     03-40395-ag, 05-1058-ag
     Burger v. Gonzales

 1                        UNITED STATES COURT OF APPEALS

 2                             FOR THE SECOND CIRCUIT

 3                                    --------

 4                               August Term, 2006

 5

 6   (Argued: June 11, 2007                Decided: August 17, 2007)

 7

 8                 Docket Nos. 03-40395-ag(L), 05-1058-ag(CON)

 9   -----------------------------------------------------------X

10   SANJA BURGER and MILICA SAVIC, minor child A74-850-657,
11
12
13                     Petitioners,

14

15               - v. -
16
17
18   ALBERTO R. GONZALES,* ATTORNEY GENERAL,

19

20                     Respondent.

21

22   -----------------------------------------------------------X

23
24
25   Before:     McLAUGHLIN, CALABRESI, SOTOMAYOR, Circuit Judges.



            *
            Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
      Attorney General Alberto R. Gonzales is automatically substituted
      for former Attorney General John Ashcroft as respondent in this
      case.
 1        Petition for review of an order of the Board of Immigration

 2   Appeals revoking an Immigration Judge’s (“IJ”) grant of asylum to

 3   Sanja Burger and Milica Savic.

 4        Petition for review GRANTED.

 5                                    MICHAEL P. DIRAIMONDO, DiRaimondo &
 6                                    Masi LLP, Melville, N.Y. (Marialaina
 7                                    L. Masi, Mary Elizabeth Delli-Pizzi,
 8                                    Stacy A. Huber, on the brief), for
 9                                    Petitioners.
10
11                                    SCOTT REMPELL, Trial Attorney, Office
12                                    of Immigration Litigation, United
13                                    States Department of Justice,
14                                    Washington, D.C. (Anne M. Hayes;
15                                    Jennifer May-Parker, on the brief),
16                                    for Respondent.
17
18   -----------------------------------------------------------X
19
20   McLAUGHLIN, Circuit Judge:

21        This Court recently held that if the Board of Immigration

22   Appeals (“BIA”) intends to take administrative notice of

23   potentially dispositive facts, it must warn a petitioner and

24   provide the petitioner with an opportunity to respond before it

25   denies a motion to reopen on the basis of those facts.     See Chhetry

26   v. U.S. Dep’t of Justice, 490 F.3d 196, 201 (2d Cir. 2007)(per

27   curiam).   The Court declined to resolve the related question

28   whether due process requires this same result before the BIA enters

29   a final order of removal on the basis of administratively noticed

30   facts.   We now address this question and hold that it does.

31                                BACKGROUND

32        In June 1996, petitioners Sanja Burger and her daughter,


                                         2
 1   Milica Savic, entered the U.S. as non-immigrant visitors and

 2   remained without authorization.    At her removal hearing four years

 3   later, Burger, a native of the former Yugoslavia and a citizen of

 4   Serbia-Montenegro, conceded removability but sought asylum,

 5   withholding of removal, and relief under the Convention Against

 6   Torture (“CAT”).    Burger testified to the following facts.

 7        From 1989 to 1991, Burger was a widely-recognized stage and

 8   screen actress in the former Yugoslavia.    Because of her celebrity,

 9   Burger was regularly contacted by people whom then-President

10   Slobodan Milosevic had placed in prominent positions in theater and

11   television.   These people pressured her to show support publicly

12   for Milosevic by attending various political events.    Burger

13   refused to do so.

14        In June 1991, Burger was contacted by a man named Arkan, who

15   was introduced to her as a businessman.    Burger revealed her strong

16   anti-Milosevic political views to Arkan.    To her chagrin, she later

17   learned that Arkan was a major organized crime figure and was

18   working for Milosevic while maintaining a paramilitary group that

19   had committed genocidal acts in Croatia, Bosnia, and Kosovo.

20   Burger testified that Arkan had recently been murdered in the

21   middle of the day in a Belgrade hotel lobby.

22        In October 1991, Burger fled Yugoslavia for Munich, where she

23   remained for five years before coming to the U.S.    Burger insisted

24   that if she returned to Yugoslavia, she would be targeted as both a

25   spy and a traitor, and because of her status as a famous actress


                                        3
 1   would be singled out and forced to support Milosevic.

 2        In an oral decision, an Immigration Judge (“IJ”) granted

 3   Burger’s application for asylum, expressly finding that she had

 4   demonstrated a well-founded fear of persecution were she to return

 5   to Serbia-Montenegro.   The IJ saw no need to address Burger’s

 6   requests for withholding of removal and CAT relief.

