Petition for Writ of Certiorari — Esquivel-Berrios v. Immigration & Naturalization Service
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IN THE —
Supreme Court of the Gnited States
OCTOBER TERM, 1992
LUIS ANDRES ESQUIVEL-BERRIOS,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition For A Writ of Certiorari
To The United States Court of Appeals
For The Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
JAVIER H. RUBINSTEIN
Counsel of Record
JAMES D. HOLZHAUER
Mayer, Brown & Plait
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
i
QUESTIONS PRESENTED
Petitioner, a Nicaraguan national, fled his country in 1985
at the age of twelve to avoid forced conscription into the
military. He arrived in the United States and sought political
asylum in 1988. The Board of Immigration Appeals took
“administrative notice" that the intervening election of Violeta
Chamorro as President of Nicaragua eliminated any well-
founded fears of persecution that petitioner might have, and on
that basis denied his asylum petition. The Board gave petitioner
no opportunity to present evidence concerning the effect of the
Chamorro election on his fear of persecution. The United
States Court of Appeals for the Seventh Circuit affirmed.
The questions presented are:
1. Whether respondent violated petitioner’s rights under
the Due Process Clause of the Fifth Amendment by denying his
asylum claim based solely upon administrative notice of
adjudicative facts without prior notice and without giving peti-
tioner the opportunity to present contrary evidence.
2. Whether 28 U.S.C. § 2347(c), which authorizes courts
of appeals to order agencies to consider newly-adduced evi-
dence, is rendered inapplicable by the existence of discretionary
reopening mechanisms available at the agency level.
il
TABLE OF CONTENTS
Page
(FURS EMte PGMA . ww kN i we ee ee be i
Pog rrr ee eer err ery ]
PAPE 55. ack Sena ee ee ae eee 2
CONSTITUTIONAL AND STATUTORY ;
PRASV GREENS EUVURLVED 2c te eee we ee 2
DEORE UNEEEENE 6 i A a 4 6 0 2 oe ee 2
A. Petitioner’s Background ... 0.6... .0s05800. 3
B. Asylum Proceedings And The Chamorro Election 4
C. Proceedings In The Court Of Appeals ....... 6
REASONS FOR GRANTING THE PETITION ....... 8
I. THE COURT OF APPEALS’ DECISION THAT
THE BOARD DID NOT VIOLATE THE DUE
PROCESS CLAUSE CONFLICTS WITH DECI-
SIONS OF OTHER COURTS OF APPEALS AND
CANNOT BE RECONCILED WITH THIS
COURT’S DUE PROCESS DECISIONS ........ 9
A. The Court Of Appeals’ Ruling Conflicts
With Rulings Of Other Circuits That The
Board May Not Base A Decision On Offi-
cial Notice Without Warning And An Op-
portunity To Present Contrary Evidence .... 9
iil
B. The Court Of Appeals’ Ruling Conflicts
With Decisions Of Other Circuits Which
Hold That Discretionary Reopening Mecha-
nisms Are Insufficient To Satisfy Due Pro-
COGS POOQUITOMONIS 2. es 16
Il. THE COURT OF APPEALS’ REFUSAL TO
APPLY 28 U.S.C. § 2347 DISREGARDS THE
PLAIN LANGUAGE OF THE STATUTE AND
CONFLICTS WITH RULINGS OF OTHER
COURTS OF APPEALS WHICH HAVE APPLIED
IT ON REVIEW OF BOARD DECISIONS .....
i]
bo
Ill. THE QUESTIONS PRESENTED HAVE GREAT
LEGAL AND PRACTICAL SIGNIFICANCE .... 25
ee a ee ek os ks kw CD 26
iV
TABLE OF AUTHORITIES
Cases Page
Banks v. Schweiker, 654 F.2d 637 (9th Cir. 1981) .... 14
Barraza Rivera v. I.N.S., 913 F.2d 1443
te | ee ere 1]
Becerra-Jimenez v. I.N.S., 829 F.2d 996
Co Lo a |, rere ae ane 24, 25
Bernal-Garcia v. 1.N.S., 852 F.2d 144
es Se oe ee oe a ee ee 24
Board of Education v. Allen, 392 U.S. 236 (1968) ..... 9
Bowman Transp. v. Arkansas-Best Freight System,
OTP Ue Bee CARP 6 kc ee ee ee wh es 13, 14, 19
Brown v. Piper, 91 U.S. 37 (1873) ww. ww ee 10
Castillo-Villagra v. I.N.S., 972 F.2d 1017
ee a SOE No ee ae keke eek 5 passim
The Chicago Junction Case, 264 U.S. 258 (1924) .... 13
Coriolan v. I.N.S., 559 F.2d 993 (Sth Cir. 1977) ..... 24
Dolores v. I.N.S., 772 F.2d 223 (6th Cir. 1985) ..... 24
Evans v. Newton, 382 U.S. 296 (1966) ........... 10
Ford Motor Co. v. Labor Board, 305 U.S. 364 (1939) . 25
Vv
Gutierrez-Rogue v. I.N.S., 954 F.2d 769
esc GO, EPO eS eee ees 10, 12, 16, 21
Heckler v. Campbell, 461 U.S. 458 (1983)......... 14
I.N.S. v. Abudu, 485 U.S. 94 (1988) ....... 17, 18, 21
2. ¥. Donemy, 112 S. Ce. 719 C992)... . . passim
I.N.S. v. Elias-Zacarias, 112 §. Ct. 812 (1992) ...... 21
I.N.S. v. Jong Ha Wang, 450 U.S. 139 (1981) ...... 17
I.N.S. v. Phinpathya, 464 U.S. 183 (1984) ........ 17
I.N.S. v. Rios-Pineda, 471 U.S. 444 (1985) ........ 17
Interstate Commerce Comm’n v. Louisville &
Nashville R.R., 227 U.S. 88 (1913) .......... 13
Johnson vy. Eisentrager, 339 U.S. 763 (1950) ....... 12
Kaczmarczyk v. I.N.S., 933 F.2d 588 (7th Cir.),
cert. denied, 112 S. Ct. 583 (1991) .. 11, 16, 20, 21
Landon v. Plasencia, 459 U.S. 21 (1982) ......... 12
Martinez de Mendoza v. I.N.S., 567 F.2d 1222
ee ei: rn ren oe a Oe 23, 24, 25
Milliken v. Bradley, 433 U.S. 267 (1977) ...... 19, 20
Montecino v. I.N.S., 915 F.2d 518 (9th Cir. 1990) .... 11
Mutual Life Ins. Co. v. McGrew, 188 U.S. 291 (1903) . 13
vi
Ohio Bell Telephone Co. v. Public Utilities Comm’n,
Re re 12, 13, 14
Orantes-Hernandez v. Smith, 541 F. Supp. 351
oe are rar 1]
Osaghae v. I.N.S., 942 F.2d 1160 (7th Cir. 1991) .... 23
Ramirez-Gonzalez v. I.N.S., 695 F.2d 1208
eee 25
Rivera-Cruz v. I.N.S., 948 F.2d 962
le | aa 10, 12, 16
Speiser v. Randall, 357 U.S. 513 (1958) .......... 16
Standard-Vacuum Oil Co. v. United States,
ee: BT OEM bc kw eww es 4
Ulloa v. I.N.S., 944 F.2d 905
(6th Cir. 1991) (Table),
eRe | rr ee ee ee passim
United States v. Abilene & So. Ry.,
ee ee ee 0 v.66 ko ie ek cw ew Oo 13, 14
United States v. B. & O. Southwestern Ry..,
Se Se I. i kas ste ee A ee 13
“itherspoon v. Illinois, 391 U.S. 510 (1968) ........ 9
.
:
s
Rules Regulation Page
oe SE kok be Ak ek eee 14
8 U.S.C.
ee ra er ee rere eer een Te, 24
Si ee ee ee ee ee ee Le eS 9
Be Ue EBON occ eee eweevee ves passim
ek of Se ee eee rer 16, 17, 23, 24, 25
Geneva Convention Relating to the Protection of
Victims of Non-International Armed Conflicts,
Protocol II, 16 I.L.M. 1442 (1977)............ 3
United Nations Convention on the Rights of the Chil,
OO te, EOD i 0 oe oe bw 3
FED. R. EviD. 201(e) Advisory Comm. Note ....... 4
Constitutional Provisions
Fons S, PO wk ee eee passim
Vill
f
Miscellaneous
3 K. Davis, ADMINISTRATIVE LAW TREATISE
og A Aa rare org a eae 11, 14, 20
Davis, A System of Judicial Notice Based On
Fairness and Convenience, in PERSPECTIVES
ee I a gc 6 ap ee ee eck wee he 14
Immigration Board’s Administrative Notice of
Sandinista Ouster Yields Circuit Split,
Oi U.5.L.W. 1025 (Awe. 16, 1992) ........ 3, 26
69 INTERPRETER RELEASES 1213
NG I rag a aA he, ay kay ae
Joint Comm. on Foreign Affairs, Country
Reports on Human Rights Practices for 1984,
S. Prt. No. 6, 99th Cong., Ist Sess. (1985) ...... 3
Joint Comm. on Foreign Affairs, Country
Reports on Human Rights Practices for 1988,
S. Prt. No. 3, 101st Cong., lst Sess. (1989) ...... 4
Joint Comm. on Foreign Affairs, Country
Reports on Human Rights Practices for 1990,
S. Prt. No. 5, 102d Cong, Ist Sess. (1991) ....... 5
Sen. Comm. on Foreign Relations, Nicaragua Today,
Comm. Prt. No. 102, 102d Cong., 2d Sess. (1992) .. 5
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1992
LUIS ANDRES ESQUIVEL-BERRIOS,
Petitioner,
v,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition For A Writ Of Certiorari To
The United States Court Of Appeals
For The Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
Luis Andres Esquivel-Berrios respectfully petitions for a
writ of certiorari to review the judgment of the United States
Court of Appeals for the Seventh Circuit in this case.
OPINIONS BELOW
The decision of the United States Court of Appeals for the
Seventh Circuit, as modified on denial of rehearing (App. la-
2la, infra), is reported at 971 F.2d 26. The decision of the
United States Board of Immigration Appeals (App. 22a-26a,
infra) is unpublished.
2
JURISDICTION
The judgment of the court of appeals was entered on
August 4, 1992. A timely petition for rehearing with sugges-
tion of rehearing en banc was filed by petitioner on September
15, 1992. The court of appeals modified its judgment and
denied the petition on November 4, 1992. This Court’s
jurisdiction rests on 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Due Process Clause of the Fifth Amendment to the
United States Constitution provides, in pertinent part, that "No
person shall be * * ™* deprived of life, liberty, or property,
without due process of law." 28 U.S.C. § 2347(c) is reprinted
at page 3la of the Appendix to this petition.
STATEMENT
In this case, the United States Court of Appeals for the
Seventh Circuit upheld the determination by the Board of
Immigration Appeals ("Board") that petitioner no longer had a
well-founded fear of persecution were he to return to his native
Nicaragua. That determination was based entirely on the
Board’s “administrative notice” that a change in the government
of Nicaragua removed any basis for petitioner’s fear of persecu-
tion. The Board did not give petitioner any notice that it
intended to take "administrative notice" of the effect of the
change in government, and did not give petitioner any opportu-
nity to present evidence demonstrating that the change in
government did not eliminate Sandinista control of the Nicara-
guan military and security forces and thus did not remove the
basis for his fear of persecution.
The Seventh Circuit’s decision that petitioner’s due process
rights were not violated by the Board’s use of official notice
and the lack of any opportunity for petitioner to rebut the
3
noticed "facts" follows similar decisions by the District of
Columbia Circuit and the Fifth Circuit, but is directly contrary
to decisions of the Sixth Circuit and the Ninth Circuit.' This
Court should grant the petition to resolve this conflict among
the circuits on this important issue.
A. Petitioner’s Background. Petitioner Luis Esquivel-
Berrios was born in Chinandega, Nicaragua in 1971. In
February, 1985, at the age of thirteen, he fled Nicaragua and
left behind his family out of fear that he would be forcibly
conscripted into military service by the Sandinista government.
Shortly before his escape, the Sandinistas conducted a raid on
petitioner’s village in which more than 3,000 children and
young adults (8% of the village’s population) were kidnapped
and forced into military service against their will.? Petitioner
testified that children of his age and size were particularly at
risk of being kidnapped.’
See Immigration Board's Administrative Notice Of Sandinista Ouster
Yields Circuit Split, 61 USLW 1023 (Aug. 18, 1992) (noting conflict among
the circuits following ruling below); 69 INTERPRETER RELEASES 1213 (Sept.
28, 1992) (same).
