Petition for Writ of Certiorari — Rhoa-Zamora v. Immigration & Naturalization Service

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O yy m3 V e> f» -_ a oan, Se

FILED

|i FEB 2 1993 |

No. 92-___ ‘PREICE OF THE CLERK

In The a

Supreme Court of the United States

October Term, 1992

AGUSTIN RHOA-ZAMORA,

Petitioner,

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Evpipio VILLARREAL

Counsel of Record

Jitt A. THOMPSON

PauLa M. Yost

SONNENSCHEIN NATH &

ROSENTHAL

8000 Sears Tower

Chicago, Illinois 60606

(312) 876-8000

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Board of Immigration Appeals

(“Board”) violates the Due Process Clause of the Fifth

Amendment when it precludes an asylum applicant’s

rebuttal of administratively noticed facts, which form the

sole basis of the Board’s denial of the applicant’s asylum

claim, except by means of a discretionary motion to

reopen, which neither (a) gives him the benefit of the

Congressionally-mandated “substantial evidence” stan-

dard of review (8 U.S.C. § 1105a(a)(4)), nor (b) stays his

deportation.

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption of this

Petition, Petitioner notes that his appeal to the United

States Court of Appeals for the Seventh Circuit from the

Board’s adverse decision was consolidated for purposes

of briefing and disposition with the appeals of Felipe

Antonio Juresma-Altamirano and Luis Rodriguez-

Altamirano (No. 91-1513) and Luis Andres Esquivel-Ber-

rios (No. 91-1551). Esquivel-Berrios has filed a separate

Petition for Writ of Certiorari.

TABLE OF CONTENTS

Page

yg eg a) ) Re i

PPAR Ee BGP BEER FORPEEUIINGs .. 2... cece renee ii

pp ee ee ay ty) eee ‘ETE T EEE iii

py eS ye 8) | | ee Vv

Eee eee eee eee ee l

EE ee ee ee eee l

CONSTITUTIONAL, STATUTORY AND REGULA-

TORY PevionwINe INVOLVED ................. I

ee 3

REASONS FOR GRANTING WRIT...............-. 7

I. THE SEVENTH CIRCUIT’S RULING CON-

FLICTS WITH DECISIONS BY THE SIXTH

ek ey 8

Il. THE SEVENTH CIRCUIT’S DECISION CON-

TRAVENES THE MOST ELEMENTAL PRINCI-

PLES OF DUE PROCESS APPLICABLE TO

PERSONS FACING DEPORTATION ........... 1]

A. A Motion to Reopen is a Constitutionally

Inadequate Means to Rebut Noticed Facts

Because it is Extraordinarily Discretionary... 13

B. A Motion to Reopen is a Constitutionally

Inadequate Means to Rebut Noticed Facts

Because the Filing of Such a Motion Does

Peet Gemy Deportation .................555- 19

IT].

TABLE OF CONTENTS - Continued

Page

THE DUE PROCESS RIGHTS OF THOUSANDS

OF ASYLUM APPLICANTS ARE THREAT-

ENED BY LIMITING THEIR OPPORTUNITY TO

REBUT NOTICED FACTS TO THE REOPENING

ti icsiciane TES ET ERR

THE PUBLIC INTEREST IN PROMPT AND

ACCURATE ADJUDICATION OF ASYLUM

CLAIMS IS COMPROMISED BY THE SEVENTH

CIRCUIT'S DECISION .......................

RI MMOUO 5 eee akc visscvareveeree tye

| '

TABLE OF AUTHORITIES

Page

Cases

Abbott Lab. v. Gardner, 387 U.S. 136 (1967)........... 16

Addington v. Texas, 441 U.S. 418 (1979)........... 16, 17

Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C. Cir.

1989), vacated on other grounds, 111 S.Ct. 1068

| BR ret Ne Ey ey Pa ee me 16

Baka v. INS, 963 F.2d 1376 (10th Cir. 1992) .......... 22

Balazoski v. INS, 932 F.2d 638 (7th Cir. 1991) ........ 25

Beltran-Espinoza v. INS, 972 F.2d 1337 (9th Cir.

os Pn re ey tree Pee yy rere T 8

Bridges v. Winzen, 326 US. 155 C196)) «20k eee cesses 11

Castaneda-Hernandez v. INS, 826 F.2d 1526 (6th Cir.

gg Ee re Pers Pe rd Se rere 23

Castillo-Chavarria v. INS, 972 F.2d 1337 (9th Cir.

PO a sis 54x uee bin cede aa Ee eee ana eE 8

Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.

a re ney eek rs er ries ke ay passim

Cerano-Luaciga v. INS, 972 F.2d 1337 (9th Cir. 1992) ..... 8

Chaves-Robles v. INS, 966 F.2d 1441 (4th Cir. 1992).... 22

Cruzan v. Missouri Dep't of Health, 497 U.S. 261

Rs KA cudede bork h as cekee Coan atria eee 17

Garcia-Cruz v. INS, 1993 WL 993 (9th Cir. Jan. 5,

Ps 5 0k vw RV ERAKV GSES SS EOE ae ese coae Cen 8

Garner v. Louisiana, 368 U.S. 171 (1961).............. 12

Goldbere vo. Katty, 397 US. 204 (CU97O) oie ices veescns 12

Greene v. McElroy, 360 U.S. 474 (1959)............... 12

TABLE OF AUTHORITIES - Continued

Page

Gutierrez-Rogue v. INS, 954 F.2d 769 (D.C. Cir.

i OEE CLT LETTE Tor PERI egret ae Iw aE 9, 22

Herrera v. Collins, No. 91-7328, 1993 U.S. LEXIS

1017 (Sup. Ct. Jan. 25, 1993).................0000% 19

In re Winship, 397 U.S. 358 (1970)................... 17

INS v. Elias-Zacarias, 112 S.Ct. 812 ERS renee 15

INS v. Abudu, 485 U.S. 94 (1988)......... 13, 14, 18, 24

INS v. Doherty, 112 S.Ct. 719 (1992) .............. 13, 14

INS v. Jong Ha Wang, 450 U.S. 139 SREY kh sex caan 14

Jamesway Corp. v. NLRB, 676 F.2d 63 (3d Cir. 1982).... 16

Janusiak v. INS, 947 F.2d 46 (3rd Cir. 1991).......... 22

Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir.), cert.

denied, 112 S.Ct. 583 (1991) ................... passim

Kapcia v. INS, 944 F.2d 702 (10th Cir. 1991).......... 22

Kindl v. INS, 977 F.2d 595 (10th Cir. 1992)........... 22

Kontrol v. INS, 978 F.2d 1265 (9th Cir. Snax cceays 22

Martinez-Cabrera v. Thornburgh, CA No. B-89-126

ee Wc UN ns cee tc unnccccaucecccus 21

Mathews v. Eldridge, 424 U.S. 319 (1976)............. 11

Matter of Cerna, 1991 WL 353528 (BIA Oct. 7, 1991)....10

Matter of Coelho, 1992 WL 195806 (BIA April 30,

NTA 00 Uh Cha eeu bya eee eee cok Oot de ee 14

Melendez v. INS, 926 F.2d 211 (2d Cir. Ree 15

Milliken v. Bradley, 433 U.S. 267 (1977) .............. 18

Vii

TABLE OF AUTHORITIES - Continued

Page

Ohio Bell Tel. Co. v. Pub. Util. Comm’‘n, 301 U.S. 292

SU cc ek axviescecedcekisaursnenees baxeeuberes 12, 2

Osuch v. INS, 970 F.2d 394 (7th Cir. 1992)........... 22

Rivera-Cruz v. INS, 948 F.2d 962 (5th Cir. 1991)... .9, 22

Roman-Zavala v. INS, 972 F.2d 1342 (9th Cir. 1992) ..8, 22

Santosky v. Kramer, 455 U.S. 745 (1982)...........--- 16

Sobalbarro-Bravo v. INS, 972 F.2d 1342 (9th Cir.

| reer errer rer rr Creer TT TT Pree eee 8

Solem & Het, 469 US. B77 (IFES) once cccscsceans 19

The Japanese Immigrant Case, 189 U.S. 86 (1903)...... 11

Tokarska v. INS, 978 F.2d 1 (1st Cir. 1992)............ 22

Ulloa v. INS, 944 F.2d 905 (6th Cir. 1991)............. 8

United States ex rel. Vajtauer v. Comm'n of Immigra-

A, Te CED Te CEMED 0 veces setsesarevesaecens 11

Wojcik v. INS, 951 F.2d 172 (8th Cir. 1991)........... 22

Wong Yang Sung v. McGrath, 339 U.S. 30 (1949)...... 11

STATUTES, RULES AND REGULATIONS

3!) (ot 3 POPP ETT TURETT TEE T ETT 12

BS USC. © 1IGIMEZMA)..... 0. nec ccncceceneeneseses 2

D UB. © VIN so osc ccic eect ceienciecenn 2, 14

bee BSI ae is

Viii

TABLE OF AUTHORITIES - Continued

Page

rare We I oy on ioe eeeeh Cediaee aes 3

ee OS oS on bn a nahin SE e<nled v'cbbexics 1

A a ee es 2, 19

UN OM I gE Nd Sse oe aoe ie oe 12

Wane ME ny seer ec opis Gite ee coe eas a 5, 4

oe colchester toon oe ere ey rere 20

en ES eS eck, tes Noe Ise 12

CONSTITUTIONAL PROVISIONS

ES a i passim

OTHER AUTHORITIES

Comment, The Presently Expanding Concept of Judi-

cial Notice, 13 Vill. L. Rev. 528 Mace ers 27

3 Davis, Administrative Law Treatise (2d Ed. 1980).... 18

Department of State, Country Reports On Human

Rights Practices for 1991 (Feb. 1992)................ 6

Immigration Board's Administrative Notice of Sand-

inista Ouster Yields Circuit Split, 61 USLW 1023

Oe I is oa ene eae oe oe re 10

66 Interpreter Releases 1202 (Oct. 30, Sere 21

69 Interpreter Releases 1213 (Sept. 28, 1992) .......... 10

69 Interpreter Releases 1394 (Nov. 2, | Sy eee 21

TABLE OF AUTHORITIES — Continued

Page

Karst, Legislative Facts in Constitutional Litigation,

oe ee | er ere ee eee 26

Keefe, Landis & Shaad, Sense and Nonsense about

Judicial Notice, 2 Stan. L. Rev. 664 (1950).......... 27

Krauss, U.S. Cooling Toward Sandinistas’ Successors,

PG. 0s CR I iy SU sas expanses anbawrescuas 6

Note, Timeliness of Petitions for Judicial Review

Under Section 106(a) of the Immigration and

Nationality Act, 86 Mich. L. Rev. 990 (April 1988) .... 21

Report of the Attorney General’s Committee on

Administrative Procedures in Government Agencies

Pa ee Vee haat reece es he eee eek ene ares 26

Republican Staff Report to Committee on Foreign

Relations, United States Senate, Nicaragua Today

Sr err rere 6

Stein, Administrative Law (1986) ................0006. 26

Stein, Mitchell, Mezines, Administrative Law (1991).... 12

Turner, Judicial Notice and Federal Rule of Evidence

aan, @ UV. PU. GU. OK IGE CIF ow ev ciivecsnescs 26

OPINIONS BELOW

The opinion of the Seventh Circuit (as modified in

response to Rhoa-Zamora’s Petition for Rehearing) is

reported at 971 F.2d 26 and is reprinted in the Appendix

(“A”) hereto at A 1. The Board’s decision dismissing

Petitioner’s administrative appeal is reprinted at A 25.

The Immigration Judge’s oral decision is printed at A 30.

The Immigration Judge’s Memorandum of Oral Decision

is reprinted at A 45. The Board’s decision denying Peti-

tioner’s Motion to Reopen is reprinted at A 48.

JURISDICTION

On November 4, 1992, the Seventh Circuit denied a

timely Petition for Rehearing. This Court’s jurisdiction is

invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the

United States provides in pertinent part:

No person shall . . . be deprived of life, liberty

or property without due process of law .. .

8 U.S.C. § 1158(a) provides:

The Attorney General shall establish a pro-

cedure for an alien physically present in the

United States or at a land border or port of

entry, irrespective of such alien’s status, to

apply for asylum, and the alien may be granted

asylum in the discretion of the Attorney General

if the Attorney General determines that such

alien is a refugee within the meaning of Section

1101(a)(42)(A) of this title.

