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NOT FOR PUBLICATION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.

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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).

3