                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-1948
ADRIAN KERCIKU and NAJADA KERCIKU,
                                                      Petitioners,
                              v.

IMMIGRATION AND NATURALIZATION SERVICE,
and JOHN ASHCROFT, ATTORNEY GENERAL,
                                                     Respondents.
                        ____________
               On Petition for Review of an Order
              of the Board of Immigration Appeals.
               Nos. A 76 858 597 & A 76 858 598.
                        ____________
  ARGUED NOVEMBER 14, 2002—DECIDED JANUARY 3, 2003
                   ____________


 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 corrobo-
rate his claims, the Immigration Judge discredited his
testimony and documentation, abruptly ended the hearing
2                                                No. 02-1948

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 re-
gime 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 Alba-
nian 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 Alba-
nian 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.



1
  Upon their own motion, the Kercikus’ applications for asylum
were joined. Thus, Mrs. Kerciku’s status depends upon the out-
come of her husband’s application.
No. 02-1948                                              3

  All of these experiences spurred Kerciku in 1990 to be-
gin 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 campaign-
ing 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 con-
fidant” of Tritan Shehu, the Democratic Party’s chairman
and Foreign Minister. Kerciku claims that during this
campaign, he began receiving death threats from mem-
bers 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 Alban-
ian embassy there.
  After moving to Holland, Kerciku continued to re-
ceive death threats from sources identifying themselves
as members of the Albanian Socialist Party. These threats
and the Socialist Party’s recapture of the Albanian gov-
ernment in 1997 convinced Kerciku and his wife to emi-
4                                              No. 02-1948

grate 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 sub-
mitted several documents purporting to certify his past
political persecution, his membership in various pro-demo-
cracy 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 ques-
tioned 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 attor-
ney 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 ex-
amination, he noted that “we have much more to go in our
case. . . . [t]his is not a major part of our case.” But the
No. 02-1948                                               5

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 de-
clined, 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 deci-
sion. 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 rath-
er than from the embassy itself, and his “evasive” testi-
mony 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” re-
garding 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 be-
fore 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 affi-
davit indicates that based on consultations with Alba-
nian 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.
6                                            No. 02-1948

  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 pre-
sent witnesses to corroborate his own testimony.” With-
out responding to this argument, and in a very abbre-
viated decision, the BIA found that the judge deter-
mined 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 (2001) (“[T]he Due Process Clause ap-
plies 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 “a meaningful opportunity to be
heard.” Nazarova, 171 F.3d at 482. Furthermore, Congress
has codified an applicant’s right to present evidence at
his or her removal hearing. See 8 U.S.C. § 1229a(b)(4)(B)
(“the alien shall have a reasonable opportunity . . . to
No. 02-1948                                              7

present evidence on the alien’s own behalf . . . .”). And
not receiving a meaningful opportunity to be heard is
sufficient to require a new hearing. See Batanic v. INS, 12
F.3d 662, 667 (7th Cir. 1993) (“[P]rocedural errors are
cured by holding a new hearing in compliance with due
process requirements.”).
  Although what constitutes “a meaningful opportunity
to be heard” is far from clear, we distinguish between
two types of situations when analyzing due process chal-
lenges. In the first type of situation, the immigration
judge limits the extent of some testimony or frequently
interrupts the applicant’s presentation. These limitations,
however, do not violate due process because they serve
to focus the proceedings and exclude irrelevant evidence.
See Roman v. INS, 233 F.3d 1027, 1032 (7th Cir. 2000);
Iliev v. INS, 127 F.3d 638, 643 (7th Cir. 1997); Kuciemba
v. INS, 92 F.3d 496, 501-02 (7th Cir. 1996); see also
Aguilar-Solis v. INS, 168 F.3d 565, 568-69 (1st Cir. 1999);
Mikhailevitch v. INS, 146 F.3d 384, 391-92 (6th Cir. 1998).
In the second type of situation, by contrast, the immigra-
tion judge violates due process by barring complete chunks
of oral testimony that would support the applicant’s
claims. Most notably, in Podio v. INS, 153 F.3d 506, 507-
08 (7th Cir. 1998), we held that an applicant’s due proc-
ess rights were violated during his deportation hearing
because the judge did not allow him to testify about
his experiences in prison in his home country or to present
corroborating testimony from family members about
his past persecution. See also Colmenar v. INS, 210 F.3d
967, 971 (9th Cir. 2000) (remanding where the judge did
not allow the applicant to testify about anything in his
written application); Shahandeh-Pey v. INS, 831 F.2d
1384, 1390 (7th Cir. 1987) (remanding where the judge
did not allow the applicant to present favorable evidence
to rebut charges of criminal conduct).
8                                                No. 02-1948

