facts or to show cause why administrative notice should not be taken of those facts.” 25 F.3d 841, 846 (9th Cir. 1994) (emphasis in original). We grant the petition for review because the BIA did not correct the IJ’s procedural due pro- cess violation.

I. BACKGROUND

The underlying facts are not disputed. Circu is a native and citizen of Romania, where Romanian Orthodox Christianity is the predominant religion. Circu and her family are Pentecostal Christians. On November 2, 1994, she entered the United States as a nonimmigrant visitor for pleasure and was autho- rized to remain here until November 1, 1995. On March 27, 1996, the Immigration and Naturalization Service (“INS,” now the Department of Homeland Security) charged that Circu was subject to deportation for overstaying her visa under 8 U.S.C. § 1251(a)(1)(B) (currently, 8 U.S.C. § 1227(a)(1)(B)). Conceding deportability, Circu applied for asylum based primarily on religious persecution.

A staggered two-day deportation hearing was held before an IJ in March and July of 1998. Circu testified that the reli- gious persecution of her family dates back to the 1950s, before she was born, when her grandfather was jailed and his house was seized because he was a founder of a Pentecostal religion in Romania. When she was four years old, her father was imprisoned for six months for trying to leave the country, and her family was forced to move to a different town and to live in barracks. Circu’s healthy infant brother was taken from her family to a hospital where he later died of meningitis. Circu’s mother suffered two miscarriages on account of persecu- tion.1 Circu was denied admission to Romanian public univer- 1 Incidentally, a different IJ granted Circu’s mother asylum in February 1996 based on the severity of the mother’s past religious persecution in Romania. 6516 CIRCU v. GONZALES sities on several occasions, despite having stellar test scores. Circu was summoned to the headquarters of the Romanian secret police where she was told that she would gain admis- sion into a public university in exchange for sex. Circu was expelled from a private university after attempting to publish articles detailing atrocities committed by the Romanian gov- ernment. The IJ found that Circu testified credibly.

In August 2000, more than two years after the conclusion of the hearing, the IJ filed an opinion denying Circu’s petition for relief, but permitting her to voluntarily depart the United States. Although the IJ found that Circu “met her burden of proving that she suffered past persecution in her homeland during the Communist regime,” entitling her to a presumption of a well-founded fear of future persecution, the IJ found that the INS successfully rebutted this presumption with evidence of changed-country conditions. (emphasis in original). With regard to this finding, the IJ stated:

The January 1997 Profile of Country Conditions issued by the Department of State states that Pente- costals and other unregistered sects had a difficult time in Romania. See Exhibit 12. However, the 1999 Report indicates that open worship is now possible and is only marred occasionally by unsanctioned harassment by local officials. See Romania Country Report on Human Rights Practices for 1999, dated February 25, 2000.

The 1997 Profile of Country Conditions was part of the administrative record. The 1999 Report, however, was released on February 23, 2000, nineteen months after the con- clusion of the hearing, and was not part of the administrative record.

Circu appealed the IJ’s decision to the BIA, arguing, inter alia, that the IJ erred in relying on documents not in the record to find that country conditions had changed in Roma- CIRCU v. GONZALES 6517 nia. She requested a remand to the IJ for an opportunity to rebut the 1999 Report. The BIA summarily affirmed the IJ’s decision without opinion.

Circu then petitioned this court for review. A divided panel of our court denied the petition. Circu v. Ashcroft, 389 F.3d 938, 941 (9th Cir. 2004). We granted en banc review. Circu v. Gonzales, 427 F.3d 622 (9th Cir. 2005).

II. STANDARD OF REVIEW

Where, as here, the BIA affirms the IJ’s decision without opinion, we review the IJ’s decision as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir. 2004) (citing Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003)). Although we generally review claims of due pro- cess violations in deportation proceedings de novo, e.g., Bar- raza Rivera v. INS, 913 F.2d 1443, 1448 (9th Cir. 1990), “we review the procedures the Board uses to take administrative notice of facts not in the record for abuse of discretion.” Get- achew, 25 F.3d at 845.

III. ANALYSIS

The IJ’s finding that Circu suffered past persecution enti- tled Circu to the legal presumption of a well-founded fear of future persecution. Borja v. INS, 175 F.3d 732, 737 (9th Cir. 1999) (en banc). The government may rebut this presumption by showing by a preponderance of the evidence that the con- ditions in Romania “have changed to such an extent that [Circu] no longer has a well-founded fear that she would be persecuted, should she return there.” Id. at 738. The IJ deter- mined that Circu’s presumption of a well-founded fear had been rebutted by the 1999 Report.

