Gjeci, Gazmend v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-1153 & 05-2663
GAZMEND GJECI,
Petitioner,
v.
ALBERTO GONZALES,
Respondent.
____________
Petitions for Review of Orders of the
Board of Immigration Appeals.
No. A77-819-707
____________
ARGUED JANUARY 17, 2006—DECIDED JUNE 15, 2006
____________
Before CUDAHY, POSNER, and WOOD, Circuit Judges.
CUDAHY, Circuit Judge. Gazmend Gjeci, an ethnic
Albanian citizen of Kosovo, entered the United States
illegally on May 30, 1998, and filed an administrative
request for asylum a little less than one year later. His case
has languished in the immigration courts since that initial
filing; it was continued thirteen times—mostly at the behest
of the government—over the course of four years before
going to a merits hearing. Gjeci, who contends that he
suffered grave mistreatment at the hands of the Serbian
army during its occupation of Kosovo, argues that the
immigration judge denied him due process in refusing to
grant one more continuance so that he could obtain new
2 Nos. 05-1153 & 05-2663
counsel and rebut a government report stating that docu-
ments tending to establish persecution were “not what they
purport[ed] to be.” He further argues that the Board of
Immigration Appeals (BIA) abused its discretion in denying
his motion to reopen the case so that he could rebut that
government report. We agree that the merits proceeding
was fundamentally unfair and grant Gjeci’s petition on due
process grounds. We need not reach the issue involving the
motion to reopen.
I. Background
Although Gjeci’s asylum claim is relatively straightfor-
ward, it has spawned a rather confusing record. In addition
to the sheer number of times the case has been delayed, two
different immigration judges participated in its adjudication
and at least four different lawyers have been involved in
Gjeci’s representation in the seven years since he received
his notice to appear.
Gjeci’s asylum claim centers primarily on his membership
in the Democratic League of Kosovo (LDK), a separatist
political party comprised of Kosovar ethnic Albanians, and
on the political realities of Kosovo in the late 1990s. His
application explains that before he left Kosovo, Serbian
officials arrested him four times, and beat and otherwise
harassed him on a number of occasions for his nationality
and political opinions. The application also states that
Serbian officials suspected Gjeci and his father of collecting
food supplies for the Kosovo Liberation Army (KLA), an
insurgent guerilla outfit that initially directed its attacks
against the Serbian police and later against Serbian
civilians. See HUMAN RIGHTS WATCH, UNDER ORDERS: WAR
C RIMES IN K OSOVO 17-60 (2001), available at
http://www.hrw.org/reports/2001/kosovo/. Gjeci explained
that he and his father, who used to run a café until it was
Nos. 05-1153 & 05-2663 3
destroyed during the war, had gathered the food in an
attempt to help villages under siege.
A central component of the evidence in the present case
is a packet of seven documents that Gjeci offered to support
his contention that he was persecuted in Kosovo. These
documents (which, as we will see, are contested) include two
subpoenas ordering Gjeci to appear in court for alleged anti-
Serb activity, an order sentencing Gjeci to five months in
prison for anti-government activity (including anti-govern-
ment propaganda), two search warrants for the Gjeci home,
an order sentencing Gjeci to three years in prison and,
finally, a Yugoslavian identification card with his name and
photograph on it.
Gjeci’s asylum application began its slow journey through
the immigration courts on July 9, 1999, when he was served
with a notice to appear on July 30, 1999, for his removal
proceedings. He appeared as directed and brought an
interpreter with him but no lawyer. Immigration Judge
Anthony D. Petrone continued his case to November 5,
1999. The record contains no transcript for that date. On
February 4, 2000, Judge Petrone held a status conference
and set a merits hearing date for July 18, 2000. Attorney
Shefik Adrizi represented Gjeci at this hearing. On July 5,
2000, Gjeci gave the documents described above to the
government for examination.
