January 18, 1994  United States Court of Appeals
                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-1678
No. 93-1486

                 TESFAYE ABERRA GEBREMICHAEL,

                         Petitioner,

                              v.

           IMMIGRATION AND NATURALIZATION SERVICE,

                         Respondent.

                                         

           ON PETITIONS FOR REVIEW OF ORDERS OF THE
                 BOARD OF IMMIGRATION APPEALS

                                         

                            Before

                  Torruella, Selya and Stahl,
                       Circuit Judges.
                                     

                                         

                         ERRATA SHEET

The opinion of this Court issued on November 23, 1993, is  amended
as follows:

Page 3,  line 7:   Replace "Jehovah's Witness"  with "Seventh
Day Adventist"

Page 3, footnote  3:  Replace "Jehovah's Witnesses" with  "Seventh
Day Adventists"

December 14, 1993   United States Court of Appeals
                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-1678
No. 93-1486

                 TESFAYE ABERRA GEBREMICHAEL,

                         Petitioner,

                              v.

           IMMIGRATION AND NATURALIZATION SERVICE,

                         Respondent.

                                         

           ON PETITIONS FOR REVIEW OF ORDERS OF THE
                 BOARD OF IMMIGRATION APPEALS

                                         

                            Before

                  Torruella, Selya and Stahl,
                       Circuit Judges.
                                     

                                         

                         ERRATA SHEET

The opinion of this Court issued on November 23, 1993, is  amended
as follows:

Page 21,  continuation  of  footnote  24, second  line  -  replace
"unless" with "if".

                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-1678
No. 93-1486

                 TESFAYE ABERRA GEBREMICHAEL,

                         Petitioner,

                              v.

           IMMIGRATION AND NATURALIZATION SERVICE,

                         Respondent.

                                         

           ON PETITIONS FOR REVIEW OF ORDERS OF THE
                 BOARD OF IMMIGRATION APPEALS

                                         

                            Before

                  Torruella, Selya and Stahl,
                       Circuit Judges.
                                     

                                         

Eliza C. Klein for petitioner.
              
Donald  A.  Couvillon,   Civil  Division,  Office  of  Immigration
                     
Litigation, with  whom Frank  W. Hunger,  Assistant Attorney  General,
                                   
Stuart M. Gerson,  Assistant Attorney General,  and Richard M.  Evans,
                                                                 
Assistant  Director, Office of  Immigration Litigation, were  on brief
for respondent.
                                         

                      November 23, 1993
                                         

          STAHL,  Circuit  Judge.     In  these  consolidated
                                

appeals, petitioner  Tesfaye  Gebremichael  claims  that  the

Board of  Immigration Appeals  (the  Board or  BIA) erred  in

finding   him   ineligible   for   asylum,   withholding   of

deportation, and suspension of deportation.  See 8  U.S.C.   
                                                

1158(a),  1253(h),  and  1254(a)  (1988  &amp;  Supp.  IV  1992).

Petitioner's  principal argument is  that he is  eligible for

asylum as a result of  the detention and torture visited upon

him as a  means of persecuting his brother.   Petitioner also

raises the vexing procedural issue of when the Board can take

"official  notice" of  country  conditions without  giving an

alien warning or a predecision opportunity to respond.  After

a  careful review,  we hold  that  petitioner is  statutorily

eligible for asylum  and that he is entitled  to a meaningful

opportunity to respond  to extra-record facts noticed  by the

Board. 

                              I.
                                

                         BACKGROUND1
                         BACKGROUND
                                   

          Petitioner is an Ethiopian alien of Amhara descent.

He was born in 1960 in Addis Ababa, where some family members

continue  to live.   In  his early  years he lived  under the

shadow of the repressive Mengistu regime, although he himself

                    

1.  Since  neither  the  underlying  facts  nor  petitioner's
credibility are in dispute, we lay out the facts as described
by petitioner's testimony and other information in the record
submitted by him.

                             -2-
                              2

never  suffered physical  harm or  a  deprivation of  liberty

until he  was older.2   Petitioner was allowed to  finish his

education.   In 1981, he received an  engineering degree from

the  University of Addis Ababa and was ordered to work at the

Ethiopian Construction Authority.  

          In   September  1982,   the  military   authorities

arrested petitioner's father and younger brother as they were

participating  in a  Seventh Day  Adventist service.3   It is

undisputed  that  the  father  and brother  were  persecuted,

although  it  is  unclear  whether  they  suffered  religious

                    

2.  Under the feudal regime  of Haile Selassie,  petitioner's
family was the wealthy owner of several businesses.   Shortly
after  a revolution in  1974, the Dergue,  headed by Mengistu
Haile Mariam, took  power and imposed a Marxist  regime.  The
Dergue carried out a campaign of repression that included the
identification  of individuals who had been among the wealthy
class under the  former government,  repression of  religious
and political opposition activity, and extensive surveillance
of civilians by local committees.  The Dergue confiscated the
property  of  petitioner's  family.     Petitioner,  who  was
fourteen  years  old  at  the  time,  became  active   in  an
opposition organization,  although the Dergue  was apparently
not aware of  his political activity, if at  all, until after
he left the country.  In the "Red Terror" of 1976, the Dergue
heightened its  repressive activity and killed many suspected
opponents, frequently targeting families -- many of whom were
Amhara  -- who  had enjoyed  a privileged status  under Haile
Selassie.   Petitioner does not  claim that he or  his family
fell victim to the Red Terror.

3.  While the rest of petitioner's  immediate family remained
members of the Ethiopian Orthodox Church, petitioner's father
and  younger brother became Seventh Day Adventists just after
the revolution.

                             -3-
                              3

persecution, political persecution,  or both.4  In  any case,

petitioner's  father was imprisoned for over two years before

he  was released.   Petitioner's brother was  also imprisoned

but, following his transfer to a hospital in January 1983, he

managed to escape to the family home.  Petitioner then helped

"smuggle" his brother out of the country.5

          Shortly thereafter  petitioner was arrested  by the

Dergue.  Although  the authorities did not have  -- and never

obtained  --  any  information  linking   petitioner  to  his

brother's escape, petitioner was accused of aiding the escape

of  an  enemy of  the  state.   Petitioner was  taken  to the

Central  Investigation  Center,  controlled   by  the  agency

responsible for  investigating anti-revolutionary  activities

and opposition  to the government.   Every day for  two weeks

Dergue personnel interrogated and tortured petitioner as they

tried  to force him  to reveal  his brother's  hiding place.6

                    

4.  According  to petitioner,  in an  attempt  to coerce  his
father  and brother into  renouncing their religious beliefs,
the Dergue accused  them of "using  the name of  God and  the
church  to propagate false  information against the  state by
working  together with  foreign  Interventionists (i.e.,  the
CIA) who sought to overthrow  the government."  To the extent
that  the Dergue imputed pro-Western political beliefs to the
father  and  brother,  they   may  have  suffered   political
persecution.

