Circu v. Gonzales, 450 F.3d 990, 993-95 (9th Cir. 2006) (en banc) (BIA may take judicial notice of a fact only if it gives the applicant notice of its intent to do so, and an opportunity to show cause why such notice should not be taken, or to present additional evidence; IJ violated due process by taking judicial notice of a new country conditions report without providing alien notice and an opportunity to respond); Getachew v. INS, 25 F.3d 841, 846-47 (9th Cir. 1994) (request in INS brief to take administrative notice of country changes in Ethiopia did not provide adequate notice to petitioner); Kahssai v. INS, 16 F.3d 323, 324-25 (9th Cir. 1994) (per curiam) (Ethiopia); Gomez-Vigil v. INS, 990 F.2d 1111, 1114 (9th Cir. 1993) (per curiam) (Nicaragua); Castillo-Villagra v. INS, 972 F.2d 1017, 1026-31 (9th Cir. 1992) (denial of pre-decisional notice violated due process and demonstrated failure to make individualized assessment of Nicaraguans claims).

Note. If an IJ takes administrative notice of changed country conditions during the hearing, there is no violation of due process because the applicant has an opportunity to respond with rebuttal evidence. See Kazlauskas v. INS, 46 F.3d 902, 906 n.4 (9th Cir. 1995) (Lithuania); Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir. 1993) (Polish Solidarity supporters had ample opportunity to argue before the immigration judges and before the [BIA] that their fear of persecution remained well-founded); Kotasz v. INS, 31 F.3d 847, 855 n.13 (9th Cir. 1994) (applicants given ample opportunity to discuss changes in Hungary).

The Ninth Circuit has taken judicial notice of recent events occurring after the BIAs decision. See Gafoor v. INS, 231 F.3d 645, 655-56 (9th Cir. 2000) (taking judicial notice of recent events in Fiji and noting that the government would have an opportunity to challenge the significance of the evidence on remand), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009). However, the court of appeal may not determine the issue of changed country conditions in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam); Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 999-1000 (9th Cir. 2003) (Guatemala).

Notice of intent to take administrative notice is all that is required if extra-record facts and questions are legislative, indisputable, and general. Circu v. Gonzales, 450 F.3d 990, 993 (9th Cir. 2006) (en banc) (internal quotation marks omitted); see also Gonzales v. INS, 82 F.3d 903, 911-12 (9th Cir. 1996); Getachew v. INS, 25 F.3d 841, 846-47 (9th Cir. 1994); Castillo-Villagra v. INS, 972 F.2d 1017, 1027-29 (9th Cir. 1992). However, more controversial or individualized facts require both notice to the [alien] that administrative notice will be taken and an opportunity to rebut the extra-record facts or to show cause why administrative notice should not be taken of those facts. Circu, 450 F.3d at 993 (emphasis and alteration in original) (internal quotation marks omitted). An example of an indisputable fact is a political partys victory in an election, whereas a controversial fact is whether the election has vitiated any previously well-founded fear of persecution. Id. at 994.
Thanks to Holly Cooper.