                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1834


GARFIELD KENAULT LAWRENCE,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.

---------------------------------

AMERICAN IMMIGRATION COUNCIL; NATIONAL IMMIGRATION PROJECT OF
THE NATIONAL LAWYERS GUILD,

                Amici Supporting Petitioner.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   May 10, 2016                      Decided:   June 17, 2016


Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Petition dismissed in part and denied in part by published
opinion. Judge Agee wrote the opinion, in which Judge Wilkinson
and Senior Judge Davis joined.


ARGUED: Heidi Rachel Altman, CAPITAL AREA IMMIGRANTS’ RIGHTS
COALITION, Washington, D.C., for Petitioner.      Matthew Allan
Spurlock, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.     ON BRIEF: Morgan Macdonald, CAPITAL AREA
IMMIGRANTS’ RIGHTS COALITION, Washington, D.C., for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, John S. Hogan, Senior Litigation Counsel, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington,   D.C.,  for   Respondent.    Kristin  Macleod-Ball,
AMERICAN IMMIGRATION COUNCIL, Washington, D.C.; Trina Realmuto,
NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD,
Boston, Massachusetts, for Amici Curiae.




                               2
AGEE, Circuit Judge:

     Petitioner Garfield Lawrence seeks review of the Board of

Immigration Appeals’ (the “Board” or “BIA”) decision denying his

motion to reopen as untimely and denying his request for sua

sponte reopening.     The Board denied the request, concluding that

Lawrence failed to demonstrate due diligence in pursuing his

claim.   On appeal, Lawrence principally asserts that the Board

applied the wrong standard to the equitable tolling inquiry.

     For the reasons discussed below, we conclude that the Board

acted within its discretion in denying equitable tolling and

that we lack jurisdiction to review its decision to deny sua

sponte reopening.


                               I.     Background

     Lawrence   is    a    native    and   citizen   of    Jamaica   and   was

admitted into the United States in 1996 as a lawful permanent

resident.

     Lawrence   has       multiple    Virginia     state   court     marijuana

convictions.    In August 2006, he was convicted of a marijuana

distribution offense and sentenced to six months’ imprisonment.

Then, in February 2009, he was convicted of two felony marijuana

distribution counts and sentenced to two years’ imprisonment.

     In 2011, the Department of Homeland Security (“DHS”) issued

a notice to appear charging Lawrence as removable under 8 U.S.C.


                                       3
§ 1227(a)(2)(A)(ii),        for    two    convictions       for     crimes       involving

moral turpitude; under § 1227(a)(2)(A)(iii), for a conviction of

an aggravated felony offense relating to the illicit trafficking

of a controlled substance; and under § 1227(a)(2)(B)(i), for a

conviction     relating      to    a     controlled        substance.            Lawrence

admitted the convictions and conceded removability.                           He denied

that    he   qualified     as     an    aggravated        felon    and     also    sought

protection    from   removal       under       the    Convention     Against       Torture

(“CAT”).

       After a hearing, the immigration judge denied the CAT claim

and ordered Lawrence’s removal to Jamaica.                      The judge ruled that

Lawrence’s convictions for distribution of marijuana constituted

“drug     trafficking”       aggravated              felonies     under      8     U.S.C.

§ 1101(a)(43)(B), making Lawrence ineligible for cancellation of

removal.      See 8 U.S.C. § 1229b(a)(3).                   Lawrence appealed the

decision, and the Board affirmed on December 4, 2012.                             The 90-

day statutory period to file a motion to reopen began on that

date.    See id. § 1229a(c)(7)(C)(i) (providing that a “motion to

reopen shall be filed within 90 days of the date of entry of a

final administrative order of removal”).

       Lawrence   was     removed       to     Jamaica    on     January     31,       2013.

According    to   his     declaration,         Lawrence    immediately        sought      to

pursue his immigration case from Jamaica but ran into multiple

difficulties.        He    moved       three     times    and     struggled       to    find

                                             4
employment.         When he did find regular work, over a year after

his deportation, the position was in an isolated, rural area

that     limited       his       access        to     international            communication.

