Kaczmarczyk v. I.N.S., Nos. 90-1964

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore WOOD, Jr., FLAUM, and MANION; FLAUM
Citation933 F.2d 588
PartiesMariusz KACZMARCZYK, et al., Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Docket Number90-2070 and 90-2412,Nos. 90-1964
Decision Date31 May 1991

Page 588

933 F.2d 588
Mariusz KACZMARCZYK, et al., Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Nos. 90-1964, 90-2070 and 90-2412.
United States Court of Appeals,
Seventh Circuit.
Argued Jan. 29, 1991.
Decided May 31, 1991.

Page 590

Richard J. Puchalski (argued), Michael A. Grochowiak, Puchalski, Keenan & Reimer, Chicago, Ill., for petitioners.

Alison R. Drucker, Lori L. Scialabba (argued), David J. Kline, Dept. of Justice, Office of Immigration Litigation, Richard L. Thornburg, U.S. Atty. Gen., Washington, D.C., A.D. Moyer, Michael L. Harper, Samuel Der-Yeghiayan, I.N.S., Ira H. Raphaelson, Asst. U.S. Atty., Office of U.S. Atty., Chicago, Ill., for respondent.

Les S. Kuczynski, Polish American Congress, Gen. Counsel, Chicago, Ill., for amicus curiae, Polish American Congress.

John J. Pikarski, Jr., Zulkey, Pikarski & Gordon, Chicago, Ill., for amicus curiae Nat. Advocates Soc.

Before WOOD, Jr., FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

The petitioners in this consolidated appeal challenge the decision of the Board of Immigration Appeals to take notice of changed political circumstances and the resulting decrease in likelihood of persecution in their native country in the course of ruling on their applications for political asylum and withholding of deportation. We hold below that the Board may properly take official notice of such facts, but that asylum petitioners are entitled to an opportunity to respond. Established Board of Immigration Appeals procedures, we conclude, can be construed to allow petitioners adequate rebuttal opportunity.

Page 591

I.

The petitioners are Polish citizens who were ordered by the Immigration and Naturalization Service ("INS") to show cause why they were not deportable under Sec. 241(a)(2) of the Immigration and Nationality Act ("Act"), 8 U.S.C. Sec. 1251(a)(2). Each petitioner admitted deportability but sought political asylum and withholding of deportation under sections 208 and 243(h) of the Immigration and Nationality Act (INA), 8 U.S.C. Secs. 1158, 1253(h). All three received hearings before an Immigration Judge ("IJ"); in each case the petitioner's application for asylum and withholding of deportation was denied. All three appealed to the Board of Immigration Appeals ("BIA").

The BIA affirmed the IJ's determination in each case, noting that each petitioner had based his application on membership in or association with the Polish political organization Solidarity. In each case, the Board took administrative notice of the fact that because, beginning in September 1989, Solidarity joined with the Communist Party in a coalition government ruling Poland, its members were no longer being persecuted by Polish authorities for their organizational affiliation. Based on this fact and a review of the record in each case, the BIA concluded that none of the three petitioners proved that they had a "well-founded fear" of persecution upon return to Poland. 8 U.S.C. Secs. 1101(a)(42)(A), 1158(a). Thus, the BIA affirmed the IJ's decision in each case and granted each petitioner a 30-day period of voluntary departure. The petitioners appeal the BIA's decisions.

A. Mariusz Kaczmarczyk

Kaczmarczyk's asylum application and testimony indicated that he joined a pro-Solidarity student organization in 1980. From 1981 to 1983 he participated in anti-government protests in Krakow, Poland. Kaczmarczyk related that he was beaten by police during some of these demonstrations. He also testified that while he was never formally arrested or indicted by Polish authorities, he was on a number of occasions stopped by police and detained for several hours. Upon arrival in the United States in December 1984, Kaczmarczyk joined an American organization opposed to the communist government then ruling Poland.

