Hernández-Galand v. Garland — In Absentia

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/12/17-70538.pdf

SUMMARY BY COURT STAFF:

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.

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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

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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.

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Cheneau v. Garland — Derivative Citizenship — En Banc

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/13/15-70636.pdf

SUMMARY BY COURT STAFF:

Immigration

Remanding to the three-judge panel that previously denied Monssef Cheneau’s petition for review of a decision of the Board of Immigration Appeals, the en banc court held that the second clause of the derivative citizenship statute set out at former 8 U.S.C. § 1432(a)(5) does not require that the child have been granted lawful permanent residency prior to the age of eighteen in order to derive citizenship from a parent who naturalized, but the child must have demonstrated an objective official manifestation of permanent residence.

Former 8 U.S.C. § 1432(a)(5) (1994) (repealed 2000) provides two different pathways to child of a naturalized parent to derive U.S. citizenship: 1) a child “residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent” is eligible; and 2) a child is eligible who “thereafter begins to reside permanently in the United States while under the age of eighteen years.”

Cheneau entered the United states lawfully at age thirteen under a non-immigrant student visa. His mother naturalized in 1999, he applied for adjustment of status to lawful permanent resident at age fifteen in 2000, and was granted adjustment of status in 2003, after he turned eighteen. After theft convictions, removal proceedings were initiated, and Cheneau moved to terminate, asserting a claim of derivative

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

   

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citizenship. The three-judge panel in this case held that it was required to hold that Cheneau was not a derivative citizen under either pathway because this court, in Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008), had held that both pathways required the child to have lawful permanent resident status.

Reconsidering Romero-Ruiz in the present context, the en banc court concluded that Congress did not intend to require lawful permanent residency for the second pathway. First, the en banc court observed that Congress chose to use two different terms in the statute, creating a presumption that the terms have different meanings. Second, the en banc court explained that the two terms have different meanings in the Immigration and Nationality Act (“INA”). Third, the en banc court concluded that construing the second pathway to derivative citizenship as not requiring lawful permanent residence does not render either provision superfluous, as the court suggested in Romero-Ruiz. Rather, each pathway applies distinct requirements to distinct categories of children with distinct timing, and does so with logical reason. Finally, the en banc court explained that Congress’s decision to eliminate the “reside permanently” pathway and narrow the availability of derivative citizenship in 2000 indicates that the previous version of the statute was broader.

The en banc court also explained that the history of the INA (which was enacted in 1952 and established lawful permanent residency as a term of art) and earlier naturalization statutes further buttressed its conclusion that Congress intended “reside permanently” and “lawful admission for permanent residence” to have different meanings. Further, the en banc court concluded that the tenet of statutory construction that repetition of the same language

 

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in a new statute generally indicates the intent to incorporate its administrative and judicial interpretations as well did not apply, because none of the administrative or judicial interpretations preceding the INA had “settled” whether “reside permanently” could mean lawfully residing on a temporary visa with the intent to remain permanently.

Finally, the en banc court agreed with the Second Circuit that, to satisfy the “reside permanently” requirement in the second pathway, an individual must demonstrate “some objective official manifestation of the child’s permanent residence.” Here, the en banc court explained, Cheneau filed an application for adjustment of status after his mother naturalized, expressing such intent to reside permanently.

Dissenting, Judge Bress, joined by Judges Hunsaker, Bumatay, and VanDyke, wrote that the en banc court’s decision adopted the very “unreasonable” reading of the statute that Romero-Ruiz had rejected. Judge Bress concluded that the new interpretation: 1) is an untenable construction of the statutory text; 2) fails to account for decades of statutory history in which derivative citizenship necessarily required lawful permission to reside permanently in the United States—the legal backdrop against which the statutory language “reside permanently” has long existed in our immigration law: and 3) produces significant problems of practical administration, creating confusion as to who qualifies for derivative citizenship while extending derivative citizenship without authorization to a potentially wide range of additional people—including people like the petitioner in this case, who committed crimes in this country and who might otherwise be removable.

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Congrats to my friend and NDPA superstar Kari Hong, then Director of the Immigration Clinic at BC Law, who was lead counsel in Cheneau.

Also, it’s worthy of emphasis that in Hernández-Galand, among other legal errors, the BIA tried to “in absentia” an unrepresented 4-year-old whose mother had been found to have a “credible fear” of persecution! Nice touch!

Is this nonsense from Trump holdover BIA “judges” what we elected President Biden to continue to inflict on asylum seekers and other migrants? I doubt it! So, why is AG Garland continuing to inflict this non-expert, un-progressive BIA on us? And, why is he continuing to appoint “Miller-Lite” leftovers from the Trump regime to precious, life or death Immigration Judge positions?

The NDPA needs to take the fight for due process and the human and legal rights of your clients to the Biden Administration! Let your outrage at the lousy performance of Garland and his team in restoring due process, humanity, expertise, and professionalism @ EOIR be known in word and deed!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-14-21

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