Castillo-Villagra v. I.N.S.

• Decision Date: 27 July 1992
• Docket Number: CASTILLO-VILLAGRA,No. 90-70618,90-70618
• Citation: 972 F.2d 1017
• Parties: Teresa De Jesus, et al., Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1017

972 F.2d 1017

61 USLW 2082

Teresa De Jesus CASTILLO-VILLAGRA, et al., Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 90-70618.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 1991.

Decided July 27, 1992.

James R. Mayock and Nora Privitera, Crosland, Strand, Freeman & Mayock, San Francisco, Cal., for petitioners.

Allen Hausman and Stewart Deutsch, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, D.C., for respondent.

Petition for Review of a Decision of the Immigration and Naturalization Service.

Before CHOY, NORRIS and KLEINFELD, Circuit Judges.

OPINION

KLEINFELD, Circuit Judge:

This case turns on the breadth of the doctrine of administrative notice. We grant a petition for review of a decision of the Board of Immigration Appeals and reverse, because the Board improperly took notice of the effect of the change of government in Nicaragua on whether petitioners' fear of persecution was well-founded.

Teresa de Jesus Castillo-Villagra and her two adult daughters unsuccessfully sought asylum. They claimed that they had a well-founded fear of persecution by the Sandinistas because of their anti-Sandinista political opinions. While their case was pending, Violeta Chamorro, a democrat, was elected president of Nicaragua, and her democratic coalition, UNO, defeated the Sandinistas in an election. The Board of Immigration Appeals took administrative notice of the election and determined that because the Sandinistas had lost, the threat to petitioners from the Sandinistas had disappeared.

Petitioners were given no notice or opportunity to be heard regarding whether notice should be taken or whether the political changes in Nicaragua obviated their fear of returning. They claim that the Sandinistas retain enough power so that they still need asylum. Despite the election of the new president and parliamentary majority, the Sandinistas retained control of the army and the police, according to the State Department Country Report. Joint Comm. on Foreign Affairs, Country Reports on Human Rights for 1990, S.Rpt. 102-5, 102d Cong., 1st Sess. 701 (1991). The hearings were in December 1987, and February 1988, the Immigration Judge rendered his decision in February 1988, and the briefing on appeal before the BIA was completed in October 1989, all prior to the election, so no one had occasion to develop a record about the possibility that the Sandinistas might someday lose control. The election, with its surprise result in favor of UNO and Chamorro, was in April 1990. The BIA issued its decision in October 1990, without inviting supplementation of the record or briefs, yet based entirely on the election result subsequent to the record and briefs.

We determine that the Board should not have resolved the question of the effect of the change of government on petitioners without giving them notice of its intent to do so and an opportunity to show cause why notice should not be taken, or the record supplemented by further evidence. For these reasons, we reverse.

I. FACTS

The petitioners entered the United States without inspection, conceded deportability, and sought asylum under section 208 and withholding of deportation under section 243(h). 8 U.S.C. §§ 1158(a), 1253(h). They claim to have been members of a political group, the Movimiento Democratico Nicaraguense (MDN), which opposed the Sandinista regime in Nicaragua.

The State Department Country Report for Nicaragua for 1984 (petitioners apparently left in 1983) explains how the then relatively new Sandinista regime sought to "intimidate the remaining opposition." Joint Comm. on Foreign Affairs, Country Reports on Human Rights for 1984, S.Rpt. 99-6, 99th Cong., 1st Sess. 609 (1985). The Sandinista methods of exercising power described by the State Department report and by the petitioners in their testimony give plausibility to petitioners' claims that the threat of Sandinista political persecution might have survived the election.

