Acewicz v. U.S. I.N.S.
| Decision Date | 04 January 1993 |
| Docket Number | 91-70402,91-70469,91-70323,91-70534 and 91-70591,91-70467,Nos. 91-70257,91-70379,s. 91-70257 |
| Citation | 984 F.2d 1056 |
| Parties | Jan ACEWICZ, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Henryk BRELYK, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Albin CZYZ, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Tadeusz NOGACKI, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Andrzej ANDRZELACHAJ, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Stanislaw RUSIECKI, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Henryk WROBLEWSKI, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Pawel WOSZEWSKI, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Maryann Di Re, Brink & Todd, Seattle, WA, for petitioners Acewicz and Wroblewski.
Deborah K. Burlinski, Anchorage, AK, for petitioners Brelyk, Czyz, Nogacki, Andrzelachaj, Rusiecki, and Woszewski.
Charles E. Hamilton, III, Alison R. Drucker, and Allen W. Hausman, U.S. Dept. of Justice, Washington, DC, for respondent.
Petitions for Review of Decisions of the Board of Immigration Appeals.
Before: WRIGHT, FARRIS and KLEINFELD, Circuit Judges.
Each of these eight cases involves a Polish alien who seeks review of a decision of the Board of Immigration Appeals. In each case, the BIA affirmed the immigration judge's denial of the alien's application for asylum, under 8 U.S.C. § 1158(a), and for withholding of deportation, under 8 U.S.C. § 1253(h). The BIA entered final orders of deportation against each petitioner. We have jurisdiction to review those deportation orders pursuant to section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a. We deny the petitions.
The petitioners are natives and citizens of Poland who either entered the United States without inspection or remained in the United States beyond the time permitted by their visas. Each petitioner conceded his deportability at a hearing before an immigration judge in 1990, and each applied for asylum and withholding of deportation. The applications were based on each petitioner's belief that he would be persecuted upon his return to Poland due to his involvement with the Solidarity union movement during the 1980's, or in the case of two petitioners, a faction of Solidarity known as "Fighting Solidarity." Several applicants also asserted that asylum should be granted on the basis of past persecution. The applications were denied. The denials were affirmed by the Board of Immigration Appeals, in separate written opinions, in 1991.
Several petitioners challenge the findings of the immigration judges who conducted their deportation hearings. For example, Czyz argues that the immigration judge improperly based his decision on evidence outside the record. We are limited, however, to reviewing the decision of the Board of Immigration Appeals. Castillo-Villagra v. INS, 972 F.2d 1017, 1023 (9th Cir.1992); Castillo v. INS, 951 F.2d 1117, 1120 (9th Cir.1991). Were we to ignore the limited scope of our review, and instead review directly the decision of an immigration judge, the petitioners would be deprived of the BIA's de novo review. Castillo, 951 F.2d at 1121.
In dismissing petitioner Nogacki's appeal, the BIA stated:
The Board takes administrative notice that the Communists no longer exclusively control Poland. Effective September 10, 1989, the Solidarity organization formally entered into the coalition government which is presently governing Poland. Further, on December 9, 1990, Lech Walesa, former chairman of Solidarity, was elected president of Poland with 74.7% of the vote in the first democratic presidential election in more than 60 years, and the country is predicted to emerge a stronger democracy. On December 22, 1990, Lech Walesa was sworn in as President of Poland. Next year parliamentary elections are projected to mark a further democratizing step in Poland's rapid governmental and economic changes, elections which will replace a legislature now configured to assure the communists a majority.
Given that Solidarity is now part of the coalition governing Poland, we find there no longer exists any basis for the respondent's claim that he has a well-founded fear of persecution by the Polish government due to his union-related activities.
Cert.Admin.Rec. 28-463-579 at 4-5. The BIA took virtually the same administrative notice in all eight cases. This appeal turns on whether it erred in taking notice of these facts.
The BIA, in its discretion, may: (1) warn of its intention to take administrative notice, (2) take administrative notice, and (3) allow rebuttal evidence against the proposition of which notice is taken. Castillo-Villagra, 972 F.2d at 1028. We review for an abuse of that discretion. Id.
