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

(d); cf. United States v. Desimone,

(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

2 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.,

(2d Cir. 2005). The applicable standards

of review are well established. See

(b)(4)(B); Yanqin Weng v. Holder,

(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.

(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 3 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 4 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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