Gonzalez Hernandez v. Garland

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 3, 2023
• Docket: 22-60110
• Status: Unpublished

Opinion

Case: 22-60110 Document: 00516699130 Page: 1 Date Filed: 04/03/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED April 3, 2023 No. 22-60110 Lyle W. Cayce Clerk

Fredy Omar Gonzalez Hernandez,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A043 733 593

Before King, Jones, and Duncan, Circuit Judges. Per Curiam:* Fredy Omar Gonzalez Hernandez petitions this court for review of an order of the Board of Immigration Appeals denying his motion to reconsider its earlier decision. He had previously petitioned this court for review of that earlier decision, and we denied the petition for review. This petition for review is similarly DENIED.

* This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-60110 Document: 00516699130 Page: 2 Date Filed: 04/03/2023

No. 22-60110

I. Fredy Omar Gonzalez Hernandez, a native and citizen of El Salvador, was admitted to the United States as a lawful permanent resident in 1992. In 2001, he pled guilty to “deadly conduct” in violation of Texas Penal Code § 22.05(b); later that year, he was served with a Notice to Appear (“NTA”), charging him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as a noncitizen convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(F). Gonzalez Hernandez, proceeding pro se, filed an application for withholding of removal. The Immigration Judge (“IJ”) denied his application and ordered him removed to El Salvador. Through counsel, Gonzalez Hernandez filed an appeal with the Board of Immigration Appeals (“BIA”); the BIA dismissed the appeal for lack of jurisdiction because it was untimely filed. After completing his sentence, he was removed to El Salvador, where he remains today. On July 12, 2018, Gonzalez Hernandez filed a motion to reconsider and terminate, which also sought, in a lone footnote, reopening of his removal proceedings. The motion was filed on the heels of Sessions v. Dimaya, which held that 18 U.S.C. § 16(b) as incorporated into 8 U.S.C. § 1101(a)(43)(F), the law under which Gonzalez Hernandez was charged as removable, was unconstitutionally vague. 138 S. Ct. 1204, 1223 (2018). Gonzalez Hernandez’s brother first informed him of the Dimaya ruling on April 17, 2018, approximately three months before Gonzalez Hernandez filed his motion. The IJ denied the motion on August 31, 2018, finding the motion untimely because it was not filed within thirty days of the final administrative order of removal. See 8 U.S.C. § 1229a(c)(6)(B). Assuming arguendo that Gonzalez Hernandez was entitled to equitable tolling based on the Dimaya

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decision, the IJ determined that the motion to reconsider remained untimely because it was filed more than thirty days after Gonzalez Hernandez learned of the change in law upon which his motion relied. On appeal, the BIA agreed with the IJ that Gonzalez Hernandez’s motion was untimely, ruling that he was required by statute to file his motion for reconsideration within thirty days of discovering the potential effect of Dimaya on his removal order, which he failed to do. The BIA also rejected Gonzalez Hernandez’s argument that the IJ erred in not treating his motion to reconsider as a motion to reopen, holding that a change in law cannot form the basis of an otherwise untimely motion to reopen because such motions must be based on “new facts.” See id. § 1229a(c)(7)(B). Gonzalez Hernandez filed a timely petition for review with this court. See Gonzalez Hernandez v. Garland, 9 F.4th 278, 283 (5th Cir. 2021), cert. denied, 143 S. Ct. 86 (2022). While his petition was pending, he also filed a motion for reconsideration with the BIA, arguing that it erred in failing to consider his motion to reopen. He later filed with the BIA an additional motion for reconsideration or reopening in light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), arguing that his NTA was defective and deprived the immigration court of jurisdiction to order him removed in the first place. On August 13, 2021, this court issued an opinion denying Gonzalez Hernandez’s petition for review of the BIA’s dismissal of his appeal. Gonzalez Hernandez, 9 F.4th at 281. The panel first held that the BIA did not err by denying Gonzalez Hernandez’s motion for reconsideration as time barred because the BIA’s decision to end the tolling period on April 17, 2018, the day Gonzalez Hernandez learned of the Dimaya decision, was supported by substantial evidence. Id. at 284. It then held that the BIA did not err by declining to construe Gonzalez Hernandez’s motion to reconsider as a motion to reopen based on the plain language of 8 U.S.C. § 1229a(c)(7)(B), which requires a motion to reopen to state “new facts” rather than a change

