DSK’s accuser potentially faces a host of immigration problems

Saturday, July 2nd, 2011
By: Jonathan MontagJ.D.

There is a foreign woman who goes unnamed in the United States media — though I predict not for much longer. She has been identified as an asylee from Guinea, a West African nation. The media reports are quite unclear about the lady’s actual immigration status. She accused Dominique Strauss Kahn, the former director of the International Monetary Fund and expected candidate for the presidency of France, of trying to vaginally rape her and of forcing her to fellate him at a hotel in New York City. Mr. Strauss Kahn was arrested and is charged with sex crimes as a result of the accusations.

Reports are that there  discrepancies between her asylum application and what she told New York City police about past persecution that led to asylum. There are discrepancies between what she said she did the day she said she was attacked and what she actually did the day she was attacked. There are also troubling accounts of her communications with someone in an Arizona detention center (Shout out to Eloy or Florence!) discussing the money-making potential of accusing a very rich man of raping her. There are also accounts of money transfers. After Cherchez la femme, the most popular adage about crime investigation is, “Follow the money.”

Regarding her asylum status, it is not clear whether she made her asylum claim from abroad and then was admitted to the United States as a refugee, or whether she entered the United States, whether lawfully or not, and applied for asylum while inside the United States (called an affirmative asylum claim) and is an asylee, or whether she was either arrested at the border coming into the United States, either by presenting herself at the border and asking for asylum or by presenting false documents and being detected as a person trying to enter illegally,  or while in the United States and sought asylum in immigration court (called a defensive asylum claim) and is an asylee, or whether her affirmative asylum claim was not granted and her case was then referred to an immigration court where an immigration judge granted asylum and she is an asylee.

A year after someone is granted asylum or enters as a refugee, the person can then file to become a permanent resident. It is not clear whether or not she did this and she is a permanent resident. Four years after becoming an asylee or five years after entering as a refugee, an asylee or a refugee who becomes a permanent resident can then apply to become a United States citizen. It is not clear whether she did this and she is a U.S. citizen. What is not clear then is whether the lady is an asylee, a refugee, a permanent resident, or a citizen. What she is can make a difference about what could happen to her.

A refugee or asylee who lied to obtain asylum can have the status revoked. 8 CFR § 208.24. If she is an affirmative asylee, the Asylum Office can revoke the asylum or place her in removal proceedings in the immigration court. If she is a refugee, a USCIS district director can revoke the refugee status, 8 CFR § 207.9, or she can be placed in removal proceedings. If she became a permanent resident, she would be sent to immigration court. If she became a United States citizen, she would have to be de-naturalized in a federal court and then sent to immigration court. The government has the burden of proof by a preponderance of the evidence to show that she lied and the lies caused her to receive her asylum status. In immigration court, the lady could contest that there was fraud, or that the fraud was not material and thus reassert eligibility for asylum. If she asserts that she lied before but has a new, true story that is also one that merits asylum, she could be precluded by a statute that prohibits a person who made a frivolous asylum claim from pursuing an asylum claim – or any other benefit – in immigration court or elsewhere. INA § 208(d)(6). A frivolous asylum claim is one where a material element of the claim is deliberately fabricated. Thus, it is safe to say that if the lady made a material misrepresentation deliberately – and she was warned that she should not do this – she will most likely not be able to stay in the United States if immigration officials pursue her.

Assuming she did not make a material lie in her asylum application, other things she did could lead to her losing her right to live in the United States. A lot depends on her status. If she is a citizen, unless she lied on her naturalization application, she cannot be de-naturalized. Subsequent conduct, like lying to the police, making false accusations, laundering money, failing to file taxes, or being a prostitute, committed after she became a citizen, could not lead to her de-naturalization or deportation. That is why it is a good idea to naturalize before committing crimes.

If she is a refugee or asylee and never became a permanent resident, she can only be deported for her crimes if she was convicted of particularly serious crimes. INA § 208(b)(2)(A)(iii). Aggravated felonies are particularly serious crimes. Determining whether other crimes are particularly serious is hard to say – a case by case analysis is necessary. Tax evasion in excess of $10,000 is an aggravated felony as is any fraud in which the loss to the victim is more than $10,000. INA § 101(a)(43)(M). Perjury or obstruction of justice with a sentence of a year or more is an aggravated felony. INA § 101(a)(43)(R). Money laundering in excess of $10,000 is too. INA § 101(a)(43)(D). So is managing a prostitution business. INA § 101(a)(43)(K). It is not clear whether a crime involving making a false claim of rape against the head of the International Monetary fund, if not an aggravated felony, is a particularly serious crime, but I would opine it could well be found to be particularly serious. Prostitution may not be, but if she were a procurer or a pimp, that might be deemed particularly serious. If it turns out this was an extortion attempt, that would probably be found to be particularly serious.

If the lady were a permanent resident, she would be worse off because her crimes would not have to be particularly serious for her to be deportable for them. As a permanent resident, despite her earlier asylum status, she would be subject to removal just like any other permanent resident.  See here and here. Thus, if she entered legally more than five years ago, then she could be deported for two crimes of moral turpitude. If she entered less than five years ago, she could be deported for one crime of moral turpitude if the maximum potential sentence for the crime was a year or more. A fraudulent statement to the police could be a crime of moral turpitude. Two such statements could thus render her deportable. Fraudulently filing tax returns could be a crime of moral turpitude. Extortion would be a crime of moral turpitude. If she were deportable for two crimes of moral turpitude, she could ask for asylum, withholding and Convention Against Torture (CAT) as forms of relief (as long as the crimes were not particularly serious) or ask for Cancellation of Removal if she entered lawfully more than seven years ago and has had permanent residence for five years. If her crimes are aggravated felonies, she cannot ask for asylum or withholding, but could ask for CAT relief. For CAT, she must show that she is more likely than not going to be tortured by the government of Guinea or with the government’s acquiescence.

It could be that as part of some plea bargain, the lady agrees to leave the United States and not try to contest de-naturalization, revocation of asylum status, and/or removal. If you consider that New York State may prosecute her for falsely reporting a crime and the federal government may prosecute her for tax charges and perjury charges relating to her asylum claim, as well as civil charges if Mr. Strauss Kahn seeks retribution, she may prefer life in Guinea to life in the United States. Further, if she is convicted of two crimes of moral turpitude or an aggravated felony, she would be subject to mandatory detention while fighting her immigration case. INA § 236(c).

It could turn out that her accusations are true and her asylum application also true. Then she would have no problems at all. Posted July 2, 2011.





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