On July 18, 2000, Gjeci (represented by Adrizi) appeared
before a new immigration judge (Carlos Cuevas). The
government requested a continuance, indicating that it
suspected some of Gjeci’s documents might have been
altered and that it intended to submit them to its Forensic
Document Laboratory (FDL) for examination. Judge Cuevas
stated that if the documents were authentic, he would be
inclined to grant Gjeci’s petition. He continued the hearing
and set a status call for October 19, 2000. No transcript
appears in the record for that day.
4 Nos. 05-1153 & 05-2663
The next hearing took place on November 30, 2000.
Bradley Harrington, an attorney from Adrizi’s office,
appeared on behalf of Gjeci, whose appearance had been
waived. The government indicated that it was still investi-
gating the authenticity of the documents and had nothing
new to offer at that point. Judge Cuevas set the hearing
over for another status conference on April 20, 2001. Adrizi
appeared on Gjeci’s behalf at that status hearing, and the
government stated that it was still waiting for results from
the FDL. The judge continued the hearing and set another
status conference for November 29, 2001. At the November
29 call, the government indicated that it had given Adrizi
the FDL report. Judge Cuevas told Adrizi that he assumed
Gjeci needed time to prepare his defense, continued the
hearing, and set a new status hearing for May 9, 2002.
On April 15, 2002, however, Judge Cuevas granted
Adrizi’s request to withdraw from his representation of
Gjeci. Adrizi’s motion cited irreconcilable differences
between the two and included an affidavit from Gjeci
authorizing Adrizi’s withdrawal. The affidavit further
indicated that Adrizi had returned Gjeci’s file to his client.
At this point, however, the government still possessed the
documents whose authenticity is central to this case.
Alexandra Baranyk represented Gjeci at the next status
hearing, which the judge held on May 8, 2002. The govern-
ment stated at this hearing that it still had Gjeci’s original
documents. Baranyk made an oral motion for their return,
but the government insisted that the request be in writing
so that it did not tender anything not so requested. Since
this hearing took place on a day when the judge had a very
full schedule of hearings, he indicated that he did not want
to spend time on this issue and told the parties to work it
out. He then continued the case to September 5, 2002, for a
document exchange. At the September 5 conference,
however, the government told Judge Cuevas and Baranyk
that it was not prepared to return the documents because
it was unclear whether they had been photographed (in
Nos. 05-1153 & 05-2663 5
accord with standard operating procedure). The judge
continued the case again.
On January 9, 2003, the parties came together for
another hearing, and the government returned the original
documents to Baranyk. Although Gjeci was at this hearing,
it does not appear that an interpreter was present, nor does
it appear on the record that Gjeci understood that his
documents had been returned to his counsel. The judge then
set a status conference date for August 7, 2003. On July 31,
2003, however, Gjeci filed a motion for change of venue. The
substance of this motion, which we transcribe in full since
Baranyk and Judge Cuevas deemed it so significant, reads:
Dear Judge Carlos Cueves, my name is Gazmend Gjeci
and my A # 77 819 707, and I have a Hearing scheduled
for a Master Calendar on August 7th, 2003 at 2:30pm.
I would really like if possible for my case to be moved at
155 S Miami Ave, Miami FL 33130, since I will be
moving in Florida as of August 4th. My job profile is as
Marble Designer and I want to have the opportunity to
have my own business dawn in Florida. I want to
apologize for this late notice and I hope that you would
take this under good consideration. I already have
contacted an attorney in Miami to take my case. My
new address in Florida is:
[omitted]
My old address is:
[omitted]
Thank you again for your understanding,
Sincerely,
Gazmend Gjeci
[signature]
(R. 05-1153 at 320.)