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in law. Id. at 284–86. Therefore, the panel determined that the BIA did not err by requiring Gonzalez Hernandez to file his motion to reconsider within thirty days. Id. at 286. On January 28, 2022, the BIA denied Gonzalez Hernandez’s remaining motions. First, the BIA denied his motion to reconsider its prior decision, concluding that its previous decision was correct and supported by this court’s determination that Gonzalez Hernandez failed to establish that he warranted reconsideration or reopening of his removal proceedings. It also denied his motion to reopen and terminate in light of Niz-Chavez, determining that the immigration court possessed jurisdiction over Gonzalez Hernandez’s removal proceedings despite the defective NTA. Gonzalez Hernandez timely filed a petition for review of the BIA’s latest decision, arguing that the BIA erred in affirming the denial of his motions and in holding that he was required to file his motion within thirty days of discovering the relevant change in law.1 II. We review the decision of the BIA and consider the IJ’s underlying decision only to the extent that it influenced the BIA’s determination. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). The BIA’s legal conclusions are reviewed de novo, while its factual findings are reviewed for substantial evidence. Orellana-Monson v. Holder, 685 F.3d 511, 517–18 (5th Cir. 2012). The denial of a motion to reopen or a motion for reconsideration is reviewed under a highly deferential abuse-of-discretion standard. Hernandez-

1 After filing his opening brief, Gonzalez Hernandez determined that his jurisdictional arguments related to the motion for reconsideration or reopening he filed in light of Niz-Chavez were foreclosed by circuit precedent and abandoned them. As such, we do not consider those arguments here.

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Castillo v. Sessions, 875 F.3d 199, 203–04 (5th Cir. 2017); Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). We must affirm the BIA’s decision unless it is “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Zhao, 404 F.3d at 304 (quoting Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993)). III. Gonzalez Hernandez contends that, by denying his motion for reconsideration, the BIA abused its discretion for three principal reasons. He first argues that the BIA failed to independently adjudicate his motion to reopen and instead treated Gonzalez Hernandez as binding with respect to that motion. This was an abuse of discretion, he alleges, because the earlier panel lacked jurisdiction over his motion to reopen as the motion had not yet been exhausted as required by 8 U.S.C. § 1252(d). He then argues that the BIA abused its discretion by relying upon this court’s decision in Gonzalez Hernandez, which he contends was wrongly decided. Last, he argues that the current statutory scheme underscores that a change in law can be a basis for a motion to reopen, and the BIA abused its discretion by failing to consider this. We address each argument in turn. A. Gonzalez Hernandez argues that the BIA abused its discretion by treating the first panel’s opinion as binding with respect to his motion to reopen. He asserts that the motion to reopen was unexhausted because of the pending motion for reconsideration before the BIA, thereby depriving the panel of jurisdiction over that issue.2 If the panel lacked jurisdiction, he

2 Gonzalez Hernandez presented this argument to the first panel in a petition for panel rehearing, which the panel denied.

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contends, then its statements concerning his motion to reopen were only dicta and did not create law that the BIA was bound to follow. While it is true that this court lacks jurisdiction over issues that have not been exhausted before the BIA, a motion for reconsideration is generally not required for exhaustion—“if a party disagrees with the BIA’s resolution of an issue previously raised before the BIA, there is no need to reargue this issue in a motion for reconsideration.” Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009); see also Martinez-Guevara v. Garland, 27 F.4th 353, 360 (5th Cir. 2022) (“In this circuit, a petitioner exhausts a claim by presenting it to the BIA—whether on appeal or on a motion to reconsider.”). In his initial appeal to the BIA, Gonzalez Hernandez argued that the IJ erred in not treating his motion to reconsider as a motion to reopen. The BIA rejected this argument in 2019, giving this court jurisdiction to consider the issue during the first appeal. Therefore, the BIA in 2022 did not abuse its discretion in treating Gonzalez Hernandez as binding precedent. B. Gonzalez Hernandez next argues that the BIA abused its discretion by following Gonzalez Hernandez, a decision which he alleges was clearly erroneous because changes in law have previously served as grounds for granting motions to reopen. “Generally, the law of the case doctrine precludes reexamination by the appellate court on a subsequent appeal of an issue of law or fact decided on a previous appeal.” United States v. Agofksy, 516 F.3d 280, 283 (5th Cir. 2008). It is a discretionary doctrine, and we have previously identified three exceptions to the general rule against reexamination: “(1) The evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; and (3) the earlier decision is clearly erroneous and would work a