8 U.S.C. § 1105a(a)(4) provides in pertinent part:

[T]he petition shall be determined solely upon

the administrative record upon which the

deportation order is based and the Attorney

General’s findings of fact, if supported by rea-

sonable, substantial, and probative evidence on

the record considered as a whole, shall be con-

Clusive.

8 U.S.C. § 1101(a)(42)(A) provides:

‘[R]efugee’ means (A) any person who is outside

any country of such person’s nationality . . . and

who is unable or unwilling to return to, and is

unable or unwilling to avail himself or herself of

the protection of, that country because of per-

secution or a well-founded fear of persecution

on account of race, religion, nationality, mem-

bership in a particular social group, or political

opinion.

28 U.S.C. § 2347(c) provides:

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 fail-

ure to adduce the evidence before the

agency;

the court may order the additional evidence and

any counterevidence 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 evi-

dence, the modified findings or new findings,

and the modified order or the order setting

aside the original order.

8 C.F.R. § 3.2 provides in pertinent part:

Motions 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...

STATEMENT OF THE CASE

Petitioner, Agustin Rhoa-Zamora, is a 58-year-old

adherent of the Catholic Charismatic revival movement

who fled Nicaragua in 1986 to escape religious and politi-

cal persecution at the hands of the Sandinistas - a Marx-

ist-Leninist party that has effectively ruled Nicaragua

since 1979. On Christmas Eve, 1986, Rhoa-Zamora was

apprehended by the Immigration and Naturalization Ser-

vice (“INS”) and charged with deportability under Sec-

tion 241(a)(2) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1251(a)(2). He conceded deportability,

but requested asylum pursuant to Section 208(a) of the

INA, 8 U.S.C. § 1158(a).

At his asylum hearing, Rhoa-Zamora testified that he

fled his country because of “religious persecution now

against me and my entire family” (Administrative Record

(“R”) 639), and explained that he feared persecution by

the Sandinistas because of his ties to Luis Amado Pena, a

well-known Charismatic priest branded a “counter-revo-

lutionary.” Nevertheless, the Immigration Judge denied

Rhoa-Zamora asylum. (A 45.) Rhoa-Zamora filed a timely

notice of appeal with the Board. (R 371.)

On January 31, 1991, the Board dismissed Rhoa-

Zamora’s appeal. (A 25.) Without advising Rhoa-Zamora

of its intent to do so, the Board took administrative notice

of the fact that Mrs. Violeta Chamorro, the National

Opposition Union candidate, had been elected President

of Nicaragua. (A 27.) Relying on that fact alone, the Board

concluded that Rhoa-Zamora could not have a well-

founded fear of persecution by the Sandinistas:

[W]e take administrative notice that the Sand-

inista party no longer controls the Nicaraguan

government.

* * *

Given that the Sandinista party no longer gov-

erns Nicaragua, under the present circum.

stances 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. (A 27.)

Prior to rendering a final and appealable decision, the

Board never provided Rhoa-Zamora an opportunity to

rebut the impact of the Chamorro election on his asylum

claim.

Shortly after receiving the Board’s opinion, Rhoa-

Zamora retained new counsel and moved the Board to

reconsider pursuant to 8 C.FR. § 3.2.' (R 37-46.) He

attached to his Motion te Reopen numerous articles and

reports indicating that, despite the Chamorro election,

the Sandinistas retained the ability to persecute him. (R

52-354.) While his Motion to Reopen was pending, Rhoa-

Zamora filed a Petition for Review with the Seventh

Circuit.

On August 4, 1992, the Seventh Circuit — relying on

its decision in Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir),

cert. denied, 112 S.Ct. 583 (1991) — rejected Rhoa-Zamora’s

contention that the Board violated due process by taking

administrative notice of non-record facts, 1.e., Chamorro’s

election, to deny him asylum. The Court held that Rhoa-

Zamora’s right to a meaningful opportunity to rebut

noticed facts was satisfied by the availability of the

administrative motion to reopen mechanism. (A 16.)

Although the Seventh Circuit acknowledged “the

possibility that unsuccessful asylum applicants may be

ordered to leave the country before the Board has ruled

on their motions to reopen” (A 19 n.11), it purported to

resolve this difficulty by presuming that the Board would

“exercise its discretion to stay the execution of its deci-

sion until it had an opportunity to rule on the applicant’s

motion.” (A 19 n.11.)

1 Although this Motion was styled, “Motion For Recon-

sideration,” the Seventh Circuit subsequently characterized it as

a “Motion to Reopen.” (A 5 n.1.)

The Court never addressed Rhoa-Zamora’s claim that

the highly discretionary and disfavored nature of motions

to reopen deprived him of a “meaningful opportunity” to

rebut the significance of Mrs. Chamorro’s election.2

On September 15, 1992, Rhoa-Zamora filed a Petition

for Rehearing with the Seventh Circuit regarding, inter

alia, the affirmance of the Board’s notice-taking. On

November 4, 1992, the Seventh Circuit modified its opin-

ion in response to the Petition for Rehearing, but did not

alter its ruling that the reopening procedure afforded

Rhoa-Zamora a constitutionally adequate means to rebut

administratively noticed facts.

Soon after the Seventh Circuit’s decision, the Board

denied Rhoa-Zamora’s Motion to Reopen. The Board con-

ceded that the documentary evidence presented by Rhoa-

Zamora, particularly the affidavit submitted by his expert

witness, “confirms that the Chamorro government is

Although Rhoa-Zamora does not seek review of the sub-

stantive merits of the Board’s administratively noticed findings,

he notes that the United States Department of State recently

recognized that the Sandinistas have now taken de facto control

of the entire Nicaraguan government. See Krauss, U.S. Cooling

Toward Sandinistas’ Successors, N.Y. Times, Sept. 3, 1992, § A at 3,

col. 1. (recounting State Department criticism of Chamorro gov-

ernment and Senate report “alleging that Mrs. Chamorro was a

figurehead manipulated by the Sandinistas”). See also, Depart-

ment of State, Country Reports On Human Rights Practices for

1991 (Feb. 1992) at 678 (noting that Sandinista-controlled secu-

rity forces had become “a state within a state”); Republican Staff

Report to Committee on Foreign Relations, United States Sen-

ate, Nicaragua Today (August 1992) at viii (“All real power

remains with the Sandinistas . . . ”).

under the control of the Sandinistas”. (A 49.) Neverthe-

less, the Board refused to reopen the case.

On November 16, 1992, Rhoa-Zamora filed a second

Notice of Appeal with the Seventh Circuit; this time

directed to the Board’s denial of his Motion to Reopen.

That filing stayed his deportation. See 8 U.S.C.

§ 1105a(a)(3). On January 7, 1993, Rhoa-Zamora moved to

stay that second appeal pending disposition of this Peti-

tion. The INS is opposed to the stay request.

REASONS FOR GRANTING WRIT

The issue before this Court is not whether the Board

has the power to take administrative notice of changed

political circumstances in other countries; but whether it

exercised its administrative notice powers in a manner

consistent with the Due Process Clause of the Fifth

Amendment by requiring Rhoa-Zamora to rebut the sig-

nificance of its administratively noticed facts by way of a

motion to reopen.

A motion to reopen is a constitutionally inadequate

means of challenging administratively noticed facts for

two reasons: (A) the Board’s decision on a motion to

reopen is extraordinarily discretionary and is reviewed

by a Court of Appeals under a highly deferential abuse of

discretion standard - even though Congress has directed

the federal courts to review Board decisions regarding an

applicant’s eligibility for asylum for “substantial evi-

dence”; and (B) the filing of a motion to reopen does not

stay deportation, thereby exposing an asylum applicant

who has never had an opportunity to challenge the

noticed facts controlling the Board’s decision to an unrea-

sonable risk of deportation.

I. THE SEVENTH CIRCUIT’S RULING CONFLICTS

WITH DECISIONS BY THE SIXTH AND NINTH

CIRCUITS.

The Seventh Circuit’s holding irreconcilably conflicts

with rulings by the Sixth and Ninth Circuits, both of which

have recognized that reopening motions do not provide

sufficient due process under these precise circumstances.

In Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.

1992), the Ninth Circuit, faced with an exercise of notice-

taking indistinguishable from that in the case at hand,

held that the Board violated the Due Process Clause of

the Fifth Amendment by taking administrative notice of

the Chamorro election while denying asylum applicants a

meaningful opportunity to present evidence concerning

that issue prior to its decision. Likewise, in Ulloa v. INS,

944 F.2d 905 (6th Cir. 1991) (unpublished decision)

(reprinted at A 52), the Sixth Circuit vacated and

remanded a similar ruling dismissing a Nicaraguan asy-

lum application for precisely the same reason.3

3 The Ninth Circuit adhered to its decision in Castillo-Vil-

lagra in numerous cases. See, e.g., Garcia-Cruz v. INS, 1993 WL

993 (9th Cir. Jan. 5, 1993) (unpublished decision); Roman-Zavala

v. INS, 972 F.2d 1342 (9th Cir. 1992) (unpublished decision);

Sobalbarro-Bravo v. INS, 972 F.2d 1342 (9th Cir. 1992)

(unpublished decision); Beltran-Espinoza v. INS, 972 F.2d 1337

(9th Cir. 1992) (unpublished decision); Castillo-Chavarria v. INS,

972 F.2d 1337 (9th Cir. 1992) (unpublished decision);

Cerano-Luaciga v. INS, 972 F.2d 1337 (9th Cir. 1992) (unpublished

decision).

4 -

The Sixth and Ninth Circuits both expressly rejected

the view adopted by the Seventh Circuit, i.e., that motions

to reopen provide a constitutionally-sufficient means of

refuting the Board’s administratively noticed findings, on

the ground that relegating applicants to such remedies

would effectively provide them with no process at all.

For example, in Castillo-Villagra, the Ninth Circuit

observed:

The [Board] decision was made on the basis of

facts which were not the subject of the hearing

before the [Immigration Judge]. That means that,

with respect to the facts which controlled the [Board]

decision, the petitioners have never had a hearing. The

motion to reopen ts discretionary. If it were denied, the

petitioners would never obtain a hearing on the matters

which were determinative for the [Board]. The effect of

requiring a motion to reopen as a condition of

exhaustion may amount, in practical consequences,

to denial of any hearing.

972 F.2d at 1025 (emphasis added).

Two other circuits, however, have agreed with the

Seventh Circuit - and disagreed with the Ninth and Sixth

Circuits —- that a motion to reopen is a constitutionally

adequate means to rebut administratively noticed facts.

See, Rivera-Cruz v. INS, 948 F.2d 962, 968-69 (5th Cir.

1991); Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C. Cir.

1992). This fundamental disagreement among the circuits

regarding crucial due process rights creates an intolerable

situation. Under the current state of the law, the scope of

an asylum applicant’s due process rights turns on which

Court of Appeals happens to have jurisdiction over his

case.‘

The Board itself has expressed concern over precisely

this type of inter-circuit discord on the nation’s immigra-

tion laws:

The laws that we administer and the cases we

adjudicate often affect individuals in the most

fundamental ways. We think that all would agree

that to the greatest extent possible our immigration

laws should be applied in a uniform manner nation-

wide, particularly where the most significant aspects

of the law are in issue. Here, however, we are left

with a patchwork application of the law — with

the most profound decisions affecting aliens

- . . tied to the mere happenstance of where their

cases arise geographically.

Matter of Cerna, 1991 WL 353528 (BIA Oct. 7, 1991) at *9

(emphasis added). This Court’s resolution of the claims

raised by Rhoa-Zamora’s petition would eliminate the

circuit conflict and make uniform the due process rights

available to all aliens —- wherever situated.

* See Immigration Board's Administrative Notice of Sandinista

Ouster Yields Circuit Split, 61 USLW 1023 (Aug. 18, 1992) (noting

conflict among the circuits); 69 Interpreter Releases 1213 (Sept. 28,

1992) (noting conflict and expressing view that Castillo-Villagra

represents correct statement of law).

(laa

Ni AL Se ae A i AONE IAM AR i cnet tari vk

Ae hE

EA KOK teva

Il. THE SEVENTH CIRCUIT’S DECISION CONTRA-

VENES THE MOST ELEMENTAL PRINCIPLES OF

DUE PROCESS APPLICABLE TO PERSONS FAC-

ING DEPORTATION.