5.  The  brother has since  been granted political  asylum in
the United States.

6.  Petitioner described his experience as follows:

          Each day, I  would be taken from  my cell
          to a  room where the  interrogations took

                             -4-
                              4

Petitioner was then  held for an additional three  and a half

months  in a  different section  of the  Center.   He  was no

longer interrogated but  was occasionally forced to  crawl on

sharp stones.   In  late June  1983, petitioner  was released

after the  Dergue  learned  that  his brother  had  left  the

country.  Upon release he was threatened with execution if he

were  to  engage  in any  political  or  religious activities

disfavored by  the government.   There is little  evidence in

                    

          place.   There, two men  with masks  over
          their heads would beat me on the soles of
          my feet [and] then they would call in the
          political cadre, who demanded information
          about my brother.   I always said  that I
          knew  nothing  about his  whereabouts  or
          this escape.   The political  cadre would
          then  order  the  other  men  to  inflict
          various tortures on me  before I would be
          subjected to the next round of questions.
          Sometimes they would push my  head into a
          tank of  filthy water until I nearly lost
          consciousness.  Then they would let me up
          and  I would  be  questioned  again.   At
          other times  they would threaten  to kill
          me and then  enact a mock execution.   In
          still  another  method  used  to make  me
          talk, they would throw me  onto the floor
          of  a dark cell  and kick me  all over my
          body, including my head and genitals.  On
          other occasions  I would just  be beaten,
          and  frequently I was made to crawl on my
          knees over  sharp stones for a  half hour
          at a  time.   In  all, the  interrogation
          sessions  usually   lasted  approximately
          three  hours, at the end of which I could
          be physically thrown or kicked back  into
          my cell.

                             -5-
                              5

the  record  that  petitioner   was  ever  formally  charged,

prosecuted, or convicted.7  

          Fearing  additional  mistreatment   if  the  Dergue

learned  of his  role  in  his brother's  escape  or his  own

opposition  political activities,  petitioner  made plans  to

leave  the country.   He  obtained an  illegal  passport and,

through UNESCO,  secured a  student visa  and scholarship  to

attend graduate school in Sierra  Leone.  He left Ethiopia in

October 1983.

          After   completing  his   studies  in   June  1985,

petitioner  still  feared  persecution  should  he  return to

Ethiopia but  believed he would  not be allowed to  remain in

Sierra Leone.  While it  is not clear when petitioner decided

to  attempt to  stay in  the United  States, he  entered this

country on June  23, 1985, with a six  month visitor's visa.8

Petitioner applied for asylum on December 12, 1985.

          At  a   deportation  hearing   later  that   month,

petitioner conceded  deportability but moved  for three forms

of  relief  from   deportation  under  the   Immigration  and

                    

7.  We   note  again  that  the  immigration  judge  did  not
discredit petitioner's  testimony, which was  corroborated to
an  extent by  a physical  examination  of petitioner  (which
showed permanent scars on his knees) as well as evidence from
the   State  Department   and   human  rights   organizations
describing the Dergue's typical torture techniques.

8.  Petitioner's brother was  living in the United  States at
the time.

                             -6-
                              6

Nationality  Act  (INA):  political asylum,9  withholding  of

deportation10  and  voluntary  departure.11     8  U.S.C.    

1158(a), 1253(h), and 1254(e) (1988 &amp; Supp. IV 1992).  The IJ

granted  petitioner's  request  for voluntary  departure  but

denied  the other two applications.  Petitioner then appealed

to  the Board,  which received  briefs in  November  1989 and

heard oral argument in March 1990.  The Board did not issue a

decision until two years had passed.

                    

9.  Under  8 U.S.C.    1158(a)  the  Attorney General  (whose
authority  in these  matters  is delegated  to the  INS, with
review by the Board) has the discretion to grant asylum to an
alien who  qualifies as a  "refugee" within the meaning  of 8
U.S.C.    1101(a)(42)(A) (1988).   In relevant  part, section
1101(a)(42)(A) defines "refugee" as

          any  person who is outside any country of
          such person's nationality  . . . and  who
          is unable  or unwilling to return to, and
          is unable  or unwilling to  avail himself
          or  herself of  the  protection of,  that
          country because of persecution or a well-
          founded fear of persecution on account of
          race,  religion, nationality,  membership
          in   a   particular  social   group,   or
          political opinion.

10.  8  U.S.C.    1253(h)(1)  provides  that "[t]he  Attorney
General shall  not deport  or return  any alien  . .  . to  a
country  if the Attorney General determines that such alien's
life or  freedom  would  be threatened  in  such  country  on
account  of  race,  religion,  nationality, membership  in  a
particular social group, or political opinion.

11.  8  U.S.C.     1254(e)(1)   gives  the  Attorney  General
discretion to "permit any alien under deportation proceedings
. . . to depart voluntarily from the United States at his own
expense in lieu of deportation if such alien  shall establish
to the satisfaction  of the Attorney General that  he is, and
has  been, a person of good moral character for at least five
years  immediately preceding  his  application for  voluntary
departure."

                             -7-
                              7

          In the intervening time, conditions in Ethiopia had

changed drastically.  Mengistu fled  the country in May 1991,

the   Dergue  was  quickly   dismantled,  and   a  multiparty

transitional   government   was   established   to   organize

democratic elections.   The transitional  government declared

that citizens in exile were welcome to return.

          In  its decision on  March 25, 1992,  the Board not

only reviewed the  record de novo but also  looked beyond the
                                 

record to take administrative notice of the political changes

in Ethiopia as  described in a state department  report.  The

Board did  not inform petitioner  of its intention  to notice

these facts,  nor did it  give  petitioner an  opportunity to

respond.    Although  it  extended  the  time  for  voluntary

departure,  the   Board  affirmed   the  IJ's   finding  that

petitioner  was not eligible for either asylum or withholding

of deportation.

          The Board  found petitioner  ineligible for  asylum

for  failure  to prove  either  past persecution  or  a well-

founded  fear of future persecution.  The Board reasoned that

petitioner had not shown  that the "reprehensible"  detention

and torture inflicted  on him in 1983 were "to punish him for

one of the five grounds specified in the [INA] rather than to

compel him to reveal the whereabouts of his missing brother."

In re  Gebremichael, No. A26876916,  slip op. at 3  (BIA Mar.
                   

25,  1992)  (Gebremichael  I).   The  Board  also  found that
                            

                             -8-
                              8

petitioner had not demonstrated a well-founded fear of future

persecution on any basis.  Additionally, the Board noted that

the  political  changes  in  Ethiopia  undercut  petitioner's

claims that  he might be  persecuted if he  were repatriated.

Finally,  the Board rejected  the request for  withholding of

deportation,  which requires an  even greater showing  of the

likelihood of future persecution.

