Kapcia v. I.N.S.

• Citation: 944 F.2d 702
• Decision Date: 09 September 1991
• Docket Number: Nos. 90-9533,s. 90-9533
• Parties: Jan KAPCIA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Stanislaw SAULO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. to 90-9534. *
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 702

944 F.2d 702

Jan KAPCIA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Stanislaw SAULO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Nos. 90-9533 to 90-9534. ^*

United States Court of Appeals,

Tenth Circuit.

Sept. 9, 1991.

Timothy C. Kingston of Holland & Hart, Denver, Colo. (Daniel W. Patterson and A Mary Maywalt, Law Office of Mary Maywalt, P.C., Boulder, Colo., and Star L. Waring, Denver, Colo., on the briefs for petitioner, Saulo.

Bruce Jones of Holland & Hart, Denver, Colo., and Thomas R. Orr of Holland & Hart, Colorado Springs, Colo., with him on the briefs), for petitioner, Kapcia.

Charles E. Pazar, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., Robert Kendall, Jr., Asst. Director, and Linda S. Wendtland, Office of Immigration Litigation, Civ. Div., Dept. of Justice, Washington, D.C., with him on the briefs), for respondent.

Before ANDERSON, BALDOCK and EBEL, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Petitioners Jan Kapcia and Stanislaw Saulo are Polish citizens who appeal from decisions of the Board of Immigration Appeals (Board) that upheld two immigration judges' orders finding petitioners deportable and denying their applications for asylum and withholding of deportation pursuant to sections 208(a) and 243(h) of the Immigration and Nationality Act (Act), respectively, 8 U.S.C. §§ 1158(a) and 1253(h); and granted them voluntary departure under section 244(e) of the Act, 8 U.S.C. § 1254(e). "Our jurisdiction to review the [B]oard's order arises under 8 U.S.C. § 1105a(a) and 28 U.S.C. [s] 158 pertaining to review of orders of federal agencies. Our review is limited to the administrative record forming the basis for the deportation order. 8 U.S.C. § 1105a(a)(4)." Michelson v. I.N.S., 897 F.2d 465, 467 (10th Cir.1990) (citing Vassiliou v. District Dir. I.N.S., 461 F.2d 1193, 1195 (10th Cir.1972)). We affirm.

FACTUAL BACKGROUND

Petitioners claim that because of past and future persecution arising from their membership and participation in Solidarity they are eligible for asylum and are not deportable to Poland. Following deportation proceedings before immigration judges, petitioners were ordered to voluntarily depart. The Board affirmed the immigration judges' orders because it found that the petitioners had failed to establish either a "well-founded fear" of persecution or a claim of past persecution sufficient to merit a grant of asylum relief. The Board found that because the petitioners failed to satisfy the lower burden of proof required for asylum, they also failed to satisfy the "clear probability standard of eligibility required for withholding of deportation."

Jan Kapcia

Kapcia's asylum application and testimony indicates that he joined Solidarity in March 1981. He still considers himself a member of Solidarity. He distributed antigovernment, pro-Solidarity materials during the period that Solidarity was outlawed. From December 1985 through 1988, Kapcia alleges that he was arrested four times, detained three times, and beaten once. In addition, his house was searched, and he was treated adversely at work. Nonetheless, he continued to distribute Solidarity materials until the time of the free elections on June 4, 1989. On August 15, 1989, he arrived in Anchorage, Alaska on a charter flight to join a Polish fishing vessel. He worked for a Polish state-run fishing company, "GRYF." He was admitted to the United States under a transit visa. After deportation proceedings began, he applied for asylum.

Stanislaw Saulo

Saulo's asylum application and testimony indicates that he joined Solidarity in 1982. He distributed leaflets and slogans. He alleges that twice since 1983 he was detained for a two-day period during which time he was interrogated and beaten. Upon release he was warned not to continue his Solidarity activities. He also alleges that as a result of his activities, his parents' home was searched, he was assigned poor work tasks and denied bonuses, his locker was broken into many times, and he was conscripted into the Polish army where he was constantly harassed. Finally, he was fired from his job. Saulo also alleges that later, in 1986, he joined Fighting Solidarity Both petitioners raise the following claims on appeal. First, they argue that the Board erred when it took administrative notice of the political changes in Poland. Second, they argue that the Board's decisions denying them asylum or withholding of deportation are not supported by substantial evidence. Separately, Kapcia also argues that the Board erred by failing to grant asylum to him after he showed he had suffered past persecution. Finally, Saulo also argues that the Board erred by applying the statutory standard for withholding of deportation to his asylum claim.

