# Herbert Edmundo Gomez-Vigil and Silvia Auxiladora Hernandez De Gomez v. Immigration and Naturalization Service

> Court of Appeals for the Ninth Circuit · March 26, 1993 · 990 F.2d 1111

URL: https://www.frixlaw.com/law-library/cases/9484132

## Case

- **Full name:** Herbert Edmundo GOMEZ-VIGIL and Silvia Auxiladora Hernandez De Gomez, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 26, 1993
- **Citations:** 990 F.2d 1111; 93 Daily Journal DAR 3862; 93 Cal. Daily Op. Serv. 2190; 1993 U.S. App. LEXIS 6035
- **Precedential status:** Published
- **Opinion:** Concurrence by Fletcher
- **Judges:** Aldisert, Fletcher, Goodwin, Per Curiam
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9484132

## How later opinions describe it (automated extraction)

- finding administrative notice improperly taken where petitioners had no opportunity to respond to facts of which notice was taken

## Opinion text

FLETCHER, Circuit Judge,
concurring:
I concur in the panel’s per curiam opinion. I write separately to make clear that, in my view, the opinion on which we rely in the per curiam is neither constitutionally dubious nor jurisprudentially unprincipled as Judge Aldisert’s concurrence suggests. In Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.1992), speaking for our court, a unanimous panel provided sound analysis and appropriate direction to the INS that our circuit has followed in a large number of subsequent cases, published and unpublished. Relying on Supreme Court precedent and principles of due process, Castillo-Villagra analyzed the BIA’s use of administrative notice-taking in the context of asylum and withholding of deportation requests advanced by three Nicaraguan nationals. Far from issuing “imperial” statements of constitutional law, it set forth a flexible means of analyzing different categories of notice-taking. Wrongly charged with “inventing” a new meaning for due process, it clearly articulated the due process deprivation suffered by petitioners when notice-taking became a device for “assuming away” their case.
*1123 A. The Due Process Deprivation
The Castillo-Villagra court set forth the four “facts” that the BIA had administratively noticed. It categorized three as legislative in nature, and the fourth as adjudicative. 1 Specifically pointing to the “multidimensional nature of administrative notice decisions,” the court recognized that the agency has discretion “not only for whether to take notice, but also for whether to allow rebuttal evidence and even for whether the parties must be notified that notice will be taken.” 972 F.2d at 1028 . It is incorrect to reduce, as Judge Aldisert does, its holding to the simplistic proposition that all administrative notice-taking requires advance notice to the parties as a matter of constitutional law. Concurrence at 1114, 1120-1121.
Significantly the court found taking administrative notice of the fourth, adjudicative fact — that petitioners no longer had a well-founded fear of persecution in Nicaragua — the most problematic. The BIA took administrative notice of the significance of the changes in Nicaragua as they affected petitioners. On the basis of three legislative facts, and without individualized examination of the underlying merits, the Board summarily negated all of the Nicaraguan petitioners’ claims of a continuing well-founded fear of persecution. Rather than deciding each case on the merits, it took notice that petitioners had no case. As the Castillo-Villagra court put it, in the guise of administrative' notice-taking, the agency simply “assumed away petitioners’ case.” 972 F.2d at 1029 . This is the core due process violation presented by these cases. Through no procedural, or jurisdictional default, petitioners were deprived of their right to the Board’s review of the merits of their individual cases. They were deprived of the opportunity to plead the merits of their cases to the BIA as a matter of right on direct appeal. 2
Judge Aldisert accuses the Castillo-Vil-lagra court of finding a due process deprivation prematurely — of discarding principles of ripeness in order to engage in “classic result-oriented jurisprudence.” Concurrence at 1118. This charge results from a flawed reading of the case and is grossly unfair. The court did not address itself to a future deprivation conditional upon discretionary denial of reopening. It made clear that the core deprivation occurred at the moment the BIA bypassed reviewing the circumstances of petitioners’ individual cases, taking, administrative notice of the change of government without squarely considering whether the individuals’ claims might still have merit notwithstanding these changes.
Following the lead of INS v. Abudu, 485 U.S. 94, 110 , 108 S.Ct. 904, 915 , 99 L.Ed.2d 90 (1988), and INS v. Doherty, — U.S. -,-, 112 S.Ct. 719, 724 , 116 L.Ed.2d 828 (1992), the Castillo-Villagra court analogized to criminal law to demonstrate the nature of the due procéss violation and the consequent inadequacy of discretionary relief. Elaborating on this analogy for the purposes of illustration, I suggest that in a criminal appeal the Board’s action would have amounted to dismissing the defendant’s appeal of his conviction based solely on evidence newly presented by the government in its appeal brief. No one disputes that the Board resolved the appeal without considering on the merits the evidence petitioners adduced to contest the IJ’s determination. Criticism on ripeness grounds misses the mark. A criminal defendant receiving no direct review oh the merits of her case would not be required to seek habeas relief (with the higher burdens and narrowed scope of habeas review) before making out a due process claim. We "do not require a defendant to run the gamut of federal court discretionary reviews before acknowledging that she was deprived *1124 of her right to a hearing on direct review. As the Abudu court put it, “[t]here is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.” 485 U.S. at 94 , 108 S.Ct. at 904 (emphasis added). The BIA’s “adjudicative” notice-taking closed numerous Nicaraguan cases, but at the cost of ignoring one side — a tradeoff flatly inconsistent with due process.
