USCA1 Opinion

United States Court of Appeals

For the First Circuit

____________________

No. 97-1836

LUCIENNE YVETTE CIVIL,

Petitioner,

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

____________________

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

____________________

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

____________________

Eleanor J. Newhoff with whom Harvard Immigration and Refugee

Clinic of Greater Boston Legal Services was on brief for appellant.

Terri J. Lavi, Attorney, with whom Frank W. Hunger, Assistant

Attorney General, and Karen Fletcher Torstenson, Assistant Director,

were on brief for appellee.

____________________

May 15, 1998

____________________ STAHL, Circuit Judge. Appellant Lucienne Yvette

Civil appeals a Board of Immigration Appeals ("Board" or "BIA")

decision affirming an Immigration Judge's denial of her

application for political asylum. Adopting the factual

findings of the Immigration Judge ("IJ"), the Board found that

petitioner did not have a well-founded fear of persecution.

Because we find that substantial evidence supports the Board's

conclusion, we affirm.

FACTS AND PRIOR PROCEEDINGS

Petitioner Lucienne Yvette Civil sought political

asylum under section 208(a) of the Immigration and Nationality

Act ("INA"), 8 U.S.C. 1158(a), on the basis that she had a

well-founded fear that she would be persecuted for her

political beliefs if she returned to Haiti.

Civil's asylum application, affidavit, and testimony

stated the following. Born on July 12, 1976, in Croix-des-

Missions, Haiti, Civil lived with her parents until the mid-

1980s, when they emigrated to the United States. After her

parents left Haiti, Civil lived with her grandmother, brother,

aunt, and three cousins. She was fourteen years old when Jean-

Bertrand Aristide was elected president of Haiti. Following

Aristide's inauguration, Civil and members of her family

celebrated with others in the streets, and her grandmother

displayed a quilt that had an emblem on it outside of their

house to show the family's support for Aristide. Subsequently,

Civil graduated from a private Catholic school in 1991, and

planned to attend Franco-Haitian University in Port-au-Prince.

Because of demonstrations following the coup d'etat that forced

Aristide from office in September 1991, the university's

opening was delayed. Throughout this period, Civil did not

participate in any political campaigns or marches in support of

Aristide. In January 1992, she began attending classes at the

university. She testified that she and other students were

fearful because violent crime was rampant and because they had

heard that the Ton Ton Macoutes, a paramilitary organization,

were entering schools and kidnapping students. Civil also

testified that a woman in her neighborhood and a fellow student

-- both Aristide supporters -- had been raped by members of the

Macoutes.

Petitioner's decision to flee Haiti was prompted by

an incident that led her to believe that she was being

persecuted because of her pro-Aristide views. In December

1992, as she and six friends were standing outside her home

discussing President Aristide and expressing their desire to

see him restored to power, a man who apparently had overheard

their conversation told them that "Children shouldn't be

talking about such things. There are a lot of people who don't

like Aristide and they can kill you. Aristide can't do

anything for you now." Civil recognized that the man, who

appeared to be in his twenties, was one of the regular

customers at her grandmother's bread and coffee store, which

was located in the front of their home. Civil and her friends

suspected that the man was a Macoute because he was wearing the

type of boots that Macoutes purportedly wore, and because he

warned them about expressing their views on Aristide. That

same night, petitioner and her family were awakened by persons

banging on the door and demanding entrance to the house.

Although the persons did not identify themselves or mention

Aristide, Civil and her family believed that they were

Macoutes, reasoning that thieves would not bother knocking.

The family remained flat on the floor for about two hours,

during which time their house was stoned. The next morning,

they discovered that the family's pet dog had been stoned to

death.

Fearing that the Macoutes would return, Civil and her

brother left their home to stay with a friend of their

grandmother in Carrefour Clercine. Civil remained afraid,

however, because the Macoutes were "making their way" to the

part of the village where she was staying, and she thought that

they might recognize her.

On January 17, 1993, fearing for her safety, Civil

left Haiti and came to the United States unlawfully. Although

democratic government was restored to Haiti in September 1994,

Civil continues to fear returning to Haiti because, she

asserts, Haiti remains unstable, and anti-Aristide factions

continue to persecute Aristide supporters.

After arriving in the United States, Civil was

detained and placed in exclusion proceedings. She requested

political asylum under section 208(a) of the INA, 8 U.S.C.

1158(a), and withholding of deportation under section 243(h) of

the INA, 8 U.S.C. 1253(h). On February 21, 1995, an

Immigration Judge ("IJ") found her excludable under section

212(a)(6)(C)(i) of the INA, 8 U.S.C. 1182(a)(6)(C)(i), for

attempting to procure entry into the United States by fraud or

willful misrepresentation, and rejected her requests for asylum

and withholding of deportation on the basis that petitioner had

failed to demonstrate that she has a well-founded fear of

persecution. On June 26, 1997, a three-member panel of the BIA

rejected Civil's appeal from the IJ's finding of excludability

and denial of asylum. Civil now appeals the Board's decision

on her asylum claim. II.

DISCUSSION

A. Standard of Review

"The Board's determination of statutory eligibility

for relief from deportation is conclusive if 'supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.'" Gebremichael v. INS, 10 F.3d 28, 34

(1st Cir. 1993) (quoting INS v. Elias-Zacarias, 502 U.S. 478,

482 (1992)); 8 U.S.C. 1105a(a)(4). Reversal of the Board's

determination thus depends on whether the petitioner has shown

"that the evidence he presented was so compelling that no

reasonable factfinder could fail to find [that he was

eligible]." Elias-Zacarias, 502 U.S. at 484. We review

questions of law de novo.

B. Analysis

Petitioner argues that she established eligibility

for political asylum by presenting to the IJ consistent,

detailed, and credible testimonial and documentary evidence

which confirmed that her fears of persecution are well-founded.

In addition, she argues that the BIA deprived her of due

process by taking administrative notice of changes in Haiti's

social and political conditions since she fled Haiti.

An applicant for political asylum bears the burden of

showing that he or she has been persecuted, or has a well-

founded fear of future persecution, on account of race,

religion, nationality, membership in a particular social group,

or political opinion. See 8 C.F.R. 208.13(b). In order to

establish a well-founded fear of future persecution, a

petitioner must have shown both a genuine subjective fear and

an objectively reasonable fear of persecution on a protected

ground. See, e.g., Ravindran v. INS, 976 F.2d 754, 758 (1st

Cir. 1992); Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir.

1990). The objective component requires a showing "by

credible, direct, and specific evidence . . . facts that would

support a reasonable fear that the petitioner faces

persecution." Ravindran, 976 F.2d at 758 (internal citations

omitted). An applicant need not establish that he or she would

be singled out individually for persecution if the applicant

establishes that "there is a pattern or practice in his or her

country of nationality . . . of persecution of persons

similarly situated to the applicant," and if the applicant

"establishes his or her own inclusion in and identification

with such group of persons such that his or her fear of

persecution upon return is reasonable." 8 C.F.R.

