Patricia Hernandez-Galand v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA MARISOL HERNANDEZ- Nos. 17-70538
GALAND, AKA Celena Hernandez- 19-70198
Gomez; M. E. H.-H., AKA M. M. H.-
H., Agency Nos.
Petitioners, A208-273-506
A208-273-507
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 1, 2021
San Francisco, California
Filed May 12, 2021
Before: Kim McLane Wardlaw and Marsha S. Berzon,
Circuit Judges, and Edward M. Chen, * District Judge.
Opinion by Judge Chen
*
The Honorable Edward M. Chen, United States District Judge for
the Northern District of California, sitting by designation.
2 HERNANDEZ-GALAND V. GARLAND
SUMMARY **
Immigration
The panel granted a petition for review of a decision of
the Board of Immigration Appeals affirming the denial of a
motion to reopen filed by Patricia Marisol Hernandez-
Galand and her minor child, and remanded, holding that
exceptional circumstances warranted reopening of
petitioners’ in absentia removal orders.
Petitioners, natives and citizens of El Salvador, appeared
pro se at their initial hearing. An Immigration Judge (“IJ”)
orally informed Ms. Hernandez that her next hearing date
was July 12, 2016, and gave her a written notice with a
hearing date of “07/12/2016.” Due to chronic memory
problems from a childhood head injury, Ms. Hernandez did
not remember the date the IJ had told her, and because she
cannot read, she asked family members to read the notice.
The family interpreted the date as December 7, 2016, based
on how numerical dates are typically written in Latin
America, with the day appearing before the month.
When Ms. Hernandez did not appear at the July 12, 2016,
hearing, the IJ ordered petitioners removed in absentia.
Petitioners timely filed a motion to reopen under 8 U.S.C.
§ 1229a(b)(5)(C)(i), contending that that exceptional
circumstances warranted reopening. The IJ denied the
motion, and the BIA affirmed.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HERNANDEZ-GALAND V. GARLAND 3
First, the panel considered the circumstances that caused
Ms. Hernandez’s failure to appear. The panel explained that
Ms. Hernandez non-conclusory and unrefuted testimony in
her sworn declaration about her memory problems was not
inherently unbelievable, and there was no evidence in the
record to contradict it. Thus, the panel concluded that the
BIA erred to the extent it disregarded this aspect of
Ms. Hernandez’s declaration simply because it lacked
corroboration, and the panel credited Ms. Hernandez’s
statements regarding her memory problems. The panel
further concluded that the facts regarding Ms. Hernandez’s
inability to read and her family’s misinterpretation of the
hearing date were not disputed by the government or
inherently unbelievable, and thus must be credited. The
panel therefore concluded that Ms. Hernandez’s failure to
appear was due not to her choices or a lack of diligence, but
to circumstances beyond her control.
The panel further explained that the BIA abused its
discretion by concluding that Ms. Hernandez should have
confirmed her hearing date through the immigration court’s
automated system, noting that the only evidence suggesting
that she was advised of the system were the written
instructions she could not read, and explaining that she and
her family had no reason to suspect that the hearing was not
on December 7, 2016.
Next, the panel concluded that the BIA erred in not
addressing whether Ms. Hernandez had any motive for
failing to appear, and whether petitioners’ in absentia
removal orders would cause unconscionable results. Since
the BIA made no findings as to either, there were no findings
entitled to substantial evidence review, and the panel
concluded that both factors weighed in favor of reopening.
First, the panel concluded that there was no basis to infer that
4 HERNANDEZ-GALAND V. GARLAND
Ms. Hernandez was attempting to evade or delay her
proceedings.
Second, the panel concluded that imposing the removal
orders here would present an unconscionable result,
explaining that the court has held that such results occur
where a petitioner who demonstrated a strong likelihood of
relief is removed in absentia. The panel recognized that
Ms. Hernandez had not yet established a likelihood of
success similar to that made in the relevant precedent, but
concluded that her claims to asylum and related relief were
not baseless. The panel observed that a likelihood of
prevailing is not a sine qua non of exceptional
circumstances; the court has made such a finding without a
showing of the strength of the petitioner’s case on the merits,
and the probability of relief is but one factor in the totality of
circumstances to be considered. The panel concluded that
Ms. Hernandez had made a compelling showing on the other
factors.
Lastly, the panel explained that the IJ also entered an in
absentia order against Ms. Hernandez’s minor child
(“M.E.”), who was four years old at the time, and whose
presence had been waived for the hearing at which he was
ordered removed. Noting that an asylum officer had
previously determined that M.E. had a credible fear of
persecution on account of his family social group, the panel
concluded that Ms. Hernandez’s failure to appear also
prejudiced M.E.’s opportunity for relief from removal.
