# Petition for Writ of Certiorari — Rhoa-Zamora v. Immigration & Naturalization Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2058%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 508 U.S. 906 ## Text 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 I IT]. iV 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 22 | ' 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 vi 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 © UBAC. © VIGBMIAED: on cas cece icccsenasveseses 7 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 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. ei 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 ee — 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, ee 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. I. Ulloa entered the United States on March 10, 1985, at Miami, Florida, as a non-immigrant visitor. He remained in the United States after the expiration date of his 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2058%3A1. Public record. Not legal advice.