The process of considering something in evidence when it is not introduced in evidence is called "judicial notice" or "administrative notice." It is governed by Federal Rule of Evidence 201 in cases where the federal rules of evidence apply.
Certainly, such a report is not part of the trial court or first instance tribunal's record if the court does not consider it. But, appellate courts may sometimes take judicial notice of points that are not in the trial court record.
Generally speaking, a court will not take judicial notice of a state department human rights report, although it is not a hard and fast rule.
The Department of Justice guidance on taking administrative notice in immigration hearings can be found here. It states in the context of immigration hearings that:
a. A case before an administrative agency, unlike one before a court,
is rarely an isolated phenomenon, but is rather merely one unit in a
mass of related cases which often involve fact questions that have
been frequently explored by the same tribunal. The tribunal learns
from its cases. Castillo-Villagra v. INS, 972 F.2d 1017, 1026 (9th
Cir. 1992).
b. “The broader notice available in immigration hearings may, if
properly used, facilitate more genuine hearings, as opposed to
‘hearings’ in which the finder of fact hears, but cannot, because of
repetition, listen.” Castillo-Villagra v. INS, 972 F.2d 1017, 1027
(9th Cir. 1992). Because of the quantity of similar cases before an
agency such as EOIR, if notice is not taken more broadly in
immigration hearings, litigants may have an uphill battle maintaining
the attention of the immigration judges. Id. Hearings may degenerate
into an empty form if the adjudicators cannot focus attention upon
what is noteworthy about the particular case. Id.
- The Ninth Circuit has thus adopted a “rule of convenience” with respect to the taking of administrative notice: the immigration judge
at the hearing should take notice of adjudicative facts whenever the
an immigration judge “knows of information that will be useful in
making the decision.” Castillo-Villagra v. INS, 972 F.2d 1017, 1027
(9th Cir. 1992) (quoting Banks v. Schweiker, 645 F.2d 637 (9th Cir.
1981)).
a. The Ninth Circuit has pointed out a number of factors which govern
the appropriateness of notice of particular facts. They include
whether the facts at issue are: (1) narrow and specific or broad and
general; (2) central or peripheral; (3) readily accepted or
controversial; (4) purely factual or mixed with judgment, policy or
political preference; (5) readily provable or provable only with
difficulty or not at all; or (6) facts about the parties or unrelated
to them. Castillo-Villagra v. INS, 972 F.2d 1017, 1027 n.5 (9th Cir.
1992). An IJ’s determination whether to take administrative notice is
reviewed for abuse of discretion. Id.
- It is important to bear in mind that notice, even when taken, has no other effect than to relieve one of the parties to a controversy of
the burden or resorting to the usual forms of evidence. The fact that
an immigration judge has taken notice of a fact does not mean that the
opponent is prevented from disputing the matter by evidence.
C. Warning to the Parties and Opportunity to Offer Rebuttal Evidence
While the “rule of convenience” provides that an immigration judge is not limited to considering extra-record adjudicative facts that are
“not subject to reasonable dispute,” see Fed. R. of Evid. 201, an
“essential concomitant” of the informality permitted by the rule of
convenience is the requirement that immigrants in deportation
proceedings receive notice and an opportunity to respond to the extra
record facts the judge intends to consider. Getachew v. INS, 25 F.3d
841, 845 (9th Cir. 1994) (“Corollary to the right to a hearing before
deportation is the right to a deportation decision based on the record
created during and before the hearing. Therefore, due process requires
the [immigration judge] to refrain from taking administrative notice
of facts not in the record unless the procedures it follows are fair
under the circumstances.”).
The majority of case law in this area concerns administrative notice of “changed circumstances.” In these cases a change of
government in an asylum seeker’s home country from one hostile to one
tolerant of the applicant’s political views after the applicant’s
asylum hearing but prior to issuance of the immigration judge’s
decision. See, e.g., Circu v. Gonzales, 450 F.3d 990 (9th Cir.
2005).
a. An immigration judge need not notify applicants before taking
administrative notice of events that occurred before the hearing,
provided that the applicants are allowed an opportunity to argue that
their fear of persecution remained well-founded. Acewicz v. INS, 984
F.2d 1056, 1061 (9th Cir. 1993). Due process is satisfied by allowing
the applicant an opportunity to rebut the noticed fact at his removal
hearing.
b. By contrast, an Immigration Judge must at least warn the asylum
applicant before taking notice of significant events that occurred
after the deportation hearing. Castillo-Villagra v. INS, 972 F.2d
1017, 1029 (9th Cir. 1992).
i. A warning is all that is required where the facts in question are
legislative, indisputable and general.” See Getachew v. INS, 25 F.3d
841, 846 (9th Cir. 1994). An example of such a fact would be which
party has won an election in the immigrant’s home country. Id. ii
Other more controversial or individualized facts require both notice
to the applicant and an opportunity to rebut the extra-record facts or
to show cause why administrative notice should not be taken of those
facts. See Getachew v. INS, 25 F.3d 841, 846 (9th Cir. 1994). An
example of such a fact would be whether a particular group remains in
power after an election. Id.
Relying on this precedent outside the 9th Circuit maybe unwise. And, even in the 9th Circuit, one must generally ask a court to take judicial notice rather than simply requesting that judicial notice be taken for the first time on appeal.
Better practice, by far, is to introduce a federal government report into the evidentiary record at a hearing, if one is held, or in motion practice, to support a motion with the report as an exhibit with an authenticity establishing affidavit, rather than relying on consideration of the contents via judicial notice at the appellate level for the first time.
Of course, if you didn't get it into the hearing record, it doesn't hurt to ask the appellate court to take judicial notice of it, even knowing that you may not be successful in doing so. Buttressing a state department report with mass media and almanac citations can also improve your odds of having a fact being treated as something subject to judicial notice since it is so widely and indisputably understood to be true.
