Gjeci v. Gonzales
| Decision Date | 15 June 2006 |
| Docket Number | No. 05-2663.,No. 05-1153.,05-1153.,05-2663. |
| Citation | 451 F.3d 416 |
| Parties | Gazmend GJECI, Petitioner, v. Alberto GONZALES, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stephen D. Berman (argued), Chicago, IL, for Petitioner.
Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Asheesh Agarwal (argued), Kurt B. Larson, Department of Justice, Immigration Litigation Office, Washington, DC, James S. Alexander, Office of the United States Attorney, Minneapolis, MN, for Respondent.
Before CUDAHY, POSNER, and WOOD, Circuit Judges.
Gazmend Gjeci, an ethnic Albanian citizen of Kosovo, entered the United States illegally on May 30, 1998, and filed an administrative request for asylum a little less than one year later. His case has languished in the immigration courts since that initial filing; it was continued thirteen times — mostly at the behest of the government — over the course of four years before going to a merits hearing. Gjeci, who contends that he suffered grave mistreatment at the hands of the Serbian army during its occupation of Kosovo, argues that the immigration judge denied him due process in refusing to grant one more continuance so that he could obtain new counsel and rebut a government report stating that documents tending to establish persecution were "not what they purport[ed] to be." He further argues that the Board of Immigration Appeals (BIA) abused its discretion in denying his motion to reopen the case so that he could rebut that government report. We agree that the merits proceeding was fundamentally unfair and grant Gjeci's petition on due process grounds. We need not reach the issue involving the motion to reopen.
Although Gjeci's asylum claim is relatively straightforward, it has spawned a rather confusing record. In addition to the sheer number of times the case has been delayed, two different immigration judges participated in its adjudication and at least four different lawyers have been involved in Gjeci's representation in the seven years since he received his notice to appear.
Gjeci's asylum claim centers primarily on his membership in the Democratic League of Kosovo (LDK), a separatist political party comprised of Kosovar ethnic Albanians, and on the political realities of Kosovo in the late 1990s. His application explains that before he left Kosovo, Serbian officials arrested him four times, and beat and otherwise harassed him on a number of occasions for his nationality and political opinions. The application also states that Serbian officials suspected Gjeci and his father of collecting food supplies for the Kosovo Liberation Army (KLA), an insurgent guerilla outfit that initially directed its attacks against the Serbian police and later against Serbian civilians. See HUMAN RIGHTS WATCH, UNDER ORDERS: WAR CRIMES IN KOSOVO 17-60 (2001), available at http://www.hrw.org/reports/2001/kosovo/. Gjeci explained that he and his father, who used to run a café until it was destroyed during the war, had gathered the food in an attempt to help villages under siege.
A central component of the evidence in the present case is a packet of seven documents that Gjeci offered to support his contention that he was persecuted in Kosovo. These documents (which, as we will see, are contested) include two subpoenas ordering Gjeci to appear in court for alleged anti-Serb activity, an order sentencing Gjeci to five months in prison for anti-government activity (including anti-government propaganda), two search warrants for the Gjeci home, an order sentencing Gjeci to three years in prison and, finally, a Yugoslavian identification card with his name and photograph on it.
Gjeci's asylum application began its slow journey through the immigration courts on July 9, 1999, when he was served with a notice to appear on July 30, 1999, for his removal proceedings. He appeared as directed and brought an interpreter with him but no lawyer. Immigration Judge Anthony D. Petrone continued his case to November 5, 1999. The record contains no transcript for that date. On February 4, 2000, Judge Petrone held a status conference and set a merits hearing date for July 18, 2000. Attorney Shefik Adrizi represented Gjeci at this hearing. On July 5, 2000, Gjeci gave the documents described above to the government for examination.
On July 18, 2000, Gjeci (represented by Adrizi) appeared before a new immigration judge (Carlos Cuevas). The government requested a continuance, indicating that it suspected some of Gjeci's documents might have been altered and that it intended to submit them to its Forensic Document Laboratory (FDL) for examination. Judge Cuevas stated that if the documents were authentic, he would be inclined to grant Gjeci's petition. He continued the hearing and set a status call for October 19, 2000. No transcript appears in the record for that day.