“{T]hough deportation is not technically a criminal

proceeding, it visits great hardship on the individual and

deprives him of the right to stay and live and work in this

land of freedom.” Bridges v. Wixon, 326 U.S. 135, 154

(1945). “A deportation hearing involves issues basic to

human liberty and happiness and, in the present

upheavals in lands to which aliens may be returned,

perhaps to life itself.” Wong Yang Sung v. McGrath, 339

U.S. 30, 50 (1949). Because of the fundamental importance

of the interests implicated by deportation, no alien may

be deported without the “meaningful opportunity to be

heard,” Mathews v. Eldridge, 424 U.S. 319, 349 (1976),

required by the Due Process Clause of the Fifth Amend-

ment:

[The executive cannot] cause an alien who has

entered the country, and has become subject in

all respects to its jurisdiction, and a part of its

population, . . . to be taken into custody and

deported without giving him all opportunity to be

heard upon the questions involving his right to be

and remain in the United States.

The Japanese Immigrant Case, 189 U.S. 86, 101 (1903)

(emphasis added). See also, United States Ex Rel. Vajtauer v.

Comm’n of Immigration, 273 U.S. 103, 106 (1927) (“Depor-

tation without a fair hearing or on charges unsupported

by any evidence is a denial of due process.”).

Due process dictates that an asylum applicant be

“allowed an opportunity to rebut officially noticed facts,

particularly when . . . those facts are crucial to — indeed

dispositive of - the outcome of the administrative pro-

ceeding.” Kaczmarczyk, 933 F.2d 588, 596 (7th Cir. 1991). In

Ohio Bell Tel. Co. v. Pub. Util. Comm'n, 301 U.S. 292 (1936),

Justice Cardozo, speaking for a unanimous Court,

reversed an agency decision anc allowed the complaining

party an opportunity to controvert administratively

noticed facts, noting that the failure to afford litigants

such an opportunity “will never do if hearings and

appeals are to be more than empty forms.” Id. at 303. See

also Garner v. Louisiana, 368 U.S. 171, 173 (1961). As this

Court noted more recently:

‘Certain principles have remained relatively

immutable in our jurisprudence. One of these is

that where governmental action seriously injures an

individual, and the reasonableness of the action

depends on fact findings, the evidence used to prove

the Government's case must be disclosed to the indi-

vidual so that he has an opportunity to show that it

is untrue.’

Goldberg v. Kelly, 397 U.S. 254, 270 (1970) quoting Greene v.

McElroy, 360 U.S. 474, 496-97 (1959) (emphasis added).°

° Accord, 4 Stein, Mitchell, Mezines, Administrative Law

(1991), § 25.03 (“Due process requires that parties to an agency

proceeding be informed that official notice is being taken by the

agency and be given an opportunity to present evidence in

rebuttal”). Cf., Administrative Procedure Act, § 7(d), 5 U.S.C.

§ 556(e) (“When an agency decision rests on official notice of a

material fact not appearing in the evidence on the record, a

party is entitled, on timely request, to an opportunity to show to

the contrary”); FED. R. EVID. 201(e) (“A party is entitled upon

timely request to an opportunity to be heard as to the propriety

of taking judicial notice and the tenor of the matter noticed”); 8

In this case, Rhoa-Zamora was Genied due process

because — through no fault of his own — he was not afforded

a fair opportunity to respond to the non-record evidence

which formed the sole basis of the Board’s decision to

deny him asylum. The Seventh Circuit too readily

accepted the INS’s suggestion that Rhoa-Zamora’s due

process rights were satisfied by the availability of the

reopening procedure. This error not only denied Rhoa-

Zamora due process, but also stands to violate the due

process rights of perhaps thousands of other asylum

applicants against whom the Board has invoked its

notice-taking powers.

A. A Motion to Reopen is a Constitutionally Inad-

equate Means to Rebut Noticed Facts Because it

is Extraordinarily Discretionary.

The Seventh Circuit’s decision conflicts with (and

largely ignores) this Court’s recent decisions in INS v.

Doherty, 112 S.Ct. 719 (1992) and INS v. Abudu, 485 U.S. 94

(1988) which emphasized the limited scope and “discre-

tionary” nature of motions to reopen. In Doherty and

Abudu, this Court likened the reopening procedure to a

petition for rehearing and a motion for a new trial based

on newly discovered evidence, emphasizing that such

motions are plainly “disfavored,” (Doherty, 112 S.Ct at

724; Abudu, 485 U.S. at 107, 110) and that the party

C.F.R. § 208.12 (if an adverse asylum or deportation determina-

tion by an Asylum Officer rests on certain extra-record material,

“that material must be identified and the applicant must be

provided with an opportunity to inspect, explain, and rebut the

material... ”).

moving to reopen “bears a heavy burden” (Abudu, 485

U.S. at 110).

In Abudu, this Court explained that the regulation

permitting the filing of motions to reopen, 8 C.F.R. § 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.’

Abudu, 485 U.S. at 105, quoting INS v. Jong Ha Wang, 450

U.S. 139, 144 n.5 (1981) (emphasis added). Thus, this

Court’s prior decisions, “stand for the proposition that

the [Board] 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 105-06. See also, Matter of

Coelho, 1992 WL 195806 (BIA April 30, 1992) at *7-8 (rely-

ing on Doherty and Abudu to illustrate discretionary

nature of motion to reopen). The denial of a motion to

reopen is, therefore, reviewed only under a deferential

abuse of discretion standard. Doherty, 112 S.Ct. at 725. See

also, Kaczmarczyk, 933 F.2d at 597 (reopening motions

“governed by an admittedly deferential abuse of discre-

tion standard”).

In stark contrast, 8 U.S.C. § 1105a(a)(4) provides that

a petition for review of a deportation order shall be

determined solely upon the administrative record “and

the Attorney General’s findings of fact, if supported by

reasonable, substantial, and probative evidence on the record

considered as a whole, shall be conclusive.” (Emphasis

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added.) See INS v. Elias-Zacarias, 112 S.Ct. 812, 815 (1992).

See also Melendez v. INS, 926 F.2d 211, 216-17 (2d Cir.

1991).¢

Consequently, by deciding a case on administratively

noticed facts, rather than on the record evidence, the

Board deprives a blameless applicant of the more favor-

able substantial evidence standard available on review of

the underlying deportation order. As a practical matter,

the latitude given the Board to deny reopening motions

means that an applicant who attempts to rebut noticed

facts through a motion to reopen — and manages to sub-

mit evidence fully and convincingly refuting the noticed

facts - may nonetheless be denied relief.

In the Seventh Circuit, the INS never disputed that

the effect of the Board’s notice-taking diluted the stan-

dard of review, but characterized the difference between

“substantial evidence” and “abuse of discretion” review

as “small.” (Resp. to Cons. Pet. for Reh. at 5.) The INS’s

effort to trivialize the consequences of notice-taking can-

not, however, be reconciled with cases highlighting the

very real distinction between the two standards of

review.

The “abuse of discretion” standard is “even more

deferential than the arbitrary or capricious standard and

the requirement of substantial evidence on the record as a

whole”, and is “about as restrictive [a standard] as the

6 While the ultimate award of asylum is a discretionary act,

the “threshold finding” of whether an alien has established a

well-founded fear of persecution and thus, eligibility for asy-

lum, is a non-discretionary “factual finding” reviewable for

substantial evidence. Melendez, 926 F.2d at 216-17.

Congress can fashion.” Ayuda, Inc. v. Thornburgh, 880 F.2d

1325, 1329 (D.C. Cir. 1989), vacated on other grounds, 111

S.Ct. 1068 (1991). See also, Abbott Lab. v. Gardner, 387 U.S.

136, 143 (1967) (“ ‘substantial evidence’ test afford[s] a

considerably more generous judicial review than the

‘arbitrary and capricious’ test . . . ”); Jamesway Corp. v.

NLRB, 676 F.2d 63, 67 n.4 (3d Cir. 1982) (“abuse of discre-

tion standard of review . . . entails a greater degree of

judicial deference to agency action than does substantial

evidence review.”).

In any event, as this Court observed in Addington v

Texas, 441 U.S. 418 (1979) in connection with analogous

standards of proof, “even if the particular standard-of-

proof catchwords do not always make a great difference

in a particular case, adopting a ‘standard of proof is more

than an empty semantic exercise.’” Id. at 425 (citations

omitted).

First, “in cases involving individual rights, whether

criminal or civil, ‘[t]he standard of proof [at a minimum]

reflects the value society places on individual liberty.’ ”

Id. Accordingly, due regard for the liberty interest of

asylum applicants facing deportation cautions against

applying a reduced standard of proof in instances where,

as here, the Board has opted to rely on a bureaucratic

“short-cut”. .

Second, “Addington teaches that, in any given pro-

ceeding, the minimum standard of proof tolerated by the

due process requirement reflects not only the weight of

the private and public interests affected, but also a soci-

etal judgment about how the risk of error should be

distributed between the litigants.” Santosky v. Kramer, 455

WE Ra ES A th NS ae aD A Ep) thi sl edt

PA OI Aa A A Bias oe A os,

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U.S. 745, 755 (1982). See also Cruzan v. Missouri Dep't of

Health, 497 U.S. 261, 283 (1990) (“The more stringent a

party’s burden of proof, the more that party bears the risk

of an erroneous decision.” )

The Board should not be allowed to unilaterally alter

Rhoa-Zamora’s burden of proof and to shift onto him the

risk of an erroneous decision. Such risk-shifting is espe-

cially unwarranted here where the applicant is blameless

and the need for supplemental evidence is not of his

making. As in Castillo-Villagra, Petitioner:

. .. did not bypass the INS. The INS bypassed

[him], by taking administrative notice of facts

not at issue in the hearing[]. Usually in a motion

to reopen, the movant seeks to inject new mate-

rial, but in this case, the tribunal injected the

new material after the hearing was over.

972 F.2d at 1024.

Third, the standard of proof functions “to ‘instruct

the factfinder concerning the degree of confidence our

society thinks he should have in the correctness of factual

conclusions for a particular type of adjudication.”

Addington, 441 U.S. at 423 (quoting In re Winship, 397 US.

358, 370 (1970) (Harlan, J., concurring)). Here, there is no

reason to repose confidence in the Board’s adjudication.

That decision turned on an issue as to which Rhoa-

Zamora was not permitted to present evidence, 1.e., the

significance of the Chamorro election. The Board pro-

ceeding thus lacked the participatory and adversarial

character that is the hallmark of adjudicative integrity.

Finally, whatever procedural guarantees may be

afforded by the Due Process Clause, it is clear that the

discretionary reopening mechanism is an insufficient

safeguard of Rhoa-Zamora’s constitutional rights because

it cannot place him in the position he would have been if

the Board had acted in accordance with its constitutional

obligation to permit rebuttal of administratively noticed

facts. See 3 Davis, Administrative Law Treatise, § 15.18 at

201 (2d Ed. 1980) (due process satisfied by allowing

plaintiff to rebut officially noticed facts only if “his pro-

cedural interest is as fully protected as it would have

been by introducing the noticed facts as a part of the

evidence at the original hearing”); Milliken v. Bradley, 433

U.S. 267, 280 (1977) (remedy for constitutional violation

must be “designed as nearly as possible ‘to restore the

victims .. . to the position they would have occupied in

the absence of such conduct’ ”) (citation omitted).

The reopening procedure may be constitutionally

adequate when invoked by an applicant for presenting

newly discovered evidence which, although bearing on

the applicant’s claims, was not submitted prior to the

initial disposition of his case. When the reopening pro-

cedure is used for that purpose, it is understood that the

initial decision - although made without the benefit of

the newly uncovered evidence - arose in an open and

adversarial setting and is, therefore, at least presump-

tively reliable. Where constitutional rights have not been

observed in the first instance, however, and where the

basis of the agency’s decision was, in effect, hidden from

the petitioner, requiring him to resort to a wholly discre-

tionary procedure to vindicate those rights is not “consis-

tent with the interest of giving the adversaries a fair

opportunity to present their respective cases.” Abudu, 485

U.S. at 107. “The vindication of rights guaranteed by the

Bebe OA Ne bah, Rnllealis

SH eh A hE ONE LALLY AL OBI) St NG 0 0 A aL at ab dicen ah a

Constitution has never been made to turn on the unre-

viewable discretion of . . . an administrative tribunal.”

Herrera v. Collins, No. 91-7328, 1993 U.S. LEXIS 1017 *82

(Sup. Ct. Jan. 25, 1993) (Blackmun, J. dissenting). See also

Solem v. Helm, 463 U.S. 277, 303 (1983).

In reviewing the decision below, this Court need not

devise a new constitutional remedy. Instead, the Court

may order the Seventh Circuit to accord Rhoa-Zamora the

statutory relief authorized by 28 U.S.C. § 2347(c), under

which the Board would be required to consider his

newly-adduced evidence if that evidence is “material”

and “there were reasonable grounds for failure to adduce

the evidence before the agency.” 28 U.S.C. § 2347(c).

