de la Llana-Castellon v. Immigration & Naturalization Service

16 F.3d 1093
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 16, 1994
DocketNo. 92-9534
StatusPublished
Cited by32 cases

This text of 16 F.3d 1093 (de la Llana-Castellon v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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de la Llana-Castellon v. Immigration & Naturalization Service, 16 F.3d 1093 (10th Cir. 1994).

Opinions

KANE, Senior District Judge.

This is a petition for review of a decision of the Board of Immigration Appeals (BIA) denying asylum. We have jurisdiction to consider the petition under 8 U.S.C. § 1105a. Petitioners, a family of Nicaraguan citizens, contend that the BIA denied them due process when it reversed the immigration judge’s finding that they had a well-founded fear of persecution in Nicaragua by taking administrative notice of the fact that elections in that country had brought about a change in government. Alternatively, Petitioners argue that the BIA erred in failing to overturn the immigration judge’s finding that they had firmly resettled in Honduras based on new evidence that their visas would not be renewed. We reverse.

I. Facts.

Petitioners entered the United States illegally on or about September 18,1987. They did not present themselves to immigration authorities and were charged with deporta-bility under 8 U.S.C. § 1251(a)(1)(B) for entry without inspection. At their initial de-portability hearing, Petitioners, represented by lay counsel, admitted deportability but asked permission to file a request for asylum under 8 U.S.C. § 1158(a), withholding of deportation under 8 U.S.C. § 1253(h), or alternatively, for voluntary departure under 8 U.S.C. § 1254(e). Permission was granted and the hearing was continued to April 6, 1988.

At the April 6 hearing, the immigration judge first heard evidence on the request for asylum. Petitioners’ request centered on the situation of Orlando de la Llana Castellón, the father of the family (“the father”). The father testified that he had been jailed twice in 1979 for his resistance to join Sandinista efforts to sabotage his employer and for his refusal to become a member of several Sandinista organizations. He learned shortly after being released that his brother had been killed by the Sandinistas. After these events, he fled to Venezuela, leaving his family behind.

The father then testified that he returned to Managua, Nicaragua in 1982 and began a cooperative that made fabric blankets. He was elected head of the cooperative. In 1984, when the Sandinista government reduced the amount of fabric it was willing to supply to the cooperative, diverting the supply to makers of military clothing, the father led several organized protests against the government. The Sandinistas then issued orders to arrest him and several others who had participated in the demonstration. In July 1984, the father fled alone to Honduras.

In September 1984, officers of the Sandinista army came to the family’s house in Managua. They questioned the wife, who was then eight months pregnant. When she denied any knowledge of his whereabouts, the officers attempted to arrest her but were dissuaded by a local priest who was visiting the family at the time. Because of the stress of her near arrest, the wife gave birth prematurely the next day.

In December 1984, the father returned to Managua to retrieve his family. Conditions there were still dangerous, and he left quickly without them. He learned that because of his travel to Honduras the Sandinista government had branded him a “Contra” and accused him of other espionage-related [1095]*1095crimes carrying penalties ranging from twenty years in prison to death. He secretly returned to Nicaragua in 1985 and this time succeeded in extricating his family to Honduras. The family lived in Honduras until their 1987 entry into the United States.

In his April 7, 1988 oral decision on the application for asylum, the immigration judge found that the father’s early confrontations with the Sandinistas, up until 1984, did not show that he was in danger of being persecuted because “he was able to achieve employment, secure admittance to the National University, work as a[n] organizer and director of a cooperative and receive passports and travel documents from the government of Nicaragua between 1981 and 1984.” R. at 104. The immigration judge did conclude, however, that the father had a well-founded fear of persecution based on events since that date. He held that the Sandinista government’s issuance of arrest warrants after the father’s protest over fabric supplies and its continued interest in his whereabouts established a well-founded fear of persecution. Id. at 108-09.

Nevertheless, the immigration judge denied the request for asylum, finding that it was precluded by Petitioners having firmly resettled in Honduras before coming to the United States. The immigration judge based this finding primarily on the father’s passport and other immigration papers indicating that the father was granted permanent residence status in Honduras. Id. at 110-11. Finally, the immigration judge denied the request for withholding of deportation and granted Petitioners a three-month voluntary departure.

Petitioners appealed the immigration judge’s decision to the BIA. They argued that the immigration judge erred in concluding that they had firmly resettled in Honduras. Petitioners offered new evidence in the form of a statement from a Honduran official that the father’s residence in Honduras was temporary and conditional and that his legal residence in Honduras had been canceled.

On June 4, 1992, the BIA dismissed the Petitioners’ appeal. Rather than considering their argument that the immigration judge had erred in finding they had firmly resettled in Honduras and -without notice, the BIA dismissed the appeal based on its conclusion that Petitioners had no basis to support their contention they had a well-founded fear of persecution to merit a grant of asylum. In so doing, the BIA sua sponte took administrative notice of the fact that there had been a change in government in Nicaragua since Petitioners had entered this country. The BIA stated:

In this regard, we take administrative notice that the Sandinista party no longer controls the Nicaragua government. On April 25,1990, a new coalition government, formed by parties in opposition to the San-dinistas (“UNO”), succeeded the former government of the Sandinista party following national elections and the inauguration of Violeta Chamorro as the new president. Further, the new president of Nicaragua announced a general amnesty covering the hostilities between the former Contra resistance and the Nicaraguan government and an end to military conscription. Given that the Sandinista party no longer governs Nicaragua, under the present circumstances we do not find that the respondents have demonstrated a well-founded fear of persécution by the Sandinista government were they to return to Nicaragua.

R. at 3 (footnotes omitted). The BIA did not give the Petitioners notice of its intent to make these findings, nor were they given an opportunity to present rebuttal evidence before the appeal was dismissed.

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