           Petitioner then filed  with the Board a  motion to

reconsider   its   denial  of   asylum  and   withholding  of

deportation as well  as to reopen to  allow him to  apply for

                             -9-
                              9

suspension  of   deportation.12     Concurrently,  petitioner

sought review in this court.13

                    

12.  Pursuant to 8 U.S.C.   1254(a) (1988 &amp; Supp. IV 1992):

          the   Attorney   General  may,   in   his
          discretion,  suspend  deportation  [of an
          alien who] has been physically present in
          the United States for a continuous period
          of not less than  seven years immediately
          preceding  the  date of  [the  suspension
          application,] and proves  that during all
          of such period he was and is a person  of
          good  moral character;  and  is a  person
          whose deportation  would, in  the opinion
          of  the   Attorney  General,   result  in
          extreme hardship to the alien.

     Under 8 C.F.R.   3.2  (1993), the Board "may on  its own
motion reopen or reconsider any case in which it has rendered
a  decision."     The  regulation   provides,  however,  that
"[m]otions  to reopen in deportation proceedings shall not be
granted unless it appears  to the Board that evidence  sought
to be offered is material and was not available and could not
have been  discovered or  presented at  the former  hearing."
Id.
   

13.  The  Board's  first  decision was  a  "final  order[] of
deportation" that can be appealed to this court pursuant to 8
U.S.C.    1105a (1988 &amp; Supp.  IV 1992).   While a petitioner
must "exhaust[] the administrative remedies  available to him
as of  right under the  immigration laws and  regulations," 8
U.S.C.   1105a(c),  a petitioner need not  move for rehearing
by the Board in order to  fulfill the exhaustion requirement.
Rhoa-Zamora v.  INS, 971 F.2d  26, 31 (7th Cir.  1992), cert.
                                                             
denied  113 S. Ct.  2331 (1993).   But see Dokic  v. INS, 899
                                                        
F.2d 530, 532 (6th  Cir. 1990).  We have not  yet decided, as
have some circuits, whether the  filing of a motion to reopen
                                       
deprives  us of jurisdiction  we would  otherwise have.   See
                                                             
White v. INS, No.  92-2949, 1993 WL  393862, at *6 (8th  Cir.
            
Oct. 8, 1993)  (holding that pendency of motion  to reopen or
reconsider an order of deportation  does not render the order
nonfinal for jurisdictional purposes);  Rhoa-Zamora, 971 F.2d
                                                   
at 32-33 (same); Alleyne v. INS, 879 F.2d 1177, 1181 (3d Cir.
                               
1989) (same).  But see Fleary v. INS, 950 F.2d 711, 713 (11th
                                    
Cir. 1992) (filing  of motion to reopen render's BIA decision
nonfinal and non-appealable); Jian Gang  Chu v. INS, 875 F.2d
                                                   
777, 780-81 (9th  Cir. 1989) (same).  In this  case, we opted

                             -10-
                              10

          In support of his  motion to reconsider, petitioner

offered an array of  new evidence to bolster  his proof of  a

well-founded   fear  of  future   persecution.    Relying  on

affidavits and  background material, petitioner  claimed that

persecution was once again part of the currency  of political

conflict in Ethiopia.  There was evidence that the multiparty

coalition that  ousted Mengistu  had fractured  and that  the

government was  dominated by  Marxist members  of the  Tigray

ethnic group who  were increasingly  intolerant of  political

and ethnic differences.  There was also evidence that, should

he  return to  Ethiopia,  petitioner could  face  persecution

based  on  his Amhara  ethnicity,14  his family's  privileged

social  status before the 1974 revolution, and his expatriate

political activity in opposition to the new government.

          As  part of  his motion  for rehearing,  petitioner

also moved to reopen so that he could apply for suspension of

deportation on the ground that repatriation  would constitute

"extreme hardship" to  him.  While  petitioner did not  claim

that he  would be  unable to  make a  living in  Ethiopia, he

                    

for a  prudent alternative:  staying our  decision until  the
Board  resolved petitioner's  motions  and consolidating  the
initial appeal with an appeal from a denial of the motion for
rehearing.

14.  We note in passing that one federal court recently found
that  "the Amharan people are now  the subject of persecution
by the Tigrean  government that is in power  in Addis Ababa,"
and that  an Ethiopian alien  of Amhara descent had  raised a
"well-founded  fear  of  persecution."    United   States  v.
                                                         
Dagnachew, 808 F. Supp. 1517, 1522 (D. Colo. 1992).
         

                             -11-
                              11

argued  that his  departure  would  rupture important  family

ties,15 deprive  him of  "the only safe  home [he]  has known

since  he  was   fourteen  years  old,"  and   aggravate  his

depression and anxiety, perhaps to the point of suicide.

          Reaching  the merits  of  petitioner's claims,  the

Board stated  that "none  of the  evidence presented by  this

respondent  in any way  changes our view  of the respondent's

asylum application."  In re Gebremichael, No. A26876916, slip
                                        

op. at 3 (BIA Apr. 20, 1993) (Gebremichael II).   Once again,
                                             

without   warning  and   without   providing  a   predecision

opportunity to respond, the Board took administrative  notice

of another state department report which suggested that there

had been  no widespread  acts of  persecution of  minorities,

including the Amharas.  The Board then reaffirmed its finding

that petitioner was  ineligible for asylum or  withholding of

deportation.

          Finally, the Board found that petitioner  failed to

present prima facie evidence of "extreme hardship" sufficient
                   

                    

15.  Five  of  petitioner's  siblings  are currently  in  the
United  States: Solomon was  admitted in  1984 as  a refugee;
Getachew was admitted as a refugee in 1991 (after  Mengistu's
fall); Tiruwork  is a permanent resident; and Genet and Yosef
are students in  the United States.  Getachew  and Yosef live
with petitioner, although there is no  evidence that they are
currently dependent  on him.   While  petitioner's mother  is
also  a permanent resident,  she has since  returned to Addis
Ababa to be with petitioner's  father and sister Tigist.  One
brother has already filed a visa petition to allow the father
to come to the United States.

                             -12-
                              12

to qualify him  for suspension of deportation.16   To support

its  finding, the  Board noted  that petitioner  (1) did  not

appear to  be the  primary  financial support  of any  family

member; (2) is a highly educated young man who could probably

obtain  employment anywhere  he went;  (3)  has sizable  bank

assets which he could use to reestablish himself in Ethiopia;

(4)  did  not  present  entirely  credible  evidence  of  the

psychological consequences  of repatriation; and (5)  did not

substantiate  his  claim that  he  would be  targeted  by the

present government in Ethiopia.

          Petitioner  appealed the  denial  of the  motion to

reopen and reconsider and we consolidated the two appeals.  

                             II.
                                

                      STANDARD OF REVIEW
                                        

          The Board's determination  of statutory eligibility

for relief  from deportation --  a mixed question of  law and

fact  --   is   conclusive  if   "supported  by   reasonable,

substantial, and probative evidence on the record  considered

as a  whole."  8 U.S.C.    1105a(a)(4) (1988); INS  v. Elias-
                                                             

                    

16.  The INS  did not dispute petitioner's  allegations that,
during  the course  of  nearly  eight  years  of  immigration
proceedings, petitioner  has been  physically present  in the
United States and has been  a person of good moral character.
Petitioner has never  been arrested in the United  States and
his imprisonment and  torture at the hands of  the Dergue was
his only brush with the law in Ethiopia.  Petitioner has been
employed since September 1985.

