Second Circuit Notes Split Re Whether Ability of BIA Petitioner to Move to Reopen Cures a Lack of Notice

Per Chhetry v. U.S. Department of Justice, --- F.3d ----, 2007 WL 1759472 (2d Cir. June 20, 2007):

[T]he BIA did exceed its allowable discretion in denying Chhetry's motion to reopen based on inferences it drew from those noticed facts without giving him the opportunity to rebut the significance of the noticed facts as applied to his particular situation. The U.S. Courts of Appeals for the Fifth, Seventh, Ninth, Tenth, and D.C. Circuits have all concluded that petitioners must be given the opportunity to challenge, for both truth and significance, facts of which the BIA takes administrative notice when its reliance on those facts is dispositive, as was the case here. See Rivera-Cruz v. INS, 948 F.2d 962, 968 (5th Cir.1991) (“It is a fundamental proposition of administrative law that interested parties must have an effective chance to respond to crucial facts.”) (internal quotation marks omitted); Kaczmarczyk v. INS, 933 F.2d 588, 596 (7th Cir.1991) (“We believe the due process clause of the fifth amendment requires that petitioners be allowed an opportunity to rebut officially noticed facts, particularly when ... those facts are crucial to-indeed dispositive of-the outcome of the administrative proceeding.”); Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir.1992) (holding that the BIA violated the Fifth Amendment's due process clause “in taking notice of the change of government without providing the petitioners an opportunity to rebut the noticed facts”); de la Llana-Castellon, 16 F.3d at 1099 (holding, where the BIA made “disputable inferences” based on noticed facts, “due process require[d] the BIA to give Petitioners advance notice and an opportunity to be heard”); Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.Cir.1992) (“[D]ue process guarantees an asylum applicant the right to challenge an officially noticed fact-with respect both to its truth and its significance.”). No court of appeals has concluded otherwise. We agree with our sister circuits that a petitioner must be given notice of, and an effective chance to respond to, potentially dispositive, administratively noticed facts.

There is, however, a circuit split as to whether a petitioner's ability to file a subsequent motion to reopen cures a lack of notice. The Fifth, Seventh, and D.C. Circuits have held that, for a petitioner on direct appeal from a final order of removal, the availability of a motion to reopen serves as a sufficient “mechanism to rebut officially noticed facts” because petitioners can use such a motion to present the BIA with “evidence that the facts it officially noticed are incorrect or that they are true but irrelevant to their case,” and, if the BIA refuses the motion, petitioners can appeal. Kaczmarczyk, 933 F.2d at 597; see also Rivera-Cruz, 948 F.2d at 968-69; Gutierrez-Rogue, 954 F.2d at 773. The Ninth and Tenth Circuits, on the other hand, have held in similar cases that the availability of a motion to reopen is an inadequate substitute for a full opportunity to rebut administratively noticed facts because, inter alia, the discretionary nature of motions to reopen does not guarantee a petitioner an effective ability to respond to previously-noticed facts, and petitioners are not guaranteed a stay of deportation while awaiting a decision on reopening. See Castillo-Villagra, 972 F.2d at 1030; Gomez-Vigil v. INS, 990 F.2d 1111, 1124 (9th Cir.1993) (Fletcher, J., concurring); de la Llana-Castellon, 16 F.3d at 1100.

Like the Ninth and Tenth Circuits, we doubt whether the protection afforded by the availability of a motion to reopen is enough for petitioners on direct appeal from final orders of removal. However, we need not decide this broader question because Chhetry appeals from the denial of a motion to reopen; he does not appeal from the BIA's final order of removal.