Ahmad v. Immigration & Naturalization Service

89 F. App'x 12

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2004
• Docket: No. 02-72637
• Status: Published

Opinions

MEMORANDUM

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The facts of this case are familiar to the parties and we recite them here only to the extent necessary. Petitioner Naeem Ahmad, a native and citizen of Pakistan of Indian descent, appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen for consideration of protection under the Convention Against Torture (“CAT”). In denying his motion, the BIA took administrative notice of the fact that there had been a change in regime in Pakistan during the pendency of Ahmad’s motion to reopen. The BIA concluded that because Ahmad had not shown that he faced torture under the current regime, he failed to show that he was likely to be tortured in the future and thus did not qualify for CAT protection.

Due process claims in deportation proceedings are reviewed de novo. Rodiguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002) (citing Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000)). Ahmad argued that he was denied due process because the BIA took notice of a regime change in Pakistan without giving him notice and an opportunity to respond.

The BIA may generally take administrative notice of legislative facts such as changed country conditions subject to an abuse of discretion standard. Castillo-Villagra v. INS, 972 F.2d 1017, 1028 (9th Cir.1992). In exercising this discretion, the Board must be “fair in the circumstances.” Id. Before taking notice that a change of government eliminated a danger to a petitioner, the BIA should give parties notice and opportunity to respond or to show cause why administrative notice should not be taken. Id. at 1028, 1029; Gonzalez v. INS, 82 F.3d 903, 911 (9th Cir.1996).

Here, the BIA improperly took administrative notice of the fact that the regime in Pakistan had changed. The regime change, Pervez Musharraf’s seizure of power in October, 1999, occurred several months after Ahmad submitted his April 12, 1999, motion to reopen. Taking notice of the regime change affected the BIA’s determination of the probability of future torture. Because Ahmad was not given notice prior to the BIA’s taking notice of the regime change, he was precluded from attempting to show that the regime change did not obviate the possibility of torture. This constitutes a violation of Ahmad’s Fifth Amendment due process rights. Gonzalez, 82 F.3d at 912 (“[I]f petitioner’s case makes it plausible that the threat of political persecution would remain despite that change, then petitioner is entitled to notice that the BIA proposes to treat the threat as dissipated, and an opportunity to be heard on whether that is so.”); Castillo-Villagra, 972 F.2d 1017, 1029 (9th Cir. 1992); see Acewicz v. U.S. INS, 984 F.2d 1056, 1060 (9th Cir.1993).

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.