                             -13-
                              13

Zacarias,  112 S. Ct.  812, 815 (1992).17    Thus,  to obtain
        

reversal  of  the  Board's  determination  of  ineligibility,

petitioner "must  show that the evidence he  presented was so

compelling that no  reasonable factfinder could fail  to find

[the elements  of statutory  eligibility]."   Elias-Zacarias,
                                                            

112 S. Ct. at 817.  

                             III.
                                 

                          DISCUSSION
                                    

          Of the multitude  of issues petitioner raises,  two

arguments require serious consideration: (1) the  Board erred

in failing  to find petitioner  eligible for asylum  based on

his  detention  and  torture  at  the  hands  of  the  former

Ethiopian government;  and (2)  the Board unfairly  surprised

petitioner by  taking administrative notice of  conditions in

his country of origin.  We address each in turn.18

                    

17.  We  agree  with  respondent that  we  normally  review a
denial  of a  motion to  reopen  or reconsider  for abuse  of
discretion.   See  INS v.  Doherty,  112 S.  Ct. 719,  724-25
                                  
(1992); Leblanc v. INS, 715 F.2d 685, 692-93 (1st Cir. 1983).
                      
We  do  not  agree, however,  that  the  abuse of  discretion
standard governs  the assignment of  error at  issue in  this
case.    Where  the  agency  denies a  motion  to  reopen  or
reconsider   by   making   a   determination   of   statutory
eligibility,  that   determination  must   be  supported   by
substantial evidence.  See Elias-Zacarias, 112 S.  Ct. at 815
                                         
(reviewing asylum  eligibility determination  for substantial
evidence even after Board's discretionary denial of motion to
reopen).

18.  We do not  address in any detail  petitioner's meritless
argument that the  Board erred in finding him  ineligible for
withholding of deportation  under 8 U.S.C.    1253(h).   Even
without  recourse   to  extra-record   evidence  of   country
conditions, the  Board reasonably  found that  petitioner had

                             -14-
                              14

A.  Asylum
          

          Asylum  involves a two-step process:  (1) a finding

of  statutory eligibility; and  (2) a  discretionary decision

whether  to grant asylum.  Alvarez-Flores, 909 F.2d at 3.  An
                                         

alien is eligible for asylum if  he can show that, on account

of one of the five grounds enumerated in the  INA, supra note
                                                        

9,  he has suffered  past persecution  or has  a well-founded
                                         

fear of future  persecution.  See Ravindran v.  INS, 976 F.2d
                                                   

754, 758 (1st  Cir. 1992) (citing Desir v.  Ilchert, 840 F.2d
                                                   

723,  729 (9th Cir. 1988) ("[P]ast persecution, without more,

satisfies  the [definition  of  refugee] even  independent of

establishing a well-founded  fear of future  persecution."));

see also Skalak v. INS, 944 F.2d 364, 365 (7th Cir. 1991); In
                                                             

re H-M, Int. Dec. 3204, 1993  WL 315990, at *4 (BIA Aug.  11,
      

1993); In re T-, Int. Dec. 3187,  slip op. at 9 (BIA Oct. 13,
               

1992); In re Chen, Int. Dec. 3104, slip op. at 3-4  (BIA Apr.
                 

25, 1989);  8 C.F.R.    208.13(b) (1993) ("The  applicant may

                    

not demonstrated a "clear probability" of future  persecution
should he return to Ethiopia.  See Alvarez-Flores v. INS, 909
                                                        
F.2d 1,  3 (1st Cir.  1990) (citing  INS v. Stevic,  467 U.S.
                                                  
407, 429-30 (1984)).   For the reasons stated  infra note 19,
                                                    
we express no  opinion on whether the Board  erred in finding
that petitioner failed to make the lesser showing of a "well-
founded"  fear  of  future persecution  with  respect  to the
asylum claim.  Cf. Alvarez-Flores,  909 F.2d at 4 (discussing
                                 
difference between  standards for  asylum and  withholding of
deportation); Blanco-Comarribas v.  INS, 830 F.2d  1039, 1042
                                       
(9th Cir. 1987) (holding that fear is "well-founded" if there
is "[e]ven a ten percent chance that the occurrence will take
place") (citing  INS v.  Cardoza-Fonseca, 480  U.S. 421,  431
                                        
(1987)).

                             -15-
                              15

qualify  as a refugee  either because he  has suffered actual
                             

past persecution  or because  he has  a well-founded  fear of
                    

future persecution.") (emphasis supplied).

          Petitioner claims  that the Board  erred in finding

him ineligible  for asylum  despite the  torture and  lengthy

detention  he suffered under  Ethiopia's former regime.   The

Board  did not find  that the harm  inflicted upon petitioner

was too mild to  constitute persecution.  Instead, the  Board

essentially held that petitioner was merely a vehicle for the

persecution   of  his   brother  and   not   the  victim   of

"persecution"  within the  meaning  of the  INA.   The  Board

reasonably found  that the Dergue did not  detain and torture

petitioner because of his own  actual or imputed political or

religious beliefs.    Nonetheless,  however  reasonable  this

finding,  it does not  dispose of petitioner's  asylum claim.

Petitioner argues --  and we agree -- that  he was persecuted

for other reasons equally cognizable under the INA. 
         

          Petitioner's  strongest argument  is  that he  is a

refugee  because  he   was  mistreated  on  account   of  his

relationship  to his  brother.19   While  most asylum  claims

                    

19.  Petitioner  also advances two  other theories to support
his  claim of  past persecution:  (1)  he is  a political  or
religious refugee because he was  an intended conduit for the
political or religious persecution of another;  and (2) he is
a  political refugee because he suffered excessive punishment
under  suspicious  circumstances.   In  addition,  petitioner
claims that he is eligible for asylum based on a well-founded
fear  that he  will face  future persecution  in Ethiopia  on
account  of his ethnicity, social status and political views.

                             -16-
                              16

involve  other  types  of persecution,  the  INA  also offers

refugee status to victims of "persecution on account of . . .

membership  in  a  particular  social  group."    8  U.S.C.  

1101(a)(42)(A).20   An  applicant  qualifies as  a  "refugee"

under the INA if membership in a social group is "at the root

of  persecution,"  such  that membership  itself  generates a

"specific threat to the  [applicant]."  Ananeh-Firempong, 766
                                                        

F.2d   at   626-27   (citation   and   quotation    omitted).

Accordingly,   we  must  determine  whether  a  family  is  a

cognizable  "social group" within the meaning of the INA and,

if  so, whether  petitioner's torture  and  detention by  the

authorities can be traced to his family membership.

          In  laying out  general  principles governing  this

type of persecution, the Board has stated that

                    

In light  of our  holding below that  petitioner is  a social
refugee based on  past persecution, we  do not address  these
other theories.

