2d Circuit Notes Split Re Due Process Concerns When BIA Denies Motion to Reopen

Per Burger v. Gonzales, --- F.3d ----, 2007 WL 2331944 (2d Cir. Aug 17, 2007) (NO. 03-40395-AG L, 05-1058-AG CON):

The Government does not dispute that the noticed facts were dispositive of Burger's claim, and it concedes that the BIA failed to warn Burger that it would take notice. Rather, the Government contends that Burger's motion to reopen gave her a full and fair opportunity to present her claim and thus cured the lack of advance notice. The circuits are divided.

The Fifth, Seventh, and D.C. Circuits have held that a motion to reopen suffices to satisfy due process in this context. See Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.Cir.1992) ("The availability of the petition to reopen secures [petitioner's] due process right to a meaningful hearing."); Rivera-Cruz v. INS, 948 F.2d 962, 968 (5th Cir.1991) (same); Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir.1991) (same).

The Ninth and Tenth Circuits, however, have held that due process requires that the BIA provide applicants with notice and an opportunity to be heard before the BIA determines on the basis of administratively noticed facts that a petitioner lacks a wellfounded fear of persecution. See Getachew v. INS, 25 F.3d 841, 846 (9th Cir.1994) (advance notice and opportunity to respond required when BIA determines, on the basis of administrative notice, whether an "election has vitiated any previously well-founded fear of persecution"); de la Llana-Castellon v. INS, 16 F.3d 1093, 1100 (10th Cir.1994) (availability of motion to reopen did not satisfy due process where BIA reversed IJ's finding that petitioners had a well-founded fear of persecution based solely on administratively noticed facts).

As the Ninth and Tenth Circuits have noted, the reopening procedure has serious limitations as a guaranty of due process. See, e.g., de la Llana-Castellon, 16 F.3d at 1100; Castillo-Villagra v. INS, 972 F.2d 1017, 1029-30 (9th Cir.1992). The BIA's decision to grant a motion to reopen is purely discretionary. 8 C.F.R. § 1003.2(a). Moreover, because the filing of a motion to reopen does not automatically stay the execution of an order of removal, id. § 1003.2(f), the applicant's due process rights depend entirely on the BIA's good faith. Cf. Kaczmarczyk, 933 F.2d at 597 n. 9 ("We presume that when an asylum applicant uses a good faith motion to reopen to dispute officially noticed facts, the Board will exercise its discretion to stay the execution of its decision until it has had an opportunity to rule on the applicant's motion.").