Abdul Gafoor Bibi Nurun Nisha Faymeeza Nisha Farzana Nisha v. Immigration and Naturalization Service

еvidentiary hearing, timely post-conviction did not hold an and as petition relief state court. we cannot result determine whether actually Loveland relied on his counsel to REVERSED and REMANDED. and, did, appeal tile a direct whether that reliance was reasonable. See Man Foster,

ning v. 224 F.3d 1129 Cir.

2000) (remanding to the district court for a

limited hearing factual to determine attorney’s

whether an effectively actions

prevented petitioner a habeas from learn

ing pursuing right of and petition GAFOOR; Nisha; Abdul Bibi Nurun post-conviction year state relief within one Faymeeza Nisha; Farzana conviction, of his where counsel failed to Nisha; Petitioners, appeal file a direct from his client’s convic tion subsequently misinformed him AND only remaining that his IMMIGRATION option was to file a SERVICE, sentence). NATURALIZATION motion to reconsider the Ac Respondent. cordingly, we remand to the court district evidentiary hearing for an ques on these No. 98-71201. tions. United States Court Appeals, Ninth Circuit.

If Loveland good establishes cause procedural his state default based on Argued and Submitted Dec. 1999. counsel, ineffective assistance of he will Filed Nov. have also established the prejudice neces sary for excusing his default. Id. at “[wjhere (holding attorney an appeal,

fails to file and the prove

can that he appealed would have file, prejudice

‘but for’ counsel’s failure to presumed”); Flores-Ortega, 528 U.S. at (“[Wjhen

-, 120 S.Ct. at 1039 counsel’s

constitutionally performance deficient de-

prives a defendant appeal of an that he taken,

otherwise would have the defendant

has made out a successful ineffective assis-

tance of counsel claim entitling him to an

appeal.”).

CONCLUSION

We reverse the district court’s dismissal petition, Loveland’s federal habeas

remand to the district court for an eviden-

tiary hearing to determine whether Love-

land’s counsel was pursu- ineffective

ing so, Loveland’s direct appeal and if

whether that ineffectiveness excused Love- procedural failing

land’s default in to file a

Jorge Rodriguez-Choi (argued) and Su- Friedman, Francisco, zanne B. San Cali- fornia, for petitioners. Loughran,

Alice E. Immigra- Office of Litigation, tion Department U.S. of Jus- tice, D.C., Washington, for the respondent. O’SCANNLAIN, HAWKINS, Before: THOMAS,1 Judges. and Circuit Opinion by HAWKINS; Judge Dissent by Judge O’SCANNLAIN. HAWKINS, DALY

MICHAEL Circuit Judge:

This is the in a long latest line of immi gration involving cases claims of racial and political persecution against people of Indi living an descent on the South Pacific is Fiji. asylum-seekers land of Like those him, before Abdul Gafoor claims he was persecuted by Fijians on ethnic account of background his Indian and that he and his family will be harmed if forced to return to Fiji. We have taken the claims of Indo- Fijians very seriously because of the se vere mistreatment have suffered adopted their country. years Recent brought improvements Fiji, about and consequently wé have held in one case that changed country conditions rebutted the Indo-Fijian fears of an woman that she sent home. would be persecuted Kumar v. 203 F.3d 831 Cir. 2000). But the underlying racial tension Indo-Fijians per between ethnic and has sisted, and in past several months con- Judge replace tape argument 1. Thomas has been drawn to and listened to of oral held Judge Wiggins. the lаte Circuit Charles E. on December briefs, record, He has read the reviewed the Indo- government first dominated deteriorated country have in the ditions was short- The administration Fijians. years. in 13 point their lowest October, lived, however; May develop- these context of in the It is oust- staged coups two Fijian military the BIA’s decision we review ments Indo-Fijian Accord- government. ed the eligible that Gafoor Department, ing to the U.S. State Fiji.2 family must return that he and military coups purpose “stated decision is not BIA’s We conclude political supremacy was to ensure evidence, we supported substantial Fijian protect and to indigenous people case determination remand way of life and communal traditional their support Gafoor’s whether recent events State, Dep’t of control of land.” U.S. if forced to that he will be fear Rights Prac- Country Reports on Human Fiji. return (1993). 1992, To achieve at 566 tices for in- military installed an purpose, the AND PROCEDURAL I. FACTS Prime by led Former government terim BACKGROUND “unelected, This Sir Minister Kamisese. 1874, Empire British as- when the In government” promulgated then interim Fiji, country was the control of sumed constitution, ap- never which “was new Fijians. by indigenous primarily populated and national referendum” proved by a 1879, however, indentured in Beginning by dominance political “ensur[ed] which Fiji to brought to from India were workers Fijians.” Id. 565. The constitu- ethnic sugar plantations. expanding the farm of Indo-Fijians out effectively tion wrote of indentured work- importation the When majority reserving a of government, 1920s, a wave of in the new stopped ers Fijians, re- for ethnic in Parliament seats In- from began arriving migrant workers Fijian the election of an ethnic quiring Indo-Fijians dia, by the mid-1960s and Minister, ensuring the selection Prime and half of the coun- for more than accounted id. Fijian ethnic of an President. try’s population. structural discrimi- In addition Britain in Fiji independence from gained nation, widespread in coups resulted system parliamen- of and instituted Indo-Fijians. against and violence abuse leadership of tary democracy under State, Country Reports Dep’t of See U.S. Mara, Sir Kamisese Prime Minister Ratu 1987, at Rights Practices on Human for Fijian. emigration an ethnic Due (1988) Re- “Country [hereinafter 694-700 Indo-Fijians increase ethnic- and an Department ports 1987”]. The rates, Fijian population shifted birth reports received “numerous State Indo-Fijians slightly again so that mili- by the physical abuse of detainees Fijians. Despite ethnic outnumbered run “were forced to tary,” some of whom size, however, groups the two their similar hot sun blacktop on roads barefoot Indo-Fijians, rigidly separate. remained ‍‌​‌​​‌​​​​​​‌​​‌​‌​​​‌‌​​​​​​‌​‌​​​​​​‌​​​‌‌‌​‌​‍dumped in or were for several kilometers Muslim, domi- overwhelmingly Hindu sewage treatment pit latrines or economy while professions, and nated “The most holding plants.” Id. Fijians, exclusively Chris- ethnic almost Indo-Fijians on reported horrible attacks tian, military its the nation’s and controlled their raped women in front of include intermarriage Racial structures. children, brutally beat- political opponents virtually non-existent. en, naked forced walk detainees excrement, human while holding decades of rule streets In after two sewage ponds, Fiji people forced swim ethnic-Fijians, the voters of elected application. asylum; derivative of his primary applicant for 2. Gafoor is the and two children are the claims of his wife stripped and and beaten for Sun- ferred temporarily job children to a aas court day curfew violations and forced to rub bailiff so that he could recover. Several against later, their noses a concrete floor until nights he regular patrol resumed his Singh their noses bled.” duties and was walking down the street Cir.1996). Fijian “Ethnic when a military pulled up van to the curb. raidеd, stoned, ... youth gangs and fire had become in police involved Indo-Fijian homes. bombed five work following coups, and Gafoor temples Hindu were burned. In October thought the soldiers van had 1990, an Indian school was burned.” Id. stopped to assist him. But when speech severely “Freedom of con- [was] van, stepped out of recognized strained,” “[political meetings and officer he had among arrested the group. demonstrations banned.” [were] See approached, soldiers beat him with Country Reports at 696-97. rifles, their and threatened to kill him. 35,000 Fearing safety, roughly for their They Fiji told him was their Indo-Fijians country. fled the See U.S. Then, that he “should go back to India.” Department, Background State Notes: ditch, they left him in a bleeding water (last 8, 2000); May Sept. visited unconscious. When he awoke the next http:/huwiv.state.gov/mmv/back- morning, he in hospital, was a where he ground-notes/fiji-0596-bgn. html remained for days. nine Abdul was one of those. At Gafoor Gafoor feared the soldiers would return coups, police time of the he was a officer him, 15, 1987, to kill so on November Fiji eighteen years with experience. Born fled with family his to stayed Canada. He Fiji parents, to Indian he was one of the 1991, there until February when he en- Indo-Fijians country’s police few on the tered the United States. The insti- INS 1987, day in force. One October he was on deportation tuted proceedings against Gaf- patrol nearby when he heard screams in a family oor and his in January 1993. He a upon street and came man civilian applied asylum then withholding for and clothing raping 13-year-old who was a deportation. hearing At his before the girl. arrested man Gafoor and escort- (“IJ”), Immigration Judge Gafoor testified station, him police super- ed to the but his things happened about the that had to him. visor, Fijian, explained an ethnic that the Fijians He also testified that ethnic had high-ranking army man was a officer. The since taken over his house and that being man was then released without returning he feared home. charged, supervisor and the warned Gaf- application, The IJ denied Gafoor’s find- in danger. oor that his life was ing that the abuse he suffered noth- “had night, army The next officer he had motives, ing any political to do with racial arrested came to Gafoor’s house with sev- motives, membership any particular so- men, eight army en or other all dressed in group religious any cial or or belief They uniforms. beat in front Gafoor of his Instead, other items mentioned.” the IJ wife and children and him an army took concluded, against the attacks Gafoor were Nambala, camp in where up he was locked solely by revenge motivated for the arrest During captivity, for one week. his sever- of the officer. The BIA affirmed al soldiers came to his cell and hit him in 1998, in September finding this decision They him why the stomach. asked he had “no ... nexus between the incidents and officer, an army arrested and warned any ground protected by” Immigration anyone rape him not to tell about the or Nationality and Act. The BIA also ruled beating. They his also accused him of persecuted that even Gafoor had been on opposing army. protected ground, country account of a released, sufficiently

