, “[i]mmigration law 

can be complex, and it is a legal specialty of its own.” 

Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Indeed, 

immigration law can be so mystifying that the Supreme 

Court has required defense counsel to inform their clients 

that a guilty plea could result in their deportation.2 Id.

at 366–69.

Unlike Lugo-Resendez, Lona declined to toll the 

deadline for a motion to reconsider because a Ninth Circuit 

case, on which the petitioner relied, “plainly followed” a 

decision issued nearly two years earlier by the Supreme 

Court. 958 F.3d at 1232. In this case, by contrast, the motion 

to reconsider followed almost immediately after the 

controlling Supreme Court decision in Dimaya. While we 

reached the same holding in Dimaya two years earlier, over 

a strong dissent by Judge Callahan, that fact should be 

irrelevant in determining Goulart’s due diligence. Even 

assuming that an immigrant removed from the United States 

should be expected to learn of high-profile immigration 

1 By contrast, Lona withdrew her appeal to the BIA and was not 

similarly on notice from the BIA that her claim lacked merit. Lona,

958 F.3d at 1228.

2 This holding has been expanded upon in the Federal Rules to 

require judges to inform defendants during the plea colloquy that they 

may be deported, denied citizenship, or denied future admission into the 

United States. Fed. R. Crim. P. 11(b)(1)(O). That is because deportation 

is, for all practical purposes, part of the “penalty” of a criminal 

conviction. Padilla, 559 U.S. at 364–66.
GOULART V. GARLAND 25

cases decided by the Supreme Court—as Goulart did here—

it would be unreasonable to expect him to scour the Ninth 

Circuit docket on the off chance it would issue a decision 

helpful to his case in the “labyrinthine maze of immigration 

laws.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1040 (9th Cir. 

2016) (McKeown, J., specially concurring). My colleagues 

cannot plausibly argue that Goulart did not exercise due 

diligence by failing to closely monitor this Court’s docket.

I acknowledge that there may be other areas of law, such 

as the tolling of the statute of limitations with respect to 

habeas corpus, that should merit a less generous standard. 

As the Supreme Court has explained, “AEDPA’s 

acknowledged purpose is to reduce delays in the execution 

of state and federal criminal sentences.” Ryan v. Gonzales, 

568 U.S. 57, 76 (2013) (internal quotations and alterations 

omitted). A habeas petitioner who fails to timely move for 

relief prejudices the prosecution twice over: first, when it is 

required to exhume stale evidence to defend against habeas 

relief, and second, if relief is granted, when the prosecution 

may not be able to reconvene the witnesses or evidence at 

any retrial.

Unlike the AEDPA context, however, there is no such 

prejudice in cases like this, where the immigrant was 

deported for reasons that all agree were invalid. See Lona, 

958 F.3d at 1231 n.7. Significantly, the policy disfavoring 

motions to reopen or to reconsider are based on the reality 

that “as a general matter, every delay works to the advantage 

of the deportable alien who wishes merely to remain in the 

United States.” INS v. Doherty, 502 U.S. 314, 323 (1992). 

Goulart, however, is not a deportable alien who wishes to 

remain in the United States. To the contrary, he has already 

been deported, and the purpose of his motion is to undo his 

wrongful deportation.
26 GOULART V. GARLAND

Significantly, Judge Paez and Judge VanDyke offer no 

explanation of what Goulart reasonably ought to have done 

to pursue his rights before learning that he had rights to 

pursue. Judge VanDyke instead offers the fable of John the 

Burglar, who was ignorant that the legal penalty for burglary 

had increased before he committed the burglary, to 

demonstrate that ignorance of the law is no defense to a 

crime. Judge VanDyke ignores the fact that Goulart’s 

motion for reconsideration is not based on his ignorance of 

the law at the time he committed his offense. Instead, it is 

based on the argument that the offense did not render him 

deportable because his offense did not meet the definition of 

a crime of violence. And it has long been the case that a 

defendant’s actual innocence is a sufficient basis to excuse 

procedural defaults. See, e.g., Bousley v. United States, 523 

U.S. 614, 623–24 (1998); Schlup v. Delo, 513 U.S. 298, 324–

27 (1995). More significantly, we have held that a petitioner 

can file an untimely challenge to his conviction when a 

change in law has rendered his conduct lawful. Alaimalo v. 

United States, 645 F.3d 1042, 1046–47 (9th Cir. 2011). 

These cases confirm that this Court should not preclude 

Goulart from challenging the “particularly severe penalty” 

of deportation when we now know that he was deported for 

invalid reasons. Padilla, 559 U.S. at 365 (internal quotation 

omitted). Indeed, as observed earlier, the Supreme Court has 

held that a defendant must be advised that he could be 

deported as a result of a guilty plea, in light of the major 

significance of deportation to an immigrant living in this 

country. Id. at 365–66, 373–74.

Goulart is not a sympathetic character. I can understand 

the desire to remove convicted burglars from this country. 

Indeed, Judge VanDyke questions why I have bothered to 

“champion” the cause of a convicted burglar. The answer 

should be obvious. The judicial oath, which was adopted in 
GOULART V. GARLAND 27

the Judiciary Act of 1789, requires us to “administer justice 

without respect to persons, and do equal right to the poor and 

to the rich.” See 1 Stat. 73, 76 (codified at 28 U.S.C. § 453). 

We take such an oath, which derives from biblical teachings, 

see Deuteronomy 1:17, so as not to be blinded by our like or 

dislike of the parties. We are not called to decide whether 

Goulart is a good person, but rather whether a person who 

has been banished from the United States without legal 

justification should be permitted to seek to return. The 

Supreme Court has held that the precise statute under which 

Goulart was deported violates the Constitution. Principles 

of law and equity require that he be permitted to move for 

reconsideration in this case. I respectfully dissent.