Judge Aldisert suggests that a motion for reopening under the regulations would cure, even obviate, this deficiency. In addition to misapprehending the nature of the due process deprivation at issue, he ignores the requirements and limitations of the reopening procedure. 3 A Section 3.2 hearing cannot substitute for direct consideration on appeal. It was not designed to do so. First, the regulations explicitly state that motions to reopen “shall* not be granted unless it appears that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 3.2 (emphasis added). These motions must “state the new facts to be proved.” 8 C.F.R. § 3.8 (emphasis added). The Supreme Court has made it abundantly clear that the threshold requirements for reopening may be strictly interpreted. Only new evidence, previously unavailable, or unforeseeable, and thus incapable of presentation to the. IJ or the BIA on direct review justifies a reopening. Doherty, — U.S. at-, 112 S.Ct. at 726 ; Abudu, 485 U.S. at 108 , 108 S.Ct. at 913 . Even then, higher standards are imposed. The Ninth Circuit employs a two-part test (endorsed by the Supreme Court) which requires that petitioners also “make a prima facie showing [of eligibility] for the relief sought.” Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir.1987) (citation omitted); Samimi v. INS, 714 F.2d 992, 994 (9th Cir.1983); see also Abudu, 485 U.S. at 108 n. 13, 108 S.Ct. at 913 n. 13. Lastly, as a functional matter, a reopening proceeding cannot take the place of direct review. “[MJotions to reopen are decided without a hearing and serve only a limited screening function.” Hernandez-Ortiz v. INS, 777 F.2d 509, 514 (9th Cir.1985) (citing Reyes v. INS, 673 F.2d 1087, 1089, 1091 (9th Cir.1982)). Where a claim requires a factual showing, one which may depend on live testimony or oral argument, our courts have found “the abbreviated procedure in a motion to reopen before the BIA is simply not a substitute.” Moran-Enriquez v. INS, 884 F.2d 420 , 423 n. 2 (9th Cir.1989).
All three of these factors render a discretionary reopening proceeding the wrong vehicle for belated direct review of petitioners asylum claims. But the first factor— the plain language of the regulations and its strict interpretation by the courts— make reliance on reopenings unquestionably inappropriate. The Nicaraguan petitioners do not wish to offer new evidence unavailable at the time the BIA reviewed their claims. In the first place it is not their evidence that is new. Contrary to the position adopted by the BIA, these petitioners contend that the Sandinistas remain “in power” at both institutional (police and army) and extragovernmental (local leadership) levels. Formal decrees assure the continuity of military power in Sandinista hands. See Concurrence at 1115 n. 1. These contentions are raised to rebut the newly noticed facts, but they argue continuity not change. By their nature, they do not constitute “new facts” or “new evidence,” but rather evidence of an unchanged backdrop supporting an ongoing fear of persecution. By failing to review the merits of the Castillo-Villagra petitioners’ claims, the BIA committed much the same error condemned in Kovac v. INS, 407 F.2d 102 (9th Cir.1969). There a Yugoslavian crewman received a hearing insufficiently related to the “substance of [his] claim.” Id. at 103-104 . The BIA “rested [its] conclusion entirely upon” a decision made with respect to a fellow countryman *1125 which “even if accurate as to him, [was] wholly inapplicable to petitioner.” Id. at 105 . Because this crewman never received a proper “first hearing” (on the substance of his case) and, because the evidence relied upon lacked individual application (it applied to another Yugoslav, not necessarily to Kovac), the court insisted on remand to the first level of agency review. Id. at 105-108 (“[u]nder the statute petitioner was entitled to a determination based upon the probability of persecution of himself, not of others_ It is particularly important that an applicant for [asylum] have a reasonable opportunity to present his proofs, for the stakes are high. We have grave doubt that the hearing as conducted met this standard”) (internal citation omitted). Both sets of petitioners were afforded remand because their evidence was not “new;” it simply had gone unreviewed (through no fault of petitioners) by the agency charged with hearing it. 4
Nor is the rebuttal evidence which petitioners might adduce properly characterized as “unavailable” and “incapable” of being presented before the BIA on direct review. Petitioners are required to show that their individualized circumstances warrant granting asylum. Any case they have depends upon the interaction of their personal circumstances with the political landscape in Nicaragua. Rebuttal evidence need not include new facts — in most cases petitioners are likely to insist that the dangers particular to them remain despite apparent political change. Ironically their “new” evidence, then, is that there is no “new evidence,” only evidence that change has not materialized or not in any way material to petitioners. It is not “new evidence” in the sense recognized by the case-law; for instance, where a petitioner wishes to add to the record accounts of persecution which have taken place subsequent to her hearing or which touch petitioner’s life more closely. See, e.g., Hernandez-Ortiz, 777 F.2d at 514-515 & 514 n. 4 (family members killed and threatened after mistaken deportation); Samimi, 714 F.2d at 994-995 (no prior knowledge of treatment of family members).
