Tag Archive for: immigration lessons

Cyrus Mehta

FINAL IMMIGRATION LESSON FROM THE DISMISSAL OF THE STRAUSS-KAHN CASE

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By Cyrus Mehta

Much has been written about the amazing turn of events in the Strauss-Kahn case that resulted in the dismissal of the criminal charges against him. The Manhattan DA’s motion to dismiss the indictment reads like a treatise on the ethical role of the district attorney in prosecuting a case, while also richly detailing the inconsistencies of the accuser, Nafissatou Diallo. According to the motion, if the prosecutor does not believe that a crime was committed beyond a reasonable doubt, he or she cannot ask the jury to do so. Moreover, the motion goes on to state that the prosecutor’s duty is to seek justice and not just to win cases. Under New York ethical rule 3.3, a lawyer cannot offer evidence that he or she knows is false and has a duty to correct any false evidence that the lawyer has already offered to the court. I do not fault the ethical judgment of Cyrus Vance, the Manhattan DA, in declining to prosecuting this case, as well as alerting the court of the many inconsistencies of Ms. Diallo after they came to light, although Slate has offered a well reasoned rebuttal of the inconsistencies of Ms. Diallo that have been alleged by the DA’s office.

The main concern for this writer, as stated in prior blogs on the Strauss-Kahn case, is that in the future immigrants will be more reluctant to come forward and press charges if they have been victims of sex crimes. Since in most such cases, the success of the prosecution depends on the credibility of the accuser, one with a less than perfect immigration past will be susceptible to her credibility being attacked in a trial. It is not uncommon for asylum seekers who have been persecuted to be coached by unscrupulous immigration practitioners, both authorized and unauthorized, to exaggerate their claims. For instance, one who may have suffered female circumcision, which in itself is a basis for asylum, may be coached to also state that she was raped by governmental actors to bolster the claim. This is not to suggest that asylum seekers do not present truthful claims. In the experience of this writer, most do, but it is also possible that some may not, especially if they are not represented by an ethical practitioner, and still obtain asylum. If they become victims of a horrific rape in the future, they may be discouraged from coming forward even if the prosecutor is willing to take up the case.

As the recent New York Times editorial on the Strauss-Kahn case aptly states:

There is a legitimate concern that his decision may discourage rape victims from coming forward in the future. Women who have been assaulted often worry, with reason, about being victimized a second time in court. And those with problematic backgrounds must feel confident that they can demand and receive justice.

Finally, what about the fate of Ms. Diallo? Will she be thrown to the wolves even though it is possible that a crime may have been committed during those few minutes in the hotel room, but the prosecutors have declined to go forward because they cannot convince a jury beyond a reasonable doubt that it occurred? If her asylum case was fabricated, the DHS could potentially reopen the case and place her in removal proceedings. She can try to again seek asylum on the genuine grounds of persecution that she suffered, but did not reveal in her asylum application. On the other hand, because she has a minor daughter, and she has been a victim of female circumcision, she could also merit the exercise of the government’s prosecutorial discretion.