After he was Gafoor received changed conditions had to re- injuries presumption treatment for his and was trans- but of a well-founded persecution suffered (finding applicant timely petition a filed then fear. Gafoor a violent on she witnessed attack where BIA’s decision. of the review for boss, noose tied to a chair with a her was neck, REVIEW threatened with OF and was around her II. STANDARD 814, death); v. Surita the BIA’s determina- uphold must “We Cir.1996) (9th applicant was (finding eligible alien is tion that an robbed her ev- where soldiers persecuted by reasonable and sub- supported if it is week, family’s day for a looted her ery a on the record as based stantial kill threatened to gunpoint, house INS, 212 F.3d whole.” Maini robbery rape reported if she her 2000). (9th May Cir. 2000 WL police). reverse its deci- differently, we will “Put can if the demonstrate sion question pointed more reasonable is ‘such that the evidence on ac whether Gafoor would have conclude factfinder race, nationality, religion, count of ” existed.’ Id. requisite fear of group, social membership particular Elias-Zacarias, 502 U.S. INS (quoting opinion. question goes This 478, 481, 117 L.Ed.2d 38 112 S.Ct. persecutors, of his as we motives (1992)). motives can be difficult to long recognized, Rivas v. down. See Ramirez pin ANALYSIS III. Cir.1990) (“Evidence is hard come persecutor the motive of a A. Past Persecution always do not take by.”). Persecutors asylum, eligibility To establish all the time to tell their victims reasons must show well-founded applicant kidnaped are or or they being beaten race, on account persecution fear of Sometimes, they may not want killed. membership par in a religion, nationality, con public known for fear of their motives political opinion. or group, ticular social demnation; times, may the motives other 1158(b)(1); § 8 U.S.C. See U.S.C. 8 explana that parties so clear to both no be 1101(a)(42)(A). demon applicant § If an tion is needed. account one past persecution on strates pre is a protected grounds, there of these prove it is so difficult Because a of future sumption of well-founded fear any precision, Supreme motives with 8 See C.F.R. persecution. an not applicant that does Court teaches INS, 208.13(b)(1)(i); (cid:127)§ 156 Garrovillas v. his provide have to direct evidence that (9th Cir.1998). 1010, The bur 1016 F.3d by of the were motivated persecutors one by shifts to the INS show den then instead, compelling protected grounds; the evidence that coun preponderance of evidence is sufficient. See circumstantial changed to such an try conditions have Elias-Zacarias, 483, 502 U.S. at 112 S.Ct. a well- presumption extent INS, addition, Borja In 175 812. longer valid. See Gar fear is no founded (9th Cir.1999) (en banc), 732, we F.3d 736 rovillas, at 1017. 156 F.3d applicant need not held an show solely by a persecutors were motivated dispute BIA did not that Gaf- his applicant does an Nor protected ground. and we think it clear persecuted, oor was prove protected ground, of have to Soldiers assaulted him front he was. itself, week, persecu by led family, captive held him for a would his Rather, only “pro need applicant he was tion. then him on the street until beat from which it is duce evidence reasonable bleeding appalling and unconscious. Such motivated, at the harm was to believe easily qualifies as treatment pro implied an actual or e.g., part, Korablina v. least under our case law. See (internal Cir.1998) (9th omit- INS, ground.” Id. citation tected 1044-45

651 ted); Surita, supported by This conclusion is see Hernandez-Montiel (9th Cir.2000) (appli 1095-96 F.3d 95 F.3d at and Prasad v. required prove not that his Cir.1996). cant “is Surita, F.3d 614 In we persecutors protect were motivated [a Indo-Fijian held that an woman who was ground] to the exclusion of all other ed repeatedly by ethnie-Fijian robbed soldiers motivations”); Ilchert, Singh v. possible had persecuted been on account of her (9th Cir.1995) (“[Persecu- support race. To finding, this we noted tory conduct have more than one that “they soldiers told Surita were motive, motive one of long and so as one looting family’s her home because the fam statutorily grounds, enumerated ily was of Indian descent and that Surita asylum] satis requirements [for have been family and her ‘go should back home’ to fied”). Surita, India.” 95 F.3d at In Pra case, sad,