                a group he claims is still illegal in Poland.   Subsequent to distributing its illegal literature, he was detained for several hours and beaten.   After the free elections in Poland, he was convicted of distributing illegal pamphlets and fined.   On August 15, 1989, Saulo arrived in Anchorage, Alaska to join a Polish fishing vessel.   He was also admitted to the United States on a transit visa.   He then asked for political asylum
                

I. Administrative Notice

We review de novo any of the Board's legal interpretations. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988) (citing Lazo-Majano v. I.N.S., 813 F.2d 1432, 1434 (9th Cir.1987)). In both proceedings, relying on its earlier decision in Matter of Chen, Interim Decision 3104 (BIA 1989), the Board took administrative notice of the fact that on September 10, 1989, Solidarity became a part of the Polish coalition government. The Board then inferred that "there no longer exists any basis for the [petitioners'] claim[s] that [they have] a 'well-founded fear' of persecution by the Polish government due to [their] activities on behalf of Solidarity."

An agency such as the Board may take "official notice" of "commonly acknowledged facts, [and] ... technical or scientific facts that are within the agency's area of expertise." McLeod v. I.N.S., 802 F.2d 89, 93 n. 4 (3d Cir.1986). As the Seventh Circuit recently stated:

In exercising official notice, administrative agencies may consider commonly acknowledged facts. See generally, 3 K. Davis, Administrative Law Treatise § 15 (1980). The Board's notice of current events bearing on an applicant's well-founded fear of persecution--in this case Solidarity's participation in the Polish government--falls within this accepted category.

Kaczmarczyk v. I.N.S., 933 F.2d 588, 593-94 (7th Cir.1991) (citing McLeod v. I.N.S., 802 F.2d at 93 n. 4 and Zamora v. I.N.S., 534 F.2d 1055, 1062 (2d Cir.1976)). Furthermore, the Board may draw reasonable inferences from the evidence which "comport with common sense." Kaczmarczyk v. I.N.S., 933 F.2d at 594; see also N.L.R.B. v. Milk Drivers & Dairy Employees, 531 F.2d 1162, 1165 (2d Cir.1976). We agree with the Seventh Circuit that now that Solidarity is a part of the Polish coalition government, the Board properly took notice of this fact and reasonably inferred that, generally speaking, Solidarity members will not be persecuted. Kubon v. I.N.S., 913 F.2d 386, 388 (7th Cir.1990); see also Kaczmarczyk v. I.N.S., 933 F.2d at 594 ("it was reasonable for the Board to conclude that Poland's changed political circumstances substantially diminished the likelihood that the Polish government would persecute Solidarity members and activists").

Petitioners also argue that they did not have an opportunity to rebut the inferences drawn from the administrative notice. On the contrary, petitioners had ample opportunity to address those issues. Although the Administrative Procedure Act does not apply to INS proceedings, Marcello v. Bonds, 349 U.S. 302, 307, 75 S.Ct. 757, 760, 99 L.Ed. 1107 (1955), reh'g denied, 350 U.S. 856, 76 S.Ct. 38, 100 L.Ed. 761 (1955), petitioners in deportation proceedings must be "afforded a full and fair hearing that comports with due process." Vissian v. I.N.S., 548 F.2d 325, 329 (10th Cir.1977) (quoting Pilapil v. I.N.S., 424 F.2d 6, 9 (10th Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 152, 27 L.Ed.2d 147 (1970)); see also Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976). The record reveals petitioners enjoyed a In sum, the Board properly took administrative notice of the changed political situation in Poland and reasonably inferred that the new coalition government would not persecute members of Solidarity. Furthermore, petitioners had a full and fair opportunity to rebut this inference.

                fair hearing on this issue.   Administrative notice of the changed conditions in Poland was first taken during the deportation hearings before the immigration judges.   Petitioners' efforts at these earlier hearings were mainly aimed at the contention that despite the new coalition government, they still faced persecution if returned to Poland.   Both presented extensive expert witness testimony to that end.   Consequently, petitioners were well aware of that issue prior to their appeal hearings before the Board.   Indeed, on appeal before the Board, Kapcia argued that during his hearing before the immigration judge, "his own testimony and that of his expert witness ... established that conditions in Poland have not changed sufficiently to protect [him] if he were sent back to Poland." 1
                

II. Asylum and Withholding of Deportation

The Immigration and Nationality Act "provide[s] two methods through which an otherwise deportable alien who claims that he will be persecuted if deported can seek relief." I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 1208-09, 94 L.Ed.2d 434 (1987). These are 1) asylum, and 2) withholding of deportation. Petitioners applied for, and were denied, both forms of relief. We review each in turn.

A. Asylum.

The Immigration and Nationality Act...