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<pre>                   United States Court of Appeals <br>                        For the First Circuit <br>                        ____________________ <br>                                   <br>                                   <br>No. 97-1836 <br> <br>                       LUCIENNE YVETTE CIVIL, <br>                                   <br>                             Petitioner, <br>                                   <br>                                 v. <br>                                   <br>               IMMIGRATION AND NATURALIZATION SERVICE, <br>                                   <br>                             Respondent. <br>                                   <br>                        ____________________ <br>                                   <br>                ON PETITION FOR REVIEW OF AN ORDER OF <br>                  THE BOARD OF IMMIGRATION APPEALS <br>                                   <br>                        ____________________ <br>                                   <br>                               Before <br>                                   <br>                       Torruella, Chief Judge, <br>                    Bownes, Senior Circuit Judge, <br>                      and Stahl, Circuit Judge. <br>                                   <br>                        ____________________ <br>                                   <br>    Eleanor J. Newhoff with whom Harvard Immigration and Refugee <br>Clinic of Greater Boston Legal Services was on brief for appellant. <br>    Terri J. Lavi, Attorney, with whom Frank W. Hunger, Assistant <br>Attorney General, and Karen Fletcher Torstenson, Assistant Director, <br>were on brief for appellee. <br> <br>                         ____________________ <br>                            May 15, 1998 <br> <br>                         ____________________

      STAHL, Circuit Judge.  Appellant Lucienne Yvette <br>    Civil appeals a Board of Immigration Appeals ("Board" or "BIA") <br>    decision affirming an Immigration Judge's denial of her <br>    application for political asylum.  Adopting the factual <br>    findings of the Immigration Judge ("IJ"), the Board found that <br>    petitioner did not have a well-founded fear of persecution.  <br>    Because we find that substantial evidence supports the Board's <br>    conclusion, we affirm. <br>                                  I. <br>                     FACTS AND PRIOR PROCEEDINGS <br>        Petitioner Lucienne Yvette Civil sought political <br>    asylum under section 208(a) of the Immigration and Nationality <br>    Act ("INA"), 8 U.S.C.  1158(a), on the basis that she had a <br>    well-founded fear that she would be persecuted for her <br>    political beliefs if she returned to Haiti.   <br>        Civil's asylum application, affidavit, and testimony <br>    stated the following.  Born on July 12, 1976, in Croix-des- <br>    Missions, Haiti, Civil lived with her parents until the mid- <br>    1980s, when they emigrated to the United States.  After her <br>    parents left Haiti, Civil lived with her grandmother, brother, <br>    aunt, and three cousins.  She was fourteen years old when Jean- <br>    Bertrand Aristide was elected president of Haiti.  Following <br>    Aristide's inauguration, Civil and members of her family <br>    celebrated with others in the streets, and her grandmother <br>    displayed a quilt that had an emblem on it outside of their <br>    house to show the family's support for Aristide.  Subsequently, <br>    Civil graduated from a private Catholic school in 1991, and <br>    planned to attend Franco-Haitian University in Port-au-Prince.  <br>    Because of demonstrations following the coup d'etat that forced <br>    Aristide from office in September 1991, the university's <br>    opening was delayed.  Throughout this period, Civil did not <br>    participate in any political campaigns or marches in support of <br>    Aristide.  In January 1992, she began attending classes at the <br>    university.  She testified that she and other students were <br>    fearful because violent crime was rampant and because they had <br>    heard that the Ton Ton Macoutes, a paramilitary organization, <br>    were entering schools and kidnapping students.  Civil also <br>    testified that a woman in her neighborhood and a fellow student <br>    -- both Aristide supporters -- had been raped by members of the <br>    Macoutes.   <br>        Petitioner's decision to flee Haiti was prompted by <br>    an incident that led her to believe that she was being <br>    persecuted because of her pro-Aristide views.  In December <br>    1992, as she and six friends were standing outside her home <br>    discussing President Aristide and expressing their desire to <br>    see him restored to power, a man who apparently had overheard <br>    their conversation told them that "Children shouldn't be <br>    talking about such things.  There are a lot of people who don't <br>    like Aristide and they can kill you.  Aristide can't do <br>    anything for you now."  Civil recognized that the man, who <br>    appeared to be in his twenties, was one of the regular <br>    customers at her grandmother's bread and coffee store, which <br>    was located in the front of their home.  Civil and her friends <br>    suspected that the man was a Macoute because he was wearing the <br>    type of boots that Macoutes purportedly wore, and because he <br>    warned them about expressing their views on Aristide.  That <br>    same night, petitioner and her family were awakened by persons <br>    banging on the door and demanding entrance to the house.  <br>    Although the persons did not identify themselves or mention <br>    Aristide, Civil and her family believed that they were <br>    Macoutes, reasoning that thieves would not bother knocking.  <br>    The family remained flat on the floor for about two hours, <br>    during which time their house was stoned.  The next morning, <br>    they discovered that the family's pet dog had been stoned to <br>    death.   <br>        Fearing that the Macoutes would return, Civil and her <br>    brother left their home to stay with a friend of their <br>    grandmother in Carrefour Clercine.  Civil remained afraid, <br>    however, because the Macoutes were "making their way" to the <br>    part of the village where she was staying, and she thought that <br>    they might recognize her. <br>        On January 17, 1993, fearing for her safety, Civil <br>    left Haiti and came to the United States unlawfully.  Although <br>  democratic government was restored to Haiti in September 1994,   <br>    Civil continues to fear returning to Haiti because, she <br>    asserts, Haiti remains unstable, and anti-Aristide factions <br>    continue to persecute Aristide supporters.   <br>       After arriving in the United States, Civil was <br>    detained and placed in exclusion proceedings.  She requested <br>    political asylum under section 208(a) of the INA, 8 U.S.C.  <br>    1158(a), and withholding of deportation under section 243(h) of <br>    the INA, 8 U.S.C.  1253(h).  On February 21, 1995, an <br>    Immigration Judge ("IJ") found her excludable under section <br>    212(a)(6)(C)(i) of the INA, 8 U.S.C.  1182(a)(6)(C)(i), for <br>    attempting to procure entry into the United States by fraud or <br>    willful misrepresentation, and rejected her requests for asylum <br>    and withholding of deportation on the basis that petitioner had <br>    failed to demonstrate that she has a well-founded fear of <br>    persecution.  On June 26, 1997, a three-member panel of the BIA <br>    rejected Civil's appeal from the IJ's finding of excludability <br>    and denial of asylum.  Civil now appeals the Board's decision <br>      on her asylum claim.

