Getachew v. I.N.S.

• Decision Date: 04 April 1994
• Docket Number: No. 92-70836,92-70836
• Citation: 25 F.3d 841
• Parties: Samson Eshete GETACHEW, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 841

25 F.3d 841

Samson Eshete GETACHEW, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 92-70836.

United States Court of Appeals,

Ninth Circuit.

Submitted April 4, 1994. ^*

Decided June 2, 1994.

Rogelio Quesada, San Diego, CA, for petitioner.

Joseph F. Ciolino, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.

Appeal from a Decision of the Board of Immigration Appeals.

Before: BROWNING, PREGERSON, and BRUNETTI, Circuit Judges.

Opinion by Judge PREGERSON.

PREGERSON, Circuit Judge:

I. OVERVIEW

Samson Getachew, a native and citizen of Ethiopia, petitions for review of the Board of Immigration Appeals's denial of his applications for asylum and withholding of deportation under 8 U.S.C. Secs. 1158 and 1253(h). We have jurisdiction under 8 U.S.C. Sec. 1105a(a)(1). We grant the petition for review.

II. BACKGROUND

Samson Getachew arrived on our shores from Ethiopia in March of 1985 at the age of seventeen, initially entering the United States via a tourist visa. Six months later, he enrolled in community college and was granted a student visa.

In January of 1989, Getachew filed an application for asylum with the Immigration and Naturalization Service ("INS"). The INS denied his asylum application and a year later charged him with deportability for overstaying his visa. At his deportation hearing, in March of 1991, Getachew conceded deportability, but renewed his application for asylum and withholding of deportation. In his affidavit, and in testimony characterized by the Immigration Judge ("IJ") as "credible and sincere," Getachew explained the events that led to his arrival in the United States.

His departure from Ethiopia was preceded by two years of mistreatment at the hands of the Ethiopian government. In 1983, when he was fifteen years old, he was jailed by the government for 48 hours for refusing to attend monthly youth communist meetings. The meetings, organized by neighborhood security organizations called "Kebele," consisted of indoctrination "about the system in Russia." Getachew refused to attend because "I didn't believe in it." During his 48 hour detention, he was held under armed guard in a ten-by-six foot cell with eleven other older male prisoners. The cell was so crowded that he was initially forced to sleep sitting down in the corner, although a guard later relented and allowed him to sleep on a bench in the guard booth. He had to obtain permission to use the bathroom and was fed only twice (once each day). Upon his release, he was warned not to miss any more meetings.

Getachew further testified that despite the warning, he again refused to attend the meetings because he did not believe in Marxist ideology. When the authorities confronted him for his failure to attend, he tried to convince them it was because he was sick, but they did not believe him. He was again jailed, this time for 24 hours, and he was also sentenced to several months of supervised work without pay to atone for his failure to attend the meetings. Getachew described this latter punishment as a "labor camp" where he was forced to work full-time under rough conditions picking up papers and cleaning the government-run printing factory.

He testified that these experiences convinced him to attend the meetings, if only to avoid even worse punishment. He resolved to work hard in order to obtain an exit visa, and when given the opportunity, he fled Ethiopia. ¹ After his arrival in the United States, his mother warned him never to return to Ethiopia because the government there considered him a traitor. Government officials had been asking his whereabouts, and many of his school friends with similar political views had fled Ethiopia.

Based primarily on this testimony, plus documentary evidence of conditions in Ethiopia, the IJ found that Getachew "dreads the idea of returning to Ethiopia because he believes that the government there would view him as 'a traitor basically.' " Nevertheless, despite crediting Getachew's testimony and acknowledging the abhorrent conditions in Ethiopia, the IJ denied Getachew's application, finding that Getachew had not sufficiently established persecution or a well-founded fear of persecution. ²

Getachew appealed to the Board of Immigration Appeals ("Board"), complaining that the IJ's decision was not supported by substantial evidence. The briefing schedule provided to the parties by the Board gave Getachew 25 days to file an appeal brief, after which the INS was granted 15 days to file an answer. Getachew prepared a timely 40-page appeal brief critical of the IJ's opinion. The INS reply brief was nearly a month late and its argument was one paragraph in length. In it, the INS adopted the reasoning set forth in the IJ's opinion and asked the Board to "take administrative notice that the Marxist party no longer is in power in the Ethiopian government."

