Herbert Edmundo Gomez-Vigil and Silvia Auxiladora Hernandez De Gomez v. Immigration and Naturalization Service , 990 F.2d 1111 ( 1993 )

PER CURIAM:

In Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.1992), a Nicaraguan national and her two daughters appealed to the Board of Immigration Appeals an adverse decision of an immigration judge who had denied the aliens’ request for asylum or withholding of deportation. The aliens contended that they would be persecuted because of their stated anti-Sandinista sentiments were they to return to their homeland. In denying their appeal, the Board took administrative notice “that the Sandinista Party no longer governs Nicaragua.” The Board did not give prior notification of its taking notice of the Nicaragua government change. We granted the petition for review and held that the failure to give such notification constituted a denial of due process. Castillo-Villagra controls the outcome of the present petition for review by Herbert Edmundo Gomez-Vigil and his wife, Silvia Auxiladora Hernandez de Gomez.

Petitioners, also citizens of Nicaragua, entered the United States illegally on April 14, 1985. Upon being apprehended by officials of the Immigration and Naturalization Service, they applied for asylum or, alternatively, for withholding of deportation, contending that they would be persecuted if returned to Nicaragua. The Board of Immigration Appeals denied their applications and ordered them deported, reasoning that their fear of persecution was not well-founded in light of the fall of the Sandinista government of Nicaragua. As in Castillo-Villagra, the Board applied the doctrine of administrative notice and found as a fact that the Sandinista Party no longer governs Nicaragua. The husband and wife now petition this court for review of that decision. Under Castillo-Villagra, we are required to grant the petition for review.

I.

At the hearing before the immigration judge, petitioners presented the following evidence: Gomez-Vigil was born in 1925, and beginning in 1977 he participated in political activities against the administration of the former dictator, Anastasio Somoza. While a student in Managua, he became an active member of the “Revolutionary Student Force,” which became the FSLN (Frente Sandinista de Liberación Na-cional). When the Sandinistas took control in July 1979, Gomez was one of the founders of the Sandinista Defense Committee (CDS) in the Rio San Juan Department and was subsequently elected to public office, becoming a full member of the Sandinista Council for his region. He earned a degree in veterinary and zoo technology and went to work for MIDRINA (Ministry for Agricultural and Live Stock Development), teaching animal husbandry and political ideology to peasants and forming land cooperatives.

By 1983, he became disillusioned with the regime, resigned his position, refused to have further associations with the Sandinis-tas and opened a private import business. After his resignation, petitioner was hampered by government officials who accused him of becoming a “capitalist exploiter.” His wife was intimidated by an official who threatened to confiscate their home and business. She testified that persons in a neighboring town had been murdered for not complying with similar demands. Both petitioners fear that if returned to Nicaragua, they would be persecuted by the San-dinistas as traitors.

II.

The immigration judge denied petitioners’ request for asylum and for withholding of deportation, and they appealed to the Board. While the appeal was still pending, Violeta Chamorro, leader of the anti-Sandinista coalition, was elected president and inaugurated on April 25, 1990. Subsequently, the Board dismissed the appeal.

The Board’s decision was based upon the change in the government of Nicaragua, of which it took official notice:

[W]e take administrative notice that the Sandinista Party no longer controls the Nicaraguan government. Effective April 25, 1990, a new coalition government, formed by parties in opposition to the Sandinistas (“UNO”), has 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 has 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 record now before us supports a finding that the respondents have a well-founded fear of persecution by the Sandinista government were they to return to Nicaragua.

BIA Op. at 2, reprinted in A.R. at 11 (footnotes omitted). Cf. Castillo-Villagra, 972 F.2d at 1021 (“[t]he BIA issued its decision ... based entirely on the election results”).

In petitioning for review, the husband and wife contend that, notwithstanding the change of government, they still have a well-founded fear of persecution by Sandi-nistas who remain active in the country. They argue that the Board improperly took administrative notice of the change of government and that the Board issued a form-letter denial of their petition without any review of the merits of their cases. On the merits, they contend that they are entitled to asylum or withholding of deportation based on past persecution and on fear of future persecution. Pet. Br. at 1-2.

The Board’s order was dated September 28, 1990. On January 4, 1991, a timely petition for review was filed. 8 U.S.C. § 1105a(a)(l) (Prior to January 1, 1991 the limitation period for filing petitions for review was six months; for petitions filed thereafter, the limitations period is 90 days). Accordingly, we have jurisdiction.

III.

Before addressing the specific questions raised by petitioners, we note that as a court reviewing a final order of an administrative agency we are not permitted to consider evidence that was not before the immigration judge or the Board. We are not permitted to consider evidence that is not part of the administrative record. See 8 U.S.C. § 1105a(a)(4) (With a stated exception not applicable here, “the petition shall be determined solely on the administrative record upon which the deportation order is based”); see also Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir.1980) (“[I]t is an established principle that this court does not sit as an administrative agency for the purpose of fact-finding in the first instance ... ”), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982).

Accordingly, we must reject petitioners’ implied request that we consider-news articles and other materials appended to the briefs that were not part of the administrative record. Accord Rhoa-Zamora v. INS, 971 F.2d 26, 34 (7th Cir.1992); Rivera Cruz v. INS, 948 F.2d 962, 967 (5th Cir.1992).¹

IV.

A.

Petitioners argue that the Board’s “form-letter denial” failed to review the merits of their case and thus denied them due process. They state, “[i]n the instant case the BIA’s decision does not make any review of the facts underlying petitioners’ applications for asylum.” Pet. Br. at 8. We note that the Board must conduct “an individualized review of the petitioner’s contentions and circumstances.” Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir.1991). However, we need not decide whether. or not the Board adequately considered the facts presented, because we base our decision on petitioner’s alternative due process argument, which concerns the Board’s taking administrative notice.

B.

Petitioners claim that they were denied due process because the Board took official notice of the change of government in Nicaragua without giving them an opportunity to contest the significance of the fact.

Our review of the Board’s decision is governed by Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir.1992), which held that the BIA “erred in taking notice of the change of government without providing the petitioners an opportunity to rebut the noticed facts.” We explicitly rejected the position that due process requirements are satisfied by the petitioner’s right, under 8 C.F.R. §§ 3.2 & 3.8,² to move the BIA to reopen the proceedings and present evidence to rebut the noticed facts. Id. Here, as in Castillo-Villagra, petitioners 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. .

Because the BIA improperly took administrative notice in this case, we must vacate its decision and remand. Castillo-Villagra, 972 F.2d at 1029. For the purposes of this appeal, we do not pass on the sufficiency of the evidence adduced by petitioners in support of their requests for asylum and withholding of deportation. We reserve judgment on these issues until the Board affords petitioners an opportunity to show cause why administrative notice should not be taken or to supplement the record in order to rebut noticed facts, in full compliance with rights assured by the due process clause of the Fifth Amendment.

The petition for review is GRANTED.

1 . Subsequent to the BIA’s review of this case, Silvia Auxiladora Hernandez de Gomez’ parents were granted asylum. Petitioners contend that this action is relevant to their own claims to asylum. Since it is not in the current record, we do not consider the claim at this time.

2 . 8 C.F.R. § 3.2 provides in part that—

Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing....

8 C.F.R. § 3.8(a) provides in part that—

Motions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentia-ry material. Motions to reconsider shall state the reasons upon which the motion is based and shall be supported by such precedent decisions as are pertinent.