                               II. <br>                              DISCUSSION <br>    A.  Standard of Review <br>       "The Board's determination of statutory eligibility <br>    for relief from deportation is conclusive if 'supported by <br>    reasonable, substantial, and probative evidence on the record <br>    considered as a whole.'"  Gebremichael v. INS, 10 F.3d 28, 34 <br>    (1st Cir. 1993) (quoting INS v. Elias-Zacarias, 502 U.S. 478, <br>    482 (1992)); 8 U.S.C.  1105a(a)(4).  Reversal of the Board's <br>    determination thus depends on whether the petitioner has shown <br>    "that the evidence he presented was so compelling that no <br>    reasonable factfinder could fail to find [that he was <br>    eligible]."  Elias-Zacarias, 502 U.S. at 484.  We review <br>    questions of law de novo. <br>    B.  Analysis       <br>       Petitioner argues that she established eligibility <br>    for political asylum by presenting to the IJ consistent, <br>    detailed, and credible testimonial and documentary evidence <br>    which confirmed that her fears of persecution are well-founded.  <br>    In addition, she argues that the BIA deprived her of due <br>    process by taking administrative notice of changes in Haiti's <br>    social and political conditions since she fled Haiti.  <br>       An applicant for political asylum bears the burden of <br>    showing that he or she has been persecuted, or has a well- <br>    founded fear of future persecution, on account of race, <br>    religion, nationality, membership in a particular social group, <br>  or political opinion.    See 8 C.F.R.  208.13(b).  In order to <br>    establish a well-founded fear of future persecution, a <br>    petitioner must have shown both a genuine subjective fear and <br>    an objectively reasonable fear of persecution on a protected <br>    ground.  See, e.g., Ravindran v. INS, 976 F.2d 754, 758 (1st <br>    Cir. 1992); Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir. <br>    1990).  The objective component requires a showing "by <br>    credible, direct, and specific evidence . . . facts that would <br>    support a reasonable fear that the petitioner faces <br>    persecution."  Ravindran, 976 F.2d at 758 (internal citations <br>    omitted).  An applicant need not establish that he or she would <br>    be singled out individually for persecution if the applicant <br>    establishes that "there is a pattern or practice in his or her <br>    country of nationality . . . of persecution of persons <br>    similarly situated to the applicant," and if the applicant <br>    "establishes his or her own inclusion in and identification <br>    with such group of persons such that his or her fear of <br>    persecution upon return is reasonable." 8 C.F.R.  <br>    208.13(b)(2); see, e.g., Gebremichael, 10 F.3d at 35 (holding <br>    that an applicant may establish asylum eligibility "if <br>    membership in a social group is at the root of persecution, <br>    such that membership itself generates a specific threat to the <br>    applicant") (internal quotation omitted). <br>        Although the Board devoted the bulk of its analysis <br>    of Civil's asylum application to reciting virtually verbatim a <br>    discussion of changed country conditions set forth in an <br>    earlier opinion, In Re E-P-, No. 3311 (BIA, Mar. 14, 1997), it <br>    also expressly adopted that part of the IJ's opinion that held <br>    that Civil had failed to meet her burden of proving a well- <br>    founded fear of persecution on account of her political <br>    opinion.  In his decision, the IJ placed weight on the fact <br>    that Civil had participated in no demonstrations or any outward <br>    manifestations of her support for Aristide.  He also opined <br>    that the fact that petitioner's house was stoned on the same <br>    day that a man who was alleged to be a member of the Ton Ton <br>    Macoutes overheard petitioner and her friends discussing their <br>    support for Aristide did not constitute evidence that <br>    petitioner had been targeted because of her political beliefs.  <br>    The IJ further observed that, according to the State <br>    Department, although eavesdropping by the Ton Ton Macoutes, <br>    uniformed military, or "plainclothes stool pigeons" could <br>    happen, and is sometimes alleged by Haitian asylum applicants, <br>    retribution on the basis of such incidents is "less certain."  <br>    He emphasized, in addition, that the State Department had <br>    reported that, frequently, attacks attributed to the Macoutes <br>    were more likely attributable to rampant crime activity in <br>    Haiti.  Concluding that "it is almost inconceivable to believe <br>    that the Ton Ton Macoutes could be fearful of the conversations <br>    of 15-year-old children," the IJ held that Civil had not <br>    established a well-founded fear of persecution. <br>        We find that the Board's determination that Civil was <br>    not statutorily eligible for asylum was supported by <br>    reasonable, substantial, and probative evidence.  The Board, <br>    via the IJ's opinion, reasonably found that petitioner's fears <br>    of persecution on account of her pro-Aristide political views <br>    were not well founded and that she had failed to establish that <br>    she reasonably fears persecution on account of her membership <br>    in a social group of Haitian youth who possess pro-Aristide <br>    political views. <br>        As the IJ noted, petitioner belonged to no political <br>    organizations, and she never marched in pro-Aristide <br>    demonstrations.  In addition, she was never detained, <br>    interrogated, threatened, or physically harmed by anyone in <br>    Haiti because of her private wish to see Aristide restored to <br>    power.  The most that petitioner showed was that some <br>    individuals threw rocks at her family's house late one evening, <br>    after one of her grandmother's regular customers had overheard <br>    petitioner and her friends talking about their hopes that <br>    Aristide might soon return to Haiti.  Although we are less <br>    willing than the IJ to accept that the attack was as likely an <br>    act of crime as an instance of political persecution, the fact <br>    remains that petitioner admitted that the individuals who <br>    stoned her house did not identify themselves or say anything <br>    about Aristide.  In light of the great deference we must accord <br>    the determinations below, we will not disturb the IJ's and the <br>    Board's finding that there was no connection between the attack <br>  and petitioner's political views.   <br>        We find, in addition, that petitioner failed to <br>    demonstrate that she reasonably fears persecution on account of <br>    her membership in a social group of Haitian youth who possess <br>    pro-Aristide political views.  Although the evidence petitioner <br>    presented casts serious doubt on the IJ's contention that "15- <br>    year-old children" are unlikely targets of political violence <br>    in Haiti, petitioner failed to show that young students who <br>    hold pro-Aristide views constitute a cognizable "social group" <br>    within the meaning of the INA, see 8 U.S.C.  1101(a)(42)(A).  <br>    The term "social group" does not encompass "every broadly <br>    defined segment of a population."  Sanchez-Trujillo v. INS, 801 <br>    F.2d 1571, 1576 (9th Cir. 1986).  Petitioner presented ample <br>    documentary evidence that young people in Haiti were not <br>    exempted from the general violence and unrest that occurred in <br>    the aftermath of Haiti's military coup, but she presented no <br>    evidence that such persons constitute anything other than a <br>    general demographic segment of the troubled Haitian population.  <br>    We thus reject petitioner's suggestion that the Board erred by <br>    not finding her eligible for asylum based on her status as a <br>    Haitian youth who supported Aristide.  <br>        Because the Board explicitly adopted the IJ's <br>    analysis of petitioner's individual circumstances, we conclude <br>    that the Board's decision -- like that of the IJ -- was <br>    grounded in the failure of petitioner to present sufficient <br>    evidence to establish a well-founded fear of persecution.  We <br>    therefore need not address whether the Board violated <br>    petitioner's due process rights by taking administrative notice <br>    of changes in Haiti without providing petitioner an opportunity <br>  to respond.   <br>        We accordingly affirm the decision of the BIA to deny <br>  petitioner's application for asylum.   <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>                         - dissent follows -