The next hearing took place on November 30, 2000. Bradley Harrington, an attorney from Adrizi's office, appeared on behalf of Gjeci, whose appearance had been waived. The government indicated that it was still investigating the authenticity of the documents and had nothing new to offer at that point. Judge Cuevas set the hearing over for another status conference on April 20, 2001. Adrizi appeared on Gjeci's behalf at that status hearing, and the government stated that it was still waiting for results from the FDL. The judge continued the hearing and set another status conference for November 29, 2001. At the November 29 call, the government indicated that it had given Adrizi the FDL report. Judge Cuevas told Adrizi that he assumed Gjeci needed time to prepare his defense, continued the hearing, and set a new status hearing for May 9, 2002.
On April 15, 2002, however, Judge Cuevas granted Adrizi's request to withdraw from his representation of Gjeci. Adrizi's motion cited irreconcilable differences between the two and included an affidavit from Gjeci authorizing Adrizi's withdrawal. The affidavit further indicated that Adrizi had returned Gjeci's file to his client. At this point, however, the government still possessed the documents whose authenticity is central to this case.
Alexandra Baranyk represented Gjeci at the next status hearing, which the judge held on May 8, 2002. The government stated at this hearing that it still had Gjeci's original documents. Baranyk made an oral motion for their return, but the government insisted that the request be in writing so that it did not tender anything not so requested. Since this hearing took place on a day when the judge had a very full schedule of hearings, he indicated that he did not want to spend time on this issue and told the parties to work it out. He then continued the case to September 5, 2002, for a document exchange. At the September 5 conference, however, the government told Judge Cuevas and Baranyk that it was not prepared to return the documents because it was unclear whether they had been photographed (in accord with standard operating procedure). The judge continued the case again.
On January 9, 2003, the parties came together for another hearing, and the government returned the original documents to Baranyk. Although Gjeci was at this hearing, it does not appear that an interpreter was present, nor does it appear on the record that Gjeci understood that his documents had been returned to his counsel. The judge then set a status conference date for August 7, 2003. On July 31, 2003, however, Gjeci filed a motion for change of venue. The substance of this motion, which we transcribe in full since Baranyk and Judge Cuevas deemed it so significant, reads:
Dear Judge Carlos Cueves, my name is Gazmend Gjeci and my A # 77 819 707, and I have a Hearing scheduled for a Master Calendar on August 7th, 2003 at 2:30pm. I would really like if possible for my case to be moved at 155 S Miami Ave, Miami FL 33130, since I will be moving in Florida as of August 4th. My job profile is as Marble Designer and I want to have the opportunity to have my own business dawn in Florida. I want to apologize for this late notice and I hope that you would take this under good consideration. I already have contacted an attorney in Miami to take my case. My new address in Florida is:
[omitted]
My old address is:
Gazmend Gjeci
[signature]
As Gjeci noted in his motion, the judge had scheduled his status hearing for the afternoon of August 7. Baranyk, however, appeared before Judge Cuevas that morning on a different matter. After dealing with the other matter, Baranyk and Judge Cuevas turned to the Gjeci case, in which Baranyk had moved to withdraw in light of Gjeci's motion for change of venue. Judge Cuevas told Baranyk that he believed it was obvious that Gjeci was aware of the scheduling of the August 7 hearing and also, because Gjeci himself had filed a motion for change of venue instead of relying on Baranyk, that Gjeci was "taking matters into his [] own hands." Judge Cuevas did not discuss the status of Gjeci's case, nor did they discuss his file or original documents. When Gjeci arrived for his hearing alone at 2:30 p.m. on August 7, 2003, Judge Cuevas asked him — in English and with no interpreter — if he knew that Baranyk had withdrawn. Gjeci responded that he did. After that single question, Judge Cuevas moved on to the motion to change venue. After denying that motion, the judge asked Gjeci whether he understood, and Gjeci replied that he understood some. At that point, Judge Cuevas called an interpreter and again explained his reasons for denying the motion to change venue. Significantly, however, the judge never revisited the issue of Baranyk's withdrawal, and he asked Gjeci no questions beyond simply that first question in English about whether he knew that she had in fact withdrawn.
After denying the motion...
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