Getachew responded by submitting a one-page "reply-brief" in which he pointed out that the INS's brief was late, that it "assume[d] facts not in evidence," and that the INS's brief was "not supported by any documentary evidence that conditions are now safe for the Respondent in his home country." The Board did not respond to Getachew's procedural objections.

More than a year later, the Board affirmed the IJ's decision. The Board's opinion neither adopted nor criticized the IJ's reasoning. Instead, after reviewing the IJ's factual findings, the Board turned immediately to a discussion of the changed circumstances in Ethiopia after the overthrow of the Marxist regime. The opinion provided, in relevant part:

We have reviewed the most recent Country Reports for Ethiopia and find that the Ethiopian Government as it existed when the respondent departed his homeland effectively has been dismantled. The report indicates that a coalition of ethnic-based insurgencies toppled that repressive Marxist regime of President Mengistu Haile-Mariam in late May 1991 bringing profound political changes to Ethiopia. The former president flew into exile. In July, a broad-based national conference adopted a charter establishing a multi-party transitional government. The report indicates that the new leadership dismantled the extensive military and security apparatus of the Mengistu government, including the political and surveillance operations by neighborhood committees known as Kebeles. Additionally, the new leaders stated their commitment to the establishment of multiparty democracy and the rule of law with full respect for human rights. Given this development, there no longer exists any basis for the respondent's claim that he has a well-founded fear of persecution by the Ethiopian Government due to his failure to attend meetings of the Kebeles. The respondent has failed to make an effective response regarding these changed circumstances. We are in agreement with the immigration judge's determination that the respondent failed to establish statutory eligibility for asylum relief.

AR at 3-4 (citations omitted) (emphasis added).

III. DISCUSSION

Getachew makes two claims of error. First, he argues that the Board erred because it took into consideration the government's brief which was filed a month late, in violation of INS regulations. See 8 CFR Sec. 3.3(c). Second, he claims that it was error for the Board to take administrative notice of changed conditions in Ethiopia without first giving him notice and an opportunity to respond to the evidence of changed conditions. We reject the first claim, but find merit in the second.

A. Late Brief:

Getachew's contention that the Board erred in considering the INS's late brief must fail. The Board is empowered to exercise its discretion regarding matters within its jurisdiction. See 8 CFR Sec. 3.1(d)(1) ("in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority ... as is appropriate and necessary for the disposition of the case"). Such discretion is of course limited by due process considerations, see infra, but no such considerations are implicated here because Getachew has not shown how he has been prejudiced by the lateness of the INS's brief. See United States v. Nicholas-Armenta, 763 F.2d 1089 (9th Cir.1985) (due process challenges to deportation proceedings require a showing of prejudice). We therefore proceed to the second, and more substantial, of Getachew's contentions.

B. Scope of Administrative Notice:

1. Standard of Review:

Getachew contends that the Board violated due process by taking administrative notice of changed conditions in Ethiopia without giving him adequate notice and an opportunity to respond, and by inferring, on the basis of the changes, that he no longer had a well-founded fear of persecution. We generally review claims of due process violations in deportation proceedings de novo. See, e.g., Barraza-Rivera v. INS, 913 F.2d 1443 (9th Cir.1990). Despite this general rule, we review the procedures the Board uses to take administrative notice of facts not in the record for abuse of discretion. Acewicz v. INS, 984 F.2d 1056, 1060 (9th Cir.1993).

2. Analysis:

It is well-established that the due process clause applies to protect immigrants in deportation proceedings, and furthermore that due process for an immigrant threatened with deportation includes the right to a full and fair hearing. Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982); Castillo-Villagra v. INS, 972 F.2d 1017, 1028 (9th Cir.1992). "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (internal quotation omitted). Corollary to the right to a hearing before deportation is the right to a deportation decision based on the record created during and before the hearing. Therefore, due process requires the Board to refrain from...