Goulart v. Garland: Diligence After a Change in Immigration Law

Goulart v. Garland, 18 F.4th 653 (9th Cir. 2021), shows why a favorable change in immigration law does not, by itself, excuse a late motion to reconsider a removal order. The Ninth Circuit recognized that a legal change can support equitable tolling of the ordinary 30-day deadline. It nevertheless upheld the Board of Immigration Appeals’ denial because the motion offered no evidence of Goulart’s efforts to pursue relief during the years before he learned of the change. Id. at 654–55.

The removal order and later change in law

Goulart was removed in 2013 after the BIA treated a prior conviction as a crime of violence under 18 U.S.C. § 16(b). In 2015, the Ninth Circuit held that provision unconstitutionally vague; the Supreme Court affirmed in Sessions v. Dimaya in April 2018. Goulart learned of the Supreme Court decision on June 9, 2018, and filed a motion to reconsider on July 16. Because the motion came years after the original order, he needed equitable tolling. Goulart, 18 F.4th at 654–55.

What the majority actually decided

The court applied abuse-of-discretion review to the BIA’s tolling decision. Goulart’s motion lacked a declaration or other evidence explaining what he had done to investigate or pursue relief between removal in 2013 and June 2018. Filing after learning of the Supreme Court ruling addressed the later period but left the preceding years unexplained. Id. at 654–55. The Ninth Circuit’s 2026 immigration motions guide still cites Goulart on that evidentiary point.

Why the 2015 and 2018 decisions mattered

The court noted that the Ninth Circuit had reached the relevant constitutional conclusion in 2015, three years before the Supreme Court affirmed it. Even assuming Goulart did not know about the earlier decision, the BIA could reasonably find inadequate diligence because he presented no account of his efforts over the intervening years. That reasoning concerns this evidentiary record; it does not create a rule that every person must have discovered every appellate opinion on its filing date. Id. at 655.

The concurrence and dissent sharpen the dispute

Judge VanDyke concurred in the judgment and emphasized that lack of actual knowledge of new law does not alone establish diligence. Id. at 655–60 (VanDyke, J., concurring). Judge Korman dissented, arguing that the majority demanded too much of a removed layperson who sought reconsideration after learning of the Supreme Court’s ruling. Id. at 660–65 (Korman, J., dissenting). Those separate opinions illuminate the disagreement, but the majority opinion controls the outcome.

What a motion record should address

A person seeking reconsideration after a legal change should first calendar the statutory deadline and identify the particular order and legal error. If the filing is late, the tolling request needs a supported chronology: when the person learned of the relevant error, what steps were taken to investigate and obtain advice, what obstacles prevented earlier filing, and what happened after discovery. Goulart is a warning about an unexplained gap, not a promise that any particular showing will succeed. The governing inquiry remains fact-specific, and the court reviewed the BIA’s exercise of discretion. Id. at 654–55.

Key takeaways

• A change in law may permit equitable tolling of the 30-day reconsideration deadline, but does not automatically do so.
• A prompt filing after discovery may still fail if earlier years of diligence are left unexplained.
• Declarations, correspondence, and a dated account of investigation can support a diligence finding.
• The majority affirmed denial on this record; the concurrence and dissent are not the holding.