Jose Donald Sarria-Sibaja v. Immigration and Naturalizations Service
| Publisher | United States Court of Appeals for the Ninth Circuit |
| Publication Date | 17 March 1993 |
| Citation / Document Symbol | 990 F.2d 442 |
| Type of Decision | 90-70640 |
| Cite as | Jose Donald Sarria-Sibaja v. Immigration and Naturalizations Service, 990 F.2d 442, United States Court of Appeals for the Ninth Circuit, 17 March 1993, available at: https://www.refworld.org/cases,USA_CA_9,3ae6b6b48.html [accessed 3 June 2023] |
| Comments | Argued and submitted: 14 January, 1993; Filed: 17 March, 1993 |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
JOSE DONALD SARRIA-SIBAJA, Petitioner, v. IMMIGRATION AND
NATURALIZATION SERVICE, Respondent.
No. 90-70640 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
990 F.2d 442;
January 14, 1993, Argued, Submitted, San Francisco,
California
March 17, 1993, Filed
Subsequent History: As Amended March 26, 1993.
Redesignated as a Per Curiam Opinion April 5, 1993.Prior History:
Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A27-156-417Disposition:
The petition for review is therefore GRANTED.Judges:
Before: ALDISERT, ** GOODWIN, and FLETCHER, Circuit Judges. ** Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for the Third Circuit, sitting by designation.Opinion:
MEMORANDUM Donald Jose Sarria-Sibaja ("Sarria-Sibaja") applied for asylum in the United States or, alternatively, for withholding of deportation, contending that he would be persecuted if returned to Nicaragua. See 8 U.S.C. §§ 1158(a) & 1253(h). The immigration judge denied Sarria-Sibaja's request. On appeal, the Board of Immigration Appeals ("BIA") took administrative notice of the fact that the Sandinistas had been voted out of power, reasoning that Sarria-Sibaja no longer had a well-founded fear of persecution in Nicaragua. The BIA denied his application based, in part, on the notice taken, and it ordered him deported. We have jurisdiction to hear this matter under 8 U.S.C. § 1105a (a)(1). Because the BIA improperly took administrative notice of the change in government in Nicaragua without providing Sarria-Sibaja an opportunity to show cause why notice should not be taken or to supplement the record by further evidence, we grant the petition for review. In Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir. 1992), we held that the BIA "erred in taking notice of the change of government without providing the petitioners an opportunity to rebut the noticed facts." Id. at 1029. We explicitly rejected the argument that due process requirements are satisfied by the petitioner's right, under 8 C.F.R. §§ 3.2 & 3.8, to move the BIA to reopen the proceedings and to present evidence to rebut the noticed facts. Id. Here, as in Castillo-Villagra, Sarria-Sibaja did not receive warning that administrative notice would be taken, nor was he provided with an opportunity to contest or rebut by further evidence the facts of which administrative notice was taken. Id. at 1021. The government seeks to distinguish this case from Castillo-Villagra, stressing that, in addition to taking administrative notice of the change in Nicaraguan government, the BIA also discussed specific reasons for its dismissal of Sarria-Sibaja's appeal. Cf. id. at 1023 ("The Board gave no reasons for its decision except for the facts of which it took administrative notice."). The government argues that, because the BIA decision was not solely based on administrative notice grounds, this case is governed by Castillo v. INS, 951 F.2d 1117 (9th Cir. 1991). In Castillo, the court denied the petitioner's request for review based on its finding that the BIA decision's discussion of administrative notice was merely an alternative ground for its rejection of the petitioner's request. Id. at 1118-19. However, in Castillo, the BIA "explicitly stated that this finding was based on 'two distinct grounds, each of which is an independent basis for denial.'" Id. at 1120 (emphasis in original). In the present case, the BIA did not explicitly state that the specifically enumerated reasons were an independent basis for its dismissal of Sarria-Sibaja's appeal. In fact, the BIA introduced its administrative notice discussion, which followed its discussion of specific reasons, with the word "Moreover." Consequently, we cannot find that the specific reasons cited by the BIA are an independent basis for its decision.[1] The petition for review is therefore GRANTED.[1]Sarria-Sibaja suggests the BIA must specifically note in its decision that it considered his documentary evidence. Although "there are no steadfast rules regarding what constitutes an adequate Board decision," a BIA decision must include "Statements that evidence an individualized review of the petitioner's contentions and circumstances." Castillo, 951 F.2d at 1121 (emphasis added). Because we reject the BIA's use of administrative notice, we need not decide whether the BIA decision in this case satisfies the Castillo standard.