Alternatively, the Court could hold that the Board’s deci-

sion on a motion to reopen directed to rebutting adminis-

tratively noticed facts must be reviewed for substantial

evidence and must stay the asylum applicant’s deporta-

tion. Finally, the Court could hold that due process

requires the Board to inform an asylum applicant of its

intention to take administrative notice of facts and to

provide the applicant with an opportunity to be heard on

those facts before the Board reaches its decision or before

that decision becomes final and appealable. At a mini-

mum, however, the substantial evidence standard of

review that Congress mandated must be preserved.

B. A Motion to Reopen is a Constitutionally Inad-

equate Means to Rebut Noticed Facts Because

the Filing of Such a Motion Does Not Stay

Deportation.

Limiting an asylum applicant to a discretionary

motion to reopen also violates due process “because the

agency might have denied it, and deportation would not

have been automatically stayed by the motion.” Castillo-

Villagra, 972 F.2d at 1029. See 8 C.F.R. § 3.8(a) (“The filing

of a motion to reopen or a motion to reconsider shall not

serve to stay the execution of any decision made in the

case.”),

The Seventh Circuit recognized this problem during

oral argument and sought assurances from INS counsel

that Rhoa-Zamora would not be deported during the

pendency of his Motion to Reopen. The INS refused to

Provide such assurances. Yet, despite this refusal, the

Court purported to resolve the problem by simply “reit-

erat[ing] here [its] presumption that ‘when an asylum

applicant uses a good faith motion to reopen to dispute

officially noticed facts, the Board will exercise its discre-

tion to stay the execution of its decision until it has had

an opportunity to rule on the applicant’s motion.’ ” (A 19

n.11) (quoting Kaczmarczyk, 933 F.2d at 597).

The Sixth and Ninth Circuits have refused to take

this leap of faith. See Castillo-Villagra, 972 F.2d at 1030

(“We are not satisfied that we can make [the] presump-

tion [made in Kaczmarczyk], in view of the ‘broad discre-

tion’ the agency has to deny motions for rehearing ... ”.).

The Sixth Circuit explained:

[RJequiring a petitioner facing deportation to

file a motion to reopen the proceedings in order

to rebut officially noticed facts creates an unnec-

essary 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.FR. § 3.8(a), and thus such a procedure

imposes the unreasonable risk that a petitioner

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may be deported before the Board considers the

rebuttal evidence contained in his motion to

reopen.

(A 56 n.i1) (emphasis added). An asylum applicant’s due

process rights should not be left to the mercy of an

opponent who could lawfully “moot out” an applicant's

motion “by deporting the applicant before ruling.” Cast-

illo-Villagra, 972 F.2d at 1030.

The INS has characterized Rhoa-Zamora’s concerns

regarding the risk of deportation as “a fear and a specula-

tion.” (Resp. to Cons. Pet. for Reh. at 3.) That fear, however,

as evidenced by the INS’s refusal to promise that Rhoa-

Zamora would not be deported during the pendency of his

Motion to Reopen, is far from speculative. In 1988, for exam-

ple, Gerald S. Hurwitz, then Counsel to the Director of the

Executive Office for Immigration Review, admitted that

aliens are “not infrequently” deported during the pendency

of motions to reopen. Telephone Interview with Gerald S.

Hurwitz, quoted in Note, Timeliness of Petitions for Judicial

Review Under Section 106(a) of the Immigration and Nationality

Act, 86 Mich. L. Rev. 990, 997 n.36 (April 1988). See also 69

Interpreter Releases 1394, 1396 (Nov. 2, 1992) (noting that “the

INS has not hesitated to execute orders of deportation dur-

ing the pendency of” motions to reopen); Martinez-Cabrera v.

Thornburgh, CA No. B-89-126 (S.D. Tex. Oct. 5, 1989)

(reported in 66 Interpreter Releases 1202 (Oct. 30, 1989)) (not-

ing the INS’s deportation of asylum applicant whose motion

to reopen had actually been granted). No one in Rhoa-

Zamora’s shoes could comfortably assume that he will not be

forcibly removed from this country before he has had a fair

and full opportunity to meet the case against him.

Ill. THE DUE PROCESS RIGHTS OF THOUSANDS

OF ASYLUM APPLICANTS ARE THREATENED

BY LIMITING THEIR OPPORTUNITY TO REBUT

NOTICED FACTS TO THE REOPENING PRO-

CEDURE.

The end of the Cold War wrought dramatic changes

in the world political landscape. Rhoa-Zamora’s case is

but one instance in a developing pattern in which the

Board has reacted to such political realignment by invok-

ing its administrative notice powers. In brief, boilerplate

opinions replicated across the country, and affecting

potentially thousands of putative refugees, the Board has

taken official notice of changed political conditions in

asylum applicants’ home countries and relied on those

changed conditions to deny the asylum claims of all

applicants from those countries.” With a few strokes of a

word processor key, entire categories of cases are sum-

marily removed from the Board’s docket by a mechanism

whose constitutionality has never been tested by this

Court and with respect to which there is a serious and

7 See, e.g., Tokarska v. INS, 978 F.2d 1 (1st Cir. 1992) (Poland);

Kontrol v. INS, 978 F.2d 1265 (9th Cir. 1992) (unpublished deci-

sion) (Romania); Kindl v. INS, 977 F.2d 595 (10th Cir. 1992)

(unpublished decision) (Czechoslovakia); Osuch v. INS, 970 F.2d

394 (7th Cir. 1992) (Poland); Roman-Zavala v. INS, 972 F.2d 1342

(9th Cir. 1992) (unpublished decision) (Nicaragua);

Chaves-Robles v. INS, 966 F.2d 1441 (4th Cir. 1992) (unpublished

decision) (Nicaragua); Baka v. INS, 963 F.2d 1376 (10th Cir. 1992)

(Hungary); Gutierrez-Rogue v. INS, 954 F.2d 769 (D.C. Cir. 1992)

(Nicaragua); Rivera-Cruz v. INS, 948 F.2d 962 (5th Cir. 1991)

(Nicaragua); Wojcik v. INS, 951 F.2d 172 (8th Cir. 1991) (Poland);

Kapcia v. INS, 944 F.2d 702 (10th Cir. 1991) (Poland); Janusiak v.

INS, 947 F.2d 46 (3rd Cir. 1991) (Poland).

widespread dispute among the circuits. Continuing

changes in Eastern Europe, Central America and Asia

make more such decisions inevitable and make the neces-

sity for this Court’s review of the process all the more

imperative.

Administrative notice may be a bureaucratically

attractive means by which to quickly reduce the Board’s

caseload. “Casual reliance” on noticed facts, Castaneda-

Hernandez v. INS, 826 F.2d 1526, 1530 n.5 (6th Cir. 1987),

however, threatens to turn administrative notice “into a

pretext for dispensing with a trial.” Ohio Bell, 301 U‘S. at

302. “There can be no compromise on the footing of

convenience or expediency, or because of a natural desire

to be rid of harassing delay, when [the rudiments of fair

play have] been neglected or ignored.” Id. at 305. See also,

Castillo-Villagra, 972 F.2d at 1027 (“[T]he administrative

desirability of notice as a substitute for evidence cannot

be allowed to outweigh fairness to individual litigants.”).

IV. THE PUBLIC INTEREST IN PROMPT AND

ACCURATE ADJUDICATION OF ASYLUM

CLAIMS IS COMPROMISED BY THE SEVENTH

CIRCUIT’S DECISION.

Requiring asylum applicants to resort to an after-the-

fact discretionary reopening procedure to challenge

noticed facts wastes scarce administrative and judicial

time and resources. Indeed, the procedural history of this

case perfectly illustrates the inefficiencies of the pro-

cedure endorsed by the Seventh Circuit. At this moment,

Rhoa-Zamora’s second appeal is pending before the Sev-

enth Circuit. That appeal was necessitated by the Board’s

denial of Rhoa-Zamora’s Motion to Reopen.

In order to comply with the Seventh Circuit’s holding

in this case, an asylum applicant seeking to rebut noticed

facts must file a motion to reopen. However, in order to

preserve his right to appeal from the final order of depor-

tation, an applicant must also file a notice appealing the

Board’s denial of his claim. This latter filing is necessary

because the filing of a motion to reopen does not toll the

period for filing a notice of appeal. (A 15.) In the event

the Board exercises its discretion to deny his motion to

reopen, the applicant will likely turn once again to the

court of appeals to secure his right to respond to the

noticed facts, thus spawning a second appeal in the same

case. Such a fragmented approach to asylum adjudication

is contrary to the “strong public interest in bringing

[asylum] litigation to a close as promptly as is consistent

with the interest in giving the adversaries a fair oppor-

tunity to develop and present their respective cases.”

Abudu, 485 U.S. at 107.

The Seventh Circuit’s decision has a further negative

consequence for the adjudicative process; it virtually

assures that judicial review will be made on inadequate

administrative records. Under the procedure approved by

the Seventh Circuit, asylum applicants may refute facts

administratively noticed by the Board only after a final,

appealable decision has been rendered by the Board.

Then, asylum applicants may do so only by way of a

_EEOEO———OEe

discretionary procedure — the motion to reopen. Conse-

quently, reviewing courts are forced to test the accuracy

of asylum determinations which turn on noticed facts

without the benefit of evidence that those facts are untrue or

irrelevant.

Again, Rhoa-Zamora’s case illustrates this predica-

ment. Rhoa-Zamora has significant evidence indicating

that the foundation of the Board’s decision — the assump-

tion that the Chamorro election vitiated any reasonable

fears of persecution by the Sandinistas — is simply wrong.

The Seventh Circuit would not consider that evidence,

however, because it was not part of the evidence before

the Board at the time the Board rendered its decision. (A

17.) (“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.”). Because the Board engaged in fact-noticing

rather than fact-finding, Rhoa-Zamora’s evidence was not

part of the record and was not considered by the Seventh

Circuit.

The Seventh Circuit, which has lamented the often

sorry state of administrative records in asylum cases (see

Balazoski v. INS, 932 F.2d 638, 642 (7th Cir. 1991)), has

contrived a system where it will inevitably be made to

review noticed facts without a proper record. By contrast,

allowing the party against whom notice is taken to

respond before a final and appealable decision is reached

insures that:

[A] clear and complete record will be available

on the issue for purposes of appeal. The appel-

late court will not have to speculate on whether

there exists any information which raises a

doubt concerning the accuracy of the judicially

noticed fact.

Turner, Judicial Notice and Federal Rule of Evidence 201, 45

U. Pitt. L. Rev. 181, 205 (1983).

Further, permitting asylum applicants to make their

rebuttal evidence part of the record before final adjudica-

tion, not only facilitates judicial review, but also helps

ensure more accurate adjudications in the first instance.

‘TA] noticed fact . . . may actually be wrong. Or,

as is far more likely .. . there may be room for

reasonable disagreement concerning the signifi-

cance of the facts which are noticed, and the

deductions to be drawn from them .. .

+ * +

The parties, then, are entitled to be apprised of

the data upon which the agency is acting. They

are entitled not only to refute but, what in this

situation is usually more important, to supple-

ment, explain, and give different perspective to

the facts upon which the agency relies.’

Kaczmarczyk, 933 F.2d at 596 n.7, quoting Report of the

Attorney General's Committee on Administrative Procedures

in Government Agencies, 71-73 (1941) cited in 4 Stein,

Administrative Law, § 25.01 n.7 (1986).

Judges make law on the basis of facts proved and

assumed, and it is fundamental that “[t]hey are more

likely to do a better job when their assumptions rest on

information rather than a hunch.” Karst, Legislative Facts

in Constitutional Litigation, 1960 Sup. Ct. Rev. 75. “[T]he

doctrine of judicial notice must be intelligently used, lest

the court assume that something false be true, or that

half-truths be whole.” Keefe, Landis & Shaad, Sense and

Nonsense about Judicial Notice, 2 Stan. L. Rev. 664, 665

(1950).

CONCLUSION

Properly utilized, administrative notice allows an

agency “to actively participate in the litigation to further

the discovery of the truth and the accomplishment of a

just result — the ultimate objectives of the adversary sys-

tem.” Comment, The Presently Expanding Concept of Judi-

cial Notice, 13 Vill. L. Rev. 528, 551 (1968). However, ”facts

disputable literally must not be made indisputable pro-

cedurally.” Id. at 546.

