Circu v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIOLETA CIRCU, 
Petitioner, No. 02-73420
v.
 Agency No.
A73-415-760
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted En Banc
December 13, 2005—Portland, Oregon
Filed June 9, 2006
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
Pamela Ann Rymer, Andrew J. Kleinfeld, Sidney R. Thomas,
Barry G. Silverman, M. Margaret McKeown,
Raymond C. Fisher, Marsha S. Berzon,
Johnnie B. Rawlinson, and Consuelo M. Callahan,
Circuit Judges.
Unanimous Opinion by Judge Callahan
6511
6514 CIRCU v. GONZALES
COUNSEL
Jagdip Singh Sekhon, San Francisco, California, briefed and
argued the cause for the petitioner.
Margaret Perry, Washington, D.C., U.S. Department of Jus-
tice, argued the cause for the respondent. With her on the
briefs were Peter D. Keisler, Donald E. Keener, Christopher
C. Fuller, and Janice K. Redfern.
OPINION
CALLAHAN, Circuit Judge:
Based primarily on a fear of future religious persecution in
her native country of Romania, the petitioner, Violeta Circu,
applied for asylum and other relief here in the United States.
The immigration judge (“IJ”) held a hearing on the matter,
where the U.S. State Department’s 1997 Romania Country
Report on Human Rights Practices (“1997 Report”) and 1997
Profile of Asylum Claims and Country Conditions for Roma-
nia were admitted into evidence. Two years after the hearing,
however, the IJ, relying on a 1999 Country Report on Human
Rights Practices (“1999 Report”) published by the State
Department nineteen months after the matter was argued and
submitted, denied Circu’s petition. Circu did not receive
notice that the IJ intended to take administrative notice of the
1999 Report and was not afforded an opportunity to respond
to its contents before the IJ issued her decision. The Board of
Immigration Appeals (“BIA”) summarily denied Circu’s
appeal, in which she requested an opportunity to counter the
1999 Report. She then sought review in this court, citing our
CIRCU v. GONZALES 6515
decision in Getachew v. INS, which held that due process
requires “both notice to the applicant that administrative
notice will be taken and an opportunity to rebut extra-record
facts or to show cause why administrative notice should not
be taken of those facts.” 25 F.3d 841, 846 (9th Cir. 1994)
(emphasis in original). We grant the petition for review
because the BIA did not correct the IJ’s procedural due pro-
cess violation.
I. BACKGROUND
The underlying facts are not disputed. Circu is a native and
citizen of Romania, where Romanian Orthodox Christianity is
the predominant religion. Circu and her family are Pentecostal
Christians. On November 2, 1994, she entered the United
States as a nonimmigrant visitor for pleasure and was autho-
rized to remain here until November 1, 1995. On March 27,
1996, the Immigration and Naturalization Service (“INS,”
now the Department of Homeland Security) charged that
Circu was subject to deportation for overstaying her visa
under 8 U.S.C. § 1251(a)(1)(B) (currently, 8 U.S.C.
§ 1227(a)(1)(B)). Conceding deportability, Circu applied for
asylum based primarily on religious persecution.
A staggered two-day deportation hearing was held before
an IJ in March and July of 1998. Circu testified that the reli-
gious persecution of her family dates back to the 1950s,
before she was born, when her grandfather was jailed and his
house was seized because he was a founder of a Pentecostal
religion in Romania. When she was four years old, her father
was imprisoned for six months for trying to leave the country,
and her family was forced to move to a different town and to
live in barracks. Circu’s healthy infant brother was taken from
her family to a hospital where he later died of meningitis.
Circu’s mother suffered two miscarriages on account of persecu-
tion.1 Circu was denied admission to Romanian public univer-
1
Incidentally, a different IJ granted Circu’s mother asylum in February
1996 based on the severity of the mother’s past religious persecution in
Romania.
6516 CIRCU v. GONZALES
sities on several occasions, despite having stellar test scores.
Circu was summoned to the headquarters of the Romanian
secret police where she was told that she would gain admis-
sion into a public university in exchange for sex. Circu was
expelled from a private university after attempting to publish
articles detailing atrocities committed by the Romanian gov-
ernment. The IJ found that Circu testified credibly.