    BOWNES, Senior Circuit Judge (dissenting). I <br>    respectfully dissent.  The majority affirms a decision by the <br>    Board of Immigration Appeals (Board or BIA) concluding that <br>    Lucienne Civil failed to establish her eligibility for asylum <br>    because she had not shown a well-founded fear of persecution <br>    based on her political views.  At the tender age of fifteen, <br>    this young woman got a first-hand taste of political realities <br>    in Haiti.  She was overheard on the street expressing her <br>    support for the return to power of ousted president Jean- <br>    Bertrand Aristide.  For this, she was threatened with death in <br>    a menacing tone by a man whom she recognized and who she could <br>    reasonably believe knew who she was.  That same night she was <br>    terrorized when a group of men attacked her home, demanded <br>    entry, and threw stones at the house for over an hour while <br>    Civil and her family cowered on the floor in fear for their <br>    lives.  In the morning she found that her pet dog had been <br>    stoned to death.   <br>      The Board, and the majority of this panel, believed <br>    Civil's articulation of her subjective fear that she would be <br>    persecuted for her political beliefs if she returned to Haiti, <br>    but they concluded that these fears were nevertheless not <br>    "well-founded."  <br>      The Board incorporated "the reasons set forth" in the <br>    Immigration Judge's (IJ) decision to reach this conclusion, but <br>    the IJ's reasons were all legally erroneous.  The IJ did not <br>    believe Civil's fears of persecution were well-founded in part <br>    because Civil had not been involved in any overt political <br>    activity, although the mob that attacked her home did not <br>    appear to care whether her activities had been overt.  The IJ <br>    also relied on his own unsubstantiated speculation:  despite a <br>    wealth of evidence on the subject, he found it "almost <br>    inconceivable" that the anti-Aristide forces could be concerned <br>    enough with the "conversations of children" to make it worth <br>    persecuting them.  He also speculated, without any record <br>    support, that the terrorist attack on Civil's house was "more <br>    likely" the result of common criminals than of political <br>    persecutors.  The IJ also emphasized the fact that Aristide was <br>    restored to power which, the IJ apparently felt (although he <br>    failed actually to consider the particular facts of the <br>    matter), meant that Civil no longer had a legitimate reason to <br>    fear persecution from the government.  As will be discussed <br>    infra, all of these reasons are legally erroneous and <br>    insufficient to support the IJ's conclusion, and any decision <br>    based on such reasons should be reversed.  <br>      Further, the Board, on review of the IJ decision, took <br>    official notice of changes in the government of Haiti after the <br>    IJ decision, namely, the election of Ren Prval to succeed <br>    Aristide as president.  The IJ had previously taken official <br>    notice of changes that had taken place after the hearing but <br>    before his decision.  Neither the IJ nor the Board afforded <br>    Civil an opportunity to rebut the officially noticed facts or <br>    to show that any general changes in Haiti did not diminish her <br>    own particular well-founded fear of persecution.  The Board <br>    specifically acknowledged that "[t]he political changes in <br>    Haiti, which include the gain of power by those whom the <br>    applicant supports, are a significant factor in our conclusion <br>    that the applicant has not established a well-founded fear of <br>    persecution."  (Emphasis added.)  A decision based in <br>    significant part on a general country condition, without <br>    addressing whether that general condition in fact affected the <br>    particular individual seeking asylum, should not stand.  SeePerez-Alvarez v. INS, 857 F.2d 23, 25 (1st Cir. 1988) (The <br>    Board, in exercising its discretionary authority, "must <br>    consider and evaluate all relevant factors."). <br>      In my view, the IJ's analysis gave too much <br>    consideration to unsupported speculation and legally irrelevant <br>    factors, and failed to give enough thought, if any, to the <br>    wealth of evidence (both particular to Civil and evidence of a <br>    pattern of persecution) that was submitted by Civil.  The BIA's <br>    decision affirming the IJ   consisting of boilerplate and <br>    additional official notice of general material and again <br>    ignoring the evidence tending to support  Civil's well-founded <br>    fear of persecution   is likewise insufficient to do justice <br>  to this case under the applicable law.   <br>         I am concerned that the majority's affirmance of the <br>    BIA/IJ opinions in this case, and its deference to the agency's <br>    application of legal principles to the facts of this case <br>    (facts which are undisputed as to the incidents involving <br>    Civil), will encourage more such slipshod decisions by the INS.  <br>    The dissenting BIA judge was the only INS judge to address the <br>    real issues and the actual facts.  I agree with her:  "I find <br>    the appellant's well-asserted and supported arguments on appeal <br>    to be legally correct and persuasive, while I view the <br>    speculation of the Immigration Judge and the majority to be <br>    contrary to controlling law." <br>                          Standard of Review <br>         The statute stipulates that the Board's "findings of <br>    fact" are conclusive if "supported by reasonable, substantial, <br>    and probative evidence on the record considered as a whole."  <br>  8 U.S.C.  1105a(a)(4)(1988).  Legal issues are, of course, <br>reviewed de novo. <br>     In reviewing Board determinations of eligibility for <br>asylum, we have applied "normal principles of administrative <br>law governing the role of courts of appeals when reviewing <br>agency decisions for substantial evidence."  Cordero-Trejo v. <br>INS, 40 F.3d 482, 487 (1st Cir. 1994).  Under those principles,  <br>     "[t]he Board's findings must . . . be set <br>     aside when the record before a Court of <br>     Appeals clearly precludes the Board's decision <br>     from being justified by a fair estimate of the <br>     worth of the testimony of witnesses or its <br>     informed judgment on matters within its <br>     special competence or both." <br> <br>Id. (alterations in original) (quoting Universal Camera Corp.v. NLRB, 340 U.S. 474, 490 (1951)). <br>     Here, there is no dispute as to the facts.  The Board <br>found Civil to be credible, and found the relevant facts to be <br>as she testified   including the December 1992 incident on the <br>street, which entailed a death threat in menacing tones, and <br>the stoning of her house that same night.  The IJ and Board <br>also credited Civil's subjective fear of persecution based on <br>her pro-Aristide political opinions, a fear engendered by the <br>verbal threat and the stoning.  Because there is no factual <br>dispute, the majority's deference to the Board's fact-finding <br>does not support an affirmance of the BIA decision.  Where, as <br>here, the Board applies the wrong legal standard and makes <br>other legal errors, it is not enough for the majority to find <br>that the Board could have cobbled together sufficient facts to <br>support its conclusion if it had applied the proper standards.  <br>Because the Board never did apply the correct standards, we do <br>not know what it, as a reasonable factfinder, would have <br>concluded in those hypothetical circumstances.  I would reverse <br>and direct a decision the other way, based on this record, but <br>at the very least, this court should reverse and remand for a <br>proper adjudication applying the correct legal standards. <br>     The questions in this case are questions of law:  <br>(1) were there enough facts to establish a "well-founded" fear <br>of persecution (a mixed question of law and fact which is <br>treated as a question of law); (2) was it error for the Board <br>to consider and give controlling weight to the change in <br>general conditions in Haiti without evaluating whether that <br>general change had any effect on the likelihood that this <br>particular individual would be persecuted based on her <br>political opinions if she returned to Haiti, such as would make <br>her continuing subjective fear of persecution no longer well- <br>founded?  I would answer both questions in the affirmative and <br>therefore reverse. <br>                 Well-Founded Fear of Persecution <br>     An alien may be granted asylum in the discretion of the <br>Attorney General if the alien is a "refugee."  See 8 U.S.C. <br> 1158(a).  Refugee is defined as any alien who is unwilling or <br>unable to return to his country "because of . . . a well- <br>founded fear of persecution on account of race, religion, <br>nationality membership in a particular social group, or <br>political opinion."  8 U.S.C.  1101(a)(42).  The well-founded <br>fear has both a subjective and an objective component.  SeeCordero-Trejo, 40 F.3d at 491 (citing INS v. Cardoza-Fonseca, <br>480 U.S. 421, 430-31, 440 (1987)); Alvarez-Flores v. INS, 909 <br>F.2d 1, 5 (1st Cir. 1990); Ravindran v. INS, 976 F.2d 754, 758 <br>(1st Cir. 1992).  "Although objective factors are relevant, <br>there is under the statute an 'obvious focus on the <br>individual's subjective beliefs.'"  Perez-Alvarez, 857 F.2d at <br>25 (quoting Cardoza-Fonseca, 480 U.S. at 431).   <br>     The subjective component requires that the asserted <br>fear be genuine.  Ravindran, 976 F.2d at 758.  There is no <br>dispute about this element in the present case; the IJ found <br>Civil's testimony on this subject to be credible.  The <br>objective component, on the other hand, contemplates that the <br>applicant show "'by credible, direct, and specific evidence, . <br>. . facts that would support a reasonable fear that the <br>petitioner faces persecution.'"  Id. (quoting Alvarez-Flores, <br>909 F.2d at 5). <br>     But the degree of likelihood of persecution that must <br>be shown is not high.  "[T]o show a 'well-founded fear of <br>persecution,' an alien need not prove that it is more likely <br>than not that he or she will be persecuted in his or her home <br>country."  Cardoza-Fonseca, 480 U.S. at 449-50.  The applicant <br>for asylum meets her burden if she shows that there is a <br>"'reasonable possibility'" that she will be persecuted on <br>account of her political opinion.  Id. at 440 (quoting INS v. <br>Stevic, 467 U.S. 407, 425 (1984)).  This low threshold showing <br>applies, even though the final decision as to whether to grant <br>or deny a refugee asylum is a matter of discretion, "left for <br>the Attorney General to decide."  Id. at 450.  As we have <br>stated, "[i]f one out of ten adult males in the petitioner's <br>country of origin is either in danger of death or of <br>incarceration in 'some remote labor camp,' the petitioner has <br>'a well-founded fear' of persecution."  Perez-Alvarez, 857 F.2d <br>at 25 (quoting Cardoza-Fonseca, 480 U.S. at 431); Blanco- <br>Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987); cf.Cardoza-Fonseca, 480 U.S. at 449 (referring to the <br>"longstanding principle of construing any lingering ambiguities <br>in deportation statutes in favor of the alien.").   <br>     The reasonableness of Civil's subjective fear is to be <br>determined by the consistency, detail and specificity of the <br>objective evidence she presented which provides a plausible <br>account of the basis for the fear and shows that there is a <br>"reasonable possibility" of persecution.  See Cardoza-Fonseca, <br>480 U.S. at 440.  The Board has set forth four factors which <br>must be satisfied to establish that her fear of persecution is <br>well-founded: (1) she possesses a belief or characteristic that <br>the persecutor seeks to overcome; (2) the persecutor is aware <br>or could become aware that she possesses the belief or <br>characteristic; (3) the persecutor has the capability of <br>punishing her; and (4) the persecutor has the inclination to <br>punish her.  See Matter of Mogharrabi, 19 I & N Dec. 439, 446 <br>(BIA 1987).   <br>     Based upon my reading of the record, Civil meets this <br>standard.  She was talking with a friend about her desire for <br>the speedy return of then-deposed president Aristide when a man <br>approached her and warned her in a menacing tone not to talk <br>about "these things.  There are a lot of people who don't like <br>Aristide and they can kill you.  Aristide can't do anything for <br>you now."  The man wore the kind of boots that the Ton Ton <br>Macoutes usually wear.  Civil reasonably believed, based on the <br>circumstances of the meeting and the exchange that occurred <br>within it, that this man was associated with the anti-Aristide <br>forces, possibly a member of the paramilitary or an informant <br>for the Ton Ton Macoutes.   <br>     The very same night, at about 3:00 a.m., a group of men <br>gathered outside her house and demanded entry.  The family lay <br>flat on the floor in the hopes of avoiding gunfire, while the <br>men threw rocks at the house for an hour or more.  The family <br>waited until morning to get up from the floor and go outside, <br>where Civil found that her pet dog had been killed by stones <br>thrown by the men.  Civil reasonably believed that the group of <br>men who attacked her house were also connected to the anti- <br>Aristide forces, and that this entire attack was a planned <br>sequel to the warning and threat by the man who had overheard <br>her pro-Aristide comments earlier that day.  As the dissenting <br>BIA judge noted, no entities in Haiti are reported to engage in <br>this type of attack, other than the former military or right <br>wing, anti-democratic forces such as the FRAPH, each of which <br>have an established political agenda, which includes silencing <br>persons such as Civil.  (Dissent at 3.)  It was after this <br>attack that Civil's family decided that she should leave Haiti <br>for her safety. <br>     Civil's fear of persecution was eminently "reasonable," <br>in light of the severity of the attack on her house and the <br>timing of it.  See Cardoza-Fonseca, 480 U.S. at 440.  Any <br>reasonable person in Civil's circumstances would have <br>recognized and feared that the almost instant retribution <br>inflicted upon her was because of her stated enthusiasm for the <br>return of Aristide to power.  The man who overheard her and <br>threatened her was a regular customer at her grandmother's <br>store, so he knew exactly who she was and where to find her.  <br>Civil has offered uncontested evidence, which the IJ found <br>entirely credible, regarding the events giving rise to her fear <br>of persecution.  The IJ accepted her rendition of those events, <br>as well as her subjective fear of persecution. <br>     In addition to her own testimony about this personal <br>incident, Civil offered documentary evidence of political <br>persecution of elementary and secondary students by the Haitian <br>military and paramilitary forces.  See Dennis Nurske, Lutheran <br>Immigration and Refugee Service, United States Catholic <br>Conference/Migration and Refugee Service, At Special Risk:  The <br>Impact of Political Violence on Minors in Haiti (July 1992) <br>(detailing the consistent and systematic political retribution <br>directed at young Haitian adolescents).  The report points out <br>that children and youth in Haiti played a major role in <br>Aristide's election campaign and in political activities both <br>before and after the 1991 military coup that drove Aristide out <br>of office.  As a result, elementary and secondary school <br>children have become highly politicized and are regarded by the <br>military as a significant threat, thus placing them at special <br>risk.  Id. ("Children and young adolescents have . . . been <br>consistently and methodically singled out by the army.").  <br>"Children have been routinely targeted for violence in reprisal <br>for their political beliefs, expressed or imputed, and for the <br>political opinions and activities of family and community <br>members."  Id.  "Children also appear to have been targeted as <br>punishment for a perceived political opinion imputed from their <br>peer association, presence in the classroom, affiliation with <br>a pro-Aristide neighborhood, or membership in a politicized <br>family."  Id.  In many rural areas, because of the intimacy of <br>villages and knowledge of who holds opposing viewpoints, "the <br>great majority of young people in the region [were] either <br>arrested or in hiding."  Id.  Even the INS recognized that, in <br>order to suppress the political activities of school-age <br>children, the military had "prohibited student meetings, <br>arrested and detained students, and brutally beaten and in some <br>cases tortured suspected student activists."  Memorandum from <br>John W. Cummings, Acting Director, INS Office of International <br>Affairs, to INS Asylum and Refugee Divisions, Re: <br>Considerations When Adjudicating Haitian Refugee/Asylum <br>Applications (March 9, 1993) ("Cummings Memorandum"). <br>     Civil also offered reports of various human rights <br>organizations, as well as newspaper articles, detailing the <br>Haitian military and paramilitary forces' brutal and widespread <br>persecution of persons believed to support Aristide.  The <br>United States State Department recognized that, after the 1991 <br>military coup, "[t]he military and the de facto government <br>promote[d] repression and terror, sanctioning widespread <br>assassination, killing, torture, beating, mutilation, and <br>rape."  United States Department of State, Human Rights in <br>Haiti (September 13, 1994).  In particular, demonstrations in <br>support of Aristide were attacked by the Ton Ton Macoutes, <br>causing hundreds of deaths.  Id.  The State Department <br>concluded that, "[a]s we approach[ed] the third anniversary of <br>the coup [overthrowing Aristide], the human rights situation <br>ha[d] worsened."  Id.  It is noteworthy that these words were <br>written just five months before the IJ's decision in the <br>present case.   <br>     Civil offered human rights reports by the United <br>Nations, the State Department, Amnesty International, and other <br>international human rights organizations documenting the <br>Haitian military and paramilitary forces' widespread use of <br>rape and sexual violence as a means of political terror in <br>Haiti.  