FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA MARISOL HERNANDEZGALAND, AKA Celena HernandezGomez; M. E. H.-H., AKA M. M. H.-

H.,

Petitioners,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

Nos. 17-70538

19-70198

Agency Nos.

A208-273-506

A208-273-507

OPINION

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 HernandezGaland 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 believable, 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 I589 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, traumainflicted 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.