208.13(b)(2); see, e.g., Gebremichael, 10 F.3d at 35 (holding

that an applicant may establish asylum eligibility "if

membership in a social group is at the root of persecution,

such that membership itself generates a specific threat to the

applicant") (internal quotation omitted).

Although the Board devoted the bulk of its analysis

of Civil's asylum application to reciting virtually verbatim a

discussion of changed country conditions set forth in an

earlier opinion, In Re E-P-, No. 3311 (BIA, Mar. 14, 1997), it

also expressly adopted that part of the IJ's opinion that held

that Civil had failed to meet her burden of proving a well-

founded fear of persecution on account of her political

opinion. In his decision, the IJ placed weight on the fact

that Civil had participated in no demonstrations or any outward

manifestations of her support for Aristide. He also opined

that the fact that petitioner's house was stoned on the same

day that a man who was alleged to be a member of the Ton Ton

Macoutes overheard petitioner and her friends discussing their

support for Aristide did not constitute evidence that

petitioner had been targeted because of her political beliefs.

The IJ further observed that, according to the State

Department, although eavesdropping by the Ton Ton Macoutes,

uniformed military, or "plainclothes stool pigeons" could

happen, and is sometimes alleged by Haitian asylum applicants,

retribution on the basis of such incidents is "less certain."

He emphasized, in addition, that the State Department had

reported that, frequently, attacks attributed to the Macoutes

were more likely attributable to rampant crime activity in

Haiti. Concluding that "it is almost inconceivable to believe

that the Ton Ton Macoutes could be fearful of the conversations

of 15-year-old children," the IJ held that Civil had not

established a well-founded fear of persecution.

We find that the Board's determination that Civil was

not statutorily eligible for asylum was supported by

reasonable, substantial, and probative evidence. The Board,

via the IJ's opinion, reasonably found that petitioner's fears

of persecution on account of her pro-Aristide political views

were not well founded and that she had failed to establish that

she reasonably fears persecution on account of her membership

in a social group of Haitian youth who possess pro-Aristide

political views.

As the IJ noted, petitioner belonged to no political

organizations, and she never marched in pro-Aristide

demonstrations. In addition, she was never detained,

interrogated, threatened, or physically harmed by anyone in

Haiti because of her private wish to see Aristide restored to

power. The most that petitioner showed was that some

individuals threw rocks at her family's house late one evening,

after one of her grandmother's regular customers had overheard

petitioner and her friends talking about their hopes that

Aristide might soon return to Haiti. Although we are less

willing than the IJ to accept that the attack was as likely an

act of crime as an instance of political persecution, the fact

remains that petitioner admitted that the individuals who

stoned her house did not identify themselves or say anything

about Aristide. In light of the great deference we must accord

the determinations below, we will not disturb the IJ's and the

Board's finding that there was no connection between the attack

and petitioner's political views.

We find, in addition, that petitioner failed to

demonstrate that she reasonably fears persecution on account of

her membership in a social group of Haitian youth who possess

pro-Aristide political views. Although the evidence petitioner

presented casts serious doubt on the IJ's contention that "15-

year-old children" are unlikely targets of political violence

in Haiti, petitioner failed to show that young students who

hold pro-Aristide views constitute a cognizable "social group"

within the meaning of the INA, see 8 U.S.C. 1101(a)(42)(A).

The term "social group" does not encompass "every broadly

defined segment of a population." Sanchez-Trujillo v. INS, 801

F.2d 1571, 1576 (9th Cir. 1986). Petitioner presented ample

documentary evidence that young people in Haiti were not

exempted from the general violence and unrest that occurred in

the aftermath of Haiti's military coup, but she presented no

evidence that such persons constitute anything other than a

general demographic segment of the troubled Haitian population.

We thus reject petitioner's suggestion that the Board erred by

not finding her eligible for asylum based on her status as a

Haitian youth who supported Aristide.

Because the Board explicitly adopted the IJ's

analysis of petitioner's individual circumstances, we conclude

that the Board's decision -- like that of the IJ -- was

grounded in the failure of petitioner to present sufficient

evidence to establish a well-founded fear of persecution. We

therefore need not address whether the Board violated

petitioner's due process rights by taking administrative notice

of changes in Haiti without providing petitioner an opportunity

to respond.

We accordingly affirm the decision of the BIA to deny

petitioner's application for asylum.

- dissent follows - BOWNES, Senior Circuit Judge (dissenting). I

respectfully dissent. The majority affirms a decision by the

Board of Immigration Appeals (Board or BIA) concluding that

Lucienne Civil failed to establish her eligibility for asylum

because she had not shown a well-founded fear of persecution

based on her political views. At the tender age of fifteen,

this young woman got a first-hand taste of political realities

in Haiti. She was overheard on the street expressing her

support for the return to power of ousted president Jean-

Bertrand Aristide. For this, she was threatened with death in

a menacing tone by a man whom she recognized and who she could

reasonably believe knew who she was. That same night she was

terrorized when a group of men attacked her home, demanded

entry, and threw stones at the house for over an hour while

Civil and her family cowered on the floor in fear for their

lives. In the morning she found that her pet dog had been

stoned to death.

The Board, and the majority of this panel, believed

Civil's articulation of her subjective fear that she would be

persecuted for her political beliefs if she returned to Haiti,

but they concluded that these fears were nevertheless not

"well-founded."

The Board incorporated "the reasons set forth" in the

Immigration Judge's (IJ) decision to reach this conclusion, but

the IJ's reasons were all legally erroneous. The IJ did not

believe Civil's fears of persecution were well-founded in part

because Civil had not been involved in any overt political

activity, although the mob that attacked her home did not

appear to care whether her activities had been overt. The IJ

also relied on his own unsubstantiated speculation: despite a

wealth of evidence on the subject, he found it "almost

inconceivable" that the anti-Aristide forces could be concerned

enough with the "conversations of children" to make it worth

persecuting them. He also speculated, without any record

support, that the terrorist attack on Civil's house was "more

likely" the result of common criminals than of political

persecutors. The IJ also emphasized the fact that Aristide was

restored to power which, the IJ apparently felt (although he

failed actually to consider the particular facts of the

matter), meant that Civil no longer had a legitimate reason to

fear persecution from the government. As will be discussed

infra, all of these reasons are legally erroneous and

insufficient to support the IJ's conclusion, and any decision

based on such reasons should be reversed.