[1] Over a decade ago, we held that notice of intent to take administrative notice of events occurring after the hearing is all that is required if extra-record facts and questions are 6518 CIRCU v. GONZALES “ ‘legislative, indisputable, and general.’ ” Getachew, 25 F.3d at 846 (quoting Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992)). On the other hand, more “controversial or individualized facts require both notice to the [alien] that administrative notice will be taken and an opportunity to rebut the extra-record facts or to show cause why administra- tive notice should not be taken of those facts.” Id. (emphasis in original); accord Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“ ‘The fundamental requisite of due process of law is the opportunity to be heard’ ” and “[t]his right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for him- self whether to . . . acquiesce or contest.” (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914))). Getachew relied on Castillo-Villagra, a case which explained that “[i]t is not nec- essary to warn that administrative notice will be taken of the fact that water runs downhill. Some propositions, however, may require that notice not be taken, or that warning be given, or that rebuttal evidence be allowed. The agency’s discretion must be exercised in such a way as to be fair in the circum- stances.” Castillo-Villagra, 972 F.2d at 1028. As we held in Castillo-Villagra, an IJ may take administrative notice of a change of government, but where it is plausible that the change does not eliminate the danger to the individual peti- tioner, the IJ must give the petitioner an opportunity to be heard on the question of the individual impact. Id.

[2] The 1999 Report contains extra-record facts that are “controversial.” Getachew, 25 F.3d at 846. Accordingly, Circu was entitled both to notice of the IJ’s intent to take administrative notice of the 1999 Report and an opportunity to respond to that report. This point is made clear in Get- achew. There, the government asked the BIA to take notice of the fact that the Marxist government in the petitioner’s native country fell two months after the deportation hearing before the IJ. Id. at 843-44. In concluding that the petitioner was entitled to notice of the BIA’s intent to take administrative notice of this fact and an opportunity to rebut it, this court dis- CIRCU v. GONZALES 6519 tinguished between “indisputable” facts and “controversial” facts. Id. at 846. The sole example given of an “indisputable” fact is a political party’s victory in an election. Id. An exam- ple of a “controversial” fact is “whether the election has viti- ated any previously well-founded fear of persecution.” Id. The 1999 Report plainly falls into the latter category because the IJ’s assertion that “open worship is now possible [in Roma- nia] and is only marred occasionally by unsanctioned harass- ment by local officials” is based on her determination that the 1999 Report vitiates Circu’s previously well-founded fear of persecution.

[3] Neither of Getachew’s requirements for taking adminis- trative notice of disputable facts were met in this case. The government’s argument that Circu was afforded notice of the IJ’s intent to rely on the 1999 Report ignores the fact that Circu was not given notice prior to the IJ’s taking administra- tive notice of the report. The only notice Circu received that the IJ would consider the 1999 Report was the IJ’s opinion. This after-the-fact reference clearly fails to afford Circu warn- ing that the IJ planned on taking administrative notice of the 1999 Report. See id. at 846. The 1999 Report did not even exist at the time of Circu’s hearing before the IJ, and the IJ explicitly relied on that report, noting the possibility for open worship, which differed from the information provided in the 1997 Report.

[4] Furthermore, Circu was never given the opportunity to counter the 1999 Report before the IJ relied on the statements made therein to find that conditions in Romania had changed to allow Circu’s return without an objective fear of persecution.2 2 In the appendix to this opinion, we provide a table that compares the relevant portions of the two reports, adding emphasis to their differences. The record demonstrates that the IJ saw significant differences between the 1999 Report and the 1997 Report, and based her decision specifically on those differences. Indeed, there are several notable variances between the two reports: the 1999 Report does not specifically mention which 6520 CIRCU v. GONZALES While establishing a due process violation always requires a showing of prejudice,3 Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 875 (9th Cir. 2003) (en banc), Circu satisfied her burden here by showing that the IJ perceived significant dif- ferences between the evidence in the record and the improp- erly noticed 1999 Report, and that the IJ relied on those differences in rendering a decision.