In BIA Indo-Fijian held we held that an man who on account of persecuted Gafoor was jailed by ethnie-Fijian beaten sol race, nationality, membership religion, his diers had been on account of group, political in a particular social There, opinion. his pointed we Instead, it concluded he was tar opinion. out that questioned soldiers had high- geted solely because he arrested man about his political involvement and ranking army rape officer for the of a 13- him practice warned not to his religion in year-old girl. Prasad, public. F.3d at 616. enjoy BIA determinations this case is strikingly see, deference, healthy e.g., measure of similar to the evidence we relied on in Elias-Zacarias, 483, 112 502 U.S. at S.Ct. In particular, Surita and Prasad. the sol- 812, but we cannot conclude that its deci diers’ statement “go Gafoor should supported by sion here is substantial evi nearly back to India” is identical to the IJ, testimony dence. before the soldiers’ statement Surita that she and up Gafoor stated that when he was locked “ her family ‘go should back home’ to In- Nambala, why asked him soldiers dia.” Although the soldiers in Surita went had arrested an officer and accused step one further and looting said Then, opposing army. him of while family the house beсause her was Indo- street, in they beating were him the insufficient Fijian, that fact is to distin- Fiji soldiers told Gafoor that was their guish the two cases. The soldiers made country go and back to “should that imputed clear to Gafoor that his race and testimony, India.” Gafoor’s which was ac political opinion contributed to their hatred BIA, by cepted compels as true provided of him and them additional with that persecuted conclusion he was not sole they motive their That actions.3 did ly high-ranking because he arrested a him that specifically they not tell were officer, army but also because of his race by unimportant. motivated these factors is political opinion imputed by and him to above, an applicant As noted need not INS, Sangha the soldiers. See v. 103 F.3d (9th Cir.1997) present persecutor’s of a 1482, direct evidence (holding 1489 that ap if motives there is circumstantial evidence. plicant eligibility establish Elias-Zacarias, imputed political opinion). on of 112 basis U.S. at elements, separates posed political coup. 3. The dissent these two as to this The dissent is if there was no relation between the soldiers’ mistaken when it asserts that the therefore political opin- hatred of Gafoor's race and the politi- to his soldiers’ statement Gafoor about course, they imputed ion are to Of the two him. (Dissent opinion cal must be "taken alone.” intimately coups connected. The 1987 660). contrary, at To the the statement must staged by Fijian military were the ethnic to together be taken with the soldiers’ state- Fijians. ensure the dominance of ethnic To race. ments about Gafoor’s was, definition, Indo-Fijian by op- be to be context, INS, disregards The dissent that 812; 222 F.3d Chand S.Ct. Cir.2000). (9th And the soldiers’ reading single the evidence like a scene cir- are unmistakable to Gafoor statements But to play. out of a we are torn were moti- evidence cumstantial perse- understand what motivated Gafoor’s imputed political and by his race vated cutors, story. we must consider the entire 207 F.3d See Yazitchian opinion. Fijians engaged soldiers were ethnic Cir.2000) (evidence 1167-68 military coup depose in a to elected accused agents government Indo-Fijian to government, subordinate weapons opposition party, providing Indo-Fijians culturally, and politically and “Dashnak,” and told him to called him a punish perceived those as physically conclusion that compelled Armenia leave ar- standing way. in their When Gafoor imput- of an on account he was high-ranking raping rested a officer for opinion). ed 13-year-old girl, they just did not warn were, in this case him to mind his own business. He was soldiers sure, activated the arrest of the military many be camp, taken to a as were They specifically questioned officer. Indo-Fijians, prisoner for a other and held him about the arrest warned Gafoor questioned week while about the arrest A,s anyone rape. tell about the we not to Then, army. opposing and accused repeated in explained Borja and have released, came after he was the soldiers however, cases, asylum may be numerous more, telling to beat him some him back motivated, if the “was granted persecution was their and that he part, by implied at an actual or least They all “go should back to India.” did at protected ground.” Borja, 175 F.3d spite this of the fact the officer had Hernandez-Montiel, 736; e.g., see charged been released and was not with 1095-96; at Tarubac v. any crime. When the case is viewed (9th Cir.1999); Singh, 63 F.3d context, a reasonable fact-finder could presented by at 1509-10. not conclude was that Gafoor’s soldiers Gafoor leaves no doubt solely by personal mоtivated vendetta. motivated, part, were at least his compels The evidence a conclusion that he background by his purported Indian persecuted, part, account at least on opposition army. message Their imputed political opin- of his race and an had, by simply doing Gafoor was clear: he ion. officer, job challenged as a police Fijians notion that ethnic were above the light of the dissent’s suggestion law. The soldiers’ statements were not (Dissent reasoning our not “serious” “vague “off-the-cuff’ remarks or aceusa 659), explain why reading we now our (Dissent incidentally.4 uttered tion[s]” why think Borja Judge is correct and we 658-59). They pointed specific O’Scannlain, who from the en dissented during statements made two brutal beat well, opinion Borja as is incorrect. banc ings that reveal much about the motivation argues Borja Judge O’Scannlain them, particularly of those made when who an of the applicant does not relieve burden they considered the context in which proving protected ground were made. of that a “actu- watching merely Nor we a 4. were the remarks "sarcastic because know we are movie. derision,” (Dissent suggests. as the dissent at seriously, taking analogy the But even 1). 659 n. And the dissent’s contention that might reasoning unpersuasive. While we is bigoted we should view these slurs in the cigarette not construe Bond's comment about joke by same manner as a made James Bond motive, smoking as evidence if he called of his fighting cigarette while a smoker is disturb- "mick,” might Republican we well an Irish a ing, say especially the least. Movies— motivated, part, by think he was at least in entertain, type the James Bond made to —are politics Republican. race and laugh by and we at a remark James Bond (Dissent persecution. pro- drawn her blood when she could not ally motivated” 660). words, 6,000 appears pesos In other duce on demand.” Id. at 736- at of two mo- argue, there is evidence protected a is related to