° This raid was specifically described in the State Department’s Country
Reports for 1984 (published in February, 1985), a copy of which was
contained in the record. See Joint Comm. on Foreign Affairs, Country
Reports on Human Rights Practices for 1984, S. Prt. No. 6, 99th Cong., Ist
Sess. 615 (1985).
: It was undisputed below that such forced conscription by the Sandinistas
constituted a violation of international law, including Article 4(3)(c) of
Protocol II to the Geneva Convention Relating To The Protection Of Victims
Of Non-International Armed Conflicts, 16 I.L.M. 1442, 1444 (1977), and
Article 38 of the United Nations Convention on the Rights of the Child, 28
I.L.M. 1448, 1470 (1989).
4
Petitioner fled to Guatemala where he remained for more
than three years while living with an older brother. He
eventually lost his permission to remain in Guatemala and,
fearing deportation back to Nicaragua, entered the United States
without inspection and was immediately arrested on or about
July 21, 1988. Upon his arrest, petitioner conceded deportabili-
ty and applied for political asylum citing his fear of reprisals by
the Sandinista military and his opposition to the Sandinista
party. Through the time of his arrest, the State Department
continued to acknowledge the forced conscription of minors by
the Sandinista military and the disappearance of those who
refused to serve.*
B. Asylum Proceedings And The Chamorro Election. The
Immigration Judge found petitioner’s testimony concerning his
experiences and fears of persecution to be credible. Neverthe-
less, the judge denied petitioner’s asylum claim citing the
absence of sufficient corroborating evidence. The judge ruled,
however, that he would not consider any evidence contained in
the State Department’s Country Reports even though such
reports had been placed into the record and specifically
corroborated petitioner’s testimony.
On April 25, 1990, during the pendency of petitioner’s
appeal to the Board and after all briefing was completed,
Violeta Chamorro defeated the Sandinistas in a general election
and was elected President of Nicaragua. The State Department,
however, was quick to point out that the Sandinistas retained
much of their official control of the government and that the
same Sandinista officials who controlled the military and
. See, e.g., Joint Comm. on Foreign Affairs, Country Reports on Human
Rights Practices for 1988, S. Prt. No. 3, 101st Cong., Ist Sess. 645 (1989).
5
security forces in 1985 remained in power.’ Recently, the
Senate Foreign Relations Committee also noted that Sandinista
control of the government is growing and that the Sandinista
military continues to perpetrate human rights atrocities and
persecute its opponents.°
On January 17, 1991, the Board dismissed petitioner’s
appeal based entirely upon its officially noticed assumption that
the Chamorro election had necessarily eliminated any well-
founded fear of persecution that petitioner might have. In doing
so, the Board utilized the following boilerplate language that it
has used to dismiss virtually ali Nicaraguan asylum petitions:
[W]e take administrative notice that the Sandinista party no
longer controls the Nicaraguan government. Effective April
25, 1990, a new coalition government, formed by parties in
* See Joint Comm. on Foreign Affairs, Country Reports on Human
Rights Practices for 1990, S. Prt. No. 5, 102d Cong, Ist Sess. 701 (1991)
("The military and police continued to be controlled by Sandinistas in 1990
despite the change in administration. In transition accords signed between
the new Government and outgoing Sandinista leaders, Humberto Ortega
[brother of former President Daniel Ortega] was designated to remain as
head of the Nicaraguan armed forces . . . . Ortega retains almost complete
autonomy in the conduct of military affairs. Rene Vivas, also a Sandinista,
remained as head of the police").
: See Sen. Comm. on Foreign Relations, Nicaragua Today, Comm. Prt.
102, 102d Cong., 2d Sess. 1-6, 35-49, 79-95 (Aug. 1992). Among its "Key
Findings,” the Foreign Relations Committee concluded that "President
Chamorro is the titular head of state in Nicaragua. The country is actually
controlled by General Humberto Ortega, and the Sandinista National Libera-
tion Front," and that "[hjuman rights abuses are rampant in Nicaragua.
Typical examples are the murder of Nicaraguan Resistance Commander,
Enrique Bermudez, the torture of Resistance leader Anstides Sanchez, the
murder of Jean Paul Genie [a sixteen year old boy who returned to
Nicaragua after fleeing conscription], the assassination, torture, and
harassment of thousands of former Resistance combatants . . ." /d. at ix-x.
6
opposition to the Sandinistas ("UNO"), has succeeded the
former government of the Sandinista party following nation-
al elections and the inauguration of Violeta Chamorro as the
new president. Further, the new president of Nicaragua has
announced a general amnesty covering the hostilities
between the former Contra resistance and the Nicaraguan
government and an end to military conscription. Given that
the Sandinista party no longer governs Nicaragua, under the
present circumstances we do not find that the record now
before us supports a finding that the respondent has a well-
founded fear of persecution by the Sandinista government
were he to return to Nicaragua.
App. 23a-24a, infra. The Board did not address petitioner’s
evidence concerning his fears of persecution by the Sandinista
military. In fact, the Board’s opinion contained no discussion
at all concerning petitioner’s specific asylum claim. Instead,
because of its officially noticed findings concerning the impact
of the Chamorro election, the Board simply held that peti-
tioner’s evidence of persecution was inconsequential: "even if
one were to assume that the respondent’s previous experiences
in Nicaragua amounted to past persecution, or that at the time
he left and for some time thereafter he had a well-founded fear
of persecution should he return, it is not established that he
presently merits a grant of asylum." App. 24a, infra.
C. Proceedings In The Court Of Appeals. On March 14,
1991, petitioner filed a timely petition for review in the Court
of Appeals for the Seventh Circuit seeking to reverse the
Board’s ruling on the grounds that it violated his rights under
the Due Process Clause and because the Board’s officially
noticed findings were not supported by substantial evidence.
Alternatively, pursuant to 28 U.S.C. § 2347(c), petitioner
sought an order vacating the Board’s ruling and remanding for
consideration of newly-adduced evidence which petitioner
sought to offer to rebut the Board’s findings. Petitioner argued
that he had reasonable grounds for not presenting this evidence
7
to the Board because the Chamorro election did not occur until
after briefing at the Board had concluded and because he was
given no warning by the Board that it would rely upon matters
outside the record.
On August 4, 1992, the court of appeals, while acknowl-
edging the seriousness of petitioner’s constitutional objections
to the Board’s decision, nevertheless rejected each of his
contentions. The court initially noted its concern over the
“cloud cast over the Board’s decision by its use of boilerplate
paragraphs in describing the salient factors involved in its
determination." App. 18a, infra. The court then cited the
absence of any “detailed description of Berrios’ testimony" and
its concern that it was not "immediately apparent that the Board
considered Berrios’ evidence at all." Jbid. The court also
acknowledged that “the Board did not discuss the relationship
between the change in the Nicaraguan government and Berrios’
particular claims." Jbid.
Despite each of these deficiencies in the Board’s decision,
the court held that "the Board’s consideration of Berrios’ case
was not so inadequate as to amount to a denial of due process"
because one sentence in the decision “indicates that the Board
was aware of Berrios’ specific claim." App. 18a, infra. The
court did not hold the Board’s officially noticed findings to be
supported by substantial evidence. Instead, it affirmed the
Board’s decision based upon the mere holding that the evidence
cited by the Board "tends to support a conclusion that Berrios
no longer had a well-founded fear of persecution." Jd. at 19a
n.12.
Finally, the court denied petitioner’s motion pursuant to
28 U.S.C. § 2347(c) on the grounds that such relief was
inapplicable given the availability of discretionary reopening
mechanisms at the Board. App. 16a-17a, 19a, infra. While the
court agreed with petitioner that he "has a due process right to
8
have [his] evidence considered," id. at 19a, the court assumed
that such evidence would be considered by the Board through
a motion to reopen. It also assumed that even though a motion
to reopen would not stay petitioner’s deportation, the Board
would act in good faith and not deport petitioner until such a
motion was resolved (although respondent’s counsel refused to
provide such assurances during oral argument in the court of
appeals).
On September 15, 1992, petitioner filed a petition for
rehearing and suggestion of rehearing en banc, citing primarily
the conflict created by the court’s decision with recent rulings
of the Sixth and Ninth Circuits. While acknowledging the
conflict concerning each of its holdings (App. 14a, 17a n.9,
infra), the court denied the petition for rehearing on November
4, 1992. On December 4, 1992, the court of appeals stayed
execution of its judgment enforcing the administrative order of
the Board pending disposition of the petition to this Court.
REASONS FOR GRANTING THE PETITION
The Seventh Circuit’s decision on the constitutional limits
"and uses of official notice, including its holding that due
process does not guarantee an opportunity to rebut officially
noticed findings, conflicts with decisions of several other
circuits and cannot be reconciled with due process decisions of
this Court. In addition, the Seventh Circuit’s ruling on the
applicability of 28 U.S.C. § 2347(c) also presents a question
over which the courts of appeals are in conflict. These issues
are certain to recur given the broad applicability of the court’s
decision to virtually all forms of agency adjudication. This
Court should grant the petition to resolve these conflicts among
the circuits.
9
I. THE COURT OF APPEALS’ DECISION THAT THE
BOARD DID NOT VIOLATE THE DUE PROCESS
CLAUSE CONFLICTS WITH DECISIONS OF OTHER
COURTS OF APPEALS AND CANNOT BE RECONCILED
WITH THIS COURT’S DUE PROCESS DECISIONS
The court of appeals’ decision in this case raises fundamen-
tal questions concerning the constitutional limits of official
notice and the due process safeguards that must be observed
when such notice is taken by an agency. It also calls into
question the role, if any, that agency reopening mechanisms
may play in providing these safeguards. On each of these
fundamental questions, the courts of appeals are hopelessly in
conflict and in need of guidance from this Court.
A. The Court Of Appeals’ Ruling Conflicts With Rulings
Of Other Circuits That The Board May Not Base A
Decision On Official Notice Without Warning And An
Opportunity To Present Contrary Evidence
The court of appeals held that the Board may constitutional-
ly deny an asylum application based solely upon official notice
of changed political circumstances in the alien’s country of
origin. App. 18a-19a, infra. In other words, the Board may
take official notice that an alien no longer possesses the well-
founded fear of persecution required by 8 U.S.C. § 1158(a) to
merit a grant of asylum.’ Most significantly, however, the
. Although not presented for review, this holding cannot be squared with
the rule that official notice not be used to resolve ultimate issues in a case,
particularly those which involve the petitioner’s state of mind. See, e.g.,
Standard-Vacuum Oil Co. v. United States, 339 U.S. 157, 159-60 (1950)
(“certainly a court could not know judicially the facts of petitioner’s informa-
tion or lack of information"); Board of Education v. Allen, 392 U.S. 236,
248 (1968) (refusing to take judicial notice of whether materials used in
parochial schools are used solely to teach religion); Witherspoon v. Illinois,
391 U.S. 510, 517-18 (1968) (refusing to take judicial notice that exclusion
10
court also held that the Board could take official notice without
warning to the alien and without guaranteeing him the opportu-
nity to present rebuttal evidence. App. 18a-19a, infra. In
reaching this holding, the court of appeals fully acknowledged
the conflict among the circuits on this question. Jd. at 14a.
Indeed, when faced with this conflict on rehearing, the court
cited but made no attempt to reconcile it. Jbid.
The court of appeals based much of its reascning on earlier
decisions of the District of Columbia Circuit in Gutierrez-Rogue
v. ILN.S., 954 F.2d 769 (1992), and the Fifth Circuit in Rivera-
Cruz v. I.N.S., 948 F.2d 723 (1991). In each of these cases,
the courts upheld the ability of the Board to deny Nicaraguan
asylum applications based solely on official notice as to the
impact of the Chamorro election. These decisions, however,
irreconcilably conflict with rulings of the Ninth Circuit in
Castillo-Villagra v. I.N.S.,972 F.2d 1017 (1992), and the Sixth
Circuit in Ulloa v. I.N.S., 944 F.2d 905 (1991) (Table), at
App. 27a-30a, infra, which held that the Board’s boilerplate use
of officially noticed findings concerning the election violated the
Due Process Clause, both because of the absence of any
warning to the petitioner and the failure to provide the petition-
er an opportunity to present evidence rebutting those findings.‘
of jurors opposed to capital punishment increases risk of conviction); Evans
v. Newton, 382 U.S. 296, 301 (1966) (refusing to take judicial notice of
whether park was public or private in character). See also generally Brown
v. Piper, 91 U.S. 37, 42-43 (1875) ("[cJourts will take notice of whatever
is eenerally known within its limits of their jurisdiction. . . . This power is
to be exercised by courts with caution. Care must be taken that the requisite
notoriety exists. Every reasonable doubt upon the subject should be resolved
promptly in the negative").