In August 2000, more than two years after the conclusion
of the hearing, the IJ filed an opinion denying Circu’s petition
for relief, but permitting her to voluntarily depart the United
States. Although the IJ found that Circu “met her burden of
proving that she suffered past persecution in her homeland
during the Communist regime,” entitling her to a presumption
of a well-founded fear of future persecution, the IJ found that
the INS successfully rebutted this presumption with evidence
of changed-country conditions. (emphasis in original). With
regard to this finding, the IJ stated:
The January 1997 Profile of Country Conditions
issued by the Department of State states that Pente-
costals and other unregistered sects had a difficult
time in Romania. See Exhibit 12. However, the 1999
Report indicates that open worship is now possible
and is only marred occasionally by unsanctioned
harassment by local officials. See Romania Country
Report on Human Rights Practices for 1999, dated
February 25, 2000.
The 1997 Profile of Country Conditions was part of the
administrative record. The 1999 Report, however, was
released on February 23, 2000, nineteen months after the con-
clusion of the hearing, and was not part of the administrative
record.
Circu appealed the IJ’s decision to the BIA, arguing, inter
alia, that the IJ erred in relying on documents not in the
record to find that country conditions had changed in Roma-
CIRCU v. GONZALES 6517
nia. She requested a remand to the IJ for an opportunity to
rebut the 1999 Report. The BIA summarily affirmed the IJ’s
decision without opinion.
Circu then petitioned this court for review. A divided panel
of our court denied the petition. Circu v. Ashcroft, 389 F.3d
938, 941 (9th Cir. 2004). We granted en banc review. Circu
v. Gonzales, 427 F.3d 622 (9th Cir. 2005).
II. STANDARD OF REVIEW
Where, as here, the BIA affirms the IJ’s decision without
opinion, we review the IJ’s decision as the final agency
action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir. 2004)
(citing Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th
Cir. 2003)). Although we generally review claims of due pro-
cess violations in deportation proceedings de novo, e.g., Bar-
raza Rivera v. INS, 913 F.2d 1443, 1448 (9th Cir. 1990), “we
review the procedures the Board uses to take administrative
notice of facts not in the record for abuse of discretion.” Get-
achew, 25 F.3d at 845.
III. ANALYSIS
The IJ’s finding that Circu suffered past persecution enti-
tled Circu to the legal presumption of a well-founded fear of
future persecution. Borja v. INS, 175 F.3d 732, 737 (9th Cir.
1999) (en banc). The government may rebut this presumption
by showing by a preponderance of the evidence that the con-
ditions in Romania “have changed to such an extent that
[Circu] no longer has a well-founded fear that she would be
persecuted, should she return there.” Id. at 738. The IJ deter-
mined that Circu’s presumption of a well-founded fear had
been rebutted by the 1999 Report.
[1] Over a decade ago, we held that notice of intent to take
administrative notice of events occurring after the hearing is
all that is required if extra-record facts and questions are
6518 CIRCU v. GONZALES
“ ‘legislative, indisputable, and general.’ ” Getachew, 25 F.3d
at 846 (quoting Castillo-Villagra v. INS, 972 F.2d 1017, 1029
(9th Cir. 1992)). On the other hand, more “controversial or
individualized facts require both notice to the [alien] that
administrative notice will be taken and an opportunity to
rebut the extra-record facts or to show cause why administra-
tive notice should not be taken of those facts.” Id. (emphasis
in original); accord Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 314 (1950) (“ ‘The fundamental requisite
of due process of law is the opportunity to be heard’ ” and
“[t]his right to be heard has little reality or worth unless one
is informed that the matter is pending and can choose for him-
self whether to . . . acquiesce or contest.” (quoting Grannis v.
