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                           United States Court of Appeals
                                    Tenth Circuit
                                     APR 6 2001
                                   PATRICK FISHER
                           UNITED STATES COURT OF APPEALS
                                   TENTH CIRCUIT
                                          No. 99-9541
         RYSZARD KOWALCZYK,               
                          PETITION FOR REVIEW OF AN ORDER
                                 (No. A28 464 269)
         John S. Castellano, Holland & Hart LLP, Denver, Colorado, for the petitioner.
         Anthony C. Payne, Attorney, Office of Immigration Litigation (David V. Bernal, 
         Assistant Director, Office of Immigration Litigation; Kristin A. Cabral, Attorney, 
         Office of Immigration Litigation, with him on the brief), Washington, D.C., for 
         the respondent.

         Before SEYMOUR, McKAY and LUCERO, Circuit Judges.

         LUCERO, Circuit Judge.

              Petitioner Ryszard Kowalczyk appeals from a final order of exclusion 

         entered by the Board of Immigration Appeals ("BIA") denying his request for 

         asylum and withholding of deportation under the Immigration and Nationality Act 

         ("INA"), see 8 U.S.C. . 1158(a).  The BIA filed the order on October 18, 1999, 

         affirming the decision of an immigration judge ("IJ") entered almost ten years 

         before on February 14, 1990.  Exercising jurisdiction pursuant to 8 U.S.C. 

         . 1105a(a) (1994),(1) we reverse the decision of the BIA, vacate its order, and 

         remand for further proceedings.


              At the age of thirty-two, Kowalczyk came to the United States to join the 

         crew of a fishing vessel run by his employer, a state-owned Polish fishing 

         company.  He arrived in Anchorage, Alaska, on August 15, 1989 and, along with 

         eight others, informed immigration authorities that he wished to apply for asylum.(2)  
		 Petitioner was immediately placed in exclusion proceedings and taken 

         to Denver, Colorado, for detention and hearings.(3)

              During his asylum proceedings, Kowalczyk alleged he had been beaten by 

         the Polish secret police and the militia for his membership and participation in the 

         activities of the labor union Solidarity.  He further alleged that because of his 

         membership in Solidarity he was the target of repeated surprise searches for a 

         period of five years.  He described one incident in 1989 when he and his son were 

         detained by the militia because he was carrying a bag with the Solidarity logo. 

         He was interrogated for hours and beaten in front of his son.  After the incident, 

         he claims his son wet his pants every time he saw a Polish soldier and had 

         nightmares.  Petitioner further alleged that the 1989 incident caused him to join 

         Fighting Solidarity, an uncompromisingly anti-Communist organization.

              When offered the opportunity to travel to the U.S. as part of his job, 

         petitioner seized it, and before he left he posted a letter to the local militia 

         criticizing them for their brutality.  When the government learned of petitioner's 

         defection, they attacked his defection (as well as those of the other eight sailors 

         who defected) on television and called his wife to inform her to expect

         (1)       Our review under 8 U.S.C.  1105a(a) (1994) is modified by the 
         transitional rules for judicial review contained in section 309(c)(4) of the 
         Omnibus Consolidated Appropriations Act of 1997 (see Illegal Immigration 
         Reform and Immigrant Responsibility Act of 1996), Pub. L. 104-208, 110 Stat. 
         3009 (Sept. 30, 1996), as amended by the Extension of Stay in the United States 
         for Nurses Act, Pub. L. 104-302,  2, 110 Stat. 3656 (Oct. 11, 1996), and the 
         Nicaraguan Adjustment and Central American Relief Act, Pub. L. 105-100,  
         202, 111 Stat. 2193 (Nov. 19, 1997)).
         (2)       Five of the nine sailors requested asylum before entering the United 
         States.  The other four, including Kowalczyk, requested asylum after entering.
         (3)       Petitioner subsequently was released from detention and remains free.
         disciplinary proceedings against him.  Shortly after petitioner defected, Solidarity 

         became part of the Polish coalition government.

              In proceedings that began in September 1989 and concluded in February 

         1990, an IJ heard and denied petitioner's application for asylum and withholding 

         of deportation.  The IJ found Kowalczyk's claim of past persecution failed and 

         denied his claim of a well-founded fear of persecution.  Kowalczyk filed a timely 

         notice of appeal to the BIA in March 1990.

