de la Llana Castellon v. I.N.S.

Decision Date16 February 1994
Docket NumberA,LLANA-CASTELLO,No. 92-9534,92-9534
Citation16 F.3d 1093
PartiesOrlando de lana Aracely de la Llana-Pasquier, Orlando Jose de la Llana-Pasquier, Karen Georgina de la Llana-Pasquier, Raquel Concepcion Pasquier-Garay, Sara Raquel de la Llana-Pasquier, Graciela Maria de la Llana-Pasquier, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit

Lynn C. McMurray (Janice Radler Olson on the brief) of McMurray, McMurray, Dale & Parkinson, P.C., Salt Lake City, Utah, for Petitioners.

Carl H. McIntyre, Jr., Attorney, Office of Immigration Litigation, Department of Justice (Stuart M. Gerson, Assistant Attorney General, and David J. Kline, Assistant Director, with him on the brief), Washington, D.C., for Respondent.

Before KELLY, Circuit Judge, SETH, Senior Circuit Judge, and KANE, Senior District Judge *.

KANE, Senior District Judge.

This is a petition for review of a decision of the Board of Immigration Appeals (BIA) denying asylum. We have jurisdiction to consider the petition under 8 U.S.C. Sec. 1105a. Petitioners, a family of Nicaraguan citizens, contend that the BIA denied them due process when it reversed the immigration judge's finding that they had a well-founded fear of persecution in Nicaragua by taking administrative notice of the fact that elections in that country had brought about a change in government. Alternatively, Petitioners argue that the BIA erred in failing to overturn the immigration judge's finding that they had firmly resettled in Honduras based on new evidence that their visas would not be renewed. We reverse.

I. Facts.

Petitioners entered the United States illegally on or about September 13, 1987. They did not present themselves to immigration authorities and were charged with deportability under 8 U.S.C. Sec. 1251(a)(1)(B) for entry without inspection. At their initial deportability hearing, Petitioners, represented by lay counsel, admitted deportability but asked permission to file a request for asylum under 8 U.S.C. Sec. 1158(a), withholding of deportation under 8 U.S.C. Sec. 1253(h), or alternatively, for voluntary departure under 8 U.S.C. Sec. 1254(e). Permission was granted and the hearing was continued to April 6, 1988.

At the April 6 hearing, the immigration judge first heard evidence on the request for asylum. Petitioners' request centered on the situation of Orlando de la Llana Castellon, the father of the family ("the father"). The father testified that he had been jailed twice in 1979 for his resistance to join Sandinista efforts to sabotage his employer and for his refusal to become a member of several Sandinista organizations. He learned shortly after being released that his brother had been killed by the Sandinistas. After these events, he fled to Venezuela, leaving his family behind.

The father then testified that he returned to Managua, Nicaragua in 1982 and began a cooperative that made fabric blankets. He was elected head of the cooperative. In 1984, when the Sandinista government reduced the amount of fabric it was willing to supply to the cooperative, diverting the supply to makers of military clothing, the father led several organized protests against the government. The Sandinistas then issued orders to arrest him and several others who had participated in the demonstration. In July 1984, the father fled alone to Honduras.

In September 1984, officers of the Sandinista army came to the family's house in Managua. They questioned the wife, who was then eight months pregnant. When she denied any knowledge of his whereabouts, the officers attempted to arrest her but were dissuaded by a local priest who was visiting the family at the time. Because of the stress of her near arrest, the wife gave birth prematurely the next day.

In December 1984, the father returned to Managua to retrieve his family. Conditions there were still dangerous, and he left quickly without them. He learned that because of his travel to Honduras the Sandinista government had branded him a "Contra" and accused him of other espionage-related crimes carrying penalties ranging from twenty years in prison to death. He secretly returned to Nicaragua in 1985 and this time succeeded in extricating his family to Honduras. The family lived in Honduras until their 1987 entry into the United States.