Ms. Diallo can also seek a U visa if all else fails and her back is pushed against the wall. To qualify for the U visa under Section 101(a)(15)(U) of the Immigration and Nationality Act, the foreign national must demonstrate that she “has been helpful, is being helpful, or is likely to be helpful” to the prosecutor in addition to demonstrating substantial physical or mental abuse from the criminal activity. After all this, one’s instinctive reaction is that Ms. Diallo was not helpful to the prosecution in investigating or prosecuting criminal activity that would qualify one for the U visa, such as a rape or related sex offenses. The applicant must also possess “credible and reliable information that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based.” See 8 C.F.R. 214.14(b)(2). However, in the U visa immigration context, it can be argued that she was helpful to the prosecution, despite her many inconsistencies, but it was ultimately the prosecutor’s office that decided to drop the case as they could not prove to a jury beyond a reasonable doubt that the offense was committed. A careful read through the motion to dismiss does not suggest that the prosecution was convinced that criminal activity did not occur in the hotel room. A U visa applicant should not be deprived of this benefit only because the prosecution ultimately decided, based on the flaws in the case, that it could not take the case forward in a criminal proceeding under a higher “beyond a reasonable doubt” standard. Also, the grant of a U visa ought not to be based on whether the victim was able to prove the charges against the accuser. Thus, even if there is an acquittal against the defendant who is found not guilty, the U visa ought to still be approved for the crime victim who was helpful to the prosecution, even though unsuccessful. Moreover, the U visa depends on whether the prosecutor will sign the crucial certificate of helpfulness that provides the basis for a successful U visa application. Even if the Manhattan DA’s office dismissed the indictment, it should not shy away from certifying that Ms. Diallo was helpful for purposes of the U visa. This is the least that Cyrus Vance can do if Ms. Diallo needs to remain in the United States. Such a gesture would also provide some encouragement for other immigrants to come forward who have been victims of sex offenses.

Cyrus Mehta

IMMIGRATION LESSONS FROM THE FALL AND RISE OF STRAUSS-KAHN – PART II

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By Cyrus D. Mehta

Ever since the criminal case of Strauss-Kahn began to disintegrate after the New York District Attorney’s office revealed flaws in the credibility of the accuser, I looked back at my earlier blog, Immigration Lessons From the Fall of Strauss Kahn and feel that many of the immigration lessons I reflected upon still hold true. I wrote:

It is difficult for any victim of a sex crime to come forward, given that the defense will seek to turn the tables against her and undermine her credibility. It is even more difficult for an immigrant who has been a victim of a sex crime to come forward since this person’s immigration status, or lack thereof, will also be put under the microscope.

One of the reasons why the case has collapsed is because DSK’s accuser lied on her asylum application. She also fudged her tax returns. I can only speculate that if the NY DA’s office had an immigration expert on its team at the very outset, her asylum story could have been closely analyzed. If it was found to be fabricated, she could have been advised to come clean. Even if her asylum grant was potentially revocable, she could have been assured a U visa status in exchange, which is issued to non-citizens who have been or who will be helpful in a prosecution involving certain offenses, including rape and sexual abuse. Even if the prosecution of such an offense is not successful or is not likely to move forward presently, the non-citizen may still qualify for U visa status. It may have also been possible to file another asylum claim based on the genuine grounds.

Many asylum applicants may have genuine claims, but are still encouraged by unscrupulous practitioners, often times unauthorized, to embellish or alter their stories. This is particularly true of people fleeing desperately poor countries like Guinea who may not be sophisticated and employ the services of a competent attorney in their quest for asylum. The same holds true for the filing of tax returns. Many poor immigrants are misled into filing less than perfect tax returns. An experienced immigration attorney often comes across immigrants who have claimed dependants they were not supposed to claim in their tax return, and the prudent course is to advise the client to amend the tax return or explain to the Immigration Judge, especially in a waiver application where demonstration of good moral character is crucial, the circumstances that caused the filing of an improper tax return. Often times, this strategy is successful and it is still possible to invoke the favorable discretion of the Immigration Judge in granting relief. Putting the false tax return issue in perspective, I am sure if IRS agents looked really carefully they might find flaws in the tax returns of many Americans with regard to their deductions or other positions they may take to save a few dollars in taxes.

The bottom line is that such a person should not be branded as a fabricator and liar. Such actions are a desperate attempt to flee poverty and persecution in exchange for hope in America. While one should not condone the filing of false applications to gain an immigration benefit, there may be ways to mitigate the adverse consequences by either rehabilitating the application or by exploring other forms of relief. If DSK’s accuser had a history of filing a false asylum application and tax returns, it should not undermine her ability to be a credible witness regarding the circumstances of her sexual assault, and there is still clearly a case for trying Strauss-Kahn. As to the conversation the accuser had with her friend in immigration detention regarding gaining a financial benefit, one need not reach the sole conclusion that her accusation was false. Is it so unusual for anyone who has been victimized to vent to a family member or close friend that she is prepared to take the perpetrator to the cleaners because he can afford to compensate her for lost wages?

