Herbert Edmundo Gomez-Vigil and Silvia Auxiladora Hernandez De Gomez v. Immigration and Naturalization Service

In Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.1992), a Nicaraguan national *1112 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…

concurring:

I join in the panel’s opinion only because I am obligated to follow the panel opinion in Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.1992).

I write separately to make clear that I believe that the Due Process question in Castillo-Villagra is one of exceptional importance and that the panel’s decision is in tension with or squarely conflicts with decisions of eight other courts of appeals, representing every other court that has considered this issue. I believe that, as a matter of procedure, the decision runs counter to the Federal Rules of Evidence and that, as a matter of constitutional law, the question was wrongly decided.

Reduced to its essence, Castillo-Villa-gra holds that prior notification to the petitioners that the Board was taking administrative notice of a government change in Nicaragua was an absolute — an absolute mandated by the Constitution — and that the Board’s failure to give prior notification violated the Due Process Clause. This draconian extension of orthodox Due Process teachings stemmed from the view that the Board’s discretionary power to grant or deny a stay of deportation affords the petitioners no protection from deportation…

concurring:

I concur in the panel’s per curiam opinion. I write separately to make clear that, in my view, the opinion on which we rely in the per curiam is neither constitutionally dubious nor jurisprudentially unprincipled as Judge Aldisert’s concurrence suggests. In Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.1992), speaking for our court, a unanimous panel provided sound analysis and appropriate direction to the INS that our circuit has followed in a large number of subsequent cases, published and unpublished. Relying on Supreme Court precedent and principles of due process, Castillo-Villagra analyzed the BIA’s use of administrative notice-taking in the context of asylum and withholding of deportation requests advanced by three Nicaraguan nationals. Far from issuing “imperial” statements of constitutional law, it set forth a flexible means of analyzing different categories of notice-taking. Wrongly charged with “inventing” a new meaning for due process, it clearly articulated the due process deprivation suffered by petitioners when notice-taking became a device for “assuming away” their case.

*1123 A. The Due Process Deprivation

The Castillo-Villagra court set forth…

990 F.2d 1111 Herbert Edmundo GOMEZ-VIGIL and Silvia Auxiladora Hernandez de Gomez, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 91-70004. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 14, 1993. Decided March 26, 1993. Walter Rafael Pineda, San Francisco, CA, for petitioners. Stewart Deutsch, U.S. Dept. of Justice, Washington, DC, for respondent. Petition to Review a Decision of the Immigration and Naturalization Service. Before: ALDISERT, * GOODWIN, and FLETCHER, Circuit Judges. PER CURIAM: 1 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…