FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PATRICIA MARISOL HERNANDEZ- Nos. 17-70538 GALAND, AKA Celena Hernandez- 19-70198 Gomez; M. E. H.-H., AKA M. M. H.- H., Agency Nos. Petitioners, A208-273-506 A208-273-507 v. MERRICK B. GARLAND, Attorney OPINION General, Respondent. 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 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. 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 …
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