Use this button to switch between dark and light mode.

CA5 (2-1) on Motions to Reopen, Change in Law: Gonzalez Hernandez v. Garland

August 13, 2021 (2 min read)

Gonzalez Hernandez v. Garland

Majority: "Because the statute specifies that a motion to reopen must state “new facts,” and Gonzalez Hernandez’s motion arose from a change in law, the BIA’s decision not to construe Gonzalez Hernandez’s motion as a motion to reopen is not arbitrary and capricious, legally in error, or an abuse of discretion. To 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, making the 30-day time limit for motions to reconsider new legal decisions superfluous. The BIA did not err. ... The BIA’s decision ... did not violate Gonzalez Hernandez’s right to due process or equal protection. For the foregoing reasons, the petition for review is DENIED."

Dissent: "The principle that courts must “[t]reat like cases alike” is “the central precept of justice.” H.L.A. Hart, The Concept of Law 164 (3d ed. 2012) (quotation marks omitted); see also Aristotle, Ethica Nicomachea V.3.1131a–1131b (W.D. Ross trans. 1925) (“[T]hings that are alike should be treated alike.”). People in similar situations should be able to expect similar outcomes. That is not happening here. ... The BIA has also repeatedly allowed immigrants to bring motions to reopen based on a “change in law.” ... It has even granted motions to reopen based on Dimaya. In re Miguel Aguilar Elias, 2019 WL 3857790, at *2 (BIA May 15, 2019) (unpublished). Hitting closest to home, the BIA allowed Gonzalez Herndanez’s brother, Daniel, to bring a motion to reopen based on a “change in Law”—and granted it. In re Santos Daniel Gonzalez Hernandez, 2018 WL 4692813, at *2 (BIA Sept. 11, 2018) (unpublished). Indeed, in the past few years, the BIA has advised petitioners that motions to reopen, rather than motions to reconsider, are the proper vehicle to mount a change-in-law challenge to removal. ... In coming up with its own interpretation, the majority erases what has come before. Apparently the Lugo-Resendez panel took up nine pages in the Federal Reporter to allow the petitioner to pursue a motion to reopen that we are now told the statute forbids. The need for consistency animates bedrock jurisprudential principles like stare decisis. When it comes to agency actions, consistency is a statutory command. Agency action is unlawful when it is arbitrary or capricious. 5 U.S.C. § 706(2)(A). What is more arbitrary than treating people in the same situation differently? ... Under our caselaw and that of the BIA, Gonzalez Hernandez should have his claim heard. Just like Lugo-Resendez’s claim was heard. Just like his own brother’s claim was heard."