              More than nine years after Kowalczyk filed his notice of appeal and many 

         years after the appeals of his co-workers who defected at the same time were 

         decided, see, e.g., Kapcia v. INS, 944 F.2d 702 (10th Cir. 1991) (affirming the 

         BIA's decision regarding Kapcia and Saulo, who applied for asylum at the same 

         time as Kowalczyk), on October 18, 1999, the BIA finally denied Kowalczyk's 

         application for asylum and withholding of deportation and dismissed his appeal. 

         The BIA reviewed the record de novo and found, as had the IJ, that petitioner 

         failed to establish a well-founded fear of persecution and that he failed to 

         demonstrate any past persecution so severe that repatriation would be inhumane. 

         Integral to its decision was the fact, administratively noticed, that Poland has 

         transitioned "from a communist state to a functioning, multiparty democracy."  In 

         re Kowalczyk, File A28 464 269, slip decision at 3 (BIA Oct. 18, 1999) 

         (unpublished).   "Given these sweeping political changes and the fact that the
         communists no longer control Poland, . . . the applicant's fears of being 

         persecuted by Polish governmental authorities on account of his support for 

         Solidarity and Fighting Solidarity, and his opposition to the communists, are not 

         well founded."  Id. at 4.

              In his appeal to this Court, Kowalczyk raises four issues.  He argues that 

         the BIA violated his Fifth Amendment right to due process by taking 

         administrative notice of political changes in Poland and by relying on those facts 

         to deny his application without giving him an opportunity to respond.  Second, he 

         asserts that the government should be equitably estopped from denying his 

         application because the more than nine years it took for the BIA to render a 

         decision constituted affirmative misconduct.  He also claims his right to a fair 

         hearing was violated by the IJ's refusal to consider evidence entered at the asylum 

         hearings.  And finally, Kowalczyk argues that he is statutorily eligible for asylum.


                             A.  Administrative Notice

              We first address Kowalczyk's argument that in taking administrative notice 

         of the purported changes in the Polish government without affording him an 

         opportunity to respond, the BIA violated his Fifth Amendment right to due 

         process.  It is well established that "even those charged with entering the country 

         illegally, are entitled to due process when threatened with deportation."  Llana-

         Castellon v. INS, 16 F.3d 1093, 1096 (10th Cir. 1994) (citing cases).  "The 

         fundamental requirement of due process is the opportunity to be heard at a 

         meaningful time and in a meaningful manner."  Mathews v. Eldridge, 424 U.S. 

         319, 333 (1976) (internal quotations and citations omitted).

              This is not the first time we have considered the constitutionality of taking 

         administrative notice of facts during immigration proceedings, see Llana-

         Castellon, 16 F.3d at 10961101; Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 

         1992), nor is it the first time we have considered the constitutionality of taking 

         administrative notice of the changes that occurred in the Polish government in 

         1990 and beyond.  See Kapcia, 944 F.2d at 70506.  In accordance with our sister 

         circuits, we have held that the BIA may take administrative notice of commonly 

         acknowledged facts, which may include "current events bearing on an applicant's 

         well-founded fear of persecution."  Kapcia, 944 F.2d at 705 (quoting 

         Kaczmarczyk v. INS, 933 F.2d 588, 59394 (7th Cir. 1991)); see also 

         Gebremichael v. INS, 10 F.3d 28, 37 (1st Cir. 1993) (collecting cases). 

         Specifically, in Kapcia we concluded that because "Solidarity is [now] a part of 

         the Polish coalition government, the [BIA] properly took notice of this fact and 

         reasonably inferred that, generally speaking, Solidarity members will not be 

         persecuted."  Kapcia, 944 F.2d at 706 (agreeing with the Seventh Circuit's
		  conclusions in Kubon v. INS, 913 F.2d 386, 388 (7th Cir. 1990), and 

         Kaczmarczyk, 933 F.2d at 594).

              However, "simply because we have approved of [taking administrative 

         notice] in one context does not mean that it is appropriate in all.  An agency's 

         discretion to take administrative notice depends on the particular case before it." 