The court’s decision to uphold the Board’s ruling even though it "did
not discuss the relationship between the change in the Nicaraguan govern-
ment and Berrios’ particular claims," App. 18a, infra, also is unprecedented.
11
The issue presented is not whether the Board may take
official notice in asylum cases of changed political circumstanc-
es. The power of agencies to take such official notice where
the salient facts are commonly acknowledged and uncontrovert-
ed is well-recognized and an indispensable component of agency
adjudication.’ Instead, the question presented relates solely to
the power of the Board to base a decision entirely on official
notice of such issues without warning to the petitioner and
without affording him or her the opportunity to present rebuttal
evidence. The Board’s abuse of its powers of official notice in
such cases was well described by the Ninth Circuit in Castillo-
Villagra:
The facts of which the INS took notice in this case
were in part legislative in nature. They included: (1) that
Violeta Chamorro had been elected president, (2) that her
non-Sandinista coalition had gained a majority in parlia-
ment, and (3) that the Sandinistas were ousted from power.
Indeed, it has been well-settled that the Board may not base a decision
entirely on official notice without tying those facts to the specific circum-
stances of the asylum claim in each case. See, €.g., Montecino v. I.N.S.,
915 F.2d 518, 521 n.1 (9th Cir. 1990) (Board violated Due Process Clause
where decision was "the kind of perfunctory form letter that might be used
by a department store dismissing a customer’s mistaken complaint of an
overcharge"); Barraza Rivera v. I.N.S., 913 F.2d 1443, 1448 (9th Cir.
1990) (same); Kaczmarczyk v. I.N.S., 933 F.2d 588, 594-95 (7th Cir.), cert.
denied, 112 S.Ct. 583 (1991) (official notice not a “substitute for an analysis
of the facts of each applicant’s individual circumstances").
: See, €.g., Kacumarczyk v. I.N.S., 933 F.2d 588, 594 (7th Cir. 1991)
(recognizing power of board to take official notice of "uncontroverted facts
concerning political conditions in asylum seekers’ home countries"); Orantes-
Hernandez v. Smith, 541 F. Supp. 351, 358 n.8 (C.D. Cal. 1982) ("[t}he
Court’s power to take judicial notice of grave conditions in other countries
where all pertinent reports disclose similar accounts is well-established").
See also generally 3 K. Davis, ADMINISTRATIVE LAW TREATISE § 15:18, at
200 (2d ed. 1980) (same).
12
The facts were also in part adjudicative, that [petitioners]
had nothing more to fear from the Sandinistas. The first
two facts are plainly legislative and not debatable. It would
be a waste of time to allow evidence regarding them. The
third legislative fact, that the Sandinistas were ousted from
power, was debatable, since the Sandinistas retained power
over the police and the military. The adjudicative fact
required both a debatable assumption about the amount of
power retained by the Sandinistas, and an assumption about
the particular salience [to the petitioners].
Castillo-Villagra, 972 F.2d at 1027.
As this case and Castillo demonstrate, there exists a
fundamental conflict among the circuits regarding the Board’s
duty to warn of its intention to base a decision entirely on
official notice and to guarantee the petitioner an opportunity to
offer rebuttal evidence. In this case, the court of appeals held
that due process requires neither of these safeguards and is
satisfied by the petitioner’s ability to seek discretionary
reopening remedies at the Board. App. 14a-15a, 18a, infra.
Accord Gutierrez-Rogue v. I.N.S., 954 F.2d 769 (D.C. Cir.
1991); Rivera-Cruz v. I.N.S., 948 F.2d 962 (Sth Cir. 1992).
This holding, however, squarely conflicts with decisions of
other circuits and cannot be reconciled with this Court’s due
process jurisprudence.
It is well established that aliens are fully entitled to the
protections of the Due Process Clause of the Fifth Amendment,
including the right to notice and an opportunity to present
evidence in deportation proceedings. Landon v. Plasencia, 459
U.S. 21, 32-33 (1982); Johnson v. Eisentrager, 339 U.S. 763,
771 (1950). In construing the Due Process Clause, this Court
has warned that agencies may not decide matters solely through
official notice of facts outside the record without warning to the
parties. In Ohio Bell Telephone Co. v. Public Utilities
Comm’n, 301 U.S. 292 (1937), this Court, following a long
13
line of rulings by this Court concerning the constitutional limits
of official notice’®, held that plenary use of officially noticed
findings by an agency without warning to the parties violates
the Due Process Clause. In Ohio Bell, the agency adjudicated
the parties’ claims by taking official notice of key disputed facts
in the case "[w]ithout warning or even the hint of warning that
the case would be considered or determined upon any other
basis than the evidence submitted." Jd. at 300. This Court
struck down such use of official notice, holding that "[tJhis is
not the fair hearing essential to due process. It is condemnation
without trial." Ibid.
The constitutional rule which has evolved from Ohio Bell
and its predecessors was summarized in Bowman Transp. v.
Arkansas-Best Freight System, 419 U.S. 281 (1974):
‘0 See, e.g., United States v. Abilene & So. Ry., 265 U.S. 274, 289
(1924) (Brandeis, J.) (official notice violated Due Process Clause because
petitioners "were left without notice of the evidence with which they were,
in fact, confronted, as later disclosed by the finding made. The requirement
that in an adversary proceeding specific reference be made, is essential to the
preservation of the substantial rights of the parties"); The Chicago Junction
Case, 264 U.S. 258, 265 (1924) (Brandeis, J.) (same); Interstate Commerce
Comm’n v. Louisville & Nashville R.R., 227 U.S. 88, 93 (1913) ("{a]ll
parties must be fully apprised of the evidence submitted or to be considered,
and must be given opportunity to cross-examine witnesses, to inspect
documents and to offer evidence in explanation or rebuttal. In no other way
can a party maintain its rights or make its defense"); United States v. B. &
O. Southwestern Ry., 226 U.S. 14, 20 (1912) (Holmes, J.) ("[i]t would be
a very strong proposition to say that the parties were bound in the higher
courts by a finding based on specific investigations made in the case without
notice to them"); Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 312
(1903) (“the right of a court to act upon what is in point of fact known to it
must be subordinate to those requirements of form and orderly communica-
tion which regulate the mode of bringing controversies into court, and of
stating and conducting them").
14
A party is entitled, of course, to know the issues on which
decision will turn and to be apprised of the factual material
on which the agency relies for decision so that he may rebut
it. Indeed, the Due Process Clause forbids an agency to
use evidence in a way that forecloses an opportunity to offer
a contrary presentation.
Id. at 288 n.4 (emphasis added), citing Ohio Bell, 301 U.S. at
300; Abilene, 265 U.S. at 289. Cf. Heckler v. Campbell, 461
U.S. 458, 469 (1983) ("When an agency takes official or
administrative notice of facts, a litigant must be given an
adequate opportunity to respond").
Following these decisions, the Sixth and Ninth Circuits
have each held that where the Board bases a decision entirely
on official notice, "it is essential that the parties be afforded an
opportunity to present information ‘which might bear upon the
propriety of noticing the fact, or upon the truth of the matter to
be noticed.’" Castillo-Villagra, 972 F.2d at 1028 (quoting
Banks v. Schweiker, 654 F.2d 637, 641 (9th Cir. 1981)).
Accord Ulloa v. I.N.S., 944 F.2d 905 (6th Cir. 1991) (Table),
at App. 29a-30a, infra ("We believe . . . notions of fairness
require that the Board give aliens adequate notice and a
meaningful opportunity to respond to officially noticed facts that
bear upon the Board’s decision-making process").'’ Thus, in
| See also 3 K. Davis, ADMINISTRATIVE LAW TREATISE § 15:16, at 195-
96 (2d ed. 1980) ("when [officially noticed] facts . . . could be reasonably
challenged and they importantly affect the decision, giving the parties a pre-
decision chance to respond to them may be an essential part of fair
procedure"); Davis, A System of Judicial Notice Based On Fairness and
Convenience, in PERSPECTIVES OF LAW 69, 76-77 (1964). Cf Administra-
tive Procedure Act, 5 U.S.C. § 556(e) (when agency rests decision on
official notice, party must be given "on timely request . . . an opportunity
to show the contrary"); Advisory Comm. Notes to FED. R. EviD. 201(e)
("[b]asic considerations of procedural fairness demand an opportunity to be
heard on the propriety of taking judicial notice and the tenor of the matter
15
sharp conflict with the Fifth, Seventh and District of Columbia
Circuits, these Courts have each specifically held in identical
cases that the Board should have warned aliens of its intention
to rely upon officially noticed findings concerning the Chamor-
ro election as the basis for its decision and given them the
opportunity to present rebuttal evidence:
The agency should have warned that it would consider these
facts even though they were not in existence at the time of
the hearing and appellate briefs, so that the parties could
have moved for leave to supplement their briefs, supplement
the evidence, withdraw their applications for asylum, or
seek other relief. The agency should also have warned,
prior to final decision, that it intended to take notice that the
Sandinistas were out of power, and that any well-founded
fear of persecution the applicants might have had before the
election could no longer be well founded, and then given
the parties an opportunity to show cause why notice should
not be taken of these propositions. . . . To deny an opportu-
nity to be heard in these circumstances was a denial of Due
Process required by the Fifth Amendment.
Castillo-Villagra, 972 F.2d at 1029.'? Accord Ulloa v. I.N.S.,
944 F.2d 905 (6th Cir. 1991) (Table), at App. 30a, infra
(vacating and remanding Board’s decision "so that petitioner
noticed. The rule requires the granting of that opportunity upon request")
(emphasis added).
‘2 See also 69 INTERPRETER RELEASES 1213, 1216 (Sept. 28, 1992) ("We
find the approach in Castillo-Villagra to be the better one. . . . Given the
high stakes involved in asylum cases, applicants should be afforded a hearing
on the alleged political changes that the BIA takes notice of en route to
denying an asylum claim. Political changes by themselves do not necessarily
render an applicant’s asylum application moot. As the State Department’s
Country Reports point out, the Sandinistas still retain considerable influence
in the Nicaraguan security forces, and this is a factor that should be
considered in the context of an individual’s asylum claim").
16
may offer rebuttal evidence regarding the change of govern-
_ ments in Nicaragua and STAY[ing] the order of deportation
until the evidence has been considered by the Board"). The
procedural unfairness involved in this case strikes at the core of
due process guarantees since "the procedures by which the facts
of the case are determined assume an importance fully as great
as the validity of the substantive rule of law to be applied."
Speiser v. Randall, 357 U.S. 513, 520 (1958). What is more,
it is readily apparent that the controversy concerning these
fundamental issues cannot be reconciled without guidance from
this Court.
B. The Court Of Appeals’ Ruling Conflicts With Deci-
sions Of Other Circuits Which Hold That Discre-
tionary Reopening Mechanisms Are Insufficient To
Satisfy Due Process Requirements
There is no dispute that aliens are constitutionally guaran-
teed the nght to rebut officially noticed findings and "to have
this evidence considered." App. 19a, infra. The court of
appeals, however, like several other circuits, held that these
constitutional guarantees are satisfied by the alien’s ability to
file a motion to reopen at the Board pursuant to 8 C.F.R. § 3.2.
It is here that the circuits are again in conflict. Indeed, the
court of appeals’ holding on this point reflects a serious
misunderstanding of the limited and discretionary nature of
motions to reopen. Because of these characteristics, motions to
reopen Cannot provide any constitutional guarantees whatsoever.
The court of appeals’ decision depends critically upon the
assumption that the filing of motion to reopen before the Board
“allow[s] asylum petitioners an opportunity to introduce
evidence rebutting officially noticed facts." App. 14a, infra,
quoting Kaczmarczyk, 933 F.2d at 597. Accord Gutierrez-
Rogue, 954 F.2d at 773 (D.C. Cir. 1992); Rivera-Cruz, 948
F.2d at 968 (Sth Cir. 1992). Contra Castillo-Villagra, 972
17
F.2d at 1029 (9th Cir. 1992); Ulloa, 944 F.2d 905 (6th Cir.
1991) (Table), at App. 30a n.1, infra. This conjecture depends
in turn upon the incorrect presumption that aliens have a right
to present evidence as part of a motion to reopen. In fact, as
this Court explained recently in J.N.S. v. Doherty, 112 S. Ct.
719 (1992), the reopening mechanisms contained in 8 C.F.R.
§ 3.2 afford no such right.
