FILED NOT FOR PUBLICATION DEC 23 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PASCUAL AGUILAR-ESCOBAR, AKA No. 20-72313 Pascual Agular Escobar, Agency No. A215-644-125 Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted December 6, 2024 Seattle, Washington
Before: W. FLETCHER, BERZON, and R. NELSON, Circuit Judges. Concurrence by Judge R. NELSON.
Petitioner Pascual Aguilar-Escobar, a citizen of Guatemala, seeks review of
a Board of Immigration Appeals (“BIA”) decision dismissing his appeal from an
Immigration Judge’s (“IJ”) denial of his motion to reopen proceedings and rescind
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. his in absentia removal order. We have jurisdiction under 8 U.S.C. § 1252, and
we grant the petition for review.
We review the “denial of a motion to reopen for abuse of discretion.”
Hernandez-Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir. 2021). The BIA and
IJ must consider the totality of circumstances when deciding whether a noncitizen
has established “exceptional circumstances” for failing to appear at their
immigration court proceedings. Id. (quoting 8 U.S.C. § 1229a(b)(5)(C)(i), (e)(1)).
Considering the totality of the circumstances, the BIA and IJ abused their
discretion in denying Aguilar-Escobar’s motion to reopen. First, Aguilar-Escobar
did all he “reasonably could to have [his] day in court,” and the BIA and IJ
discounted his significant efforts to attend court. See Montejo-Gonzalez v.
Garland, 119 F.4th 651, 657 (9th Cir. 2024). Because Aguilar-Escobar does not
speak or read English, he could not understand the notice sent to him rescheduling
his hearing. He reached out to a friend for translation help. When his friend was
unable to assist him, he appeared at the immigration court on the originally
scheduled hearing date. The courtroom was closed, and a court employee
handwrote the rescheduled hearing date, April 2, 2019, on his hearing notice. The
“l” and the “2” were not clearly separated, and Aguilar-Escobar misread this date
to mean April 12, confusing the “l” for a “1.” His mistake was reasonable for 2 someone who does not speak or read English. See Singh v. INS, 295 F.3d 1037,
1040 (9th Cir. 2002) (finding exceptional circumstances where the petitioner
“easily misunderstood” their hearing time). Moreover, his efforts to receive
translation help demonstrate that his mistake was “due not to [his] choices or a lack
of diligence, but to circumstances beyond [his] control.” Hernandez-Galand, 996
F.3d at 1035.
Second, the BIA and IJ ignored Aguilar-Escobar’s lack of motive for not
appearing and his overall diligence in trying to appear for his removal hearing. He
attended his first hearing and appeared at the originally scheduled date for his
second hearing. He sought a lawyer on April 10, in anticipation of what he thought
would be his hearing on April 12. With the assistance of counsel, he promptly
filed a motion to reopen only fourteen days after the missed hearing date. “This
case is exceptional, because the petitioner had no possible reason to try to delay the
hearing,” Singh, 295 F.3d at 1040, and he did not try to do so. Both the BIA and
IJ abused their discretion by omitting any analysis of motive and diligence.
Third, the BIA and IJ discounted Aguilar-Escobar’s claims for asylum and
related relief as “speculative.” Although there is no guarantee of relief,
Aguilar-Escobar’s claims are plausible rather than merely speculative. We have
previously found that a removal order “present[ed] an unconscionable result”
3 where the petitioner’s claims for asylum and related relief were not “baseless.”
Hernandez-Galand, 996 F.3d at 1036–37. Further, the “likelihood of prevailing on
the merits is not a necessary condition of establishing ‘exceptional circumstances’”
where, as here, there has been a strong showing on the other factors.
Montejo-Gonzalez, 119 F.4th at 659 (citing Hernandez-Galand, 996 F.3d at 1037).
We therefore conclude that Aguilar-Escobar established that he missed his
hearing due to exceptional circumstances, and that his failure to attend his April 2
hearing should be excused. We remand to the BIA for further proceedings
consistent with this disposition. In light of this disposition, we do not reach
Aguilar-Escobar’s remaining contention in his petition.
The motion for a stay of removal (Dkt. Entry No. 1) is granted.
PETITION GRANTED.
4 FILED Aguilar-Escobar v. Garland, No. 20-72313 DEC 23 2024 MOLLY C. DWYER, CLERK R. Nelson, J., concurring in the judgment: U.S. COURT OF APPEALS
To rescind his in absentia removal order, Pascual Aguilar Escobar must show
that “exceptional circumstances” prevented him from appearing at his hearing. 8
U.S.C. § 1229a(b)(5)(C)(i). Congress has defined “exceptional circumstances”
narrowly: they are circumstances “beyond the control of the alien” that are no “less
compelling” than serious illness or the death of a spouse or child. Id. § 1229a(e)(1).