         Llana-Castellon, 16 F.3d at 1097; see also Castillo-Villagra v. INS, 972 F.2d 

         1017, 1027 (9th Cir. 1992) ("[T]he administrative desirability of notice as a 

         substitute for evidence cannot be allowed to outweigh fairness to individual 

         litigants.").  More importantly, in cases in which taking administrative notice may 

         be appropriate, this does not supplant the requirement that an individual must 

         have notice and an opportunity to "rebut the inferences drawn."  Kapcia, 944 F.2d 

         at 705; see also Gebremichael, 10 F.3d at 39 (holding petitioner's due process 

         rights were violated when he was not given opportunity to respond to a fact newly 

         noticed by the BIA prior to an adverse decision against him); Kaczmarczyk, 933 

         F.2d at 596 ("We believe the due process clause of the fifth amendment requires 

         that petitioners be allowed an opportunity to rebut officially noticed facts . . . . 

         [N]ot to allow petitioners an opportunity to rebut noticed facts would sanction the 

         creation of an unregulated back door through which unrebuttable, non-record 

         evidence could be introduced against asylum petitioners outside of the statutorily-

         mandated hearing context . . . ." (citation omitted)); Castillo-Villagra, 972 F.2d at
         1029 (holding that the BIA "erred in taking notice of the change of government 

         without providing the petitioners an opportunity to rebut the noticed facts" 

         because "due process requires that the applicant be allowed an opportunity to 

         rebut [administratively noticed facts]").(4)  Accordingly, in Kapcia, we found the 

         petitioners' due process rights were not violated when the BIA took 

         administrative notice of Solidarity's inclusion in the new Polish coalition 

         government; our holding was premised on the fact that "petitioners had ample 

         opportunity to address" the facts noticed.  Kapcia, 944 F.2d at 705.  The changed 

         conditions in Poland were first noticed during the proceedings before the IJs, and 

         petitioners presented extensive expert witness testimony to rebut the inferences 

         drawn from such changes.

              We hold that, under the facts of this case, the BIA abused its discretion. 

         Unlike the petitioner in Kapcia, Kowalczyk never had an opportunity to respond 

         to some of the facts that were administratively noticed.  Although Kowalczyk did
		  respond to the changing political climate at the time of his hearing and filing of 

         appeal in 1989 and 1990, he never had an opportunity to respond to facts that did 

         not exist until nine years after he filed his timely appeal.  The BIA's order relies 

         on a congressional report from 1999 to support the fact that "`[t]he internal 

         security forces and the armed forces are subject to effective civilian control by 

         the government' and that generally speaking, the Government respects the human 

         rights of its citizens."  Kowalczyk, File A28 464 269, at 4 (citing Department of 

         State, 106th Cong., II Country Reports on Human Rights Practices for 1998 1405 

         (Joint Comm. Print 1999)).  Kowalczyk argued to the BIA that the changes in the 

         Polish government had not proliferated through the security forces and militia. 

         (See, e.g., Administrative R. at 33 ("Despite the recent changes in the makeup of 

         the Polish Parliament, Solidarity is powerless to stop continued human rights 

         abuses at lower government levels."); see also id. at 34.)  To notice facts not 

         presented to Congress until 1999 without providing petitioner an opportunity to 

         respond, despite the more than nine years it took the BIA to decide Kowalczyk's 

         appeal, violates Kowalczyk's Fifth Amendment right to due process.  One would 

         think that in those nine years there was ample opportunity both for the BIA to 

         present Kowalczyk with any new evidence it intended to consider and to allow 

         him time to respond.  Moreover, if the delay was caused because petitioner's case 

         was so difficult to review and decide based on the record, any new facts
         (4)       In Kaczmarczyk, the Seventh Circuit held that motions to reopen 
         immigration procedures allow asylum seekers sufficient opportunity to respond to 
         administratively noticed facts and thereby satisfy the requirements of due 
         process.  933 F.2d at 597.  Accordingly, because petitioners in that case did not 
         file motions to reopen and made no excuses for their behavior, the court 
         concluded their constitutional challenges were without merit.  Id.  We have 
         rejected the reasoning in Kaczmarczyk that "reopening procedures . . . protect an 
         alien's due process rights, particularly because the BIA [can] deport the 
         petitioner before considering the motion to reopen."  Llana-Castellon, 16 F.3d at 
         1100.  We concluded that "[a] petitioner's due process rights are not protected by 
         a procedure that depends entirely on the good faith of the BIA."  Id.
         established during the nine-year period certainly should have been presented to 

         petitioner for his response.  We simply cannot find that the "agency's discretion 