[5] The BIA compounded the error by failing to remand the matter to the IJ to afford Circu an opportunity to rebut the 1999 Report. The government misses the point by arguing that Circu had an adequate opportunity to respond to the 1999 Report in her appeal to the BIA. As noted, due process requires notice and an opportunity to respond before the IJ renders her decision. The appeal to the BIA did not afford the procedural means by which Circu could submit evidence to refute the points asserted in the 1999 Report. Id. at 865-66.

denominations continue to make credible allegations of persecution, whereas the 1997 Report specifically named “Protestant denominations” as making credible allegations of harassment; and the 1999 Report dis- cusses the mechanism whereby religious groups have to register with the Romanian government, whereas the 1997 Report does not address this subject. Given an opportunity to rebut the 1999 Report, Circu may be able to show that her Pentecostal group is one of the denominations that contin- ues to make credible allegations of persecution and is subjected to an oppressive registration process in order to function as a religion in Roma- nia. Of course, providing Circu with an opportunity to rebut the 1999 Report does not necessarily mean that the IJ will reach a different decision on Circu’s asylum petition. 3 This standard is met under circumstances in which an alien’s interests are harmed “in such a way as to affect potentially the outcome of the[ ] deportation proceedings.” United States v. Cerda-Pena, 799 F.2d 1374, 1378 (9th Cir. 1986) (quotation and emphasis omitted). Of course, “[a]ny such harm should be identified specifically.” Id. (quotation and emphasis omitted). “In assessing prejudice in this context, we need not determine with certainty whether the outcome would have been different, but rather whether the claimed harm potentially affected the outcome of the proceed- ings.” Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 875 (9th Cir. 2003) (en banc). CIRCU v. GONZALES 6521 Accordingly, Circu asked the BIA to remand her case to the IJ so that she could present rebuttal evidence. Because the BIA summarily affirmed the IJ’s decision — and conse- quently we review the IJ’s decision as the agency’s final deci- sion — the denial of procedural due process requires that we remand the case to the BIA with directions that it remand the case for further proceedings before the IJ.4

IV. CONCLUSION

For the foregoing reasons, the petition for review is GRANTED and the matter is REMANDED with instructions that the BIA remand the matter to the IJ to provide Circu with an opportunity to respond to the 1999 Report.

4 As the BIA summarily affirmed the IJ under its streamlining regula- tions, we neither suggest nor have occasion to consider whether under other circumstances the BIA may cure an IJ’s denial of procedural due process by accepting new evidence in the course of an appeal. Further, Circu’s claim that the use of streamlined procedures violated her due pro- cess rights is foreclosed by Falcon Carriche. 350 F.3d at 851. Circu also contends that the IJ erred by failing to consider her eligibility for a human- itarian grant of asylum, but the record is clear that the IJ considered this form of relief and found that it would not be inhumane to repatriate Circu. 6522 CIRCU v. GONZALES

APPENDIX

1997 Report 1999 Report

The Constitution provides The Constitution provides for religious freedom, and for religious freedom, and the Government generally the Government generally does not impede the does not impede the observance of religious observance of religious belief. However, several belief. However, several Protestant denominations, denominations continued to Jehovah’s Witnesses the make credible allegations most prominent among that low-level government them, continued to make officials and Romanian credible allegations that Orthodox clergy impeded low-level government their efforts at officials and Romanian proselytizing. The press Orthodox clergy harassed reported several instances them and impeded their when adherents of minority efforts at proselytizing and religions were prevented by worship. Under the others from practicing their provisions of 1948 and faith, and local law 1989 decrees, the enforcement authorities did Government recognizes 15 not protect them. . . . religions; only the clergy Under the provisions of a of these recognized 1948 decree, the religions are eligible to Government recognizes 14 receive state financial religions; only the clergy support. The State of these recognized Secretariat for Religious religions are eligible to Affairs has licensed 385 receive state financial other faiths, organizations, support. . . . The and foundations as Government requires religious associations religious groups to register under two 1924 laws on and establishes the criteria CIRCU v. GONZALES 6523

juridical entities, thereby for registration. In order to entitling them to juridical be recognized as a status as well as to religion, groups must exemptions from income register with the State and customs taxes. Secretariat for Religious However, religious Affairs and present a list associations may not build with the names, age, churches or other buildings identity card numbers, designated as houses of addresses, and signatures worship and are not of their followers. . . . The permitted to perform rites Romanian Orthodox of baptism, marriage or Church has attacked the burial. . . . The Romanian “aggressive proselytism” of Orthodox Church has Protestant and neo- attacked the “aggressive Protestant groups. proselytism” of Protestant and neo-Protestant groups and harassed members of such religious minorities.