Lawrence represented that he used a prepaid cell phone, but the

reception in his area was too weak to sustain a call.                                     And he

stated that reaching an internet café required a 45-minute taxi

ride, an expense he claimed he could not afford regularly due to

his small weekly salary.

       Despite      these     hurdles,          while    doing        online     research     in

September       2013,     Lawrence         was       able        to   contact       the    Post-

Deportation Human Rights Project at Boston College (the “Human

Rights       Project”),      a     clinical          program      focused      on    providing

resources      to     deported     immigrants.              He    initially      communicated

with a legal fellow who conducted a case intake and collected

background      information.             An     attorney         with   the     Human      Rights

Project, Jessica Chicco, later determined that Lawrence might

have     a    claim    under       the    Supreme        Court’s        2013    decision      in

Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).

       Lawrence included a declaration from Chicco with his motion

to   reopen,     which      stated       that    she    “communicated           sporadically”

with   him     “[o]ver       the   . .     .    next     several        months”     to     obtain

relevant      documents.           A.R.        77.       But      Chicco       observed      that

“obtaining and sending documents was difficult for [Lawrence]

due to his limited access to modes of communication.”                                Id.     Once

                                                 5
she    determined          that     Lawrence          had      a     strong    case,        Chicco

“immediately undertook efforts to place the case on a pro bono

basis”   elsewhere          due    to    “resource           constraints”      at     the    Human

Rights Project.            A.R. 78.        She eventually referred the case to

the    Capital           Area     Immigrants’           Rights        Coalition           (“CAIR”),

Lawrence’s current counsel.

       On May 19, 2015, Lawrence (represented by CAIR) moved to

reopen       his    removal       proceedings          for     the    purpose        of    seeking

cancellation of removal under 8 U.S.C. § 1229b(a).                                   Relying on

Moncrieffe,         he    argued        that     his     convictions          were    not     drug

trafficking aggravated felonies and that he should have been

permitted to seek cancellation of removal.

       Because Lawrence filed his motion to reopen far outside the

90-day       statutory      window,        he        requested       that     his    motion     be

considered         as    timely    based        on    equitable        tolling.           Lawrence

argued that filing the motion to reopen within 90 days “was

impossible” because it was “based on . . . Moncrieffe, which was

not announced until 140 days after [the] final administrative

removal order was entered” and that he was “diligent in pursuing

the legal assistance necessary to draft and file a motion to

reopen his case from abroad and could not reasonably be expected

to    have    filed       earlier.”        A.R.        55.         Alternatively,         Lawrence

requested that the Board reopen his case sua sponte.



                                                 6
       DHS opposed Lawrence’s motion as untimely.                                 In June 2015,

the Board denied the motion because Lawrence had not “show[n]

that    his   motion        should       be    considered      timely,”          given     that    he

filed “more      than       2     years       after    the    [Supreme]          Court’s    [April

2013]    decision”          in     Moncrieffe.              A.R.   4.        In     particular,

Lawrence’s      “documents             d[id]    not    sufficiently         show     that     [he]

acted with due diligence” during that period.                                Id.      The Board

also    found        that        Lawrence’s       case       did    not          “present[]        an

exceptional situation that would warrant” sua sponte reopening.

Id.

       Lawrence timely filed a petition for review and asserts

that    we    have    jurisdiction             under    8    U.S.C.     §    1252(a).             The

government,      however,              contests       jurisdiction          in     addition        to

opposing the petition on the merits.


                                        II. Discussion

                                       A. Equitable Tolling

       Lawrence’s primary argument on appeal is that the Board

erred    in    denying           his    request       for     equitable          tolling.         In

Lawrence’s view, the Board failed to apply the proper analysis

to determine whether he pursued his claim with due diligence.