tives—one Borja This examination of makes clear applicant and one that is not—the ground applicant that an not need show a persecution solely on the basis must show protected ground, alone, standing would Judge motive. O’Scannlain of the former persecution. have led to the guerillas says Borja court did not address this Borja had they two motives: wanted not matter requirement, but that it did money petitioner, they from the want- politicаl anyway petitioner’s because the punish political opinion. ed to her for a opinion clearly pri- was “the sufficient and only But it was when could longer she no (Dissent mary persecution. cause” of her pay they persecuted afford to the tax that 661). at Thus, prove— her. the woman not could reading Borja A undermines careful require and we did not to prove her —that argument. petitioner Borja this guerillas would have her on asked approached guerillas was who of her In- political basis beliefs alone. join their effort to overthrow the her to stead, simply required we her to show that government. Borja, See 175 F.3d at 734. motivated, persecutors her at least refused, telling pro- them she was She part, by her beliefs. It only government and would not enlist. When O’Scannlain, Judge Borja here and in his they angry gun a pointed became dissent, require who would more. her, quickly suggested pay she that she Judge argues O’Scannlain essence revolutionary guerillas tax instead. The that an action cannot be “on account of’ months, and for the three she agreed, next factor, itself, some factor unless the was 3,000 paid pesos. a tax of See id. at 735. (Dis- bring sufficient to about the action. 6,000 guerillas pe- But the soon demanded 661). But Supreme sent Court has month, and when woman ex- sos rejected explicitly rigid approach such a that she could afford ‍‌​‌​​‌​​​​​​‌​​‌​‌​​​‌‌​​​​​​‌​‌​​​​​​‌​​​‌‌‌​‌​‍plained not example, causation. For Title forbids VII amount, her, put gun beat to her from employer making employment an head, They and slashed her with a knife. race, employee’s decision “because of’ an also told her she would be killed if she did color, sex, religion, origin.5 or national See give money. Fearing them the for her 2000e-2(a)(l). § Employees 42 U.S.C. life, the woman left the soon after- required prove, have never been howev- ward. id. sex, alone, er, standing that their race or BIA petition denied employment would have led to the adverse in Borja, holding there Instead, in Price decision. Waterhouse persecuted solely gueril- because the 242-44, 109 S.Ct. Hopkins, U.S. money. las wanted to extort We reversed (1989), Supreme 104 L.Ed.2d 268 banc, acknowledging en that the woman’s that in cases an Court said mixed motive beating partly by was motivated economic employee employer need show that an factors, “only by concluding but clos- decision in would not made the same ing eyes escalating one’s nature of discriminatory motive. the absence of confrontation could one see the ensu- changed strictly Rights events as economic with no The Civil Act of 1991 ing adopted by also Price Water- political component.” Id. at 737. We the standard house, case joined only plaintiffs that the NPA’s but to make the “[h]ad stated she Act, cause, pre- a can plaintiff it is unreasonable to assume easier. Under the if vail in a Title VII case he can show would have slashed her shoulder and 72, (2nd dictionary Heritage Dictionary ed. 5. The defines of” as "on can “because 1991). account of’ and vice versa. See The Ameri- sex, by evi- “race, color, origin supported national sion is not substantial religion, motivating any employ factor for was a dence. though factors practice, even other

ment practice.” the 42 U.S.C. also motivated Country Changed B. Conditions 2000e-2(m). employer § that an Evidence if BIA ruled that even Gafoor estab- same action in the would have taken the presumption a of a well-founded lished discriminatory motive does absence of the fear, by was rebutted presumption this liability, but limits the not eliminate Fiji. conditions in To changed country may types relief a order. See court BIA support finding, cited the § Wash 2000e-5(g)(2)(B); see also U.S.C. country report for Department of State Garrett, 1421, 10 F.3d 1433 n. 15 ington v. reported political killings which (9th Cir.1993); Edu Pilditch Bd. of ceased, religion speech had freedom of and cation, n. 2 Cir. restored, political participation had been 1993). Thus, Congress has made clear revived, Indo-Fijians had been had act “because of’ a dis person a offices. Al- government been elected to criminatory though fac factor even other though report also noted that Indo- action, tors also motivated even Fijians subject are to occasional harass- in the action would have been taken race, account of their it ment and crime on discriminatory factor. absence of that “there are no alle- concluded credible offers no reason for Judge O’Scannlain in gations government involvement such imposing higher asylum appli a burden on incidents.” employees cants than on Title VII cases. Indeed, way. cut the equities other Ordinarily, accept we would the BIA’s employee opportunity An at least has the country finding changed conditions as gather employer’s to of the mo evidence by long as it was undermined put employer tive and to on the stand But events have the recоrd. recent explain employ to the reasons behind the Department’s 1992 rendered the State evidentiary ment action. The obstacles out of date and report hopelessly contrast, by applicants, are enor impossible ignore it the dan- have made to “Persecutors,” stated, mous. we have “are Indo-Fijians Fiji. gers May faced On hardly likely provide their victims with 19th, 2000, one-year anniversary of the affidavits their attesting persecution.” acts of Indo-Fijian min- prime election of the first Bola nos-Hernandez 767 ister, Fijian group a of armed nationalists (9th Cir.1984). Nor are country’s stormed the Parliament and they likely explain to submit declarations prime seized the minister and his cabinet. ing exactly what motivated them to act. Attempted For the Time: An Second fleeing persecution And individuals do not Economist, Coup Fiji, May usually ability time or gather 2000, available in 2000 WL 8142168. evidence of their persecutors’ motives. It Kamisese, Fiji’s declared a president, Sir therefore, unreasonable, require asy is ethnic-Fijians emergency, pil- state of lum applicants protected to show that a center, city looting mainly Indian laged alone, ground, standing would have led to shops. See id. persecution, their to require or еven a time, progress all made Since showing would not eliminating toward racial conflict has protect have occurred in the absence aof Fiji- been undone. The commander of the ground. ed approach reasonable martial law and con- by Borja: declared adopted the one Fijian demands of the nation- persecutors must show that his moti ceded to the vated, alists, by disgruntled who are led former part, protected at least government George named ground. Because Gafoor has met official overwhelmingly, Fiji’s burden conclu- Ahead: Speight. BIA’s See The Trouble

655 Levu, Economist, “sporadic Vanua attacks on eth- Economy, The June Damaged nic 3, 2000, Dep’t WL 8142201. Indians continue.” See U.S. of in 2000 available State, Fiji, Public Announcement: Indo-Fijian government Aug. was The elected (last constitution, Sept. 2000)http://trav- 2000 visit ousted, country’s 1997 el.state.gov/fiji-announce.html. The State Indo-Fiji- to rights increased gave which Department commander, has warned United States citi- ans, and the repealed, Fiji may dangerous. zens that travel to be Bainimarama, as Frank installed himself See id. Meanwhile, the state. See id. head of thirty govern- other

