Mario Jose Gomez-mendieta, Petitioner, v. Immigration and Naturalization Service, Respondent, 985 F.2d 572 (9th Cir. 1993)

MEMORANDUM^** 

Petitioner Mario Jose Gomez-Mendieta seeks review of the Board of Immigration Appeals ("BIA") dismissal of his applications for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1182(c), and for asylum and withholding of deportation pursuant to sections 208(a) and 243(h) of the Act, 8 U.S.C. §§ 1158(a) and 1253(h). We reverse and remand.

* Petitioner first claims that the BIA abused its discretion in denying his § 212(c) waiver application. BIA decisions denying discretionary relief from deportation are reviewed under the abuse of discretion standard. Vargas v. U.S. Dep't of Immigration, 831 F.2d 906, 908 (9th Cir. 1987). We set aside a BIA decision to deny such relief only if the Board fails to support its conclusions with a reasoned explanation based upon legitimate concerns. Id.

The BIA based its decision to deny relief on two legitimate concerns: Gomez-Mendieta's criminal record and his failure to demonstrate rehabilitation from involvement with controlled substances. These are legitimate concerns, and the BIA's decision was considered and reasoned. There was no abuse of discretion.

II

In reviewing petitioner's request for asylum, the BIA took administrative notice of the change of government in Nicaragua and concluded that the petitioner therefore had no well-founded fear of persecution from the Sandinistas. We recently held that the BIA may not take administrative notice on this issue without giving petitioners adequate warning and an opportunity to be heard. Castillo-Villagra v. I.N.S., 972 F.2d 1017, 1025-31 (9th Cir. 1992). We must reach the same result here.

III

Petitioner finally claims that he was denied due process at the hearing before the Immigration Judge on July 19, 1989 because he was not represented by counsel at the hearing, and the Immigration Judge did not continue the proceedings to give petitioner a chance to appear with counsel.

Petitioner did not raise this issue before the BIA, and it is well-established that "if a petitioner wishes to preserve an issue for appeal, he must first raise it in the proper administrative forum." Tejeda-Mata v. I.N.S., 626 F.2d 721, 726 (9th Cir. 1980), cert. denied, 456 U.S. 994 (1982). Although constitutional claims are normally exempt from this rule, due process claims that involve correctable "procedural errors" are not. Vargas, 831 F.2d at 908. Petitioner has not shown that the Immigration Judge's decision was not a correctable procedural error. Because we are remanding this case to the BIA, petitioner may present his due process claim to the Board if he so desires, so that the BIA may make the necessary factual findings regarding whether the violation, if any, prejudiced petitioner's case. See Nicholas v. I.N.S., 590 F.2d 802, 809 (9th Cir. 1979) ("The alien has been denied the full and fair hearing which due process provides only if the thing complained of causes the alien to suffer some prejudice.").

The petition for review is GRANTED; the order for deportation is VACATED; cause REMANDED.