CASE OF ASYLUM APPLICANT ACCUSED OF DOCUMENT FRAUD ENDS IN A GRANT OF PROSECUTORIAL DISCRETION

Yesterday, I appeared before the Honorable Immigration Judge, Ignacio Fernandez, of the San Diego, Immigration Court, for what had promised to be an exciting, complex and intriguing showdown with ICE Chief Counsel over their allegation of document fraud against a Kenyan asylum seeker, based upon what both myself and the IJ viewed as an inconclusive Forensic Document Lab (FDL) report on certain documents which the applicant had submitted in support of the asylum claim.  A class of law students from Thomas Jefferson Law School had been invited by the IJ to observe the nuanced arguments which would have to be made by both sides in order to promote their competing interests.

Oringinally, this case had been tried by me, and asylum granted by IJ Fernandez, in June of 2009, in spite of the FDL report.  ICE then timely appealed, and the applicant was forced to retain me to represent him before the Board of Immigration Appeals (BIA).  In November of 2010, the BIA remanded the case to IJ Fernandez for further proceedings, to give ICE another opportunity to attempt to discredit the applicant's supporting documents by presenting the testimony of the FDL document examiner who had prepared the inconclusive report.  The Applicant diligently provided a number of rebuttal documents to demonstrate the legitimacy of the documents which were submitted in the case, and I again demanded the CV of the document examiner which had never been provided, arguing that the applicant's due process would be violated where the qualifications of the examiner are not provided prior to trial.

In November of 2013, believing that a compromise had been reached with ICE to grant the applicant withholding of removal (a lesser form of humanitarian relief than asylum) my partner, Peter Chow appeared before the IJ for the simple formality of receiving the grant of withholding.  However, at the hearing, ICE counsel stated that she had not received authorization from her superiors to agree to this offer and that she was required to contest all humanitarian relief at trial.  This left both IJ Fernandez and Mr. Chow stunned, believing that a deal had been made for withholding (due to absolute emotional exhaustion of the applicant after years of litigation).  The matter was thus, reset for trial on September 17, 2014.

In May of 2014, I requested Administrative Closure in an Exercise of Prosecutorial Discretion (PD), which would yield a similar result to withholding of removal and spare my client the strain of yet another trial. I had no doubt as to the merits of my client's claim, but believed that though we would prevail again at trial, we would have to contend with yet a further ICE appeal.  ICE almost immediately rejected my offer to compromise the matter with PD, demonstrating their intent to conduct a further trial of the matter.

This is an interesting circumstance for a litigation attorney.  On the one hand, you are confident that your preparation is sufficient to contend with the government's allegations.  You believe your client's explanations of the circumstances both underlying the case and documentation supporting the case, and the great weight of evidence and law appears to be on the client's side.  Yet the client is fatigued and there is the promise of additional years of litigation even if the judge grants the requested relief.
As a pure intellectual pursuit you simply wish to vindicate the client and prevail once again at trial. However, as a practical matter, you believe that this particular human being is simply at the limit. The only option here, however, appeared to be to prepare for an aggressive contested hearing on September 17, 2014, and worry later about the client's emotions and ability to litigate further in the event of a government appeal.

On the morning of September 2014, however, I stopped by my office to pick up the case file and start my long drive to San Diego for trial at 1:00 p.m..  Upon arrival at the office a message from a senior attorney at ICE, Mr. Watts awaited me.  I immediately returned his call and he informed me that he had personally reviewed the case and believed that PD would in fact be a reasonable compromise if my client would accept.  The client of course had released me to accept PD as an acceptable way to protect the client's life by preventing removal to Kenya, and avoiding the nightmare of perpetual litigation against a government with unlimited resources to keep the matter going indefinitely.

And so, yesterday at 1:00 p.m., the IJ announced to a disappointed gallery of law students, that there would be no showdown, and that the parties had quite unceremoniously resolved the case without need for further trial.  The client now has the assurance that the government will not pursue removal unless the client breaks the law, and therefore the client may remain in the United States with removal proceedings closed.

Often in these matters, lawyers on both sides are required to put egos and notions of the righteousness of their clients' positions aside to achieve objectives that are most practical for the immediate needs of the clients.  This, I am proud to say, was accomplished for this deserving client.

We are relieved that client safety is preserved and having accomplished that, are well satisfied with the outcome.

By:  Duane M. Hamilton