                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

SAUL GREGORIO MARTINEZ,            
                     Petitioner,         No. 04-72975
              v.
                                         Agency No.
                                         A70-217-803
MICHAEL B. MUKASEY, Attorney
General,                                   OPINION
                    Respondent.
                                   
        On Petition for Review of an Order of the
             Board of Immigration Appeals

               Argued and Submitted
        December 7, 2007—Pasadena, California

                 Filed October 6, 2008

      Before: Harry Pregerson, John T. Noonan, and
             Stephen S. Trott, Circuit Judges.

                Opinion by Judge Trott;
             Concurrence by Judge Noonan;
              Dissent by Judge Pregerson




                         14193
                    MARTINEZ v. MUKASEY                14195


                        COUNSEL

Kari E. Hong, Law Offices of Helen A. Sklar, Los Angeles,
California, for the petitioner.

Arthur L. Rabin, U.S. Department of Justice, Office of Immi-
gration Litigation, Washington D.C., for the respondent.


                         OPINION

TROTT, Circuit Judge:

   Saul Martinez, a native of Guatemala, petitions for review
of a Board of Immigration Appeals’ (“BIA”) decision on
remand that denied his claims for asylum, withholding of
removal, and voluntary departure. In its decision, the BIA
upheld the Immigration Judge’s (“IJ”) adverse credibility
finding regarding Martinez. In a 2003 decision, this court
14196                MARTINEZ v. MUKASEY
remanded the matter to the BIA for further proceedings, con-
cluding that it had failed to provide cogent reasons for reject-
ing Martinez’s testimony in support of his application.
Martinez v. INS, 72 F. App’x 564 (9th Cir. 2003). Martinez
also petitions for review of the BIA’s decision that denied his
motion to reopen to consider his Convention Against Torture
claim.

  We have jurisdiction over this timely petition, which we
deny on both counts.

                               I

   The facts pertaining to Martinez’s credibility — or the lack
thereof — are striking. In his initial Request for Asylum in the
United States dated September 21, 1992, he made the follow-
ing admittedly false representations under penalty of perjury,
declaring that “the above and all accompanying documents
are true and correct to the best of my knowledge and belief”:

    I am seeking Asylum in the US. Because in Guate-
    mala I was threatened by the Gobernment because I
    was in the University of San Carlos I was Leader of
    the Students in the University of San Carlos and for
    this reason the Gobernment persecuted and threat-
    ened me, I am afraid to return Guatemala because
    many of my companions to disappear completely
    and I can to disappear likewise. I was constantly
    threatened by the Gobernment and my life was in
    more danger than the rest of the people of my coun-
    try. If I didn’t leave, I would have been killed.

    The constant conflicts that exist in Guatemala no
    security for anyone. In my case that I belonged to
    student groups is very hard to live in Guatemala.

    ....
                     MARTINEZ v. MUKASEY                   14197
    I was in Student Group of The University of San
    Carlos during the period between 1986 to Nov. 1991.
    I was active member. My duties were to organized
    Political Meeting. And organized to the Students.

    ....

    I was threatened by the Gobernment they have gone
    on various occasions to my house and the University
    looking for me. because I was Leader of the Students
    in the University of San Carlos, causing my life to
    be threatened to death by the Gobernment.

    ....

    I came to the US. in search of protection of my life,
    I also came in search of a peaceful life without
    always having to fear for my life, because in Guate-
    mala my life was in danger, I was always persecuted
    by the Gobernment.

   The next step in what turns out to have been a plot to
deceive the Immigration and Naturalization Service, the
United States Department of Justice, and the Attorney Gen-
eral was to foil the asylum officer assigned to his case. To
accomplish this ruse, he appeared in person before the officer
three years after his application and testified under oath —
again falsely — that he was the victim of persecution “on
account of my political opinion.” Moreover, he swore before
the officer that the content of his initial request was true. The
officer’s Assessment Report dated November 14, 1995, dem-
onstrates that his hoax was designed to fit neatly into the
requirements of our asylum law. The report reads as follows:

    Applicant indicated that he is a 31-year-old male
    native and citizen of Guatemala who entered the
    United States on May 14, 1992 at San Ysidro, Ca
    without inspection.
14198                MARTINEZ v. MUKASEY
    Applicant fears that he will be killed by the govern-
    ment on account of his political opinion.