He contends that the Board rigidly focused only on the amount of

time that had passed between the adjudication of removal and the




                                                  7
filing of the motion to reopen without sufficiently considering

all the circumstances.

       We must first determine whether we have jurisdiction to

review this claim.           Even if Lawrence is correct that none of his

convictions constitute an aggravated felony post-Moncrieffe, he

remains        removable     based    on       his    “crimes     involving       moral

turpitude.”           8 U.S.C. § 1227(a)(2)(A)(ii).             The jurisdictional

bar     of     § 1252(a)(2)(C)       therefore        precludes      our     exercising

jurisdiction          over   anything      but       “constitutional         claims   or

questions of law.”           Id. § 1252(a)(2)(D).          The government asserts

that    Lawrence        merely    raises    a    factual     dispute.          Lawrence

counters that the gravamen of his appeal concerns whether the

Board applied the wrong standard in conducting the equitable

tolling inquiry -– an issue of law.

       We take Lawrence’s argument at face value and conclude that

we do have jurisdiction over that narrow issue.                            Whether the

Board applied the correct standard is a question of law that

falls        within     § 1252(a)(2)(D)’s        exception      to     the     criminal

jurisdictional bar.              See Tran v. Gonzales, 447 F.3d 937, 943

(6th Cir. 2006) (exercising jurisdiction over the question of

“whether the BIA used the correct standard”).                        However, if the

Board did apply the correct standard, our jurisdiction does not

extend to a “simpl[e] disagree[ment]” with the Board’s “factual

determination that [Lawrence] had not exercised due diligence.”

                                           8
Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir. 2006); see also

Lagos v. Keisler, 250 F. App’x 562, 563 (4th Cir. 2007) (per

curiam) (unpublished) (stating that a “simpl[e] disagree[ment]”

with       the    Board’s   denial    of     equitable      tolling      is    “merely   a

factual issue over which we lack jurisdiction”).

       Turning to the merits, we review the denial of a motion to

reopen       for    abuse   of    discretion.         See    8     C.F.R.     § 1003.2(a)

(stating that the Board possesses discretion to deny motions to

reopen even where movant “has made out a prima facie case” to

reopen); INS v. Doherty, 502 U.S. 314, 323 (1992) (reiterating

that       “the    abuse-of-discretion       standard       applies      to   motions    to

reopen regardless of the underlying basis of the alien’s request

for relief”). 1          The Board’s decision receives “extreme deference”

and    should       be   reversed    “only    if    the     decision     is   arbitrary,

capricious, or contrary to law.”                   Sadhvani v. Holder, 596 F.3d

180,       182    (4th   Cir.    2009).      It    “need    only    be   reasoned,      not

convincing.”         M.A. v. INS, 899 F.2d 304, 310 (4th Cir. 1990) (en

banc), superseded by statute on other grounds.                           Still, we will

reverse the Board if it “fail[s] to offer a reasoned explanation

for its decision, or if it distort[s] or disregard[s] important




       1
       We have omitted internal quotation marks, alterations, and
citations here and throughout this opinion, unless otherwise
noted.


                                             9
aspects of [an] applicant’s claim.”                            Tassi v. Holder, 660 F.3d

710, 719 (4th Cir. 2011).

         Here, the Board denied Lawrence’s motion as untimely after

rejecting           his    request      for        equitable    tolling.       See    Kuusk   v.

Holder, 732 F.3d 302, 305-06 (4th Cir. 2013) (recognizing that

the principles of equitable tolling apply to “untimely motions

to reopen removal proceedings”).                           A petitioner seeking equitable

tolling must prove that “(1) the Government’s wrongful conduct

prevented the petitioner from filing a timely motion; or (2)

extraordinary circumstances beyond the petitioner’s control made

it impossible to file within the statutory deadline.”                                   Id. at

307. 2       A petitioner who relies on “extraordinary circumstances”

must         also        show    that        “he     has     been   pursuing     his     rights

diligently.”              Holland v. Florida, 560 U.S. 631, 649 (2010).

