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Taking administrative notice in immigration cases

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Taking administrative notice in immigration cases

  1. 1. Taking Administrative Notice In Immigration Cases By Joseph P. Whalen 1 (September 5, 2012)Once again, I found inspiration for an essay in an unpublished Circuit Courtsummary order. This time from Ndiaye v. Holder, No. 11-3550 (2nd Cir. 9-4-2012),as follows, with emphasis added: “.................................... The BIA also did not err in citing the more recent 2009 Mauritania Country Report of which it took administrative notice, which indicated that the national reconciliation program for the repatriation of Afro- Mauritanian refugees from Senegal and Mali conducted, in coordination with the Office of the United Nations High Commissioner for Refugees, was successfully concluded. See Qun Yang v. McElroy, 277 F.3d 158, 163 n.4 (2d Cir. 2002) (“It is well-settled that the BIA has the authority to take administrative notice of current events bearing on an applicant’s well-founded fear of persecution.”).” At p. 4Of course, I felt it was necessary to have a closer look at the cited decision and thespecific footnote found therein. Qun Yang v. McElroy, 277 F.3d 158, 163 n.4 (2dCir. 2002), which states: FN4 “It is well-settled that the BIA has the authority to take administrative notice of current events bearing on an applicants well- founded fear of persecution. E.g., Meghani v. INS, 236 F.3d 843, 847-48 (7th Cir. 2001); De Llana-Castellon v. INS, 16 F.3d 1093, 1095-96 (10th Cir. 1994).”Looking to the context within the Qun Yang Decision to see what surrounded thatfootnote, I found a very important context, namely, dealing with long drawn outcases where the mere passage of time2 may have allowed for significant real worldchanges to take place that likely have a direct effect on the outcome of the currentcase. Specifically, the Second Circuit panel noted the following key points (thisexcerpt is edited down here and I have added emphasis but if you are trulyinterested in the topic, please use the links provided and go digest the wholething—it’s worth it.).1 E-mail: joseph.whalen774@gmail.com or visit http://www.slideshare.net/BigJoe5/documents2 Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989) is a favorite of mine for a discussion of theeffects of the mere passage of time on the outcome of a case on appeal. Page 1 of 3
  2. 2. ¶ 13 “The recurring problem of the significant time gaps between theoperative events, Board determination, and appellate review, has beenconsidered by several circuits but has not yet been fully addressed by theSecond Circuit. Some courts have strictly adhered to the record before theBoard. ........ Other courts have themselves taken judicial notice of changedcircumstances. E.g., Dobrota v. INS, 195 F.3d 970, 973 (7th Cir. 1999)(taking judicial notice of most recent report on Romania sua sponte ascurrent conditions in the country were "crucial" to the courts decision);Ivezaj v. INS, 84 F.3d. 215, 218-19 (6th Cir. 1996) (taking judicial noticeof persecution of Albanians by Serbs in the former Yugoslavia). The BIAitself has on occasion noted sua sponte changed conditions in the country towhich the alien would be deported as a grounds for denial of asylum,Kaczmarczyk v. INS, 933 F.2d 588, 594-95 (7th Cir. 1991), but appearsnot to have done so as a grounds for granting this relief.¶ 14 The third, and we believe preferable procedure is that suggested by theINS to the Seventh Circuit in Asani, 154 F.3d at 725-26 & n.3 as well as tothis Court. Remand to the Board recognizes that the Board is theadjudicative body having primary responsibility and experience inasylum matters. This procedure recognizes that the IJ whose decision theBoard reviews, unlike an Article III judge, is not merely the fact finder andadjudicator but also has an obligation to establish the record. 8 U.S.C. §1229a (b)(1) ...........................; Charles H. Koch, Jr., Administrative Lawand Practice § 5.25 (2d ed. 1997) (noting that "[t]he presiding official ispivotal to the factfinding function of an evidentiary hearing and hence,unlike the trial judge, an administrative judge has a well establishedaffirmative duty to develop the record."). 3¶ 15 The BIA in 1998 affirmed a 1994 decision of the IJ predicatedprimarily on a 1993 State Department Country Report. But current countryconditions "bear vitally" as to asylum, Osmani v. INS, 14 F.3d 13, 14 (7thCir. 1994) and because the administrative record is silent as to Chinascontemporary treatment of persons with backgrounds similar to Yangs, weagree with the INS that remand is appropriate in this case.4¶ 16 Remand to the BIA will enable it to address several respects inwhich the present record appears deficient. Page 2 of 3
  3. 3. ¶ 17 First, as noted, there is the significant time gap between the 1993 State Department Country Report and the time of the proposed deportation. It is, of course, possible that Chinas attitude and treatment of returned alleged dissidents has not altered in the past eight years, but the consequences of deportation are simply too grave to leave this solely to surmise. ¶ 18 We recognize, as the INS urges, that the burden of proof rests with the applicant for asylum, but a burden of production rests with the INS. The INS not only has this burden but also has greater access than does the alien --even an alien represented by counsel, see supra, n.3 -- to State Department documents and other sources of current data. See James Fleming, Jr., et al. Civil Procedure § 7.16, at 344 (4th ed. 1992)(noting that while not "controlling" that "the burden of proof traditionally is placed on the party having the readiest access to knowledge about the fact in question."). Of course, the applicant through his counsel should present to the BIA relevant material available to him, but the burden should not fall solely on the applicant whose resources may often be quite limited.”In paragraph (¶) 13, above, I see that the “Culture of NO!” was rearing its uglyhead. Can you see it? Anyway, a decade has passed since the case from which Imade that observation was decided. Things have gotten better but as some mayrecall. The Ninth Circuit recently reviewed a case wherein, the “Culture of NO!”was most obvious, evident, and dissuaded. In the case of Anderson v Holder, No.07-74042 (9th Cir. March 12, 2012), the Ninth Circuit additionally noted that“[t]he government’s position is that the word “legitimation” should be readbroadly when a broad reading results in the denial of citizenship, andnarrowly when a narrow reading results in the denial of citizenship. ...”These few cases contain many more cases to explore for the adventurous but I willleave off right here. Others might want to look at Meghani v. INS, 236 F.3d 843(7th Cir. 2001) and/or De Llana-Castellon v. INS, 16 F.3d 1093 (10th Cir. 1994).That’s my two-cents, for now. Page 3 of 3

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