According to the State Department, the Sandinistas "rely on organizations controlled by the Sandinista National Liberation Front, such as the ubiquitous 'block committees,' to help implement their policies at the local level and exert control, instill loyalty and to identify and implement sanctions against suspected opponents. Using both its own powers and intimidation by Sandinista organizations, the Government systematically harassed opposition political parties...." Id. The government used as its intelligence and security network, not only government agencies, but also "Sandinista party organizations." Id. at 614. The Sandinista Defense Committees are party organizations, not government agencies, which act in "most neighborhoods ... as a network of informers and as an instrument of pervasive political control and intimidation." Id. at 615. These party committees control ration cards for basic necessities. "People who criticize the 'revolutionary process' or its leadership may be subjected to pressure ranging from public ridicule and defacement of their homes by Sandinista mobs to loss of employment and even detention. There have been reports that members of the Sandinista youth group have denounced teachers for their political views, whereupon the teachers have been fired." Id. The government "took no responsibility" for actions by Sandinista mobs to intimidate critics of the regime, although when it found it in its interest, the government demonstrated an ability to stop mob activity for public relations purposes. Id.

According to the State Department, Sandinista control of education was exercised only partly by the government, by limiting academic freedom and imposing "curricula with a strong ideological content." Id. at 617. The party used extragovernmental power as well. "The Sandinista youth organization is a pervasive influence in the public educational system, and has reportedly paid for some members' tuition in private schools in order to have the organization represented there. Sandinista youth members allegedly have denounced teachers for not supporting the Government." Id. The power of the extragovernmental organizations was augmented by government regulation requiring school administrators to work with the "mass organizations," in workshops for evaluation and training. Department of State, Human Rights in Nicaragua under the Sandinistas 228 (1986). To assure that high school students would join the party's youth organization, the Sandinista National Liberation Front had the Sandinista Youth-July 19 organization consolidate the Sandinista Children's Association prior to secondary school. Id. The teachers' union prepared lists of schoolteachers who did not agree with party positions, and dissenting teachers were afraid to express their views in union meetings. Id.

At the hearing before the Immigration Judge, the older daughter, Maria Auxiliadora Aleman-Castillo, provided most of the testimony, because she spoke English. She said that in her small town, Jinotega, "everybody knows everybody's activities," and at the university, everybody knew who was anti-government. Maria testified that "we used to print out papers against the government" and "go to different schools and give them away to people." Both daughters and their mother were active in the MDN.

Maria testified, "if we come back we're gonna be incarcerated, we're gonna be persecuted, we're probably gonna disappear like our friend did...." Because of the family's political opinions and activities, mobs of 20 to 50 people, who "used to live on the streets doing nothing" and had been given good government jobs and cars by the Sandinistas, stoned their house in Jinotega about 10 times, mostly in 1982. They also displayed an effigy in a context in which it was a death threat. She said: "We couldn't call the police because they were the police." All of their windows were knocked out. She was arrested once, together with her younger sister, Teresita, in an anti-government demonstration in Nandaime Carazo in 1982, held in jail about seven hours, and then released with a threat that the next time they would not get out for twenty years. Maria once brought food and medicine to a location for delivery to the Contras. The only way to get a ration card for food and clothing was "to organize in a different movements [sic] that they have ... the government had." The family got out in September 1983. The evidence at the hearing included a newspaper clipping about the friend who disappeared, the brother of Maria's best friend, who was active in the same political movement as Maria and her family. Teresita, Maria's younger sister, refused to join July 19, the Sandinista youth group, and was in charge of the youth propaganda part of her MDN unit.

In his oral decision, the Immigration Judge found that the mother was lying and none of the three had a well-founded fear of persecution because of their political opinions. He noted that the mother's application said her arrest was at her home, but Teresita placed the arrest at a demonstration. The rock throwing and other actions of the "so-called mobs" did not amount to persecution. He was not persuaded that the MDN was "a subversive group bent on the violent overthrow of the government" so he saw no likelihood that the sisters would be persecuted for their affiliation with it, especially since they were quickly released after their arrests. He doubted that they were active in the MDN at all because of lack of documentary corroboration. The Immigration Judge believed that if they returned to Nicaragua and "simply went about their business without more," the government would not persecute them, although "[i]f they decided to get involved in demonstrations or distributing literature, perhaps they would be harassed." He therefore found that they were not entitled to asylum.

The Board of Immigration Appeals did not review the Immigration Judge's credibility...