Possibly, if the accuser was advised by someone with a perspective on how desperate immigrants try to enter the US, and given assurances regarding her ability to continue to remain in the US notwithstanding the fabrication in her asylum claim, there may have been less of a chance for the case to get derailed and she may have testified more consistently to the grand jury. Even so, there is no reason why the case should not go ahead. Failure to prosecute this case, when there is still a credible accusation of sexual assault, will dissuade other immigrants from coming forward if their immigration past will be viewed under a microscope for the purpose of tearing their credibility to shreds. One ought not to be the perfect immigrant or victim to be able to come forward with a criminal complaint.

Finally, in my prior blog post, I also reflected about how non-citizens on temporary visas are less likely to get bail even before they have been found to be guilty. This is because their non-immigrant status, often linked to a job, evaporates after they are arrested and indicted, and they are then automatically viewed as a flight risk. I do hope that after the lessons learned from the fall and rise of Strauss-Kahn, judges in criminal court will be more prone to releasing a non-citizen defendant on bail and not automatically view this person as a flight risk just because he or she is not a US citizen.

Cyrus Mehta

IMMIGRATION LESSONS FROM THE FALL OF STRAUSS-KAHN

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By Cyrus D. Mehta

From an immigration lawyer’s perspective, the fall of Dominique Strauss-Kahn, the former head of the International Monetary Fund, who has been charged with attempted rape and other serious sex offenses against an immigrant hotel worker from Guinea in a posh New York hotel, resonates with important immigration themes.

Most important, the word of an immigrant worker who was subject to attempted rape, imprisonment and other charges has been taken extremely seriously against one of the world’s most powerful men. So seriously was her word taken that the NYPD actually arrested Strauss-Kahn while his Air France plane was about to take off from JFK airport last Saturday.

It is difficult for any victim of a sex crime to come forward, given that the defense will seek to turn the tables against her and undermine her credibility. It is even more difficult for an immigrant who has been a victim of a sex crime to come forward since this person’s immigration status, or lack thereof, will also be put under the microscope.

While media reports indicate that Strauss-Kahn’s accuser was granted asylum, and as a result, is in a lawful status, there are many survivors (rather than victims) of domestic abuse and sex crimes who may not even be in a lawful status. Despite all the flaws in the US immigration system, one shining spot is that survivors of domestic violence and sex crimes do have recourse. The battered spouse of a US citizen or lawful permanent resident, and in some cases of a nonimmigrant, can apply on their own for status without the help of the abuser. Those who are the victims of sex crimes, even though the perpetrator may not be a spouse, can apply for U or T visas if they are helpful to the investigation or prosecution. Once the application is approved, many of the grounds of ineligibility that would apply to other prospective immigrants either do not apply to this group of vulnerable immigrants or can be more easily waived.

Another lesson can also be drawn from the sordid Strauss-Kahn saga. Even the alleged perpetrator, Strauss-Kahn, is not a citizen of the US and has been on a nonimmigrant visa, presumably a G-4 visa for officers of international organizations, while he was with the IMF. I have observed that many nonimmigrants, who are accused of crimes, even non-violent white collar crimes, have a harder time to get bail after they have been arrested. In many situations, the nonimmigrant visa status is linked to the employment in the US, which more often than not disappears after the defendant is accused of the crime. The prosecutor seizes upon this to argue that the defendant is more of a flight risk than a defendant who is a US citizen. While Strauss-Kahn is in a different league from a regular nonimmigrant who is charged with a crime, and poses additional flight risk considerations, the fact of the matter is that one who is on a temporary visa in the US has a harder time to get bailed out. Still, Strauss-Kahn has done better than most other criminal defendants on a nonimmigrant visa because he just got bail.