Because Petitioner was denied a fair opportunity to

meet the case against him in violation of due process, and

because of the importance of the question presented and

the irreconcilable conflict among the circuits on the issue,

Petitioner requests that the Petition for Writ of Certiorari

be granted.

Respectfully submitted,

Ev_pipio VILLARREAL

Counsel of Record

Jit A. THOMPSON

Pauta M. Yost

SONNENSCHEIN NaTH &

ROSENTHAL

8000 Sears Tower

Chicago, Illinois 60606

(312) 876-8000

February 2, 1993 Counsel for Petitioner

Agustin RHOA-ZAMORA, Petitioner,

| IMMIGRATION AND

| NATURALIZATION SERVICE,

Respondent.

Felipe Antonio JURESMA-ALTAMI-

RANO and Luis Rodriguez-Alta-

mirano, Petitioners,

Vv.

IMMIGRATION AND

NATURALIZATION SERVICE,

Respondent.

Luis Andres ESQUIVEL-

BERRIOS, Petitioner,

Vv.

IMMIGRATION AND

NATURALIZATION SERVICE,

Respondent.

Nos. 91-1949, 91-1513 and 91-1551.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 11, 1992.

| Decided Aug. 4, 1992.

As Modified on Denial of Rehearing

and Rehearing En Banc Nov. 4, 1992.

Elpidio Villarreal, Jill A. Thompson (argued), Son-

nenschein, Nath & Rosenthal, Chicago, Ill., for petitioner

Agustin Rhoa-Zamora.

Lori L. Scialabba, David J. Kline, Charles E. Pazar,

Robert Kendall, Jr., Donald E. Keener (argued), Dept. of

= =

Spo ES

Justice, Office of Immigration Litigation, Robert L. Bom-

baugh, I.N.S., Civ. Div., Washington, D.C., Richard L.

Thornburg, U.S. Atty. Gen., Office of U.S. Atty. Gen.,

Washington, D.C., A.D. Moyer, Samuel Der-Yeghiayan,

Ellen J. Krupp, I.N.S., Fred Foreman, U.S. Atty., Crim.

Div., Chicago, Ill, for I.N.S.

James T. Barry, III (argued), Foley & Lardner, Mil-

waukee, Wis., Randall S. Rapp, Foley & Lardner, Chicago,

lll., for petitioners Felipe Juaresma-Altamirano and Louis

Rodriguez-Altamirano.

Roy A. Petty, Midwest Immigrant Rights Center,

Travelers and Immigrants Aid, Javier H. Rubinstein

(argued), Mayer, Brown & Platt, Chicago, Ill., for peti-

tioner Luis A. Esquibel-Berrios [sic].

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 asy-

lum 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 rights to due process by failing 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 ille-

gally 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 depor-

tation pursuant to 8 U.S.C. § 1253(h). To be eligible for

asylum, an alien must establish that he meets the statu-

tory 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 opin-

ion. 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. INS v. Stevic, 467 U.S.

407, 423 n. 18, 104 S.Ct. 2489, 2497 n. 18, 81 L.Ed.2d 321

(1984). Withholding of deportation, by contrast, is man-

datory 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. Id. at 421 n. 15, 104 S.Ct. at 2496 n. 15.

At his deportation hearing, Zamora testified that he

fled Nicaragua because of religious persecution directed

at him and his family. He claimed that he was an adher-

ent of the Charismatic Catholic revival movement and

described numerous incidents of Sandinista violence

against him and other members of his faith. The Immigra-

tion Judge rejected Zamora’s testimony as neither “can-

did” 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 govern-

ment in Nicaragua and concluded that, since the Sand-

inista 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.ER.

§ 3.2.1 In support of his motion, Zamora submitted var-

ious materials allegedly evincing the Sandinistas’ conti-

nuing 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

* Zamora describes this motion as a “motion to reconsider.”

8 C.FR. § 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 sup-

ported 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.

We think it clear that Zamora’s motion is more accurately char-

acterized 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.

A6é

conceded deportability but sought either asylum or with-

holding of deportation.

As 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 beliefs. He testified that he believed that if he were

returned to Nicaragua he would be either shot or jailed

by 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 this

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. Fur-

ther, 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 dispropor-

tionate treatment for his previous decision to avoid con-

scription. The Immigration Judge therefore denied

Berrios’ application for asylum or withholding of depor-

tation 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 case, the Altamiranos conceded

deportability but sought asylum and withholding of

deportation.

The Altamiranos testified before the Immigration

Judge that they fled Nicaragua in order to avoid recruit-

ment 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 carry-

ing of arms.” The brothers also described various threats

? 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

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’ testi-

mony, 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, by the Sand-

inistas. The judge concluded that the brothers had failed

to establish that they would be singled out or system-

atically persecuted because of their religious beliefs. He

therefore denied their applications for asylum or with- -

holding of deportation and granted voluntary departure.

well-founded fear of persecution on account of religion. In INS

v. Elias-Zacarias, __U.S.___, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992),

the Court held that a guerrilla organization’s attempt to con-

script the asylum applicant into its military forces does not

necessarily constitute persecution on account of political opin-

ion. 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, ___

U.S. __, 112 S.Ct. 1152, 117 L.Ed.2d 401 (1992).

3 In fact, Luis testified that he had served in the Nicaraguan

army in 1980 and in 1981, although he had been a Pentecostal

Christian all of his life.

The Board affirmed this decision based on the interven-

ing 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

1. 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.” Id. at 532. Pre-

sumably, 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 as of right under the immigration laws

and regulations. .. .

A10

(emphasis added). As Zamora points out, reopening is a

discretionary remedy, not one available as a right. INS v.

John Ha Wang, 450 U.S. 139, 143, 101 S.Ct. 1027, 1030, 67

L.Ed.2d 123 (1981); Note, Timeliness of Petitions for Judicial

Review Under Section 106(a) of the Immigration and Nation-

ality 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 (5th 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, @.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, ___ U.S. ___, 112 S.Ct. 583,

116 L.Ed.2d 608 (1991). We see no reason to change that

approach.

We are more concerned, however, with another juris-

dictional 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

non-appealable. 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.

All

denied, 467 U.S. 1216, 104 S.Ct. 2659, 81 L.Ed.2d 366

(1984). The Third Circuit, on the other hand, holds that a

pending motion to reopen “does not render the order of

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 purposes of determining

when the time to appeal begins to run. Interstate Com-

merce Comm'n v. Locomotive Engineers, 482 U.S. 270, 284-85,

107 S.Ct. 2360, 2369, 96 L.Ed.2d 222 (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 Pro-

cedure Act’s provision that agency action that is “other-

wise 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, 107 S.Ct. at 2369

(emphasis in original).4 In Locomotive Engineers, the Court

placed its imprimatur on this interpretation. Id.

4 The legislative history of section 704 supports this inter-

pretation. See West Penn Power Co. v. Environmental Protection

Agency, 860 F.2d 581, 585 (3d Cir. 1988).

Al2

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. Inter-

state Commerce Comm’n, 871 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, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988).5 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

> 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 juris-

diction. Id. 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 immigra-

tion context, whatever its effect on administrative law generally.

Al3

administrative law generally.” 860 F.2d at 584. It does not

necessarily make sense, however, to define “finality”

under the INA in the same way it is defined in adminis-

trative law generally. In fact, there are good reasons not

to apply the Locomotive Engineers rule to deportation pro-

ceedings. That rule “basically rest[s] on a notion of judi-

cial economy.” Arch Mineral Corp., 798 F.2d at 219. “It is

obviously wasteful of the resources of the courts to bur-

den them with objections to administrative action which

may be obviated by agency action on reconsideration.”

Id.; see also West Penn Power, 860 F.2d at 585 (“allowing a

petitioner to apply to both 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: pre-

venting 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 seek-

ing 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

Al4

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 deporta-

tion 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 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 con-

template such a result. Rather, the regulations appear to

6 Such a result would also seem to conflict with INS regula-

tions, 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).

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 Elev-

enth Circuit’s rule is “incompatible with the plain language of”

the provision. Akrap v. INS, 966 F.2d 267, 271 (7th Cir. 1992).

Thus, the 1990 amendment to the INA actually supports our

decision here.

Al15

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 pur-

poses of this court’s jurisdiction. We have jurisdiction

over Zamora’s case.

2. Due Process

Zamora contends that the Board deprived him of due

process by failing to accord him a sufficiently individu-

alized 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[].” Kaczmarczyk, 933 F.2d at 595.

Further, we agree with Zamora that the Board’s disposi-

tion of these cases in three opinions employing identical,

“boilerplate” paragraphs regarding the effect of the

Nicaraguan election casts a cloud over the Board’s deci-

sions and hinders meaningful judicial review. We are also

aware, however, that “agency action is entitled to a pre-

sumption of regularity,” so that “the burden is on the

petitioner[] to convince us that the [Board] have short

shrift to the evidence [he] presented.” Id. The Board’s

written decision, which describes in some detail

Zamora’s testimony regarding his alleged reasons for

fearing persecution, demonstrates that the Board did con-

sider Zamora’s particular evidence, at least to a degree.

Al6

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 par-

ticular 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 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 to introduce evidence rebutting officially

noticed facts,” provides a sufficient opportunity to be

heard to satisfy the requirements of due process. Id. 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), rehearing denied, 954 F.2d 723 (1992). But

see Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir. 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.®

8 We do note that in order for the motion to reopen pro-

cedure to satisfy the requirements of due process it must pro-

vide a” ‘meaningful opportunity to be heard.’ ” Kaczmarczyk, 933

F.2d at 595 (quoting Mathews v. Eldridge, 424 U.S. 319, 348, 96

S.Ct. 893, 909, 47 L.Ed.2d 18 (1976)) (emphasis added). Thus, as

the D.C. Circuit recently recognized, it would raise a serious

Al17

3. Substantial Evidence

Zamora also contends that the Board’s decision deny-

ing him asylum was not supported by substantial evi-

dence 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 evi-

dence 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 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, 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, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982)

(“this Court does not sit as an administrative agency for

the purpose of fact-finding in the first instance”). The

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. 35.

Al8

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 con-

sider 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 justi-

fication” 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 cer-

tainly significant, does not 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. 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 condi-

tions are met: that the additional evidence is material,

and that there were reasonable grounds for failure to

ee ee

Al9

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 seek-

ing to rebut officially noticed facts.1° Now that the pre-

sent appeal has been resolved, we assume that the Board

will fully address Zamora’s motion in a timely fashion."

B. Luis Andres Esquivel-Berrios

Like Zamora, petitioner Berrios argues that he was

deprived of his right to due process because the Board

® 28 U.S.C. § 2347(c). Other circuits have held without refer-

ence to improper action that remand may in certain circum-

stances be appropriate. See, e.g., Bernal-Garcia v. INS, 852 F.2d

144 (5th Cir. 1988); Becerra-Jiminez v. INS, 829 F.2d 996 (10th Cir.

1987); Martinez de Mendoza v. INS, 567 F.2d 1222 (3d Cir. 1977).

10 933 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).”).

1 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 possi-

bility 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 pre-

sumption 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.” Id.; see also Gutierrez-Rogue, 954 F.2d at 773 (adopting

the same presumption).

A20

failed to engage in sufficiently individualized consider

ation 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 evi-

dence 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.

1. Due Process

Again, we note the cloud cast over the Board’s deci

sion 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 appar-

ent that the Board considered Berrios’ evidence at all.

Nevertheless, we find that the Board’s decision contains

sufficient indicia of individualized determination to sat-

isfy due process. In particular, the Board notes Berrios’

“testimony concerning the military round-up of young

males, like himself, in Nicaragua.” This statement indi-

cates 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 eligi-

bility for either withholding of deportation or asylum.”

Again, this finding suggests that the Board was at least

—

A21

aware of the particulars of Berrios’ case. Although, as in

Zamora’s case, the Board did not discuss the relationship

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.

2. Substantial Evidence

Like Zamora, Berrivs also challenges the Board's

finding that he did not have a well-founded fear of per

secution 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.!2 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 evi

dence. 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

'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.

A22

evidence considered. Kaczmarczyk, 933 F.2d at 597. In

order to do so, however, he must file a motion to reopen

with the Board. Id.

We reject Berrios’ argument that he is entitled to

asylum based solely on the severity of his past persecu-

tion. 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 warrant the granting of asy-

lum “even if there is little likelihood of future persecu-

tion.” 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 unsup-

ported.