6 Nos. 05-1153 & 05-2663
As Gjeci noted in his motion, the judge had scheduled his
status hearing for the afternoon of August 7. Baranyk,
however, appeared before Judge Cuevas that morning on a
different matter. After dealing with the other matter,
Baranyk and Judge Cuevas turned to the Gjeci case, in
which Baranyk had moved to withdraw in light of Gjeci’s
motion for change of venue. Judge Cuevas told Baranyk
that he believed it was obvious that Gjeci was aware of the
scheduling of the August 7 hearing and also, because Gjeci
himself had filed a motion for change of venue instead of
relying on Baranyk, that Gjeci was “taking matters into his
[ ] own hands.” Judge Cuevas did not discuss the status of
Gjeci’s case, nor did they discuss his file or original docu-
ments. When Gjeci arrived for his hearing alone at 2:30
p.m. on August 7, 2003, Judge Cuevas asked him—in
English and with no interpreter—if he knew that Baranyk
had withdrawn. Gjeci responded that he did. After that
single question, Judge Cuevas moved on to the motion to
change venue. After denying that motion, the judge asked
Gjeci whether he understood, and Gjeci replied that he
understood some. At that point, Judge Cuevas called an
interpreter and again explained his reasons for denying the
motion to change venue. Significantly, however, the judge
never revisited the issue of Baranyk’s withdrawal, and he
asked Gjeci no questions beyond simply that first question
in English about whether he knew that she had in fact
withdrawn.
After denying the motion to change venue, Judge Cuevas
proceeded to schedule Gjeci’s merits hearing. He told Gjeci
that the merits hearing would take place on August 26,
2003, and that at that point he would take testimony and
conclude the case. The judge asked Gjeci if he understood,
and Gjeci again replied that he did.
Gjeci arrived at the August 26 hearing again alone,
although an Albanian interpreter was present. Judge
Cuevas questioned Gjeci and ultimately concluded that his
Nos. 05-1153 & 05-2663 7
story was not credible since he could not provide enough
details about his alleged arrests and beatings (precise
dates, for example) and since he could not rebut the FDL
report indicating that his documents had been falsified.
Gjeci, however, was confused about this hearing from the
start. He answered only one question before objecting, over
and over again, that he had no lawyer with him, that he
had not understood that this hearing would be his merits
hearing (he testified he thought he was again up for a
status conference), and that he had no idea where his
original documents were. Despite his protests, Judge
Cuevas refused to grant him a continuance and pressed
onward, ultimately concluding that Gjeci had failed to meet
his burden of proof. The documents played a significant part
in Judge Cuevas’s decision; he criticized Gjeci at length for
failing to rebut the FDL report indicating that the docu-
ments were not what they purported to be. (R. 05-1153 at
52-55, 57-58, Aug. 26, 2003.)
After the August 26 hearing, Gjeci, via Miami attorney
Lourdes Martinez-Esquivel, appealed Judge Cuevas’s
decision to the BIA, arguing that the judge had violated his
due process rights by proceeding with the hearing. It
appears from the record that the attorney never possessed
Gjeci’s documents and was therefore unable to pursue any
challenge to the FDL report. The BIA summarily affirmed
Judge Cuevas’s decision. At some point after that, Gjeci
retained his current counsel, Stephen Berman, who set
about trying to locate Gjeci’s documents. On March 9, 2005,
Berman exchanged emails with Susan Fortino-Brown, an
attorney in Baranyk’s firm. Berman told her that, according
to the hearing transcripts, her office should have Gjeci’s
documents. Fortino-Brown indicated that her firm would
check the file but “[m]ost likely the service kept the origi-
nals though.” (R. 05-2663 at 26, Mar. 9, 2005.) Fortino-
Brown’s firm later discovered that they had retained the
documents for more than two years but finally sent them to
Berman.
8 Nos. 05-1153 & 05-2663
After receiving the documents, Gjeci retained a forensic
document expert to examine the documents. That expert
contradicted the FDL report, finding no conclusive proof of
document tampering. The expert also noted that it was not
appropriate for the FDL to determine that the documents
were not authentic without comparing them to similar
Kosovar documents. Gjeci filed a motion to reopen his case
in order to submit this evidence. The BIA denied the
motion, explaining that Judge Cuevas had not relied wholly
on the FDL report in denying asylum. Specifically, the BIA
noted that Gjeci’s testimony was too unconvincing to
support his claim. Gjeci filed petitions for review both of the
due process appeal and of the denial of his motion to
reopen.
