## Facts

- Violeta Circu, a Romanian Pentecostal Christian, entered the United States in 1994 as a visitor and overstayed her authorized period.
- The government charged her as removable for overstaying; she conceded removability and sought asylum and related relief based on alleged religious persecution in Romania.
- At the merits hearing, the immigration judge (IJ) admitted the 1997 Romania Country Report on Human Rights Practices and a 1997 State Department profile addressing asylum claims and conditions in Romania.
- After the hearing concluded, and without notifying Circu, the IJ took administrative notice of a later-issued 1999 Romania Country Report that was not part of the record.
- The IJ relied on the 1999 report’s description of improved conditions (including that open worship was possible and harassment was only occasional) to deny asylum, concluding Circu lacked a well-founded fear of future persecution.
- Circu had no opportunity to review, contest, or contextualize the 1999 report before the IJ issued the decision.
- The Board of Immigration Appeals (BIA) summarily affirmed and denied Circu an opportunity to respond to the 1999 report.

## Issues

1. Whether due process permits an IJ to deny asylum based on administrative notice of an extra-record, later-issued country report without giving the applicant notice and an opportunity to rebut.
2. Whether the BIA cures that due process violation by summarily affirming without providing a meaningful opportunity to respond.
3. Whether the lack of notice and rebuttal opportunity was prejudicial where the extra-record report was used dispositively to reject fear of future persecution.

## Decision

- The Ninth Circuit granted the petition for review.
- The court held that the IJ violated procedural due process by relying on extra-record facts from the 1999 country report without prior notice and an opportunity to rebut.
- The court held the BIA did not cure the violation because it affirmed without affording Circu a meaningful chance to respond to the noticed material.
- The court found prejudice because the IJ used the 1999 report as a central basis for denying asylum.
- The court vacated the agency decision and remanded for further proceedings consistent with due process requirements.

## Legal Principles

- Due process in removal proceedings requires notice and a meaningful opportunity to be heard before extra-record facts taken by administrative notice are used against an applicant.
- An IJ or the BIA may take administrative notice of changed country conditions, including later-issued State Department reports, but must provide (1) notice that administrative notice will be taken and (2) an opportunity to rebut or explain the noticed facts when they are relied upon to decide the case.
- A due process error is prejudicial when there is a reasonable likelihood the outcome may have been different had the applicant been allowed to respond to the extra-record material.
- The BIA must correct a due process defect related to extra-record administrative notice if it relies on, or allows reliance on, that material; summary affirmance without a chance to respond is insufficient.

## Conclusion

The court required that when immigration adjudicators rely on extra-record country-condition evidence taken by administrative notice to deny asylum, they must first provide the applicant notice and an opportunity to rebut, and a BIA summary affirmance does not remedy the absence of those procedures.


Circu v. Gonzales, 450 F.3d 990 (9th Cir. 2006) (en banc)