C. Felipe Antonio Juresma-Altamirano and Luis Rodriguez-

Altamirano

The Altamirano brothers, like both Zamora and Ber-

rios, argue that the Board failed to accord them a suffi-

ciently individualized determination of their claims.

Their argument, however, has more merit than does that

of Zamora or Berrios. The Board’s written opinion dis-

missing the Altamiranos’ appeal is made up entirely of

A23

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 deci-

sion is identical to a Paragraph in the Board’s decisions

regarding Zamora and Berrios. There is nothing individu-

alized 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 opin-

ion. We assume that such proceedings will include an

opportunity for the brothers to attempt to rebut the

Board’s conclusion as to the Significance of the

Nicaraguan elections.

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 peti-

tioner’s claims could be supported by substantial evi-

dence. Because we vacate the Board’s decision on other

grounds, however, we need not resolve this issue.

Ill. CONCLUSION

For the foregoing reasons, the petitions of Agustin

Rhoa-Zamora and Luis Andres Esquive!-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

A24

further proceedings consistent with this opinion. In addi-

tion, the petitioners’ motions to adduce additional evi-

dence 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 34 n. 8. We admonish

the Board to consider petitioners’ motions in that light.

A25

U.S. Department of Justice Decision of the Board of

Executive Office for Immigration Appeals

Immigration Review

Falls Church, Virginia 22041

File: A27 948 778 - Chicago Date: JAN 31 89

In re: AGUSTIN RHOA-ZAMORA

IN DEPORTATION PROCEEDINGS

APPEAL

ON BEHALF OF

RESPONDENT: Anthony W. Hong, Esquire

190 South LaSalle

Chicago, Illinois 60603

Mary R. Schlachtenhaufen, Esquire

One First National Plaza

Chicago, Illinois 60603

ON BEHALF OF SERVICE: Renetta Smith

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

The respondent is appealing from the July 25, 1988,

decision of the immigration judge that found him deport-

able as charged, and denied his applications for asylum

and withholding of deportation under sections 208(a) and

243(h) of the Immigration and Nationality Act, 8 U.S.C.

§§ 1158(a) and 1253(h). The respondent's asylum and

withholding claims are based on a fear of harm from the

A26

Sandinistas, who controlled the government at the time

he departed Nicaragua. The appeal will be dismissed.

The respondent is a 56-year-old married male alien, a

native and citizen of Nicaragua. The respondent does not

contest his deportability on appeal, but argues that he

should not be returned to Nicaragua. The respondent

testified that he was persecuted in his native country for

his Charismatic Catholic religious beliefs and as a leader

in his church. The respondent described a mock mass

held outside of his home by Sandinista supporters where

they hung an effigy of his parish priest. The respondent

testified that he was identified by the authorities while

attending religious gatherings and was beaten by Sand-

inista mobs. Finally, the respondent testified that the

Sandinistas would persecute him for allowing his chil-

dren to leave Nicaragua.

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.E.R. § 208.5;

Cuadras v. INS, __ F.2d __, No. 88-7478 (9th Cir. August

3, 1990); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Mat-

ter of Mogharravi, Interim Decision 3028 (BIA 1987); Matter

of Chen, Interim Decision 3104 (BIA 1989).

A27

In this regard, we take administrative notice that the

Sandinista party no longer controls the Nicaraguan gov-

ernment.! Effective April 25, 1990, a new coalition gov-

ernment, formed by parties in Opposition to the

Sandinistas (“UNO”), has succeeded the former govern-

ment 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.2 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 respon-

dent has a well-founded fear of persecution by the Sand-

inista government were he to return to Nicaragua.

’ It is well-established that administrative agencies and the

courts may take judicial (or “administrative”) notice of com-

monly known facts. See Ohio Bell Telephone Co. v. Public Utilities

Commission, 301 U.S. 292 (1937). See, e.g., 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 (5th 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, Administra-

tive Law, § 2501 (1986). This Board has previously taken admin-

istrative notice of changes in foreign governments. See, ¢.g.,

Matter of Stojkovic, 10 1&N Dec. 281 (BIA 1963). See also Matter of

Chen, Interim Decision 3104 (BIA 1989).

2 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 A1.

A28

Further, even if one were to assume that the respon-

dent’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

instance, asylum could be granted if the past persecution

had been so severe that return to the country of persecu-

tion would be inhumane. Even if past persecution had

been established in the instant case, we would not con-

clude from our independent review of the record that

ihere 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 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 speci-

fied in section 243(h) of the Act.

The respondent also argues that the immigration

judge’s adverse credibility findings were erroneous and

not based on persuasive grounds, and that the immigra-

tion judge based his decision in part on facts not of

record. We need not specifically address these allegations

of error as no prejudice to the respondent has been shown

even if the immigration judge erred in the manner

A29

alleged, due to our findings, above. See Matter of Santos,

Interim Decision 2969 (BIA 1984). As noted, the Sand-

inistas no longer govern Nicaragua and the respondent

should have no fear in returning to his native country.

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the immigration

judge’s order and in accordance with our decision in

Matter of Chouliaris, 16 1&N Dec. 168 (BIA 1977), the

respondent is permitted to depart from the United States

voluntarily within 30 days from the date of this order or

any extension beyond that time as may be granted by the

district director; and in the event of failure so to depart,

the respondent shall be deported as provided in the

immigration judge’s order.

/s/ James P. Morris

FOR THE BOARD

A30

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

Chicago, Illinois

File No.: A27 948 778 July 25, 1988

In the Matter of

JOSE AGUSTIN

RHOA-ZAMORA

Respondent.

IN DEPORTATION

PROCEEDINGS

CHARGE: I&N Act Section 241 (a)(2) (8 U.S.C. Section

1251 (a)(2)) . . . entry without inspection.

APPLICATIONS: Sections 208 and 243 (h) of the Act. (8

U.S.C. Sections 1185 and 1253 (h)) . . . asylum and/or

withholding of deportation and in the alternative, under

Section 244 (e) (8 U.S.C. Section 1264 (e)) . . . voluntary

departure.

ON BEHALF OF ON BEHALF OF SERVICE:

RESPONDENT: Christine Young, Esq.

Mary Ann O’Connor, Esq. General Attorney

1 First National Plaza, 219 S. Dearborn St.

Ste 0286 Rm. 486

Chicago, Illinois 60670 Chicago, Illinois 60604

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a fifty-four year old married male,

native and citizen of Nicaragua. On December 24th, 1986,

the respondent entered the United States near Brown-

sville, Texas. On December 25th, 1986, the Immigration

and Naturalization Service [hereinafter the Service]

A31

issued an Order to Show Cause to the respondent pur-

suant to 8 C.FR. Section 242.1 (a) (Exhibit 1). In this

document, the Service contends that the respondent is

deportable under Section 241 (a)(2) of the Immigration

and Nationality Act [hereinafter, the Act] for having

entered the country without inspection. In conjunction

with a request for change of venue submitted to the

Immigration Judge in Harlingen, Texas, the respondent

conceded deportability under Section 241 (a)(2) of the

Act. The change of venue to Chicago was granted on

August 3rd, 1986 [Exhibit 3]. At the proceedings held in

Chicago on August 27th, 1987, April 13, 1988, May 9, 1988

and July 25th, 1988, the respondent, through counsel

admitted the factual allegations contained in the Order to

Show Cause and conceded deportability on the charge set

forth therein. Based on the respondent’s admissions, |

find that he is deportable as charged and that the evi-

dence is clear, convincing and unequivocal. Woodby ».

INS, 385 U.S. 276 (1966); 8 C.ER. Section 242.14 (a) (1987).

In lieu of an Order of Deportation, respondent has

filed an I-589 application for political asylum pursuant to

Section 208 of the Act [Group Exhibit 2]. And a previous

application on form I-589 [Group Exhibit 5] which was

filed on January 13th, 1987 in the District Office of the

Immigration and Naturalization Service at Miami, Flor-

ida. We note that that was Signed by the respondent on

January 12th, 1987. This is the initial application that was

forwarded to the State Department and as a result a

response from the State Department was received. See

Exhibit 4. And this is the application that was initially

renewed before the Court and the Court granted an

Opportunity to submit an updated application which is

A32

Group Exhibit 2. A request for asylum made after the

initiation of deportation proceedings is also considered a

request for withholding of deportation under Section 243

(h) of the Act. See Matter of Rodriguez-Palma, 17 1&N Dec.

465 (BIA 1980); 8 C.ER. Section 208.3 (b) (1987). In the

alternative, the respondent has requested voluntary

departure pursuant to Section 244 (e) of the Act.

Pursuant to 8 C.F.R. Section 208.10 (b), the respon-

dent’s asylum application was referred to the Department

of State, Bureau of Human Rights and Humanitarian

Affairs, for an advisory opinion. See Matter of Saban, 18

I&N Dec. 70 (BIA 1981). In a one page letter dated Sep-

tember 17, 1987, the Bureau advised that, in their opinion,

the respondent failed to establish a well-founded fear of

persecution in Nicaragua within the meaning of the Act.

[Exhibit 4]. However, this opinion was based on the

application as originally submitted my [sic] the respon-

dent, See Group Exhibit 5. The second application was

not forwarded to the State Department in view of the fact

that the Court is required to have but one response from

the State Department.

While the reliability of the State Department's advi-

sory opinions in individual cases has been questioned,

s.e. [sic] Khalil v. District Director, 457 Fed. 2nd. 1276,

1277, n.3 (9th Circuit 1972), there [sic] value as a source of

information about the general conditions in foreign coun-

tries has recognized, e.g. Jaen v. INS, 564 Fed. 2nd. 155,

156 (3rd Circuit 1977). However, the State Department's

response is not dispositive of the asylum request, as it is

the Immigration Judge’s responsibility to determine

whether an applicant in deportation proceedings quali-

fies for asylum on the merits. 8 C.F.R. Section 201.8 (b)

A33

(1987); c.f. Matter of Francosis, 50 1&N Dec. 534 (BIA 1975).

Moreover, the advisory opinion is not germane on the

issue of withholding of deportation. Carvajal Munoz v.

INS, 743 Fed. 2nd 562, 570, 7th Circuit (1984).

Standard for asylum and withholding of deportation.

The alien bears the evidentiary burdens of proof and

persuasion in any application for withholding of deporta-

tion under Section 243 (h) or asylum under Section 108 of

the Act. Matter of Costa, Int. Dec. 2986 (BIA 1985); 8 C.E.R.

Sections 208.5, 2.2.17 (c) (1987).

An alien who is seeking withholding of deportation

from any country must establish by a “clear probability”

that his or her life or freedom would be threatened in

such country on account of race, religion, nationality,

membership in a particular social group or political opin-

ion. See INS v. Stevic, 467 U.S. 407, 413 (1984); Section 243

(h) of the Act. The “clear probability” standard requires a

showing that it is “more likely than not” that an alien

would be subject to prosecution. Stevic, Supra, F 429-30.

To qualify for asylum under Section 208 of the Act,

an alien must demonstrate that he or she is a “refugee”

within the meaning of Section 101 (a)(42)(A) of the Act.

Section 101 (a)(42)(A) defines a refugee as one who is

unwilling or unable to return to his or her homeland due

to a “well-founded fear” of persecution on account of any

of the same grounds as are enumerated in the withhold-

ing statute. Unlike withholding of deportation, an appli-

cant for asylum under Section 108 of the Act may be

denied this relief in the discretion of the Immigration

A34

Judge, as the Attorney General’s delegate, notwithstand-

ing the alien’s statutory eligibility. See Section 208 of the

Act.

In INS v. Cardoza-Fonseca, 107 S.C.1207 (1987), the

United States Supreme Court determined that “well-

founded fear” standard of asylum is not to be equated

with the more difficult to meet “clear probability” stan-

dard of withholding. Cardoza-Fonseca, Supra, F1219. The

Court did not define “well-founded fear” but did hint

that the two standards have “significantly different”

meanings. Cardoza-Fonseca, Supra, F1222 n 31. In response

to Cardoza-Fonseca, the Board of Immigration Appeals in

Matter of Mogharrabi, Int. Dec. 328 (BIA June 12, 1987), has

adopted the following general approach: “an applicant

for asylum has established a well-founded fear if he

shows that a reasonable person in his circumstances

would fear persecution.” Mogharrabi, Supra F9. The Board

added “a reasonable person may well fear persecution

even where it’s [sic] likelihood is significantly less than

clearly probable.” Mogharrabi, Supra F10. In practical

terms, the alien is required to establish that: (1) The alien

possesses a belief or characteristic the persecutor seeks to

overcome in others by means of punishment of some sort;

(2) The persecutor is already aware, or could become

aware, that the alien possesses this belief or characteris-

tic; (3) The persecutor has the capability of punishing the

alien; and (4) The persecutor has the inclination to punish

the alien. Mogharrabi, Supra F11 [citing Matter of Acosta,

Int. Dec. 2986 and 22 (BIA 1985)].