II. Discussion
We review a claim of denial of due process de novo. Feto
v. Gonzales, 433 F.3d 907, 912 (7th Cir. 2006); Kerciku v.
INS, 314 F.3d 913, 917 (7th Cir. 2003). To prevail on a due
process claim, an alien must show prejudice likely to impact
the results of the proceedings. Capric v. Ashcroft, 355 F.3d
1075, 1087-88 (7th Cir. 2004). Because the BIA summarily
affirmed the immigration judge’s opinion with respect to
due process, the immigration judge’s opinion constitutes the
final agency determination. Kllokoqi v. Gonzales, 439 F.3d
336, 341 (7th Cir. 2005).
Removal proceedings must be fundamentally fair and
allow an alien a reasonable opportunity to present evidence.
Kerciku, 314 F.3d at 917-18. Although much about the way
Gjeci’s case was handled is unsettling, the central due
process error stems from the way in which Baranyk was
permitted to withdraw from Gjeci’s representation. We
accordingly focus our discussion there and on the conse-
quences of that withdrawal. We find that Baranyk’s
withdrawal—coupled with her retention of Gjeci’s docu-
Nos. 05-1153 & 05-2663 9
ments and the immigration judge’s refusal to grant Gjeci a
continuance when it became apparent that Gjeci did not
fully understand the consequences of Baranyk’s withdrawal
and would not be able to evaluate the FDL report—deprived
Gjeci of a fundamentally fair proceeding.
It is well settled that, while aliens have no Sixth Amend-
ment right to counsel, they do enjoy a statutory right to
retain counsel. 8 U.S.C. § 1362 (2006); Ambati v. Reno, 233
F.3d 1054, 1061 (7th Cir. 2000). This right is important to
the fairness of removal proceedings, and immigration
judges commonly grant aliens an initial continuance to
secure representation, as Judge Petrone did here. See
RICHARD D. STEEL, STEEL ON IMMIGRATION LAW 2D § 14.5
(2005). Related to this statutory right are the rules that an
alien must knowingly waive representation, e.g., Ramirez v.
INS, 550 F.2d 560, 565 (9th Cir. 1977), and that immigra-
tion judges must take pains to ensure that an alien’s rights
are protected when counsel wishes to withdraw. E.g., Al
Khouri v. Ashcroft, 362 F.3d 461, 464-65 (8th Cir. 2004);
U.S. DEP’T OF JUSTICE, EXEC. OFFICE OF IMM. REV., IMMIGRA-
TION JUDGE BENCHBOOK I:8:I.D.5 (2001) [hereinafter
BENCHBOOK].
In the present case, both Baranyk and Judge Cuevas
inferred from Gjeci’s pro se motion to change venue an
intent to take matters into his own hands and to proceed
without Baranyk. But this conclusion was not based on
direct questioning, and there was little effort to verify
Gjeci’s intent. Drawing inferences from Gjeci’s pro se
motion is particularly troubling, since he was represented
by counsel. See, e.g., Abdullah v. United States, 240 F.3d
683, 686 (8th Cir. 2001) (holding that a represented party
in a criminal action is generally not entitled to have his pro
se motions reviewed).
Compounding questions involving the inferences here
are the surrounding circumstances. Immigration judges
10 Nos. 05-1153 & 05-2663
may, of course, grant an attorney’s motion to withdraw as
a counsel of record upon an oral or written motion. 8 C.F.R.
§ 1003.17(b) (2006). Grounds for motions to withdraw
include (among other things) a difference of opinion over the
direction of the case, an alien’s failure to cooperate with the
attorney in preparing the case and an alien’s failure to keep
the attorney apprised of his whereabouts or his failure to
appear for hearings. E.g., In re Rosales, 19 I.&N. Dec. 655,
656-57 (BIA 1988).
