Case: 19-60274 Document: 00515977137 Page: 1 Date Filed: 08/13/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 13, 2021 No. 19-60274 Lyle W. Cayce Clerk Fredy Omar Gonzalez Hernandez, also known as Fredy Omar Gonzalez, 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 Jones, Costa, and Duncan, Circuit Judges. Edith H. Jones, Circuit Judge: Fredy Omar Gonzalez Hernandez, a lawful permanent resident reared in Katy, Texas, was removed to El Salvador because of a conviction that qualified as a “crime of violence” under the Immigration Nationality Act. Years later, on April 17, 2018, Gonzalez Hernandez learned of the Supreme Court’s decision in Sessions v. Dimaya, which he alleged made his removal unlawful. 138 S. Ct. 1204 (2018). He filed a motion to reconsider and terminate, or, in the alternative, to reopen proceedings. The Board of Immigration Appeals (“BIA”) construed the motion as one to reconsider and Case: 19-60274 Document: 00515977137 Page: 2 Date Filed: 08/13/2021 No. 19-60274 dismissed it, concluding that the equitable tolling period (if any) ended on April 17, and the motion was filed more than 30 days later, beyond the statutory deadline. The BIA also declined to consider the motion as one to reopen, although, taking tolling into account, it was timely filed before the 90-day statutory deadline. Gonzalez Hernandez petitioned this court for review of the denial of his motion both as to reconsideration and as to reopening. We deny relief and emphasize the statutory difference between these two administrative review devices. BACKGROUND Fredy Omar Gonzalez Hernandez is a native and citizen of El Salvador. He arrived in the United States with his family when he was six years old. In 1992, he became a lawful permanent resident. On January 18, 2001, Gonzalez Hernandez pled guilty to one count of violating Texas Penal Code § 22.05(b), entitled “Deadly Conduct,” which criminalizes knowingly discharging a firearm at or in the direction of one or more individuals or a habitation, building, or vehicle while being reckless as to whether that habitation, building, or vehicle is occupied. Originally, Gonzalez Hernandez was sentenced to eight years deferred adjudication. He was sentenced to four years of incarceration and a $500 fine after he violated the terms of his deferred adjudication. On May 10, 2001, Gonzalez Hernandez was served with a Notice to Appear (NTA). The NTA charged Gonzalez Hernandez as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien who committed an aggravated felony defined by 8 U.S.C. § 1101(a)(43)(F) as a crime of violence. The NTA did 2 Case: 19-60274 Document: 00515977137 Page: 3 Date Filed: 08/13/2021 No. 19-60274 not specify a date or time for the hearing. A second notice, which included a date and time, was served on June 13, 2001. 1 Gonzalez Hernandez, acting pro se, filed an application for withholding of removal. The case came for a merits …
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