Kuqo, Arben v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-2254 & 03-3180
ARBEN KUQO, MAHIRE KUQO, ERA KUQO,
EMEA KUQO and KEJT KUQO,
Petitioners,
v.
JOHN ASHCROFT,
Respondent.
____________
On Petitions for Review of an Order of
the Board of Immigration Appeals.
Nos. A75 320 496, A79 562 042-44, A72 413 389
____________
ARGUED OCTOBER 26, 2004—DECIDED DECEMBER 7, 2004
____________
Before EASTERBROOK, ROVNER and SYKES, Circuit Judges.
SYKES, Circuit Judge. Arben Kuqo, a 41-year-old Albanian
citizen, entered the United States in 1997 and, at a removal
hearing in 1998, applied for asylum, withholding of removal,
and protection under the United Nations Convention Against
Torture. The applications were denied by an immigration
judge in 1999, and the Board of Immigration Appeals (BIA)
2 Nos. 03-2254 & 03-3180
affirmed in 2003. In these consolidated petitions for review,
Kuqo and his family seek review of the final orders issued
by the BIA.1 We affirm.
In his application for asylum, Kuqo alleged that he had
been persecuted by leaders of a nongovernmental political
organization called the Association of the Formerly Politi-
cally Persecuted (AFPP), a group in which he was a mem-
ber. The persecution resulted, he claimed, from his com-
plaints about corruption and cigarette smuggling involving
members of the group’s leadership. At his hearing before
the immigration judge, he testified that he was threatened
with death and beaten up, requiring hospitalization, after
he spoke out about corruption at a group meeting. He also
testified that he was shot at while driving in a car and
claimed that he was the subject of libel charges resulting
from his efforts to expose corruption at the AFPP. The im-
migration judge was not convinced, however, finding that
Kuqo’s fear of persecution was really only a fear that mem-
bers of a private organization were trying to keep him from
blowing the whistle on their extracurricular activities. The
judge also discounted Kuqo’s stated fears of persecution in
light of the fact that Kuqo had voluntarily returned to
Albania in 1997. In light of these and other reasons, Kuqo’s
application for asylum and other relief was denied.
The review before us, however, pertains not to the merits
of Kuqo’s application but rather to a matter of procedural
concern, namely, the dialect spoken by his interpreter dur-
ing the first day of his two-day hearing before the immigra-
tion judge. Immediately prior to Kuqo’s February 17, 1999
asylum hearing, his counsel informed the judge that the
1
Arben Kuqo is the lead petitioner for his family members
Mahire, Era, Emea, and Kejt Kuqo, who base their claims for
relief on his application.
Nos. 03-2254 & 03-3180 3
court-appointed interpreter spoke the Gheg dialect of the
Albanian language rather than the Tosk dialect spoken by
Kuqo. Kuqo and the interpreter had conducted a sort of dry
run in advance of the hearing, however, which satisfied
Kuqo that, despite the difference in dialect, he was able to
communicate effectively with the interpreter. Kuqo’s attor-
ney told the judge that Kuqo “has advised me that he
believes that he understands this gentleman perfectly, and
thus wishes to continue.” Kuqo confirmed this on the record
in a colloquy with the judge.
The hearing proceeded smoothly until Kuqo’s counsel no-
ticed an unidentified man in the rear of the room gesticulat-
ing with his hands, which counsel took to mean that the
interpreter was not translating accurately. Counsel asked
the judge whether the individual might be able to assist in
determining where the translation went awry. The judge
denied the request, stating that “I can’t have somebody in
the back of the room—I don’t even know if he’s second-gues-
sing because you’re just talking about some hand gestures
now.” The judge further stated: “I don’t see any sign that
[Kuqo] doesn’t understand my questions, and so until I do,
until I’m presented with more concrete indication . . . that
there’s . . . miscommunication happening I’m just going to
observe, carefully observe what happens and see if there is
a problem.” The hearing proceeded and counsel made only
one other minor objection to the translation. A second day
of testimony occurred on September 10, 1999, this time with
an interpreter who spoke Kuqo’s dialect of Albanian.
Kuqo now contends that he was denied due process
because his interpreter’s inability to speak his dialect pre-
vented Kuqo from meaningfully participating in his asylum
hearing. We have no doubt that due process requires a com-
petent interpreter to assist an alien who does not speak
English in presenting evidence on his own behalf.
Nazarovna v. INS, 171 F.3d 478, 484 (7th Cir. 1999). But
4 Nos. 03-2254 & 03-3180
Kuqo’s claim founders on his inability to demonstrate either
that the translation was actually flawed or that he was
prejudiced by the allegedly ineffective translation.2
At the hearing Kuqo testified about his allegations of
persecution in some detail and appeared fully capable of
making his case for relief. Nowhere does he show that the
interpreter caused any kind of material misunderstanding,
either on the judge’s part or Kuqo’s. At oral argument
Kuqo’s counsel admitted that a recording of the hearing was
available and that another translator could have listened to
the tape and documented any instances of faulty transla-
tion. That was not done. Nor are there any affidavits in the
record explaining where the interpreter deviated from what
was actually said. Given the absence in the record of any
evidence of an erroneous translation, there is no basis to
evaluate Kuqo’s claim that he was denied due process
because of inadequate interpretation at the hearing.
For these same reasons, Kuqo is unable to demonstrate
prejudice. Immigration hearings, like trials, are not reviewed
for perfection; a reviewing court will not order a new hear-
ing without a showing that a party’s rights were actually
2
The difference between the two dialects is a matter about which
we are neither prepared nor qualified to opine. According to some
sources, the two dialects are of “limited mutual intelligibility.” See
http://www.geocities.com/language_directory/languages/
albanian.htm. Others suggest that the dialects “have been di-
verging for at least a millennium, and their less extreme forms are
mutually intelligible.” See http://www.britannica.com/eb/
article?tocId=74918. Here, Kuqo confirmed on the record that he
could communicate adequately with the translator; the objection
came later, based on the intervention of an unidentified onlooker
in the hearing room. This suggests that in this instance at least
the dialect variances were more subtle than petitioner now al-
leges.
Nos. 03-2254 & 03-3180 5
affected by the error alleged. Capric v. Ashcroft, 355 F.3d
1075, 1087 (7th Cir. 2004). In Ambati v. Reno, 233 F.3d
1054, 1061-62 (7th Cir. 2000), for example, the petitioner
claimed that he was denied a full and fair opportunity to
present his case because the immigration judge denied his
request for a continuance to allow new counsel more time to
prepare. We rejected the claim, because even assuming a
due process violation had occurred, the petitioner had not
“come forward with evidence that the violation affected the
outcome of the hearing.” Id. at 1062.
The same is true here. A generalized claim of inaccurate
translation, without a particularized showing of prejudice
based on the record, is insufficient to sustain a due process
claim. The decision of the BIA is AFFIRMED. The consoli-
dated petitions for review are DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-7-04