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Ninth Circuit
Declares Deportation Order ‘Unconscionable’
Direction to Appear on ‘7-12-16’ Found to Have Reasonably Been Construed as Dec. 7, 2016
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday came to the rescue of a woman and her child who have been ordered deported to El Salvador, saying that the disposition—caused by a mistaken notion that an order for her appearance in immigration court on “7-12-16” meant Dec. 7—was “unconscionable.”
The opinion, which grants a petition for review of a decision by the Board of Immigration Appeals (“BIA”) and orders a remand to that body, was authored by District Court Judge Edward M. Chen of the Northern District of California, sitting by designation.
It comes in the case of Patricia Marisol Hernandez-Galand and her minor child. An immigration judge advised Hernandez-Galand that her next hearing would be on July 12 but, due to a memory defect caused by a childhood injury, she did not remember the instruction.
Impeded by Illiteracy
She had a written notice which listed the hearing date. Unable to read, she asked family members to consult the notice, and she was advised that she was to appear on Dec. 7.
In El Salvador, as in many parts of the world, “7-12-16” would be so interpreted.
Following Hernandez-Galand’s non-appearance in July, the immigration judge ordered removal of her and her son, age 4.
The BIA denied her bid for a re-opening of the case, finding that the required “exceptional circumstances” were lacking.
Chen’s Opinion
“[I]mposing the in absentia removal orders under these circumstances presents an unconscionable result,” Chen wrote.
He said:
“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 unrefined 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.”
‘Automated System’
Chen went on to say:
“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.”
He said the BIA abused its discretion in finding a lack of exceptional circumstances based on Hernandez-Galand’s access to the automated system.
There was no basis for suspecting that her non-appearance on July 12, 2016 was to create a delay or for some other improper purpose, he noted.
The case is Hernandez-Galand v. Garland, 17-70538.
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