Section 3.2 provides, in relevant part, that "[m]otions to
reopen in deportation proceedings shall not be granted unless it
appears to the Board that evidence sought to be offered is
material and was not available and could not have been
discovered or presented at the former hearing...." The
language of Section 3.2 reveals that a motion to reopen does not
automatically entitle the movant to consideration of new
evidence. To the contrary, it is framed in negative terms such
that the Board is never absolutely required to reopen proceed-
ings and consider new evidence:
[Section 3.2] is framed negatively; it directs the Board not
to reopen unless certain showings are made. It does not
affirmatively require the Board to reopen the proceedings
under any particular condition. Thus, the regulations may
be construed to provide the Board with discretion in
determining under what circumstances proceedings should
be reopened.
I.N.S. v. Abudu, 485 U.S. 94, 105 (1988), quoting /.N.S. v.
Jong Ha Wang, 450 U.S. 139, 144 n.5 (1981). Accord
Doherty, 112 S. Ct. at 724 (same). In short, "the BIA has
discretion to deny a motion to reopen even if the alien has made
Out a prima facie case for relief." Abudu, 485 U.S. at 105-106,
citing J. N.S. v. Rios-Pineda, 471 U.S. 444, 449 (1985); L.N.S.
v. Phinpathya, 464 U.S. 183, 188 n.6 (1984).
The Board need not consider newly adduced evidence at all
before denying reopening. For example, the Board "may hold
18
that the movant has not established a prima facie case for the
underlying substantive relief sought." Abudu, 485 U.S. at 104.
The Board also "may leap ahead, as it were, over the two
threshold concerns (prima facie case and new evidence/
reasonable explanation), and simply determine that even if they
were met, the movant would not be entitled to the discretionary
grant of relief." Jd. at 105. Thus, the court of appeals’
assumption that evidence offered to rebut officially noticed
findings actually will be considered by the Board through a
motion to reopen cannot be squared with this Court’s rulings
that the Board always retains the discretion to deny reopening
regardless of the new evidence being presented.
The court of appeals’ reliance on reopening mechanisms
also cannot be reconciled with this Court’s decisions because of
the strong disfavor with which such motions are viewed. In
Abudu, this Court explained that "[t]he appropriate analogy [for
a motion to reopen] is a motion for a new trial in a criminal
case on the basis of newly discovered evidence, as to which
courts have uniformly held that the moving party bears a heavy
burden." 485 U.S. at 110. Consequently, motions to reopen
are highly disfavored:
[mJotions for reopening of immigration proceedings are
disfavored for the same reasons as are petitions for rehear-
ing, and motions for a new trial on the basis of newly
discovered evidence. . . . This is especially true in a
deportation proceeding where, as a general matter, every
delay works to the advantage of the deportable alien who
wishes merely to remain in the United States.
Doherty, 112 S. Ct. at 724-25.
For these very reasons, the Sixth and Ninth Circuits have
rejected the view of the Fifth, Seventh and District of Columbia
Circuits that reopening mechanisms provide the sort of mean-
ingful opportunity to be heard required by the Due Process
19
Clause. To begin, given petitioner’s indisputable constitutional
right to have his evidence considered by the Board, that right
cannot be conditioned on his ability to convince the Board to
reopen its proceedings. See Bowman Transp. v. Arkansas-Best
Freight System, 419 U.S. 281, 288 n.4 (1974) ("the Due
Process Clause forbids an agency to use evidence in a way that
forecloses an opportunity to offer a contrary presentation").
Indeed, “requiring a petitioner facing deportation to file a
motion to reopen the proceedings in order to rebut officially
noticed facts creates an unnecessary procedural hurdle for such
a petitioner." Ulloa, at App. 30a n.1, infra. This is particular-
ly so in cases such as this where the Board itself is solely
responsible for the petitioner’s predicament:
Petitioner[] did not bypass the INS. The INS bypassed
[him], by taking administrative notice of facts not at issue
in the hearings. Usually in a motion to reopen, the movant
seeks to inject new material, but in this case, the tribunal
injected the new material after the hearing was over.
Castillo-Villagra, 972 F.2d at 1024.
In short, following Abudu and Doherty, it is clear that
discretionary reopening mechanisms cannot provide a constitu-
tionally adequate method of assuring that evidence offered to
rebut officially noticed findings will be considered. As
recognized by the Sixth and Ninth Circuits, if the Board denies
the motion to reopen, petitioner’s evidence will never be
considered by the Board at all.
The BIA decision was made on the basis of facts which
were not the sudject of the hearing before the IJ. That
means that, with respect to the facts which controlled the
BIA decision, the petitioners have never had a hearing. The
motion to reopen is discretionary. If it were denied, the
petitioners would never obtain a hearing on the matters
which were determinative for the BIA. The effect of
requiring a motion to reopen . . . may amount, in practical
20
consequences, to denial of any hearing. . . . The alien does
not have a right to reopen, only a right to ask for reopen-
ing, and the motion is disfavored and addressed to the
discretion of the agency.
Castillo-Villagra, 972 F.2d at 1025 (emphasis added) (citing
Abudu and Doherty).
Yet, even if one could assume that Board always would
consider evidence offered to rebut officially noticed findings
through a motion to reopen, that still would not reconcile the
conflict concerning these issues. In Milliken v. Bradley, 433
U.S. 267, 280 (1977) (citation omitted), this Court held that
remedies for constitutional violations must be "designed as
nearly as possible ‘to restore the victims of discriminatory
conduct to the position they would have occupied in the absence
of such conduct.’" Thus, where due process requires that a
petitioner be afforded the opportunity to rebut officially noticed
findings, his procedural interest must be "as fully protected as
it would have been by introducing the noticed facts as a part of
the evidence at the original hearing." K. Davis, ADMINISTRA-
TIVE LAW TREATISE, § 15:18 at 201 (2d ed. 1980). Yet, a
motion to reopen cannot place the alien in the same position he
or she would have been in if the issues raised in the motion had
been adjudicated originally.
Limiting the alien to reopening mechanisms places the alien
at a substantial disadvantage because the filing of a motion to
reopen does not stay the alien’s deportation, leaving open "the
possibility that unsuccessful asylum applicants may be ordered
to leave the country before the Board has ruled on their motions
to reopen." App. 17a n.11, infra, quoting Kacymarczyk, 933
F.2d at 597. The Seventh Circuit addressed this problem by
simply asswming that "when an asylum applicant uses a good
faith motion to reopen to dispute officially noticed facts, the
Board will exercise its discretion to stay the execution of its
decision until it has had an opportunity to rule on the
21
applicant’s motion." /bid., quoting Kaczmarczyk, 933 F.2d at
597. Accord Gutierrez-Rogue, 954 F.2d at 773 (adopting same
presumption). The Ninth and Sixth Circuits, however, have
correctly been unwilling to take this leap of faith:
We are not satisfied that we can make this presumption, in
view of the "broad discretion" the agency has to deny
motions for rehearing, which are "disfavored."
Castillo-Villagra, 972 F.2d at 1030, quoting Doherty. Accord
Ulloa, at App. 30a n.1, infra ("[t]he filing of a motion to
reopen does not serve to stay the execution of an order of
deportation . . . and thus such a procedure imposes the unrea-
sonable risk that a petitioner may be deported before the Board
considers the rebuttal evidence contained in his motion to
reopen"). Applying the rule in Milliken, reopening mechanisms
are therefore constitutionally insufficient because they cannot
place the petitioner in the same position he would have been in
had the Board properly provided him an opportunity to chal-
lenge its officially noticed findings at the outset.
In addition, allowing an alien to rebut the Board’s officially
noticed findings only through a motion to reopen would prevent
the alien from having such findings tested through the more
favorable substantial evidence standard of review that would
otherwise be applicable. It is well-established that the grant or
denial of asylum by the Board is reviewed through a "substan-
tial evidence” standard. /.N.S. v. Elias Zacarias, 112 S. Ct.
812, 815 (1992). However, if evidence is presented for the
first time through a motion to reopen, the Board is accorded the
more deferential "abuse of discretion" standard of review given
the disfavored nature of such motions. Doherty, 112 S. Ct. at
725; Abudu, 485 U.S. at 105.
In sum, the decision of the Seventh Circuit in this case, and
those of the Fifth and District of Columbia Circuits reaching the
same conclusion, conflicts with the decisions of the Sixth
22
Circuit and the Ninth Circuit and are contrary to the basic
notions of due process outlined by this Court. It is readily
apparent that reopening mechanisms alone cannot provide aliens
the meaningful opportunity to rebut the Board’s officially
noticed findings guaranteed by the Due Process Clause. This
Court has made clear that the Board cannot be absolutely
required to reopen its proceedings under any circumstances. As
such, the pervasive conflict on these issues can only be resolved
through guidance from this Court.
II. THE COURT OF APPEALS’ REFUSAL TO APPLY 28
U.S.C. § 2347 DISREGARDS THE PLAIN LANGUAGE OF
THE STATUTE AND CONFLICTS WITH RULINGS OF
OTHER COURTS OF APPEALS WHICH HAVE APPLIED
IT ON REVIEW OF BOARD DECISIONS
In the court of appeals, petitioner sought reversal of the
Board’s decision because the officially noticed findings upon
which it was based were not supported by substantial evidence
and because the Board’s decision violated petitioner’s rights
under the Due Process Clause. Alternatively, petitioner sought
an order requiring the Board, pursuant to 28 U.S.C. §
2347(c)'*, to consider evidence which he offered to rebut the
28 U.S.C. § 2347(c) provides, in pertinent part, as follows:
"(c) If a party to a proceeding to review applies to the court
of appeals in which the proceeding is pending for leave to adduce
additional evidence and shows to the satisfaction of the court that--
(1) the additional evidence is material; and
(2) there were reasonable grounds for failure to
adduce the evidence before the agency;
the court may order the additional evidence and any counter-
evidence the opposite party desires to offer to be taken by the
agency. The agency may modify its findings of fact, or make
new findings, by reason of the additional evidence so taken, and
23
Board’s findings. This remedy is expressly applicable on
review of proceedings under the Immigration and Nationality
Act. See, e.g., Osaghae v. I.N.S., 942 F.2d 1160, 1161-62
(7th Cir. 1991) ("The statute that empowers the courts of appeal
to review decisions by the Board of Immigration Appeals, 8
U.S.C. § 1105a, states that such review is to be governed by 28
U.S.C. § 2347, subsection (c) of which empowers the court of
appeals in appropriate cases to direct the agency to consider
newly-discovered evidence"); Martinez de Mendoza v. I.N.S.,
567 F.2d 1222, 1225 (3d Cir. 1977) (same).
In its decision, the court of appeals reached the stunning
conclusion that Section 2347(c) now is unavailable on review of
Board decisions and is rendered inapplicable by the reopening
mechanisms contained in 8 C.F.R. § 3.2. Although the court
seemingly acknowledged the discretion afforded it by Section
2347(c) to order a remand to the Board, the court refused to
apply the statute given the existence of the Board’s reopening
procedures:
By its own terms. . . section 2347 apparently permits us, as
a matter of discretion, to remand to an agency for new
evidence when two conditions are met: that the additional
evidence is material, and that there were reasonable grounds
for failure to adduce the evidence before the agency. . . .
But whatever discretion we may have here we exercise in
accordance with Kaczmarczyk, which found the reopening
procedure to be an appropriate remedy for asylum petition-
ers seeking to rebut officially noticed facts.
App. 16a-17a, infra (emphasis added). In defiance of Section
2347(c), the court did not consider the newly-adduced evidence
offered by petitioner and made no determination as to whether
he satisfied its requirements. Jd. at 19a.
may modify or set aside its order... .
24
The Seventh Circuit’s decision, while not unprecedented,
disregards the plain statutory language of the Immigration and
Nationality Act and Section 2347(c) and irreconcilably conflicts
with decisions of other circuits which have applied Section
2347(c) on review of Board proceedings without regard to the
reopening mechanisms available at the Board. In effect, the
Seventh Circuit has now read Section 2347(c) out of existence
as far as review of Board decisions is concerned.
Following the command of 8 U.S.C. § 1105a, most circuits
have applied Section 2347(c) in deportation proceedings and
have granted such relief where the statutory conditions were
met. See, e.g., Dolores v. I.N.S., 772 F.2d 223, 226 (6th Cir.