    Applicant credibly testified that in January 1991, he
    became a leader in a student club at San Carlos Uni-
    versity. Applicant stated that he began having prob-
    lems due to his political opinion after participating in
    Mardi Gras type parades with political overtones.
    Applicant began receiving threatening phone calls in
    January 1991 and believed that agents of the govern-
    ment were responsible. Applicant did not stated [sic]
    a political opinion in response to the phone calls.
    Applicant stated that the calls persisted through June
    1991, when Applicant went to visit his parents in
    Puerto Barrios. Applicant did not expereince [sic]
    any problems in Puerto Barrios and stated that it was
    a remote little town far from Guatemala City. In
    August 1991, Applicant was chased by a car. Appli-
    cant was not harmed, although he believed that the
    government was responsible. In November 1991,
    Applicant was again chased by a car and shot at.
    Applicant was not harmed and believed that the gov-
    ernment was trying to scare him. Applicant left Gua-
    temala the next day and traveled through Mexico
    prior to coming to the United States. Applicant fur-
    ther stated that he has a brother, who is currently liv-
    ing in Guatemala City and not experiencing any
    problems with the Government. Applicant’s family
    is presently living in Puerto Barrios, and not experi-
    encing problems with the government.

    Applicant has been threatened on several occasions
    on account of his political opinion. Threats alone do
    not constitute persecution. The Applicant has not
    established a well-founded fear of future persecu-
    tion. It appears that the threats the Applicant suffered
    were local in nature. The Applicant was able to live
    in Puerto Barrios, and not experience problems with
                     MARTINEZ v. MUKASEY                   14199
    the government. Applicant’s parents are presently
    living in Puerto Barrios and not experiencing prob-
    lems. Applicant has not established that the govern-
    ment has the inclination to pursue him. Applicant
    can relocate.

    For the foregoing reasons, Applicant is not eliglible
    [sic] for asylum in the United States. Assessment is
    to refer to the Immigration Judge.

(emphasis added).

   Three aspects of this report are particularly noteworthy.
First, the level of invented detail with which Martinez pre-
sented his false claim. Second, his ability to convince an
experienced asylum officer that his swindle was credible; and
third, Martinez’s failure nonetheless to achieve a favorable
asylum eligibility recommendation.

   Having failed to convince the asylum officer that his phony
political persecution story made him eligible for asylum, Mar-
tinez simply changed his tune, shed his first yarn, and showed
up three months later for a hearing before an IJ, armed with
an entirely new ground designed to make him eligible for asy-
lum. No longer had he been a victim of persecution on
account of his political opinion. Now, euphemistically calling
his bogus initial request “partially incorrect,” he averred that
he had been persecuted because of his homosexuality.

   When confronted at his hearing with his previous story,
Martinez conceded that both the elaborate tale he recounted
in his initial request and then repeated in person three years
later to the asylum officer was a fabrication. He allowed that
he had taken an oath to tell the truth to the officer, but that he
had lied anyway because his “life was in danger.” When
pressed, Martinez admitted that the asylum officer had not
been intimidating and that he had never had any problem dur-
14200                MARTINEZ v. MUKASEY
ing the four years he had been in the United States with gov-
ernment officials because of his homosexuality.

   The context of Martinez’s lies under oath to the asylum
officer was the subject of direct testimony by the officer, none
of which supports the existence of a hostile interview atmo-
sphere which would explain Martinez’s adherence to his lies
or his alleged fear of danger. The officer’s testimony amply
supports the IJ’s disbelief of Martinez’s explanation of his
lies. Stating that he specifically recalled Martinez’s interview,
the officer said:

    I, I do swear them in also. I think I stated that also,
    you know, as I was sworn today stating that he
    should tell the truth and such. We — I personally
    explain the procedure trying to make him feel as
    comfortable as possible letting them know what the
    next step is in the procedure even prior to getting to
    the interview. After explaining the procedure we go
    ahead and verify the biographical data on the I-589,
    okay, and ask for any other evidence that he may be
    willing to provide at that time. We assure that the
    interview is very confidential, that nothing will get
    back to Guatemala. That’s part of the procedure and
    basically trying to reassure the applicant we’re there
    to help them if we can. So they tell, tell us their com-
    plete story and we go, we go ahead over all the bio-
    graphical information and also the, the testimony on
    the I-589. And we, we start — usually I start by ask-
    ing him the application to tell me the most severe
    incidents that he experienced in Guatemala that com-
    pelled him to come to the United States. I make it
    clear that there are five grounds so there is not just,
    not just one ground that there — I also let them
    know that there is membership in political social —
    political group which is more or less a — member-
    ship in a, in a social group, excuse me. Not necessar-
    ily in a political group. I do ask whether he’s, he’s
                     MARTINEZ v. MUKASEY                   14201
    been a member of any groups or organizations, polit-
    ical or otherwise, other than the Catholic church per
    se. I, I do make it clear that there are five grounds.
    And we, we get into eliciting information, ascertain-
    ing that information for credibility, that’s the major-
    ity of the interview. Okay. We stress credibility very
    highly and then upon completion of the interview I,
    I bring any changes that were made during the inter-
    view on the 589 or in testimony, anything that is
    inconsistent with what, what was explained origi-
    nally. That is addressed. Upon addressing any incon-
    sistencies we have the applicant sign stating that all
    the testimony that he has provided on the 589 and
    also his verbal testimony is true and correct.

