The reports are lengthy, ranging between ca. 20-70 pages for a particular country, and the greatest use of it is to draw an inference from the admissive assertion relative generally to torture and asylum-protected persecution tendencies to establish an objectively and generally reasonable fear if personal conditions are met.

Most of the statements are made in a spirit of good diplomatic relations, and therefore include plenty of conclusory assertions of law and unwarranted inferences which are easily refuted including by specific facts included in the specific issue of the report.

However, to establish the tendency, one must rely on several one spanning in a decades order of magnitude. That means hundreds of pages without citing other independent reports that are much less tacit and more specific, and that is yet still merely the general country conditions potentially running into a practicality based administrative suspension for the inconvenience of the court to review them.

On the other hand, if they are not cited, it is arguable whether or not they, and each line of them, would be deemed part of the record for the purposes of appeals to the BIA, and subsequently to the jurisdictional federal circuit court.

Is there any case law that provides that specifically these reports are part of the record?

Or do respondents have to basically request administrative notice (for lack of a better term for the equivalent of judicial notice) of each fact or law as in a judicial court?

The closest I got is:

"a State Department report on country conditions, standing alone, is not sufficient to rebut the presumption of future persecution when a petitioner has established past persecution." Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1074 (9th Cir. 2004) (quoting Molina-Estrada v. INS, 293 F.3d 1089, 1096(9th Cir,2002)). Such reports are often "the most appropriate and perhaps the best resource for information on political situations in foreign nations." Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008)

1 Answer 1


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.

  1. 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.

  1. 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

  1. 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.”).

  2. 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.

  • I'm curious, I was trying to see what those almanac citations look like, but can't find a good online source, is there any?
    – kisspuska
    Aug 24, 2022 at 3:19
  • 1
    @kisspuska I use a hard copy of the Wold Almanac, although there are several others. It recaps, for example, the history of each country and historical facts that basic are likely to be suitable for taking judicial notice of.
    – ohwilleke
    Aug 24, 2022 at 5:08
  • Thank you for that!
    – kisspuska
    Aug 24, 2022 at 6:44
  • 1
    Of course I mean the World Almanac, but can't correct the spelling now. amazon.com/World-Almanac-Book-Facts-2022/dp/1510766537/…
    – ohwilleke
    Aug 24, 2022 at 6:48

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