1985) ("28 U.S.C. § 2347(c) authorizes Courts of Appeals,
when reviewing agency final orders, to remand a case to the
agency for consideration of additional evidence followed by new
findings and another order. . . . We find that section 2347(c) is
available on review of INS decisions"); Coriolan v. I.N.S., 559
F.2d 993, 1003 (Sth Cir. 1977); Bernal-Garcia vy. I.N.S., 852
F.2d 144 (Sth Cir. 1988); Martinez de Mendoza v. I.N.S., 567
F.2d 1222 (3d Cir. 1977). In these cases, Section 2347(c)
relief was considered without any regard to the existence of
reopening mechanisms at the Board. Indeed, the Seventh
Circuit’s holding that Section 2347(c) is rendered inapplicable
by 8 C.F.R. § 3.2 was categorically rejected by the Tenth
Circuit in Becerra-Jimenez v. I.N.S., 829 F.2d 996 (1987):
Section 3.2 sets forth procedures for cases where the motion
to reopen is initiated with the BIA. Unlike § 2347(c),
however, it does not address proceedings to review in a
matter pending before a court of appeals. Thus, § 3.2
cannot be construed to preempt § 2347(c) in a proceeding
initiated, as here, in a court of appeals pending review.
Further, it has been held that a reviewing court has the
inherent power to remand causes to administrative agencies
25
for further proceedings to permit further evidence to be
taken or additional findings to be made on essential points.
Id. at 1001-02 (emphasis added), citing Ford Motor Co. v.
Labor Board, 305 U.S. 364 (1939). Contra Ramirez-Gonzalez
v. I.N.S., 695 F.2d 1208, 1213-14 (9th Cir. 1983) ("we will
not compel the BIA to reopen [petitioner’s] hearing on the basis
of the new evidence he wishes to present. He must follow the
INS regulations and file a motion to reopen with the BIA").
Cf. Martinez de Mendoza, 567 F.2d at 1226 n.9 (3d Cir. 1977)
(ordering remand under Section 2347(c) even though no motion
to reopen filed, but noting that "in normal circumstances a party
asserting new and material evidence should, in the first in-
Stance, resort to the remedies available under 8 C.F.R. § 3.2,
rather than invoking our power under § 2347(c))".
The cases cited above plainly reveal that the circuits are
hopelessly in conflict about the proper role of Section 2347(c)
in reviewing Board decisions. As such, guidance from this
Court is critically necessary, particularly because the granting
of petitioner’s motion under Section 2347(c) would effectively
cure the due process violations described earlier by placing him
in the same position he would have been in if the Board had
properly notified him of its intent to rely upon the Chamorro
election as the basis for its decision.
III. THE QUESTIONS PRESENTED HAVE GREAT LEGAL
AND PRACTICAL SIGNIFICANCE
The importance of the issues raised here extend far beyond
the confines of this case and the context in which they arise.
Indeed, ascertaining the constitutional limits and uses of official
notice would pervasively affect all forms of agency adjudica-
tion. Similarly, whether discretionary reopening mechanisms
can provide constitutionally adequate procedural safeguards
carries broad significance for all cases in which an agency bases
a decision upon officially noticed findings.
26
Finally, the proper role of Section 2347(c) in reviewing
agency decisions has never been considered by this Court. The
conflict over whether agency reopening mechanisms can
preempt or limit the availability of relief in courts of appeals
under Section 2347(c) is likewise applicable to review of all
agency decisions over which Section 2347 would otherwise
control. In short, these conflicts are both widely recognized
and of great public significance. See, e.g., Immigration
Board’s Administrative Notice of Sandinista Ouster Yields
Circuit Split, 61 U.S.L.W. 1023 (Aug. 18, 1992); 69 INTER-
PRETER RELEASES 1213 (Sept. 28, 1992).
NCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
JAVIER H. RUBINSTEIN
Counsel of Record
JAMES D. HOLZHAUER
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
January, 1993
APPENDIX
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 91-1949
AGUSTIN RHOA-ZAMORA,
Petitioner,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review from an Order of
the Board of Immigration Appeals
No. A 27 948 778
No. 91-1515
FELIPE ANTONIO JURESMA-ALTAMIRANO and
LUIS RODRIGUEZ-ALTAMIRANO,
Petitioners,
x
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review from an Order of
the Board of Immigration Appeals
Nos. A 26 945 992 and A 26 945 993
2a
No. 91-1551
LUIS ANDRES ESQUIVEL-BERRIOS,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review from an Order of
the Board of Immigration Appeals
No. A 28 578 493
ARGUED FEBRUARY 11, 1992--DECIDED AUGUST 4, 1992
Before CUDAHY and RIPPLE, Circuit Judges, and
FAIRCHILD, Senior Circuit Judge.
CUDAHY, Circuit Judge. The petitioners in these
consolidated appeals are Nicaraguan nationals who fled
Nicaragua while the Sandinistas were in power and
subsequently sought asylum in this country. All four petitioners
were denied asylum by an Immigration Judge and appealed to
the Board of Immigration Appeals (the Board). In each case,
the Board took administrative notice that, as of April 1990, "the
Sandinista party no longer controls the Nicaraguan government"
and concluded that, “under the present circumstances," the
record did not support a finding that the petitioner had “a
well-founded fear of persecution by the Sandinista government
were he to return to Nicaragua." Petitioners claim that the
Board erred in finding that they did not have a well-founded
fear of persecution because of the change in the Nicaraguan
government. They also contend that the Board violated their
3a
Tights vo due process ‘by falling to accord each petitioner an
individualized determination of his claim. In addition,
petitioner Zamora argues that the Board deprived him of due
process by failing to give him an opportunity to rebut the
noticed facts. Petitioners therefore ask this court either to
reverse the Board’s decisions or to grant their motions to
adduce additional evidence under 28 U.S.C. § 2347(c) and
"remand these proceedings to the [Board] for further
consideration" in light of that evidence.
I. FACTS
A. Agustin Rhoa-Zamora
Agustin Rhoa-Zamora entered the United States illegally on
December 24, 1986. He was apprehended by the Immigration
and Naturalization Service (INS) and charged with deportability
under 8 U.S.C. § 1251(a)(2)._ Zamora conceded deportability,
but requested asylum pursuant to 8 U.S.C. § 1158(a) and
withholding of deportation pursuant to 8 U.S.C. § 1253(h). To
be eligible for asylum, an alien must establish that he meets the
statutory definition of "refugee," which requires him to show
either past persecution or a “well-founded fear" of future
persecution on account of race, religion, nationality,
membership in a particular social group or political opinion. 8
U.S.C. § 1101(a)(42)(A). The decision whether to grant
asylum to a statutorily eligible alien is within the discretion of
the Attorney General. JNS v. Stevic, 467 U.S. 407, 423 n.18
(1984). Withholding of deportation, by contrast, is mandatory
if the applicant can meet the higher standard of showing a
"clear probability" of persecution on account of one of these
five grounds if he were returned to his country. Jd. at 421
n.15.
At his deportation hearing, Zamora testified that he fled
Nicaragua because of religious persecution directed at him and
4a
his family. He claimed that he was an adherent of the
Charismatic Catholic revival movement and described numerous
incidents of Sandinista violence against him and other members
of his faith, The Immigration Judge rejected Zamora’s
testimony as neither "candid" nor "credible" and concluded that
Zamora had established neither a “clear probability that he
would be subject to persecution upon return to Nicaragua" nor
a well-founded, subjective fear of persecution. The judge
therefore denied his application for asylum and ordered him to
depart the country within two months.
Zamora appealed to the Board. While the appeal was
pending, national elections were held in Nicaragua and a new
coalition government made up of parties opposed to the
Sandinistas was voted into office. On January 31, 1991, the
Board issued a written opinion dismissing Zamora’s appeal.
Without prior notice to Zamora, the Board took administrative
notice of the change in government in Nicaragua and concluded
that, since the Sandinista party no longer governs Nicaragua,
Zamora did not have a well-founded fear of persecution by the
Sandinista government should he return. The Board ordered
Zamora to depart within thirty days.
On April 25, 1991, Zamora filed with the Board a motion
to reopen the proceeding pursuant to 8 C.F.R. § 3.2.‘ In
Zamora describes this motion as a “motion to reconsider." 8 C.F.R.
§ 3.2 provides for both motions to reconsider and motions to reopen. 8
C.F.R. § 3.8 prescribes the form for each type of motion as follows:
Motions to reopen shall state the new facts to be proved at the
reopened hearing and shall be supported by affidavits or other
evidentiary material. Motions to reconsider shall state the reasons
upon which the motion is based and shall be supported by such
precedent decisions as are pertinent.
Sa
Support of his motion, Zamora submitted various materials
allegedly evincing the Sandinistas’ continuing ability to
persecute him. The Board has not, to this date, ruled on the
motion. On April 26, 1991, Zamora filed a petition for review
of the Board’s order in this court. The Board certified the
administrative record and relinquished it to this court for
purposes of that appeal.
B. Luis Esquivel-Berrios
Luis Esquivel-Berrios fled Nicaragua in February of 1985
at the age of thirteen. He went first to Honduras and then to
Guatemala, where he remained for three and one-half years
before entering the United States in July of 1988. On July 21,
1988, Berrios was arrested by the INS and charged with
deportability. Like Zamora, Berrios conceded deportability but
sought either asylum or withholding of deportation.
At his hearing, Berrios testified that he had left Nicaragua
because he feared being forcibly conscripted into military
service by the Sandinista government. He testified that in
February of 1985 it was common in his village for twelve- and
thirteen-year-old boys to be taken into military service, and that
he personally knew of other twelve- and thirteen-year-old boys
who had been kidnapped and conscripted. Berrios also testified
that he was politically opposed to the Sandinista government,
and that he remains a conscientious objector to any form of
military service in light of his firmly-held religious and moral
We think it clear that Zamora’s motion is more accurately characterized
as a motion to reopen than as a motion to reconsider, and we will therefore
treat it as such throughout this opinion.
In a filing with this court dated October 26, 1992, Zamora’s counsel
has provided a decision by the Board, dated September 23, 1992, about two
pages in length, denying Zamora’s motion.
—
6a
beliefs. He testified that he believed that if he were returned to
Nicaragua he would be either shot or jailed by the Sandinista
government because of his decision to avoid conscription.
The Immigration Judge found that Berrios’ testimony was
credible, but nonetheless concluded that Berrios had not met his
burden of showing that he was eligible for asylum or
withholding of deportation. The judge noted that the Board of
Immigration Appeals has long adhered to the position that "it is
not persecution for a country to require military service of its
citizens." Although there are exceptions to this rule, the judge
concluded that his case did not fit within any such exception.
He found no objective evidence of record that Nicaragua
recruits twelve- or thirteen-year-olds into military service.
Further, the judge noted that Berrios could certainly be required
to serve in the Nicaraguan military if returned there at present,
and could be convicted of a crime and jailed if he refused to do
so. Finally, the judge found no objective evidence that Berrios
would receive disproportionate treatment for his previous
decision to avoid conscription. The Immigration Judge
therefore denied Berrios’ application for asylum or withholding
of deportation and ordered that he be deported. The Board
affirmed this decision based on the April 1990 change of
government in Nicaragua, again without prior notice to the
petitioner. Berrios did not file a motion to reopen or reconsider
but appealed directly to this court.
C. Felipe Antonio Juresma-Altamirano and Luis Rodriguez-
Altamirano
Half-brothers Felipe Antonio Juresma-Altamirano and Luis
Rodriguez-Altamirano (the Altamiranos or the Altamirano
brothers) entered the United States illegally on October 26,
1983. They were arrested by INS officials four days later and
charged with deportability. Like the other petitioners in this
Ta
case, the Altamiranos conceded deportability but sought asylum
and withholding of deportation.
The Altamiranos testified before the Immigration J udge that
they fled Nicaragua in order to avoid recruitment into the
Sandinista army. They testified that they are Pentecostal
Christians, as are the other members of their family, and that
the Pentecostal religion forbids its members to participate in any
service requiring the carrying of arms. The brothers also
described various threats of persecution made against them for
adhering to their religious convictions, including statements by
military authorities that they would be imprisoned for at least
five years if they refused to serve in the military.
The Immigration Judge accepted the brothers’ testimony,
but found that they had not established a well-founded fear of
persecution based on their religious beliefs because they offered
no evidence that they had ever requested exemption from
military service based on those beliefs.? The judge also noted
that the brothers did not claim religious persecution, in general,
* Although it is not relevant to our decision here, we note that the
Supreme Court has recently cast considerable doubt on whether these
allegations, even if true, can support a well-founded fear of persecution on
account of religion. In JNS v. Elias-Zacarias, 112 S. Ct. 812 (1992), the
Court held that a guerrilla organization’s attempt to conscript the asylum
applicant into its military forces does not necessarily constitute persecution
on account of political opinion. Based on that decision, the Court vacated
and remanded the Ninth Circuit’s decision in Canas-Segovia v. INS, 902
F.2d 717 (9th Cir. 1990), which held, inter alia, that petitioners who would
be imprisoned in their native country for refusing to serve in the military
based on their religious beliefs had established a "clear probability of
persecution on account of religious beliefs." 902 F.2d at 717, vacated and
remanded, INS v. Canas-Segovia, 112 S. Ct. 1152 (1992).