prime minister events, remarkably These dramatic hostage held Parlia- ment officials were coups similar to the to led Gaf ment, business district was and the Indian abuse, require oor’s a reevaluation of the looting a result of closed down as claim INS’s that Gafoor will not face fur id.; Terrorists: Allow Fiji’s arson. See Fiji. ther if returned to While Succeed, Destroy and It Could Them to government’s we do not good doubt Economist, 3, 2000, Country, The June relying faith in on report the 1992 in 2000 WL 8142205. available assertion, support ignore to its we cannot of the crisis day. International condemnation quite the realities of the It is obvious Australia, Britain, Fiji and severe. that conditions in for persons swift of Indi Zealand, all only improved, they New and the United States an descent are not and re- are demonstrably threatened economic sanctions worse. We therefore See That Man remand to the BIA to consider whether called their ambassadors. Fiji, finding recent events undermine the Again: respite No Econo- for 22, 2000, well-founded fear of mist, persecu Gafoor’s July available in 2000 WL by changed .country tion rebutted is condi 8142920. The Nations criticized United tions. failing to crack on military for down The Trouble Speight and his allies. See recognize We that our review Fiji’s Damaged Economy, Ahead: generally of BIA limited to the decisions Economist, 3, 2000, in 2000 June available record and that it is unusual for this court WL 8142201. judicial notice of events outside of take pressure, After several months of In the administrative record. Fisher v. agreement Speight (9th Cir.1996) (en was reached between F.3d military. prime released the and the He banc), we stated out-of-record evi politicians exchange (1) minister and other dence be considered where promises amnesty (2) and a new evidence; consti- the BIA considers the diminishing rights Indo-Fiji- tution by failing BIA discretion abuses its failing Speight ans. was later arrested upon consider such evidence the motion of stolen, weapons to return he had but applicant. Lising But as we noted minister, prime Qarase, ap- new Laisenia 998-99 Cir. 1997), pears support agenda. general See That limits to the rule there are Economist, 22, 2000, July particular, Man established Fisher. Again, evidentiary material that Qarase Fisher related to available in 2000 WL 8142920. been, not, presented to says government that could have but was the new unelected Fijian much of this in our military ethnic the BIA. We made was installed Fisher, stating petition opinion for the next three power will remain request con “ample opportunity er had years. Arresting: Fiji, The Econo- BIA, mist, 29, 2000, evidence before the available in 2000 WL sideration” of the July Fisher, to do so.” military And has re- that “she failed though but to remand stability, F.3d at 964. We then refused degree stored some trouble Indo-Fijians to the BIA “for it to consider persists. Hundreds of Here, present.” failed to Id. recently hostage taken on the island of Fisher 656 INS, 588, F.2d Kaczmarczyk v. 933 Fiji’s of troubled See