Further, the Board, on review of the IJ decision, took

official notice of changes in the government of Haiti after the

IJ decision, namely, the election of Ren� Pr�val to succeed

Aristide as president. The IJ had previously taken official

notice of changes that had taken place after the hearing but

before his decision. Neither the IJ nor the Board afforded

Civil an opportunity to rebut the officially noticed facts or

to show that any general changes in Haiti did not diminish her

own particular well-founded fear of persecution. The Board

specifically acknowledged that "[t]he political changes in

Haiti, which include the gain of power by those whom the

applicant supports, are a significant factor in our conclusion

that the applicant has not established a well-founded fear of

persecution." (Emphasis added.) A decision based in

significant part on a general country condition, without

addressing whether that general condition in fact affected the

particular individual seeking asylum, should not stand. SeePerez-Alvarez v. INS, 857 F.2d 23, 25 (1st Cir. 1988) (The

Board, in exercising its discretionary authority, "must

consider and evaluate all relevant factors.").

In my view, the IJ's analysis gave too much

consideration to unsupported speculation and legally irrelevant

factors, and failed to give enough thought, if any, to the

wealth of evidence (both particular to Civil and evidence of a

pattern of persecution) that was submitted by Civil. The BIA's

decision affirming the IJ consisting of boilerplate and

additional official notice of general material and again

ignoring the evidence tending to support Civil's well-founded

fear of persecution is likewise insufficient to do justice

to this case under the applicable law.

I am concerned that the majority's affirmance of the

BIA/IJ opinions in this case, and its deference to the agency's

application of legal principles to the facts of this case

(facts which are undisputed as to the incidents involving

Civil), will encourage more such slipshod decisions by the INS.

The dissenting BIA judge was the only INS judge to address the

real issues and the actual facts. I agree with her: "I find

the appellant's well-asserted and supported arguments on appeal

to be legally correct and persuasive, while I view the

speculation of the Immigration Judge and the majority to be

contrary to controlling law."

Standard of Review

The statute stipulates that the Board's "findings of

fact" are conclusive if "supported by reasonable, substantial,

and probative evidence on the record considered as a whole."

8 U.S.C. 1105a(a)(4)(1988). Legal issues are, of course,

reviewed de novo.

In reviewing Board determinations of eligibility for

asylum, we have applied "normal principles of administrative

law governing the role of courts of appeals when reviewing

agency decisions for substantial evidence." Cordero-Trejo v.

INS, 40 F.3d 482, 487 (1st Cir. 1994). Under those principles,

"[t]he Board's findings must . . . be set

aside when the record before a Court of

Appeals clearly precludes the Board's decision

from being justified by a fair estimate of the

worth of the testimony of witnesses or its

informed judgment on matters within its

special competence or both."

Id. (alterations in original) (quoting Universal Camera Corp.v. NLRB, 340 U.S. 474, 490 (1951)).

Here, there is no dispute as to the facts. The Board

found Civil to be credible, and found the relevant facts to be

as she testified including the December 1992 incident on the

street, which entailed a death threat in menacing tones, and

the stoning of her house that same night. The IJ and Board

also credited Civil's subjective fear of persecution based on

her pro-Aristide political opinions, a fear engendered by the

verbal threat and the stoning. Because there is no factual

dispute, the majority's deference to the Board's fact-finding

does not support an affirmance of the BIA decision. Where, as

here, the Board applies the wrong legal standard and makes

other legal errors, it is not enough for the majority to find

that the Board could have cobbled together sufficient facts to

support its conclusion if it had applied the proper standards.

Because the Board never did apply the correct standards, we do

not know what it, as a reasonable factfinder, would have

concluded in those hypothetical circumstances. I would reverse

and direct a decision the other way, based on this record, but

at the very least, this court should reverse and remand for a

proper adjudication applying the correct legal standards.

The questions in this case are questions of law:

(1) were there enough facts to establish a "well-founded" fear

of persecution (a mixed question of law and fact which is

treated as a question of law); (2) was it error for the Board

to consider and give controlling weight to the change in

general conditions in Haiti without evaluating whether that

general change had any effect on the likelihood that this

particular individual would be persecuted based on her

political opinions if she returned to Haiti, such as would make

her continuing subjective fear of persecution no longer well-

founded? I would answer both questions in the affirmative and

therefore reverse.

Well-Founded Fear of Persecution

An alien may be granted asylum in the discretion of the

Attorney General if the alien is a "refugee." See 8 U.S.C.

1158(a). Refugee is defined as any alien who is unwilling or

unable to return to his country "because of . . . a well-

founded fear of persecution on account of race, religion,

nationality membership in a particular social group, or

political opinion." 8 U.S.C. 1101(a)(42). The well-founded

fear has both a subjective and an objective component. SeeCordero-Trejo, 40 F.3d at 491 (citing INS v. Cardoza-Fonseca,

480 U.S. 421, 430-31, 440 (1987)); Alvarez-Flores v. INS, 909

F.2d 1, 5 (1st Cir. 1990); Ravindran v. INS, 976 F.2d 754, 758

(1st Cir. 1992). "Although objective factors are relevant,

there is under the statute an 'obvious focus on the

individual's subjective beliefs.'" Perez-Alvarez, 857 F.2d at

25 (quoting Cardoza-Fonseca, 480 U.S. at 431).

The subjective component requires that the asserted

fear be genuine. Ravindran, 976 F.2d at 758. There is no

dispute about this element in the present case; the IJ found

Civil's testimony on this subject to be credible. The

objective component, on the other hand, contemplates that the

applicant show "'by credible, direct, and specific evidence, .

. . facts that would support a reasonable fear that the

petitioner faces persecution.'" Id. (quoting Alvarez-Flores,

909 F.2d at 5).

But the degree of likelihood of persecution that must

be shown is not high. "[T]o show a 'well-founded fear of

persecution,' an alien need not prove that it is more likely

than not that he or she will be persecuted in his or her home

country." Cardoza-Fonseca, 480 U.S. at 449-50. The applicant

for asylum meets her burden if she shows that there is a

"'reasonable possibility'" that she will be persecuted on

account of her political opinion. Id. at 440 (quoting INS v.

Stevic, 467 U.S. 407, 425 (1984)). This low threshold showing

applies, even though the final decision as to whether to grant

or deny a refugee asylum is a matter of discretion, "left for

the Attorney General to decide." Id. at 450. As we have

stated, "[i]f one out of ten adult males in the petitioner's

country of origin is either in danger of death or of

incarceration in 'some remote labor camp,' the petitioner has

'a well-founded fear' of persecution." Perez-Alvarez, 857 F.2d

at 25 (quoting Cardoza-Fonseca, 480 U.S. at 431); Blanco-

Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987); cf.Cardoza-Fonseca, 480 U.S. at 449 (referring to the

"longstanding principle of construing any lingering ambiguities

in deportation statutes in favor of the alien.").