(emphasis added).

   In a thorough and detailed twenty-three page decision, the
IJ arrayed every aspect of the case and evidence before him
and then turned to Martinez’s credibility. Noting that the bur-
den to demonstrate eligibility rested with the petitioner, the IJ
made the following lack of credibility finding:

       The Respondent has presented insufficient spe-
    cific facts as well as concrete and/or credible evi-
    dence for the Court to infer that he has been
    persecuted or has a well-founded fear of persecution
    in Guatemala on account of his race, his religion, his
    nationality, his membership in a particular social
    group or his political opinion. The basis of the
    Respondent’s claim to asylum before this Court was
    dramatically inconsistent with the claim presented to
    the INS in 1992 and reaffirmed before an INS asy-
    lum officer on November 13, 1995. Although
    Respondent provides an explanation for the different
    claims I do not find that explanation to be credible.
    In light of the Respondent’s intelligence and more
    than three years time in the Los Angeles area during
14202                MARTINEZ v. MUKASEY
    which time he appears to have freely associated with
    other gays and to have had no untoward difficulties
    with governmental authorities Respondent did not
    acquire the articulate intelligent relaxed demeanor
    which he exhibited in this Court overnight. More-
    over, we have a situation where the Respondent did
    worse than neglect for whatever reason to refer to his
    “homosexual” claim in 1992 or 1995, he set forth
    “student/political” claim which was completely
    untrue and he knew it was untrue. The Respondent’s
    prior experience does not entitle him to come to the
    United States and lie to a governmental official to
    secure benefits under the laws of this country. Based
    upon this conduct I find that Respondent’s present
    claim of mistreatment due to his homosexuality
    lacks credibility and, indeed, that Respondent is not
    a person of good moral character as that term is
    defined at Section 101(f)(6) of the Act.

    ....

    The Respondent has applied for the privilege of vol-
    untary departure pursuant to Section 244(e) of the
    Act as it existed prior to April 1, 1997. That section
    requires an alien to establish that he is a person of
    good moral character at least five years immediately
    preceding his application. Good moral character as a
    defined term in Section 101(f)(6) of the Act bars the
    finding of good moral character if the alien has given
    false testimony for the purpose of obtaining any ben-
    efit under the Act. In this case, Respondent is unable
    to establish statutory eligibility as he gave false testi-
    mony before an INS asylum officer on November
    13, 1995 for the purpose of obtaining asylum in the
    United States pursuant to Section 208 of the Act.
    Accordingly, Respondent’s application for voluntary
    departure is denied on statutory grounds.
                     MARTINEZ v. MUKASEY                   14203
   Specifically referencing that part of the IJ’s opinion dealing
with Martinez’s lack of credibility, the BIA determined in its
first Order denying asylum that Martinez had not presented a
credible testimonial claim sufficient to satisfy his burden of
proof. Addressing Martinez’s attempted explanation for the
difference between his two stories, the BIA said, “We are not
persuaded by the respondent’s explanations for this discrepan-
cy.” Martinez petitioned for review of that decision.

   In an unpublished memorandum decision, we said, “Be-
cause the BIA stated only that it was ‘not persuaded by
respondent’s explanations’ and provided no legitimate, let
alone cogent, reason for rejecting Martinez’s ‘wholly consis-
tent’ misrepresentation, we remand for proceedings consistent
with this disposition.” Martinez v. INS, 72 F. App’x 564. We
opined also that the BIA “did not adopt the IJ’s” credibility
decision. Id. On remand, the BIA corrected our misimpres-
sion, telling us that they had adopted the IJ’s reasoned
adverse credibility finding the first time around. The Board
then included in a new Order what our first panel majority
said was lacking in the BIA’s original decision: a specific,
cogent reason for rejecting Martinez’s justification for mis-
representing the basis for his fear of returning to Guatemala.
In addition, the Board formally affirmed its adoption in its
first Order of the IJ’s adverse credibility finding:

    On July 25, 2003, the Ninth Circuit remanded the
    instant proceeding to the Board after finding that the
    Board failed to provide a specific, cogent reason for
    rejecting the respondent’s justification for misrepre-
    senting the basis of his fear. Through his appeal, the
    respondent incorporates a motion to remand to pur-
    sue relief under the Convention Against Torture
    (“CAT”). The respondent’s appeal is dismissed. The
    respondent’s motion is denied.

