Pursuant to Federal Rule of Appellate Procedure 43 c 2 , Attorney General Alberto… v. Gonzales UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 -------- 3 August…

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Alberto R. Gonzales is automatically substituted
for former Attorney General John Ashcroft as respondent in this
case.
03-40395-ag, 05-1058-ag
Burger v. Gonzales
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
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August Term, 2006 4
5
(Argued: June 11, 2007 Decided: August 17, 2007) 6
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Docket Nos. 03-40395-ag(L), 05-1058-ag(CON) 8
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SANJA BURGER and MILICA SAVIC, minor child A74-850-657, 10
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Petitioners, 13
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- v. - 15
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ALBERTO R. GONZALES,* ATTORNEY GENERAL, 18
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Respondent. 20
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Before: McLAUGHLIN, CALABRESI, SOTOMAYOR, Circuit Judges. 25

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2
Petition for review of an order of the Board of Immigration 1
Appeals revoking an Immigration Judge’s (“IJ”) grant of asylum to 2
Sanja Burger and Milica Savic. 3
Petition for review GRANTED. 4
MICHAEL P. DIRAIMONDO, DiRaimondo & 5
Masi LLP, Melville, N.Y. (Marialaina 6
L. Masi, Mary Elizabeth Delli-Pizzi, 7
Stacy A. Huber, on the brief), for 8
Petitioners. 9
10
SCOTT REMPELL, Trial Attorney, Office 11
of Immigration Litigation, United 12
States Department of Justice, 13
Washington, D.C. (Anne M. Hayes; 14
Jennifer May-Parker, on the brief), 15
for Respondent. 16
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McLAUGHLIN, Circuit Judge: 20
This Court recently held that if the Board of Immigration 21
Appeals (“BIA”) intends to take administrative notice of 22
potentially dispositive facts, it must warn a petitioner and 23
provide the petitioner with an opportunity to respond before it 24
denies a motion to reopen on the basis of those facts. See Chhetry 25
v. U.S. Dep’t of Justice, 490 F.3d 196, 201 (2d Cir. 2007)(per 26
curiam). The Court declined to resolve the related question 27
whether due process requires this same result before the BIA enters 28
a final order of removal on the basis of administratively noticed 29
facts. We now address this question and hold that it does. 30
BACKGROUND 31
In June 1996, petitioners Sanja Burger and her daughter, 32

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3
Milica Savic, entered the U.S. as non-immigrant visitors and 1
remained without authorization. At her removal hearing four years 2
later, Burger, a native of the former Yugoslavia and a citizen of 3
Serbia-Montenegro, conceded removability but sought asylum, 4
withholding of removal, and relief under the Convention Against 5
Torture (“CAT”). Burger testified to the following facts. 6
From 1989 to 1991, Burger was a widely-recognized stage and 7
screen actress in the former Yugoslavia. Because of her celebrity, 8
Burger was regularly contacted by people whom then-President 9
Slobodan Milosevic had placed in prominent positions in theater and 10
television. These people pressured her to show support publicly 11
for Milosevic by attending various political events. Burger 12
refused to do so. 13
In June 1991, Burger was contacted by a man named Arkan, who 14
was introduced to her as a businessman. Burger revealed her strong 15
anti-Milosevic political views to Arkan. To her chagrin, she later 16
learned that Arkan was a major organized crime figure and was 17
working for Milosevic while maintaining a paramilitary group that 18
had committed genocidal acts in Croatia, Bosnia, and Kosovo. 19
Burger testified that Arkan had recently been murdered in the 20
middle of the day in a Belgrade hotel lobby. 21
In October 1991, Burger fled Yugoslavia for Munich, where she 22
remained for five years before coming to the U.S. Burger insisted 23
that if she returned to Yugoslavia, she would be targeted as both a 24
spy and a traitor, and because of her status as a famous actress 25

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would be singled out and forced to support Milosevic. 1
In an oral decision, an Immigration Judge (“IJ”) granted 2
Burger’s application for asylum, expressly finding that she had 3
demonstrated a well-founded fear of persecution were she to return 4
to Serbia-Montenegro. The IJ saw no need to address Burger’s 5
requests for withholding of removal and CAT relief. 6
In July 2003, the BIA reversed the IJ’s grant of asylum and 7
ordered Burger removed. The BIA took administrative notice of 8
changed country conditions, to wit, that following the IJ’s 9
decision, Milosevic was removed from power and faced trial for 10
crimes against humanity in the International Criminal Tribunal for 11
the former Yugoslavia in the Hague. The BIA concluded that because 12
the Milosevic government no longer existed and Burger’s claims 13
rested on her anti-Milosevic views, Burger no longer had a well- 14
founded fear of persecution. The BIA did not give Burger notice of 15
its intent to take administrative notice and it provided no 16
opportunity to rebut the BIA’s conclusion before issuing its 17
decision. The BIA did not address Burger’s withholding of removal 18
and CAT claims. 19
Three months later, Burger moved to reopen. She furnished an 20
affidavit from an expert in 20th century Western Balkan affairs and 21
professor of history. The affidavit stated that Serbia-Montenegro 22
was currently a “semi-mafioso” state with power shared among the 23
old Milosevic structure, the new government structure, and 24
organized crime. 25