         “The diligence required for equitable tolling purposes is

reasonable diligence, not maximum feasible diligence.”                                  Id. at

653.           The        inquiry    is       “fact-intensive         and   case-specific,”

requiring            a     court        to     “assess[]        the    reasonableness         of

petitioner’s actions in the context of his or her particular

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

2011).        But this individualized inquiry has limits.                            As we have

cautioned, the use of equitable tolling “must be guarded and

         2
        Lawrence does not contend that any conduct by the
government prevented him from filing a timely motion to reopen.


                                                     10
infrequent,          lest     circumstances            of   individualized             hardship

supplant the rules of clearly drafted statutes.”                                   Kuusk, 732

F.3d at 305.          We cannot “loose the rule of law to whims about

the    adequacy       of     excuses,       divergent       responses        to      claims    of

hardship, and subjective notions of fair accommodation.”                                Id.

       Lawrence       maintains       that       the    Board     applied      a     heightened

diligence standard that required absolute diligence rather than

reasonable diligence and therefore committed an error of law.

According to Lawrence, if the Board had properly undertaken an

“individualized reasonableness inquiry . . . accounting for all

the facts in the record,” it would have found Lawrence to have

been    “reasonably         diligent.”                Opening     Br.   at     23,    24.      He

contends the Board’s analysis –- contrary to our guidance in

Tassi     –-    was     “vague       and    untethered          from    applicable          legal

principles”       and       “disregard[ed]            substantial       portions       of     the

record.”       Id. at 19 (citing Tassi, 660 F.3d at 719).

       We are not persuaded that the Board’s ruling suffered from

any of these asserted errors.                         First, nothing in the Board’s

decision       suggests        that        the    Board     applied          an      improperly

heightened      diligence        standard.             Lawrence    emphasizes         that    the

Board    never       mentioned       “reasonable         diligence.”           However,       the

Board    expressly          stated    that       Lawrence       had     “not      sufficiently

show[n] that [he] acted with due diligence.”                             A.R. 4 (emphasis

added).        And    we     define    “due       diligence”       as    “[t]he       diligence

                                                 11
reasonably expected from, and ordinarily exercised by, a person

who seeks to satisfy a legal requirement or to discharge an

obligation.”        Diligence, Black’s Law Dictionary (10th ed. 2014)

(emphasis    added).         Lest   there    be   any   doubt,    the   dictionary

explains     that    “due     diligence”     is   “[a]lso    termed     reasonable

diligence.”         Id.     In short, the Board set forth the correct

standard.

       It also applied that correct standard.                   The Board denied

equitable     tolling        because    Lawrence’s       evidence       failed    to

establish reasonable diligence, not because he failed to take

any maximally diligent step in filing his motion.                    See Jian Hua

Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) (“[The] petitioner

bears the burden of proving that he has exercised due diligence

in the period between discovering the [ground for reopening] and

filing the motion to reopen.”).              In the Board’s view, Lawrence

“did   not   show     that    his   motion    should    be   considered        timely

filed.”      A.R. 4.         Although Lawrence submitted some documents

outlining    his     difficulties,     the    Board     determined      that   those

“documents d[id] not sufficiently show that [he] acted with due

diligence” during the two years after Moncrieffe or even the

year-and-a-half       after    he   contacted     the   Human    Rights   Project.

Id.     As the Board emphasized, Lawrence would have needed to

demonstrate that he “acted with due diligence during the entire

period” he sought to toll.             Id. (citing Rashid v. Mukasey, 533

                                        12
F.3d   127    (2d   Cir.   2008)).        But   he    failed      to    do   that:    “the

circumstances       presented”     fell    short       of    “show[ing]        that   his

motion should be considered timely.”                 Id.