Ordean, 234 U.S. 385, 394 (1914))). Getachew relied on
Castillo-Villagra, a case which explained that “[i]t is not nec-
essary to warn that administrative notice will be taken of the
fact that water runs downhill. Some propositions, however,
may require that notice not be taken, or that warning be given,
or that rebuttal evidence be allowed. The agency’s discretion
must be exercised in such a way as to be fair in the circum-
stances.” Castillo-Villagra, 972 F.2d at 1028. As we held in
Castillo-Villagra, an IJ may take administrative notice of a
change of government, but where it is plausible that the
change does not eliminate the danger to the individual peti-
tioner, the IJ must give the petitioner an opportunity to be
heard on the question of the individual impact. Id.
[2] The 1999 Report contains extra-record facts that are
“controversial.” Getachew, 25 F.3d at 846. Accordingly,
Circu was entitled both to notice of the IJ’s intent to take
administrative notice of the 1999 Report and an opportunity
to respond to that report. This point is made clear in Get-
achew. There, the government asked the BIA to take notice of
the fact that the Marxist government in the petitioner’s native
country fell two months after the deportation hearing before
the IJ. Id. at 843-44. In concluding that the petitioner was
entitled to notice of the BIA’s intent to take administrative
notice of this fact and an opportunity to rebut it, this court dis-
CIRCU v. GONZALES 6519
tinguished between “indisputable” facts and “controversial”
facts. Id. at 846. The sole example given of an “indisputable”
fact is a political party’s victory in an election. Id. An exam-
ple of a “controversial” fact is “whether the election has viti-
ated any previously well-founded fear of persecution.” Id. The
1999 Report plainly falls into the latter category because the
IJ’s assertion that “open worship is now possible [in Roma-
nia] and is only marred occasionally by unsanctioned harass-
ment by local officials” is based on her determination that the
1999 Report vitiates Circu’s previously well-founded fear of
persecution.
[3] Neither of Getachew’s requirements for taking adminis-
trative notice of disputable facts were met in this case. The
government’s argument that Circu was afforded notice of the
IJ’s intent to rely on the 1999 Report ignores the fact that
Circu was not given notice prior to the IJ’s taking administra-
tive notice of the report. The only notice Circu received that
the IJ would consider the 1999 Report was the IJ’s opinion.
This after-the-fact reference clearly fails to afford Circu warn-
ing that the IJ planned on taking administrative notice of the
1999 Report. See id. at 846. The 1999 Report did not even
exist at the time of Circu’s hearing before the IJ, and the IJ
explicitly relied on that report, noting the possibility for open
worship, which differed from the information provided in the
1997 Report.
[4] Furthermore, Circu was never given the opportunity to
counter the 1999 Report before the IJ relied on the statements
made therein to find that conditions in Romania had changed
to allow Circu’s return without an objective fear of persecution.2
2
In the appendix to this opinion, we provide a table that compares the
relevant portions of the two reports, adding emphasis to their differences.
The record demonstrates that the IJ saw significant differences between
the 1999 Report and the 1997 Report, and based her decision specifically
on those differences. Indeed, there are several notable variances between
the two reports: the 1999 Report does not specifically mention which
6520 CIRCU v. GONZALES
While establishing a due process violation always requires a
showing of prejudice,3 Ramirez-Alejandre v. Ashcroft, 320
F.3d 858, 875 (9th Cir. 2003) (en banc), Circu satisfied her
burden here by showing that the IJ perceived significant dif-
ferences between the evidence in the record and the improp-
erly noticed 1999 Report, and that the IJ relied on those
differences in rendering a decision.
[5] The BIA compounded the error by failing to remand the
matter to the IJ to afford Circu an opportunity to rebut the
1999 Report. The government misses the point by arguing
that Circu had an adequate opportunity to respond to the 1999
Report in her appeal to the BIA. As noted, due process
requires notice and an opportunity to respond before the IJ
renders her decision. The appeal to the BIA did not afford the
procedural means by which Circu could submit evidence to
refute the points asserted in the 1999 Report. Id. at 865-66.
denominations continue to make credible allegations of persecution,
whereas the 1997 Report specifically named “Protestant denominations”
as making credible allegations of harassment; and the 1999 Report dis-
cusses the mechanism whereby religious groups have to register with the
Romanian government, whereas the 1997 Report does not address this
subject. Given an opportunity to rebut the 1999 Report, Circu may be able
to show that her Pentecostal group is one of the denominations that contin-
ues to make credible allegations of persecution and is subjected to an
oppressive registration process in order to function as a religion in Roma-
nia. Of course, providing Circu with an opportunity to rebut the 1999
Report does not necessarily mean that the IJ will reach a different decision
on Circu’s asylum petition.