HERNANDEZ-GALAND V. GARLAND 5
COUNSEL
Stephen B. Kang (argued), ACLU Foundation Immigrants’
Rights Project, San Francisco, California; Ahilan T.
Arulanantham, ACLU Foundation of Southern California,
Los Angeles, California; Matt Adams, Northwest Immigrant
Rights Project, Seattle, Washington; Talia Inlender and
Kristen Jackson, Public Counsel Law Center, Los Angeles,
California; Kristin Macleod-Ball, American Immigration
Council, Brookline, Massachusetts; Karolina J. Walters,
American Immigration Council, Washington, D.C.; for
Petitioners.
Linda Y. Cheng (argued), Trial Attorney; Anthony P.
Nicastro, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
CHEN, District Judge:
This case concerns in absentia removal orders entered
against a mother and her minor child as a consequence of the
mother’s failure to appear in immigration court. We hold
that there are exceptional circumstances in this case that
warrant reopening. Therefore, we grant the petition for
review and remand for further proceedings.
6 HERNANDEZ-GALAND V. GARLAND
I
Petitioners Patricia Marisol Hernandez-Galand
(“Ms. Hernandez”) and her minor child, M.E.H.H. 1
(“M.E.”), are natives and citizens of El Salvador. They
entered the United States on June 9, 2015. Petitioners were
served with notices to appear in immigration court, charging
them as removable for lacking valid entry documents.
In a written notice of hearing, the immigration court set
petitioners’ removal hearing date with the Immigration
Judge (“IJ”) for “Apr 22, 2016.” Ms. Hernandez was also
reminded of this hearing date during one of her mandatory
appointments for her alternatives-to-detention program.
Ms. Hernandez and M.E. appeared pro se at the April 22,
2016 hearing and were given additional time to look for an
attorney. The IJ set their next hearing for July 12, 2016,
waiving M.E’s presence at that hearing. The IJ orally
informed Ms. Hernandez of her new hearing date and
provided her with written notice of hearing.
This sequence set into motion a chain of events that
ultimately caused Ms. Hernandez to miss her hearing on July
12, 2016. Ms. Hernandez suffers from chronic memory
problems that stem from a childhood head injury, so she did
not remember what the IJ had told her orally about her next
hearing date. For this reason, she relied on the information
in the notice of hearing. But because Ms. Hernandez cannot
read, she asked family members to read the notice of hearing
for her. However, this new notice of hearing, unlike the first
1
Although the minor petitioner’s initials appear as “M.M.H.H.” in
the administrative record, petitioners’ counsel indicates that the initials
for his true name are “M.E.H.H.”
HERNANDEZ-GALAND V. GARLAND 7
one, only provided a numerical date for the hearing,
“07/12/2016.” Ms. Hernandez’s family interpreted this
notation as December 7, 2016, based on how numerical dates
in Latin America (and most of the rest of the world) are
typically written, with the day appearing before the month.
Believing that she was not required to appear in
immigration court until December 7, 2016, Ms. Hernandez
did not appear on July 12, 2016. The IJ consequently
ordered Ms. Hernandez and M.E. removed in absentia.
About two weeks later, petitioners filed a motion to
reopen. In the motion, they contended that exceptional
circumstances warranted reopening proceedings because
1) Ms. Hernandez’s memory problems rendered her unable
to remember the July 12, 2016 hearing date orally stated to
her; 2) she is a “non-reader” and had relied on family to tell
her what the various notices from the immigration court said;
and 3) because of the differences in the way dates are written
by Spanish-speakers in El Salvador from the dominant
format in this country, her family incorrectly told her the
hearing date was December 7, 2016. The motion to reopen
was supported by Ms. Hernandez’s declaration, and her I-
589 application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
The IJ denied the motion to reopen, and the Board of
Immigration Appeals (“BIA”) affirmed. The BIA noted that
Ms. Hernandez had failed to provide any evidence to
corroborate her claim in her declaration that she suffers from
memory problems. Additionally, the BIA affirmed the IJ’s
finding that Ms. Hernandez could have verified her hearing
date through the immigration court’s automated system.
Based on these considerations, the BIA concluded that
Ms. Hernandez had failed to establish exceptional
8 HERNANDEZ-GALAND V. GARLAND
circumstances warranting reopening petitioners’ in absentia
removal orders.
II.
A.
Our jurisdiction is governed by 8 U.SC. § 1252. We
review the BIA’s denial of a motion to reopen for abuse of
discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.
