Hernandez-Galand v. Garland

996 F.3d 1030

Patricia Marisol HERNANDEZ-GALAND, aka Celena Hernandez-Gomez; M. E. H.-H., aka M. M. H.-H., Petitioners,

v.Merrick B. GARLAND, Attorney General, Respondent.

Nos. 17-70538

19-70198

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 1, 2021 San Francisco, California

Filed May 12, 2021

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.

Before: Kim McLane Wardlaw and Marsha S. Berzon, Circuit Judges, and Edward M. Chen,^* District Judge.

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.

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 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 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-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 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.

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...