Burger v. Gonzales, No. 03-40395 (2d Cir. 2007)

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03-40395-ag, 05-1058-ag Burger v. Gonzales 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 -------- 4 August Term, 2006 5 6 (Argued: June 11, 2007 Decided: August 17, 2007) 7 8 9 10 11 12 13 Docket Nos. 03-40395-ag(L), 05-1058-ag(CON) -----------------------------------------------------------X SANJA BURGER and MILICA SAVIC, minor child A74-850-657, Petitioners, 14 15 16 17 18 - v. ALBERTO R. GONZALES,* ATTORNEY GENERAL, 19 20 Respondent. 21 22 -----------------------------------------------------------X 23 24 25 Before: * McLAUGHLIN, CALABRESI, SOTOMAYOR, Circuit Judges. Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Alberto R. Gonzales is automatically substituted for former Attorney General John Ashcroft as respondent in this case. 1 Petition for review of an order of the Board of Immigration 2 Appeals revoking an Immigration Judge s ( IJ ) grant of asylum to 3 Sanja Burger and Milica Savic. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Petition for review GRANTED. MICHAEL P. DIRAIMONDO, DiRaimondo & Masi LLP, Melville, N.Y. (Marialaina L. Masi, Mary Elizabeth Delli-Pizzi, Stacy A. Huber, on the brief), for Petitioners. SCOTT REMPELL, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. (Anne M. Hayes; Jennifer May-Parker, on the brief), for Respondent. -----------------------------------------------------------X McLAUGHLIN, Circuit Judge: This Court recently held that if the Board of Immigration 22 Appeals ( BIA ) intends to take administrative notice of 23 potentially dispositive facts, it must warn a petitioner and 24 provide the petitioner with an opportunity to respond before it 25 denies a motion to reopen on the basis of those facts. 26 v. U.S. Dep t of Justice, 490 F.3d 196, 201 (2d Cir. 2007)(per 27 curiam). 28 whether due process requires this same result before the BIA enters 29 a final order of removal on the basis of administratively noticed 30 facts. 31 32 See Chhetry The Court declined to resolve the related question We now address this question and hold that it does. BACKGROUND In June 1996, petitioners Sanja Burger and her daughter, 2 1 Milica Savic, entered the U.S. as non-immigrant visitors and 2 remained without authorization. 3 later, Burger, a native of the former Yugoslavia and a citizen of 4 Serbia-Montenegro, conceded removability but sought asylum, 5 withholding of removal, and relief under the Convention Against 6 Torture ( CAT ). 7 At her removal hearing four years Burger testified to the following facts. From 1989 to 1991, Burger was a widely-recognized stage and 8 screen actress in the former Yugoslavia. 9 Burger was regularly contacted by people whom then-President Because of her celebrity, 10 Slobodan Milosevic had placed in prominent positions in theater and 11 television. 12 for Milosevic by attending various political events. 13 refused to do so. 14 These people pressured her to show support publicly Burger In June 1991, Burger was contacted by a man named Arkan, who 15 was introduced to her as a businessman. Burger revealed her strong 16 anti-Milosevic political views to Arkan. To her chagrin, she later 17 learned that Arkan was a major organized crime figure and was 18 working for Milosevic while maintaining a paramilitary group that 19 had committed genocidal acts in Croatia, Bosnia, and Kosovo. 20 Burger testified that Arkan had recently been murdered in the 21 middle of the day in a Belgrade hotel lobby. 22 In October 1991, Burger fled Yugoslavia for Munich, where she 23 remained for five years before coming to the U.S. 24 that if she returned to Yugoslavia, she would be targeted as both a 25 spy and a traitor, and because of her status as a famous actress 3 Burger insisted 1 2 would be singled out and forced to support Milosevic. In an oral decision, an Immigration Judge ( IJ ) granted 3 Burger s application for asylum, expressly finding that she had 4 demonstrated a well-founded fear of persecution were she to return 5 to Serbia-Montenegro. 6 requests for withholding of removal and CAT relief. 7 The IJ saw no need to address Burger s In July 2003, the BIA reversed the IJ s grant of asylum and 8 ordered Burger removed. 9 changed country conditions, to wit, that following the IJ s The BIA took administrative notice of 10 decision, Milosevic was removed from power and faced trial for 11 crimes against humanity in the International Criminal Tribunal for 12 the former Yugoslavia in the Hague. 13 the Milosevic government no longer existed and Burger s claims 14 rested on her anti-Milosevic views, Burger no longer had a well- 15 founded fear of persecution. 