In a very brief analysis by Judge Paez, the Ninth Circuit rejected the equitable tolling argument of a former lawful permanent resident ordered removed in 2013 based on a finding that he had been convicted of a crime of violence under 18 USC 16(b). In 2015, the Ninth Circuit found that 16(b) was unconstitutionally vague, and the Supreme Court reached the same conclusion in April 2018. The petitioner filed a motion to reconsider his removal order in July 2018, and requested equitable tolling in light of the recent Supreme Court decision, which he became aware of in June 2018. The Ninth Circuit concluded that the agency did not abuse its discretion in denying the motion because the petitioner did not present any evidence that he acted diligently between 2013, when he was ordered removed, and July 2018, when he filed his motion.
Judge Van Dyke wrote a much longer concurrence agreeing with the outcome of Judge Paez’s two-page analysis.
Judge Korman wrote a strong dissent, finding that the petitioner acted with 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.
The full text of Goulart v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/18/19-72007.pdf