But, although judges generally have wide discretion to
grant or deny motions to withdraw, they must bear in mind
their duty to protect an alien’s rights. See BENCHBOOK, at
I:8:I.D.5; see also Al Khouri, 362 F.3d at 464-65 (discussing
an immigration judge’s duties when an alien appears pro
se). Immigration judges must, of course, be sure that aliens
are aware of their hearing dates, which Judge Cuevas was
able to infer here. But beyond this, the judge took no other
steps to protect the alien’s rights. Gjeci was not present,
although he was due to appear in a few hours. Nothing in
the record suggests Gjeci knew that Baranyk was with-
drawing but for a single after-the-fact question in untrans-
lated English. Judge Cuevas made no attempt to ascertain
the status of the case before granting Baranyk’s motion,
especially including the status of the documents that all
parties regarded as central to Gjeci’s petition. The judge
asked no questions about whether Baranyk’s client commu-
nicated any desire to proceed without her representation in
the case. And importantly, the judge did not order Baranyk
to return Gjeci’s documents.
When Gjeci arrived for his hearing a few hours later, the
judge asked him no questions about whether he actually
wanted to proceed without Baranyk. The judge did not
discuss the critical consequences of the counsel’s with-
drawal (that Gjeci, for example, would be responsible for
recovering the documents and rebutting the FDL report) or
what Baranyk’s reasons were for the withdrawal (which
Nos. 05-1153 & 05-2663 11
would have afforded Gjeci the opportunity to explain
whether he understood what he was doing when his filed
his pro se motion). The judge set the merits hearing over for
August 26, 2003, but spent little time explaining to Gjeci
that Gjeci would need to put on evidence that day if he
came without a lawyer. He told Gjeci that the government
had given Gjeci and his prior attorney a report indicating
that the documents had been falsified and that he had “a
right to bring witnesses or evidence, including documents
to rebut or [ ] to challenge the Government’s submission”
against him. Yet he failed to ask the next logical question
(indeed, the critical question that would protect Gjeci’s
rights): if he had the documents themselves or knew where
they were.1
To be sure, a lawyer’s professional responsibility upon
withdrawal includes the duty to take reasonable steps to
avoid foreseeable prejudice to the rights of the client,
including giving notice to the client, allowing time for the
employment of other counsel, and delivering to the client all
papers and property to which the client is entitled. MODEL
RULES OF PROF ’L CONDUCT R. 1.16(d) (2004). None of this
happened here, and we simply cannot understand why
Baranyk apparently made no effort to have Gjeci’s docu-
ments examined and then improperly retained them for
over two years. Gjeci may have had a colorable claim for
ineffective assistance of counsel, had he followed the
procedures of In re Lozada. 19 I.&N. Dec. 637, 639 (1988);
see also Stroe v. INS, 256 F.3d 498, 501-02 (7th Cir. 2001).
But any potential errors on Baranyk’s part do not under-
mine Gjeci’s due process claims.
1
Finding it improper that the immigration judge did not ask
questions along these lines imposes no onerous requirements on
immigration judges. It requires them only to perform their duty
of protecting an alien’s rights—and asks them to do what the
immigration judge benchbook recommends in entertaining
motions to withdraw: use common sense. BENCHBOOK, at I:8:I.D.5.
12 Nos. 05-1153 & 05-2663
The errors surrounding Baranyk’s withdrawal were
compounded by Judge Cuevas’s refusal to continue Gjeci’s
merits hearing when it became obvious that Gjeci had not
understood what happened with respect to the withdrawal.
Although an immigration judge’s decision to grant or deny
a continuance will generally be upheld, see Cordoba-Chavez
v. INS, 946 F.2d 1244, 1246 (7th Cir. 1991), an unyielding
insistence on expeditiousness may, in some circumstances,
violate an alien’s rights. See Castaneda-Delgado v. INS, 525
F.2d 1295, 1300 (7th Cir. 1975). The problems surrounding
the withdrawal so contaminated this hearing that insisting
that it continue without explanation deprived Gjeci of his
right to a fundamentally fair hearing.