The reasonableness of Civil's subjective fear is to be

determined by the consistency, detail and specificity of the

objective evidence she presented which provides a plausible

account of the basis for the fear and shows that there is a

"reasonable possibility" of persecution. See Cardoza-Fonseca,

480 U.S. at 440. The Board has set forth four factors which

must be satisfied to establish that her fear of persecution is

well-founded: (1) she possesses a belief or characteristic that

the persecutor seeks to overcome; (2) the persecutor is aware

or could become aware that she possesses the belief or

characteristic; (3) the persecutor has the capability of

punishing her; and (4) the persecutor has the inclination to

punish her. See Matter of Mogharrabi, 19 I & N Dec. 439, 446

(BIA 1987).

Based upon my reading of the record, Civil meets this

standard. She was talking with a friend about her desire for

the speedy return of then-deposed president Aristide when a man

approached her and warned her in a menacing tone not to talk

about "these things. There are a lot of people who don't like

Aristide and they can kill you. Aristide can't do anything for

you now." The man wore the kind of boots that the Ton Ton

Macoutes usually wear. Civil reasonably believed, based on the

circumstances of the meeting and the exchange that occurred

within it, that this man was associated with the anti-Aristide

forces, possibly a member of the paramilitary or an informant

for the Ton Ton Macoutes.

The very same night, at about 3:00 a.m., a group of men

gathered outside her house and demanded entry. The family lay

flat on the floor in the hopes of avoiding gunfire, while the

men threw rocks at the house for an hour or more. The family

waited until morning to get up from the floor and go outside,

where Civil found that her pet dog had been killed by stones

thrown by the men. Civil reasonably believed that the group of

men who attacked her house were also connected to the anti-

Aristide forces, and that this entire attack was a planned

sequel to the warning and threat by the man who had overheard

her pro-Aristide comments earlier that day. As the dissenting

BIA judge noted, no entities in Haiti are reported to engage in

this type of attack, other than the former military or right

wing, anti-democratic forces such as the FRAPH, each of which

have an established political agenda, which includes silencing

persons such as Civil. (Dissent at 3.) It was after this

attack that Civil's family decided that she should leave Haiti

for her safety.

Civil's fear of persecution was eminently "reasonable,"

in light of the severity of the attack on her house and the

timing of it. See Cardoza-Fonseca, 480 U.S. at 440. Any

reasonable person in Civil's circumstances would have

recognized and feared that the almost instant retribution

inflicted upon her was because of her stated enthusiasm for the

return of Aristide to power. The man who overheard her and

threatened her was a regular customer at her grandmother's

store, so he knew exactly who she was and where to find her.

Civil has offered uncontested evidence, which the IJ found

entirely credible, regarding the events giving rise to her fear

of persecution. The IJ accepted her rendition of those events,

as well as her subjective fear of persecution.

In addition to her own testimony about this personal

incident, Civil offered documentary evidence of political

persecution of elementary and secondary students by the Haitian

military and paramilitary forces. See Dennis Nurske, Lutheran

Immigration and Refugee Service, United States Catholic

Conference/Migration and Refugee Service, At Special Risk: The

Impact of Political Violence on Minors in Haiti (July 1992)

(detailing the consistent and systematic political retribution

directed at young Haitian adolescents). The report points out

that children and youth in Haiti played a major role in

Aristide's election campaign and in political activities both

before and after the 1991 military coup that drove Aristide out

of office. As a result, elementary and secondary school

children have become highly politicized and are regarded by the

military as a significant threat, thus placing them at special

risk. Id. ("Children and young adolescents have . . . been

consistently and methodically singled out by the army.").

"Children have been routinely targeted for violence in reprisal

for their political beliefs, expressed or imputed, and for the

political opinions and activities of family and community

members." Id. "Children also appear to have been targeted as

punishment for a perceived political opinion imputed from their

peer association, presence in the classroom, affiliation with

a pro-Aristide neighborhood, or membership in a politicized

family." Id. In many rural areas, because of the intimacy of

villages and knowledge of who holds opposing viewpoints, "the

great majority of young people in the region [were] either

arrested or in hiding." Id. Even the INS recognized that, in

order to suppress the political activities of school-age

children, the military had "prohibited student meetings,

arrested and detained students, and brutally beaten and in some

cases tortured suspected student activists." Memorandum from

John W. Cummings, Acting Director, INS Office of International

Affairs, to INS Asylum and Refugee Divisions, Re:

Considerations When Adjudicating Haitian Refugee/Asylum

Applications (March 9, 1993) ("Cummings Memorandum").

Civil also offered reports of various human rights

organizations, as well as newspaper articles, detailing the

Haitian military and paramilitary forces' brutal and widespread

persecution of persons believed to support Aristide. The

United States State Department recognized that, after the 1991

military coup, "[t]he military and the de facto government

promote[d] repression and terror, sanctioning widespread

assassination, killing, torture, beating, mutilation, and

rape." United States Department of State, Human Rights in

Haiti (September 13, 1994). In particular, demonstrations in

support of Aristide were attacked by the Ton Ton Macoutes,

causing hundreds of deaths. Id. The State Department

concluded that, "[a]s we approach[ed] the third anniversary of

the coup [overthrowing Aristide], the human rights situation

ha[d] worsened." Id. It is noteworthy that these words were

written just five months before the IJ's decision in the

present case.

Civil offered human rights reports by the United

Nations, the State Department, Amnesty International, and other

international human rights organizations documenting the

Haitian military and paramilitary forces' widespread use of

rape and sexual violence as a means of political terror in

Haiti. The Board itself, in Matter of D-V-, Interim Decision

3252 (BIA 1993), recognized that young women in Haiti were

being subjected to rape as a form of politically motivated

persecution. Civil offered evidence that two women in her own

neighborhood had been raped by paramilitary forces who invaded

their homes in the middle of the night and violently attacked

them. Both were Aristide supporters. These incidents,

grounded in objective reality, contributed to Civil's fear that

she too would be similarly persecuted.

The record includes reports from sources ranging from

the State Department to the United Nations to the INS to Human

Rights Watch indicating that persons overheard in the street

protesting political conditions had been the victims of

politically motivated retribution; that thefts, robberies, and

rapes by Ton Ton Macoutes were common in areas where pro-

Aristide supporters were situated, although the "untangling of

motives of lawbreakers is difficult." See, e.g., State

Department letter dated March 11, 1994, at 3.

Civil also offered evidence documenting the continuing

persecution of those opposed to the Haitian military even afterAristide's return to power in October 1994. We recently

referred to some of the same reports that Civil points to here,

finding that "political assassinations and intimidation of

Aristide supporters persist[ed]" after the September 1994

return of Aristide to power. Fergiste v. INS, 138 F.3d 14,

___, 1998 WL 99690, at *4 (1st Cir. 1998). A memorandum issued

by the INS's own Asylum Division concluded that Aristide's

return had not resulted in durable, fundamental change.

