Fifth Amendment Due Process Applicable To Judicial Notice

Seal of the Second Circuit Court of Appeals

Second Circuit notes immigration judge erred in taking judicial notice without providing an opportunity to rebut the officially noticed fact, in Singh v. Mukasey, 553 F.3d 207 (2d Cir. Jan. 21, 2009) (No. 04-3454-ag)

When a court takes judicial notice of a matter, what opportunity should the opposing party be given to contest the issue? Can the denial of the opportunity to be heard on judicial raise constitutional issues? This issue was recently noted by the Second Circuit in an immigration proceeding. Because the FRE were not required in the immigration proceedings, the circuit considered Due Process standards.

In the case, defendant Singh, who was an Indian citizen married to a United States citizen and a permanent resident of the United States, was stopped at the U.S.-Canadian border with an alien (Bedi), as they tried to enter the United States. The alien was not allowed into the United States. Removal proceedings began for Singh because he had been aiding an alien to enter the country in violation of law. During the immigration proceeding, the petitioner claimed that the alien resided in the same housing complex and they “traveled to a strip club in St. Catharine's in Ontario, Canada, and spent several hours there.” They were apprehended while returning. In ordering removal of petitioner Singh, the immigration judge “discredit[ed] Mr. Singh's testimony” and concluded “that Mr. Singh in fact knew of adult clubs in New York and therefore went to Canada not to visit a club but to smuggle Mr. Bedi.” Singh, 553 F.3d at 214 . The defendant argued that the judge erred in taking judicial notice of the fact of the existence of strip clubs in Buffalo. The judge noted that “such knowledge is ‘common.’” Consequently, the immigration judge concluded that “Mr. Singh must be lying about his purpose in visiting Canada with Mr. Bedi.” The petitioner appealed the removal order to the Board of Immigration Appeals (BIA), which affirmed the immigration judge. The case was appealed to the Second Circuit.

The Second Circuit vacated the order removing the petitioner from the United States, remanding the case to the BIA for further proceedings. The circuit acknowledged that the FRE did not apply to immigration removal proceedings and to the immigration judge’s “administrative notice of the existence of adult strip clubs in Buffalo.” Instead, the Fifth Amendment due process standard applied. Singh, 553 F.3d at 214 (citing Lin v. U.S. Dep't of Justice, 459 F.3d 255, 268 (2d Cir. 2006) (“Evidence is admissible provided that it does not violate the alien's right to due process of law.”)).

The circuit found the immigration judge’s reasoning was “simply illogical.” The immigration judge erroneously reasoned that “Mr. Singh must have known about such clubs in New York, and therefore reasoned that Mr. Singh ‘was not traveling to Canada to go to a strip club ... [but] perhaps maybe even to smuggle the smuggle into the United States.’” Singh, 553 F.3d at 214. Due process required an “opportunity to rebut such facts.” Singh, 553 F.3d at 214 n.4 (citing Chhetry v. U.S. Dep't of Justice, 490 F.3d 196, 200 (2d Cir. 2007) (“the BIA did exceed its allowable discretion in denying Chhetry's motion to reopen based on inferences it drew from those noticed facts without giving him the opportunity to rebut the significance of the noticed facts as applied to his particular situation”)). Ultimately, the circuit did not need to “decide whether Mr. Singh's deprivation of an opportunity to rebut constituted a violation of his Fifth Amendment due process rights.” Singh, 553 F.3d at 214 n.4.

While the case was resolved on other grounds, it highlights that some due process is due on the issue of judicial notice. FRE 201(e) addresses this issue where the FRE apply:

“Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.”

Federal Rules of Evidence