2008). “The BIA abuses its discretion when it acts
arbitrarily, irrationally, or contrary to the law, and when it
fails to provide a reasoned explanation for its actions.”
Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir.
2014) (citation and internal quotation marks omitted).
Under the Immigration and Nationality Act (“INA”), a
properly entered in absentia removal order “may be
rescinded only . . . upon a motion to reopen filed within
180 days after the date of the order of removal if the alien
demonstrates that the failure to appear was because of
exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i).
“The term ‘exceptional circumstances’ refers to exceptional
circumstances . . . beyond the control of the alien,” “such as
battery or extreme cruelty to the alien or any child or parent
of the alien, serious illness of the alien, or serious illness or
death of the spouse, child, or parent of the alien, but not
including less compelling circumstances.” Id.
§ 1229a(e)(1). Although the INA’s enumerated examples
are not an exhaustive list, exceptional circumstances require
a showing of a “similarly severe impediment.” Arredondo
v. Lynch, 824 F.3d 801, 805 (9th Cir. 2016) (quoting Singh-
HERNANDEZ-GALAND V. GARLAND 9
Bhathal v. INS, 170 F.3d 943, 947 (9th Cir. 1999) 2). Beyond
that, the statutory language “is not imbued with any
additional meaning.” Singh v. INS, 213 F.3d 1050, 1052 (9th
Cir. 2000). Although the legislative history provides little
specificity, “[t]he conferees expect that in determining
whether an alien’s failure to appear was justifiable, the
Attorney General will look at the totality of the
circumstances to determine whether the alien could not
reasonably have been expected to appear.” Iris Gomez, The
Consequences of Nonappearance: Interpreting New Section
242B of the Immigration and Nationality Act, 30 San Diego
L. Rev. 75, 151 (1993) (citing H.R. Rep. No. 955, 101st
Cong., 2d Sess. 132 (1990)). As a result, we look to the
“particularized facts,” Singh, 213 F.3d at 1052, and the
“totality of the circumstance” of each case, Celis-Castellano
v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002), in
determining whether the petitioner has established
exceptional circumstances.
In considering the totality of the circumstances, the BIA
must first consider whether “petitioners did all they
reasonably could to have their cases heard promptly,” Lo v.
Ashcroft, 341 F.3d 934, 938 (9th Cir. 2003), and whether
“through no fault of their own, [petitioners] have never had
their day in court to present their claims,” Romani v. INS,
146 F.3d 737, 739 (9th Cir. 1998). Other relevant
considerations, in addition to the severity of the impediment
to appearance, include whether the petitioner had a motive
2
Singh-Bhathal and our other published decisions considered
whether there were exceptional circumstances as then required by
8 U.S.C. § 1252b(c)(3)(A) (1994). That section was deleted by the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, § 304(a), 110 Stat. 3009–87 (1996), and recodified
in essentially the same language at 8 U.S.C. § 1229a(b)(5)(C) (2002).
10 HERNANDEZ-GALAND V. GARLAND
for failing to appear (such as avoiding a removal order on the
merits) and whether the in absentia removal order would
cause unconscionable results. See Chete Juarez v. Ashcroft,
376 F.3d 944, 948 (9th Cir. 2004); Singh v. INS, 295 F.3d
1037, 1039–40 (9th Cir. 2002).
B.
Petitioners contend that exceptional circumstances
warrant the reopening of their proceedings. We agree.
We first consider the circumstances that caused
Ms. Hernandez’s failure to appear. In Ms. Hernandez’s
sworn declaration, she explained that her confusion over the
hearing date was due in part to her longstanding, trauma-
inflicted memory problems. She provided specific details
about her condition, attesting that she had been kicked in the
head by a horse as a child and as a result had suffered from
memory problems ever since. This non-conclusory and
unrefuted testimony is not inherently unbelievable, and there
is no evidence in the record to contradict her statements.
Accordingly, to the extent the BIA disregarded this aspect of
Ms. Hernandez’s declaration simply because it lacked
corroboration, it erred. See Agonafer v. Sessions, 859 F.3d
1198, 1203 (9th Cir. 2017) (“In considering a motion to
reopen, the BIA must accept as true the facts asserted by the
petitioner, unless they are ‘inherently unbelievable.’”
(quoting Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991));
Arredondo, 824 F.3d at 806 (BIA erred by disregarding the
petitioner’s affidavit, as it was not inherently unbelievable
or incredible); Monjaraz-Munoz v. INS, 327 F.3d 892, 897
(9th Cir. 2003) (BIA cited no evidence that can support a
finding that petitioner’s version of events was not credible).