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The BIA denied Burger’s motion to reopen. It found that while 1
“political and economic problems do exist in Serbia and 2
Montenegro,” Burger had failed to establish that she had a well- 3
founded fear of persecution if she went back to Serbia-Montenegro. 4
Burger now petitions this Court for review of the BIA’s 5
decision. 6
For the reasons that follow, we grant the petition for review, 7
vacate the BIA’s decision to revoke Burger’s asylum grant, and 8
remand to the BIA. 9
DISCUSSION 10
Burger argues: (1) that the BIA’s taking of administrative 11
notice constituted improper fact-finding; and (2) that the BIA 12
denied her due process by failing to warn her of its intention to 13
take administrative notice. While the first argument is meritless, 14
the second requires remand. 15
A. Fact-finding 16
We consider questions of law de novo. Secaida-Rosales v. INS, 17
331 F.3d 297, 307 (2d Cir. 2003). 18
The BIA generally may not engage in fact-finding in the course 19
of deciding appeals. See 8 C.F.R. § 1003.1(d)(3)(iv). However, 20
“[i]t is well-settled that the BIA has the authority to take 21
administrative notice of current events bearing on an [asylum] 22
applicant’s well-founded fear of persecution.” Yang v. McElroy, 23
277 F.3d 158, 163 n.4 (2d Cir. 2002). As with judicial notice, the 24
common law counterpart of administrative notice, properly noticed 25

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current events must be “commonly known.” See 8 C.F.R. § 1
1003.1(d)(3)(iv); cf. Fed. R. Evid. 201(b) (“A judicially noticed 2
fact must be one not subject to reasonable dispute in that it is 3
either (1) generally known . . . or (2) capable of accurate and 4
ready determination by resort to sources whose accuracy cannot 5
reasonably be questioned.”). 6
Here, the ouster and subsequent trial of Milosevic were 7
commonly known facts whose accuracy Burger herself has not 8
disputed. These facts fall squarely within the definition of 9
“current events bearing on an [asylum] applicant’s well-founded 10
fear of persecution.” Yang, 277 F.3d at 163 n.4. Thus, the BIA 11
did not engage in improper fact-finding. 12
B. Due Process 13
Aliens, of course, are entitled to due process. Zadvydas v. 14
Davis, 533 U.S. 678, 693 (2001). They must be afforded “the 15
opportunity to be heard ‘at a meaningful time and in a meaningful 16
manner,’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting 17
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 18
To establish a violation of due process, an alien must show 19
“that she was denied a full and fair opportunity to present her 20
claims” or “that the IJ or BIA otherwise deprived her of 21
fundamental fairness.” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 22
F.3d 144, 155 (2d Cir. 2006), reh’g granted, vacated on other 23
grounds by Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d 24
Cir. 2006). Critically, an asylum applicant “must be given notice 25

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of, and an effective chance to respond to, potentially dispositive, 1
administratively noticed facts.” Chhetry, 490 F.3d at 200. 2
The Government does not dispute that the noticed facts were 3
dispositive of Burger’s claim, and it concedes that the BIA failed 4
to warn Burger that it would take notice. Rather, the Government 5
contends that Burger’s motion to reopen gave her a full and fair 6
opportunity to present her claim and thus cured the lack of advance 7
notice. The circuits are divided. 8
The Fifth, Seventh, and D.C. Circuits have held that a motion 9
to reopen suffices to satisfy due process in this context. See 10
Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C. Cir. 1992) (“The 11
availability of the petition to reopen secures [petitioner’s] due 12
process right to a meaningful hearing.”); Rivera-Cruz v. INS, 948 13
F.2d 962, 968 (5th Cir. 1991) (same); Kaczmarczyk v. INS, 933 F.2d 14
588, 597 (7th Cir. 1991) (same). 15
The Ninth and Tenth Circuits, however, have held that due 16
process requires that the BIA provide applicants with notice and an 17
opportunity to be heard before the BIA determines on the basis of 18
administratively noticed facts that a petitioner lacks a well- 19
founded fear of persecution. See Getachew v. INS, 25 F.3d 841, 846 20
(9th Cir. 1994) (advance notice and opportunity to respond required 21
when BIA determines, on the basis of administrative notice, whether 22
an “election has vitiated any previously well-founded fear of 23
persecution”); de la Llana-Castellon v. INS, 16 F.3d 1093, 1100 24
(10th Cir. 1994) (availability of motion to reopen did not satisfy 25

