United States Court of Appeals

for the Fifth Circuit

No. 22-60110

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Apr. 3, 2023), is WITHDRAWN and the following opinion is 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.

United States Court of Appeals

Fifth Circuit

FILED

September 15, 2023

Lyle W. Cayce

Clerk

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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. HernandezCastillo 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.

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