We therefore credit Ms. Hernandez’s statements regarding
her memory problems.
HERNANDEZ-GALAND V. GARLAND 11
In addition to Ms. Hernandez’s memory problems that
caused her to forget her hearing date, she also could not read
her notice of hearing, as she was not literate. This put a
premium on Ms. Hernandez’s reliance on family members
to interpret the notice of hearing for her. Their mistake in
interpretating the notice date was reasonable and believable,
given the differences in how dates are written numerically in
Latin America and in the United States. These facts
regarding Ms. Hernandez’s inability to read and her family’s
misinterpretation of the notice of hearing are also not
disputed by the government or inherently unbelievable, and
thus must be credited. See Agonafer, 859 F.3d at 1203.
Despite these impediments created by her memory
problems and inability to read, Ms. Hernandez used her best
efforts to understand and comply with the immigration
court’s notice of hearing. Her mistake over the hearing date
and subsequent failure to appear were due not to her choices
or a lack of diligence, but to circumstances beyond her
control. See Lo, 341 F.3d at 938 (concluding that counsel’s
secretary’s misstatement about the hearing date was an
exceptional circumstance, where “petitioners did all they
reasonably could to have their cases heard promptly”);
Romani, 146 F.3d at 739 (petitioners were misdirected away
from the proper courtroom by their attorney’s assistant and
thus missed their day in court “through no fault of their
own”); cf. Arredondo, 842 F.3d at 806 (no exceptional
circumstances where petitioner had poorly planned her drive
to the court and prioritized her car repairs over her court
attendance); Singh-Bhathal, 170 F.3d at 946 (no exceptional
circumstances where the petitioner “chose to heed the
consultant’s advice [not to appear] and disregard the written
notice provided by the [immigration court]”); United States
v. Dekermenjian, 508 F.2d 812, 814 (9th Cir. 1974) (a
petitioner cannot complain of an order in absentia if he or
12 HERNANDEZ-GALAND V. GARLAND
she “voluntarily chooses” not to attend a deportation
hearing).
According to the BIA, Ms. Hernandez’s situation did not
amount to an exceptional circumstance because she should
have confirmed her hearing date through the immigration
court’s automated system. However, the only evidence in
the record to suggest that Ms. Hernandez was ever advised
of this automated system are the written instructions
contained in the notice of hearing, which Ms. Hernandez
could not read. Further, Ms. Hernandez and her family had
no reason to suspect that her hearing was not on December
7, 2016 given the reasonable understanding of the numerical
date, and thus had no reason to confirm the hearing date
through other sources. Cf. Singh, 295 F.3d at 1040(petitioner could have easily misunderstood the time of the
hearing). Because the BIA relied on findings regarding
Ms. Hernandez’s access to the automated system that lack
support in the record, its reliance on that access as a basis for
finding an absence of exceptional circumstances was an
abuse of discretion. 3 See Calderon-Rodriguez v. Sessions,
878 F.3d 1179, 1183 (9th Cir. 2018) (holding that the BIA
abused its discretion by relying on “critical factual findings”
whose inferences could not be supported by the record).
We further consider whether Ms. Hernandez had any
motive for failing to appear, and whether petitioners’ in
absentia removal orders would cause unconscionable results.
See Chete Juarez, 376 F.3d at 948–49; Lo, 341 F.3d at 938–
39; Singh, 295 F.3d at 1039–40. The BIA erred in not
addressing either factor. And since it made no finding as to
3
Contrary to the government’s contention, petitioners preserved
their challenge to the BIA’s findings regarding the automated system by
raising it in the opening brief.
HERNANDEZ-GALAND V. GARLAND 13
either, there are no findings entitled to substantial evidence
review in this appeal. Having reviewed the record, we
conclude both factors weigh in favor of reopening these
proceedings.
First, there is no basis to infer that Ms. Hernandez was
attempting to evade or delay her proceedings in immigration
court. Prior to the July 12, 2016 hearing, Ms. Hernandez was
diligent in making all appearances. She appeared for her
prior April 22, 2016 hearing pro se, and she also attended her
appointments with the alternatives-to-detention program.