 7        In July 2003, the BIA reversed the IJ’s grant of asylum and

 8   ordered Burger removed.   The BIA took administrative notice of

 9   changed country conditions, to wit, that following the IJ’s

10   decision, Milosevic was removed from power and faced trial for

11   crimes against humanity in the International Criminal Tribunal for

12   the former Yugoslavia in the Hague.   The BIA concluded that because

13   the Milosevic government no longer existed and Burger’s claims

14   rested on her anti-Milosevic views, Burger no longer had a well-

15   founded fear of persecution.   The BIA did not give Burger notice of

16   its intent to take administrative notice and it provided no

17   opportunity to rebut the BIA’s conclusion before issuing its

18   decision.   The BIA did not address Burger’s withholding of removal

19   and CAT claims.

20        Three months later, Burger moved to reopen.   She furnished an

21   affidavit from an expert in 20th century Western Balkan affairs and

22   professor of history.   The affidavit stated that Serbia-Montenegro

23   was currently a “semi-mafioso” state with power shared among the

24   old Milosevic structure, the new government structure, and

25   organized crime.


                                       4
 1        The BIA denied Burger’s motion to reopen.     It found that while

 2   “political and economic problems do exist in Serbia and

 3   Montenegro,” Burger had failed to establish that she had a well-

 4   founded fear of persecution if she went back to Serbia-Montenegro.

 5        Burger now petitions this Court for review of the BIA’s

 6   decision.

 7        For the reasons that follow, we grant the petition for review,

 8   vacate the BIA’s decision to revoke Burger’s asylum grant, and

 9   remand to the BIA.

10                                 DISCUSSION

11        Burger argues: (1) that the BIA’s taking of administrative

12   notice constituted improper fact-finding; and (2) that the BIA

13   denied her due process by failing to warn her of its intention to

14   take administrative notice.   While the first argument is meritless,

15   the second requires remand.

16   A.   Fact-finding

17        We consider questions of law de novo.      Secaida-Rosales v. INS,

18   331 F.3d 297, 307 (2d Cir. 2003).

19        The BIA generally may not engage in fact-finding in the course

20   of deciding appeals.   See 8 C.F.R. § 1003.1(d)(3)(iv).    However,

21   “[i]t is well-settled that the BIA has the authority to take

22   administrative notice of current events bearing on an [asylum]

23   applicant’s well-founded fear of persecution.”      Yang v. McElroy,

24   277 F.3d 158, 163 n.4 (2d Cir. 2002).      As with judicial notice, the

25   common law counterpart of administrative notice, properly noticed

                                         5
 1   current events must be “commonly known.”    See 8 C.F.R. §

 2   1003.1(d)(3)(iv); cf. Fed. R. Evid. 201(b) (“A judicially noticed

 3   fact must be one not subject to reasonable dispute in that it is

 4   either (1) generally known . . . or (2) capable of accurate and

 5   ready determination by resort to sources whose accuracy cannot

 6   reasonably be questioned.”).

 7        Here, the ouster and subsequent trial of Milosevic were

 8   commonly known facts whose accuracy Burger herself has not

 9   disputed.   These facts fall squarely within the definition of

10   “current events bearing on an [asylum] applicant’s well-founded

11   fear of persecution.”    Yang, 277 F.3d at 163 n.4.   Thus, the BIA

12   did not engage in improper fact-finding.

13   B.   Due Process

14        Aliens, of course, are entitled to due process.     Zadvydas v.

15   Davis, 533 U.S. 678, 693 (2001).   They must be afforded “the

16   opportunity to be heard ‘at a meaningful time and in a meaningful

17   manner,’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting

18   Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

19        To establish a violation of due process, an alien must show

20   “that she was denied a full and fair opportunity to present her

21   claims” or “that the IJ or BIA otherwise deprived her of

22   fundamental fairness.”   Xiao Ji Chen v. U.S. Dep’t of Justice, 434

23   F.3d 144, 155 (2d Cir. 2006), reh’g granted, vacated on other

24   grounds by Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d

25   Cir. 2006).   Critically, an asylum applicant “must be given notice

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 1   of, and an effective chance to respond to, potentially dispositive,

 2   administratively noticed facts.”      Chhetry, 490 F.3d at 200.

 3        The Government does not dispute that the noticed facts were

 4   dispositive of Burger’s claim, and it concedes that the BIA failed

 5   to warn Burger that it would take notice.     Rather, the Government

 6   contends that Burger’s motion to reopen gave her a full and fair

 7   opportunity to present her claim and thus cured the lack of advance

 8   notice.   The circuits are divided.

 9        The Fifth, Seventh, and D.C. Circuits have held that a motion

10   to reopen suffices to satisfy due process in this context.        See

11   Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C. Cir. 1992) (“The

12   availability of the petition to reopen secures [petitioner’s] due

13   process right to a meaningful hearing.”); Rivera-Cruz v. INS, 948

14   F.2d 962, 968 (5th Cir. 1991) (same); Kaczmarczyk v. INS, 933 F.2d

15   588, 597 (7th Cir. 1991) (same).