Memorandum from Gregg Beyer, Director, INS Asylum Division

(October 27, 1994) ("Beyer Memorandum"). Evidence from

reliable authorities indicates that the government was not

sufficiently stable to control the anti-Aristide forces and to

prevent them from killing and maiming with impunity, even after

Aristide was restored to the presidency. This was especially

true in rural areas. Nor is this surprising. "In countries

with long histories of severe political repression and serious

violations of fundamental human rights, the possibility of

abuse and persecution continues at local levels even when

official policies and/or composition of governments at the top

have changed." Id.

We have previously recognized "the importance of

documentary evidence" such as I have just described, "both in

providing a plausible context for an asylum applicant's claim,

and in making credibility assessments." Cordero-Trejo, 40 F.3d

at 491. It is equally useful in evaluating whether her

subjective (undisputed) fear of future persecution is well-

founded. Moreover, "[t]he Board nowhere suggests that this

evidence is unreliable, and [I] note that it comes from

sources, such as the State Department and internationally

recognized non-governmental organizations, generally regarded

by courts of law as reliable." Id. at 491 n.6. Here, as in

Cordero-Trejo, "[b]oth the [immigration] judge and the Board

failed to address much of [the applicant's] evidence. With all

deference, it is far too extensive and significant to be

dismissed with a general statement," id. at 492, or, in Civil's

case, with no statement at all. This failure, and the Board's

failure "to engage in the inquiry necessitated" by law,

"unreasonably eviscerate[d] [the applicant's] attempt to

establish . . . the objective . . . element[] of [her] asylum

claim." Id. at 491-92; see Perez-Alvarez, 857 F.2d at 25

("[T]he Board in exercising the discretionary authority

conferred upon it by Congress cannot proceed arbitrarily and

must consider and evaluate all relevant factors.").

There being no factual issues genuinely in dispute, the

only question is a legal one: do the totality of facts rise to

a sufficient level of threat to establish that Civil's fear is

"well-founded"? I believe they do, whether the standard is ten

percent, Perez-Alvarez, 857 F.2d at 25, or somewhat greater.

It was quite reasonable for a person who experienced

what Civil did an attack on her home on the very night after

she was overheard expressing her pro-Aristide views and after

a stranger warned her in menacing tones about the deadly

consequences of such expression viewed in the context of the

situation in the country at large, to fear that, if she is

returned to Haiti, she will be persecuted on account of her

political beliefs. Her fear is even more reasonable if we

take into account the subjective impact these events would

likely have on the mind of Civil as a young teenager. SeeKahssai v. INS, 16 F.3d 323, 329 (9th Cir. 1994). The terror

that she experienced probably had a far greater and more long-

lasting impact on someone of her age than it would have had on

a full-grown adult. The IJ and the Board did not consider this

factor at all. See also Beyer Memorandum to INS Asylum

Division (Even more significant than the ongoing killings is

"the continuing, often 'invisible,' presence of these

perpetrators of past violations who have simply, and probably

only temporarily, retreated into the background."). In short,

based on both subjective and objective factors, no reasonable

fact-finder could have concluded that Civil's fear of

persecution was not well-founded. See Cordero-Trejo, 40 F.3d

at 491.

This is not a case where a petitioner is pointing to

random or widespread violence affecting all citizens and trying

to bootstrap that into a claim of persecution based on her

political beliefs under the immigration laws. See Ravindran v.

INS, 976 F.2d 754, 759 (1st Cir. 1992) (citing Rodriguez-Riverav. United States Dep't of Immigration & Naturalization, 848

F.2d 998, 1005 (9th Cir. 1988); Mendez-Efrain v, INS, 813 F.2d

279, 282-83 (9th Cir. 1987)).

The IJ decision relied heavily on, and the INS makes

much of, the fact that Civil did not "belong to [any] political

organizations" and did not march in pro-Aristide demonstrations

to make manifest her political opinions. But this does not

affect her reasonable fear of persecution, and it certainly

does not necessarily lead to the Board's conclusion that

Civil's fear of persecution is not well-founded. "Although

those in leadership or prominent positions are possibly at

greater risk due to their greater visibility, lack of

prominence does not remove the possibility of being at risk.

This is true especially considering the fact that Haitian

society is organized into small communities." Cummings

Memorandum to INS Asylum Division (emphasis added). Whatever

actions she did not take, Civil apparently did enough to

warrant being threatened for her statements, to have her house

stoned in the middle of the night (at 3:00 a.m.), and to have

her dog killed. What more is necessary in order for a person's

fear to be "reasonable"? The fact that she was cautious enough

(because of a reasonable fear of persecution) to try not to

reveal her political sympathies in any overt manner thereby

protecting her from the fate of her raped and abused friends

does nothing to undermine the legitimacy of her fear now. That

is because now, after the incident in December 1992, the anti-

Aristide forces know her sympathies lie with Aristide and those

same friends. Those forces threatened her with death

immediately after she expressed her views, and that same night

they terrorized her sufficiently for her to know that their

threats were real.

The majority is "at a loss" to understand Civil's

argument that she need not show that she fears persecution from

the government. The reason she makes that argument is that the

BIA's main argument for rejecting her application is that the

government of Haiti has changed, that Civil's idol, Aristide,

and his followers have returned to government power. The IJ's

reasoning certainly implies that Civil was required to show

that she fears persecution from the Haitian government. Civil

argues as she does because the INS obviously does not "get it";

Haiti is not a safe place for a known Aristide supporter to

return to, even though the INS is correct that Aristide's party

is in nominal control of the government. One may have a well-

founded fear of persecution by a group that the government is

unwilling or unable to control. What matters is whether the

petitioner's fear of persecution is based on one of the

statutory grounds. Matter of Maldonado-Cruz, 19 I & N Dec. 509

(BIA 1988); see, e.g., Bolanos-Hernandez v. INS, 749 F.2d 1316

(9th Cir. 1984). As we put it in Cordero-Trejo, 40 F.3d at

490, Civil "is not claiming to have been targeted and

threatened by the civilian government, but by a shadowy, extra-

legal entity associated with the [Haitian] military." As the

State Department recognized, in a February 1994 dispatch

contained in the record, "[p]aramilitary personnel in civilian

clothes . . . conduct most of the intimidation and violent

repression for both the police and the army" in Haiti. And the

documentary evidence clearly establishes that the Haitian

government was unable to control the paramilitary forces and

their allies, including the Ton Ton Macoutes, who continue to

terrorize the Haitian people. See, e.g., Human Rights

Watch/Americas National Coalition for Haitian Refugees, Terror

Prevails in Haiti: Human Rights Violations and Failed

Diplomacy (April 1994) (quoting United Nations/Organization of

American States International Civilian Mission Report).