Kaczmarczyk also testified that since arriving in the United States, he learned from a friend who was interrogated by the Polish police that Polish authorities have identified him as an anti-government activist. Finally, he testified that his parents, who remain in Poland, informed him that the Polish police had inquired about his whereabouts.

After a hearing, an IJ found that Kaczmarczyk had failed to prove either past persecution or a well-founded fear of future persecution, and consequently denied his asylum application. The IJ stated that Kaczmarczyk had not demonstrated that Polish authorities were aware of his activities or were inclined to punish him. Kaczmarczyk was granted a 90-day period of voluntary departure.

Kaczmarczyk appealed to the BIA, which on April 6, 1990 affirmed the IJ's decision. The BIA reasoned that in light of current political circumstances in Poland, Kaczmarczyk could not harbor a well-founded fear of persecution arising from his support of or membership in Solidarity. The BIA granted Kaczmarczyk a 30-day period of voluntary departure beginning April 6, 1990.

B. Jozef Czajkowski

Czajkowski's asylum application and deportation hearing testimony demonstrated that he had been a member of the Polish army from 1968 to 1970 and that he has a wife and two children who remain in Poland. He testified that in 1980 he joined a Solidarity unit at his workplace. Czajkowski stated that as a member of his unit's leadership, he participated in Solidarity meetings and distributed the organization's literature.

Czajkowski testified that after martial law was declared in December 1981, he was arrested, detained, and forced to sign a pledge that he would cease Solidarity activities. He nevertheless continued to distribute

Page 592

Solidarity literature and was detained once again in 1982. Czajkowski was then sent to Iraq for two years to work on a road construction project. Upon his return to Poland in 1984, he resumed work at his state-owned former place of employment. Czajkowski continued to work there until he left for the United States in November 1985. He was fired from his position only after he failed to return after a year's leave of absence.

In 1987, Czajkowski's wife wrote him that since his departure, the police had searched their house on numerous occasions. She wrote that she was fined by the police for possessing Solidarity literature and that other Solidarity members also continued to be harassed by Polish authorities. Finally, Czajkowski testified that he continued his political activities in the United States as a member of an American organization opposed to the communist rule of Poland.

After conducting a hearing, an IJ concluded that Czajkowski had failed to show that he possessed a well-founded fear of persecution and denied his application for asylum. The IJ based this conclusion on the fact that Czajkowski had been permitted to leave Poland to work in Iraq for two years, had returned to his former job upon his return from Iraq, and was not dismissed from that job until he failed to return from the United States. The IJ granted Czajkowski a 90-day period of voluntary departure.

Czajkowski appealed to the BIA. On April 17, 1990 the BIA concluded that Czajkowski had failed to show past persecution or a basis for a well-founded fear of persecution and affirmed the IJ's ruling. In Czajkowski's case, too, the Board took notice of the fact that as a result of a change in government, Polish citizens, as a general matter, were no longer being persecuted by the Polish government for their involvement in Solidarity. The BIA granted Czajkowski a 30-day period of voluntary departure to commence upon the issuance of its decision.

C. Tadeusz Kusper

In his application for asylum and in testimony at his deportation hearing, Kusper indicated that he had been an early member of Solidarity. He explained that he had participated in meetings and strikes sponsored by the organization and in retaliation was denied benefits and raises at his place of employment. He testified that in 1982 he was arrested and held by the police for 24 hours; afterwards, the police harassed him with threatening telephone calls and visited his home. Kusper also testified that it took him more than two years to obtain a passport (he finally left Poland in October 1985) and that during that period he was frequently required to report to the police.

After a hearing, an IJ found that Kusper had not proven that he qualified as a refugee and was therefore ineligible for political asylum. The IJ based his conclusions on the vagueness of Kusper's testimony and his failure to substantiate either past persecution or a well-founded fear of future persecution. The IJ granted Kusper a 60-day period of voluntary departure. Kusper then appealed to the BIA, which on June 6, 1990, denied his appeal. In reaching its decision, the BIA noted that all of the events Kusper relied upon to substantiate his fear of persecution occurred before 1986, and that since then, political changes in Poland rendered his fear of future persecution unreasonable. The Board granted Kusper a 30-day period of voluntary departure to commence upon the issuance of its decision.

