Kerciku v. Immigration and Naturalization Serv.

314 F.3d 913 (7th Cir. 2003) ; Clearinghouse Number: 55127

Description

INS Judge Violated Due Process by Not Allowing Immigrants to Present Testimony to Support Their Application for Asylum

Abstract

The Seventh Circuit held that because the Immigration and Naturalization Service (INS) judge terminated the removal hearing without allowing petitioners to present their testimony, he deprived them of “a meaningful opportunity to be heard” and violated their due process rights. Petitioners—a married couple from Albania—applied for asylum; they claimed that Albanian communists had persecuted their family for their political views and activities and that they feared for their lives should they have to return to Albania. At the removal hearing, husband indicated his plan to testify about the long history of persecution mentioned in the application. Petitioners were also prepared to present testimony from an expert on Albanian affairs; the expert’s affidavit indicated that he could have substantiated the claims of past persecution and the couple’s fear of deadly harm if they returned to Albania. INS contended that the INS judge properly terminated the hearing once he determined that husband was not credible. Rejecting that argument, the Seventh Circuit said that an applicant’s right to present testimony to support the applicant’s claim was not nullified by adverse considerations, including negative credibility findings, which might weigh against, or even ultimately doom, the applicant’s case in the judge’s eyes. The critical issue was whether the applicant received a “fair” hearing. Petitioners received none. The Seventh Circuit remanded with instructions.

Additional Information

Attorney Information
Docket Date
2003-01-03 00:00:00+00:00

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