  The Kercikus’ case falls within this second category. The
judge did not just interrupt their presentation or limit
some of the testimony that they wanted to present. Rather,
the judge did not allow the Kercikus to make any presen-
tation—virtually the only testimony that the judge re-
ceived was his own questioning of Kerciku about the
source of his documentation and the death threats that
he allegedly received in Holland. Much like the case in
Podio, the judge “took over the questioning, so that in
the end the judge, rather than the attorney, had elicited
whatever testimony [the applicant] was able to give,”
153 F.3d at 510. Similar to Podio again, the judge did
not permit the testimony of the Kercikus’ expert, whose
affidavit indicates that he would have corroborated
Kerciku’s claims of past persecution, as well as the
couple’s fear that they would be killed if they returned
to Albania. And similar to Colmenar, the judge made up
his mind about the case and was subsequently unwilling
to listen to any testimony from Kerciku about the claims
in his written application (e.g., being sent to a labor camp
as a child, not being allowed to attend university, being
beaten severely and held for months at a time, receiving
death threats before he left for Holland). Thus, this case
presents a situation in which the immigration judge
excluded so much of the Kercikus’ proposed testimony
that he violated their due process rights.
  To find a due process violation, however, we also re-
quire an applicant to show that he or she was prejudiced
by the judge’s refusal to hear the testimony of the wit-
nesses, “i.e., that the testimony he sought to introduce
‘had the potential for affecting the outcome of . . . deporta-
tion proceedings.’ ” Podio, 153 F.3d at 511 (quoting
Kuciemba, 92 F.3d at 501). Here, the Kercikus’ attor-
ney indicated that before the judge refused to hear any
further testimony, they had planned to have Kerciku
take the witness stand to testify about his experiences
No. 02-1948                                               9

in Albania and to have their expert corroborate these ex-
periences and the danger the Kercikus would face if
they returned to Albania. See id. (finding prejudice
where the applicant was not allowed to present corrob-
oration testimony). Even if the judge’s negative credibil-
ity determination weighed against the Kercikus’ applica-
tion, the testimony that they wished to present still had
the “potential” to affect the outcome of the hearing. See
Shahandeh-Pey, 831 F.2d at 1389 (finding that rebut-
tal evidence would have had a “potential” effect on the
outcome even though the INS had already presented
evidence of the applicant’s numerous criminal convic-
tions). For example, the testimony could have been so
compelling and consistent that it would have altered
the judge’s initial credibility determination and overall
view of the case. The judge’s refusal to hear testimony
that formed the heart of the Kercikus’ presentation cer-
tainly prejudiced them.
  Responding to the Kercikus’ due process challenge, the
INS contends that the judge properly terminated the
hearing once he determined that Kerciku was not cred-
ible. The INS asserts that credibility is “a threshold is-
sue that must be decided in the applicant’s favor before
it can be determined whether his testimony met the
probative standards for asylum eligibility,” see 8 C.F.R.
§ 208.13(a) (“The testimony of the applicant, if credible,
may be sufficient to sustain the burden of proof without
corroboration.”). In other words, the INS argues that the
Kercikus did not have a right to continue their hearing
or present further testimony because the judge had al-
ready made a credibility determination that doomed
their application.
   We reject this argument. An applicant’s right to pre-
sent testimony to support his or her claims is not nulli-
fied by adverse considerations, including negative credibil-
ity findings, that may weigh against, or even ultimately
10                                              No. 02-1948

doom, the applicant’s case in the judge’s eyes. The INS
made a similar argument in Podio, contending that it
was not necessary to allow the applicant to present ad-
ditional testimony because other material in the record,
including his less than “straightforward” answers to
questioning at the hearing, had already undermined his
application, 153 F.3d at 509. We rejected the INS’s ar-
gument because it disregarded the importance of due
process in immigration proceedings:
     We are troubled by the implication of this argument,
     for it asks us to disregard Podio’s contention that, at
     his hearing, he was not permitted to present the
     evidence that he was entitled to present (footnote omit-
     ted). We will not marginalize or bracket the require-
     ments of due process in assessing the reasonableness
     of the immigration judge’s decision. The issue we ad-
     dress here is not whether the evidence as it stands
     supports the result reached by the immigration judge
     and the BIA. Rather, the issue is whether the original
     deportation hearing was conducted in a fair enough
     fashion for one to determine that the BIA’s decision
     was based on reasonable, substantial, and probative
     evidence.
Id. Whether the applicant will ultimately succeed on his
or her application is not the point—the critical issue is
whether the applicant received a “fair” hearing. The
Kercikus did not, and therefore, the case must be re-
manded.


                        Conclusion
  After making up his mind about the Kercikus’ case, the
immigration judge terminated their removal hearing
without allowing them to present their most favorable
testimony. In so doing, the judge deprived the Kercikus
of “a meaningful opportunity to be heard” and violated
No. 02-1948                                             11

their due process rights. Therefore, we grant the Kercikus’
petition for review, vacate the deportation order, and
remand for further proceedings in accordance with this
opinion. Although the choice of a presiding judge is
left to the discretion of the BIA, we strongly urge the
BIA to assign a different judge to the Kercikus’ case on
remand (cf. Circuit Rule 36 of the United States Court of
Appeals for the Seventh Circuit).

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-3-03