Reliance on Speculation

The IJ committed another legal error by basing his

conclusion in significant part on his own unsubstantiated

speculation and ignoring the substantial evidence to the

contrary that existed in the record. We have unequivocally

rejected the substitution of the IJ's idea of how other

societies operate as a basis for judging the likelihood of

persecution of a particular individual. See Cordero-Trejo, 40

F.3d at 490 (finding it "apparent that the IJ did not consider

Cordero's testimony and evidence," despite the legal

"require[ment]" that he consider it if credible in light of

general country conditions (citing 8 C.F.R. 208.13(a)));

Perez-Alvarez, 857 F.2d at 24 (finding that nothing in the

record sustains the IJ's assumptions other than "perhaps his

general perception of life or political conditions in El

Salvador which may or may not be grounded in fact").

Here, the IJ's decision relied on at least two types of

speculation. First is his speculation that the anti-Aristide

forces could not possibly have been interested in the political

views of a 15-year-old child like Civil. He wrote that "it is

almost inconceivable to believe that the Ton Ton Macoutes could

be fearful of the conversations of children." But the record

contains absolutely no evidence that the military or anti-

Aristide forces felt teenagers were not a threat to opponents

of Aristide.

Indeed, as demonstrated supra, the record evidence is

to the contrary: the anti-Aristide forces viewed pro-Aristide

young people as an important source of support for Aristide,

and they went to great lengths to intimidate those young people

through terror and torture. The objective evidence of record

indicates that the military and anti-Aristide forces in Haiti

did not spare minors or differentiate among their victims based

on age or gender. Record evidence, including a letter from the

United States Department of State, dated March 11, 1994,

confirms that in the summer of 1992, there were serious

confrontations between the pro-Aristide students and police

employed by the forces which had ousted Aristide. Further

disturbances at the universities forced them to be closed in

December 1992, the very period when the incidents reported by

Civil occurred. Moreover, documents in the record establish

that similarly situated Haitian students have faced a pattern

of brutal persecution ranging from arrest to murder, further

substantiating Civil's fear that she faces a substantial risk

of persecution if returned to Haiti.

We have held in past cases that "deference [to the

Board] is not due where findings and conclusions are based on

inferences or presumptions that are not reasonably grounded in

the record, viewed as a whole." Cordero-Trejo, 40 F.3d at

485, 487 (remanding, because "the findings underlying the

Board's conclusion that [applicant] is ineligible for asylum

are not supported by substantial evidence") (citing Universal

Camera, 340 U.S. at 491). That is the case here. For the IJ

to rely on his own speculation and assumptions, and to ignore

the substantial factual evidence from objective sources that

his assumptions were inaccurate, constituted legal error. And,

to the extent the BIA affirmed the IJ "for the reasons set

forth" in his decision, the BIA committed legal error too,

relying on speculation that was unreliable and ignoring or

failing to credit detailed evidence from reliable and objective

sources. This court certainly should not rely on the IJ's

factual conclusions in this case.

The IJ also speculated that the attack on Civil's home

was "more likely" the [random] act of common criminals than an

act of paramilitary forces intended as political persecution.

But there is no reason to believe that this second instance of

IJ speculation has a factual basis. As noted supra, no

entities in Haiti were reported to engage in this type of

attack, other than the former Ton Ton Macoutes and their

successors. There is no evidence in the record that the

Macoutes invaded and stoned people's homes in the middle of the

night for purely criminal motives. To the contrary, there is

ample evidence that the paramilitary Ton Ton Macoutes and

"attach�s" engaged in this type of persecutory practice as a

means of silencing and assessing vengeance against Aristide

supporters. Moreover, the IJ's speculation that the 3:00 a.m.

attack on Civil's home might have been the work of "common

criminals" is absurd on its face. A common criminal does not

knock on the door and demand to be let into the house. The

question, in any event, is not what an administrative law judge

sitting in the safety of the United States can choose to

believe; the question is what a young person, who has been

forced to hide under the bed in the middle of the night, in

terror of being killed, would think about her safety if she

were to return home. The IJ's "common criminals" speculation,

like the speculation about "the conversations of children,"

constituted legal error, and undermined the reliability of his

decision. It also therefore undermined the reliability of the

Board's decision which simply incorporated by reference the

IJ's reasoning.

The majority discounts the error resulting from the

Board's and IJ's speculation, stating "we think it is readily

apparent that the IJ did rely on record evidence, including

petitioner's testimony, her asylum application and affidavit,

and a State Department advisory report." Ante at 10 n.3. But

the fact that the IJ mentioned some record evidence does not

mean that he did not rely on unsubstantiated assumptions as

well. He explicitly stated that he did rely on a number of

such assumptions, such as his "common criminals" speculation

and his reliance on general changes in Haiti apparently

assuming that such general changes would eliminate the

possibility that this petitioner would be persecuted. And the

Board, in affirming the IJ, acknowledged that the same general

political changes "are a significant factor in our conclusion

that the applicant has not established a well-founded fear of

persecution."

Thus, Civil has offered evidence to establish

sufficient facts to satisfy the legal test for having a well-

founded fear of persecution.

Official Notice

In addition, she is correct that the BIA's decision

should be reversed as a matter of law because that decision was

made on the basis of the IJ's and the Board's taking official

notice of changes in general country conditions. That official

notice gave rise to two separate legal errors. As this court

emphasized only last month, "the official notice of changed

country conditions" cannot be enough to "counter[] the specific

evidence of persecution that [a particular petitioner] has

presented." Fergiste v. INS, 138 F.3d 14, ___, 1998 WL 99690,

at *3 (1st Cir. 1998). In a separate and independent error,

discussed infra, the Board also failed to give Civil any

warning that it would be considering this extra-record evidence

and failed to give her an opportunity to respond before the

final decision issued. See Gebremichael, 10 F.3d at 37.

A. General Versus Specific Facts

First, the IJ and the Board took notice of a

generalization, without any evidence that there has been any

specific diminution in the threat to this particular individual

petitioner. As the majority notes, the BIA "devoted the bulk

of its analysis of Civil's asylum application to reciting

virtually verbatim a discussion of changed country conditions

set forth in an earlier opinion." Ante at 8. While taking

official notice of the general changes in country conditions in

Haiti, the Board gave absolutely no consideration to the

question whether those general conditions made any difference

(much less sufficient difference) to Civil's particular

situation. The Board's implicit assumption, that the

particular necessarily follows from the general, is also

factually inaccurate: despite the return of Aristide and then

Pr�val to head Haiti's government, the former Ton Ton Macoutes

continue to terrorize Aristide's friends and supporters.

