Samson Eshete Getachew v. Immigration & Naturalization Service

Citations: 25 F.3d 841; 94 Cal. Daily Op. Serv. 3962; 94 Daily Journal DAR 7426; 1994 U.S. App. LEXIS 12769; 1994 WL 234557Docket: 92-70836

Court: Court of Appeals for the Ninth Circuit; June 2, 1994; Federal Appellate Court

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Samson Getachew, an Ethiopian native, petitioned for review of the Board of Immigration Appeals' denial of his asylum and withholding of deportation applications. Arriving in the U.S. in March 1985 on a tourist visa, he later obtained a student visa after enrolling in community college. In January 1989, he applied for asylum, which was denied, leading to a deportability charge due to overstaying his visa. At his March 1991 deportation hearing, Getachew renewed his asylum application, providing credible testimony about his mistreatment in Ethiopia. 

He recounted being jailed for 48 hours at age 15 for refusing to attend government-mandated communist meetings, enduring crowded and harsh conditions. After being warned against further absences, he was jailed again for 24 hours and sentenced to labor camp punishment for several months. These experiences compelled him to flee Ethiopia, fearing government retaliation, as officials sought his whereabouts. Despite crediting Getachew's testimony and recognizing the dire conditions in Ethiopia, the Immigration Judge denied his application, concluding he did not sufficiently demonstrate persecution or a well-founded fear of persecution. The Ninth Circuit granted the petition for review.

Getachew appealed to the Board of Immigration Appeals (BIA), arguing that the Immigration Judge's (IJ) decision lacked substantial evidence. The BIA established a briefing schedule allowing Getachew 25 days to file an appeal brief, followed by a 15-day response period for the Immigration and Naturalization Service (INS). Getachew submitted a timely 40-page appeal brief critiquing the IJ's decision. In contrast, the INS filed a nearly month-late reply that was only one paragraph long, adopting the IJ's reasoning and requesting the BIA to take administrative notice of the Marxist party's loss of power in Ethiopia.

Getachew countered with a one-page reply highlighting the INS's late submission and its unfounded assumptions about the safety in Ethiopia, arguing that the INS's brief lacked supporting evidence. The BIA did not address Getachew's objections regarding the procedural issues. Over a year later, the BIA affirmed the IJ's decision without directly adopting or criticizing the IJ's reasoning. Instead, it focused on changed conditions in Ethiopia following the overthrow of the Marxist regime, stating that the previous government had been dismantled and noting the establishment of a multi-party transitional government. The BIA concluded that Getachew had not demonstrated a well-founded fear of persecution based on his failure to attend Kebeles meetings and found him ineligible for asylum.

Getachew raised two claims of error: first, that the BIA improperly considered the late INS brief, and second, that it was an error for the BIA to take administrative notice of changed conditions without giving him prior notice and an opportunity to respond. The BIA rejected the first claim, stating it had discretion in such matters and that Getachew did not show prejudice from the delay. However, the BIA acknowledged merit in the second claim regarding the lack of notice about the changed circumstances.

The excerpt addresses the scope of administrative notice in deportation proceedings, specifically regarding due process rights. Getachew alleges a due process violation by the Board for taking administrative notice of changed conditions in Ethiopia without proper notice or opportunity to respond, leading to the inference that his fear of persecution was no longer justified. The standard of review for due process claims is de novo, while the Board's procedures for administrative notice are reviewed for abuse of discretion.

Due process protections for immigrants in deportation proceedings include the right to a fair hearing and a decision based on the record established during the hearing. The Board can consider extra-record facts, but must ensure fair procedures, including notifying the immigrant and allowing them to respond, especially for controversial or individualized facts. The Board is permitted to take notice of events occurring before the hearing without prior notification, but must warn applicants about significant post-hearing events. For indisputable facts, only a warning is necessary, whereas controversial facts require both notice and an opportunity for the applicant to rebut. Changes in government are categorized as controversial and thus demand both notice and a chance for the applicant to respond.

The Board acknowledged a change in the Ethiopian government post-Getachew's asylum hearing, necessitating notice to Getachew about considering these facts and an opportunity to respond, which did not occur. The INS contended that its request for the Board to acknowledge the new government sufficed as notice, but this was deemed inadequate for two reasons. First, only the Board can provide notice of its intentions, not the INS, which is a party in the case. Second, the INS brief did not specify the facts to be used against Getachew or their sources.

The Board's failure to respond to the INS's request left Getachew unsure if the request would be granted, failing to meet the notice and opportunity requirements. The INS's request merely indicated a possibility of the Board taking administrative notice, lacking the authority to inform Getachew about the Board's intentions. Additionally, procedural issues arose as the Board's briefing schedule did not permit Getachew to adequately rebut the new evidence introduced by the INS, which was presented after he had submitted a comprehensive response to the existing record. This situation was compounded by fairness considerations, as it was unreasonable to expect Getachew to respond to a single new request after he had already prepared an extensive brief addressing the prior evidence. The Board's discretion must align with fairness, and the circumstances did not allow for a fair opportunity for Getachew to respond to the new evidence.

The INS emphasized that its brief was submitted fourteen months before the Board's decision, suggesting that Getachew had ample time to respond. However, this lengthy delay contributed to Getachew's uncertainty regarding the INS's request and how to address it, which contradicts the purpose of the Castillo-Villagra notice requirement aimed at reducing such uncertainty. 

The notice provided by the INS was inadequate, as it did not sufficiently inform Getachew about the facts used against him or their sources, failing to meet the standard established in Banks v. Schweiker, which requires precise and specific indication of facts and their sources. The INS's request to the Board to recognize the fall of the Marxist government in Ethiopia lacked necessary details regarding its relevance to Getachew's case, and it failed to specify the source of its information.

Additionally, the Board referenced facts not included in the INS's brief, such as a favorable portrayal of the new Ethiopian government and the dismantling of the Kebele. Getachew was not made aware of these specific facts, hindering his ability to respond effectively. 

Recent country reports depict a troubling situation in Ethiopia, with political violence, flawed elections, and serious human rights abuses, suggesting that Getachew could still face danger from the new government. Although conditions have improved since the 1980s, this does not negate the potential for Getachew to have a well-founded fear of persecution based on ongoing human rights violations in Ethiopia. Given the opportunity, he may have been able to connect his individual circumstances to these broader issues.

When the Board improperly relies on extra-record facts in assessing an asylum applicant's well-founded fear of persecution, the applicant's petition for review must be granted. In this case, the Board's decision was based solely on administratively noticed facts without providing the applicant with proper notice or an opportunity to be heard, leading to the petition being granted. The panel unanimously decided this case was appropriate for determination without oral argument. Additionally, Getachew testified about the imprisonment of his older brothers due to their refusal to attend meetings and another brother's imprisonment related to alleged membership in an underground movement. The Immigration Judge (IJ) downplayed Getachew's experiences, suggesting that while detention conditions were primitive, he had some privileges, such as a mattress, and noted that the young age of 15 or 16 at detention was not uncommon globally. The IJ also pointed out that Getachew, while in a forced labor camp, was not physically abused and was expected to contribute to the nation, which ultimately helped him secure an exit visa.