Tsion M. Kahssai v. Immigration and Naturalization Service

16 F.3d 323, 94 Cal. Daily Op. Serv. 867, 94 Daily Journal DAR 1485, 1994 U.S. App. LEXIS 1674, 1994 WL 28697

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 4, 1994
• Docket: 92-70289
• Status: Published

Opinions

PER CURIAM:

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).

I.

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:¹ Kahssai was bom in Addis Aba-ba, 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 lulling, 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.²

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.

II.

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.³

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 doe| 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 administrative notice section with the word “Moreover,” indicating that its reasoning was cumulative. Id. Here, similarly, the BIA uses the words “In addition.”

The petition for review is therefore granted.⁴

1 .Not all of the Kahssais’ testimony was based on personal recollection. The events most significant for Tsion Kahssai’s asylum claim occurred in 1974, when Haile Selassie’s government in Ethiopia was overthrown by Communist forces. Tsion Kahssai was only three years old at the time, and her two brothers were approximately ages seven and eight, and thus their testimony regarding these events was partially based on what others later told them. Tsion Kahssai’s sister Dell was eighteen in 1974, but she could only testify personally to some of the relevant events, as she left Ethiopia in June 1974.

2 . The siblings have not seen their mother since 1974 and were not certain of her present address, but they have had news that she is in the Sudan.

3 . Acewicz v. INS, 984 F.2d 1056 (9th Cir.1993), is irrelevant to our analysis here, since our decision in that case was based on the fact that the change in government occurred prior to the deportation hearing, so that the Polish aliens had "ample opportunity” to discuss the impact of the change, and "did in fact introduce evidence before the immigration judge” regarding the change. Id. at 1061.

4 . Kahssai also asserts that she was denied due process because the BIA issued a “boilerplate” opinion. A boilerplate opinion “set[s] out general legal standards yet [is] devoid of statements that evidence an individualized review of the petitioner’s contentions and circumstances ..." Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir.1991). Boilerplate opinions are insufficient both because they show that the alien's claim did not receive fair review from the BIA, and because they do not provide an adequate basis for judicial review. Id.

The opinion issued in Kahssai’s proceeding is not boilerplate: it adequately describes the particulars of her claim, including the death of her father and brother, the detention of her mother, and her subsequent life with her uncle. Cf. Rhoa-Zamora v. INS, 971 F.2d 26, 36 (7th Cir.1992) (BIA opinion inadequate when "there is nothing in the opinion to suggest that the Board was even aware of the particular claims made by [the aliens].... There is nothing individualized about the Board's analysis ...”), cert. denied, — U.S. -, 113 S.Ct. 2331, 124 L.Ed.2d 243 (1993).