       In    addressing    the    “circumstances           presented,”       the     Board

adequately     undertook    the    individualized           inquiry     that    Lawrence

contends was missing.          The Board not only ruled “[b]ased on the

circumstances presented,” id., but also explicitly noted that it

had “examine[d] the facts and circumstances presented in the

motion,”     A.R.   4   n.2.      These    comments         are   not    mere      window-

dressing; they bear out in the analysis.                    The Board acknowledged

Lawrence’s argument that he had been “hampered by logistical and

communications problems,” and it cited the pages of his motion

that discuss those problems.              See A.R. 4 (citing A.R. 54-57).

What’s more, the Board summarized two of Lawrence’s supporting

documents, declarations from him and from Chicco:

       These documents state that the respondent contacted
       the Post-Deportation Human Rights Project in September
       2013; the attorney informed him about the possibility
       of seeking reopening of his case under Moncrieffe v.
       Holder; “[o]ver the course of the next several months”
       they “communicated sporadically” until the attorney
       obtained    documents   regarding    the   respondent’s
       convictions; and in February 2015 this attorney
       referred the respondent to his current counsel.

Id. (citations omitted).

       The Board simply found Lawrence’s individual circumstances

to be insufficient.            While the “communications problem” could

account for some delay, Lawrence provided “no detail” about how

                                          13
the problems actually accounted for his lengthy delay.                           A.R. 4

n.1.        The Board acknowledged Chicco’s statement that Lawrence

had “difficulties in obtaining and sending documents regarding

his    criminal      convictions.”        Id.        But    Lawrence     “d[id]     not

explain”       why    obvious      alternative       routes       to    obtain      the

information more efficiently were not available: perhaps “he or

the attorney could . . . have obtained relevant documents with

the assistance of his family . . . or by reviewing or obtaining

a copy of the administrative record.” 3                    Id.     And contrary to

Lawrence’s      view,     demanding     an     explanation       for   why   a    time-

consuming course of action qualifies as “reasonable diligence”

is    not    tantamount    to     the   Board    requiring       “maximum    feasible

diligence.”      Holland, 560 U.S. at 653.

       Additionally,       with     regard      to   the    application      of     the

diligence standard, Lawrence argues that the Board improperly

focused on the length of the delay before he filed his motion –-

over two years after Moncrieffe.                 True, the diligence inquiry

cannot hinge on the elapsed time alone.                    See, e.g., Gordillo v.

Holder, 640 F.3d 700, 705 (6th Cir. 2011) (“[T]he mere passage

of time -– even a lot of time –- before an alien files a motion


       3
       We do not suggest that a petitioner must anticipate and
address every conceivable step he could have taken to file his
motion more quickly. But a petitioner’s failure to address why
he did not take basic, minimal steps to file more quickly is
relevant to the due diligence analysis.


                                          14
to reopen does not necessarily mean she was not diligent.”).

But as discussed above, that is not what happened here.                                 After

noting the length of the filing delay, the Board discussed why

Lawrence’s evidence had not adequately accounted for that period

of time.      The Board thus appropriately used the passage of time

as    a   backdrop      against       which        it    considered,      and     rejected,

Lawrence’s arguments.

       In sum, the Board conducted an appropriate, individualized

inquiry into whether Lawrence exhibited reasonable diligence to

warrant equitable tolling.                Having articulated and applied the

correct      standard     in    reviewing      Lawrence’s         claim    for    equitable

tolling, the Board did not abuse its discretion.

       Nor    did    it    abuse      its     discretion          for    either    of     the

procedural deficiencies that Lawrence asserts.                           For the reasons

discussed above with regard to an individualized inquiry, we

disagree with Lawrence’s position that the Board “disregarded

important aspects of [his] claim.”                      Tassi, 660 F.3d at 719.           The

Board discussed the most important aspects of Lawrence’s claim -

–    those    relating     to       the   communications          issues    --     and    was

reasonably      detailed       in    doing    so.         While    the    Board    did    not

discuss each of Lawrence’s exhibits, it had no obligation to go

page by page through the evidence in making a ruling.                                     See

Hadjimehdigholi v. INS, 49 F.3d 642, 648 n.2 (10th Cir. 1995)



                                              15
(“[T]he BIA is not required to discuss every piece of evidence

when it renders a decision.”).