20.  This ground  of persecution  is not  frequently used  or
interpreted, probably  because  most  asylum  claims  involve
other types of persecution as  well.  See United Nations High
                                         
Commissioner  for  Refugees,   Handbook  on  Procedures   and
                                                             
Criteria for  Determining Refugee Status    77, at  19 (1979)
                                        
(U.N.  Handbook) ("A claim  to fear of  persecution [based on
membership  in  a  particular  social  group] may  frequently
overlap with a claim to fear of persecution on other grounds,
i.e. race,  religion or nationality.");  cf. Ananeh-Firempong
                                                             
v. INS, 766 F.2d 621, 626  (1st Cir. 1985) (referring to U.N.
      
Handbook  as  a  "useful tool"  for  interpreting  the phrase
"social group")  (citation omitted).   At the  same time,  we
have followed the language of the statute in recognizing that
social  group  persecution  can be  an  independent  basis of
refugee status.  See Ananeh-Firempong, 766 F.2d at 626-627.
                                     

                             -17-
                              17

          "persecution on account  of membership in
          a  particular  social  group" encompasses
          persecution  that is  directed toward  an
          individual  who is a member of a group of
          persons  all  of  whom  share  a  common,
          immutable  characteristic.    The  shared
          characteristic  might  be an  innate  one
          such as  sex, color, or kinship  ties, or
                                               
          in  some  circumstances  it  might  be  a
          shared  past  experience such  as  former
          military  leadership  or  land ownership.
          The    particular    kind     of    group
          characteristic  that  will  qualify under
          this   construction    remains   to    be
          determined  on   a  case-by-case   basis.
          However,     whatever      the     common
          characteristic that defines the group, it
          must be one that the members of the group
          either  cannot change,  or should  not be
          required   to   change  because   it   is
          fundamental    to     their    individual
          identities or consciences.

In re Acosta, 19 I. &amp;  N. Dec. 211, 233 (BIA 1985)  (emphasis
            

supplied), overruled on other grounds by In re Mogharrabi, 19
                                                         

I. &amp; N. Dec. 439 (BIA 1987).  See also Gomez v. INS, 947 F.2d
                                                   

660, 664 (2d Cir. 1991)  (explaining that a social group must

be  "recognizable  and  discrete"  such  that  the  "would-be

persecutors could identify  them as members of  the purported

group").

          There  can, in  fact, be  no plainer  example  of a

social group  based  on common,  identifiable  and  immutable

characteristics than  that of  the nuclear  family.   Indeed,

quoting  the Ninth  Circuit,  we  recently  stated  that  "`a

prototypical  example of  a `particular  social  group' would

consist of  the immediate  members of  a certain  family, the

family being  a focus  of fundamental  affiliational concerns

                             -18-
                              18

and  common interests for most people.'"  Ravindran, 976 F.2d
                                                   

at 761 n.5 (1st Cir.  1992) (quoting Sanchez-Trujillo v. INS,
                                                            

801 F.2d 1571, 1576 (9th Cir. 1986)).21

          We now turn  to the question of causation.   In the

case  on appeal,  the  link  between  family  membership  and

persecution is manifest:  as the record  makes clear and  the

INS itself concedes, the Ethiopian security forces applied to

petitioner the  "time-honored theory  of cherchez  la famille
                                                             

(`look for  the family'),"  the terrorization  of one  family

member to extract  information about the location  of another

family member or  to force the missing family  member to come

forward.  As  a result, we are compelled  to conclude that no

reasonable  factfinder could fail to find that petitioner was

singled out for  mistreatment because of his  relationship to

his  brother.    Thus,  this  is  a  clear  case  of  "[past]

persecution on  account of .  . . membership in  a particular

social group."  8  U.S.C.   1101(a)(42)(A).  Accordingly,  we

must determine what relief, if any, is necessary.

          Remand  will  not always  be  appropriate when  the

Board has  erred in determining eligibility for discretionary

relief from  deportation.  If the Board  has already properly

                    

21.  The exact state  of the law in the Ninth  Circuit is not
entirely  clear.    Without  mentioning  Sanchez-Trujillo  or
                                                         
analyzing the question  in depth, a panel  in Estrada-Posadas
                                                             
v.  INS, 924  F.2d 916,  919 (9th Cir.  1991), held  that the
       
concept of persecution  of a social group does  not extend to
the persecution of a family.

                             -19-
                              19

exercised  its discretion to  deny relief, remand  would be a

futile gesture.   See  Leblanc, 715 F.2d  at 691  (finding no
                              

need  to remand  where Board  "clearly  made a  discretionary

decision"); see also  Dhine v. Slattery, 3 F.3d  613, 619 (2d
                                       

Cir. 1993) (declining to remand to IJ on issue of relief from

deportation where BIA  had "plainly stated" that it would not

grant relief in the exercise of discretion  even if applicant

were eligible).   In  this case, however,  the Board  has not

clearly stated that it  would deny asylum if  petitioner were

eligible.   Quite the  contrary, the Board  has asserted that

"[b]ecause  we have  found  that  the  respondent  failed  to

establish his statutory  eligibility for asylum, we  need not

address whether he merits that form of relief in the exercise

of  discretion."     Gebremichael   I,  slip   op.  at   3.22
                                     

                    

22.  Even  absent an obvious exercise of discretion, we might
decline  to remand  if reconsideration  by  the agency  would
clearly be an empty exercise.   See Hibbert v. INS,  554 F.2d
                                                  
17, 21  (2d Cir. 1977) (holding that,  since relief obviously
would  be denied  as a  matter  of discretion,  "there is  no
reason  to remand  the  case  to the  Board  for a  pointless
determination"  of statutory eligibility); see also In re San
                                                             
Juan Dupont Plaza Hotel Fire Litigation, 994 F.2d 956, 968-69
                                       
(1st  Cir.  1993)  (noting that  appellate  court  may forego
remand where remanding  would be an  empty exercise).   Here,
the  Board did  state  that there  were  no "humanitarian  or
compelling bases  warranting a grant of asylum," Gebremichael
                                                             
I,  slip op.  at 3.    Nonetheless, compelling  circumstances
 
appears to be an  alternative basis for granting asylum,  not
                                                
an independently sufficient  ground for denying asylum.   See
                                                             
In  re  Chen, Int.  Dec.  3104, slip  op.  at 5;  8  C.F.R.  
            
208.13(b)(1)  (1993).   Moreover, Board precedent  and agency
regulations  indicate  that  the Board  will  choose  to deny
asylum if it finds that the agency has proven that it is more
likely than not that petitioner  lacks a well-founded fear of
persecution.   See In  re Chen,  slip op.  at 4;  8 C.F.R.   
                              

                             -20-
                              20

Accordingly, we vacate the Board's conclusion that petitioner

is ineligible  for asylum and  remand for a  decision whether

the  Board,  in its  discretion,  will grant  asylum  in this

case.23

B.  Official Notice
                   

          Petitioner's  second  major  argument  is that  the

Board's taking  of official  notice of  extra-record material

fell short  of fundamental standards of  procedural fairness.