The Board itself, in Matter of D-V-, Interim Decision <br>3252 (BIA 1993), recognized that young women in Haiti were <br>being subjected to rape as a form of politically motivated <br>persecution.  Civil offered evidence that two women in her own <br>neighborhood had been raped by paramilitary forces who invaded <br>their homes in the middle of the night and violently attacked <br>them.  Both were Aristide supporters.  These incidents, <br>grounded in objective reality, contributed to Civil's fear that <br>she too would be similarly persecuted. <br>     The record includes reports   from sources ranging from <br>the State Department to the United Nations to the INS to Human <br>Rights Watch   indicating that persons overheard in the street <br>protesting political conditions had been the victims of <br>politically motivated retribution; that thefts, robberies, and <br>rapes by Ton Ton Macoutes were common in areas where pro- <br>Aristide supporters were situated, although the "untangling of <br>motives of lawbreakers is difficult."  See, e.g., State <br>Department letter dated March 11, 1994, at 3.   <br>     Civil also offered evidence documenting the continuing <br>persecution of those opposed to the Haitian military even afterAristide's return to power in October 1994.  We recently <br>referred to some of the same reports that Civil points to here, <br>finding that "political assassinations and intimidation of <br>Aristide supporters persist[ed]" after the September 1994 <br>return of Aristide to power.  Fergiste v. INS, 138 F.3d 14, <br>___, 1998 WL 99690, at *4 (1st Cir. 1998).  A memorandum issued <br>by the INS's own Asylum Division concluded that Aristide's <br>return had not resulted in durable, fundamental change.  <br>Memorandum from Gregg Beyer, Director, INS Asylum Division <br>(October 27, 1994) ("Beyer Memorandum").  Evidence from <br>reliable authorities indicates that the government was not <br>sufficiently stable to control the anti-Aristide forces and to <br>prevent them from killing and maiming with impunity, even after <br>Aristide was restored to the presidency.  This was especially <br>true in rural areas.  Nor is this surprising.  "In countries <br>with long histories of severe political repression and serious <br>violations of fundamental human rights, the possibility of <br>abuse and persecution continues at local levels even when <br>official policies and/or composition of governments at the top <br>have changed."  Id. <br>     We have previously recognized "the importance of <br>documentary evidence" such as I have just described, "both in <br>providing a plausible context for an asylum applicant's claim, <br>and in making credibility assessments."  Cordero-Trejo, 40 F.3d <br>at 491.  It is equally useful in evaluating whether her <br>subjective (undisputed) fear of future persecution is well- <br>founded.  Moreover,  "[t]he Board nowhere suggests that this <br>evidence is unreliable, and [I] note that it comes from <br>sources, such as the State Department and internationally <br>recognized non-governmental organizations, generally regarded <br>by courts of law as reliable."   Id. at 491 n.6.  Here, as in <br>Cordero-Trejo, "[b]oth the [immigration] judge and the Board <br>failed to address much of [the applicant's] evidence.  With all <br>deference, it is far too extensive and significant to be <br>dismissed with a general statement," id. at 492, or, in Civil's <br>case, with no statement at all.  This failure, and the Board's <br>failure "to engage in the inquiry necessitated" by law, <br>"unreasonably eviscerate[d] [the applicant's] attempt to <br>establish . . . the objective . . . element[] of [her] asylum <br>claim."  Id. at 491-92; see Perez-Alvarez, 857 F.2d at 25 <br>("[T]he Board in exercising the discretionary authority <br>conferred upon it by Congress cannot proceed arbitrarily and <br>must consider and evaluate all relevant factors."). <br>     There being no factual issues genuinely in dispute, the <br>only question is a legal one:  do the totality of facts rise to <br>a sufficient level of threat to establish that Civil's fear is <br>"well-founded"?  I believe they do, whether the standard is ten <br>percent, Perez-Alvarez, 857 F.2d at 25, or somewhat greater. <br>     It was quite reasonable for a person who experienced <br>what Civil did   an attack on her home on the very night after <br>she was overheard expressing her pro-Aristide views and after <br>a stranger warned her in menacing tones about the deadly <br>consequences of such expression   viewed in the context of the <br>situation in the country at large, to fear that, if she is <br>returned to Haiti, she will be persecuted on account of her <br>political beliefs.  Her fear is even more reasonable if we <br>take into account the subjective impact these events would <br>likely have on the mind of Civil as a young teenager.  SeeKahssai v. INS, 16 F.3d 323, 329 (9th Cir. 1994).  The terror <br>that she experienced probably had a far greater and more long- <br>lasting impact on someone of her age than it would have had on <br>a full-grown adult.  The IJ and the Board did not consider this <br>factor at all.  See also Beyer Memorandum to INS Asylum <br>Division (Even more significant than the ongoing killings is <br>"the continuing, often 'invisible,' presence of these <br>perpetrators of past violations who have simply, and probably <br>only temporarily, retreated into the background.").  In short, <br>based on both subjective and objective factors, no reasonable <br>fact-finder could have concluded that Civil's fear of <br>persecution was not well-founded.  See Cordero-Trejo, 40 F.3d <br>at 491.  <br>     This is not a case where a petitioner is pointing to <br>random or widespread violence affecting all citizens and trying <br>to bootstrap that into a claim of persecution based on her <br>political beliefs under the immigration laws.  See Ravindran v. <br>INS, 976 F.2d 754, 759 (1st Cir. 1992) (citing Rodriguez-Riverav. United States Dep't of Immigration & Naturalization, 848 <br>F.2d 998, 1005 (9th Cir. 1988); Mendez-Efrain v, INS, 813 F.2d <br>279, 282-83 (9th Cir. 1987)). <br>     The IJ decision relied heavily on, and the INS makes <br>much of, the fact that Civil did not "belong to [any] political <br>organizations" and did not march in pro-Aristide demonstrations <br>to make manifest her political opinions.  But this does not <br>affect her reasonable fear of persecution, and it certainly <br>does not necessarily lead to the Board's conclusion that <br>Civil's fear of persecution is not well-founded.  "Although <br>those in leadership or prominent positions are possibly at <br>greater risk due to their greater visibility, lack of <br>prominence does not remove the possibility of being at risk.  <br>This is true especially considering the fact that Haitian <br>society is organized into small communities."  Cummings <br>Memorandum to INS Asylum Division (emphasis added).  Whatever <br>actions she did not take, Civil apparently did enough to <br>warrant being threatened for her statements, to have her house <br>stoned in the middle of the night (at 3:00 a.m.), and to have <br>her dog killed.  What more is necessary in order for a person's <br>fear to be "reasonable"?  The fact that she was cautious enough <br>(because of a reasonable fear of persecution) to try not to <br>reveal her political sympathies in any overt manner   thereby <br>protecting her from the fate of her raped and abused friends   <br>does nothing to undermine the legitimacy of her fear now.  That <br>is because now, after the incident in December 1992, the anti- <br>Aristide forces know her sympathies lie with Aristide and those <br>same friends.  Those forces threatened her with death <br>immediately after she expressed her views, and that same night <br>they terrorized her sufficiently for her to know that their <br>threats were real. <br>     The majority is "at a loss" to understand Civil's <br>argument that she need not show that she fears persecution from <br>the government.  The reason she makes that argument is that the <br>BIA's main argument for rejecting her application is that the <br>government of Haiti has changed, that Civil's idol, Aristide, <br>and his followers have returned to government power.  The IJ's <br>reasoning certainly implies that Civil was required to show <br>that she fears persecution from the Haitian government.  Civil <br>argues as she does because the INS obviously does not "get it"; <br>Haiti is not a safe place for a known Aristide supporter to <br>return to, even though the INS is correct that Aristide's party <br>is in nominal control of the government.  One may have a well- <br>founded fear of persecution by a group that the government is <br>unwilling or unable to control.  What matters is whether the <br>petitioner's fear of persecution is based on one of the <br>statutory grounds.  Matter of Maldonado-Cruz, 19 I & N Dec. 509 <br>(BIA 1988); see, e.g., Bolanos-Hernandez v. INS, 749 F.2d 1316 <br>(9th Cir. 1984).  