19-1395

Hernandez Arellano v. Garland

BIA

Connelly, IJ

A214 088 660

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL 

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING 

TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 22nd day of June, two thousand twenty-one.

PRESENT:

DENNY CHIN,

MICHAEL H. PARK,

Circuit Judges. *

_____________________________________

ABIGAIL HERNANDEZ ARELLANO, AKA 

MARTIN DOLL,

Petitioner,

v. 19-1395

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Michael E. Marszalkowski, Serotte 

 Law, Buffalo, NY.

* Our late colleague Judge Robert A. Katzmann was originally 

assigned to this panel. The two remaining members of the 

panel, who are in agreement, have decided this case in 

accordance with Second Circuit Internal Operating Procedure 

E(b). See 28 U.S.C. § 46(d); cf. United States v. Desimone, 140 

F.3d 457, 458 (2d Cir. 1998).
2

FOR RESPONDENT: Brian M. Boynton, Assistant 

Attorney General; Jeffery R. 

Leist, Senior Litigation Counsel; 

Lance L. Jolley, Trial Attorney, 

Office of Immigration Litigation,

United States Department of 

Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is GRANTED.

Petitioner Abigail Hernandez Arellano, a native and 

citizen of Mexico, seeks review of an April 30, 2019, 

decision of the BIA, affirming a November 2, 2018, decision 

of an Immigration Judge (“IJ”) denying Hernandez Arellano’s 

application for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). In re 

Abigail Hernandez Arellano, No. A214 088 660 (B.I.A. Apr. 

30, 2019), aff’g No. A214 088 660 (Immig. Ct. Batavia Nov. 

2, 2018). We assume the parties’ familiarity with the 

underlying facts and procedural history.

We review the IJ’s decision as modified by the BIA and 

address only the agency’s conclusion that Hernandez 
3

Arellano failed to establish a well-founded fear of 

persecution on account of her membership in a particular 

social group. See Xue Hong Yang v. U.S. Dep’t of Just., 

426 F.3d 520, 522 (2d Cir. 2005). The applicable standards 

of review are well established. See 8 U.S.C. 

§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 

(2d Cir. 2009). 

To establish eligibility for asylum, Hernandez Arellano 

had to show a well-founded fear of persecution on account 

of race, religion, nationality, membership in a particular 

social group, or political opinion. 8 U.S.C. §§ 

1101(a)(42), 1158(b)(1)(A), (B)(i). The agency erred in 

its determination that Hernandez Arellano failed to 

establish either her membership in her proposed social 

group of individuals with intellectual disabilities who 

lack adequate family protection or that her fear of future 

persecution was objectively reasonable.

The agency assumed that Hernandez Arellano’s proposed 

social group was cognizable but concluded that she had not 

established her membership in that group because she did 

not demonstrate that she would lack adequate family 
4

protection in Mexico. The IJ cited Hernandez Arellano’s 

stepfather’s testimony that he would be willing to “return”

to Mexico with her and that her grandmother, uncle, and 

aunt remain in Mexico. S. App'x at 16. But Hernandez 

Arellano’s stepfather cannot “return” to Mexico because he 

is from the Dominican Republic and not Mexico, and he 

testified that he would not be able to move to Mexico 

because he relies on his job with the New York transit 

authority for its benefits and retirement plan. Further, 

he testified that Hernandez Arellano’s grandmother is 85 

years old and diabetic, her uncle is diabetic and an 

alcoholic, and her aunt is a single mother of 4 young

children and thus none of them would be able to adequately 

care for Hernandez Arellano in Mexico. Accordingly, the 

agency’s finding that Hernandez Arellano failed to 

establish her membership in her proposed social group is 

flawed by the erroneous factual finding that she would have 

adequate family support in Mexico. 

The agency also erred in concluding that Hernandez 

Arellano failed to submit evidence that her fear of harm on 

account of her intellectual disability was objectively 
5

reasonable. The IJ found that a report detailing the 

lifelong confinement and persecution and torture of 

individuals who suffer mental disabilities in Mexico did 

not apply to Hernandez Arellano because she suffers from an 

intellectual disability rather than a mental health issue, 

but the report explicitly states that it relates to people 

with intellectual disabilities as well as those with mental 

health issues. Accordingly, we remand because the agency 

misconstrued material evidence in denying asylum and 

withholding of removal. 

For the foregoing reasons, the petition for review is 

GRANTED, the BIA’s decision is VACATED, and the case is 

REMANDED for further proceedings. All pending motions and 

applications are DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court