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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Seventh Circuit Admonishes Immigration Judge for Violating Due Process Rights of Asylum Applicant

by Carl R. Baldwin

In Kerciku v. INS, No. 102-1948 (7th Cir. Jan. 3, 2003), the Seventh Circuit gave an immigration judge a stern lecture on the requirements of due process in an asylum hearing, and remanded for a new hearing, preferably before a different judge.

There are two things that strike me as add and disturbing about this case. First, that an immigration judge was so side-tracked by secondary questions about documents that he refused to allow the applicant to testify about the core aspects of his claim. Second, that the Board of Immigration Appeals did not catch this serious flaw, and the matter had to go to the Circuit before being corrected. Perhaps the Board, as well as the immigration judge, should receive a lecture.

The first sentence of the Per Curiam decision should be quoted in full: "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 the testimony and documents, 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 applicaton. 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."

The court's summary of the removal hearing makes sobering reading. The applicant had submitted documents to support his claim of past persecution and pro-democracy activity, the authenticity of which was not challenged by the INS. The judge focused on these documents and their authenticity almost entirely. (I am not suggesting that a judge cannot or should not express his or her own doubts, irrespective of the position of the INS.) The problem was that the judge’s skepticism about the documents prompted him to disallow any further testimony. Just how unnerving this must have been for the applicant and his attorney is captured in this portion of the decision: "When the Kercikus’ attorney finished his very brief examination, he noted that ‘we have much more to go in our case…[t]his I not a major part of our case.' But the judge signaled that he was terminating the hearing by responding: "I'm afraid that it will be."

I am troubled, as I noted before, by the fact that the Board of Immigration Appeals did not see any problem in the conduct of the immigration judge. Here is the court’s summary of that phase of the case: "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 the argument, and in a very abbreviated decision, the BIA found that the judge determined correctly that the Kercikus did not qualify for asylum and dsmissed the appeal."

I hope very much that the judge’s decision, and the BIA’s affirmance of it, were anomalies, and that due process concerns will resume their rightful and customary place and govern future immigration decisions by immigration judges and the BIA. I would hate to think that asylum applicants and their lawyers will again have to face the anguish and expense of traveling from the immigration judge to the BIA to the Circuit before due process can be found.


About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at Carl.Baldwin@worldnet.att.net.

He has written a book on immigration law, called "Immigration Questions and Answers," Allworth Press, 2002. The book, which contains essential background information about how the immigration law works, can be ordered online from Allsworth Press at: www.allworth.com/Pages/SC_BL.htm.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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