As we put it in Cordero-Trejo, 40 F.3d at <br>490, Civil "is not claiming to have been targeted and <br>threatened by the civilian government, but by a shadowy, extra- <br>legal entity associated with the [Haitian] military."  As the <br>State Department recognized, in a February 1994 dispatch <br>contained in the record, "[p]aramilitary personnel in civilian <br>clothes . . . conduct most of the intimidation and violent <br>repression for both the police and the army" in Haiti.  And the <br>documentary evidence clearly establishes that the Haitian <br>government was unable to control the paramilitary forces and <br>their allies, including the Ton Ton Macoutes, who continue to <br>terrorize the Haitian people.  See, e.g., Human Rights <br>Watch/Americas National Coalition for Haitian Refugees, Terror <br>Prevails in Haiti:  Human Rights Violations and Failed <br>Diplomacy (April 1994) (quoting United Nations/Organization of <br>American States International Civilian Mission Report).  <br>                     Reliance on Speculation <br>     The IJ committed another legal error by basing his <br>conclusion in significant part on his own unsubstantiated <br>speculation and ignoring the substantial evidence to the <br>contrary that existed in the record.  We have unequivocally <br>rejected the substitution of the IJ's idea of how other <br>societies operate as a basis for judging the likelihood of <br>persecution of a particular individual.  See Cordero-Trejo, 40 <br>F.3d at 490 (finding it "apparent that the IJ did not consider <br>Cordero's testimony and evidence," despite the legal <br>"require[ment]" that he consider it if credible in light of <br>general country conditions (citing 8 C.F.R.  208.13(a))); <br>Perez-Alvarez, 857 F.2d at 24 (finding that nothing in the <br>record sustains the IJ's assumptions other than "perhaps his <br>general perception of life or political conditions in El <br>Salvador which may or may not be grounded in fact"). <br>     Here, the IJ's decision relied on at least two types of <br>speculation.  First is his speculation that the anti-Aristide <br>forces could not possibly have been interested in the political <br>views of a 15-year-old child like Civil.  He wrote that "it is <br>almost inconceivable to believe that the Ton Ton Macoutes could <br>be fearful of the conversations of children."  But the record <br>contains absolutely no evidence that the military or anti- <br>Aristide forces felt teenagers were not a threat to opponents <br>of Aristide.   <br>     Indeed, as demonstrated supra, the record evidence is <br>to the contrary:  the anti-Aristide forces viewed pro-Aristide <br>young people as an important source of support for Aristide, <br>and they went to great lengths to intimidate those young people <br>through terror and torture.  The objective evidence of record <br>indicates that the military and anti-Aristide forces in Haiti <br>did not spare minors or differentiate among their victims based <br>on age or gender.  Record evidence, including a letter from the <br>United States Department of State, dated March 11, 1994, <br>confirms that in the summer of 1992, there were serious <br>confrontations between the pro-Aristide students and police <br>employed by the forces which had ousted Aristide.  Further <br>disturbances at the universities forced them to be closed in <br>December 1992, the very period when the incidents reported by <br>Civil occurred.  Moreover, documents in the record establish <br>that similarly situated Haitian students have faced a pattern <br>of brutal persecution ranging from arrest to murder, further <br>substantiating Civil's fear that she faces a substantial risk <br>of persecution if returned to Haiti. <br>     We have held in past cases that "deference [to the <br>Board] is not due where findings and conclusions are based on <br>inferences or presumptions that are not reasonably grounded in <br>the record,  viewed as a whole."  Cordero-Trejo, 40 F.3d at <br>485, 487 (remanding, because "the findings underlying the <br>Board's conclusion that [applicant] is ineligible for asylum <br>are not supported by substantial evidence") (citing Universal <br>Camera, 340 U.S. at 491).  That is the case here.  For the IJ <br>to rely on his own speculation and assumptions, and to ignore <br>the substantial factual evidence from objective sources that <br>his assumptions were inaccurate, constituted legal error.  And, <br>to the extent the BIA affirmed the IJ "for the reasons set <br>forth" in his decision, the BIA committed legal error too, <br>relying on speculation that was unreliable and ignoring or <br>failing to credit detailed evidence from reliable and objective <br>sources.  This court certainly should not rely on the IJ's <br>factual conclusions in this case. <br>     The IJ also speculated that the attack on Civil's home <br>was "more likely" the [random] act of common criminals than an <br>act of paramilitary forces intended as political persecution.  <br>But there is no reason to believe that this second instance of <br>IJ speculation has a factual basis.  As noted supra, no <br>entities in Haiti were reported to engage in this type of <br>attack, other than the former Ton Ton Macoutes and their <br>successors.  There is no evidence in the record that the <br>Macoutes invaded and stoned people's homes in the middle of the <br>night for purely criminal motives.  To the contrary, there is <br>ample evidence that the paramilitary Ton Ton Macoutes and <br>"attachs" engaged in this type of persecutory practice as a <br>means of silencing and assessing vengeance against Aristide <br>supporters.  Moreover, the IJ's speculation that the 3:00 a.m. <br>attack on Civil's home might have been the work of "common <br>criminals" is absurd on its face.  A common criminal does not <br>knock on the door and demand to be let into the house.  The <br>question, in any event, is not what an administrative law judge <br>sitting in the safety of the United States can choose to <br>believe; the question is what a young person, who has been <br>forced to hide under the bed in the middle of the night, in <br>terror of being killed, would think about her safety if she <br>were to return home.  The IJ's "common criminals" speculation, <br>like the speculation about "the conversations of children," <br>constituted legal error, and undermined the reliability of his <br>decision.  It also therefore undermined the reliability of the <br>Board's decision which simply incorporated by reference the <br>IJ's reasoning. <br>     The majority discounts the error resulting from the <br>Board's and IJ's speculation, stating "we think it is readily <br>apparent that the IJ did rely on record evidence, including <br>petitioner's testimony, her asylum application and affidavit, <br>and a State Department advisory report."  Ante at 10 n.3.  But <br>the fact that the IJ mentioned some record evidence does not <br>mean that he did not rely on unsubstantiated assumptions as <br>well.  He explicitly stated that he did rely on a number of <br>such assumptions, such as his "common criminals" speculation <br>and his reliance on general changes in Haiti apparently <br>assuming that such general changes would eliminate the <br>possibility that this petitioner would be persecuted.  And the <br>Board, in affirming the IJ, acknowledged that the same general <br>political changes "are a significant factor in our conclusion <br>that the applicant has not established a well-founded fear of <br>persecution."  <br>     Thus, Civil has offered evidence to establish <br>sufficient facts to satisfy the legal test for having a well- <br>founded fear of persecution.   <br>                         Official Notice <br>     In addition, she is correct that the BIA's decision <br>should be reversed as a matter of law because that decision was <br>made on the basis of the IJ's and the Board's taking official <br>notice of changes in general country conditions.  That official <br>notice gave rise to two separate legal errors.  As this court <br>emphasized only last month, "the official notice of changed <br>country conditions" cannot be enough to "counter[] the specific <br>evidence of persecution that [a particular petitioner] has <br>presented."  Fergiste v. INS, 138 F.3d 14, ___, 1998 WL 99690, <br>at *3 (1st Cir. 1998).  In a separate and independent error, <br>discussed infra, the Board also failed to give Civil any <br>warning that it would be considering this extra-record evidence <br>and failed to give her an opportunity to respond before the <br>final decision issued.  See Gebremichael, 10 F.3d at 37. <br>                 A. General Versus Specific Facts <br>     First, the IJ and the Board took notice of a <br>generalization, without any evidence that there has been any <br>specific diminution in the threat to this particular individual <br>petitioner.  As the majority notes, the BIA "devoted the bulk <br>of its analysis of Civil's asylum application to reciting <br>virtually verbatim a discussion of changed country conditions <br>set forth in an earlier opinion."  Ante at 8.  