Gonzalo Rivera-Cruz v. Immigration and Naturalization Service

Citation: 948 F.2d 962Docket: 91-4007

Court: Court of Appeals for the Fifth Circuit; February 3, 1992; Federal Appellate Court

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Gonzalo Rivera-Cruz appealed a denial of his asylum and deportation withholding requests by the Board of Immigration Appeals. The Fifth Circuit Court affirmed the Board's decision, ruling that there was no abuse of discretion in denying Rivera's claims. Rivera recounted that in August 1979, after the Sandinistas took power in Nicaragua, soldiers beat him during their search for his brothers, leading to serious injuries. Following this incident, he learned he was being sought by the Sandinistas as a perceived supporter of the ousted Somoza regime. After a period of hiding and moving between towns, Rivera entered the U.S. illegally in 1985 and subsequently filed for asylum in May 1986. An immigration judge initially granted his asylum request, citing a well-founded fear of persecution due to his family's political affiliations. However, the Immigration and Naturalization Service (INS) contested this decision, arguing that Rivera's interactions with the Sandinistas were limited to his interference with his brothers' arrests and that he lacked a reasonable fear of future persecution, given the new government’s lack of interest in punishing him.

On December 6, 1990, the Board of Immigration Appeals reversed the immigration judge's decision in the case of Gonzalo Rivera-Cruz, concluding that Rivera could not demonstrate a well-founded fear of persecution upon returning to Nicaragua, following the election of Violeta Chamorro as President in April 1990, which ended the Sandinista regime. The Board acknowledged past experiences of persecution but determined that they did not justify a current grant of asylum, stating that even severe past persecution does not guarantee asylum without present humanitarian or compelling reasons. Additionally, since Rivera failed to establish eligibility for asylum, he could not meet the higher standard required for withholding of deportation. The Board granted Rivera a thirty-day period for voluntary departure, with deportation to Nicaragua as an alternative if he did not leave voluntarily. Rivera has petitioned for judicial review of this ruling, arguing that the Chamorro government is unstable and that the Sandinistas retain significant power, supporting his claims with newspaper articles and requesting the court to take judicial notice of the situation in Nicaragua. The court generally defers to the Board's interpretations of immigration law unless there is clear evidence of error.

Agencies have broad discretion in taking official notice of facts, and this discretion is reviewed under the abuse of discretion standard. The Board is permitted to take notice of significant changes, such as governmental shifts, and may recognize "commonly acknowledged facts" and technical or scientific information relevant to its expertise. Current events impacting an applicant's fear of persecution are included in this category. In a given case, the Board appropriately acknowledged that Chamorro is in power while the Sandinistas are not, as no contrary evidence was presented. Rivera's claims regarding the instability of Chamorro's regime were raised for the first time in court and not before the Board, which precludes consideration. Although the Immigration and Nationality Act (INA) does not explicitly provide a mechanism for applicants to contest noticed facts, it is essential in administrative law that interested parties be allowed to respond to critical facts. Asylum applicants can submit motions to reopen their cases to present new evidence that was not previously available, which allows them the opportunity to address facts officially recognized by the Board.

Rivera did not present the newspaper articles as evidence to the Board nor did he request the Board to reopen his case, rendering his claims regarding conditions in Nicaragua unreviewable by the court and insufficient for relief. He alternatively argued for a discretionary grant of asylum based on the precedent set in *Matter of Chen*, which allows for asylum under certain circumstances even without a reasonable likelihood of current persecution, particularly if past persecution was egregious enough to warrant humanitarian protection. However, even accepting Rivera's claims of past persecution, the circumstances did not rise to a level that would make repatriation inhumane. Comparisons were drawn to past cases, notably *Rojas v. INS*, where the court affirmed the denial of discretionary asylum despite evidence of severe persecution. Rivera's failure to establish a well-founded fear of persecution also precluded him from meeting the higher standard required for withholding of deportation. Consequently, the Board's decision was affirmed. Rivera, who was granted political asylum in 1987, had since integrated into life in the U.S. with his family, all of whom had received permanent residence as of January 1991. The court reviewed the Board's factual findings under a substantial evidence standard, but noted that the Board's findings were limited to officially noticed facts, which did not warrant further review or remand in this case.

Under the Administrative Procedure Act (APA), a party is entitled to contest an agency decision based on official notice if they request an opportunity to show contrary evidence. However, Supreme Court precedent, specifically in Marcello v. Bonds, establishes that the Immigration and Nationality Act (INA) provisions for deportation proceedings override APA hearing procedures, designating them as the exclusive methods for such proceedings. The Court emphasized that Congress intended to exclude APA applications in these contexts, asserting that the INA's procedures must be followed without exception.

The excerpt notes that the APA's hearing procedures are inapplicable to deportation cases. It references various cases affirming the Supreme Court's view that the APA does not govern deportation hearings, even if the processes may appear similar. Additionally, it highlights that parties should be informed of the facts the agency relies on to allow them to counter or provide additional context for those facts.

Regarding procedural rules, 8 C.F.R. § 3.2 outlines the requirements for reopening or reconsidering cases decided by the Board. A motion to reopen must be based on new, material evidence that was unavailable during the original hearing, and such motions cannot be made after an individual has departed the U.S. The burden of proof lies with the asylum applicant, as established by relevant regulations.

In the case of Rivera, who has not yet been ordered to leave the country, he retains the right to petition the Board to reopen his case to present new evidence related to changes in Nicaragua’s government. The affirmance of the decision does not preclude Rivera from filing a motion to reopen, and the Service has affirmed his ability to do so at any point during or after this appeal.