Since the noticed  material is  likely to  play an  important

                    

208.13(b)(1).  In this case,  a careful reading of the record
suggests  that  there  is   conflicting  evidence  about  the
likelihood  of  future  persecution.   As  will  be discussed
below, our  crystal ball  may also  be clouded  by procedural
error.  Petitioner was not afforded an opportunity to respond
to   the  noticed  fact   that  Amharas  have   not  suffered
persecution  under the new  regime, a fact  which has clearly
played an important role in the case.  As a result, we cannot
conclude that remand would be a futile gesture.

23.  We  note that  the Board appears  to have  misstated the
agency's  own guidelines  for  exercising  discretion  in  an
asylum case.  The Board stated:

          Even if one were to assume, however, that
          [petitioner's]  previous  experiences  in
          Ethiopia did amount  to past persecution,
          or that at the time  he left and for some
          time  thereafter  he had  a  well-founded
          fear of persecution should  he return, it
          has not be established that he  presently
          merits a grant of asylum.

Gebremichael I, slip  op. at 3.  The proper rule is that once
              
an applicant has shown past persecution, the burden shifts to
the  government  to show  that  the applicant  lacks  a well-
founded fear  of future  persecution.  See  In re  Chen, Int.
                                                       
Dec. 3104, slip op. at 4; 8 C.F.R.   208.13(b).

                             -21-
                              21

role on remand,24 we  address this issue  as well.  We  first

discuss when  and how the  Board may take official  notice of

extra-record facts.  We then determine whether it was  proper

for  the  Board  to  take notice  of  both  indisputable  and

disputable   facts   concerning   Ethiopia   without   giving

petitioner  any  warning  or  a  predecision  opportunity  to

respond.

          1.  The Legal Framework
                                 

          In    keeping   with    standard   principles    of

administrative  procedure   and   in  the   absence  of   any

prohibition in the  INA itself, the Board  has the discretion

to take "official" or "administrative" notice of extra-record

legislative facts.   See, e.g., Kaczmarczyk v.  INS, 933 F.2d
                                                   

588, 593 (7th Cir.), cert. denied, 112 S. Ct. 583 (1991); see
                                                             

generally 3 Kenneth C. Davis &amp; John P. Wilson, Administrative
                                                             

Law Treatise    15, at  132-217 (2d  ed. 1980).25   Thus, the
            

                    

24.  Board precedent and agency regulations indicate that the
exercise  of  discretion  on remand  will  depend  heavily on
extra-record evidence of country conditions.  See In re Chen,
                                                            
Int. Dec. 3104, slip op.  at 4 (Board may take administrative
notice  of changed  circumstances in  determining whether  to
grant  asylum); 8  C.F.R.     208.13(b)(1)  (victim  of  past
persecution shall be denied asylum  if it is more likely than
not  that, due to current country conditions, applicant lacks
well-founded fear of future persecution).

25.  Legislative  facts  are  those  which  "do  not  usually
concern the immediate parties but are the general facts which
help  the tribunal  decide  questions of  law and  policy and
discretion."  2  Administrative Law Treatise, supra,    12:3,
                                                   
at 413.   In contrast, "adjudicative facts usually answer the
questions of who  did what, where, when, how,  why, with what
motive or intent."  Id. 
                       

                             -22-
                              22

Board is  free to  take official notice  of facts  such as  a

change in  government in  an applicant's  home country.   See
                                                             

Acewicz  v.  INS,  984  F.2d  1056,  1060  (9th  Cir.   1993)
                

(reviewing  cases); Gutierrez-Rogue v. INS, 954 F.2d 769, 773
                                          

(D.C. Cir.  1992); Rivera-Cruz v.  INS, 948 F.2d  962, 966-67
                                      

(5th Cir. 1991); Kapcia v. INS, 944 F.2d 702,  705 (10th Cir.
                              

1991);  Kaczmarczyk, 933 F.2d  at 593-94; McLeod  v. INS, 802
                                                        

F.2d 89, 93 n.4 (3d Cir. 1986); Zamora v. INS, 534 F.2d 1055,
                                             

1062 (2d Cir. 1976) (Friendly, J.).26

                    

26.  Some  courts  have  suggested  that  the   propriety  of
official notice  turns on  whether the  extra-record fact  is
beyond reasonable  dispute.   See  Kapcia,  944 F.2d  at  705
                                         
("commonly acknowledged facts"  subject to official  notice);
Kaczmarczyk, 933  F.2d at 593-94  (same); McLeod v.  INS, 802
                                                        
F.2d at  93 n.4  (same); Dhine v.  District Director,  818 F.
                                                    
Supp. 671, 677 (S.D.N.Y.) (BIA erred in taking administrative
notice  of reasonably disputable fact that  there had been no
persecution  of Jews  in  Ethiopia  after  fall  of  Mengistu
regime), rev'd in part on other grounds, 3 F.3d  613 (2d Cir.
                                       
1993).  

     If there  is a rule against notice  of disputable facts,
however, it is  not applied strictly.  Courts  have held that
the  Board may draw  reasonable inferences  from indisputable
facts, even though the inferences bear a striking resemblance
to  disputable facts.   See  Kapcia, 944  F.2d at  705 (after
                                   
taking   administrative  notice   of  Solidarity's   commonly
acknowledged position in  Poland's new coalition  government,
BIA reasonably inferred  that Solidarity members will  not be
persecuted); Kaczmarczyk,  933 F.2d  at 594  (same).   Courts
                        
have also treated as indisputable certain facts that arguably
are not.   Compare  Gutierrez-Rogue v. INS,  954 F.2d  at 773
                                          
(holding that Board  could take official notice  of fact that
Sandinista party no longer  governs Nicaragua) with Castillo-
                                                             
Villagra v. INS, 972 F.2d 1017, 1027 (9th Cir. 1992) (holding
               
that   fact  that  Sandinistas  were  ousted  from  power  in
Nicaragua was  debatable because  Sandinistas retained  power
over police and military).

                             -23-
                              23

          In  contrast to the  opaque question of  the proper

subject  of  official  notice,  the more  important  question
       

concerns  the proper procedure  for reliance  on extra-record
                              

facts when an  alien's freedom to stay in  this country hangs

in   the  balance.     Since  the   exclusive  administrative

procedures of the INA do not include rules governing official

notice,  petitioner's procedural claim  must rest on  the Due

Process  Clause of the  Fifth Amendment.27   See Kaczmarczyk,
                                                            

933 F.2d  at 595.   It is  well settled  that an  alien in  a

deportation proceeding is entitled to procedural due process.

Id. at 595-60 (collecting cases).   The issue is what process
   

                    

     We   find  the   distinction   between  disputable   and
indisputable   legislative  facts   to   be  an   unnecessary
distraction from the  procedural rights at issue.   Professor
Davis suggests -- and we agree -- that any useful legislative
fact is properly subject to official notice whether that fact
is disputable or  not.  3 Administrative Law Treatise, supra,
                                                            
  15.11, at 185-87.

