Rivera-Cruz v. I.N.S.

• Decision Date: 18 December 1991
• Docket Number: P,No. 91-4007,RIVERA-CRU,91-4007
• Citation: 948 F.2d 962
• Parties: Gonzaloetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 962

948 F.2d 962

Gonzalo RIVERA-CRUZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-4007

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Dec. 18, 1991.

Rehearing and Rehearing En Banc

Denied Feb. 3, 1992.

Alfred L. Hansen, New Orleans, La., for petitioner.

Richard Thornburgh, Atty. Gen., U.S. Dept. of Justice, Norah Ascoli Schwarz, Mark C. Walters, Asst. Dir., Civ. Div., Office of Immigration Litigation, Dept. of Justice, Washington, D.C., for respondent.

John B.Z. Caplinger, Dist. Director, INS, New Orleans, La., for other interested parties.

Appeal from an Order of the Board of Immigration Appeals.

Before POLITZ, KING, and SMITH, Circuit Judges.

KING, Circuit Judge:

Gonzalo Rivera-Cruz ("Rivera") appeals from an order by the Board of Immigration Appeals ("Board") denying his requests for asylum and withholding of deportation. Finding that the Board did not abuse its discretion in denying Rivera's requests, we affirm.

I.

In August 1979, shortly after the Sandinistas assumed power in Nicaragua, Sandinista soldiers came to the home of Rivera's parents in Managua, searching for Rivera's older brothers. The soldiers apprehended the brothers and beat them. When Rivera pleaded with the soldiers (or interfered with their arrest, according to the Immigration and Naturalization Service ("Service")), he too was beaten, suffering a broken leg and a broken finger. After being hospitalized for 25 days, Rivera hid for several weeks in the home of a friend. He was informed by his father that the Sandinistas were now looking for him as a result of the encounter, and would arrest him as a supporter of the Somoza regime. He learned as well that his brothers had been sentenced to 25 years in prison for murder. Both brothers are now out of prison.

After his broken leg healed, Rivera fled Managua and went to the city of Grenada where he changed his name and performed menial labor to support his wife and children who were living with his parents in Managua. After being recognized by a Sandinista supporter in Grenada, he fled to Estel and changed his name again. He then moved from town to town for the next several years. During his six years on the run, Rivera was able to take a bus to visit his family at least one weekend per month, and never encountered any difficulties or Sandinistas when visiting.

Rivera and another brother entered the United States illegally at Hidalgo, Texas in 1985. At the time of his entrance to the United States, Rivera was apprehended by the Service and issued an Order to Show Cause. Rivera moved for and was granted a change in venue to New Orleans, Louisiana. In May 1986, he filed his Request for Asylum in the United States in the Service office in New Orleans.

At his hearing before the immigration judge on May 12, 1987, the judge granted Rivera's request for asylum under § 208 of the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1158(a), and withholding of deportation under § 243(h) of the INA, 8 U.S.C. § 1253(h). ¹ The immigration judge apparently based his grant in part on the prediction that there would not be a change of government in Nicaragua. He found that Rivera had a well-founded fear of persecution because of his family's pro-Somoza leanings and Rivera's intercession on behalf of his brothers when they were being arrested.

The Service appealed to the Board, contending that Rivera's only contact with the Sandinistas was when he criminally interfered with the arrest of his brothers. He fled, argued the Service, because he was warned he had been accused of assaulting an officer and interfering with an arrest. The Service also contended that Rivera had no reasonable fear of persecution because the new Nicaraguan government had no inclination to punish him for these acts.

On December 6, 1990, the Board sustained the appeal, reversing the decision of the immigration judge. In re Gonzalo Rivera-Cruz, file no. A27 677 461 (BIA, Dec. 6, 1990). The Board concluded that in light of the change of government in Nicaragua, Rivera could not establish that he had a well-founded fear of persecution should he return. The Board took administrative notice that in April 1990, Violeta Chamorro was elected President of Nicaragua, and that the Sandinista regime was no longer in power. Given its recognition that the Sandinista government no longer governed Nicaragua, the Board found that Rivera did not have a well-founded fear of persecution by the current government.