See Chete Juarez, 376 F.3d at 948 (exceptional
circumstances established where petitioner previously
appeared for every scheduled hearing); Singh, 295 F.3d
at 1040 (petitioner “diligently appeared for all of his
previous hearings”). Additionally, Ms. Hernandez moved
swiftly to reopen proceedings, filing the motion to reopen a
mere sixteen days after the in absentia removal orders were
entered. Cf. Matter of B-A-S-, 22 I. & N. Dec. 57, 59 (BIA
1998) (non-citizen’s delay in filing the motion to reopen
until more than three months after the in absentia removal
hearing demonstrated a “lack of diligence . . . that
undercuts” the claim of exceptional circumstances). The
government has not identified any advantage she would have
gained by evading the July 12, 2016 hearing and then
moving sixteen days late to have such a hearing.
Second, imposing the in absentia removal orders under
these circumstances presents an unconscionable result. We
have held that an in absentia removal order would lead to an
unconscionable result where a petitioner who demonstrated
a strong likelihood of relief is removed. See Chete Juarez,
376 F.3d at 948–49; Singh, 295 F.3d at 1040. We recognize
that Ms. Hernandez has not yet established a likelihood of
success similar to that made in Singh, where the petitioner
14 HERNANDEZ-GALAND V. GARLAND
had a “valid” claim for adjustment of status through his
marriage to an American citizen, 295 F.3d at 1040, or Chete
Juarez, where the record showed that the petitioner likely
qualified for suspension from deportation, 376 F.3d at 949.
Here, Ms. Hernandez’s materials in support of her motion to
reopen indicated that she feared general crime and violence
in El Salvador, and typically such fear alone is not a basis on
which relief will be granted. See Zetino v. Holder, 622 F.3d
1007, 1016 (9th Cir. 2010) (stating that in the context of
asylum or withholding of removal, an applicant’s “desire to
be free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a
protected ground”); Delgado-Ortiz v. Holder, 600 F.3d
1148, 1152 (9th Cir. 2010) (concluding that “generalized
evidence of violence and crime . . . is insufficient to meet
[the CAT] standard”).
Yet Ms. Hernandez’s claims are not baseless. In a
motion to reopen based on changed country conditions,
petitioners have supplemented their applications for asylum
and related relief. According to petitioners’ briefing in this
petition for review, their more recent motion to reopen
included evidence that five of Ms. Hernandez’s family
members were kidnapped in El Salvador in November 2018.
Although our review is generally confined to the record
before the BIA, the subsequent motion to reopen is
considered not to support a substantive claim on appeal, but
for the purpose of determining the potential harm were
reopening denied. See Dent v. Holder, 627 F.3d 365, 371
(9th Cir. 2010) (noting that although our review is generally
confined to the administrative record before the BIA, this
rule should not be interpreted to the point of producing
absurd or unjust results).
HERNANDEZ-GALAND V. GARLAND 15
Additionally, a likelihood of prevailing in removal
proceedings is not a sine qua non of “exceptional
circumstances” under § 1229a(b)(5)(c)(i). We have made
such a finding without a showing of the strength of the
petitioner’s case on the merits. See Monjaraz-Munoz,
327 F.3d at 898; Singh, 213 F.3d at 1054; Romani, 146 F.3d
at 739. The probability of relief upon reopening is but one
factor in the totality of the circumstances which inform the
assessment of exceptional circumstances. A strong showing
on some factors may lessen the requisite showing on others.
Cf. Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 2011)
(factors for a stay of removal are considered along a flexible
continuum, where the factors “are balanced, so that a
stronger showing of one . . . may offset a weaker showing of
another”). In this case, Ms. Hernandez has made a
compelling showing on the other factors.
Lastly, Ms. Hernandez’s opportunity to present her case
is not the only consideration at stake here. The IJ also
entered an in absentia removal order against
Ms. Hernandez’s minor child, M.E., who was four years old
at the time, and whose presence at the July 12, 2016 hearing
had been waived. According to the credible fear findings in
the administrative record, an asylum officer previously
determined that M.E. had a credible fear of persecution on
account of his family social group. See Rios v. Lynch,
807 F.3d 1123, 1128 (9th Cir. 2015) (explaining that “family
remains the quintessential particular social group.”). Thus,
Ms. Hernandez’s failure to appear at the hearing prejudiced
M.E.’s opportunity for relief from removal as well.
III.
In light of the totality of the circumstances, we conclude
that Ms. Hernandez has made a sufficient showing of
exceptional circumstances warranting relief under
16 HERNANDEZ-GALAND V. GARLAND
§ 1229a(b)(5)(C)(i), and the BIA abused its discretion in
denying her request to reopen the case. Accordingly, we
GRANT the petition for review and REMAND to the BIA
for further proceedings consistent with this opinion. 4
4
In view of this disposition, we need not reach the remaining
contentions raised in the petitions for review. Accordingly, all pending
motions are DENIED as moot.