16 its intent to take administrative notice and it provided no 17 opportunity to rebut the BIA s conclusion before issuing its 18 decision. 19 and CAT claims. 20 The BIA concluded that because The BIA did not give Burger notice of The BIA did not address Burger s withholding of removal Three months later, Burger moved to reopen. She furnished an 21 affidavit from an expert in 20th century Western Balkan affairs and 22 professor of history. 23 was currently a semi-mafioso state with power shared among the 24 old Milosevic structure, the new government structure, and 25 organized crime. The affidavit stated that Serbia-Montenegro 4 1 The BIA denied Burger s motion to reopen. It found that while 2 political and economic problems do exist in Serbia and 3 Montenegro, Burger had failed to establish that she had a well- 4 founded fear of persecution if she went back to Serbia-Montenegro. 5 Burger now petitions this Court for review of the BIA s 6 decision. 7 For the reasons that follow, we grant the petition for review, 8 vacate the BIA s decision to revoke Burger s asylum grant, and 9 remand to the BIA. 10 DISCUSSION 11 Burger argues: (1) that the BIA s taking of administrative 12 notice constituted improper fact-finding; and (2) that the BIA 13 denied her due process by failing to warn her of its intention to 14 take administrative notice. 15 the second requires remand. 16 A. 17 18 19 While the first argument is meritless, Fact-finding We consider questions of law de novo. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003). The BIA generally may not engage in fact-finding in the course 20 of deciding appeals. 21 [i]t is well-settled that the BIA has the authority to take 22 administrative notice of current events bearing on an [asylum] 23 applicant s well-founded fear of persecution. 24 277 F.3d 158, 163 n.4 (2d Cir. 2002). 25 common law counterpart of administrative notice, properly noticed See 8 C.F.R. § 1003.1(d)(3)(iv). 5 However, Yang v. McElroy, As with judicial notice, the 1 current events must be commonly known. 2 1003.1(d)(3)(iv); cf. Fed. R. Evid. 201(b) ( A judicially noticed 3 fact must be one not subject to reasonable dispute in that it is 4 either (1) generally known . . . or (2) capable of accurate and 5 ready determination by resort to sources whose accuracy cannot 6 reasonably be questioned. ). 7 See 8 C.F.R. § Here, the ouster and subsequent trial of Milosevic were 8 commonly known facts whose accuracy Burger herself has not 9 disputed. These facts fall squarely within the definition of 10 current events bearing on an [asylum] applicant s well-founded 11 fear of persecution. 12 did not engage in improper fact-finding. 13 B. 14 Yang, 277 F.3d at 163 n.4. Thus, the BIA Due Process Aliens, of course, are entitled to due process. Zadvydas v. 15 Davis, 533 U.S. 678, 693 (2001). 16 opportunity to be heard at a meaningful time and in a meaningful 17 manner, Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting 18 Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 19 They must be afforded the To establish a violation of due process, an alien must show 20 that she was denied a full and fair opportunity to present her 21 claims or that the IJ or BIA otherwise deprived her of 22 fundamental fairness. 23 F.3d 144, 155 (2d Cir. 2006), reh g granted, vacated on other 24 grounds by Xiao Ji Chen v. U.S. Dep t of Justice, 471 F.3d 315 (2d 25 Cir. 2006). Xiao Ji Chen v. U.S. Dep t of Justice, 434 Critically, an asylum applicant must be given notice 6 1 of, and an effective chance to respond to, potentially dispositive, 2 administratively noticed facts. 3 Chhetry, 490 F.3d at 200. The Government does not dispute that the noticed facts were 4 dispositive of Burger s claim, and it concedes that the BIA failed 5 to warn Burger that it would take notice. 6 contends that Burger s motion to reopen gave her a full and fair 7 opportunity to present her claim and thus cured the lack of advance 8 notice. 9 Rather, the Government The circuits are divided. The Fifth, Seventh, and D.C. Circuits have held that a motion 10 to reopen suffices to satisfy due process in this context. 11 Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C. Cir. 1992) ( The 12 availability of the petition to reopen secures [petitioner s] due 13 process right to a meaningful hearing. ); Rivera-Cruz v. INS, 948 14 F.2d 962, 968 (5th Cir. 1991) (same); Kaczmarczyk v. INS, 933 F.2d 15 588, 597 (7th Cir. 1991) (same). See 16 The Ninth and Tenth Circuits, however, have held that due 17 process requires that the BIA provide applicants with notice and an 18 opportunity to be heard before the BIA determines on the basis of 19 administratively noticed facts that a petitioner lacks a well- 20 founded fear of persecution. 