Bai (not precedential): BIA Must Consider Its Power To Take Administrative Notice Of New Country Conditions

Bai v. Holder

No. 08-3928

Not Precedential
December 28, 2009

http://www.ca3.uscourts.gov/opinarch/083928np.pdf

Judges Ambro, Chagares, and Aldisert. Per Curiam decision. Overturning the BIA in a case that started with Immigration Judge Margaret R. Reichenberg (but not criticizing IJ Reichenberg's rulings).

The BIA erred in this asylum case by refusing even to analyze whether it should take judicial notice of a country condition report that came out while the case was being appealed. The BIA has the power of taking official or administrative notice. The BIA in this case incorrectly ignored its power to take administrative notice of facts by ruling that it may not consider evidence presented for the first time on appeal. The BIA was wrong -- the BIA has the power to take administrative notice of official documents such as the State Department's country condition reports. Sheriff v. Att'y Gen., No. 08-1645, 2009 WL 4042936, at *6 (3d Cir. Nov. 24, 2009).

Therefore, in any asylum case it makes sense to provide the latest country condition report while your appeal is pending and to ask the BIA to take administrative notice of it.