3
This standard is met under circumstances in which an alien’s interests
are harmed “in such a way as to affect potentially the outcome of the[ ]
deportation proceedings.” United States v. Cerda-Pena, 799 F.2d 1374,
1378 (9th Cir. 1986) (quotation and emphasis omitted). Of course, “[a]ny
such harm should be identified specifically.” Id. (quotation and emphasis
omitted). “In assessing prejudice in this context, we need not determine
with certainty whether the outcome would have been different, but rather
whether the claimed harm potentially affected the outcome of the proceed-
ings.” Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 875 (9th Cir. 2003)
(en banc).
CIRCU v. GONZALES 6521
Accordingly, Circu asked the BIA to remand her case to the
IJ so that she could present rebuttal evidence. Because the
BIA summarily affirmed the IJ’s decision — and conse-
quently we review the IJ’s decision as the agency’s final deci-
sion — the denial of procedural due process requires that we
remand the case to the BIA with directions that it remand the
case for further proceedings before the IJ.4
IV. CONCLUSION
For the foregoing reasons, the petition for review is
GRANTED and the matter is REMANDED with instructions
that the BIA remand the matter to the IJ to provide Circu with
an opportunity to respond to the 1999 Report.
4
As the BIA summarily affirmed the IJ under its streamlining regula-
tions, we neither suggest nor have occasion to consider whether under
other circumstances the BIA may cure an IJ’s denial of procedural due
process by accepting new evidence in the course of an appeal. Further,
Circu’s claim that the use of streamlined procedures violated her due pro-
cess rights is foreclosed by Falcon Carriche. 350 F.3d at 851. Circu also
contends that the IJ erred by failing to consider her eligibility for a human-
itarian grant of asylum, but the record is clear that the IJ considered this
form of relief and found that it would not be inhumane to repatriate Circu.
6522 CIRCU v. GONZALES
APPENDIX
1997 Report 1999 Report
The Constitution provides The Constitution provides
for religious freedom, and for religious freedom, and
the Government generally the Government generally
does not impede the does not impede the
observance of religious observance of religious
belief. However, several belief. However, several
Protestant denominations, denominations continued to
Jehovah’s Witnesses the make credible allegations
most prominent among that low-level government
them, continued to make officials and Romanian
credible allegations that Orthodox clergy impeded
low-level government their efforts at
officials and Romanian proselytizing. The press
Orthodox clergy harassed reported several instances
them and impeded their when adherents of minority
efforts at proselytizing and religions were prevented by
worship. Under the others from practicing their
provisions of 1948 and faith, and local law
1989 decrees, the enforcement authorities did
Government recognizes 15 not protect them. . . .
religions; only the clergy Under the provisions of a
of these recognized 1948 decree, the
religions are eligible to Government recognizes 14
receive state financial religions; only the clergy
support. The State of these recognized
Secretariat for Religious religions are eligible to
Affairs has licensed 385 receive state financial
other faiths, organizations, support. . . . The
and foundations as Government requires
religious associations religious groups to register
under two 1924 laws on and establishes the criteria
CIRCU v. GONZALES 6523
juridical entities, thereby for registration. In order to
entitling them to juridical be recognized as a
status as well as to religion, groups must
exemptions from income register with the State
and customs taxes. Secretariat for Religious
However, religious Affairs and present a list
associations may not build with the names, age,
churches or other buildings identity card numbers,
designated as houses of addresses, and signatures
worship and are not of their followers. . . . The
permitted to perform rites Romanian Orthodox
of baptism, marriage or Church has attacked the
burial. . . . The Romanian “aggressive proselytism” of
Orthodox Church has Protestant and neo-
attacked the “aggressive Protestant groups.
proselytism” of Protestant
and neo-Protestant groups
and harassed members of
such religious minorities.