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due process where BIA reversed IJ’s finding that petitioners had a 1
well-founded fear of persecution based solely on administratively 2
noticed facts). 3
As the Ninth and Tenth Circuits have noted, the reopening 4
procedure has serious limitations as a guaranty of due process. 5
See, e.g., de la Llana-Castellon, 16 F.3d at 1100; Castillo- 6
Villagra v. INS, 972 F.2d 1017, 1029-30 (9th Cir. 1992). The BIA’s 7
decision to grant a motion to reopen is purely discretionary. 8
8 C.F.R. § 1003.2(a). Moreover, because the filing of a motion to 9
reopen does not automatically stay the execution of an order of 10
removal, id. § 1003.2(f), the applicant’s due process rights depend 11
entirely on the BIA’s good faith. Cf. Kaczmarczyk, 933 F.2d at 597 12
n.9 (“We presume that when an asylum applicant uses a good faith 13
motion to reopen to dispute officially noticed facts, the Board 14
will exercise its discretion to stay the execution of its decision 15
until it has had an opportunity to rule on the applicant’s 16
motion.”). 17
These deficiencies become more acute in cases where 18
administratively noticed facts are the sole basis for the BIA’s 19
reversal of an IJ’s grant of asylum. See de la Llana-Castellon, 16 20
F.3d at 1099 (“Because the administratively noticed facts 21
constituted the sole evidence upon which the BIA relied to 22
establish changed circumstances, advance notice and an opportunity 23
to be heard on the significance of the political changes in 24
Nicaragua was all the more crucial.”). 25

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Here, administratively noticed facts constituted the sole 1
basis of the BIA’s determination that Burger no longer harbored a 2
well-founded fear of persecution. The BIA’s conclusion rested 3
foursquare on an assessment of conditions in the post-Milosevic 4
world. Under these circumstances, it cannot be said that Burger’s 5
motion to reopen protected her right to be heard “at a meaningful 6
time and in a meaningful manner.” Mathews, 424 U.S. at 333. Thus, 7
while the dismantling of the Milosevic regime may have been a 8
commonly known current event, the BIA erred by failing to give 9
Burger advance notice of its intention to consider this extra- 10
record fact. Moreover, the BIA erred in depriving Burger of the 11
opportunity to rebut this fact’s significance before issuing its 12
decision. The removal of a persecuting despot might vitiate an 13
asylum applicant’s well-founded fear of persecution, but in many 14
cases lingering elements of a despot’s regime may still pose a 15
threat to an applicant’s life and safety. See Getachew, 25 F.3d at 16
846 (observing that individualized consideration of the relevance 17
of administratively noticed facts is required to determine “whether 18
a particular group remains in power after an election, and whether 19
the election has vitiated any previously well-founded fear of 20
persecution”). In this case, Burger presented to the BIA evidence 21
that remnants of the Milosevic regime were still in power and 22
threatened to persecute her were she returned to Serbia-Montenegro. 23
The BIA’s failure to consider this evidence was error. 24
Because we find that the BIA erred in these respects, we need 25

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not decide whether the BIA abused its discretion in denying 1
Burger’s motion to reopen. 2
Finally, the BIA did not consider Burger’s withholding of 3
removal or CAT claims because the IJ never ruled on these claims in 4
the first instance. On remand, the fate of Burger’s withholding 5
claim will depend on her asylum claim, as an applicant who fails to 6
qualify for asylum necessarily fails to qualify for withholding of 7
removal. See Hoxhallari v. Gonzales, 468 F.3d 179, 184 (2d Cir. 8
2006). However, because “asylum and CAT claims warrant[] 9
individualized treatment,” Ramsameachire v. Ashcroft, 357 F.3d 169, 10
186 (2d Cir. 2004) (internal quotation marks omitted), Burger’s CAT 11
claim will require separate consideration below. 12
CONCLUSION 13
For the foregoing reasons, we GRANT the petition for review, 14
VACATE the BIA’s reversal of the IJ’s decision, and REMAND the case 15
for further proceedings consistent with this opinion, including 16
further factfinding before the IJ if appropriate. Burger’s pending 17
motion for a stay of removal is DENIED as moot. 18

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