As we have held, "[i]n keeping with standard principles

of administrative procedure and in the absence of any

prohibition in the INA itself, the Board has the discretion to

take 'official' or 'administrative' notice of extra-record

legislative facts." Gebremichael, 10 F.3d at 37 (emphasis

added) (citing 3 Kenneth C. Davis & John P. Wilson,

Administrative Law Treatise 15, at 132-217 (2d ed. 1980)

("Administrative Law Treatise")). "Legislative facts are those

which 'do not usually concern the immediate parties but are the

general facts which help the tribunal decide questions of law

and policy and discretion.'" Id. at 37 n. 25 (quoting 2

Administrative Law Treatise 12:3, at 413). "Thus, the Board

is free to take official notice of facts such as a change in

government in an applicant's home country." Id. at 37.

"In contrast, 'adjudicative facts usually answer the

questions of who did what, where, when, how, why, with what

motive or intent.'" Id. at 37 n.25 (quoting Administrative Law

Treatise 12:3, at 413). These more particularized facts

pertaining to the individual parties are not the kind of facts

of which the agency may take official notice. Yet that is

exactly what the Board would have to do in order to have made

a proper determination in the instant case.

As a matter of law, it is not enough for the Board to

find, as an officially noticed fact, that Aristide was restored

to power and therefore that the "general country conditions" in

Haiti had changed. A change in government cannot, without

more, support a denial of political asylum. The Board must

find, based upon substantial evidence, that the change has

actually resulted in an elimination or reduction of persecution

of the particular applicant for asylum, or of persons similarly

situated; an applicant is entitled to "careful, individualized"

consideration of such evidence in the context of the

applicant's claims. See Llana-Castellon v. INS, 16 F.3d 1093,

1096, 1098 (10th Cir. 1994) (remanding to BIA a denial of

asylum based upon a "rote" finding of changed country

conditions); see Rhoa-Zamora v. INS, 971 F.2d 26, 34 (7th Cir.

1992). As the Tenth Circuit cogently stated,

The use of official notice [of changed country

conditions] does not substitute for an

analysis of the facts of each applicant's

individual circumstances. Uncontroverted

facts may be inapplicable to or of limited

probative value in individual cases and the

Board must remain open to this possibility.

The petitioners are therefore right to demand

that the BIA engage in a careful,

individualized review of the evidence

presented in their applications and hearings.

Llana-Castellon, 16 F.3d at 1098 (quoting Kaczmarczyk v. INS,

933 F.2d 588, 594-95 (7th Cir. 1991)). The court found that

the Board there (as here) inferred a de facto change in country

conditions from a merely de jure change in government, and

failed to consider that the government does not enjoy full

control and that anti-government groups "are still a force to

be reckoned with." Id. at 1097; Castillo-Villagra v. INS, 972

F.2d 1017 (9th Cir. 1992) (Although the Board may take

administrative notice of the fact of a change in government, it

may not, without a hearing, conclude that the change has

eliminated the danger to the applicant.)

We reached the same conclusion only last month. In

Fergiste, we held:

[T]he Board's administrative notice of changed

country conditions did not suffice to show

that [the petitioner] himself no longer had a

reasonable fear of future persecution.

Abstract "changed country conditions" do not

automatically trump the specific evidence

presented by the applicant. Rather, changes

in country conditions must be shown to have

negated the particular applicant's well-

founded fear of persecution.

138 F.3d at ___, 1998 WL 99690, at *4 (emphasis added, footnote

omitted); see 8 C.F.R. 208.13(b)(1)(i). In Fergiste,

referring to some of the same reports that Civil points to

here, we found that "political assassinations and intimidation

of Aristide supporters persist[ed]" after the September 1994

return of Aristide to power. 138 F.3d at ___, 1998 WL 99690,

at *4. There, we noted that, although the petitioner

"presented hundreds of pages of documentary evidence that

either contradicted the Board's conclusions or placed them into

question[,] . . . the Board mentioned none of them in its

analysis, nor did it discuss how or whether [the petitioner's]

particular situation may be affected by the changed country

conditions that it recognized." 1998 WL 99690, at *4.

Similarly, here, the question the Board should have

answered was whether Civil in particular had a well-founded

fear of persecution. Neither the Board nor the IJ did anything

whatsoever to ascertain whether the general political change in

Haiti made any difference to Civil's well-founded fear of

persecution from the Ton Ton Macoutes and their sympathizers.

If, in the instant case, the Board or IJ had made any

effort to look into this question, they would have found an

abundance of evidence supporting Civil's claim that she still

had reason to fear persecution. As discussed supra, despite

the change at the top of the government in Haiti, members of

the police force and civilian former Ton Ton Macoutes continued

to prowl the country intimidating, torturing and killing

Aristide supporters and their families. In short, the deadly

battle for control of Haiti continued to be waged even after

the general changes occurred at the top of the government. The

Board's failure even to ask the particular question of Civil's

personal well-founded fear of persecution, i.e., the Board's

leaping to the conclusion of denying her petition simply based

upon the general change in country condition, was erroneous as

a matter of law and should be reversed. It is not a

legislative fact of which the Board was permitted to take

official notice, nor did the Board make any attempt to

determine objectively a particularized finding based on such

fact. It was particularly unfair for the IJ to base his

decision on changed country conditions stated in excerpts of

the U.S. State Department Country Reports on Haiti, and then to

ignore the voluminous documentary evidence presented by Civil

in support of her case. She offered reports of reputable,

objective organizations, including some from the State

Department and INS itself, attesting to the fact that the

change at the top did not automatically free individual

Aristide supporters from persecution. The IJ should not have

drawn the conclusions he did from his official notice, without

considering evidence in the record to the contrary.

The Board, too, relied not only on the same general

conditions on which the IJ relied, but took official notice

itself of additional changes in the Haitian government, notably

the election of Ren� Pr�val to succeed Aristide. Like the IJ,

the Board relied on the general to overcome Civil's showing of

specific facts on the particular, while giving her no

opportunity to rebut or to demonstrate that the general country

conditions did not allay her well-founded fears. Moreover, on

their face, the Board's general facts are not sufficient to

support its conclusion that the persecution of Aristide

supporters actually diminished. The Board stated that "the

rise to power by democratic forces, and the significant efforts

made to dismantle the former military structures, have a direct

impact on asylum claims from Haiti." (Emphasis added.)

Similarly, the IJ relied on recent developments in Haiti as

"provid[ing] a basis for hope that conditions in the country

soon might improve." (Emphasis added.) The fact that

"significant efforts" are being made to dismantle the former

military structures and to prevent further atrocities against

Aristide's supporters does not mean that those efforts are

successful. The question that the Board was required to answer

was whether this particular individual had a well-founded fear

of persecution, not whether, in general, there was any "hope"

that conditions in Haiti "might improve" or whether

"significant efforts" were being made to protect people like

her.