In his April 7, 1988 oral decision on the application for asylum, the immigration judge found that the father's early confrontations with the Sandinistas, up until 1984, did not show that he was in danger of being persecuted because "he was able to achieve employment, secure admittance to the National University, work as a[n] organizer and director of a cooperative and receive passports and travel documents from the government of Nicaragua between 1981 and 1984." R. at 104. The immigration judge did conclude, however, that the father had a well-founded fear of persecution based on events since that date. He held that the Sandinista government's issuance of arrest warrants after the father's protest over fabric supplies and its continued interest in his whereabouts established a well-founded fear of persecution. Id. at 108-09.

Nevertheless, the immigration judge denied the request for asylum, finding that it was precluded by Petitioners having firmly resettled in Honduras before coming to the United States. The immigration judge based this finding primarily on the father's passport and other immigration papers indicating that the father was granted permanent residence status in Honduras. Id. at 110-11. Finally, the immigration judge denied the request for withholding of deportation and granted Petitioners a three-month voluntary departure.

Petitioners appealed the immigration judge's decision to the BIA. They argued that the immigration judge erred in concluding that they had firmly resettled in Honduras. Petitioners offered new evidence in the form of a statement from a Honduran official that the father's residence in Honduras was temporary and conditional and that his legal residence in Honduras had been canceled.

On June 4, 1992, the BIA dismissed the Petitioners' appeal. Rather than considering their argument that the immigration judge had erred in finding they had firmly resettled in Honduras and without notice, the BIA dismissed the appeal based on its conclusion that Petitioners had no basis to support their contention they had a well-founded fear of persecution to merit a grant of asylum. In so doing, the BIA sua sponte took administrative notice of the fact that there had been a change in government in Nicaragua since Petitioners had entered this country. The BIA stated:

In this regard, we take administrative notice that the Sandinista party no longer controls the Nicaragua government. On April 25, 1990, a new coalition government, formed by parties in opposition to the Sandinistas ("UNO"), succeeded the former government of the Sandinista party following national elections and the inauguration of Violeta Chamorro as the new president. Further, the new president of Nicaragua announced a general amnesty covering the hostilities between the former Contra resistance and the Nicaraguan government and an end to military conscription. Given that the Sandinista party no longer governs Nicaragua, under the present circumstances we do not find that the respondents have demonstrated a well-founded fear of persecution by the Sandinista government were they to return to Nicaragua.

R. at 3 (footnotes omitted). The BIA did not give the Petitioners notice of its intent to make these findings, nor were they given an opportunity to present rebuttal evidence before the appeal was dismissed. Furthermore, the BIA noted that, while it has discretion to grant asylum in cases where there has been past persecution but no well-founded fear of future persecution, in this case there were no humanitarian or other compelling factors upon which to justify such a discretionary grant of asylum. Id. at 4. Finally, because the standard for withholding of deportation is more stringent than for asylum, the BIA declined Petitioners' request for this relief. Id. Petitioners now appeal.

II. Denial of Asylum Based on Administrative Notice of

Change in Government.

Petitioners first contend on appeal that the BIA erred in taking administrative notice of the change in government in Nicaragua and by inferring, based on that change, that Petitioners no longer had a well-founded fear of persecution. Petitioners premise their argument on the fact that they were not given notice of the BIA's intent to take administrative notice and were thereby denied any meaningful opportunity to rebut this inference, constituting a denial of due process.

The INS responds that the BIA's ability to take administrative notice is well supported in case law, and that it is undisputed that control of the Nicaraguan government now is in the hands of a coalition government comprised of parties opposed to the Sandinistas. In addition, the INS argues that notice and an opportunity to be heard are not required before the BIA may take administrative notice of facts bearing on a case and that, regardless, any failure to notify Petitioners of the taking of administrative notice was ameliorated by Petitioners' ability to move for reopening under BIA regulations.

We begin by noting that, while there is no constitutional right to political asylum itself, noncitizens, even those charged with entering the country illegally, are entitled to due process when threatened with deportation. See Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982); The Japanese Immigrant Case, 189 U.S. 86, 101, 23 S.Ct. 611, 47 L.Ed. 721 (1903); Bauge v. INS, 7 F.3d 1540, 1543 (10th Cir.1993); Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.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, ...

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