Thank You For Submiting Feedback!
The United States Court of Appeals for the Ninth Circuit has held that notice of intent to take administrative notice of events occurring after the hearing is all that is required if extra-record facts and questions are legislative, indisputable, and general. On the other hand, more controversial or individualized facts require both notice to the alien that administrative notice will be taken and an opportunity to rebut the extra-record facts or to show cause why administrative notice should not be taken of those facts. The fundamental requisite of due process of law is the opportunity to be heard and this right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to acquiesce or contest. An Immigration Judge (IJ) may take administrative notice of a change of government, but where it is plausible that the change does not eliminate the danger to the individual petitioner, the IJ must give the petitioner an opportunity to be heard on the question of the individual impact.
Based primarily on a fear of future religious persecution in her native country of Romania, the petitioner, Violeta Circu, applied for asylum and other relief here in the United States. The immigration judge ("IJ") held a hearing on the matter, where the U.S. State Department's 1997 Romania Country Report on Human Rights Practices ("1997 Report") and 1997 Profile of Asylum Claims and Country Conditions for Romania were admitted into evidence. Two years after the hearing, however, the IJ, relying on a 1999 Country Report on Human Rights Practices ("1999 Report") published by the State Department nineteen months after the matter was argued and submitted, denied Circu's petition. Circu did not receive notice that the IJ intended to take administrative notice of the 1999 Report and was not afforded an opportunity to respond to its contents before the IJ issued her decision. The Board of Immigration Appeals ("BIA") summarily denied Circu's appeal, in which she requested an opportunity to counter the 1999 Report. She then sought review, citing the court’s decision in Getachew v. INS, which held that due process requires "both notice to the applicant that administrative notice will be taken and an opportunity to rebut extra-record facts or to show cause why administrative notice should not be taken of those facts." 25 F.3d 841, 846 (9th Cir. 1994)
Did the BIA err when it did not correct the IJ's procedural due process violation?
The IJ's finding that Circu had suffered past persecution entitled Circu to the legal presumption of a well-founded fear of persecution. However, the IJ determined that Circu’s presumption of a well-founded fear had been rebutted by the report that stated that open worship was now possible for Pentecostals and other unregistered sects. Because the report vitiated any previously well-founded fear of persecution, the report was controversial. Based on that determination, Circu was entitled to both notice of the IJ's intent to take administrative notice of the report and an opportunity to respond to that report. The BIA erred when it did not correct the IJ's procedural due process violation.