In Castillo-Villagra, 972 F.2d at 1023, the BIA took administrative notice of the election of the president of Nicaragua. The Board determined that because the Sandinistas had been defeated, the threat to the petitioners, who were active in anti-Sandinista politics, had abated. Id. We reversed, holding that "[t]he Board erred in taking notice of the change of government without providing the petitioners an opportunity to rebut the noticed facts," and that the error denied the petitioners due process. Id. at 1029.
Although we have never ruled on the propriety of administrative notice in the context of the democratization of Poland, several other circuits have. In Kaczmarczyk v. INS, 933 F.2d 588, 594 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991), the Seventh Circuit held that the BIA properly took notice of Solidarity's inclusion in Poland's governing coalition and of the fact that its supporters were no longer subject to persecution. We cited Kaczmarczyk with approval in Castillo-Villagra, quarreling only with the Seventh Circuit's conclusion that a motion to reopen deportation proceedings provides asylum applicants sufficient opportunity to rebut noticed facts. See Castillo-Villagra, 972 F.2d at 1029-30.
In Kapcia v. INS, 944 F.2d 702, 705-06 (10th Cir.1991), the Tenth Circuit held that the BIA: (1) properly noticed Solidarity's rise to power, and (2) reasonably inferred that the governing coalition would not persecute Solidarity members. The court found that the petitioners had ample opportunity to rebut either the noticed facts or the reasonable inferences drawn therefrom because they "were well aware of that issue prior to their appeal hearings before the Board." Id. at 706.
The Eighth and Third Circuits have also held that the Board may take administrative notice of Poland's new political climate. See Wojcik v. INS, 951 F.2d 172, 173 (8th Cir.1991); Janusiak v. INS, 947 F.2d 46, 48 & n. 1 (3d Cir.1991).
The petitioners contend that our decision in Castillo-Villagra compels a conclusion that they were denied due process. We reject the contention without retreating from our reasoning and holding in that case.
In Castillo-Villagra, the Board took notice of the election in Nicaragua without warning. 972 F.2d at 1029. The ouster of the Sandinistas occurred after the hearing before the immigration judge and after the submission of briefs to the BIA. The aliens were precluded therefore from presenting evidence to rebut the noticed facts and from disputing whether notice should be taken. See id. Moreover, the BIA failed to consider the applications on an individualized basis; it merely reviewed each applicant's record "to determine whether [his] case fell into the category of anti-Sandinista Nicaraguan asylum cases, not to determine whether the claim of well-founded fear in the particular case should be accepted." Id. at 1023.
We held that the BIA need not provide an opportunity to rebut facts that are "legislative, indisputable, and general," such as the fact that Chamorro won the presidency and her democratic party won a majority in parliament. Id. at 1029. We reversed because notice, and perhaps an opportunity to present contrary evidence and to dispute whether notice should be taken, was required as to whether the Sandinistas were truly without power and whether the applicants could have a well-founded fear of persecution despite the surprising election results. Id.
Reversal is not required here. The BIA was entitled to take notice of Solidarity's participation in the new coalition government and of Walesa's election, just as it noticed Chamorro's success in Nicaragua. Unlike the applicants in Castillo-Villagra, the petitioners had ample opportunity to argue before the immigration judges and before the Board of Immigration Appeals that their fear of persecution remained well-founded, despite Solidarity's ascendancy. In fact, the applicants, without exception, so argued. The following exchanges are representative:
Q. Sir, do you think the politics of Poland are such that you would now be in danger going back to a country basically controlled by Solidarity?
A. Yes, I feel I would be in danger because the police and the army [sic] still in the hands of communists.
Deportation Hr'g of Jan Acewicz, C.A.R. 28-531-838 at 66.
Q. All right, so what you're saying is that because you don't think that there really is any change in the communist control in Poland and you are a Solidarity supporter, you think you would be persecuted if you were to return to Poland right now.
A. Yes, I think I will be.
Deportation Hr'g of Andrzej Andrzelachaj, C.A.R. 28-463-491 at 44. Because the petitioners did in fact introduce evidence before the immigration judge on the effect of the change of government, their position is unlike that of the petitioners in Castillo-Villagra, who were deprived of that opportunity.
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