The petitioners appeal from the decisions of the BIA and seek both asylum and withholding of deportation. 1

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II.

Petitioners raise several claims on appeal. First, they object to the BIA's taking official notice that the composition of the Polish Government had changed and that the likelihood that Solidarity supporters would be persecuted by the Polish government had thus decreased or disappeared. They contend that the Board's notice was inappropriate and unauthorized and that they were denied the opportunity to dispute the noticed facts in violation of their due process rights under the fifth amendment. The petitioners further argue that the Board improperly predicated its denials of their asylum applications solely on the changed political circumstances in Poland, and failed to consider other evidence they presented regarded their fear of future persecution in Poland. Finally, should we conclude that the...

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135 practice notes
  • Justice Department, Immigration and Naturalization Service,
    • United States
    • Federal Register August 26, 2002
    • August 26, 2002
    ...21 I&N Dec. 722, 733 n.2 (BIA 1997), disapproved on other grounds, Ladha v. INS, 215 F.3d 889 (9th Cir. 2000); Kaczmarczyk v. INS, 933 F.2d 588, 593 (7th Cir. 1991). The language of the regulation explicitly uses the phrase ``commonly known facts'' to describe the kinds of facts or matt......
  • Gomez-Vigil v. I.N.S., GOMEZ-VIGIL and S
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 26, 1993
    ...noticed fact, to challenge with respect both to its truth and its significance. See Rivera-Cruz, 948 F.2d at 968; Kaczmarczyk v. INS, 933 F.2d 588, 596 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991). I am satisfied, however, that INS regulations do provide th......
  • de la Llana Castellon v. I.N.S., LLANA-CASTELLO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 16, 1994
    ...on an applicant's well-founded fear of persecution.' " Kapcia v. INS, 944 F.2d 702, 705 (10th Cir.1991) (quoting Kaczmarczyk v. INS, 933 F.2d 588, 593-94 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991)). We have twice approved of this procedure. In Kapcia v. I......
  • Pilica v. Ashcroft, No. 02-4348.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 15, 2004
    ...it considered appeal); Makonnen v. INS, 44 F.3d 1378, 1384 (8th Cir.1995) (BIA entitled to presumption of regularity); Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir.1991) (BIA "is entitled to a presumption of regularity," and petitioner has burden to prove "BIA gave short shrift" to eviden......
  • Request a trial to view additional results
134 cases
  • Gomez-Vigil v. I.N.S., GOMEZ-VIGIL and S
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 26, 1993
    ...noticed fact, to challenge with respect both to its truth and its significance. See Rivera-Cruz, 948 F.2d at 968; Kaczmarczyk v. INS, 933 F.2d 588, 596 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991). I am satisfied, however, that INS regulations do provide th......
  • de la Llana Castellon v. I.N.S., LLANA-CASTELLO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 16, 1994
    ...on an applicant's well-founded fear of persecution.' " Kapcia v. INS, 944 F.2d 702, 705 (10th Cir.1991) (quoting Kaczmarczyk v. INS, 933 F.2d 588, 593-94 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991)). We have twice approved of this procedure. In Kapcia v. I......
  • Pilica v. Ashcroft, No. 02-4348.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 15, 2004
    ...it considered appeal); Makonnen v. INS, 44 F.3d 1378, 1384 (8th Cir.1995) (BIA entitled to presumption of regularity); Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir.1991) (BIA "is entitled to a presumption of regularity," and petitioner has burden to prove "BIA gave short shrift" to eviden......
  • Najjar v. Ashcroft, Nos. 99-14391
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 18, 2001
    ...changes in country conditions occurring in the interim between the BIA decision and the court of appeals review. See Kaczmarczyk v. INS, 933 F.2d 588, 594 n.4 (7th Cir. 1991); Dobrota v. INS, 195 F.3d 970, 973 (7th Cir. 1999) (judicially noticing a State Department Country Report and examin......
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