21 (9th Cir. 1994) (advance notice and opportunity to respond required 22 when BIA determines, on the basis of administrative notice, whether 23 an election has vitiated any previously well-founded fear of 24 persecution ); de la Llana-Castellon v. INS, 16 F.3d 1093, 1100 25 (10th Cir. 1994) (availability of motion to reopen did not satisfy See Getachew v. INS, 25 F.3d 841, 846 7 1 due process where BIA reversed IJ s finding that petitioners had a 2 well-founded fear of persecution based solely on administratively 3 noticed facts). 4 As the Ninth and Tenth Circuits have noted, the reopening 5 procedure has serious limitations as a guaranty of due process. 6 See, e.g., de la Llana-Castellon, 16 F.3d at 1100; Castillo- 7 Villagra v. INS, 972 F.2d 1017, 1029-30 (9th Cir. 1992). 8 decision to grant a motion to reopen is purely discretionary. 9 8 C.F.R. § 1003.2(a). The BIA s Moreover, because the filing of a motion to 10 reopen does not automatically stay the execution of an order of 11 removal, id. § 1003.2(f), the applicant s due process rights depend 12 entirely on the BIA s good faith. 13 n.9 ( We presume that when an asylum applicant uses a good faith 14 motion to reopen to dispute officially noticed facts, the Board 15 will exercise its discretion to stay the execution of its decision 16 until it has had an opportunity to rule on the applicant s 17 motion. ). 18 Cf. Kaczmarczyk, 933 F.2d at 597 These deficiencies become more acute in cases where 19 administratively noticed facts are the sole basis for the BIA s 20 reversal of an IJ s grant of asylum. 21 F.3d at 1099 ( Because the administratively noticed facts 22 constituted the sole evidence upon which the BIA relied to 23 establish changed circumstances, advance notice and an opportunity 24 to be heard on the significance of the political changes in 25 Nicaragua was all the more crucial. ). 8 See de la Llana-Castellon, 16 1 Here, administratively noticed facts constituted the sole 2 basis of the BIA s determination that Burger no longer harbored a 3 well-founded fear of persecution. 4 foursquare on an assessment of conditions in the post-Milosevic 5 world. 6 motion to reopen protected her right to be heard at a meaningful 7 time and in a meaningful manner. 8 while the dismantling of the Milosevic regime may have been a 9 commonly known current event, the BIA erred by failing to give 10 Burger advance notice of its intention to consider this extra- 11 record fact. 12 opportunity to rebut this fact s significance before issuing its 13 decision. 14 asylum applicant s well-founded fear of persecution, but in many 15 cases lingering elements of a despot s regime may still pose a 16 threat to an applicant s life and safety. 17 846 (observing that individualized consideration of the relevance 18 of administratively noticed facts is required to determine whether 19 a particular group remains in power after an election, and whether 20 the election has vitiated any previously well-founded fear of 21 persecution ). 22 that remnants of the Milosevic regime were still in power and 23 threatened to persecute her were she returned to Serbia-Montenegro. 24 The BIA s failure to consider this evidence was error. 25 The BIA s conclusion rested Under these circumstances, it cannot be said that Burger s Mathews, 424 U.S. at 333. Thus, Moreover, the BIA erred in depriving Burger of the The removal of a persecuting despot might vitiate an See Getachew, 25 F.3d at In this case, Burger presented to the BIA evidence Because we find that the BIA erred in these respects, we need 9 1 not decide whether the BIA abused its discretion in denying 2 Burger s motion to reopen. 3 Finally, the BIA did not consider Burger s withholding of 4 removal or CAT claims because the IJ never ruled on these claims in 5 the first instance. 6 claim will depend on her asylum claim, as an applicant who fails to 7 qualify for asylum necessarily fails to qualify for withholding of 8 removal. 9 2006). On remand, the fate of Burger s withholding See Hoxhallari v. Gonzales, 468 F.3d 179, 184 (2d Cir. However, because asylum and CAT claims warrant[] 10 individualized treatment, Ramsameachire v. Ashcroft, 357 F.3d 169, 11 186 (2d Cir. 2004) (internal quotation marks omitted), Burger s CAT 12 claim will require separate consideration below. 13 14 CONCLUSION For the foregoing reasons, we GRANT the petition for review, 15 VACATE the BIA s reversal of the IJ s decision, and REMAND the case 16 for further proceedings consistent with this opinion, including 17 further factfinding before the IJ if appropriate. 18 motion for a stay of removal is DENIED as moot. 10 Burger s pending

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