Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A28-534-051.
Before: Stephen Reinhardt, Melvin Brunetti, and Ferdinand F. Fernandez, Circuit Judges. Per Curiam; Concurrence by Judge Reinhardt
Petitioner Tsion Kahssai applied for asylum, 8 U.S.C. § 1158, and withholding of deportation, 8 U.S.C. § 1253(h). The immigration Judge (IJ) denied Kahssai's application, and the Board of Immigration Appeals (BIA) affirmed the denial. The BIA issued its ruling in a short opinion in which administrative notice was taken of political changes in Ethiopia that had occurred subsequent to Kahssai's deportation hearing. We have jurisdiction over Kahssai's appeal of the BIA ruling, 8 U.S.C. § 1105a(a)(1), and we grant her petition for review in accordance with Sarria-Sibaja v. INS, 990 F.2d 442 (9th Cir. 1993).
At a March 1990 deportation hearing before an immigration Judge, Tsion Kahssai, her sister Dell Kahssai, and her two brothers, Abraham and Atsbaha Kahssai, testified as follows:*fn1 Kahssai was born in Addis Ababa, Ethiopia in 1971 to a family of Ethiopian Jews. Her father, a merchant from Eritrea, was arrested, tortured, and killed in April 1974 during the Communist revolution. The new Communist government believed that he was an Eritrean rebel, and was suspicious of him because of his Jewish background. His family members were told that he had died of a heart attack. They believe that he was shot, however: even though they were not allowed to examine his body, which was returned to them in a closed coffin, others who saw the body told them that it was pierced with bullet holes.
Approximately one month after the father's killing, the government arrested and killed Kahssai's eldest brother, who was then somewhere between seven and ten years old. His killing was in further retaliation for the suspected rebel activity of Kahssai's father. In September 1974, Kahssai's mother was arrested; she was pregnant at the time. The government detained her for a few months, interrogating her about her husband and children, and releasing her shortly before she gave birth to another daughter. Soon after giving birth, she disappeared.*fn2
Left without parents, Kahssai and her two surviving brothers were taken in by her uncle, the husband of her mother's sister. The uncle converted to Christianity, which meant that Kahssai and her brothers became Christians as well, since their uncle was raising them as his children. The uncle's decision to leave the Jewish faith was motivated by discrimination. As Tsion Kahssai explained, "we had to change our religion in order to survive."
In February 1980, Kahssai's uncle brought the family to India, where he worked as an engineer for Ethiopian Airlines. Since then, Kahssai has never been back to Ethiopia. She came to the United States in August 1988 as a non-immigrant visitor to see members of her family. During her visit to the U.S., her uncle retired from his job and returned to Ethiopia. Kahssai then decided to apply for asylum because she feared that she would face persecution if she returned to Ethiopia.
Kahssai's siblings all emigrated to the U.S. before Kahssai, and all have been granted asylum here.
The BIA supported its denial of Kahssai's asylum application by taking administrative notice of recent political changes in Ethiopia. It noted that the former Ethiopian President fled the country in 1991, that a multiparty transitional government had been formed, and that the new regime had a substantially better human rights record than the past regime. The change in government occurred after Kahssai's deportation hearing, and thus she had no opportunity to show cause why notice should not be taken, or to rebut the noticed facts.*fn3
In Castillo-Villagra v. INS, 972 F.2d 1017, 1026 (9th Cir. 1992), we found that the BIA erred in taking administrative notice of a change in government in the alien's home country without warning the alien that notice would be taken. We emphasized that, as a corollary to the requirement of a full and fair hearing, "due process requires that the [asylum] applicant be allowed an opportunity to rebut" the noticed facts. Id. at 1029.
The INS asserts that Castillo-Villagra does not control our analysis here because the BIA "in no way relied 'entirely' on the regime change in Ethiopia" in denying Kahssai's claim. However, we already rejected this argument in Sarria-Sibaja, supra. Sarria-Sibaja held that remand is required when the BIA supports a ruling using grounds other than administrative notice, but does not explicitly state that the alternative grounds constitute an independent basis for dismissing the alien's claim. Sarria-Sibaja, 990 F.2d at 444. In Sarria-Sibaja, the BIA introduced its ...