         [was] exercised in such a way as to be fair in the[se] circumstances" and in such a 

         way that satisfies the constitutional mandate of due process.  Llana-Castellon, 16 

         F.3d at 1097 (quoting Castillo-Villagra, 972 F.2d at 1028).  The administrative 

         notice of facts key to petitioner's asylum claim coupled with the enormous 

         amount of time in which the BIA could have given petitioner the opportunity to 

         respond but did not establish that petitioner's due process rights were 

         compromised.  Accordingly, we reverse the BIA's decision, vacate the order of 

         exclusion, and remand for further proceedings consistent with this opinion.

                                B.  The BIA's Delay

              Kowalczyk further argues that the BIA should be equitably estopped from 

         enforcing its exclusion order against him because the nine years it took to decide 

         his appeal constituted affirmative misconduct.  We are mystified by the amount of 

         time it took the BIA to decide petitioner's appeal, particularly in light of the 

         relatively quick disposal of the similar applications by his co-workers who 

         defected at the same time.  Furthermore, we are wholly unconvinced and 

         nonplused by the government's argument that "[t]here is no proof that the lengthy 

         time spent in processing his appeal was . . . unwarranted given the inordinate size 

         of the administrative record . . . . It is only the operation of the administrative
         judicial process that has caused `delay.'"  (Respondent's Br. at 21.)  Nevertheless, 

         under the present state of the record we can not conclude that equitable estoppel 

         lies against the government in this case.  

              Equitable estoppel allows one party to prevent another "from taking a legal 

         position inconsistent with an earlier statement or action that places his adversary 

         at a disadvantage."  Penny v. Giuffrida, 897 F.2d 1543, 1545 (10th Cir. 1990) 

         (summarizing estoppel law and focusing on estoppel against the government). 

         The elements of estoppel against a private party are "(1) the party to be estopped 

         must know the facts; (2) the party to be estopped must intend that his conduct will 

         be acted upon or must so act that the party asserting the estoppel has the right to 

         believe that it was so intended; (3) the party asserting the estoppel must be 

         ignorant of the true facts; and (4) the party asserting the estoppel must rely on the 

         other party's conduct to his injury."  Id. at 154546.  

              Equitable estoppel does not lie against the government in the same manner 

         as it does against private litigants.  Office of Personnel Mgmt. v. Richmond, 496 

         U.S. 414, 419 (1990).  "When the Government is unable to enforce the law 

         because the conduct of its agents has given rise to an estoppel, the interest of the 

         citizenry as a whole in obedience to the rule of law is undermined."  Heckler v. 

         Cmty. Health Servs., 467 U.S. 51, 60 (1984).  In the course of rejecting estoppel 

         arguments asserted against the government, the Supreme Court has indicated that
         estoppel may lie against the government if some type of "affirmative misconduct" 

         can be shown.  See INS v. Hibi, 414 U.S. 5, 8 (1973) (per curiam).  The Court has 

         repeatedly "le[ft] for another day whether an estoppel claim [can] ever succeed 

         against the Government."  Office of Personnel Mgmt., 496 U.S. at 423; see also 

         Heckler, 467 U.S. at 60; id. at 6768 (Rehnquist, J., concurring in the judgment) 

         (stating that the majority's opinion "gives an impression of hospitality towards 

         claims of estoppel against the Government which our decided cases simply do not 

         warrant"); INS v. Miranda, 459 U.S. 14, 19 (1982) (per curiam); Schweiker v. 

         Hansen, 450 U.S. 785, 788 (1981) (per curiam); Montana v. Kennedy, 366 U.S. 

         308, 314 (1961).