The record is rife with exchanges indicating that Gjeci
had not understood the consequences of Baranyk’s with-
drawal, particularly with regard to the documents. The
following examples are indicative of the confusion:
Judge: All right. We, we will move ahead with your
case. . . .
Gjeci: This is the hearing, because I am now—I have-
n’t been prepared for the hearing. I didn’t think
we would go forward. Because I am trying to
get a lawyer.
Judge: Sir, you’re out of time for a lawyer. I told you
last time I was not going to continue your case
for a lawyer.[2]
Gjeci: I have talked to a lawyer and please, if you will
continue, and the next time I will come here
with a lawyer. Because I have talked to a
lawyer already.
(R. 05-1153 at 134-35.)
***
2
We note that the transcript of the August 7 hearing says
nothing this clear or vehement.
Nos. 05-1153 & 05-2663 13
Gjeci: I know that, but without an attorney I cannot
speak, because the attorney will tell me how
the procedures will go, and what is going to
happen, and how, which one will follow the
other. And the other reason is that all the
attorneys that I have contact, they were wait-
ing to receive the original documents that I
have submitted to the Government, and they
were never able to receive the documents, the
original documents from the Government.
Government:
Judge, for the record, the original documents
were handed over to counsel’s attorney, in open
Court.
Judge: [to interpreter] You want to tell him.
Gjeci: I don’t know who has my original documents. I
have no clue who that the original documents
has been taken by an attorney.
(R. 05-1153 at 147-48.)
It is plain that Gjeci did not understand that the hearing
under scrutiny was to be a merits hearing. It is particularly
plain that he did not understand that he would need to
retrieve his documents and organize his rebuttal. Judge
Cuevas had an opportunity to undo the damage of
Baranyk’s improper withdrawal by continuing the case.
Failing to do so here denied Gjeci a fundamentally fair
hearing.
In addition, the weight that Judge Cuevas placed on the
unrebutted evidence that the documents had been falsified
and his earlier comments that he would be inclined to grant
Gjeci’s asylum petition if they were deemed authentic
satisfy the requirement that Gjeci demonstrate prejudice.
(R. 05-1153 at 69) (“So, my feeling is that, if he’s from a bad
part [ ] of the world, and as I said, in the absence of any
14 Nos. 05-1153 & 05-2663
conclusive documentation on the validity of the documents,
I probably want to grant [Gjeci’s petition].”) He need not
show with certainty that his proceedings would have come
out differently but for the error. He need only show that the
error had the potential to affect the outcome of the hearing,
which he has certainly done here. Ambati, 233 F.3d at 1061.
We note in closing that the BIA’s conclusion that Judge
Cuevas rested his decision on Gjeci’s unconvincing testi-
mony regarding his alleged persecution fails to address
Gjeci’s repeated claims that he had been caught unaware by
the vagaries of his hearing and that he was not sufficiently
prepared. We do not suggest, of course, that aliens can
make colorable due process claims simply by asserting on
the record that they were unaware of the procedure or that
they were unprepared. The critical difference here is that
the immigration judge permitted the alien’s counsel to
withdraw and retain the most important evidence in the
case without ever ascertaining that the alien understood
that he would need to prepare his case going forward. It is
impossible for us to know whether Gjeci’s documents are
authentic on this record. But he should have a fair opportu-
nity to rebut a report indicating they are not before an
immigration judge willing to listen.
III. Conclusion
In sum, we conclude that proceeding with a merits
hearing on August 26, 2003, deprived Gjeci of a fundamen-
tally fair hearing. Because we conclude that the merits
hearing denied Gjeci due process, we need not address the
argument that the BIA abused its discretion in refusing to
reopen the case. Accordingly, we GRANT Gjeci’s petition for
review and REMAND the case for proceedings consistent
with this opinion.
Nos. 05-1153 & 05-2663 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-15-06