Kerciku v. I.N.S., 02-1948.

Citation314 F.3d 913
Decision Date03 January 2003
Docket NumberNo. 02-1948.,02-1948.
PartiesAdrian KERCIKU and Najada Kerciku, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, and John Ashcroft, Attorney General, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

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 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 to the Federal Documents Laboratory for authentication, as the INS had suggested earlier in the hearing, but the judge declined, citing the lack of other documents for comparison and noting that, in any event, the lab would not be able to explain inconsistencies in Kerciku's testimony.

At this point, before the Kercikus could present any testimony on their behalf, the judge rendered his decision. The judge noted various inconsistencies that he had perceived in Kerciku's testimony: the earlier dates on some of the documents, Kerciku's "implausible and incomprehensible" claim that he requested certification of employment from the central government in Albania rather than from the embassy itself, and his "evasive" testimony about the death threats in Holland. The judge stated that Kerciku's testimony was "incredible" and that based on the inconsistencies in the testimony, he believed the documents were fabricated. The judge concluded that "[Mr. Kerciku's] claim should not be credited in any material aspect," and that the "serious questions" regarding the documents' authenticity were "fatal to the [Kercikus'] case." Finally, the judge denied the Kercikus' applications for asylum and ordered them removed to Albania.

Both at the removal hearing and in oral argument before us, the Kercikus' attorney indicated that they had planned to have Kerciku testify about the long history of persecution that he had included in his application. They were also prepared to present testimony from an expert on Albanian affairs, Father Prenk Camaj, whose affidavit indicates that based on consultations with Albanian government officials, he could have substantiated Kerciku's claims of past persecution and the couple's fear of deadly harm if they returned to Albania.

The Kercikus appealed the judge's decision to the Board of Immigration Appeals (BIA), arguing that "the Judge deprived the respondent of due process by refusing him the opportunity to complete his own testimony or to present witnesses to corroborate his own testimony." Without responding to this argument, and in a very abbreviated decision, the BIA found that the judge determined correctly that the Kercikus did not qualify for asylum and dismissed their appeal.

Analysis

The Kercikus do not ask us to review the denial of asylum on the merits. Rather, they focus on process and request a full removal hearing, arguing that the judge should have allowed them to present testimony from Mr. Kerciku and their expert witness. For its part, the INS glosses over this argument and urges us to defer to the judge's adverse credibility finding. We review the Kercikus' due process challenge de novo, as the question of whether an immigration hearing violates due process is purely a legal issue, Nazarova v. INS, 171 F.3d 478, 482 (7th Cir.1999).

It is well-settled that foreign persons in the United States are entitled to due process. See 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 all `persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."); Ambati v. Reno, 233 F.3d 1054, 1061 (7th Cir.2000). In the context of political asylum, due process requires, among other things, that an applicant receive...

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