     Likewise,        we        conclude     that,       contrary    to     Lawrence’s

assertion,      the        Board     provided        a    sufficiently       “reasoned

explanation for its decision.”               Tassi, 660 F.3d at 719.            Again,

as discussed above, the Board explained that Lawrence failed to

carry    his   burden      of     accounting     for     his   reasonable    diligence

throughout the two-year period.                    Lawrence might disagree with

this conclusion, but, as noted, the Board’s decision “need only

be reasoned, not convincing.”              M.A., 899 F.2d at 310.

     We    conclude        that     the    Board    appropriately     analyzed     and

rejected Lawrence’s request for equitable tolling.                        It therefore

did not abuse its discretion in denying Lawrence’s motion to

reopen as untimely. 4




     4 We note that even if Lawrence had received equitable
tolling and succeeded in his motion to reopen, the entire
endeavor could well have come to naught if the Attorney General
declined to grant Lawrence’s application for cancellation of
removal.    That decision is discretionary and generally not
subject to judicial review.     See 8 U.S.C. § 1252(a)(2)(B)(i).
While this is a policy matter within the purview of Congress and
the Executive Branch, we note that significant judicial
resources might be saved in certain cases if it were
alternatively established in the record that the Attorney
General would not exercise her discretion to grant cancellation
of removal. See Mena v. Lynch, No. 15-1009, --- F.3d ---, 2016
WL 1660166, at *5 n.7 (4th Cir. Apr. 27, 2016).


                                            16
                           B. Sua Sponte Reopening

     Lawrence alternatively argues that the Board should have

reopened      the   case    sua   sponte,        regardless    of     whether    it

determined     equitable    tolling    was   appropriate.           See   8   C.F.R.

§ 1003.2(a) (providing that the Board “may at any time reopen or

reconsider on its own motion any case in which it has rendered a

decision”).

     But we lack jurisdiction to review how the Board exercises

its sua sponte discretion.          In Mosere v. Mukasey, 552 F.3d 397

(4th Cir. 2009), we followed the lead of other circuits and

concluded that such Board rulings were unreviewable:

     [B]ecause there are no meaningful standards by which
     to evaluate the BIA’s decision not to exercise its
     power to reopen under 8 C.F.R. § 1003.2(a), we find,
     in concert with every court to have considered this
     issue, that we lack jurisdiction to review the BIA’s
     refusal to reopen [the petitioner’s] case sua sponte.

Id. at 398-99.

         Lawrence provides no convincing basis for the Court to

distinguish Mosere and exercise jurisdiction over a sua sponte

decision. 5     Because    Mosere     is   the    rule   in   this   circuit,     we

decline jurisdiction over this issue.



     5 Lawrence’s reliance on Mahmood v. Holder, 570 F.3d 466 (2d
Cir. 2009), is misplaced.       There, the Second Circuit found
jurisdiction and remanded for the Board to reconsider exercising
its sua sponte discretion.     Id. at 467.   But it did so only
after concluding that the Board “may have . . . misperceived the
legal background and thought, incorrectly, that a reopening
(Continued)
                                       17
                          III. Conclusion

     For all these reasons, Lawrence’s petition for review of

the Board’s decision is

                             DISMISSED IN PART AND DENIED IN PART.




would necessarily fail.” Id. at 469. Even if we were to adopt
such an exception to Mosere, it would not apply here.   Nothing
suggests   the   Board   “misperceived”  Lawrence’s  underlying
Moncrieffe argument or thought the “reopening would necessarily
fail.”   To the contrary, the Board declined to use its sua
sponte power because of the untimely filing: it concluded that
the case did not present an “exceptional situation” and noted
that the sua sponte power “is not meant to be used as a general
cure for filing defects.” A.R. 4.


                                18
