Kerciku v. I.N.S., No. 02-1948.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtPer Curiam
Citation314 F.3d 913
PartiesAdrian KERCIKU and Najada Kerciku, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, and John Ashcroft, Attorney General, Respondents.
Docket NumberNo. 02-1948.
Decision Date03 January 2003
314 F.3d 913
Adrian KERCIKU and Najada Kerciku, Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE, and John Ashcroft, Attorney General, Respondents.
No. 02-1948.
United States Court of Appeals, Seventh Circuit.
Argued November 14, 2002.
Decided January 3, 2003.

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COPYRIGHT MATERIAL OMITTED

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Stephen D. Berman (argued), Chicago, IL, for petitioners.

George P. Katsivalis, INS, Chicago, IL, John C. Cunningham (argued), DOJ, Civ. Div., Immigration Lit., Washington, DC, for Respondents.

Before RIPPLE, ROVNER, and DIANE P. WOOD, Circuit Judges.

PER CURIAM.


Adrian Kerciku and his wife Najada, both Albanian nationals, applied for asylum, claiming that Albanian Communists had persecuted Mr. Kerciku for his pro-democracy political views and activities and that the couple feared for their lives should they have to return to Albania. At the removal hearing, after questioning Kerciku solely about documents that he had submitted to corroborate his claims, the Immigration Judge discredited his testimony and documentation, abruptly ended the hearing without allowing any other testimony, and denied the Kercikus' applications for asylum. The Kercikus petition for review, arguing that they were improperly denied a full hearing on the merits of their application. Because the judge violated due process by not allowing the Kercikus to present testimony to support their claims, we grant the petition and remand for further proceedings.

Facts

In his asylum application,1 Kerciku stated that before World War II, the Kerciku family was very prosperous and well-known in Albania and owned much land in Tirana, the capital city. According to Kerciku, the Communist regime that came to power after the War confiscated the family's holdings, targeted the Kercikus because of their resistance to communism and their pro-democracy political opinions, and sent male family members to prison and the women and children to labor camps.

Kerciku, who was born in 1970, claims that the Albanian government sent him to a labor camp at a very early age simply because he belonged to the Kerciku family. Over time, he learned to use tools skillfully and wished to study mechanics at the university level. Kerciku learned, however (the record does not reflect how), that the Albanian secret police had a "strict order" prohibiting members of the Kerciku family from continuing their education past secondary school. Kerciku further claims that on a number of occasions, the police "kicked around and beat" him when he demanded to continue his education.

All of these experiences spurred Kerciku in 1990 to begin participating in pro-democracy demonstrations and associating with student activists. According to Kerciku, police arrested him during demonstrations in November 1990 and February 1991, interrogated him, beat him severely, threatened to kill him, and detained him each time for approximately two months. Kerciku claims that one beating left him unconscious for two days and another caused nerve damage that resulted in a permanent speech impediment. Both times upon his release, police ordered him not to participate in the pro-democracy movement.

Kerciku disobeyed these orders and began campaigning for the Albanian Democratic Party in 1991. When the Democratic Party won the 1992 elections, it hired

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him as a mechanic and chauffeur at the Albanian Foreign Ministry. Later, during the 1996 election campaign, Kerciku stated that he became the "personal chauffeur, guard and confidant" of Tritan Shehu, the Democratic Party's chairman and Foreign Minister. Kerciku claims that during this campaign, he began receiving death threats from members of the opposition Socialist Party. He further claims that after the 1996 elections, when he publicly criticized the Democratic Party for winning the election by fraud, the Socialists' threats "became more definite and certain." He detailed that in early 1997, Shehu "advised me that he was certain that my murder had been planned" and that he should marry Najada and leave Albania at once. With Shehu's assistance, Kerciku moved with his new wife to Holland to serve as a chauffeur at the Albanian embassy there.

After moving to Holland, Kerciku continued to receive death threats from sources identifying themselves as members of the Albanian Socialist Party. These threats and the Socialist Party's recapture of the Albanian government in 1997 convinced Kerciku and his wife to emigrate from Europe. After the couple came to the United States on visitor visas in late 1997, Kerciku applied for asylum, citing his past political persecution, the political chaos and violence in Albania, and his fear that the couple would be killed if they returned to Albania.