       Upon review, we affirm our prior resolution of the
    instant case. Specifically, we find that the respondent
14204                MARTINEZ v. MUKASEY
    failed to sustain his burden of proof regarding asy-
    lum as the result of his lack of credibility. The record
    reflects that the respondent twice misrepresented the
    basis of his fear while testifying under oath (Exhs. 2
    and 12). Specifically, we note that the respondent
    initially claimed that he had been persecuted on
    account of his political opinion, however, he subse-
    quently retracted this claim and instead, asserted that
    he suffered persecution on account of his sexual ori-
    entation. We find this discrepancy material as it goes
    to the heart of the respondent’s asylum claim.

       Although the respondent explained that the afore-
    mentioned misrepresentation was due to his fear of
    experiencing additional persecution if the United
    States government learned of his sexual orientation,
    we do not find his justification persuasive. As
    observed by the Immigration Judge, the respondent
    spent more than 3 years in the Los Angeles area
    freely associating with other gays and furthermore,
    he did not experience any problems with any United
    States governmental authorities (I.J. at 17). As fur-
    ther noted by the Immigration Judge, the respondent
    exhibited an “articulate, intelligent and relaxed
    demeanor.” Id. In sum, we adopted the Immigration
    Judge’s decision below as the Immigration Judge
    articulated cogent reasons for his adverse credibility
    finding.

(emphasis added).

                              II

   [1] Before deciding whether the IJ’s adverse credibility
finding, adopted and elaborated by the BIA, was justified or
not, we must address a preliminary question: does our first
panel’s decision constitute the “law of the case” which we
                     MARTINEZ v. MUKASEY                  14205
must continue to apply as the matter comes to us for a second
time? If so, we would be required to grant Martinez’s petition.

   [2] We answer this question in the negative. As Judge Noo-
nan correctly explains in his concurring opinion, and as we
have previously held, the law of the case doctrine is “not an
absolute bar to reconsideration of matters previously decid-
ed.” Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th
Cir. 1995). It “merely expresses the practice of courts gener-
ally to refuse to reopen what has been decided, not a limit to
their power.” Messinger v. Anderson, 225 U.S. 436, 444
(1912). Although this important doctrine is not something we
take lightly, if the previous disposition was “clearly erroneous
and would work a manifest injustice,” we may reconsider pre-
viously decided questions. Leslie Salt, 55 F.3d at 1393.

   [3] Here, as the record indicates, our court’s previous deci-
sion was materially mistaken, primarily because it was based
on a misunderstanding of the BIA’s decision, i.e., that the
BIA had not adopted the IJ’s adverse credibility finding — we
now know that it had.

   [4] Second, I agree with Judge Noonan that to allow Marti-
nez at the end of the day to benefit from our mistake and his
deliberate attempt to deceive with invented facts our process
and the rule of law would constitute a manifest injustice.
Accordingly, we proceed to the next issue: whether the BIA’s
final decision passes muster, or not.

                              III

   [5] As the record reveals, Martinez repeatedly and persis-
tently lied under oath with respect to his application for asy-
lum. That his skillful lies were material and went to the heart
of his presentation goes without saying. The IJ’s reasons for
his adverse credibility finding “bear a legitimate nexus” to his
decision. Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir. 2000);
and we can discern no flaw in either the IJ’s or the BIA’s rea-
14206                    MARTINEZ v. MUKASEY
soning. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002).
Thus, both the IJ and the BIA’s adopted adverse credibility
findings are well supported by substantial uncontroverted evi-
dence in the record. Al-Harbi v. INS, 242 F.3d 882, 889-90
(9th Cir. 2001) (affirming negative credibility finding sup-
ported by applicant’s “propensity to change his story regard-
ing incidents of past persecution”). Accordingly, we deny
Martinez’s petition for review.1

   Petition DENIED.



NOONAN, Circuit Judge, concurring:

   This case turns on what is the law of the case. The doctrine
that requires a court to follow, save with rare exceptions, what
has previously been decided by the court obviously plays an
important part in the judicial process. We are not to be put in
the place of Penelope constantly unweaving and reweaving
our decisions.

