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United
States Court Of Appeal For The Ninth Circuit
SURENDER JEET SINGH, ü No. 03-71868 Petitioner,
v. ý Agency No. A77-382-015
JOHN ASHCROFT, Attorney General, OPINION Respondent. þ
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 1, 2004—San Francisco, California
Filed December 23, 2004
Before: Betty B. Fletcher, John T. Noonan, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Noonan
17229
COUNSEL
Joseph Siguenza, Ashwani Bhakhri, Burlingame, California,
for the petitioner.
17230 SINGH v. ASHCROFT
Jennifer Levings, Assistant United States Attorney, Washington,
D.C., for the respondent.
OPINION
NOONAN, Circuit Judge:
Surender Jeet Singh petitions for review of the decision by
the Board of Immigration Appeals (the Board), denying him
asylum, withholding of deportation, and relief under the Convention
Against Torture (CAT). Holding that the Board’s
credibility determination cannot be sustained, we remand.
FACTS
Singh, a native of India, was raised as a Sikh and practices
the Sikh religion.
According to his testimony, he was
recruited by an organ of the government of India known as
the Research and Analysis Wing (RAW), situated in the office
of the Prime Minister. Its functions, he testified, were like
those of the CIA. As an agent of the RAW, he made reports
on individuals believed to be Sikhs working to establish the
separate Sikh state of Khalistan. He investigated about three
persons a year over a period of thirteen years. He submitted
postal receipts that he said showed his mailings to the RAW.
He quit when ordered to aid in the assassination of a very religious
person he had investigated. After hiding with friends for
a year, he used his own passport to come to the United States.
He testified that he would be killed if returned to India.
Finding him not credible, the Immigration Judge denied
Singh’s application. Singh appealed. The Board, acting
through a single member, affirmed the decision of the immigration
judge finding him not credible. The Board stated as to
the RAW:
SINGH v. ASHCROFT 17231
. . . the respondent has presented no corroborative
evidence whatsoever of the existence of this Indian
government agency that is similar to the CIA and
operates internationally. Despite the secrecy surrounding
the operations of the CIA and other security
agencies worldwide, it is not difficult to find
evidence of their existence. Yet the respondent
would have the Immigration Judge or the Board
grant asylum based simply on his tale of being an
agent for an organization that spies on and assassinates
religious minorities, perhaps worldwide.
Singh appeals.
ANALYSIS
We
review the Board’s decision. That decision did not
address the possible statutory bar to Singh’s asylum. It
focused on the absence of proof of the existence of the RAW
as necessary corroboration of Singh’s story. The “tale,” the
Board said, lacked corroboration. The Board did not acknowledge
that the RAW existed.
The
RAW does exist. It is under the office of the Prime
Minister of India. It does engage in counterterrorism.
It has been suggested that we cannot take notice of the
RAW’s existence and operations because we are limited in
our review to the administrative record upon which the deportation
order is based and the Attorney General’s findings of
fact. 8 U.S.C. § 1252(b)(4); Fisher v. INS, 79 F.3d 955, 963
(9th Cir. 1996) (en banc) (citing the predecessor statute 8
U.S.C. § 1105a(a)(4)). But it is nonsense to suppose that we
are so cabined and confined that we cannot exercise the ordinary
power of any court to take notice of facts that are beyond
dispute. We can notice that the government of India exists.
We can notice that the office of the Prime Minister of India
17232 SINGH v. ASHCROFT
exists. We can notice that a part of the Prime Minister of
India’s office is the RAW.
[1]
Federal Rule of Evidence 201 permits us to take notice
of any “adjudicative” fact “not subject to reasonable dispute
in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot
be reasonably questioned.” As a matter of course we have
taken judicial notice that Japan has a constitution, a legislature
that creates statutes, and a court system that gives judicial
decisions and operates by means of lawyers. Dulles v. Katamoto,
256 F.2d 545, 547 (9th Cir. 1958); cf. Quinn v. Robinson,
783 F.2d 776, 813 (9th Cir. 1986) (“We do not ignore the
constitutional, legal, and military relationship between
England and Northern Ireland. The ties are so well established,
see generally 1 Europa Year Book 1984, at 991-96; 14
World Book Encyclopedia 403-06b (1985 ed.), that had evidence
of the relationship not been presented to the magistrate,
judicial notice would have been appropriate.”).