Aguilar-Escobar does not meet these criteria. He claims he missed his
removal hearing because he “misunderstood his hearing date.” Specifically, the
immigration court sent Aguilar-Escobar a notice changing his hearing date from
March 25 to “Apr 2.” Aguilar-Escobar appeared in court on March 25 and asked for
clarification. A court employee confirmed that the hearing had been rescheduled and
re-wrote the new date for Aguilar-Escobar:
Still, Aguilar-Escobar failed to appear for his hearing on April 2. Why? He
claims that he misread “April 2” as “Apri 12.”
On no plausible reading of the statutory text does Aguilar-Escobar’s oversight
qualify as an “exceptional circumstance.” Misreading a hearing notice is not as 1 compelling an excuse as serious illness or the death of a spouse. See § 1229a(e)(1).
Nor was Aguilar-Escobar’s oversight “beyond [his] control.” See id. Not long ago,
we recognized as much, holding that scheduling mistakes are typically not
exceptional circumstances. Valencia-Fragoso v. INS, 321 F.3d 1204, 1205–06 (9th
Cir. 2003) (per curiam). Thus, at the very least, it wasn’t arbitrary or irrational for
the BIA to conclude that Aguilar-Escobar’s oversight was not an exceptional
circumstance beyond his control.
Yet our precedent has since strayed far from the text. We’ve swapped the
exceptional-circumstances test that Congress enacted for a test advocated in a law
review article: we consider “the totality of the circumstances” and ask whether it
was “reasonabl[e]” to expect the petitioner to appear. Hernandez-Galand v.
Garland, 996 F.3d 1030, 1034 (9th Cir. 2021) (quoting Iris Gomez, The
Consequences of Nonappearance: Interpreting New Section 242B of the
Immigration and Nationality Act, 30 San Diego L. Rev. 75, 151 (1993)). And despite
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOT FOR PUBLICATION DEC 23 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PASCUAL AGUILAR-ESCOBAR, AKA No. 20-72313 Pascual Agular Escobar, Agency No. A215-644-125 Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted December 6, 2024 Seattle, Washington
Before: W. FLETCHER, BERZON, and R. NELSON, Circuit Judges. Concurrence by Judge R. NELSON.
Petitioner Pascual Aguilar-Escobar, a citizen of Guatemala, seeks review of
a Board of Immigration Appeals (“BIA”) decision dismissing his appeal from an
Immigration Judge’s (“IJ”) denial of his motion to reopen proceedings and rescind
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. his in absentia removal order. We have jurisdiction under 8 U.S.C. § 1252, and
we grant the petition for review.
We review the “denial of a motion to reopen for abuse of discretion.”
Hernandez-Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir. 2021). The BIA and
IJ must consider the totality of circumstances when deciding whether a noncitizen
has established “exceptional circumstances” for failing to appear at their
immigration court proceedings. Id. (quoting 8 U.S.C. § 1229a(b)(5)(C)(i), (e)(1)).
Considering the totality of the circumstances, the BIA and IJ abused their
discretion in denying Aguilar-Escobar’s motion to reopen. First, Aguilar-Escobar
did all he “reasonably could to have [his] day in court,” and the BIA and IJ
discounted his significant efforts to attend court. See Montejo-Gonzalez v.
Garland, 119 F.4th 651, 657 (9th Cir. 2024). Because Aguilar-Escobar does not
speak or read English, he could not understand the notice sent to him rescheduling
his hearing. He reached out to a friend for translation help. When his friend was
unable to assist him, he appeared at the immigration court on the originally
scheduled hearing date. The courtroom was closed, and a court employee
handwrote the rescheduled hearing date, April 2, 2019, on his hearing notice. The
“l” and the “2” were not clearly separated, and Aguilar-Escobar misread this date
to mean April 12, confusing the “l” for a “1.” His mistake was reasonable for 2 someone who does not speak or read English. See Singh v. INS, 295 F.3d 1037,
1040 (9th Cir. 2002) (finding exceptional circumstances where the petitioner
“easily misunderstood” their hearing time). Moreover, his efforts to receive
translation help demonstrate that his mistake was “due not to [his] choices or a lack
of diligence, but to circumstances beyond [his] control.” Hernandez-Galand, 996
F.3d at 1035.
Second, the BIA and IJ ignored Aguilar-Escobar’s lack of motive for not
appearing and his overall diligence in trying to appear for his removal hearing. He
attended his first hearing and appeared at the originally scheduled date for his
second hearing. He sought a lawyer on April 10, in anticipation of what he thought
would be his hearing on April 12. With the assistance of counsel, he promptly
filed a motion to reopen only fourteen days after the missed hearing date. “This
case is exceptional, because the petitioner had no possible reason to try to delay the
hearing,” Singh, 295 F.3d at 1040, and he did not try to do so. Both the BIA and
IJ abused their discretion by omitting any analysis of motive and diligence.
Third, the BIA and IJ discounted Aguilar-Escobar’s claims for asylum and
related relief as “speculative.” Although there is no guarantee of relief,
Aguilar-Escobar’s claims are plausible rather than merely speculative. We have
previously found that a removal order “present[ed] an unconscionable result”
3 where the petitioner’s claims for asylum and related relief were not “baseless.”