out-of-record (7th Cir.1991) (“We our n. 4 exercise available when the 594 was not political state decision; indeed, judicial notice of further discretion to take the events BIA made its Therefore, politics in that occurred changes Polish had not occurred. themselves in the time of the BIA’s decision and rule laid down between we do not believe INS, review.”); judicial v. 559 F.2d taking from our Coriolan us precludes Fisher (5th Cir.1977) 993, (relying on 1002-04 notice of this evidence.6 of Amnesty report part International not by taking argues that The dissent record to remand for recon- administrative Fiji, in we have events judicial notice of sideration). corpus pro- And in a habeas lawful of this court’s exceeded the bounds by ceeding brought asylum applicant, an 662-63). (Dissent However, at authority. judicial changes in Haiti we took notice law. supported by case is well our decision hearing applicant’s that occurred after the noted, “American previously we have As v. immigration judge. an See Desir before judicial notice of will take generally courts (9th Cir.1988). Ilchert, 723, F.2d 730 840 Robinson, Quinn v. uprising.” a state of (9th Cir.1986). 776, authority In We do not exceed our 797 n. 18 783 addition, consistently taking judicial foreign notice of dramatic Circuit “[t]he Sixth not changed political developments because our action does judicial takes notice authority immigration usurp cases.” See the administrative circumstances (6th INS, 215, an agency. This is not a situation where Ivezaj v. 84 F.3d Cir. 1996) judicial persecution agency provided parties opportunity notice of (taking record, Serbs); Palushaj place see also their evidence of Albanians 93-3196, 198169, INS, agency’s control No. 1994 WL at we undermined (6th Cir.1994) judicial by allowing parties (taking *2 notice of over the case Here, supplement Albanians in Ko that record. we have of ethnic INS, 90-3980, sovo); Ivezaj simply No. introduced into the record facts (6th Cir.1991) (same); earlier, *2 step WL that were not available INS, 89-4076, way agency WL in control over Dalou v. No. no diminishes (6th Cir.1990) curiam) Indeed, (per at *5 the case. we return the matter to judicial agency impact of “recent it (taking notice events to determine the Iraq adjacent and the Arabian of these dramatic recent events. unfolding peninsula region”); Dawood-Haio v. Contrary Judge sugges O’Scannlain’s (6th Cir.1986) (taking judi 800 F.2d tion, “any perceived we do not hold war). Iran-Iraq cial notice of the justifies change country conditions” taking and Fifth The Seventh Circuits also court notice of current events. (Dissent 662-63). judicial simply have taken notice of devel- conclude We troubling, so opments subsequent to BIA’s decision. events are so cases, BIA, eligibility In recent we have made clear that on on the record made before the beyond eligibility proper remand the BIA look accorded its must be existing changed record to determine whether legal effect. presumption conditions rebut the of a However, purpose asylum the core of our persecution. well-founded fear of future law would be undermined were we to bar fact, we have refused to remand where the petitioners showing from that as a result of petitioner is entitled to a determination of changes while their cases that have occurred See, eligibility Chand, existing e.g., on the record. reviewed, being persecution or face 1077-78; 222 F.3d at Navas v. death. If an faces such a fate as a result alien Cir.2000). 662-63 country, in his we do of current conditions reason for rule is that a who simply not return him to that fate because asylum eligible when the BIA consid- might not conditions at some earlier time eligibility ered his case does not lose that as a requirements recognize have satisfied the for establish- agency's result of the failure to it. petitioner properly ing eligibility. Where established his Fiji, duty bring to the earli we have a it to the and so similar publicized,7 well BIA’s attention. abdicating our we would be coups er ignore we to the situa responsibility were PETITION GRANTED. REMANDED tion. WITH INSTRUCTIONS. us for also criticizes Judge O’Scannlain O’SCANNLAIN, Judge, Circuit opportunity “to give the INS an failing to dissenting: taking of propriety as to the be heard Immigration Nationality Under the and of the matter judicial notice and the tenor Act, family eligible Gafoor and his are for 662-63). (Dissent However, at noticed.” only if asylum he has at least a “well- support he cites for states very case returning Fiji founded fear” that would judicial of a “court take notice “persecution result his on account of par- prior facts without notification race, religion, nationality, membership in a ties, subsequently court long so as the particular group, political opin- social to rebut the no- provides opportunity 1101(a)(42)(A). ” § iоn.” 8 Because U.S.C. Gomez-Vigil v. 990 ticed facts.... potential the motive of Gafoor’s tormentors (9th Cir.1993) (Aldisert, J., 1111, 1115 Act, “critical” of is under terms “he ample will have concurring). INS it, provide must some evidence of direct or present evidence of the opportunity circumstantial,” asylum application. Fiji current conditions to dem- most and Elias-Zacarias, ‍‌​‌​​‌​​​​​​‌​​‌​‌​​​‌‌​​​​​​‌​‌​​​​​​‌​​​‌‌‌​‌​‍478, 112 INS U.S. onstrate, able, it is not if is Gafoor (1992). 812, 817, 117 In- S.Ct. L.Ed.2d eligible asylum. for deed, Supreme as the Court has taken us, pains to remind because Gafoor “seeks argues that make Finally, the dissent we judicial ... to obtain reversal of the deter- the relevance of these no effort to evaluate Board Immigration mination” (Dissent case. noticed facts Gafoor’s (“BIA”) that Appeals has failed to show 663). why But it should be obvious we that he would risk on account investigation. have not undertaken this grounds of one of the five enumerated in equipped BIA to conduct this is better Act, he now “must show that the evi- appellate than an court. inquiry factual so presented [to BIA] dence he And if the BIA determines that the trou- that no reasonable compelling Gafoor, factfinder Fiji pose no threat to and bles in (empha- could fail to find” otherwise. Id. by sub- supported that determination is added). sis evidence, it. we will not disturb stantial BIA in a simply But because the better hasty acknowledgment After a of the to evaluate the relevance of recent position re- granting formidable barriers to Gafoor case, lief, it does not follow events to Gafoor’s majority grants it nevertheless. entirely. so, eyes close our our doing majority we should In over-reads foreign erupts Borja crisis is as decision in 175 F.3d 732 When Cir.1999) (en banc), exactly to effect as the one in serious and well-documented III, Contrary suggestion ev- Fijian Reported to the dissent's President Is New erything Fiji Times, we know about was learned from The New York Delayed, Swearing-in Is Economist, Fiji events in have been wide- A5; Whitelaw, 19, 2000, July Kevin Trou- See, ly reported upon. An- e.g., covered Paradise, Sun, U.S. News in the bles in Guns West, Fijian Sup- drew Leader Enlists Ousted 19, 2000, Report, & World June available in 22, Monitor, August port, Christian Science 7718161; Verhovek, 2000 WL Sam Howe 4430421; 2000, in 2000 WL Pattrick available Fiji Threatens Burst Ethnic Tension Smellie, Deposed Prime Minister Mahendra Times, “Eden", June N.Y. South Seas Voice, Time Interna- Chaudry: Democracy’s 23201800; Murray 2000 WL Mot- available in 21, 2000, tional, August available in 2000 WL trom, Speight An Old Lesson Has Learned Wehrfritz, 25226847; George Takes a Herald, Well, Sydney Morning June International, Backwards, Newsweek Au- Step 9728384; 7, 2000, WL 21025630. gust WL available in availablе in Act, which judicial usurpation reprisal the Su- for under the for sort of among to forestall in Eli- preme cogni- intended intimidation are not the five Court grounds persecution. if this did not constitute zable as-Zacarias. As arrogation Attorney of the Gen- sufficient review, granting petition Gafoor’s majority also declares province, eral’s however, majority contends that these compel, sponte, can sua that this court events establish that Gafoor’s assailants asylee’s of an case whenever it reopening reprisal had motives other than and intimi in his concludes that conditions home coun- majority dation. In particular, the asserts try may changed subsequent vague that the “op- accusation Gafoor BIA’s adverse decision. This novel asser- posted] army” the and the slur to the plain holding with a tion conflicts of our In go effect Gafoor “should back to I sitting respectfully court en banc. dis- “compel[ dia” a ] conclusion that he was sent. persecuted solely because he arrested officer, a high-ranking army but also be I political opinion cause of his race and the police Gafoor is a officer who arrested a him imputed by Supra to the soldiers.” caught attempting man he in the act of to 651. Given that the evidence fails on the rape thirteen-year-old-girl. man whole anything suggest to do more than high-ranking turned out to be a officer in imputed political opinion that Gafoor’s and was, Fijian army the who apparently as a actually race animated his assailants’ at result, promptly released. The next night, tacks, I think preposterous the majority’s the same officer invaded Gafoor’s house implicit contention “a reasonable fact- eight with seven or uniformed men. The finder would have to conclude” that the men took him a mili- beat Gafoor and evidence established as much. Elias-Za tary compound they questioned where him carias, U.S. S.Ct. 812 ensuing over the week about the arrest of added). (emphasis army the him officer and warned not to testify against anyone the officer or tell A else about attempted rape. the At some majority argues that the off-the-cuff incarceration, point in army his the offi- by accusation and slur emitted Gafoor’s cer’s confederates also accused Gafoor of assailants amount proof of enumerated being “against army.” Some time af- by analogizing motives Gafoor’s case to ter Gafoor had recovered from beating those of the petitioners successful in Suri incarceration, army officer whom (9th Cir.1996), ta 95 F.3d 814 he had arrested led several men another (Gaya) Prasad 101 F.3d 614 assault on as he patrolled public Gafoor Cir.1996). are, supra at 651. There assault, During street. one of the men however, important distinctions between go told Gafoor that he “should back to those cases and Gafoor’s. India.” events, Surita, This represents course of which petitioner, Indo-Fijian an woman, the sum of testimony, Gafoor’s factual es- daily by was robbed twice ethnic fairly plainly tablishes Fijians offi- as she went to and from work. cer orchestrated the attacks on Gafoor Her house Fijian was also looted ethnic purely reprisals as for his arrest and vivid soldiers who looting “stated that warnings of what would befall Gafoor if family’s family home because the was ever disclosed the facts surrounding it. of Indian descent” and “told Surita that is, This appropriately enough, precisely family’s possessions belonged to ethnic (“U”) what the immigration judge Surita, Fijians.” and the 95 F.3d at 819. On BIA occasion, concluded. dispute There is no another petitioner’s Hindu this conclusion renders ineligible temple Gafoor was desecrated she and her personal attempting worship Taunting vendetta. mother were robbed de- grading opponent by referring these circum- to one or place. at another Under stances, hardly another of his traits makes we concluded that a reasonable “clear” any that the trait significance— have had to conclude that has causal factfinder would indeed, trait wholly be irrelevant past persecu- had “suffered any actual opinion.1 difference of account race.” Id. at 820. tion on majority cannot in holding be serious holding compel Our Surita cannot utterance of such a racial slur not conclusion that Gafoor was on suggests contemporaneous that a assault is petitioner’s of race. account Unlike racially compels motivated but that conclu- Surita, case Gafoor’s assailants never sion. being assaulted declared Gafoor Nor does our decision in Prasad estab- Indo-Fijian-they simply because he was lish that a reasonable factfinder would Indo-Fijian during him as an belittled persecut- have to conclude that Gafoor was majority holds that this their attack. ed on a political opinion imputed account of distinguish difference is “insufficient to to him. petitioner Prasad was a derision, cases,” because, with their two delegate local of the Hindu-dominated La- soldiers made clear to Gafoor that “[t]he Party dogged by Fijian bor who was native political opinion con- imputed his race military following officers the 1987 coup. provid- hatred of him and tributed to their at See id. 616. He was twice incarcerated them with additional motive for their ed and, detention!,] “during ques- his ... was According to Supra actions.” at 651. tioned about his involvement with the oust- majority, the fact that the soldiers “did not Party.” military ed Id. The Labour also specifically they him were moti- tell attempted prevent petitioner “from unimportant.” vated these factors is meeting groups” with other Hindus. Id. case, present from the Surita differs petitioner We concluded that the had “es- contends, majority merely pe- because the past persecution tablished on account of presented titioner Surita direct evi- political activity.” his Id. at 617. motivations, of her persecutors’ dence Prasad, Compared petitioner to the presented circumstantial whereas Gafoor presented has scant evidence that Gafoor supra evidence. See at 651-52. otherwise) political opinion (imputed his majority simply wrong. actually The two motivated his tormentors. The fundamentally respect majority implicitly cases differ with relies on the fact that at jailers the ultimate issue that the evidence least one of Gafoor’s accused him of Surita, question being army.” supra proves. “against the (“In IJ, testimony presented unrefuted evidence of an actual before the Gaf- up causal was locked connection between her race and oor stated when he race, Nambala, why him persecution. her But for her her the soldiers asked Here, army attackers would have left her alone. had arrested an officer and accused showing. opposing army.”). Gafoor has made no such He him of This fact is taken it merely presented certainly suggestive, has but alone—as be, fin it regard soldiers taunted him with a racial slur must is alone—it during prompted compel uninteresting an attack can at most the con- the course of principle infiltrating 1. This is so self-evident and intuitive Bond is arms bazaar. terrorist Hollywood routinely applies incapacitates cigarette-smoking it for mass He hench- muttering frequently superciliously the line: amusement: Sarcastic derision is man while (United deployed dialogue "Filthy Never Dies in the of action movies to habit." Tomorrow reference, 1997). Despite pointed insinuate comic relief into even the most vio- Artists hopelessly would lent of confrontations between mortal ene- obtuse maintain example, dispatched gun-toting opening mies. For in the scene of that Bond smoker Dies, super-agent Tomorrow Never James "on account of” his tobacco use. they thought that They thought, believed Gafoor to Gafoor: that the accuser elusion enemy I had sent some kind of array. particu- This is to the opposed be with unnamed them. the role of the larly so because un- on Gafoor is in the assaults accuser IJ: kind of Some what? entirely have been known and well Uh, Enemy. they said that Gafoor: peripheral. and, kill they going were to me my they going were to kill that Gafoor’s as- Simply put, the facts family. go him back to India and sailants told Why? IJ: jail him of an officer in the accused I Gafoor: Because arrested them. army compel the con- opposing the do assailants were moti- clusion that Gafoor’s political opinion. race or vated Gafoor’s Why you Why? Wait minute. did IJ: compelling even if we they Nor would be you military took think facts, major- interpret these as the