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manifest injustice.” Id. (quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)). Gonzalez Hernandez argues the third exception applies—that the earlier panel’s decision is clearly erroneous and would work a manifest injustice in his case. Accordingly, we must determine whether the prior panel’s decision was clearly erroneous and, if so, whether that error would result in a manifest injustice. “Mere doubts or disagreement about the wisdom of a prior decision of this or a lower court will not suffice for this exception. To be ‘clearly erroneous,’ a decision must strike us as more than just maybe or probably wrong; it must be dead wrong.” All. for Good Gov’t v. Coal. for Better Gov’t, 998 F.3d 661, 668 (5th Cir. 2021) (quoting City Pub. Serv. Bd. v. Gen. Elec. Co., 935 F.2d 78, 82 (5th Cir. 1991)). In Gonzalez Hernandez, the panel held that “[t]he BIA did not err by declining to construe Gonzalez-Hernandez’s motion to reconsider as a motion to reopen” because 8 U.S.C. § 1229a(c)(7)(B), the statute governing motions to reopen, “specifies that a motion to reopen must state ‘new facts,’ and Gonzalez Hernandez’s motion arose from a change in law.” 9 F.4th at 284–86. As the panel explained, “[t]o allow changes of law to be addressed in motions to reopen would contravene the statute and collapse the difference between a motion to reconsider and a motion to reopen with respect to changes in law,” thereby making superfluous the thirty-day statutory time limit for motions to reconsider new legal decisions. Id. at 286. Gonzalez Hernandez argues that this was clearly erroneous. In support of his position, he principally relies upon Judge Costa’s dissent from the first panel’s decision, which itself relies upon precedent from the Supreme Court, this circuit, and the BIA. See Gonzalez Hernandez, 9 F.4th at 287–89 (Costa, J., dissenting). He contends that Gonzalez Hernandez contradicts the Supreme Court’s decision in Dada v. Mukasey, 554 U.S. 1, 12

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(2008), where the Court recognized that a motion to reopen asks the BIA “to change its decision in light of newly discovered evidence or a change in circumstances,” because a substantive change in law is a change in circumstances. He states that our precedent has previously applied this principle—that a change in law is acceptable grounds for bringing forth a motion to reopen. E.g., Gonzalez-Cantu v. Sessions, 866 F.3d 302, 304 (5th Cir. 2017); Lugo-Resendez v. Lynch, 831 F.3d 337, 339 (5th Cir. 2016). Finally, Gonzalez Hernandez argues that the BIA, in several, mostly unpublished decisions, has permitted and even encouraged the use of motions to reopen for consideration of subsequently issued cases. Despite these arguments, we remain unconvinced that the prior decision was “dead wrong.” All. for Good Gov’t, 998 F.3d at 668. The previous panel considered, and rejected, the same arguments Gonzalez Hernandez makes in his current appeal. Gonzalez Hernandez is not in clear tension with Dada, as that case examined motions to reopen only in the context of newly offered evidentiary material, not a change in law. See Gonzalez Hernandez, 9 F.4th at 285 & n.2 (distinguishing the cases). Nor does Gonzalez Hernandez obviously contradict circuit precedent. As the prior panel explained, our precedent does not squarely address this issue and was ultimately decided on other grounds; the cases cited by Gonzalez Hernandez “do[] not directly comment on the propriety of such motions.” Id. at 286 n.4. That the BIA has adopted a contrary approach in several unpublished opinions does “not constitute a settled course of adjudication from which deviation would constitute an abuse of discretion” or establish that the prior panel was dead wrong in its decision. Id. (citing Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1118–19 (9th Cir. 2019)). Ultimately, this is not one of the rare “extraordinary circumstances” where the clearly-erroneous exception to the law of the case doctrine applies, particularly where Gonzalez Hernandez only repurposes arguments made by the prior panel’s dissenting judge. All. for

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Good Gov’t, 998 F.3d at 668 (quoting City Pub. Serv. Bd., 935 F.2d at 82). Such disagreements are more appropriately resolved through petitioning this court for rehearing en banc or the Supreme Court for a writ of certiorari. Gonzalez Hernandez did not seek en banc rehearing, and the Supreme Court denied his petition for a writ of certiorari. See Gonzalez Hernandez v. Garland, 143 S. Ct. 86 (2022). Accordingly, the BIA did not abuse its discretion by relying upon the first panel’s decision in its most recent dismissal of Gonzalez Hernandez’s appeal. C. Finally, Gonzalez Hernandez argues that the BIA ignored a recent amendment to the regulations concerning motions to reopen, which states that a motion to reopen can be brought based on a “material change in fact or law.” See 8 C.F.R. § 1003.2(c)(3)(v)(A) (emphasis added). However, Gonzalez Hernandez does not dispute that he never presented this argument to the BIA, nor did the BIA address it in either of its opinions considering Gonzalez Hernandez’s motions. An issue not first raised before nor addressed by the BIA is unexhausted. Vazquez v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018). Therefore, we lack jurisdiction to consider this argument. See Martinez-Guevara, 27 F.4th at 360. IV. For the foregoing reasons, the petition for review is DENIED.