A35

Withholding of deportation

The respondent claims that he would be subject to

persecution in Nicaragua on account of his religious con-

victions. The respondent has testified that on several

occasions that he was identified in demonstrations, one

most significantly was when the Pope was in Nicaragua

celebrating the mass. He indicated that there were inci-

dents as well, subsequent, and more importantly, prior to

his departure and while his wife was still in Nicaragua, of

a mass, a mock mass, being conducted outside his home

and that a effigy of the priest of his local parish was hung

from a tree. Respondent has testified that his family

members, his children had departed the country prior to

his ultimate departure, that he feared further persecution

due to the act of having his children leave. The trial

attorney has pointed out that the respondent’s wife had

indicated that he wished to remain in the country because

it was tranquil and that she also testified further that one

of the sons actually completed military service in

Nicaragua prior to his departure from that country. The

record further reflects that the respondent has siblings

and other members of his family residing in Nicaragua

and that they have too, on occasion, completed their

military obligations. Respondent has testified here, in

length, as to his beliefs and his religious fervor. The Court

did note earlier in the proceedings, and cautioned the

respondent that his answers and replies to significantly

less important questions would and may influence the

Court in deciding whether or not the respondent was

truthful to the Court. The Court noted that on previous

occasions, the respondent was evasive and did not

answer the questions directly but circuitously and on

A36

occasions outright refused to answer the question. The

Court noted the demeanor of the respondent and more

particularly the lack of eye contact with the Court when

answering the questions presented to him by the Court.

The Court notes that the respondent was evasive in his

testimony here before the Court. The significant factor

that the Court must not overlook is item addendum of his

previous application. Question 1. What is the nationality

of your spouse? Nicaraguan. Question 2. What was your

former occupation-employment in your home country

and reason for leaving? “I was a businessman on my own

and I left the country because as I refused to cooperate

with the Sandinistas, | was accused of being a sympa-

thizer of the counter-revolution. As the pressures were

increasing due to my political posture, I had to leave the

country and sent my children before me out of the coun-

try.” Question no. 3. Why did you leave your home

country or country of nationality? “I left because the

government had clamped down on all the businesses that

are not integrated to them. There is no longer freedom to

make business. I left alone to speak out politically. I left

before the Sandinistas might had the opportunity to take

reprisals against me.” We have noted that the Board and

as well, the Immigration Judge, has been criticized by the

appellate levels for failure to make a credibility finding.

See Conjura-Flores v. INS, 78 Fed. 2nd 885 (9th Circuit

1985). The Court notes that the respondent's testimony

here, as characterized by the government, has not been

candid or credible. The Court notes that the respondent if

in fact his fears were as precise as he indicated and if in

fact this occurrence took place in his residence, outside

his residence, in the hanging of a parish priest in effigy,

A37

that this fact would not have been omitted from the |

Original application. And yet, it’s presented here in this

court subsequently, which casts some question upon the

credibility of the respondent’s initial story, the one that

was presented to the State Department, the one that was

important enough for them to prepare a statement or an

application to be forwarded to the State Department. One

does not expect that material matters of this import

would be omitted, unless of course, they were a figment

of one’s imagination, or, unfortunately on occasion, when

advocates prepare an respondents for their case, and the

Court does not criticize any advocate for doing so, sets

forth the prima facie elements required for one to estab-

lish his case. This is not uncommon and to think other-

wise would be absurd. By this the Court does not infer

that any conduct by the respondent’s attorney is

improper, or that in fact, subordination of perjury had

occurred. Far be it.

The Court notes however, the line between advocacy

and subjectiveness sometimes is crossed. The Court does

not find it in this case that it has been crossed by this

respondent’s attorney. However, the respondent himself

apparently has brought forward factors that were not

Presented to the State Department. They are factors that

are not insignificant, that they are material and the only

admission the Court must assume therefore by that is that

it did not in fact occur and that these are occurrences that

are now presented to the Court in order to influence the

Court to grant the respondent's applications. Regretfully,

the court finds that the Story is not credible as presented

to the Court for these reasons. For the testimony of the

A38

respondent’s wife in particular, finding that the respon-

dent had a tranquil existence in Nicaragua. The question

is, and the Court notes, that the respondent, when the

Somoza regime was in power, left the country with his

family to go to Costa Rica and apparently returned back

to Nicaragua after the Sandinistas came into power. The

Court notes, contrary to what the respondent. has indi-

cated, that visas are not required in Central America, that

merely to present .. . that presenting one’s cedula may

permit ingress and egress in the Central American coun-

tries. And the Court notes that there was no reason why

the respondent himself could not, if in fact he had a

plausible story of persecution, why he could not have

gone to one of the other Central American countries that

are not engaged in this conflict. The Court notes that

some of these countries are signatories to the United

Nations Protocol and Convention.

One must look at the actions of the respondent and

not at the words that he expresses before the Court. Acts

speak louder than words, and we find here a consorted

effort to remove his family from Nicaragua, but not for

political reasons and not for religious reasons, but for

economic reasons. And as the trial attorney has indicated,

economic reasons alone are not the basis that Congress

intended that we grant this relief. In Fonseca-Cardoza,

Supra, it is axiomatic that the Supreme Court has indi-

cated that the story had to be, in fact, believed and the

Court does not, frankly, believe the testimony of the

respondent. And that is (indiscernible) and therefore, for

the same reasons does not rely upon the testimony of the

respondent’s wife that the respondent’s attorney heavily

believes corroborates the testimony of the respondent.

A39

The Court notes that other members of the family are

present in the United States that were not presented to

the Court and one must think whether or not they were

not presented for the purpose that they were not to be

cross examined by the government or examined by the

Court and their omissions may be more significant than

not in this context.

The Court notes that documentary evidence does not

specifically relate to the respondent and the Court notes

that there were documents submitted to the Court prior

to the proceedings and that the Court will include them

into the record as Group Exhibit 9, the next exhibit.

Accordingly, having reviewed the documentary evidence,

the testimony evidence, the case laws cited, the Court

finds that the respondent’s request for withholding of

deportation will not be granted.

Discussion as to asylum

Having established that the respondent has not,

through credible statements, established clear probability

that he would be subject to persecution upon return to

Nicaragua, I also find for the same reasons that he has

not established a subjective fear of persecution and that

this fear, in this case, is not well-founded. Matter of Lam,

18 I&N Dec. 15 (BIA 1981).

Unlike withholding of deportation, which is manda-

tory, relief under Section 208 may be denied in the discre-

tion of the Immigration Judge. Matter of Salim, 18 I&N

Dec. 311 (BIA 1982). In the exercise of discretion requires

a balancing of favorable and unfavorable factors of

A40

record. Shahandeh-Pey v. INS, Slip op. no 8-2890 (7th Cir-

cuit October 28, 1987) citing Matter of Marin, 69 I&N Dec.

589 (BIA 1978). Factors which the Board of Immigration

appeals has deemed favorable to applicants for asylum

include: (1) Family ties within the United States; (2) Resi-

dence of long duration in the United States; (3) Evidence

of hardship to the alien and family if deportation occurs;

(4) Service in this country’s armed forces; (5) History of

employment; (6) Existence of property or business ties or

evidence of valuable service to the community; (7) Proof

of genuine rehabilitation if a criminal record exists and

(8) evidence attesting to an alien’s good character. Marin,

Supra, F586. Among the factors deemed adverse are the

nature and entry of the deportation grounds at issue, the

existence of a criminal record, evidence of bad character,

or any of the grounds listed at 8 C.F.R. Section 208.8(f)

(1987).

In Matter of Salim, 18 I&N Dec. 311 (BIA 1982), the

Board held that an alien who circumvents the orderly

process for obtaining refugee status in the United States

will be denied asylum as a matter of discretion unless

there are strong contrevalling [sic] equities to overcome

this serious adverse factor. Salim, Supra, F311; See Matter

of Gharadachi, Int. Dec. 3001 (BIA November 1, 1985).

However, in the recent case of Matter of Pula, Int. Dec.

3033 (BIA September 22, 1987), the Board withdrew from

the emphasis they had placed on the circumvention of

orderly refugee procedures in Salim. The Board con-

cluded that “[this [sic] factor is only one of a number of

factors which should be balanced in exercising discretion,

and the weight accorded to this factor may vary depend-

ing on the facts of a particular case.” Pula, Supra, F9.

A4l

The respondent in this case circumvented the orderly

Procedures for obtaining refugee status when, instead of

applying for refugee status in Mexico, entered the United

States on foot with the aid or assistance. The respondent

has testified that the means for his coming to the United

States were arranged by his family in the United States

and that his family had come to the United States prior to

himself and that they also entered the United States ille-

gally in a concerted effort so that we have here a family

who has circumvented the Immigration processes to

afford themselves an Opportunity to live in the United

States rather than going through the normal procedures

as required by others. By entering this country

unlawfully, the respondent was eventually able to apply

for asylum ahead of other individuals who are following

the orderly process for obtaining refugee status.

As a second negative factor of record, I find that the

respondent has been less than candid and completely

truthful with this Court. As stated above, the Court

believes that the testimony of the respondent here has

been artificed in order to afford the respondent an oppor-

tunity to remain in the United States. The fact that he did

not initially present it initially to the Court when he had

the opportunity augers to the veracity of the respondent.

The Court notes also that we’re in a nebulous area. That if

in fact Charismatics are being persecuted in Nicaragua,

that their numbers are extremely high. And the respon-

dent has wished to characterize himself as someone

important enough for the Nicaraguan government to

point him out and give him special treatment. Again, his

background, his education and so forth is not a signifi-

cant factor for the government to single him out for

A42

treatment of the sort that he wishes the Court to con-

clude. The Court notes that the respondent had a busi-

ness and a house and the question of whether or not

that’s still within his ownership is still questionable to the

Court here today. Except for his self-serving statements

that he sold it before coming to the United States.

Basically, the respondent’s whole testimony contradicts

what his lifestyle previously has set forth in the record in

that he was a businessman. There’s contradictions here

also, the fact that he was working at a country club that

was destroyed or damaged during the earthquakes in

Nicaragua and apparently he has a long business in

Nicaragua and that the economic deprivation that he

faced there does not distinguish him from others. The

Court notes that the conditions, economic conditions in

Nicaragua are severe. But this is not the basis in which

the Court was to grant asylum. In view of the fact that the

Court believes the respondent has misstated the facts in

order to obtain the benefit here, the Court finds his

testimony is not truthful or believed.

Third, corroboration is the utmost importance in

deciding withholding asylum and withholding of depor-

tation claims. Objective evidence of persecution should

be offered whenever possible. Carvajal-Munoz, Supra,

F579. In this case, the wife had testified but the children

have not come forward to testify and their failure to come

before the Court is significant. They would in fact tell the

Court whether, in closer examination, whether or not in

fact the parents are what they claim to be and whether or

not they have this fervor. One also questions when a man

has a child out of wedlock whether or not he has the

requisite religious fervor that this respondent wishes this

A43

Court to believe. There are inconsistencies and contradic-

tions in this regard as well in the earlier testimony that

the respondent had testified before the Court. That does

not ring true to the story that the respondent wishes the

Court to believe.

After careful consideration of the record, I conclude

that the respondent has not established sufficient equities

to outweigh the negative factors of the record. Accord-

ingly, his request for asylum will be denied for the rea-

sons as stated above. Shahandeh-Pey, Supra.

Discussion as to Voluntary Departure.

The respondent has applied for, in the alternative, for

voluntary departyre and the Court notes that it has found

that the respondent has, in effect, lied to the Court as

such and that the Court should not award people who lie

to the Court. But nevertheless, the Court understands the

posture and does not condone the conduct of the respon-

dent but can understand it. The Court notes that in Cen-

tral America, the respondent was able to live in other

countries such as Costa Rica and that the respondent has

a choice now. To leave voluntarily, which the Court will

grant him that relief to afford him an opportunity to go

wherever he wish. But if the respondent refuses to depart

voluntarily and make arrangements for his departure to

g0 to a friendly country, then the respondent will be

deported to his home country of Nicaragua. Again, the

choice is his since the Court will grant voluntary depar-

ture. It does so reluctantly however for it does not wish

to reward on the one hand, but the Court wishes to be

compassionate on the other.