were to cаmp? Why you you do think insists, within the “context” ity arrested? from majority develops sources They said that we have some Gafoor: record, a wholly outside the administrative enmity kind of with each other that Fisher v. “context” They said that we police but I— (en (9th Cir.1996) banc), prohib- in fact officers, we don’t like the considering. its us from No decision they they but it said were was— major- otherwise. The suggests this court destroy kill going to me and us ity oversteps reversing thus its bounds and he beat me. the BIA’s decision. you why they thought Did he tell IJ:

you, enmity there was some kind of Army police? between the and the B Iwhy arresting Gafoor: He said was Reality Gafoor was policeman is Army I officer. didn’t know. persecuted caught a powerful because military figure flagrante delicto and know, you far as he was Hiester:2 As whom he wit- dared to arrest the officer with charged never attempting nessed the criminal act of crime? rape young girl. a No one thinks other- him they charged Gafoor: If would have wise, majority, which not even the con- crime, nothing with the then cedes that the soldiers were “activated” they would wouldn’t have—then problem, the arrest. The fundamental what, to me what have done therefore, majority’s with the conclusion they did to me. indubitably Gafoor was charged If he was not with the Hiester: imputed polit- “on account of’ his race and crime, why military was the so opinions really ical is not the facts you? interested pointing are less informative in thereto they They angry this case than were in Gafoor: were with me. Surita Indeed, hearing Prasad. at his Gafoor what? Hiester: About himself unfailingly persecu- attributed his Army Because I arrested an Gafoor: tion, calculus, in the final to his arrest of officer. the officer: majority implies undisput- you why they

IJ: Did tell ed fact that Gafoor’s arrest of the beating you up? persecution officer caused his is irrelevant attorney 2. Thomas L. Hiester of rec- ord for Gafoor. Borja purposes a “motive” for Act. “that is It is

because we held if ‘was that for the may granted persecution apparent majority, motivat- be motivated, part, by ing any an actual or signifi- at least factor need not causal ” ground.’ Supra implied protected majority cance at all. The claims that 736). Borja, 175 F.3d (quoting persecution may pro- be “on account of’ a The fact that an act majority is mistaken. ground protected ground tected even the by two or of abuse ‍‌​‌​​‌​​​​​​‌​​‌​‌​​​‌‌​​​​​​‌​‌​​​​​​‌​​​‌‌‌​‌​‍be “motivated” is neither a sufficient nor even a necessary does not dis- more distinct considerations persecution. supra cause of the at 653 logical requirement (“It pense with unreasonable, therefore, require any actually factor “motivated” the single asylum applicants protected to show that a conduct. alone, ground, standing would have led to persecution, require their or even to I would be the first to requirement,

This showing would not easily acknowledge, is not satisfied. Con- protect- have occurred in the absence of a actually “motivat- cluding something ground.”). majority’s ed definition of being ed” a human to act is often not elusive, appar- “motive” remains but it is conceptually challenging. speculative but ent that it not comprehend does the con- per- Is a situational factor that makes a cept of causation. likely to occur than it son’s action more otherwise would be a “motive”? What if In dispensing with a causation require- likely? Is a fac- only infinitesimally more ment, majority wilfully disregards it is sufficient to incite tor “motive” when well-settled law of this court. We have an action but does not make that action regularly rejected proposition that pro- (because likely more to occur at all secutory conduct is “on account of’ a stat- anyway)? certainly action will occur utorily protected just characteristic be- presence cause the of that characteristic

Answering questions these marshal- probability that persecu- enhanced the ing categorize evidence to situational fac- See, e.g., Singh tor conduct would occur. precisely resulting as the answers tors as (9th Cir.1998) INS, v. 134 F.3d 970 may requires degree demand of inferen- (acknowledging Fijians that ethnic were hair-splitting majority that the in Bor- tial to, not, against known to commit crimes Indo- ja did indeed did not need Fijians rejecting because of their race but majority concluded that address. The petitioner’s allegation the that crimes com- peti- there could be little doubt that the against by persons may her who mitted opposition tioner’s announced to the New (“NPA”) Fijians were “on account have been ethnic People’s Army was the sufficient race); INS, Sangha of’ her 103 F.3d primary “triggered” cause the (9th Cir.1997) that, (noting even agents’ ensuing NPA extortion and attack imputed opposing political if had guerrillas Borja, on her. See 175 F.3d at (“Had petitioner, to there was “no evi- interjected opinion willingness she not her guerrillas’ persecution dence” strоngly suggests the evidence pay, to political him was “‘on account of [his] NPA would taken her as a life views”). statement.”). response political to her majority seemingly feels that it Borja,