, In fact, Luis testified that he had served in the Nicaraguan army in
1980 and 1981, although he had been a Pentecostal Christian all of his life.
—
8a
by the Sandinistas. The judge concluded that the brothers had
failed to establish that they would be singled out or
systematically persecuted because of their religious beliefs. He
therefore denied their applications for asylum or withholding of
deportation and granted voluntary departure. The Board
affirmed this decision based on the intervening change of
government in Nicaragua, without prior notice to the
Altamiranos, and ordered the brothers to depart within thirty
days. The Altamiranos did not file a motion to reopen or
reconsider but appealed directly to this court.
Il. ANALYSIS
A. Agustin Rhoa-Zamora
l. Jurisdiction
The INS argues that this court has no jurisdiction over
Zamora’s petition because his motion to reopen is still pending
before the Board, so that he has failed to exhaust his
administrative remedies as required by 8 U.S.C. § 1105a(c).
In support of this position, the INS cites the Sixth Circuit’s
decision in Dokic v. INS, 899 F.2d 530 (6th Cir. 1990). In
Dokic, the court held that an applicant for asylum cannot obtain
judicial review of an order of deportation until he has exhausted
his administrative remedies "by filing a motion to reopen." Jd.
at 532. Presumably, this rule would also require the petitioner
to wait until the motion was denied before seeking appellate
review of the Board’s order.
We disagree with the Sixth Circuit’s interpretation of the
exhaustion requirement. Section 1105a(c) provides:
An order of deportation or of exclusion
shall not be reviewed by any court if
the alien has not exhausted the
administrative remedies available to him
9a
as of right under the immigration laws
and regulations. .. .
(emphasis added). As Zamora points out, reopening is a
discretionary remedy, not one available as of right. JNS v.
John Ha Wang, 450 U.S. 139, 143 (1981); Note, Timeliness of
Petitions for Judicial Review Under Section 106(a) of the
Immigration and Nationality Act, 86 Mich. L. Rev. 990, 1011
(1988). Further, it would be a waste of time and administrative
resources to require petitioners to file a motion to reopen in
those cases, such as Dokic itself, in which they do not claim to
have any new evidence, but wish to challenge the Board’s
decision on the existing administrative record. Such a rule is
therefore contrary to the strong policy interest in preventing the
use of frivolous motions to reconsider or reopen in order to
postpone the execution of deportation orders. Pierre v. INS,
932 F.2d 418, 421 (Sth Cir. 1991); Note, supra, at 1012-13.
This court has routinely reviewed Board decisions ordering
deportation in cases where the petitioner did not file a motion
to reopen. See, e.g., Zulbeari v. INS, 963 F.2d 999 (7th Cir.
1992); Osaghae v. INS, 942 F.2d 1160 (7th Cir. 1991);
Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir.), cert. denied, 112
S. Ct. 583 (1991). We see no reason to change that approach.
We are more concerned, however, with another
jurisdictional issue that Zamora’s pending motion to reopen
creates. The Ninth and Eleventh Circuits hold that a motion to
reopen deportation proceedings following the Board’s
affirmance of an immigration judge’s deportation order renders
the Board’s decision nonfinal, and therefore nonappealable.
Fleary v. INS, 950 F.2d 711 (11th Cir. 1992); Chu v. INS, 875
F.2d 777 (9th Cir. 1989); Hyun Joon Chung v. INS, 720 F.2d
1471, 1474 (9th Cir. 1983), cert. denied, 467 U.S. 1216
(1984). The Third Circuit, on the other hand, holds that a
pending motion to reopen "does not render the order of
10a
deportation nonfinal." Alleyne v. INS, 879 F.2d 1177, 1181
(3d Cir. 1989).
In administrative law generally, there appears to be a
strong presumption that, with respect to judicial review, the
filing of a motion to reopen or reconsider renders an agency’s
decision nonfinal for purpose of determining when the time to
appeal begins to run. Interstate Commerce Comm’n vy.
Locomotive Engineers, 482 U.S. 270, 284-85 (1987); Arch
Mineral Corp. v. Director, Office of Workers’ Compensation
Programs, 798 F.2d 215, 218 (7th Cir. 1986). The majority of
courts follow this approach despite the Administrative
Procedure Act’s provision that agency action that is "otherwise
final" is final for purposes of review "whether or not" a motion
for reopening or _ reconsideration has_ been filed.
5 U.S.C. § 704. As the Supreme Court has noted, this
provision "has long been construed... merely to relieve
parties from the requirement of petitioning for rehearing before
seeking judicial review . . . but not to prevent petitions for
reconsideration that are actually filed from rendering the orders
under reconsideration nonfinal." Locomotive Engineers, 482
U.S. at 284-85 (emphasis in original). In Locomotive
Engineers, the Court placed its imprimatur on_ this
interpretation. Jd.
In the wake of Locomotive Engineers, several circuits have
taken the next logical step of holding that if the filing of a
motion to reopen renders an agency decision nonfinal for
purposes of determining the time for appeal, it must also render
that decision nonfinal for purposes of appellate jurisdiction. See
United Transp. Union v. Interstate Commerce Comm’n, 871
4
The legislative history of section 704 supports this interpretation. See
West Penn Power Co. v. Environmental Protection Agency, 860 F.2d 581,
585 (3d Cir. 1988).
lla
F.2d 1114 (D.C. Cir. 1989); West Penn Power Co. v.
Environmental Protection Agency, 860 F.2d 581 (3d Cir. 1988);
Winter v. Interstate Commerce Comm’n, 851 F.2d 1056, 1062
(8th Cir.); cert. denied, 488 U.S. 925 (1988).° In Chu v. INS,
the Ninth Circuit applied this rule in the context of deportation
proceedings, concluding that there was "no principled basis
upon which to distinguish Chu’s case from Locomotive
Engineers and its progeny." 875 F.2d at 781.
We disagree with the Ninth Circuit’s conclusion. In West
Penn Power, the Third Circuit began its analysis of the effect
of a motion to reopen on an order of the EPA by observing that
"[i]t makes sense to define ‘finality’ under the Clean Air Act in
the same way that it is defined in administrative law generally."
860 F.2d at 854. It does not necessarily make sense, however,
to define "finality" under the INA in the same way it is defined
in administrative law generally. In fact, there are good reasons
not to apply the Locomotive Engineers rule to deportation
proceedings. That rule "basically rest[s] on a notion of judicial
economy." Arch Mineral Corp., 798 F.2 at 219. "It is
obviously wasteful of the resources of the courts to burden them
with objections to administrative action which may be obviated
by agency action on reconsideration." Jd., see also West Penn
Power, 860 F.2d at 585 ("allowing a petitioner to apply to both
. In Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371 (7th Cir.
1986), this court held that the pendency of a motion to reopen or reconsider
has no effect on an appellate court’s jurisdiction. Jd. at 378. That holding
relied explicitly on the opinion of then-Judge Scalia in American Trucking
Ass'n. Inc. v. interstate Commerce Comm'n, 697 F.2d 1146, 1148 n.* (D.C.
Cir. 1983). The Supreme Court’s decision in Locomotive Engineers,
however, casts serious doubt on the continuing viability of American
Trucking and its progeny. West Penn Power, 860 F.2d at 587. But we need
not resolve this issue here, given our conclusion that the rule of Locomotive
Engineers does not apply in the immigration context, whatever its effect on
administrative law generally.
12a
the court and the agency at the same time[] . . . could only lead
to waste of resources on the part of the agency, the court, or
both, without any countervailing benefit").
In the immigration context, however, efficient use of
judicial resources is secondary to a different goal: preventing
the use of “dilatory tactic[s] to postpone the execution of
deportation orders." Alleyne, 879 F.2d at 1180; see also
Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.
1992) (electing to exercise jurisdiction over appeal where
petitioner filed motion to reopen after seeking appellate review,
on ground that "the potential for abuse of the process to
circumvent the BIA’s discretionary power to grant or deny a
stay of deportation pending a motion to reopen outweighs
concerns with efficiency"). Application of the Locomotive
Engineers rule on finality would "directly contravene" that goal.
Alleyne, 879 F.2d at 1180. Under the INA, deportation is
available only "[w]hen a final order of deportation under
administrative processes is made against any alien." 8 U.S.C.
§ 1252(c) (emphasis added). Thus, if the filing of a motion to
reopen or reconsider destroyed the finality of the Board’s order,
that motion might delay deportation so long as it was pending.°
Moreover, under the Ninth Circuit’s scheme an alien who filed
such a motion within the statutory period for appeal could
further delay deportation if the motion was denied by
petitioning for judicial review both of the Board’s initial order
and of the denial of the motion, thereby obtaining an automatic
stay of deportation. 8 U.S.C. § 1105a(a)(3). Such a result is
° Such a result would also seem to conflict with INS regulations, which
provide that "(t]he filing of a motion to reopen or a motion to reconsider
shall not serve to stay the execution of any decisions made in the case." 8
C.F.R. § 3.8(a) (1988).
13a
clearly contrary to Congress’ intent in enacting the INA.’
Finally, we note that the INS regulations providing for motions
to reopen or reconsider do not seem to contemplate such a
result. Rather, the regulations appear to assume that such
motions may be pending at the same time the Board’s order is
being appealed:
Motions to reopen or reconsider shall state whether the
validity of the order has been or is the subject of any
judicial proceeding.
8 C.F.R. § 103.5a (emphasis added). We conclude that the
pendency of a motion to reopen or reconsider an order of
deportation does not render the order nonfinal for purposes of
this court’s jurisdiction. We have jurisdiction over Zamora’s
case.
ya Due Process
Zamora contends that the Board deprived him of due
process by failing to accord him a sufficiently individualized
7
In 1990, Congress amended section 1105a by adding a provision that
recognizes the availability of motions to reopen or reconsider:
[W]henever a petitioner seeks review of an order under this
section, any review sought with respect to a motion to reopen or
reconsider such an order shall be consolidated with review of the
order.
8 U.S.C. § 1105a(a)(6) (1990 Supp.). The Eleventh Circuit has
interpreted this provision as "follow[ing] the contours of the Ninth Circuit
decisions" regarding the effect of a motion to reopen or reconsider on the
finality of a Board order. Fleary, 950 F.2d at 713. This court, however,
has concluded that the Eleventh Circuit’s rule is "incompatible with the plain
language of” the provision. Akrap v. INS, No. 91-2825, slip op. at 9 (7th
Cir. June 26, 1992). Thus, the 1990 amendment to the INA actually
supports our decision here.
l4a
determination of his claims. Zamora is certainly correct that
the Board is required to "engage in a careful, individualized
review of the evidence presented in [his] application[] and
hearing[]." Kacunarczyk, 933 F.2d at 595. Further, we agree
with Zamora that the Board’s disposition of these cases in three
opinions employing identical, "boilerplate" paragraphs
regarding the effect of the Nicaraguan election casts a cloud
over the Board’s decisions and hinders meaningful judicial
review. We are also aware, however, tat "agency action is
entitled to a presumption of regularity," so that "the burden is
on the petitioner[] to convince us that the [Board] gave short
shrift to the evidence [he] presented." Jd. The Board’s written
decision, which describes in some detail Zamora’s testimony
regarding his alleged reasons for fearing persecution,
demonstrat7s that the Board did consider Zamora’s particular
evidence, at least to a degree. Although the Board apparently
based its decision solely on the change of government in
Nicaragua, without any examination of how that change related
to Zamora’s particular claims, the Board’s consideration of his
case was not so deficient as to constitute a denial of due
process.
Zamora also argues that he was deprived of due process
because he was not given an opportunity to rebut the Board’s
conclusion as to the significance of the Nicaraguan elections.
This argument is entirely without merit. In Kaczmarczyk, this
court made clear that due process does not require the Board to
give an asylum applicant the opportunity to rebut noticed facts
prior to reaching a decision. Rather, we found that the
mechanism of the motion to reopen, which “allows asylum
petitioners an opportunity introduce evidence rebutting officially
noticed facts," provides a sufficient opportunity to be heard to
satisfy the requirements of due process. Jd. at 597. Accord
Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C. Cir. 1992);
Rivera-Cruz v. INS, 948 F.2d 962, 968-69 (Sth Cir. 1991),
mom cs EN ns
15a
rehearing denied, 954 F.2d 723 (1992). But see Castillo-
Villagra v. INS, 1992 WL 172995 (9th Cir. July 27, 1992);
Ulloa v. INS, 944 F.2d 905 (6th Cir. 1991) (unpublished
disposition). Cf Wojcik v. INS, 951 F.2d 172, 173 (8th Cir.
