Hector Silva-cabrera, Petitioner, v. Immigration and Naturalization Service, Respondent, 985 F.2d 574 (9th Cir. 1993)
Annotate this CasePetition to Review a Decision of the Immigration and Naturalization Service, INS No. A26-765-739.
BIA
PETITION GRANTED.
Before ALDISERT,** GOODWIN and FLETCHER, Circuit Judges.
MEMORANDUM***
Hector Silva-Cabrera ("Silva-Cabrera") applied for asylum in the United States or, alternatively, for withholding of deportation, contending that he would be persecuted if returned to Nicaragua. See 8 U.S.C. §§ 1158(a) & 1253(h). The immigration judge denied Silva-Cabrera's request. On appeal, the Board of Immigration Appeals ("BIA") took administrative notice of the fact that the Sandinistas had been voted out of power, reasoning that Silva-Cabrera no longer had a well-founded fear of persecution in Nicaragua. The BIA denied his application based solely on the notice taken, and it ordered him deported.
We have jurisdiction to hear this matter under 8 U.S.C. § 1105a(a) (1). Because we find that the BIA improperly took administrative notice of the change in government in Nicaragua without providing Silva-Cabrera an opportunity to show cause why notice should not be taken or to supplement the record by further evidence, we grant the petition for review.
In Castillo-Villagra, we held that the BIA "erred in taking notice of the change of government without providing the petitioners an opportunity to rebut the noticed facts." Id. at 1029. We explicitly rejected the argument that due process requirements are satisfied by the petitioner's right, under 8 C.F.R. §§ 3.2 & 3.8, to move the BIA to reopen the proceedings and to present evidence to rebut the noticed facts. Id. Here, as in Castillo-Villagra, Silva-Cabrera did not receive warning that administrative notice would be taken, nor was he provided with an opportunity to contest or rebut by further evidence the facts of which administrative notice was taken. Id. at 1021.1
The petition for review is therefore GRANTED.
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4
Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for the Third Circuit, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
Silva-Cabrera suggests that the form of the BIA opinion violated due process. Although " [t]here are no steadfast rules regarding what constitutes an adequate Board decision," a BIA decision must include "statements that evidence an individualized review of the petitioner's contentions and circumstances." Castillo, 951 F.2d at 1121 (emphasis added). Because we reject the BIA's use of administrative notice, and notice was the ground for the decision, we need not reach the issue of whether the BIA decision satisfies the Castillo standard
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