              Supreme Court jurisprudence establishes that estoppel against the 

         government in the immigration context has a particularly high bar.  For instance, 

         in Miranda, 459 U.S. at 1819, the Court held the government was not estopped 

         from enforcing the immigration laws because of an eighteen-month delay incurred 

         while the INS considered a spousal immigrant visa application.  "Proof only that 

         the Government failed to process promptly an application falls far short of 

         establishing [affirmative misconduct.]"  Id. at 19.  Undoubtedly, the eighteen-

         month delay at issue in Miranda pales in comparison to the more than nine-year 

         delay involved in this case.  As the Court made clear in Miranda, however, the 

         immigration laws are of exceptional public interest and the courts must give
         "[a]ppropriate deference" to the INS.  Id. ("An increasingly important interest, 

         implicating matters of broad public concern, is involved in cases of this kind. 

         Enforcing the immigration laws, and the conditions for residency in this country, 

         is becoming more difficult.  Moreover, the INS is the agency primarily charged 

         by Congress to implement the public policy underlying these laws.  Appropriate 

         deference must be accorded its decisions." (citations omitted)); id. at 18 

         ("Montana and Hibi make clear that neither the Government's conduct nor the 

         harm to the respondent is sufficient to estop the Government from enforcing the 

         conditions imposed by Congress for residency in this country."); see also INS v. 

         Pangilinan, 486 U.S. 875, 88384 (1988) (discussing the unavailability of 

         equitable estoppel against the government in a naturalization case, explaining that 

         administration of the immigration laws is best left to the agencies, and stressing 

         that courts can not interfere in a manner inconsistent with applicable statutes).

              Against the background of a Supreme Court jurisprudence which raises an 

         extremely high bar to claims of equitable estoppel against the government, 

         particularly in the immigration context, we conclude in light of the facts in the 

         record before us that equitable estoppel would not prevent the BIA from enforcing 

         its order in this case.  Cf. Che-Li Shen v. INS, 749 F.2d 1469, 147374 (10th Cir. 

         1984) (holding that the INS was not equitably estopped from deporting petitioner 

         where it took three years to rule on petitioner's first application and almost two
         years to rule on petitioner's renewed application; relying in part on the fact that 

         petitioner failed to demonstrate affirmative misconduct because there was "no 

         indication that the [administrative] delay was deliberate or even unwarranted"); 

         Roman v. INS, 233 F.3d 1027, 103334 (7th Cir. 1999) (holding the BIA was not 

         equitably estopped from denying asylum after a five-year delay in considering 

         petitioners' appeal because the court failed to find any prejudice from the delay). 

         We are deeply troubled by the nine-year delay and see it as a malfunction of the 

         administrative process instead of, as the government argues, "the operation of the 

         administrative judicial process."  (Respondent's Br. at 21.)  In the absence of a 

         showing that the delay in the present case was deliberate or resulted in 

         identifiable prejudice to the petitioner's case, however, the delay is insufficient to 

         demonstrate affirmative misconduct necessary to equitably estop the government 

         from administering the immigration laws entrusted to its enforcement by 


                        C.  IJ's Refusal to Consider Documents

              Kowalczyk claims that his right to a fair hearing was violated by the IJ's 

         refusal to consider certain documents offered at the asylum hearing.  The IJ 

         concluded that those documents addressed "subject matter in which the Court has 

         no jurisdiction over as [it is] not in a policy making position."  (Administrative R. 

         at 104.)  In its de novo review, the BIA agreed with Kowalczyk that the materials 

         should have been considered by the IJ and considered the materials itself before 

         affirming the denial of Kowalczyk's application.  Kowalczyk, File A28 464 269, 

         at 4 n.7.

              We review only the decision of the BIA and not that of the IJ.  Luna-

         Rodriguez v. INS, 104 F.3d 313, 315 (10th Cir. 1997).  Because the BIA 

         considered the contested materials in its review of Kowalczyk's application, and 

         because the IJ's decision is not properly before us, we decline to hold that 

         petitioner's fair trial rights were violated by the IJ's decision.

                             D.  Eligibility for Asylum

              Kowalczyk's final claim is that he is "statutorily eligible for asylum on the 

         basis of a well-founded fear of future persecution, alone or in combination with 

         past persecution."  (Petitioner's Br. at 17.)  It is not necessary for us to reach this 

         claim because the BIA will be required to reconsider its previous determination in
         (5)       We emphasize that our review is conducted under the INA a

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