1991). As discussed above, Zamora has in fact filed such a
motion. The Board did not deprive Zamora of his right to due
process.®
3. Substantial Evidence
Zamora also contends that the Board’s decision denying
him asylurn was not supported by substantial evidence because,
contrary to the Board’s assumption, the change in government
in Nicaragua did not significantly diminish the ability of the
Sandinistas to persecute him. He argues that the regime headed
by President Violeta Chamorro is unstable and that the
Sandinistas still wield significant power. This argument rests
entirely on evidence that Zamora submitted in support of his
motion to reopen and his motion to this court for leave to
adduce additional evidence. None of this evidence was before
the Board at the time it made its determination in Zamora’s
case. We will not weigh evidence that the Board has not
previously considered; an appellate court is not the appropriate
forum to engage in fact-finding in the first instance. See
: We do note that in order for the motion to reopen procedure to satisfy
the requirements of due process it must provide a ‘meaningful opportunity
to be heard.’" Kaczmarczyk, 933 F.2d at 595 (quoting Mathews v. Eldridge,
424 U.S. 319, 348 (1976) (emphasis added). Thus, as the D.C. Circuit
recently recognized, it would raise a serious due process problem if the
Board did not actually consider these motions but simply filed them away in
some obscure nook or cranny until the petitioner in question could be
deported. See Gutierrez-Rogue, 954 F.2d at 773. So far as we can tell from
this record, however, this is not such a case; the Board’s delay in deciding
Zamora’s motion does not seem attributable to any improper action by the
Board. See infra p. 15.
l6a
Osaghae, 942 F.2d at 1162 ("we are not to take evidence and
base our decision on some mixture of that evidence with the
evidence that was before the Board"); Rivera-Cruz v. INS, 948
F.2d at 967 ("we cannot weigh evidence that has not been
brought previously before the Board"); Tejeda-Mata v. INS, 626
F.2d 721, 726 (9th Cir. 1980), cert. denied, 456 U.S. 994
(1982) ("this Court does not sit as an administrative agency for
the purpose of fact-finding in the first instance"). The evidence
that was before the Board--that the Sandinistas had ceased to
control the Nicaraguan government--tends to support its
decision.
Nor will we order the Board to consider Zamora’s new
evidence, as he alternatively requests. In Osaghae, we held
that "if the administrative record is inadequate because the
Board has failed without justification to consider newly
discovered evidence, we can remand for the creation of an
adequate record" pursuant to 28 U.S.C. § 2347(c). 942 F.2d
at 1162. Here, the fact that the Board has not yet decided
Zamora’s motion to reopen does not necessarily mean that the
Board has “failed without justification" to consider Zamora’s
evidence with respect to the weakness of the Chamorro regime.
A delay of more than a year in deciding a motion to reopen,
while certainly significant, does net compel the conclusion that
the Board has acted improperly. We can accept the INS’s claim
that the delay is a normal consequence of the INS’s
"staggering" caseload. Br. at 24. Further, we note that
Zamora’s petition to reopen was filed only one day before he
petitioned for review in this court. Thus, the Board’s delay
may also be attributable to a decision not to waste limited
resources resolving a motion that might well be rendered moot
by this court.
The Osaghae ruling itself is limited to situations in which
the Board “has acted improperly" in preventing an asylum
petitioner from placing evidence before it. 942 F.2d at 1162.
ee
17a
By its own terms, however, section 2347 apparently permits us,
as a matter of discretion, to remand to an agency for new
evidence when two conditions are met: that the additional
evidence is material, and that there were reasonable grounds for
failure to adduce the evidence before the agency.’ But
whatever discretion we may have here we exercise in
accordance with Kaczmarczyk, which found the reopening
procedure to be an appropriate remedy for asylum petitioners
seeking to rebut officially noticed facts.'° Now that the
present appeal has been resolved, we assume that the Board will
fully address Zamora’s motion in a timely fashion."
. 28 U.S.C. § 2347(c). Other circuits have held without reference to
improper action that remand may in certain circumstances be appropriate.
See, e.g., Bernal-Garcia v. INS, 852 F.2d 144 (Sth Cir. 1988); Becerra-
Jimenez v. INS, 829 F.2d 996 (10th Cir. 1987); Martinez de Mendoza v.
INS, 567 F.2d 1222 (3d Cir. 1977).
0 933 F.2d at 597. See also Ramirez-Gonzalez v. INS, 695 F.2d 1208,
1213-14 (9th Cir. 1983) (refusing to remand under § 2347 and noting that
the petitioner could have filed a motion to reopen); Martinez de Mendoza v.
INS, 567 F.2d 1222, 1226 n.9 (3d Cir. 1977) ("[I]n normal circumstances
a party asserting new and material evidence should, in the first instance,
resort to [the reopening procedure] rather than invoking our power under
§ 2347(c).").
'' We noted above that the filing of a motion to reopen does not
automatically stay execution of a Board ruling. See supra n.6. As we
observed in Kaczmarczyk, "“[t]here thus exists the possibility that
unsuccessful asylum applicants may be ordered to leave the country before
the Board has ruled on their motions to reopen." 933 F.2d at 597. We
therefore reiterate here our presumption that “when an asylum applicant uses
a good faith motion to reopen to dispute officially noticed facts, the Board
will exercise its discretion to stay the execution of its decision until it has
had an opportunity to rule on the applicant’s motion." J/d.,; see also
Gutierrez-Rogue, 954 F.2d at 773 (adopting the same presumption).
18a
B. Luis Andres Esquivel-Berrios
Like Zamora, petitioner Berrios argues that he was
deprived of his right to due process because the Board failed to
engage in sufficiently individualized consideration of his
evidence. He also contends that the Board’s finding that he
does not have a well-founded fear of future persecution is not
supported by substantial evidence for the same reason that
Zamora alleges. Finally, Berrios argues that, even if the Board
could reasonably conclude that he did not have a well-founded
fear of future persecution, he was nonetheless entitled to asylum
based on the severity of his past persecution. .
& Due Process
Again, we note the cloud cast over the Board’s decision by
its use of boilerplate paragraphs in describing the salient factors
involved in its determination. In addition, the Board’s written
decision affirming the Immigration Judge’s denial of Berrios’
petition does not contain the sort of detailed description of
Berrios’ testimony that we saw in Zamora’s case. Thus, it is
less immediately apparent that the Board considered Berrios’
evidence at all. Nevertheless, we find that the Board’s decision
contains sufficient indicia of individualized determination to
satisfy due process. In particular, the Board notes Berrios’
"testimony concerning the military round-up of young males,
like himself, in Nicaragua." This statement indicates that the
Board was aware of Berrios’ specific claim. The Board also
makes an explicit finding that the State Department’s Country
Reports on Human Rights Practices for the years 1984-1985 and
1987-1988, which Berrios claimed the Immigration Judge
improperly prevented him from submitting, "do not establish his
present eligibility for either withholding of deportation or
asylum." Again, this finding suggests that the Board was at
least aware of the particulars of Berrios’ case. Although, as in
Zamora’s case, the Board did not discuss the relationship
19a
between the change in the Nicaraguan government and Berrios’
particular claims, the Board’s consideration of Berrios’ case
was not so inadequate as to amount to a denial of due process.
a: Substantial Evidence
Like Zamora, Berrios also challenges the Board’s finding
that he did not have a well-founded fear of persecution based
entirely on evidence as to the stability of the Chamorro regime
that was not before the Board. As already noted, we will not
consider such evidence for the first time on appeal. The
Board’s decision is supported by the evidence that was before
it at the time it decided Berrios’ case.’ And Berrios’ request
that we remand to the Board with orders to consider his new
evidence has even less basis than did Zamora’s, since Berrios
has never given the Board any opportunity to consider this
evidence. Because the Board did not provide Berrios with an
opportunity to rebut the noticed facts prior to deciding his case,
Berrios has a due process right to have this evidence
considered. Kaczmarczyk, 933 F.2d at 597. In order to do so,
however, he must file a motion to reopen with the Board. /d.
We reject Berrios’ argument that he is entitled to asylum
based solely on the severity of his past persecution. In Matter
of Chen, Interim Decision 3104 (BIA 1989), the Board held that
where an asylum applicant has been subjected to especially
severe persecution in the past, "humanitarian reasons" may
‘2 The Board noted in its decision that "the new president of Nicaragua
has announced a general amnesty covering the hostilities between the former
Contra resistance and the Nicaraguan government and an end to military
conscription." This evidence, together with the broad observation that the
Sandinistas no longer controlled the Nicaraguan government, certainly tends
to support a conclusion that Berrios no longer had a well-founded fear of
persecution based on his avoidance of conscription into the Sandinista
military should he be returned to Nicaragua.
20a
warrant the granting of asylum "even if there is little likelihood
of future persecution." Berrios contends that his is such an
extraordinary case because he fled Nicaragua in order to avoid
forcible conscription into the Sandinista military at the age of
twelve, a practice that violates "settled principles of United
States and international law." Br. at 23. But the Board, which
clearly was aware of the nature of Berrios’ claim, found that
Berrios had not established the sort of extreme persecution
necessary to meet the Chen standard. Given that Berrios was
never in fact forcibly conscripted, or even personally threatened
with forced conscription, we do not think that the Board’s
conclusion was unsupported.
C. Felipe Antonio. Juresma-Altamirano and Luis
Rodriguez-Altamirano
The Altamirano brothers, like both Zamora and Berrios,
argue that the Board failed to accord them a sufficiently
individualized determination of their claims. Their argument,
however, has more merit than does that of Zamora or Berrios.
The Board’s written opinion dismissing the Altamiranos’ appeal
is made up entirely of boilerplate; there is nothing in the
opinion to suggest that the Board was even aware of the
particular claims made by the Altamirano brothers. Every
paragraph in the decision is identical to a paragraph in the
Board’s decisions regarding Zamora and Berrios. There is
nothing individualized about the Board’s analysis in this case.
We agree with the Altamiranos that the Board’s consideration
of their case was so deficient as to deny them due process and
therefore vacate the Board’s decision and remand the case for
additional proceedings consistent with this opinion. We assume
that such proceedings will include an opportunity of the
brothers to attempt to rebut the Board’s conclusion as to the
significance of the Nicaraguan elections.
2la
The brothers also contend that the Board’s conclusion that
they did not have a well-founded fear of persecution given the
change of government in Nicaragua is not supported by
substantial evidence. They may well have a point--we are
somewhat doubtful that a Board decision which demonstrates no
awareness of the particular petitioner’s claims could be
supported by substantial evidence. Because we vacate the
Board’s decision on other grounds, however, we need not
resolve this issue.
III. CONCLUSION
For the foregoing reasons, the petitions of Agustin
Rhoa-Zamora and Luis Andres Esquivel-Berrios are denied; the
petition of Felipe Antonio Juresma-Altamirano and Luis
Rodriguez-Altamirano is granted, and the Board’s decision is
vacated and remanded for further preceedings consistent with
this opinion. In addition, the petitioners’ motions to adduce
additional evidence pursuant to 28 U.S.C. § 2347(c) are denied.
If the petitioners wish to present their new evidence to the
Board, they should do so by way of a motion to reopen.
Because such a motion implements a due process right,
Kaczmarczyk, 933 F.2d at 597, it must be considered in good
faith by the Board. Supra at 14 n.8. We admonish the Board
to consider petitioners’ motions in that light.
A true copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
22a
File: A28 578 493 - Harlingen Date: January 17, 1991
In re: LUIS ANDRES ESQUIBEL-BERRIOS
IN DEPORTATION PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:
Craig B. Mousin, Esquire
Midwest Immigrant Rights Center
327 South LaSalle Street, Suite 1400
Chicago, Illinois 60604
ON BEHALF OF SERVICE:
John D. Carte
General Attorney
CHARGE:
Order: Sec. 241(a)(2), I&N Act [8 U.S.C. § 1251(a)(2)] -
Entered without inspection
APPLICATION: Asylum; withholding of deportation;
voluntary departure
ORDER:
PER CURIAM. By oral decision dated September 29,
1988, an immigration judge found the respondent, a native and
citizen of Nicaragua, deportable as charged, denied his
applications for asylum, withholding of deportation, and
voluntary departure. See sections 208(a) and 243(h) of the
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Immigration and Nationality Act, respectively, 8 U.S.C. §§
1158(a) and 1253(h); see also section 244(e) of the vAct, 8
U.S.C. § 1254(e). The respondent’s asylum and withholding
claims are based on a fear of conscription by the Sandinistas,
who controlled the government at the time he departed
Nicaragua. The appeal will be dismissed.
