Posada Carriles prosecution an example of a USCIS interview being part of a criminal investigation.

Sunday, April 17th, 2011
By: Jonathan MontagJ.D.

When America decides it doesn’t want a foreigner around anymore, it has a few ways of getting rid of him. First, and easiest, is to get rid of the ones without papers. Some may recall the NSEERS program  of the early 2000’s, where citizens of some Muslim nations had to turn themselves in for inspection and those without lawful status were arrested to remove them. Two, arrest and charge the person with crimes, punish him for his crimes, and then deport them. If the charges are right, the conviction could preclude most relief from removal, and help insure detention for the foreigner while his removal case progresses should he seek relief.

The problem with these tactics is that they are not completely foolproof. Sometimes the “undesirable” alien wins his case in immigration court or on appeal and is allowed to stay. So if “America” is determined to get rid of someone, it needs more bites of the apple. One way the government gets the extra bites is by charging the foreigner with crimes when he applies for subsequent immigration benefits.

What subsequent benefits? If someone is granted asylum, he next may seek to become permanent resident. If he is a permanent resident, he next may seek to naturalize. In filling out these applications, lots of information is requested about old addresses, old employment, sources of income, and about past criminal activity or dishonesty in immigration matters. As soon as there is some mistake or oversight or even actual deception, not only is the foreigner’s application denied, but criminal charges can be brought for the mistakes, oversights, or actual deceptions in the forms. Then with these convictions, the government can then send the foreigner through the immigration court system to try again to effect removal. To get the evidence and to get the foreigner in a place where he can be arrested, USCIS will conduct interviews for the applicant where a videotape can be made and the foreigner then arrested – all to be used as evidence at the foreigner’s trial.

An example of the use of the USCIS interview as a tool in a criminal prosecution is the case of Luis Posadas Carriles. The United States tried to deport Mr. Posadas after he entered the United States without permission. An immigration judge granted him protection under the United States Convention Against Torture, which forbids the deportation of a foreigner to a country where he is more likely than not to be tortured. While Mr. Posadas has been ordered deported, the United States is not allowed to deport him to Cuba or Venezuela, because an immigration judge concluded he would be tortured if returned to those countries. Apparently not wanting to put the case to rest, a criminal investigation began. In the meantime, Mr. Posadas applied to naturalize based on his having served in the United States armed forces during a time of hostilities under INA § 329. The criminal investigation culminated in a two-day long “naturalization interview” of Mr. Posadas. He was later arrested and charged with perjury for some of his answers to questions in his naturalization application and his answers at his interview. He was tried in a federal court in El Paso, Texas. The district court judge presiding at the trial, Kathleen Cardone, dismissed the indictment against Mr. Posadas on May 8, 2007, asserting that the government engaged in fraud, deceit, and trickery in holding a naturalization interview when the actual purpose of the interview was to build a criminal case. The Fifth Circuit Court of Appeals reversed the decision of Judge Cardone in a decision on August 14, 2008. The perjury case went to trial and on April 8, 2011, a jury acquitted him of perjury. It is not clear to me what the government expected to accomplish by the persecution as Mr. Posadas already had protection under the Convention Against Torture and a perjury conviction would not make him ineligible for Convention Against Torture relief. Perhaps the goal was to seek to reopen his removal hearing on the ground that he perjured himself in immigration court. If the government were able then to keep Mr. Posadas detained, perhaps the government believed it would motivate Mr. Posadas to leave the United States or that he would die in detention. Mr. Posadas is 83 years old. Mr. Posadas is an anti-Castro activist accused of terrorist activities and his freedom in the United States is a cause of consternation to those who want him to be punished for terrorist acts and for people who believe that his freedom, in light of his being accused of being a terrorist,  is inconsistent with U.S. anti-terrorism policy.

While the story of Mr. Posadas is interesting in and of itself, more interesting is that USCIS is used by criminal prosecutors to gather evidence in criminal cases quite often just as it did with Mr. Posadas. I witnessed it once and have been involved in cases where this happened at least three times. Mr. Posadas’s case was fairer than ones I have been acquainted with in that Mr. Posadas had two days to clarify inconsistencies and dispel concerns. In some cases I reviewed, the aliens were hardly interviewed at all. The interviewers sought confirmation of the contents of the forms without any probing to discover potential reasons for perceived inconsistencies – was something written or checked off on an application a mistake (there are lots of boxes to check, some in rather convoluted language – “Are you male who has lived in the United States at any time between your 18th and 26th birthday in any status except as a lawful nonimmigrant?”), is there some misunderstanding either because of language issues or because of changed circumstances (A list of children would be incomplete if there were a subsequently born child).

USCIS is supposed to explore the possibility of misunderstanding and provide an applicant with the ability to change answers on forms after they are confronted with evidence that either refreshes their memory or highlights an inconsistency that could be a mistake. Specific instructions to adjudicators is provided by the USCIS Adjudicator’s Field Manual, 14-1 Agency Manuals, Chapter 74, Examination of Form N-400, 74.2 (h). (Curiously, to read 74.2(h), you must go to 74.2(g) in the index and then click on “next document.” Clicking on 74.2(h) in the index is unavailing. This is something like Platform 9 3/4 at Kings Cross Station). These instructions provide a foreigner with ample opportunity to clear up errors. Such opportunities to clarify and change answers have not occurred at some of these pretextual interviews that were actually criminal investigations.

What do you do if you find yourself in one of these pretextual interviews? If you are not represented, by all means invoke your right to representation and ask to be re-scheduled when an attorney can be present. If you are being videotaped, make sure to seek clarification from the examining officer that he or she is seriously conducting the interview for an immigration benefit and that the interview is not a pretext. If the officer is hinting around at possible untruthfulness, express your intention to completely candid and ask exactly what the problem is so you can explain it. If there is concern about the number of children you have, for example, express that you are trying to be completely honest but do not understand the problem. If you are prosecuted, sincere expressions of wanting to tell the truth and asking to be told what the problem is will probably help your defense very much. If you have actually intentionally lied about a material issue that could lead to a denial of thje benefit you are seeking, you had best just not talk even though you will be denied the benefit you seek.

As the Fifth Circuit pointed out in its decision, a foreigner who goes to an interview is going of his own will and is told at the outset that lying could lead to criminal prosecution. It is much wiser to walk out of an interview and abandon an application than to flaunt the law and lie. While this is always true (don’t lie), it is all the more true when you see your interview is actually a criminal investigation. If your goal is truthfulness, make a record of your efforts at truthfulness and hope you have an officer who takes his or her responsibilities under Adjudicator’s Field Manual seriously. Maybe your sincerity will motivate reciprocal sincerity by the officer – after all, they are from the government and here to help. Posted April 17, 2011.



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