While taking <br>official notice of the general changes in country conditions in <br>Haiti, the Board gave absolutely no consideration to the <br>question whether those general conditions made any difference <br>(much less sufficient difference) to Civil's particular <br>situation.  The Board's implicit assumption, that the <br>particular necessarily follows from the general, is also <br>factually inaccurate:  despite the return of Aristide and then <br>Prval to head Haiti's government, the former Ton Ton Macoutes <br>continue to terrorize Aristide's friends and supporters. <br>     As we have held, "[i]n keeping with standard principles <br>of administrative procedure and in the absence of any <br>prohibition in the INA itself, the Board has the discretion to <br>take 'official' or 'administrative' notice of extra-record <br>legislative facts."  Gebremichael, 10 F.3d at 37 (emphasis <br>added) (citing 3 Kenneth C. Davis & John P. Wilson, <br>Administrative Law Treatise  15, at 132-217 (2d ed. 1980) <br>("Administrative Law Treatise")).  "Legislative facts are those <br>which 'do not usually concern the immediate parties but are the <br>general facts which help the tribunal decide questions of law <br>and policy and discretion.'"  Id. at 37 n. 25 (quoting 2 <br>Administrative Law Treatise  12:3, at 413).  "Thus, the Board <br>is free to take official notice of facts such as a change in <br>government in an applicant's home country."  Id. at 37.   <br>     "In contrast, 'adjudicative facts usually answer the <br>questions of who did what, where, when, how, why, with what <br>motive or intent.'"  Id. at 37 n.25 (quoting Administrative Law <br>Treatise 12:3, at 413).  These more particularized facts <br>pertaining to the individual parties are not the kind of facts <br>of which the agency may take official notice.  Yet that is <br>exactly what the Board would have to do in order to have made <br>a proper determination in the instant case.   <br>     As a matter of law, it is not enough for the Board to <br>find, as an officially noticed fact, that Aristide was restored <br>to power and therefore that the "general country conditions" in <br>Haiti had changed.  A change in government cannot, without <br>more, support a denial of political asylum.  The Board must <br>find, based upon substantial evidence, that the change has <br>actually resulted in an elimination or reduction of persecution <br>of the particular applicant for asylum, or of persons similarly <br>situated; an applicant is entitled to "careful, individualized" <br>consideration of such evidence in the context of the <br>applicant's claims.  See Llana-Castellon v. INS, 16 F.3d 1093, <br>1096, 1098 (10th Cir. 1994) (remanding to BIA a denial of <br>asylum based upon a "rote" finding of changed country <br>conditions); see Rhoa-Zamora v. INS, 971 F.2d 26, 34 (7th Cir. <br>1992).  As the Tenth Circuit cogently stated,  <br>     The use of official notice [of changed country <br>     conditions] does not substitute for an <br>     analysis of the facts of each applicant's <br>     individual circumstances.  Uncontroverted <br>     facts may be inapplicable to or of limited <br>     probative value in individual cases and the <br>     Board must remain open to this possibility.  <br>     The petitioners are therefore right to demand <br>     that the BIA engage in a careful, <br>     individualized review of the evidence <br>     presented in their applications and hearings. <br> <br>Llana-Castellon, 16 F.3d at 1098 (quoting Kaczmarczyk v. INS, <br>933 F.2d 588, 594-95 (7th Cir. 1991)).  The court found that <br>the Board there (as here) inferred a de facto change in country <br>conditions from a merely de jure change in government, and <br>failed to consider that the government does not enjoy full <br>control and that anti-government groups "are still a force to <br>be reckoned with."  Id. at 1097; Castillo-Villagra v. INS, 972 <br>F.2d 1017 (9th Cir. 1992) (Although the Board may take <br>administrative notice of the fact of a change in government, it <br>may not, without a hearing, conclude that the change has <br>eliminated the danger to the applicant.) <br>     We reached the same conclusion only last month.  In <br>Fergiste, we held:  <br>     [T]he Board's administrative notice of changed <br>     country conditions did not suffice to show <br>     that [the petitioner] himself no longer had a <br>     reasonable fear of future persecution.  <br>     Abstract "changed country conditions" do not <br>     automatically trump the specific evidence <br>     presented by the applicant.  Rather, changes <br>     in country conditions must be shown to have <br>     negated the particular applicant's well- <br>     founded fear of persecution. <br> <br>138 F.3d at ___, 1998 WL 99690, at *4 (emphasis added, footnote <br>omitted); see 8 C.F.R.  208.13(b)(1)(i).  In Fergiste, <br>referring to some of the same reports that Civil points to <br>here, we found that "political assassinations and intimidation <br>of Aristide supporters persist[ed]" after the September 1994 <br>return of Aristide to power.  138 F.3d at ___, 1998 WL 99690, <br>at *4.  There, we noted that, although the petitioner <br>"presented hundreds of pages of documentary evidence that <br>either contradicted the Board's conclusions or placed them into <br>question[,] . . . the Board mentioned none of them in its <br>analysis, nor did it discuss how or whether [the petitioner's] <br>particular situation may be affected by the changed country <br>conditions that it recognized."  1998 WL 99690, at *4.   <br>     Similarly, here, the question the Board should have <br>answered was whether Civil in particular had a well-founded <br>fear of persecution.  Neither the Board nor the IJ did anything <br>whatsoever to ascertain whether the general political change in <br>Haiti made any difference to Civil's well-founded fear of <br>persecution from the Ton Ton Macoutes and their sympathizers. <br>     If, in the instant case, the Board or IJ had made any <br>effort to look into this question, they would have found an <br>abundance of evidence supporting Civil's claim that she still <br>had reason to fear persecution.  As discussed supra, despite <br>the change at the top of the government in Haiti, members of <br>the police force and civilian former Ton Ton Macoutes continued <br>to prowl the country intimidating, torturing and killing <br>Aristide supporters and their families.  In short, the deadly <br>battle for control of Haiti continued to be waged even after <br>the general changes occurred at the top of the government.  The <br>Board's failure even to ask the particular question of Civil's <br>personal well-founded fear of persecution, i.e., the Board's <br>leaping to the conclusion of denying her petition simply based <br>upon the general change in country condition, was erroneous as <br>a matter of law and should be reversed.  It is not a <br>legislative fact of which the Board was permitted to take <br>official notice, nor did the Board make any attempt to <br>determine objectively a particularized finding based on such <br>fact.     It was particularly unfair for the IJ to base his <br>decision on changed country conditions stated in excerpts of <br>the U.S. State Department Country Reports on Haiti, and then to <br>ignore the voluminous documentary evidence presented by Civil <br>in support of her case.  She offered reports of reputable, <br>objective organizations, including some from the State <br>Department and INS itself, attesting to the fact that the <br>change at the top did not automatically free individual <br>Aristide supporters from persecution.  The IJ should not have <br>drawn the conclusions he did from his official notice, without <br>considering evidence in the record to the contrary. <br>     The Board, too, relied not only on the same general <br>conditions on which the IJ relied, but took official notice <br>itself of additional changes in the Haitian government, notably <br>the election of Ren Prval to succeed Aristide.  Like the IJ, <br>the Board relied on the general to overcome Civil's showing of <br>specific facts on the particular, while giving her no <br>opportunity to rebut or to demonstrate that the general country <br>conditions did not allay her well-founded fears.  Moreover, on <br>their face, the Board's general facts are not sufficient to <br>support its conclusion that the persecution of Aristide <br>supporters actually diminished.  The Board stated that "the <br>rise to power by democratic forces, and the significant efforts <br>made to dismantle the former military structures, have a direct <br>impact on asylum claims from Haiti."  (Emphasis added.)  <br>Similarly, the IJ relied on recent developments in Haiti as <br>"provid[ing] a basis for hope that conditions in the country <br>soon might improve."  (Emphasis added.)  The fact that <br>"significant efforts" are being made to dismantle the former <br>military structures and to prevent further atrocities against <br>Aristide's supporters does not mean that those efforts are <br>successful.  