After careful review of the record, we find no basis to
support the respondent’s contention that he has a well-founded
fear of persecution on account of one of the five grounds
enumerated in section 208(a) of the Act or that he has
established a claim of past persecution sufficient to merit a
grant of asylum relief. See section 101(a)(42)(A) of the Act, 8
U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.5; INS v. Cardoza-
Fonseca, 480 U.S. 421 (1987); M.A. v. INS, 899 F.2d 304 (4th
Cir. 1990) (en banc), aff’g Matter of A-G-, Interim Decision
3040 (BIA 1987); Matter of Mogharrabi, Interim Decision 3028
(BIA 1987); Matter of Chen, Interim Decision 3104 (BIA
1989).
In this regard, we take administrative notice that the
Sandinista party no longer controls the Nicaraguan
government.' Effective April 25, 1990, a new coalition
It is well established that administrative agencies and the courts may
take judicial (or “administrative") notice of commonly known facts. See
Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292
(1937). Therefore, this Board may properly take administrative notice of
changes in foreign governments. See Kubon v. INS, 913 F.2d 386 (7th Cir.
1990). See, e.g., Matter of Chen, Interim Decision 3104 (BIA 1989);
Matter of Stojkovic, 10 I&N Dec. 281 (BIA 1963). See also Third Nat.
Bank in Nashville v. Impac Limited, Inc. , 432 U.S. 312, 317 (1977); United
States v. Reynolds, 345 U.S. 1, 10 (1953); Schulte v. Gangi, 328 U.S. 108,
120 (1946); United States v. Berrojo, 628 F.2d 368 (Sth Cir. 1980); First
Nat. Bank of Chicago v. Material Serv. Corp., 544 F.2d 911, 916 (7th Cir.
1976); Spillway Marina, Inc. v. United States, 445 F.2d 876, 878 (10th Cir.
1971). See generally 4 Stein, Administrative Law, § 2501 (1986).
24a
government, formed by parties in opposition to the Sandinistas
("UNO"), has succeeded the former government of the
Sandinista party following national elections and_ the
inauguration of Violeta Chamorro as the new president.
Further, the new president of Nicaragua has announced a
general amnesty covering the hostilities between the former
Contra resistance and the Nicaraguan government and an end to
military conscription.? Given that the Sandinista party no
longer governs Nicaragua, under the present circumstances we
do not find that the record now before us supports a finding that
the respondent has a well-founded fear of persecution by the
Sandinista government were he to return to Nicaragua.
Further, even if one were to assume that the respondent’s
previous experiences in Nicaragua amounted to past
persecution, or that at the time he left and for some time
thereafter he had a well-founded fear of persecution should he
return, it is not established that he presently merits a grant of
asylum. In Matter of Chen, supra, we stated that in certain
circumstances past persecution alone might warrant a grant of
asylum even if there was no reasonable likelihood of present
persecution. For instances, asylum could be granted if the past
persecution had been so severe that return to the country of
persecution would be inhumane. Even if past persecution had
been established in the instant case, we would not conclude
from our independent review of the record that there are
humanitarian or compelling bases that presently warrant a grant
of asylum.
Inasmuch as the respondent has failed to satisfy the lower
burden of proof required for asylum, it follows that he also has
. See, e.g., Violeta Chamorro’s inaugural address, as reported in
Chamorro Takes Nicaraguan Helm, Hails New Era, New York Times,
April 26, 1990, at Al.
25a
failed to satisfy the clear probability standard of eligibility
required for withholding of deportation. See INS v. Stevic, 467
U.S. 407 (1984). The evidence does not establish that if he
were now to return to Nicaragua that it is more likely than not
that he would be subject to persecution on account of one of the
five grounds specified in section 243(h) of the Act.
On a related point, the respondent contends the immigration
judge erred in denying his motion for a continuance of the
September 28, 1988, hearing, sought for the two-fold purpose
of affording the respondent’s former counsel the opportunity to
review the State Department’s Country Reports on Human
Rights Practices ("Country Reports") and to introduce any
appropriate evidence found therein into the record. On appeal,
the respondent, through newly-retained counsel, argues the
Country Reports corroborate his testimony concerning the
military round-up of young males, like himself, in Nicaragua
and establish his eligibility for withholding of deportation.
Hence, he claims, the immigration judge’s decision to deny his
continuance motion prejudiced his case. We do not agree
inasmuch as "good cause" to postpone the hearing for additional
attorney preparation has not been shown. See 8 C.F.R.
§§ 3.27, 242.13 (1990); see also Matter of Perez, Interim
Decision 3025 (BIA 1987); Matter of Namio, 14 I&N Dec. 412
(BIA 1973); Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983).
_ No explanation has been provided as to the reasons for
counsel’s failure to review the Country Reports prior to the
September 28, 1988, hearing. We note former counsel entered
his appearance in the matter as early as 6 weeks prior to the
September hearing. Furthermore, the respondent has failed to
show he was prejudiced by the immigrant judge’s handling of
the case. See Matter of Perez, supra; Matter of Santos, Interim
Decision 2969 (BIA 1984). For the reasons set forth above, the
Country Reports for years 1984-1985 and 1987-1988, which the
respondent claims he was prevented from submitting below and
26a
which he now submits on appeal, do not establish his present
eligibility for either withholding of deportation or asylum. See
M.A. v. INS, supra; Matter of Chen, supra.
Finally, as with all fornns of discretionary relief, it is the
alien who bears the burden of proving he is eligible for the
privilege of voluntary departure. On appeal, the respondent
argues he does not have a criminal record and is a person of
good moral character. Hence, he submits, he is eligible for
voluntary departure. While the respondent’s good moral
character and lack of criminal record are factors germane to the
determination of whether he is eligible for voluntary departure,
he has failed to substantiate these claims on the record before
us. Section 244(e) of the Act; 8 C.F.R. § 244.1 (1990).
Although the respondent claims to have stated in his asylum
application that he has never been convicted or sentenced for a
crime, we are unable to find such a statement in the record.
See generally Matter of Ramirez-Sanchez, 17 1&N Dec. 503
(BIA 1980). Moreover, in order to establish his eligibility for
the relief he now seeks, the respondent must also show that he
is willing and able to depart the United States voluntarily in lieu
of deportation at his own expense. 8 C.F.R. § 244.1 (1990).
No such showing, however, has been made. Therefore, the
respondent has failed to sustain his burden, which is his alone,
of proving his statutory eligibility for the privilege of voluntary
departure.
Accordingly, the appeal is dismissed.
FOR THE BOARD
27a
DANIEL FELIX ULLOA, Petitioner, v. IMMIGRATION
AND NATURALIZATION SERVICE, Respondent
No. 91-3028
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
1991 U.S. App. LEXIS 22288
944 F.2d 905 (Table)
September 17, 1991, Filed
On appeal from the Board of Immigration Appeals; A28 704
546.
JUDGES: Nelson and Suhrheinrich, Circuit Judges; and James
Harvey*, Senior District Judge.
OPINION BY: PER CURIAM
OPINION: Petitioner Daniel Ulloa, a citizen of Nicaragua,
petitions for review of a decision of the Board of Immigration
Appeals ("Board") denying his request for asylum and
withholding of deportation. For the reasons stated below, we
remand for additional proceedings consistent with this opinion.
* — The Honorable James Harvey, United States Senior District Judge for
the Eastern District of Michigan, sitting by designation.
28a
I.
Ulloa entered the United States on March 10, 1985, at
Miami, Florida, as a non-immigrant visitor. He remained in
the United States after the expiration date of his visitor’s visa.
The Immigration and Naturalization Service ("INS") ordered
petitioner to show cause why he should not be deported
pursuant to section 241(a)(2) of the Immigration and Nationality
Act, 8 U.S.C. § 1251(a)(2). Petitioner conceded deportability
and applied for asylum or withholding of deportation based
upon his past experiences with and fear of future persecution
from the Sandinista government of Nicaragua.
On December 11, 1989 the Immigration Judge ("IJ") found
petitioner to be deportable as charged, but granted his
application for asylum and withholding of deportation. The
INS appealed to the Board. On December 11, 1990 the Board
affirmed the LJ’s determination of deportability, but reversed the
grant of asylum and withholding of deportation. The Board
first noted that the IJ had not found that petitioner was the
subject of “past persecution" in Nicaragua. The Board also
independently concluded that petitioner had failed to show he
was the victim of "past persecution." The Board then took
administrative notice of the fact that the Sandinista government
no longer controlled Nicaragua because of the April 25, 1990
election of Violeta Chamorro’s new coalition government. The
Board determined that petitioner could not suffer persecution
under the new Chamorro government because the new
government granted a general amnesty to the Contras and ended
military conscription. The Board therefore concluded that this
change in government eliminated petitioner’s "fear of future
persecution" in Nicaragua, and reversed the IJ’s decision. The
Board granted petitioner 30 days to voluntarily depart the
United States. This appeal followed.
29a
If.
Petitioner contends that the Board improperly took
administrative notice of the change in Nicaragua’s government
without affording him notice and an opportunity to introduce
evidence that the Sandinistas still control much of the
government, including the military.
We agree with the recent decision in Kacunarczyk v. INS,
933 F.2d 588, 593-95 (7th Cir. 1991) that the Board may
properly take administrative notice of, and base its decision on,
a change in the political climate of an alien’s native country.
However, unlike Kacymarczyk, where the Board’s
administratively noticed facts simply supplemented the IJ’s
factual findings and conclusions, the Board here reversed the
IJ’s decision based on the administratively noticed facts. This
reversal of the IJ’s grant of asylum and withholding of
deportation occurred without either prior notice or affording
petitioner an opportunity to present rebuttal evidence.
It is well established that aliens are entitled to notice and an
opportunity to be heard in deportation proceedings. See Landon
v. Plasencia, 459 U.S. 21, 32-33 (1982); Johnson vy.
Eisentrager, 339 U.S. 763, 771 (1950). When an
administrative agency takes official notice of facts that "could
be reasonably challenged and they importantly affect the
decision, giving the parties a pre-decision chance to respond to
them may be an essential part of fair procedure." Banks v.
Schweiker, 654 F.2d 637, 642 n.11 (9th Cir. 1981) (quoting 3
K. Davis, Administrative Law Treatise, § 15:6 at 195-96 (2d
ed. 1980)). "Such fairness concerns appear to have motivated
the drafters of Federal Rule of Evidence 291(e), which provides
litigants in federal court just such an opportunity rebut judicially
noticed facts." Kaczmarczyk, 933 F.2d at 596. We believe
similar notions of fairness require that the Board give aliens
adequate notice and a meaningful opportunity to respond to
30a
officially noticed facts that bear upon the Board’s decision-
making process. While our scope of review over deportation
proceedings is narrow, “it extends at least to a determination as
to whether the procedure followed by the Board in a particular
Case constitutes an improper exercise of discretion." Ravancho
v. INS, 658 F.2d 169, 176 (3d Cir. 1981) (remanding case to
the Board due to Board’s failure to consider all relevant
evidercs offered by petitioner).
We conclude that the procedure followed by the Board in
the present case was an improper exercise of discretion because
it denied the petitioner any meaningful opportunity to present
rebuttal evidence.’ Consequently, we REMAND this case so
that petitioner may offer rebuttal evidence regarding the change
of governments in Nicaragua and STAY the order of
deportation until such evidence has been considered by the
Board.
The INS contends that petitioner may present rebuttal evidence in a
motion to reopen his case pursuant to 8 C.F.R. § 3.2. In our view,
requiring a petitioner facing deportation to file a motion to reopen the
proceedings in order to rebut officially noticed facts creates an unnecessary
procedural hurdle for such a petitioner. The filing of a motion to reopen
does not serve to stay the execution of an order of deportation, see 8 C.F.R.
§ 3.8(a), and thus such a procedure imposes the unreasonable risk that a
petitioner may be deported before the Board considers the rebuttal evidence
contained in his motion to reopen. Cf. Kaczmarczyk, 933 F.2d at 597 n.9.
|
3la
Title 2 ni ion 2347
Insofar as relevant, 28 U.S.C. § 2347 provides:
"(c) Ifa party to a proceeding to review applies to the court
of appeals in which the proceeding is pending for leave to
adduce additional evidence and shows to the satisfaction of the
court that--
(1) the additional evidence is material;
and
(2) there were reasonable grounds for
failure to adduce the evidence before
the agency;
the court may order the additional evidence and any counter
evidence the opposite party desires to offer to be taken by the
agency. The agency may modify its findings of fact, or make
new findings, by reason of the additional evidence so taken, and
may modify or set aside its order, and shall file in the court the
additional evidence, the modified findings or new findings, and
the modified order or the order setting aside the original order."
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.