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Fonseca-Mendoza v. Immigration and Naturalization Service

filed*fn*: February 3, 1993.

DAMARIS ESTHER FONSECA-MENDOZA; CHRISTIAN WILBER RAMIREZ-FONSECA, PETITIONERS,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A28-318-242

Before: Aldisert,**fn** Goodwin, and Fletcher, Circuit Judges.

MEMORANDUM

Damaris Esther Fonseca-Mendoza ("Fonseca-Mendoza") and her son, Christian Wilber Ramirez-Fonseca ("Ramirez-Fonseca"), (collectively "the petitioners") applied for asylum in the United States or, alternatively, for withholding of deportation, contending that they would be persecuted if returned to Nicaragua. See 8 U.S.C.§§ 1158(a) & 1253(h). The immigration Judge denied the petitioners' 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 the petitioners no longer had a well-founded fear of persecution in Nicaragua. The BIA denied their application based solely on the notice taken, and it ordered them deported.

We have jurisdiction to hear this matter under 8 U.S.C. § 1105a(a)(1). Because we find that the BIA improperly took administrative notice of the change in government in Nicaragua without providing the petitioners 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, 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, Fonseca-Mendoza and Ramirez-Fonseca did not receive warning that administrative notice would be taken, nor were they provided with an opportunity to contest or rebut by further evidence the facts of which administrative notice was taken. Id. at 1021.

The petition for review is therefore GRANTED.

Disposition

The petition for review is ...


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