Chhetry v. U.S. Department of JusticeChhetry v. U.S. Department of Justice
- Reporters:
- ,
- Before:
- Walker, Straub, B.D. Parker (per curiam)
KHAGENDRA GHARTI-CHHETRY, Chhetry & Associates, P.C., New York, NY, for Petitioner.
GLADYS STEFFENS-GUZMAN, Office of Immigration Litigation (John A. Broadwell, Assistant United States Attorney, Donald W. Washington, United States Attorney, Western District of Louisiana, Shreveport, LA, on the brief), for Respondents.
This case requires us to determine whether the Board of Immigration Appeals (“BIA“) exceeds its allowable discretion when, in denying a motion to reopen based solely on facts of which it took administrative notice, it fails to give the petitioner an opportunity to rebut the inferences it drew from those noticed facts. Because we conclude that such a failure constitutes an excess of discretion, we grant the petition for review, vacate the BIA‘s denial, and remand the case to the BIA for further proceedings.
Krishna Bahadur Bhattarai Chhetry, a citizen of Nepal, filed his application for asylum, withholding of removal, and relief under the Convention Against Torture in September 2003, alleging persecution by the Maoist Party in Nepal. After a hearing, the Immigration Judge found Chhetry credible, but nevertheless denied his application on December 16, 2004 on the ground that he had failed to establish a threat of harm sufficient to constitute a well-founded fear of future persecution. The BIA summarily affirmed this decision in February 2006, and Chhetry did not petition this Court for review of that affirmance.
In March 2006, Chhetry filed with the BIA a “Motion to Reopen/Reconsider Based on Changed Country Condition[s].” In that motion, Chhetry presented many of the same arguments he made in his merits appeal, but also argued that the political situation in Nepal had deteriorated since February 1, 2005, after King Gyanendra seized power. Chhetry asserted that this development placed his life in “grave danger” due to his membership in and support for the Nepali Congress Party. Chhetry also submitted letters from his wife and a friend, both of which stated that Maoist rebels and unnamed “security personnel” were looking for him.
We review the denial of a motion to reopen for an excess of allowable discretion. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (per curiam); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam); see also Lopes v. Gonzales, 468 F.3d 81, 85-86 (2d Cir. 2006) (per curiam). An excess of discretion may be found where the BIA‘s decision “‘provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in
In reviewing the denial of a motion to reopen, we are constrained to review only the denial of that motion and are precluded from reviewing the merits of the petitioner‘s underlying claim for relief. See id. at 233; see also Stone v. INS, 514 U.S. 386, 405 (1995). Thus, the only argument properly before us in this case is Chhetry‘s assertion that the BIA erred in denying his motion to reopen based on inferences it drew from “a report on Yahoo.com” and by failing to consider whether he, specifically, would be persecuted by Maoists and the Royal Nepal Army if required to return to Nepal.
We construe this assertion as containing two arguments: (1) that the BIA exceeded its allowable discretion in taking administrative notice of changed country conditions based on information gleaned from website news articles; and (2) that the BIA exceeded its allowable discretion by not permitting Chhetry the opportunity to rebut the inferences the BIA drew from facts of which it took administrative notice.
As to the former, the BIA did not err in taking administrative notice of changed country conditions based on news articles found on yahoo.com, or the websites of CNN and BBC News. In Hoxhallari v. Gonzales, we noted that just as we may “exercise independent discretion to take judicial notice of any further changes in a country‘s politics that occurred between the time of the BIA‘s [] decision and our review; the same is true for the BIA.” 468 F.3d 179, 186 n.5 (2d Cir. 2006) (per curiam) (citations omitted). Thus, the BIA may take administrative notice of current events bearing on an applicant‘s well-founded fear of persecution. See Ajdin v. BCIS, 437 F.3d 261, 265 (2d Cir. 2006) (per curiam); Yang v. McElroy, 277 F.3d 158, 163 n. 4 (2d Cir. 2002) (per curiam); see also
However, the BIA did exceed its allowable discretion in denying Chhetry‘s motion to reopen based on inferences it drew from those noticed facts without giving him the opportunity to rebut the significance of the noticed facts as applied to his particular situation. The U.S. Courts of Appeals for the Fifth, Seventh, Ninth, Tenth, and D.C. Circuits have all concluded that petitioners must be given the opportunity to challenge, for both truth and significance, facts of which the BIA takes administrative notice when its reliance on those facts is dispositive, as was the case here. See Rivera-Cruz v. INS, 948 F.2d 962, 968 (5th Cir. 1991) (“It is a fundamental proposition of administrative law that interested parties must have an effective chance to respond to crucial facts.“) (internal quotation marks omitted); Kaczmarczyk v. INS, 933 F.2d 588, 596 (7th Cir. 1991) (“We believe the due process clause of the fifth amendment requires that petitioners be allowed an opportunity to rebut officially noticed facts, particularly when . . . those facts are crucial to – indeed dispositive of – the outcome of the administrative proceeding.“); Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992) (holding that the BIA violated the Fifth Amendment‘s due process clause “in taking notice of the change of government without providing the petitioners an opportunity to rebut the noticed facts“); de la Llana-Castellon, 16 F.3d at 1099 (holding, where the BIA made “disputable inferences” based on noticed facts, “due process require[d] the BIA to give Petitioners advance notice and an opportunity to be heard“); Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C. Cir. 1992) (“[D]ue process guarantees an asylum applicant the right to challenge an officially noticed fact – with respect both to its truth and its significance.“). No court of appeals has concluded otherwise. We agree with our sister circuits that a petitioner must be given notice of, and an effective chance to respond to, potentially dispositive, administratively noticed facts.
There is, however, a circuit split as to whether a petitioner‘s ability to file a subsequent motion to reopen cures a lack of notice. The Fifth, Seventh, and D.C. Circuits have held that, for a petitioner on direct appeal from a final order of removal, the availability of a motion to reopen serves as a sufficient “mechanism to rebut officially noticed facts” because petitioners can use such a motion to present the BIA with “evidence that the facts it officially noticed are incorrect or that they are true but irrelevant to their case,” and, if the BIA refuses the motion, petitioners can appeal. Kaczmarczyk, 933 F.2d at 597; see also Rivera-Cruz, 948 F.2d at 968-69; Gutierrez-Rogue, 954 F.2d at 773. The Ninth and Tenth Circuits, on the other hand, have held in similar cases that the availability of a motion to reopen is an inadequate substitute for a full opportunity
Like the Ninth and Tenth Circuits, we doubt whether the protection afforded by the availability of a motion to reopen is enough for petitioners on direct appeal from final orders of removal. However, we need not decide this broader question because Chhetry appeals from the denial of a motion to reopen; he does not appeal from the BIA‘s final order of removal. Thus, not only would Chhetry have to surmount the usual hurdles attendant upon the filing of motions to reopen, but any subsequent motion to reopen might also be number-barred. See
Thus, while the BIA did not exceed its allowable discretion in taking administrative notice of potentially dispositive facts, it did exceed its discretion in failing to provide Chhetry with an opportunity to rebut the significance of those facts before issuing its decision on Chhetry‘s motion.
Accordingly, the petition for review is GRANTED, the BIA‘s order denying Chhetry‘s