27.  Agency regulations promulgated  in 1990 already  provide
procedural protection governing the taking of official notice
by  asylum officers.   See  55 Fed.  Reg. 30,674  (1990) (now
                          
codified  at  8 C.F.R.     208.12(a) (1993))  ("Prior  to the
issuance of an adverse decision made in reliance  upon [state
department materials],  that material must be  identified and
the  applicant  must  be  provided  with  an  opportunity  to
inspect, explain, and  rebut the material .  . . .")   On its
face, however, the regulation applies to asylum officers, not
immigration judges  or the Board of Immigration  Appeals.  In
its 1992  decision on  the merits,  the  Board took  official
notice of conditions in Ethiopia without referring to section
208.12(a).  Gebremichael I, slip op. at 2.  Similarly, in its
                          
decision on the motion to reconsider, the Board  claimed that
its notice-taking  authority derived from  its "discretionary
powers of review"  under 8 C.F.R.    3.1(d)(1) (1993),  which
sets forth the general powers of the Board.  Gebremichael II,
                                                            
slip op. at 3.

                             -24-
                              24

is  due when  the Board  chooses to  take official  notice of

conditions in the applicant's home country.

          We  agree with the majority of those circuits which

have addressed the question that the motion to reopen process

can ordinarily  satisfy the demands  of due  process.28   See
                                                             

Gutierrez-Rogue,  954 F.2d at 773 (motion to reopen procedure
               

provides adequate opportunity to challenge officially noticed

fact);  Rivera-Cruz, 948 F.2d at 968 (same); Kaczmarczyk, 933
                                                        

F.2d at 595-97  (presuming that good faith  administration of

motion  to reopen  process  is  sufficient  to  satisfy  that

right).  But see Castillo-Villagra, 972 F.2d at 1029 (holding
                                  

that motion to reopen process  is not adequate to satisfy due

process);  Administrative Law Treatise, supra,   12:4, at 320
                                             

(Supp.  1989)  ("The  sound  practice  for  both  courts  and

agencies would be one of full liberality in allowing the free

                    

28.  The  distinction  between  disputable  and  undisputable
facts  has also unnecessarily  confused the question  of what
procedure  should  govern  official  notice  in   immigration
proceedings.   For example, the Seventh Circuit has suggested
that only "uncontroverted facts" are noticeable and then only
when  the applicant has  an adequate opportunity  to respond.
Kaczmarczyk,  933 F.2d  at 594-96.    In contrast,  the Ninth
           
Circuit has suggested that the  Board may take notice of both
indisputable and disputable facts, see Castillo-Villagra, 972
                                                        
F.2d  at  1028, but  that  the  Board  need not  provide  any
opportunity to  rebut  indisputable facts,  see Acewicz,  984
                                                       
F.2d at  1060.   The distinction  should  not be  dispositive
because  an applicant  is ordinarily  entitled  "not only  to
refute but, what in this situation is usually more important,
to supplement, explain, and give different perspective to the
facts upon which  the agency relies."  Kaczmarczyk,  933 F.2d
                                                  
at 596 n.7  (quoting 4 Jacob A. Stein  et al., Administrative
                                                             
Law,   25.01 n.7 (1986)) (internal citation omitted).
   

                             -25-
                              25

use  of legislative  facts .  .  . along  with strictness  in

requiring  that  parties  be given  a  predecision  chance to
                                                  

respond to  whatever  extra-record facts  are relied  upon.")

(emphasis supplied).29

          When, however, the  Board intends to  take official

notice in deciding a motion  to reopen or reconsider it would
                                                    

be absurd  to force an applicant  to file a  second motion to

respond  to  the  newly noticed  facts.    A  multiplicity of

motions   for  rehearing  in  this  context  would  have  two

undesirable effects:  dilution of the  applicant's procedural

rights  and   concentration  of  the   incentive  to  prolong

litigation.  Cf. INS v. Rios-Pineda, 471 U.S. 444, 450 (1985)
                                   

(discussing  alien's incentive  to delay  deportation through

meritless  appeals).   Thus,  even if  the availability  of a

motion to reopen  or reconsider will ordinarily  suffice, the

demands of due process will, as always,  ultimately depend on

                    

29.  The motion to reopen process was clearly not designed as
an opportunity to respond  to officially noticed facts.   See
                                                             
generally  Gomez-Vigil v. INS, 990 F.2d  1111, 1125 (9th Cir.
                             
1993) (per  curiam) (Fletcher, J., concurring)  ("Section 3.2
proceedings do  not suffice  because they  serve a  different
purpose and  are intended to  provide relief for  a different
problem.")   An applicant may be constitutionally entitled to
marshall old facts  in new ways, although a  motion to reopen
cannot  be granted unless the evidence offered was previously
unavailable.   See 8 C.F.R.   3.2.   Further, the filing of a
                  
motion  to reopen  does not  automatically stay  deportation.
See Castillo-Villagra,  972 F.2d  at  1029; Kaczmarczyk,  933
                                                       
F.2d  at 597 n.9.   Vindication of  an applicant's procedural
rights  thus  depends on  the  good  faith  of the  Board  in
handling the motion to reopen.   Accord Kaczmarczyk, 933 F.2d
                                                   
at 597 n.9.

                             -26-
                              26

the  circumstances.  See  Mathews v. Eldridge,  424 U.S. 319,
                                             

324  (1976).    We  therefore  turn to  an  analysis  of  the

particular circumstances animating petitioner's case. 

          2.  Petitioner's Opportunity to Respond
                                                 

          As it was free to do, the Board took administrative

notice of legislative facts contained in two state department

reports as evidence that petitioner lacks a well-founded fear

of   persecution.    See  Country  Reports  on  Human  Rights
                                                             

Practices  for 1992 (February 1993); Country Reports on Human
                                                             

Rights Practices for  1991 (February 1992).  The  Board cited
                          

the reports for the following  propositions:  (1) in late May

1991, President Mengistu Haile-Mariam fled into exile; (2) in

July  1991,  a  broad-based  national  conference  adopted  a

charter establishing a multiparty transitional government  to

organize  elections   before  1994;   (3)  the   transitional

government declared that  all citizens in exile  were welcome

to return; (4)  the change of government  brought significant

improvement  in human  rights,  particularly with  respect to

freedom  of  speech,  assembly,  association,  religion,  and

travel; and  (5) after the  1991 change of  government, there

were  no  widespread  acts   of  persecution  of  minorities,

including  the  Amharas.   Gebremichael  I,  slip op.  at  2;
                                          

Gebremichael II, slip op. at 4. 
               

          Based  on the principles outlined above, all of the

extra-record  facts considered by  the Board were  the proper

                             -27-
                              27

subject of official notice.  This is true for the first three

"commonly  acknowledged  facts"  concerning  the  change   of

government and statements in public documents.  It is equally

true  for the  last two  propositions, even  though they  are

reasonably disputable generalizations about actual conditions

in Ethiopia.

          The more  important question is  whether petitioner

was  afforded an  adequate  opportunity  to  respond  to  the

noticed  facts.   The Board  did not  warn petitioner  of its

intention to use extra-record materials; in  neither instance

did  petitioner have  a  predecision opportunity  to respond.

