
USCA1 Opinion

	




          January 18, 1994  United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                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                                     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                                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                            United States Court of Appeals                                For the First Circuit                                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  &  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.                                          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 & 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 & 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 & 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.                                         II.                                         ___                                  STANDARD OF REVIEW                                  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.                                         III.                                         ____                                      DISCUSSION                                      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            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. &  N. Dec. 211, 233 (BIA 1985)  (emphasis            ____________            supplied), overruled on other grounds by In re Mogharrabi, 19                       _________ __ _____ _______ __ ________________            I. & 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            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 & 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            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. & 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.                                         IV.                                         ___                                      CONCLUSION                                      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