A44

Considering the record in its entirety and seeing the

documentary evidence and the testimony evidence, the

favorable factors as well as the adverse factors, the case

law cited, the Court finds it is meet [sic] and proper to

enter the following orders.

ORDER

IT IS HEREBY ORDERED THAT the application for-

withholding of deportation under Section 243 (h) of the

Act be in the same is hereby denied.

IT Is FURTHER ORDERED THAT the respondent's

application for asylum under Section 208 of the Act be in

the same is hereby denied.

.___ |!T IS HEREBY ORDERED THAT the respondent is

granted voluntary departure without expense to the gov-

ernment on or before September 25th, 1988 or any exten-

sion beyond such time as may be granted by the District

Director and under such conditions as the District Direc-

tor shall direct.

IT Is FURTHER ORDERED THAT if respondent fails

to depart when and as required, the privilege of volun-

tary departure shall be withdrawn without further notice

or proceedings and the following order shall thereupon

become immediately effective.

EFFECTIVE. Respondent shall be deported frorn the

United States to Nicaragua on the charge contained in the

Order to Show Cause.

O. JOHN BRAHOS

Immigration Judge

A45

U.S. DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

Office of the Immigration Judge

IN DEPORTATION /

EXCEUSION/ RESCISSION

PROCEEDINGS

PURSUANT TO 8 U.S.C.

1101 et. seq. (The

Immigration & Nationality

Act)

File: A27948778

In the Matter of:

Augustin Rhoa-Zamora

Respondent/Appheant

eee ee ee ee ee ee

MEMORANDUM OF ORAL DECISION

This is a summary of the oral decision entered on 7-25-88

in Chicago, Illinois.

This memorandum is solely for the convenience of the

parties. If the decision is appealed, or the proceedings

should be reopened, the oral decision will be transcribed

and will become the official decision in these proceed-

ings.

The Respondent was ordered deported to

The Applicant has been ordered excluded and

deported.

The Respondent was granted voluntary departure on

or before 9-25-88 with an alternate order of deporta-

tion to Nicaragua.

The Respondent was granted /denied relief under Sec-

tion

The application for Suspension of Deportation under

Section 244(a) of the Act was granted/denied /with-

drawn.

| ><

|><

A46

The application for adjustment of status under Section

245 of the Act was granted/denied/withdrawn. It

was ordered that the respondent be issued all appro-

priate documents necessary to give effect to this

order.

The application for Asylum/withholding of Deporta-

tion under Section 208(a)/243(h) of the Act was

granted /denied /withdrawn:-

The proceedings were terminated.

The Applicant is admitted as a nonimmigrant

until

On condition that a maintenance of status and depar-

ture bond in the amount of be posted.

The Applicant’s request for leave to withdraw the

application for admission to the United States was

granted.

The Applicant/Respondent was granted a waiver

under Section of the Act and the proceedings

were terminated.

The Respondent’s status was rescinded under Section

246 of the Act.

The hearing was held in absentia.

This decision is final unless an appeal is taken to the

Board of Immigration Appeals by returning to this

office on or before 8-4-88 three copies of Form I-290A,

Notice of Appeal, properly executed, together with a

fee of one hundred ten dollars ($110.00). The INS/

A47

Respondent/Appheant-has/have weived/reserved

appeal.

ID #0090V /s/ Illegible

IMMIGRATION JUDGE

A48

File: A27 948 778 - Chicago Date: Sep 23 1992

In re: AGUSTIN RHOA-ZAMORA

IN DEPORTATION PROCEEDINGS

MOTION

ON BEHALF OF

RESPONDENT: Elpidio R. Villarreal, Esquire

Jill A. Thompson, Esquire

Sonnenschein Nath & Rosenthal

8000 Sears Tower

Chicago, Illinois 60606

CHARGE:

Order: Sec. 241(a)(2), I&N Act [8 U.S.C. § 1251(a)(2)]

— Entered without inspection

APPLICATION: Reconsideration

In a motion filed on April 25, 1991, the respondent

has requested the Board to reconsider its January 31,

1991, decision denying the respondent’s appeal from the

July 25, 1988, decision of an immigration judge. Based on

the following, the motion to reconsider will be denied.

In his decision, the immigration judge found that the

respondent had failed to establish either a well-founded

fear of persecution or a clear probability of persecution in

returning to Nicaragua. In our decision, the Board took

administrative notice of the change in government in

Nicaragua, and further found that even if the respon-

dent’s experiences with Sandinista-led mobs could be

considered persecutory in nature, the respondent did not

merit a grant of asylum in the United States in the exer-

cise of administrative discretion. Finally, the Board found

no clear probability of persecution to the respondent

A49

upon his return to his native country, thus failing to

establish eligibility for withholding of deportation from

the United States.

In essence, in his motion the respondent avers that

the Board erred in taking administrative notice of the

changed conditions in Nicaragua. In this regard, the

respondent has submitted voluminous documentary evi-

dence to support his contention that the Sandinista party

exerts de facto control over the country, little more than

including its control of the military and law enforcement

forces within Nicaragua. The respondent has also pre-

sented an affidavit from an expert on Nicaragua, past and

present. This expert also confirms that the Chamorro

government is under the control of the Sandinistas. He

opines that the respondent’s fears of returning to

Nicaragua are real and justified.

After reviewing all of the evidence presented by the

respondent in support of his motion, we will deny the

respondent’s motion. The respondent has not presented

any persuasive evidence to indicate that the Board’s prior

decision in this case was erroneous, or that the issues

addressed therein should be reexamined in light of the

evidence presented in his motion. See Matter of Cerna,

Interim Decision 3161 (BIA 1991). At the time the Board

rendered its decision, general elections in Nicaragua had

taken place less than one year before, with the Sandinista

party voted out of power by the people of that country.

While subsequent evidence has shown that the Chamorro

government has not been able to curb all of the civil

unrest, including both urban and rural instances of indis-

criminate killing, it has been able to restore, to a large

extent, respect for human rights. In fact, the Department

A50

of State’s Country Reports on Human Rights Practices for

1990, submitted into evidence by the respondent, con-

firms that Nicaragua’s record of human rights has dra-

matically improved since the 1990 elections in spite of the

fact that the Chamorro government entered into an agree-

ment that effectively placed the military and police forces

under the control of former high ranking Sandinista offi-

cials.

Moreover, the affidavit by the respondent’s expert

witness suggests that the Board did not recognize the de

facto control of the Chamorro government by the Sand-

inistas and that violence is still present in the rural areas

where the respondent will reside. We do not find it

appropriate, however, to determine in this particular case

whether or not, or to what degree, the Sandinistas exert

control over the present government in Nicaragua. This

issue is largely irrelevant to the present case since the

overall conditions in Nicaragua are not the issue here. We

would point out that the respondent primarily feared

returning to Nicaragua because of his experiences as a

Charismatic Catholic who was harassed, and who was

beaten on one occasion, by Sandinista-led mobs. Our

review of the present evidence introduced by the respon-

dent does noi show any indication that such mobs are

still present in Nicaragua. In fact, the respondent's evi-

dence indicates that between 80-90% of the population of

Nicaragua is catholic, as apparently has been the case for

decades, including the years during the Sandinista-led

government. And while this Board has had numerous

occasions to review cases from Nicaraguan nationals

~ alleging religious persecution, the overwhelming major-

ity of these cases involved harassment activities by

A51

Sandinista-led organizations, which saw the Catholic

Church, a highly organized organization in its own right,

as perhaps the major obstacle to consolidation over

Nicaraguan society.

Simply stated, whatever the present situation in

Nicaragua, the respondent has presented no evidence

that he stands any reasonable likelihood of being singled

out for persecution on account of his religious beliefs. In

fact, the respondent’s expert witness does not state that

Sandinista mobs are currently operating in that country, a

country the evidence suggests is undergoing a deepening

economic crisis. Nor does this witness state that Charis-

matic Catholics, or any other religion in Nicaragua, is

experiencing any particularized hardships. Moreover, to

the extent that the respondent fears returning to his

native country based on the overall conditions there,

particularly in the rural areas, such generalized fears will

not afford an alien any of the protections set forth in the

Immigration and Nationality Act. See generally Matter of

Exame, 18 1&N Dec. 303, 305 (BIA 1982). For these reasons

we find that the respondent has failed to sustain his

burden for the Board to grant his motion by reconsider-

ing its prior decision in this case. 8 C.F.R. §§ 3.2, 3.8

(1992).

Accordingly, the respondent’s motion to reconsider

will be denied. .

CRDER: The motion to reconsider is denied.

/s/ James P. Morris

FOR THE BOARD

A52

944 F.2d 905 (Table)

Unpublished Disposition

(Cite as: 944 F.2d 905)

NOTICE: Sixth Circuit Local Rule 24(c) states that

citation of unpublished dispositions is disfavored except

for establishing res judicata, estoppel, or the law of the

case and requires service of copies of cited unpublished

dispositions of the Sixth Circuit.

NOTE: THIS OPINION WILL NOT BE PUBLISHED

IN A PRINTED VOLUME. THE DECISION WILL

APPEAR IN TABLES PUBLISHED PERIODICALLY.

Daniel Felix ULLOA, Petitioner,

Vv.

IMMIGRATION AND

NATURALIZATION SERVICE,

Respondent.

No. 91-3028.

United States Court of Appeals, Sixth Circuit.

Sept. 17, 1991.

On Petition for Review of an, Order of the Board of

Immigration Appeals, No. A28 704 546.

BIA

REMANDED AND ORDER STAYED.

(The decision of the Court is referenced in a “Table of

Decisions Without Reported Opinions” appearing in the

Federal Reporter.)

A53

(THE FOLLOWING UNREPORTED DECISION IS

REPRODUCED FOR THE CONVENIENCE OF

RESEARCHERS. ADD THE NOTATION: (text in WEST-

LAW) TO ANY CITATION OF THIS DECISION.)

Before DAVID A. NELSON and SUHRHEINRICH,

Circuit Judges, and HARVEY‘, Senior District Judge.

PER CURIAM.

Petitioner Daniel Ulloa, a citizen of Nicaragua, peti-

tions 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.

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 visi-

tor’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. s 1251(a)(2).

Petitioner conceded deportability and applied for asylum

or withholding of deportation based upon his past expe-

riences with and fear of future persecution from the

Sandinista government of Nicaragua.

* The Honorable James Harvey, United States Senior District

Judge for the Eastern District of Michigan, sitting by designa-

tion. :

A54

On December 11, 1989 the Immigration Judge (“IJ”)

found petitioner to be deportable as charged, but granted

his application for asyium and withholding of deporta-

tion. The INS appealed to the Board. On December 11,

1990 the Board affirmed the IJ’s determination of depor-

tability, but reversed the grant of asylum and withhold-

ing of deportation. The Board first noted that the IJ had

not found that petitioner was the subject of “past per-

secution” in Nicaragua. The Board also independently

concluded that petitioner had failed to show he was the

victim of “past persecution.” The Board then took admin-

istrative 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 govern-

ment. 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 govern-

ment 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.

Il.

Petitioner contends that the Board improperly took

administrative notice of the change in Nicaragua’s gov-

ernment without affording him notice and an opportunity

to introduce evidence that the Sandinistas still control

much of the government, including the military.

A55

We agree with the recent decision in Kaczmarczyk 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 Kaczmarczyk, where the

Board’s administratively noticed facts simply supple-

mented the II’s factual findings and conclusions, the

Board here reversed the IJ’s decision based on the admin-

istratively 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 pioceed-

ings. See Landon v. Plasencia, 459 US. 21, 32-33 (1982);

Johnson v. 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, s 15:6 at 195-96 (2d ed. 1980)). “Such fairness

concerns appear to have motivated the drafters of Federal

Rule of Evidence 201(e), which provides litigants in fed-

eral court just such an opportunity to 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 officially noticed facts that bear upon the

Board’s decision-making process. While our scope of

review over deportation Proceedings is narrow, “it

A56

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

evidence 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 meaning-

ful opportunity to present rebuttal evidence.! Conse-

quently, we REMAND this case so that petitioner may

offer rebuttal evidence regarding the change of govern-

ments in Nicaragua and STAY the order of deportation

until such evidence has been considered by the Board.

1 The INS contends that petitioner may present rebuttal

evidence in a motion to reopen his case pursuant to 8 C.F.R. s

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. s

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.

C.A.6,1991.

Ulloa v. I.N.S.

944 F.2d 905 (Table), Unpublished Disposition

END OF DOCUMENT

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.