The Board further held that "even if one were to assume that [Rivera's] previous experiences in Nicaragua amounted to past persecution, or that at the time he left [Nicaragua] and for some time thereafter he had a well-founded fear of persecution should he return, it is not established that he presently merits a grant of asylum." Id. at 3. Citing Matter of Chen, Int.Dec. 3104 (BIA 1989), the Board acknowledged that in certain circumstances past persecution alone might warrant a grant of asylum even if there were no likelihood of present persecution. Such a situation would exist where the past persecution was so severe that return to the country of persecution would be inhumane. Even had petitioner established past persecution, the Board concluded, on the record presented there were no "humanitarian or compelling bases" for granting him asylum on this theory.

The Board held as well that, given petitioner's failure to demonstrate eligibility for asylum, he a fortiori could not satisfy the more rigorous standard for withholding of deportation. The Board concluded by granting petitioner a thirty-day voluntary departure period, and alternatively ordered petitioner's deportation to Nicaragua should he not voluntarily depart within that time. Rivera petitions this court for review of the Board's ruling.

II.

The standard for determining if asylum should be granted is whether a reasonable person in the applicant's circumstances would fear persecution. Guevara Flores v. INS, 786 F.2d 1242, 1249 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 757 (1987). It is sufficient under this standard to show that persecution is a reasonable possibility, or that the applicant has a "well-founded" fear of persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 1211, 94 L.Ed.2d 434 (1987). In order to qualify for withholding of deportation, a "clear probability" of persecution must be shown. INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 2492, 81 L.Ed.2d 321 (1984). According to these standards, it is easier to qualify for asylum than for a withholding of deportation. Cardoza-Fonseca, 480 U.S. at 443, 107 S.Ct. at 1219; Guevara Flores, 786 F.2d at 1250. ² We accord deference to the Board's interpretation of immigration statutes unless there are compelling indications that the Board's interpretation is incorrect. Campos-Guardado v. INS, 809 F.2d 285, 289 (5th Cir.), cert. denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987); Guevara Flores, 786 F.2d at 1250 n. 8.

The Board took administrative notice of the change of governments in Nicaragua and the Sandinistas' loss of power. The Board took notice as well that Chamorro has announced a general amnesty covering the hostilities between the Contra resistance and the Nicaraguan government, and an end to military conscription. ³ Based on the notice of these facts, the Board found that Rivera is not eligible for asylum because persecution under the Chamorro government is not a reasonable possibility and his fears of persecution are not well-founded. Rivera now argues to this court that the Chamorro government is unstable and that the Sandinistas have more power than the Board recognizes, and adduces various newspaper articles to that effect. This court should, argues Rivera, take judicial notice of the frailty of Chamorro's government.

Courts allow agencies "wide latitude in taking official notice." Kaczmarczyk v. INS, 933 F.2d 588, 596 (7th Cir.1991). Because the taking of notice is committed to the broad discretion of the agency, we review the taking of administrative notice by the Board under the abuse of discretion standard.

The Board is entitled to take administrative notice of a change of government. See, e.g., Kapcia v. INS, 944 F.2d 702 (10th Cir.1991) (notice taken of Solidarity party becoming member of Polish coalition government); Kubon v. INS, 913 F.2d 386, 388 (7th Cir.1990) (same); United States ex rel. Mercer v. Esperdy, 234 F.Supp. 611, 616 (S.D.N.Y.1964) (notice taken of unsafe conditions in Haiti). 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. INS, 802 F.2d 89, 93 n. 4 (3d Cir.1986); see also Ohio Bell Tel. Co. v. Public Util. Comm'n, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); Kaczmarczyk, 933 F.2d at 596. According to the Seventh Circuit, in exercising official notice, "administrative agencies may consider commonly acknowledged facts.... The Board's notice of current events bearing on an applicant's well-founded fear of persecution ... falls within this accepted category." Kaczmarczyk, 933 F.2d at 593-94 (citing McLeod, 802 F.2d at 93 n. 4). The Board may also draw reasonable inferences from the evidence which "comport with common sense." Kapcia, 944 F.2d at 702; Kaczmarczyk, 933 F.2d at 594; cf. NLRB v. Milk Drivers & Dairy Employees, 531 F.2d 1162, 1165 (2d Cir.1976).

We are constrained to find that the Board did not abuse its discretion by taking official notice that Chamorro is now in power and the Sandinistas are not. We cannot decide otherwise because there is properly before us no evidence to the contrary. Rivera argues for the first time to this court that Chamorro's regime is crumbling. Rivera's attempt to argue officially noticed facts for the first time in this forum is misplaced, for we cannot weigh evidence that has not been...