   Judge Trott makes a compelling case that our initial deci-
sion was mistaken. Martinez had lied grossly and repeatedly
in his sworn asylum application and in his testimony three
years later before the asylum officer. His explanation for what
is politely called “discrepancies” is as unconvincing to me as
it was to the immigration judge who heard him in person.
Martinez is articulate and intelligent and made articulate and
intelligent misrepresentations under oath going to the heart of
his asylum claim.

  Does recognition of our original mistake call for abandon-
ment of the law of the case? No new law has intervened. No
  1
   We conclude that the BIA did not abuse its discretion in concluding
that Martinez failed to establish a prima facie case that warrants reopening
under the Convention Against Torture.
                     MARTINEZ v. MUKASEY                  14207
new evidence has been presented. Yet the law of the case is
not inexorable. It “merely expresses the practice of courts
generally to refuse to reopen what has been decided, not a
limit to their power.” Messenger v. Anderson, 225 U.S. 436,
444 (1912); see also Leslie Salt Co. v. United States, 55 F.3d
1388, 1393 (9th Cir. 1995) (explaining circumstances in
which court will not apply law of the case doctrine). To let a
brazen liar game the system and receive the great benefit of
a grant of asylum is an injustice. It is not the way the law was
meant to work. The injustice is “manifest” once the facts of
the case are set out. For this reason, I concur in Judge Trott’s
opinion.



PREGERSON, Circuit Judge, Dissenting:

   We have already decided the issue in this case, which is
whether the false statements in Martinez’s initial asylum
application and interview provided a sufficient basis to deny
his asylum claim. My colleagues have decided to disregard
the law of the case because they believe our previous disposi-
tion was “clearly erroneous and would work a manifest injus-
tice.” Because our previous disposition was neither clearly
erroneous nor would it work a manifest injustice, I dissent.

   The majority argues that our previous disposition was
clearly erroneous because it misunderstood whether the BIA
had adopted the IJ’s decision. Our previous disposition noted
that:

    As both parties conceded, the BIA undertook an
    independent analysis of Martinez’s testimony and
    “agreed with,” but did not adopt, the IJ’s decision
    that Martinez’s description of past persecution was
    not credible. See Cordon-Garcia v. INS, 204 F.3d
    985, 990 (9th Cir. 2000) (“Where the BIA reviews
    the IJ’s decision de novo, our review is limited to the
14208                 MARTINEZ v. MUKASEY
    BIA’s decision, except to the extent the IJ’s opinion
    is expressly adopted.”).

Martinez v. INS, 72 F.App’x 564 (9th Cir. 2003) (emphasis
added).

   The majority contends that we erred in concluding that the
BIA did not adopt the IJ’s decision—despite the fact that the
government had conceded that very point, as noted in the
above quote. The majority relies on the BIA’s later 2004 deci-
sion, which stated that the BIA had adopted the IJ’s decision
back in 2002. The BIA cannot avoid the court’s disposition by
retroactively recharacterizing its previous decision. The fact is
that the BIA’s 2002 decision did not adopt the IJ’s decision.
Nothing the BIA said in 2004 can change that fact. Our court
was clearly correct that the BIA’s 2002 decision did not adopt
the IJ’s decision. I fail to see how that could be clear error jus-
tifying discarding the law of the case.

   The majority also contends that upholding this court’s pre-
vious disposition would work a manifest injustice. I strongly
disagree. It was clearly wrong for Martinez to initially present
a false story about his persecution to immigration authorities.
It is not hard to imagine, however, that a gay man who has
suffered persecution on account of his sexual orientation
would hide that fact from government authorities. When Mar-
tinez filed his asylum application in 1992, the INS had not yet
recognized that persecution on account of sexual orientation
provided a valid basis for an asylum claim. See Karouni v.
Gonzales, 399 F.3d 1163, 1171 (9th Cir. 2005). Indeed,
before the Immigration Act of 1990, homosexuality was a
ground for exclusion for any immigrant seeking to enter this
county. See Pub. Law 101-649 § 601, 104 Stat. 4978, 5067
(1990); see also House Rep. No. 723(I), 101st Cong., 2d
Sess., p. 56, reprinted in 1990 U.S. Code Cong. & Ad. News
6710, 6736. In this context, it is easy to understand how Mar-
tinez might have felt compelled to invent a story to avoid
                    MARTINEZ v. MUKASEY                  14209
being returned to Guatemala, where he was persecuted on
account of his sexual orientation.

   As such, I am unable to understand how granting Marti-
nez’s petition would constitute manifest injustice. I therefore
dissent.