The Removal Hearing

Before the Kercikus' removal hearing, Kerciku submitted several documents purporting to certify his past political persecution, his membership in various pro-democracy groups in Albania, his past arrests and injuries, and his employment at the Albanian Embassy in Holland. Although the INS withdrew its initial objection to the authenticity of the documents, the Immigration Judge opened the hearing by questioning Kerciku about how he obtained them. In response to the judge's questions, Kerciku testified that in December 1997 and January 1998 he asked his brother, who was still living in Albania, to obtain and send the documents to him in the United States. When the judge asked why some of the documents pre-dated December 1997, Kerciku responded that the Democratic Party may have recreated them after the originals were destroyed by fire. The judge also questioned him about the threats he received in Holland, pressing him at length for the exact number and dates and expressing surprise that he did not make a log of the threats.

Kerciku was then briefly examined by his own attorney about the source of the documents. Kerciku testified that when he lived in Holland, he had personally asked for one of the documents—the certification of embassy employment—from the central government in Albania. When the Kercikus' attorney finished his very brief examination, he noted that "we have much more to go in our case.... [t]his is not a major part of our case." But the judge signaled that he was terminating the hearing by responding, "I'm afraid it will be." The Kercikus' attorney then offered to submit the documents...

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49 practice notes
  • Capric v. Ashcroft, No. 02-3172.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 23, 2004
    ...none of these arguments persuasive. B. The Due Process Claims Aliens in the United States are entitled to due process. Kerciku v. INS, 314 F.3d 913, 917 (7th Cir.2003) (citing Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)) ("[T]he Due Process Clause applies to......
  • Oshodi v. Holder, No. 08–71478.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 27, 2013
    ...removal have a due process right to testify fully as to the merits of their application is not unique to our circuit. In Kerciku v. INS, 314 F.3d 913, 918 (7th Cir.2003) (per curiam), the Seventh Circuit made clear that when the IJ “bar[s] complete chunks of oral testimony [729 F.3d 891]tha......
  • Bayo v. Chertoff, No. 07-1069.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 1, 2008
    ...(holding that due process requires that aliens receive a meaningful opportunity to be heard in deportation proceedings); Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir.2003) (same). Applying these principles to VWP waivers, the Fifth Circuit has held that due process requires that a waiver u......
  • Parham v. Colvin, Civil No. 3:14cv283 (DJN)
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 13, 2015
    ...the hearing did not run afoul of due process protections, because the interruptions served to focus the proceedings. Kerciku v. I.N.S., 314 F.3d 913, 917-18 (7th Cir. 2003); see also Kuciemba v. I.N.S., 92 F.3d 496, 501 (7th Cir.Page 251996) (concluding that transcript revealed that IJ's re......
  • Request a trial to view additional results
49 cases
  • Capric v. Ashcroft, No. 02-3172.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 23, 2004
    ...none of these arguments persuasive. B. The Due Process Claims Aliens in the United States are entitled to due process. Kerciku v. INS, 314 F.3d 913, 917 (7th Cir.2003) (citing Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)) ("[T]he Due Process Clause applies to......
  • Oshodi v. Holder, No. 08–71478.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 27, 2013
    ...removal have a due process right to testify fully as to the merits of their application is not unique to our circuit. In Kerciku v. INS, 314 F.3d 913, 918 (7th Cir.2003) (per curiam), the Seventh Circuit made clear that when the IJ “bar[s] complete chunks of oral testimony [729 F.3d 891]tha......
  • Bayo v. Chertoff, No. 07-1069.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 1, 2008
    ...(holding that due process requires that aliens receive a meaningful opportunity to be heard in deportation proceedings); Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir.2003) (same). Applying these principles to VWP waivers, the Fifth Circuit has held that due process requires that a waiver u......
  • Parham v. Colvin, Civil No. 3:14cv283 (DJN)
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 13, 2015
    ...the hearing did not run afoul of due process protections, because the interruptions served to focus the proceedings. Kerciku v. I.N.S., 314 F.3d 913, 917-18 (7th Cir. 2003); see also Kuciemba v. I.N.S., 92 F.3d 496, 501 (7th Cir.Page 251996) (concluding that transcript revealed that IJ's re......
  • Request a trial to view additional results

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