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
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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
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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).
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
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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
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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
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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
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