Hernandez-Galand, 996 F.3d at 1036–37. Further, the “likelihood of prevailing on
the merits is not a necessary condition of establishing ‘exceptional circumstances’”
where, as here, there has been a strong showing on the other factors.
Montejo-Gonzalez, 119 F.4th at 659 (citing Hernandez-Galand, 996 F.3d at 1037).
We therefore conclude that Aguilar-Escobar established that he missed his
hearing due to exceptional circumstances, and that his failure to attend his April 2
hearing should be excused. We remand to the BIA for further proceedings
consistent with this disposition. In light of this disposition, we do not reach
Aguilar-Escobar’s remaining contention in his petition.
The motion for a stay of removal (Dkt. Entry No. 1) is granted.
PETITION GRANTED.
4 FILED Aguilar-Escobar v. Garland, No. 20-72313 DEC 23 2024 MOLLY C. DWYER, CLERK R. Nelson, J., concurring in the judgment: U.S. COURT OF APPEALS
To rescind his in absentia removal order, Pascual Aguilar Escobar must show
that “exceptional circumstances” prevented him from appearing at his hearing. 8
U.S.C. § 1229a(b)(5)(C)(i). Congress has defined “exceptional circumstances”
narrowly: they are circumstances “beyond the control of the alien” that are no “less
compelling” than serious illness or the death of a spouse or child. Id. § 1229a(e)(1).
Aguilar-Escobar does not meet these criteria. He claims he missed his
removal hearing because he “misunderstood his hearing date.” Specifically, the
immigration court sent Aguilar-Escobar a notice changing his hearing date from
March 25 to “Apr 2.” Aguilar-Escobar appeared in court on March 25 and asked for
clarification. A court employee confirmed that the hearing had been rescheduled and
re-wrote the new date for Aguilar-Escobar:
Still, Aguilar-Escobar failed to appear for his hearing on April 2. Why? He
claims that he misread “April 2” as “Apri 12.”
On no plausible reading of the statutory text does Aguilar-Escobar’s oversight
qualify as an “exceptional circumstance.” Misreading a hearing notice is not as 1 compelling an excuse as serious illness or the death of a spouse. See § 1229a(e)(1).
Nor was Aguilar-Escobar’s oversight “beyond [his] control.” See id. Not long ago,
we recognized as much, holding that scheduling mistakes are typically not
exceptional circumstances. Valencia-Fragoso v. INS, 321 F.3d 1204, 1205–06 (9th
Cir. 2003) (per curiam). Thus, at the very least, it wasn’t arbitrary or irrational for
the BIA to conclude that Aguilar-Escobar’s oversight was not an exceptional
circumstance beyond his control.
Yet our precedent has since strayed far from the text. We’ve swapped the
exceptional-circumstances test that Congress enacted for a test advocated in a law
review article: we consider “the totality of the circumstances” and ask whether it
was “reasonabl[e]” to expect the petitioner to appear. Hernandez-Galand v.
Garland, 996 F.3d 1030, 1034 (9th Cir. 2021) (quoting Iris Gomez, The
Consequences of Nonappearance: Interpreting New Section 242B of the
Immigration and Nationality Act, 30 San Diego L. Rev. 75, 151 (1993)). And despite
the fact that Congress gave the BIA discretion to decide which factors make a
petitioner’s excuse “compelling,” 8 U.S.C. § 1229a(e)(1); cf. INS v. Jong Ha Wong,
450 U.S. 139, 143 n.5 (1981), we have invented factors that the BIA “must first
consider” before denying a motion to reopen, Hernandez-Galand, 996 F.3d at 1034.
Applying this new test, we have repeatedly faulted the BIA for declining to
rescind removal orders based on circumstances that, under the statute, are nowhere
2 near “exceptional.” A petitioner gets stuck in Seattle traffic and misses her hearing.
Under our precedent, that’s an exceptional circumstance—as long as the petitioner
has children that might be separated from her. Montejo-Gonzalez v. Garland, 119
F.4th 651, 657–58 (2024). A family friend neglects to tell the petitioner that his
hearing notice arrived in the mail. Under our precedent, that too is an exceptional
circumstance. Singh v. Garland, 117 F.4th 1145, 1148–49 (9th Cir. 2024). A
petitioner simply forgets her hearing date. That’s also an exceptional
circumstance—if the petitioner has an asylum claim that, though unlikely to succeed,
is at least “not baseless.” Hernandez-Galand, 996 F.3d at 1035, 1037. Per our
precedent, not only are these run-of-the-mill excuses “exceptional circumstances,”
but the BIA abuses its discretion if it disagrees.
There is no question that we have strayed far from the text that Congress
enacted. The en banc court or the Supreme Court should correct our wayward
precedent. But until then, our precedent is binding. And Aguilar-Escobar’s
misreading of his hearing notice is no less compelling than forgetting a hearing date
or getting stuck in traffic. Because “it would be freakish to single out [Aguilar-
Escobar] for special treatment,” I concur in the judgment. Gundy v. United States,
588 U.S. 128, 149 (2019) (Alito, J., concurring in judgment).