The question that the Board was required to answer <br>was whether this particular individual had a well-founded fear <br>of persecution, not whether, in general, there was any "hope" <br>that conditions in Haiti "might improve" or whether <br>"significant efforts" were being made to protect people like <br>her. <br>     As in Fergiste, the Board majority's reliance on <br>official notice of generalized changed country conditions, <br>instead of a particularized finding as to this individual <br>petitioner, constitutes "legal error [which] undermines the <br>Board's decision."  1998 WL 99690, at *3.  Viewing the  record <br>as a whole, including evidence on both sides of the question, <br>the record does not contain substantial evidence to support the <br>Board's implicit conclusion that the changes in general country <br>conditions meant that Civil's fear of persecution is not well- <br>founded.  The Board's decision should be reversed, and the case <br>remanded for the IJ to determine whether Civil is entitled to <br>asylum as a matter of the discretion of the Attorney General.  <br>Fergiste, 138 F.3d at ___, 1998 WL 99690, at *4; see 8 U.S.C. <br> 1158 (b)(1) (granting discretion to the Attorney General). <br>                          B. Due Process <br>     Even if the Board were permitted to take official <br>notice of the change in country conditions, and even if the <br>Board could extrapolate from those facts a particularized <br>conclusion as to whether Civil herself continued to have a <br>well-founded fear of persecution despite the change in country <br>conditions, there is a question whether the Board violated <br>Civil's right to due process under the Fifth Amendment by <br>relying on extra-record facts without affording her notice or <br>an opportunity to be heard on this new evidence.   <br>     "It is well settled that an alien in a deportation <br>proceeding is entitled to procedural due process."  <br>Gebremichael, 10 F.3d at 38.  This is especially important in <br>light of the fact that "an alien's freedom to stay in this <br>country hangs in the balance."  Id.  The question is "what <br>process is due when the Board chooses to take official notice <br>of conditions in the applicant's home country."  Id.  In <br>answering this question, we recognized the conflict in the <br>circuits, and went on to agree with the position taken here by <br>the government that "the motion to reopen process can <br>ordinarily satisfy the demands of due process."  Id.   <br>     While reaching this conclusion, we nevertheless <br>recognized that not all cases are "ordinary," and that the <br>question of whether the motion to reopen process will satisfy <br>the constitutional demands of due process "will, as always, <br>ultimately depend on the circumstances."  Id. at 39 (citing <br>Mathews v. Eldridge, 424 U.S. 319, 324 (1976)).  We alluded to <br>the Administrative Law Treatise for the proposition that "[t]he <br>sound practice for both courts and agencies would be one of <br>full liberality in allowing the free use of legislative facts <br>. . . along with strictness in requiring that parties be given <br>a predecision chance to respond to whatever extra-record facts <br>are relied upon."  Administrative Law Treatise  12:4, at 320 <br>(Supp. 1989), quoted in Gebremichael, 10 F.3d at 38-39.  We <br>noted one important example of why predecision input from the <br>applicant is so critical:  the applicant  <br>     is ordinarily entitled "not only to refute <br>     but, what in this situation is usually more <br>     important, to supplement, explain, and give <br>     different perspective to the facts upon which <br>     the agency relies."  <br> <br>Gebremichael, 10 F.3d at 38 n. 28 (quoting Kaczmarczyk, 933 <br>F.2d at 596 n.7 (itself quoting 4 Jacob A. Stein et al., <br>Administrative Law,  25.01 n.7 (1986))).  <br>     In Fergiste, 138 F.3d at ___, 1998 WL 99690, at *4 n.4, <br>we rejected the INS position that Gebremichael's language <br>regarding motions to reopen requires rejection of petitioner's <br>argument that due process was violated by the Board's reliance <br>on extra-record changes in country conditions.  The INS makes <br>the same argument here, and we should reject it here too. <br>     Thus, in Gebremichael, even though the motion to reopen <br>process will "ordinarily satisfy the demands of due process," <br>we held that the petitioner's due process rights were violated <br>because he was not "afforded an adequate opportunity to <br>respond" to the general facts of which the Board took <br>administrative notice.  10 F.3d at 39.  We were troubled by <br>the fact that "[t]he Board did not warn petitioner of its <br>intention to use extra-record materials," nor "did petitioner <br>have a predecision opportunity to respond."  Id.   <br>     Here, too, Civil was not warned that the Board intended <br>to consider the changes in Haiti's government in general as a <br>ground for rejecting her claim that she had a well-founded fear <br>of persecution.  Nor was she afforded an opportunity, beforethe IJ made his decision, "not only to refute but, what in this <br>situation is usually more important, to supplement, explain, <br>and give different perspective to the facts upon which the <br>agency relies."  See Gebremichael, 10 F.3d at 38 n.28 (quoting <br>Kaczmarczyk, 933 F.2d at 596 n.7); Llana-Castellon, 16 F.3d at <br>1099 ("In the circumstances of this case, where the BIA noticed <br>facts and made disputable inferences based on those facts which <br>. . . were dispositive of [p]etitioners' appeal, we hold that <br>due process requires the BIA to give [p]etitioners advance <br>notice and an opportunity to be heard."); Castillo-Villagra, <br>972 F.2d at 1023 (same). <br>     As the dissenting member of the Board pointed out, <br>there are a multitude of facts, including findings by the <br>United Nations and other objective international bodies, that <br>have examined the human rights situation in Haiti and have <br>concluded, even after the restoration of Aristide and later <br>Prval to the presidency, that former members of the Ton Ton <br>Macoutes and supporters of the former dictatorship have <br>continued to terrorize, torture, and kill Haitians who support <br>Aristide.  See supra.  The restoration to the presidency has <br>not been enough to control the anti-Aristide forces. <br>     In reaching its own conclusion based on the second <br>layer of administratively noticed facts   again, without giving <br>Civil an opportunity to respond to the disputable facts or the <br>inferences the Board drew therefrom   the Board (on appeal from <br>the IJ's decision) "abused our presumption of good faith and <br>ran afoul of petitioner's procedural rights."  Gebremichael, 10 <br>F.3d at 39.   <br>     The Board acknowledged the significant extent of its <br>reliance on such officially noticed and unrebutted general <br>facts:  "The political changes in Haiti, which include the gain <br>of power by those whom the applicant supports, are a <br>significant factor in our conclusion that the applicant has not <br>established a well-founded fear of persecution."  If given the <br>opportunity to rebut these noticed facts, Civil would have been <br>able to introduce into evidence reports from the United Nations <br>High Commissioner for Refugees and others (including a U.N. <br>report issued on August 14, 1997), attesting that human rights <br>abuses continued to occur with regularity in Haiti, long after <br>Prval's election. <br>     Thus, while the general facts are undisputed <br>(restoration of Aristide, election of Prval), the inferences <br>regarding their impact on Civil's fear of persecution are <br>disputed.  In addition to violating her right to procedural due <br>process, this goes to the legitimacy of the basis for the <br>Board's conclusion, which is unsupported by the record taken as <br>a whole. <br>     Finally, as we noted in Gebremichael, "the filing of a <br>motion to reopen does not automatically stay deportation," id.at 39 n.29.  This factor also comes into play in the instant <br>case.  After the BIA's order dismissing her appeal on June 26, <br>1997, Civil was required to file an appeal within thirty days <br>under IIRIRA Sec. 309(c)(4) (Transitional Rule) in order to <br>seek a stay of deportation.  This is still another factor that <br>renders the motion to reopen process insufficient to satisfy <br>Civil's due process rights. <br>                            Conclusion <br>     In my view, the BIA evaluation of the facts in this <br>case contains improper legal analysis and is not supported by <br>substantial evidence in the record; it rests on unsubstantiated <br>speculation by the Immigration Judge.  Moreover, the IJ and BIA <br>made errors of law by taking official notice of changes in <br>generalized country conditions without considering whether <br>those changes would affect whether this particular individual <br>had a well-founded fear of persecution, and without affording <br>her notice or an opportunity to rebut the facts officially <br>noticed.  Accordingly, I believe the BIA decision should be <br>reversed.  I respectfully dissent. <br></pre>

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