As in Fergiste, the Board majority's reliance on

official notice of generalized changed country conditions,

instead of a particularized finding as to this individual

petitioner, constitutes "legal error [which] undermines the

Board's decision." 1998 WL 99690, at *3. Viewing the record

as a whole, including evidence on both sides of the question,

the record does not contain substantial evidence to support the

Board's implicit conclusion that the changes in general country

conditions meant that Civil's fear of persecution is not well-

founded. The Board's decision should be reversed, and the case

remanded for the IJ to determine whether Civil is entitled to

asylum as a matter of the discretion of the Attorney General.

Fergiste, 138 F.3d at ___, 1998 WL 99690, at *4; see 8 U.S.C.

1158 (b)(1) (granting discretion to the Attorney General).

B. Due Process

Even if the Board were permitted to take official

notice of the change in country conditions, and even if the

Board could extrapolate from those facts a particularized

conclusion as to whether Civil herself continued to have a

well-founded fear of persecution despite the change in country

conditions, there is a question whether the Board violated

Civil's right to due process under the Fifth Amendment by

relying on extra-record facts without affording her notice or

an opportunity to be heard on this new evidence.

"It is well settled that an alien in a deportation

proceeding is entitled to procedural due process."

Gebremichael, 10 F.3d at 38. This is especially important in

light of the fact that "an alien's freedom to stay in this

country hangs in the balance." Id. The question is "what

process is due when the Board chooses to take official notice

of conditions in the applicant's home country." Id. In

answering this question, we recognized the conflict in the

circuits, and went on to agree with the position taken here by

the government that "the motion to reopen process can

ordinarily satisfy the demands of due process." Id.

While reaching this conclusion, we nevertheless

recognized that not all cases are "ordinary," and that the

question of whether the motion to reopen process will satisfy

the constitutional demands of due process "will, as always,

ultimately depend on the circumstances." Id. at 39 (citing

Mathews v. Eldridge, 424 U.S. 319, 324 (1976)). We alluded to

the Administrative Law Treatise for the proposition that "[t]he

sound practice for both courts and agencies would be one of

full liberality in allowing the free use of legislative facts

. . . along with strictness in requiring that parties be given

a predecision chance to respond to whatever extra-record facts

are relied upon." Administrative Law Treatise 12:4, at 320

(Supp. 1989), quoted in Gebremichael, 10 F.3d at 38-39. We

noted one important example of why predecision input from the

applicant is so critical: the applicant

is ordinarily entitled "not only to refute

but, what in this situation is usually more

important, to supplement, explain, and give

different perspective to the facts upon which

the agency relies."

Gebremichael, 10 F.3d at 38 n. 28 (quoting Kaczmarczyk, 933

F.2d at 596 n.7 (itself quoting 4 Jacob A. Stein et al.,

Administrative Law, 25.01 n.7 (1986))).

In Fergiste, 138 F.3d at ___, 1998 WL 99690, at *4 n.4,

we rejected the INS position that Gebremichael's language

regarding motions to reopen requires rejection of petitioner's

argument that due process was violated by the Board's reliance

on extra-record changes in country conditions. The INS makes

the same argument here, and we should reject it here too.

Thus, in Gebremichael, even though the motion to reopen

process will "ordinarily satisfy the demands of due process,"

we held that the petitioner's due process rights were violated

because he was not "afforded an adequate opportunity to

respond" to the general facts of which the Board took

administrative notice. 10 F.3d at 39. We were troubled by

the fact that "[t]he Board did not warn petitioner of its

intention to use extra-record materials," nor "did petitioner

have a predecision opportunity to respond." Id.

Here, too, Civil was not warned that the Board intended

to consider the changes in Haiti's government in general as a

ground for rejecting her claim that she had a well-founded fear

of persecution. Nor was she afforded an opportunity, beforethe IJ made his decision, "not only to refute but, what in this

situation is usually more important, to supplement, explain,

and give different perspective to the facts upon which the

agency relies." See Gebremichael, 10 F.3d at 38 n.28 (quoting

Kaczmarczyk, 933 F.2d at 596 n.7); Llana-Castellon, 16 F.3d at

1099 ("In the circumstances of this case, where the BIA noticed

facts and made disputable inferences based on those facts which

. . . were dispositive of [p]etitioners' appeal, we hold that

due process requires the BIA to give [p]etitioners advance

notice and an opportunity to be heard."); Castillo-Villagra,

972 F.2d at 1023 (same).

As the dissenting member of the Board pointed out,

there are a multitude of facts, including findings by the

United Nations and other objective international bodies, that

have examined the human rights situation in Haiti and have

concluded, even after the restoration of Aristide and later

Pr�val to the presidency, that former members of the Ton Ton

Macoutes and supporters of the former dictatorship have

continued to terrorize, torture, and kill Haitians who support

Aristide. See supra. The restoration to the presidency has

not been enough to control the anti-Aristide forces.

In reaching its own conclusion based on the second

layer of administratively noticed facts again, without giving

Civil an opportunity to respond to the disputable facts or the

inferences the Board drew therefrom the Board (on appeal from

the IJ's decision) "abused our presumption of good faith and

ran afoul of petitioner's procedural rights." Gebremichael, 10

F.3d at 39.

The Board acknowledged the significant extent of its

reliance on such officially noticed and unrebutted general

facts: "The political changes in Haiti, which include the gain

of power by those whom the applicant supports, are a

significant factor in our conclusion that the applicant has not

established a well-founded fear of persecution." If given the

opportunity to rebut these noticed facts, Civil would have been

able to introduce into evidence reports from the United Nations

High Commissioner for Refugees and others (including a U.N.

report issued on August 14, 1997), attesting that human rights

abuses continued to occur with regularity in Haiti, long after

Pr�val's election.

Thus, while the general facts are undisputed

(restoration of Aristide, election of Pr�val), the inferences

regarding their impact on Civil's fear of persecution are

disputed. In addition to violating her right to procedural due

process, this goes to the legitimacy of the basis for the

Board's conclusion, which is unsupported by the record taken as

a whole.

Finally, as we noted in Gebremichael, "the filing of a

motion to reopen does not automatically stay deportation," id.at 39 n.29. This factor also comes into play in the instant

case. After the BIA's order dismissing her appeal on June 26,

1997, Civil was required to file an appeal within thirty days

under IIRIRA Sec. 309(c)(4) (Transitional Rule) in order to

seek a stay of deportation. This is still another factor that

renders the motion to reopen process insufficient to satisfy

Civil's due process rights.

Conclusion

In my view, the BIA evaluation of the facts in this

case contains improper legal analysis and is not supported by

substantial evidence in the record; it rests on unsubstantiated

speculation by the Immigration Judge. Moreover, the IJ and BIA

made errors of law by taking official notice of changes in

generalized country conditions without considering whether

those changes would affect whether this particular individual

had a well-founded fear of persecution, and without affording

her notice or an opportunity to rebut the facts officially

noticed. Accordingly, I believe the BIA decision should be

reversed. I respectfully dissent.