Gonzalez Hernandez v. Garland ( 2023 )

Case: 22-60110 Document: 00516897592 Page: 1 Date Filed: 09/15/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 15, 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
ON PETITION FOR REHEARING
Before King, Jones, and Duncan, Circuit Judges.
Per Curiam:*
In light of Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023), the
petition for panel rehearing is GRANTED. Our prior panel opinion,
Gonzalez Hernandez v. Garland, No. 22-60110, 2023 WL 2759059 (5th Cir.
Apr. 3, 2023), is WITHDRAWN and the following opinion is
SUBSTITUTED therefor:
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60110
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.
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,
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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
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
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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
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
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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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-
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)(1). 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.
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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 under 8
U.S.C. § 1252(d)(1) because of the pending motion for reconsideration
before the BIA, thereby depriving the panel of jurisdiction over that issue.2
However, the Supreme Court recently held in Santos-Zacaria v.
Garland that § 1252(d)(1)’s “exhaustion requirement is not jurisdictional
and does not oblige a noncitizen to seek discretionary review, like
reconsideration before the Board of Immigration Appeals.” 143 S. Ct. 1103,
1120 (2023). In other words, a petitioner’s “failure to press [a] claim in a
motion for reconsideration before the BIA is no bar to our considering it.”
Carreon v. Garland, 71 F.4th 247, 252 (5th Cir. 2023).
Gonzalez Hernandez argued in his initial appeal to the BIA that the IJ
erred by not treating his original motion as a motion to reopen; as such, that
issue was exhausted when we considered and rejected it in Gonzalez
Hernandez.3 Even if it had not been exhausted, the Supreme Court held that
a petitioner’s failure to satisfy § 1252(d)(1) does not deprive this court of
jurisdiction to consider an issue. Santos-Zacaria, 143 S. Ct. at 1114. Thus, the
BIA properly treated Gonzalez Hernandez as binding.
2
Gonzalez Hernandez presented this argument to the first panel in a petition for
panel rehearing, which the panel denied.
3
In his petition for panel rehearing, Gonzalez Hernandez argues that because he
believed that he had not appropriately exhausted this issue, and thus filed a motion to
reconsider with the BIA, he is now “effectively prevented from ever receiving full and fair
reconsideration of his Motion to Reopen arguments by the BIA.” But the BIA reconsidered
his arguments relating to the motion to reopen and, in January 2022, found that its previous
decision was correct.
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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
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,’
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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
(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
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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
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). The Government
argues that this argument is unexhausted under 8 U.S.C. § 1252(d)(1)
because Gonzalez Hernandez failed to present it before the BIA, and
Gonzalez Hernandez concedes as much in his petition for panel rehearing.
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In Santos-Zacaria, the Supreme Court clarified that § 1252(d)(1)’s
exhaustion requirement is a claim-processing rule subject to waiver and
forfeiture. 143 S. Ct. at 1114, 1116. Accordingly, the Government may timely
object to our consideration of arguments that a petitioner failed to exhaust
before the BIA. Carreon v. Garland, 71 F.4th 247, 254 (5th Cir. 2023). We
agree with the Government’s objection that this argument is unexhausted
and therefore decline to reach it.4
IV.
For the foregoing reasons, the petition for review is DENIED.
4
We do not decide whether § 1252(d)(1) is a mandatory claim-processing rule
because we would enforce the exhaustion requirement in this case even if the rule was not
mandatory. See Carreon, 71 F.4th at 257 n.11.
10