Cf. Acewicz, 984  F.2d at 1061  (finding no procedural  error
           

where applicants did in fact offer evidence before IJ and BIA

in response to noticed change of government).   Arguably, the

motion to reopen process allowed  the Board to cure the first

procedural   irregularity   because  petitioner   had   ample

opportunity  to respond to  the material  originally noticed.

However,  petitioner never had  an opportunity to  respond to

the material noticed in the Board's decision on the motion to

reopen and reconsider -- the (disputable) fact that there had

been  no widespread  persecution of  Amharas  after the  1991

change   of  government.    In  depriving  petitioner  of  an

opportunity to  respond to this  newly noticed fact  prior to

its adverse decision  on the motion to reopen and reconsider,

                             -28-
                              28

the Board abused our presumption  of good faith and ran afoul

of petitioner's procedural rights.30

C.  Suspension of Deportation
                             

          In addition to requesting a rehearing on his asylum

request,  petitioner  also moved  to  reopen his  deportation

proceedings in order  to apply for suspension  of deportation

under 8  U.S.C.    1254(a)(1).  Since  the Board  has already

denied  the   motion  to  reopen  on  the  merits  and  since

suspension  will be petitioner's only remaining remedy if the

Board exercises  its discretion  to deny  asylum, we  briefly

address this issue as well.

          Like an asylum  application, suspension involves  a

two-step process: (1) a finding of statutory eligibility; and

(2) an  exercise of agency  discretion.  See Vasquez  v. INS,
                                                            

767 F.2d 598, 601 (9th Cir. 1985).   An alien is eligible for

suspension of deportation if he

          has been physically present in the United
          States  for a  continuous  period of  not
          less   than   seven   years   immediately
          preceding  the  date of  [the  suspension
          application;] is  a person of  good moral
          character;   and   is  a   person   whose
          deportation would, in the opinion of  the
          Attorney  General,   result  in   extreme
                                                   

                    

30.  We take no  position on the exact nature  of the process
that was due,  such as whether petitioner was  entitled to an
evidentiary  hearing or merely  an opportunity to  respond to
the  noticed facts with  an additional brief  supplemented by
affidavits or other  documentary evidence.  Nor do  we decide
in  this  case whether  an  applicant is  always  entitled to
respond  when the Board  takes notice of  indisputable extra-
                                                      
record facts.

                             -29-
                              29

          hardship to  the alien or to  his spouse,
                  
          parent, or child, who is a citizen of the
          United  States   or  an   alien  lawfully
          admitted for permanent residence.

8 U.S.C.   1254(a)(1) (emphasis supplied).

          As with the asylum claim, the Board determined that

petitioner failed to establish statutory eligibility, in this

instance  by  failing to  make  out  a  prima facie  case  of
                                                   

"extreme hardship."31  Gebremichael II, slip op. at 4-6.  The
                                      

INS has considerable discretion to define "extreme hardship,"

INS  v.  Jong Ha  Wang,  450  U.S.  139, 144-45  (1981)  (per
                      

curiam); Luna v. INS, 709 F.2d  126, 127 (1st Cir. 1983), and
                    

to decide whether or not to reopen, Jong Ha Wang, 450 U.S. at
                                                

143 n.5; Luna, 709 F.2d  at 127.  Accordingly, we  review for
             

abuse of  discretion.  Williams  v. INS,  773 F.2d 8,  9 (1st
                                       

Cir. 1985); Luna,  709 F.2d at 127; Antoine-Dorcelli  v. INS,
                                                            

703 F.2d 19,  21 (1st Cir. 1983).   In addition, as  with any

motion  to reopen, we  must determine whether  petitioner has

had a  "fair opportunity to  develop his side of  the story."

Luna,  709 F.2d  at  128.   In  making  such a  determination
    

without the benefit  of facts developed at a hearing, "common

notions  of  fair  play  and  substantial  justice  generally

                    

31.  Respondent concedes  that petitioner  has accrued  seven
continuous years in the United States from his entry in 1985.
Respondent's   Brief  in  No.  93-1486,  at  8.    Petitioner
presented  evidence of  his good  moral  character which  was
neither  challenged by  the INS  nor  rejected by  the Board.
Indeed,  the   INS  granted   petitioner's  application   for
voluntary departure,  which  requires proof  of  "good  moral
character."  8 U.S.C.   1254(e)(1). 

                             -30-
                              30

require  that  the  Board [and,  thus,  the  reviewing court]

accept as  true the facts  stated in an  alien's affidavits."

See id. (quoting Reyes v. INS, 673 F.2d  1087, 1090 (9th Cir.
                             

1982)).

          Even   assuming    the   truth    of   petitioner's

allegations, we find  no error in the  Board's determination.

The Board  considered petitioner's allegations that  he would

suffer hardship if  separated from his family  members living

in this country.   Petitioner  did not  make any  substantial

allegations about possible economic hardship save his concern

about abandoning  a career in  the United States.   The Board

also  considered the  effect  of  past  persecution  and  the

possibility of future  persecution but, in line  with its own

precedent, refused to attach great weight to such evidence in

deciding an application for  suspension of deportation, which

is an alternative form of relief to asylum and withholding of

deportation.32   See Gebremichael II,  slip op. at  5 (citing
                                    

In re Kojoory, 12 I. &amp; N. Dec. 215 (BIA 1967)).   In choosing
             

to discount evidence of persecution when calculating "extreme

                    

32.   Petitioner claims that since his detention  in 1983, he
has   suffered   a  range   of   psychological  consequences:
nightmares; anxiety;  depression; inability to  trust others;
and periodic inability  to concentrate.  An  affidavit from a
therapeutic  social worker  who met  with petitioner  several
times in June 1992, offers similar information.  In addition,
the  social  worker opined  that deporting  petitioner "could
cause  him  permanent  emotional  scarring,  whose  potential
implications include suicide, harm to himself,  and inability
to function."

                             -31-
                              31

hardship," the Board was within the limits of its discretion.

Accord Kashefi-Zihagh  v. INS,  791 F.2d  708, 710  (9th Cir.
                             

1986).   Finally, any procedural error in  the Board's taking

of administrative  notice was  harmless with  respect to  the

suspension  application  because the  noticed  facts were  of

marginal relevance to  the issue of  "extreme hardship."   As

the  Board considered the  relevant facts and  factors, we do

not  perceive   an  "unreasoned  or  arbitrary   exercise  of

discretion."   Williams, 773 F.2d at 10 (quoting Rios-Pineda,
                                                            

471 U.S. at 451).

                             IV.
                                

                          CONCLUSION
                                    

          For  the  foregoing  reasons, the  Board's  initial

order as well  as its subsequent order denying  the motion to

reopen and reconsider are affirmed in part and vacated to the

extent  that  the  Board  failed  to  recognize  petitioner's

eligibility for  asylum as a  social refugee.  The  matter is

remanded  to  the  Board  for  a  discretionary determination

whether  petitioner,  as  a social  refugee,  is  entitled to

asylum.

          It is so ordered. 
                           

                             -32-
                              32