[2] The statutory authorization, already broad, has been
interpreted even more extensively in the context of appellate
review of an agency. Under the heading “Judicial Notice is
Expanded in Administrative Proceedings,” the magisterial
textbook of Judge Jack B. Weinstein states:
When a court reviews an administrative determination
to find if it is adequately supported by the
record, the court should use the scope of administrative
notice authorized, rather than its own more narrowly
subscribed notice. The court should place
itself in the same position as the administrative
board.
Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 201.02 [4] (2d ed. 2004) (footnotes omitted).
SINGH v. ASHCROFT 17233
Every case “involves the use of hundreds or thousands of
non-evidence facts.” Fed. R. Evid. 201 advisory committee’s
note (proposed draft 1972) (paraphrasing Kenneth Culp
Davis, “A System of Judicial Notice Based on Fairness and
Convenience,” in Perspectives of Law 69, 72-73 (Roscoe
Pound et al., 1964)). Administrative cases and the review of
administrative decisions are no exception to this universal
truth. An agency or an appeals court could not function if ithad to depend on proof in the record of facts “capable of
accurate and ready determination by resort to sources whose
accuracy cannot be reasonably questioned.” Fed. R. Evid.
201(b).
The
language of the statute speaking of the administrative
record must be interpreted in the context of the Federal Rules
of Evidence, the general practice of administrative review,
Dulles and the common practice of the courts. The language
in Fisher repeats the statutory language and does not enhance
its range. Its thrust is to exclude from our consideration the
kind of facts contained in the country reports of the State
Department unless the reports have been introduced into the
record. See Fisher, 79 F.3d at 963 (citing cases and overruling
some cases and parts of other cases that took judicial notice
of country conditions reports).
[3]
The existence and operations of the RAW are readily
known by the employment of an accessory tool as familiar in
legal research today as Shephard’s Citations were half a century
ago. A simple Lexis search reveals over 1,500 articles on
the RAW from reputable international media sources including
the BBC. Its situation in the office of the Prime Minister
is a matter of common knowledge. See Ejaz Akran, A Comparison
of the Structures and Functions of Intelligence Organizations
in Israel and India, 23 Journal of South Asian and
Middle Eastern Studies 59, 70 (Spring 2000). As early as
1987, the New York Times, reporting on the Indian Army’s
unsuccessful incursion into Sri Lanka, ended its report from
New Delhi: “Military analysts here say the main failure was
17234 SINGH v. ASHCROFT
that of the Research and Analysis Wing, India’s intelligence
agency.” Steven R. Weisman, Toll in Sri Lanka Shakes India
Aides, N.Y. Times, Nov. 1, 1987, Sec. 1 at 4. Even the Encyclopedia
Britannica acknowledges the existence of the RAW:
“India’s most important intelligence agency is a civilian service,
the Research and Analysis Wing (“RAW”). The RAW’s
operations are primarily aimed at the Indian subcontinent,
though it also has directed efforts in the United States aimed
at influencing that government’s foreign policy.” 21 Encyclopaedia
Britannica 787 (15th ed. 2003).
A
former member of the Cabinet Secretariat and of the
National Security Advisory Board of India, Bahukutumbi
Raman, has testified at length to Congress on terrorism to
which India has been subjected from 1956 to the present and
the measures taken by India against it. Raman’s biographical
data, submitted to Congress, identified him as moving from
the Indian Police Service in 1984 to a permanent post in the
Cabinet Secretariat and as serving from 1988 to 1994 as “head
of the Counter-terrorism division of the Research & Analysis
Wing (R&AW), India’s external intelligence agency.” The
Challenge of Terrorism in Asia and the Pacific: Joint Hearing
Before the Committee on International Relations, 108th Cong. 21 (2003) (statement submitted by Bahukutumbi Raman).
[4] If this case had involved an agent’s claimed membership
in an agency more well-known in the United States, such
as Interpol or the KGB, the IJ or BIA would not have required
evidence of their existence. The issue simply would not have
arisen because the IJ or BIA would have unconsciously taken
notice of the fact of those agencies’ existence. Judicial notice
is appropriate in exactly this circumstance — to ensure that
administrative or judicial ignorance is not insulated from
review through hyper-technical application of the general rule
that the court can consider only evidence considered by the
Board. Fisher, 79 F.3d at 964.
SINGH v. ASHCROFT 17235
[5] We are compelled to reverse an adverse credibility finding
by the Board whose centerpiece is lack of evidence of the
existence of the RAW.
Petition GRANTED. The case is REMANDED to the
Board
17
October, 2007
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