Unlike the facts of the facts of petition- require asylum appli- would be unfair to plainly this case indicate they persecuted actually cants to demonstrate er would not have been absent protect- in the “on account of’ a persecuted motive that is enumerated Causation, all, is, tricky after is a ground. Act—that would never have ed Gafoor evidentiary had not arrested business and can raise difficult been Congress lowered the bur- requires officer. This case thus us obstacles. has just causally plaintiffs; why shouldn’t significant to determine how den for Title VII toe, asks, for majority be us to conclude that it lower burden factor must by the Board” and “are In the face of the facts considered asylum applicants? judicial statutorily prevented taking ar- from impertinence of this extravagance and explain that from outside the ad- to notice” of evidence gument, pedestrian is it too reviewing asylum in weighed the relevant ministrative record already has Congress asy- Fisher v. require decided to claims. рolicy choices and Cir.1996) (en banc) added). per- (emphasis suffered lees to demonstrate a protected of’ secution “on account plain- majority attempts to skirt our course, Congress it is ground? Of ly controlling by relying decision Fisher bur- whether to lower the alone to decide Lising broad dictum from particularly on a plaintiffs, it for Title VII den as has done (9th Cir.1997). 124 F.3d 996 asylum applicants. in contrast to (“In particular, relat- supra at 655 Fisher history and the in this case The evidence evidentiary ed to material that could have do Fiji developed outside record BIA.”) been, not, presented but conclusively nothing suggest less to —much 998). Lising, Lising, (citing anything race had establish —that Gafoor’s reading, only for the given a fair stands he suffered. The to do with the violence may judicial that we take no- proposition not, cannot, and indeed con- majority does tice of extra-record INS forms rest any have been treated tend that he would 124 F.3d at 998 official INS files. See Fijian. he an ethnic He differently were (“Fisher does not treat of a issue persecu- to show that his plainly has failed judicial agen- of the taking court’s notice imput- of’ his race or tion was “on account cy’s particularly own records —and opinion, as thаt term has been ed very form that as the official INS serves interpreted again time-and this court. decision.”); basis of the BIA’s id. at 999 cf. (“While (Boochever, J., concurring) agree I II subject that almost all rules be reversing the BIA’s deter- addition I exceptions contingencies, for unforeseen mination that Gafoor has not demonstrated necessary that it do not believe past persecution statutorily on account of a exception case to carve even the narrow majority ground, proceeds enumerated proposed by majority.” Fisher v. INS reject BIA’s determination that a (citation omitted) added)). (emphasis change country any conditions refutes Lising,3 hardly it Whatever merit of supposition that has a Gafoor well-founded majority’s any per- claim that supports fear of the future. The change ceived conditions nulli- majority country observes that conditions the BIA’s otherwise fies valid determina- changed yet again since the BIA tion. determination, made see supra its

(“Since time, progress Fiji taking judicial all made in notice of recent devel- eliminating Fiji racial in opments reported toward conflict has been as several undone.”), articles, magazine entirely and remands for the BIA to matters outside record, changes majority plainly consider conditions as the has ex- of, imagine, right authority one is left to now. The ceeded the bounds of this court’s majority disregard for reviewing bases its the BIA’s as a court under the law of this Fisher, 963; anything determination not on the rec- circuit. See 79 F.3d at see (because there) support Gomez-Vigil ord there is no but also “ (9th Cir.1993) (because post-hearing magazine on articles. The ‘this court acknowledges majority essentially agency but dis- does not sit as an administrative regards fact that we have explicit- purpose fact-finding held for the of the first instance’,” ly reject limited to it im- reviewing petitioners’ “we are “must slight, given analysis precedent applicable 3. This is of this court is as rested hoary jurisprudential proposition panel on the as a later cares to allow. invites, decision, precisely news arti and it that we consider the sort of plied request to the appended misapplication majority and other materials has en- cles the administra part gaged that were not of in here. The net effect will briefs inevita- record.”) Tejeda-Mata v. (quoting bly tive be to frustrate and to obstruct Cir.1980)). 721, 726 immigration enforcement of our as laws majority stоp does not there. The But the judges persist of this court in attempting upon appeared articles that majority relies to grant Congress delegated relief that has argued after this case was six months exclusively Attorney to the General to submitted, years two after let alone almost grant.

the BIA’s decision was filed. Federal 201(e), governs which

Rule of Evidence Ill notice, judicial provides party must appeal The BIA’s dismissal of Gafoor’s heard opportunity be afforded “an to be as was supported by substantial judicial taking notice propriety to justified. perfectly Gafoor has endured and the tenor of the matter noticed.” See misfortune, dreadful but he has not been (Aldi Gomez-Vigil, also 990 F.2d at 1115 any statutorily on account of (“A sert, J., concurring) court take been, ground. enumerated Even if he had judicial prior notice of facts without notifi nothing the record undermines parties, long cation to the so as the court BIA’s conclusion that conditions in are subsequently provides opportunity longer now such that ‍‌​‌​​‌​​​​​​‌​​‌​‌​​​‌‌​​​​​​‌​‌​​​​​​‌​​​‌‌‌​‌​‍Gafoor need no fear facts....”) majori rebut the noticed persecution at the untrammeled hands of a any ty deprives opportunity the INS vengeful army any'of officer or his soul- court, respond, before this to its unwel mates. developments come excursus on recent I respectfully dissent. Fijian politics. acknowledge were to

Even one majority’s proposed

lawfulness of the “re- rule in exception

cent events” new majority’s

Fisher and the lawfulness of the notice, judicial taking manner of one would America, UNITED STATES of expect nevertheless such “recent events” Plaintiff-Appellee, facially to be at least relevant to the issue deciding otherwise, the BIA was there —

would be a new reason to remand with HAYES, Defendant-Appellant. Darnell (or every day every new at least with new No. 98-50609. Economist). yet, issue of The And we are Here, disappointed. majority left Appeals, Court of United States no makes almost effort evaluate Ninth Circuit. relevance the “recent events” July Argued and Submitted likely than issue of whether Gafoor is more Sept. Filed 1999. Opinion 1992 to face renewed at the hands of the officer and his Granting En Rehearing Order Banc and Fijians personal posse, who were the Opinion Vacated Feb. 2000. Gafoor, who ever molested even at the Argued and Submitted En height coup. of the 1987 The “recent Banc June 2000. events,” out, terribly as it turns are not Filed Nov. germane. I I ma- regret cannot endorse the

jority’s proposed exception “recent events” plainly contrary It is to that Fisher.

Case Details

Case Name: Abdul Gafoor Bibi Nurun Nisha Faymeeza Nisha Farzana Nisha v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 3, 2000

Citation: 231 F.3d 645

Docket Number: 98-71201

Court Abbreviation: 9th Cir.