16        The Ninth and Tenth Circuits, however, have held that due

17   process requires that the BIA provide applicants with notice and an

18   opportunity to be heard before the BIA determines on the basis of

19   administratively noticed facts that a petitioner lacks a well-

20   founded fear of persecution.   See Getachew v. INS, 25 F.3d 841, 846

21   (9th Cir. 1994) (advance notice and opportunity to respond required

22   when BIA determines, on the basis of administrative notice, whether

23   an “election has vitiated any previously well-founded fear of

24   persecution”); de la Llana-Castellon v. INS, 16 F.3d 1093, 1100

25   (10th Cir. 1994) (availability of motion to reopen did not satisfy


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 1   due process where BIA reversed IJ’s finding that petitioners had a

 2   well-founded fear of persecution based solely on administratively

 3   noticed facts).

 4        As the Ninth and Tenth Circuits have noted, the reopening

 5   procedure has serious limitations as a guaranty of due process.

 6   See, e.g., de la Llana-Castellon, 16 F.3d at 1100; Castillo-

 7   Villagra v. INS, 972 F.2d 1017, 1029-30 (9th Cir. 1992).      The BIA’s

 8   decision to grant a motion to reopen is purely discretionary.

 9   8 C.F.R. § 1003.2(a).   Moreover, because the filing of a motion to

10   reopen does not automatically stay the execution of an order of

11   removal, id. § 1003.2(f), the applicant’s due process rights depend

12   entirely on the BIA’s good faith.       Cf. Kaczmarczyk, 933 F.2d at 597

13   n.9 (“We presume that when an asylum applicant uses a good faith

14   motion to reopen to dispute officially noticed facts, the Board

15   will exercise its discretion to stay the execution of its decision

16   until it has had an opportunity to rule on the applicant’s

17   motion.”).

18        These deficiencies become more acute in cases where

19   administratively noticed facts are the sole basis for the BIA’s

20   reversal of an IJ’s grant of asylum.      See de la Llana-Castellon, 16

21   F.3d at 1099 (“Because the administratively noticed facts

22   constituted the sole evidence upon which the BIA relied to

23   establish changed circumstances, advance notice and an opportunity

24   to be heard on the significance of the political changes in

25   Nicaragua was all the more crucial.”).


                                         8
 1        Here, administratively noticed facts constituted the sole

 2   basis of the BIA’s determination that Burger no longer harbored a

 3   well-founded fear of persecution.       The BIA’s conclusion rested

 4   foursquare on an assessment of conditions in the post-Milosevic

 5   world.   Under these circumstances, it cannot be said that Burger’s

 6   motion to reopen protected her right to be heard “at a meaningful

 7   time and in a meaningful manner.”       Mathews, 424 U.S. at 333.     Thus,

 8   while the dismantling of the Milosevic regime may have been a

 9   commonly known current event, the BIA erred by failing to give

10   Burger advance notice of its intention to consider this extra-

11   record fact.   Moreover, the BIA erred in depriving Burger of the

12   opportunity to rebut this fact’s significance before issuing its

13   decision.   The removal of a persecuting despot might vitiate an

14   asylum applicant’s well-founded fear of persecution, but in many

15   cases lingering elements of a despot’s regime may still pose a

16   threat to an applicant’s life and safety.       See Getachew, 25 F.3d at

17   846 (observing that individualized consideration of the relevance

18   of administratively noticed facts is required to determine “whether

19   a particular group remains in power after an election, and whether

20   the election has vitiated any previously well-founded fear of

21   persecution”).   In this case, Burger presented to the BIA evidence

22   that remnants of the Milosevic regime were still in power and

23   threatened to persecute her were she returned to Serbia-Montenegro.

24   The BIA’s failure to consider this evidence was error.

25        Because we find that the BIA erred in these respects, we need

                                         9
 1   not decide whether the BIA abused its discretion in denying

 2   Burger’s motion to reopen.

 3        Finally, the BIA did not consider Burger’s withholding of

 4   removal or CAT claims because the IJ never ruled on these claims in

 5   the first instance.   On remand, the fate of Burger’s withholding

 6   claim will depend on her asylum claim, as an applicant who fails to

 7   qualify for asylum necessarily fails to qualify for withholding of

 8   removal.   See Hoxhallari v. Gonzales, 468 F.3d 179, 184 (2d Cir.

 9   2006).   However, because “asylum and CAT claims warrant[]

10   individualized treatment,” Ramsameachire v. Ashcroft, 357 F.3d 169,

11   186 (2d Cir. 2004) (internal quotation marks omitted), Burger’s CAT

12   claim will require separate consideration below.

13                                CONCLUSION

14        For the foregoing reasons, we GRANT the petition for review,

15   VACATE the BIA’s reversal of the IJ’s decision, and REMAND the case

16   for further proceedings consistent with this opinion, including

17   further factfinding before the IJ if appropriate.   Burger’s pending

18   motion for a stay of removal is DENIED as moot.




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