Ultimately Section 3.2 proceedings do not suffice because they serve a different purpose and are intended to provide relief for a different problem. Castillo-Villagra built on the analogy between a motion for reopening and a motion for a new trial to point out that where there is no trial or no hearing, there can be no Section 3.2 solution. Not only did the BIA not consider the merits of the case petitioners like Gomez-Vigil and his wife presented to the IJ, it made its decision “on the basis of facts which were not the subject of the hearing before the IJ.” Castillo-Villagra, 972 F.2d at 1025 . “That means that, with respect to the facts that controlled the BIA decision, the petitioners have never had a hearing.” Id. The Castillo-Villagra court correctly read Abudu (and Doherty) to “teach[] that the ‘heavy burden- upon which the moving party seeking a second trial should not be imposed where there has not been a first trial.” Id. Like the Castillo-Villagra family the Gomez-Vigils were deprived of their right to an initial hearing before the BIA on the merits of their case. Discretionary motions to reopen are not designed to deal with this type of deprivation. The court correctly understood that it makes no sense to force petitioners into the posture of seeking reopening based on new evidence when they have had no threshold hearing on the critical adjudicative facts.
B. Spillover Effects
Judge Aldisert also impugns Castillo-Villagra for the havoc it will wreak on administrative and judicial notice-taking beyond the INS context. These charges, I suggest, are based on an oversimplification of the court’s holding, supra at 1123. They are simply wrong. In the first place administrative notice-taking that may be appropriate when undertaken in the INS *1126 context, may or may not be appropriate in other contexts. The BIA procedures invade neither the territory of Rule 201 5 (judicial notice) (Fed.R.Evid. 201(a) & (e)) nor the analogous provision for APA-governed cases (administrative notice) ( 5 U.S.C. § 556 (e)). Courts can and do differentiate between INA-based and APA-based cases. Castillo-Villagra, 972 F.2d at 1025-26 . Further, the Castillo-Villa-gra court was centrally concerned with the BIA’s noticing of highly debatable legislative facts or dispositive adjudicative facts where no statutory or regulatory provision ensured that due process would be accorded. 6 Its measured approach to the requirements for different forms of notice-taking emerges from and makes sense within the immigration context. Castillo-Villagra , itself, does not suggest broader application. It is not reasonable to fear that the opinion will become an uncontrollable engine for due process objections to all Rule 201(e) notice-taking, or notice-taking specifically extended (and controlled) by other framework statutes. 7
Our court has issued a sensible opinion in Castillo-Villagra . Judge Aldisert’s quixotic attack is unjustified.
. The administratively-noticed facts, both legislative and adjudicative, "included: (1) that Violeta Chamorro had been elected president, (2) that her non-Sandinista coalition had gained a majority in parliament, ... (3) that the Sandi-nistas were ousted from power ... [and (4) ] that the Castillo-Villagra family had nothing more to fear from the Sandinistas.” Castillo-Villagra, 972 F.2d at 1027 .
. The merits of these cases were allegedly of continuing force despite certain changes in the government in their home country.
. It is because Judge Aldisert ignores these requirements that he believes petitioners have not been deprived of due process. Our quarrel is not a constitutional one over the interpretation of the due process clause. Concurrence at 1115. Rather we differ in our reading of the INS regulations and the effect to be given Supreme Court precedent interpreting them.
. The Castillo-Villagra court did not remand to the first level of agency review (as the Kovac court did, 407 F.2d at 108 ). In remanding to the BIA, it left it to the BIA’s discretion as to whether to remand to the IJ to further develop the record or to allow supplemental briefing and oral argument.
. Judge Aldisert criticizes Castillo-Villagra for failing to resolve the conflict between its holding and Rule 201. I suggest the panel saw no conflict. Nor do I. To the contrary, the panel drew its conceptual analysis from the rule and its accompanying notes.
. The absence of such a provision in this context contrasts with the host of federal regulations cited' by Judge Aldisert which regulate notice-taking in other contexts. Concurrence at 1120.
. It is absurd to predict the wholesale abandonment by the Ninth Circuit of regulations and rules that structure notice-taking in discrete contexts. See supra note 6. Judge Aldisert’s illustration of the powerful precedential effect of Castillo-Villagra , Concurrence at 1122, proves his fears exaggerated. The case he cites does rely on a Third Circuit INS opinion, but for a proposition which is so uncontroversial that Judge Aldisert identifies it upfront as something with which he is in "total agreement." Concurrence at 1115. Moreover, its analysis is expressly not grounded on any constitutional consideration. Union Elec. Co. v. FERC, 890 F.2d 1193 , 1202 (D.C.Cir.1989).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9484132. Public record. Not legal advice.