AINA Editorial
US Attorneys May Have Violated Constitutional Rights, Immigration Law in Prosecuting Assyrian Lawyer
By Ashur Shirsha
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Attorney Robert DeKelaita at the Dirksen Federal building in Chicago.
Chicago (AINA) -- In September of 2014, Attorney Robert DeKelaita was indicted for helping a handful of Assyrian (also known as Chaldean or Syriac) asylum seekers obtain asylum. The government, represented by the US Attorney's Office, alleged that the means used to obtain asylum for the handful of the witnesses chosen to testify against DeKelaita was fraudulent. The investigation, which had begun in 2008, was initiated by the Department of Homeland Security in Detroit and aided by the Office of the Inspector General of the same department.

In a multiple-count indictment, which later was reduced to 8 counts through litigation, the US Attorney's Office in Chicago argued that DeKelaita had coached or assisted various Iraqi Assyrian asylum seekers in obtaining asylum in the United States. DeKelaita denied the charges and sought a trial.

In April of 2016, after a heated legal battle at trial, DeKelaita came close to clearing his name. The government's 8-Count charge was reduced to one count, that of conspiracy to assist Assyrian asylum seekers. The Judge in charge of the trial, Mathew Kennelly, dismissed or vacated 3 counts, but left in tact what the jury jury's finding of conspiracy.

The government did not have to prove that DeKelaita had actually done something wrong, but that he "conspired" to do so. What is also required is to show that DeKelaita had "conspired" with someone. However, despite the fact that the US Attorney's claim was that DeKelaita had conspired with "Attorneys A and B," namely Alen Taksh and Alan Jacob, both of whom were employed by DeKelaita, no one admitted at trial that he had conspired with DeKelaita. Attorney Alen Takhsh, an Assyrian that DeKelaita employed in 2010, testified against DeKelaita but never alleged that there was a conspiracy between him and DeKelaita. Further, the Judge in the case found that none of the witnesses that testified against DeKelaita had been co-conspirators. What then was the case against DeKelaita?

Essentially, the US Attorney's case consisted of brining a handful of old clients of DeKelaita to testify against him -- namely that they had no fear of returning to Iraq or that their asylum cases were false and that their attorney had assisted them in this fraud. Although DeKelaita had practiced largely in the Chicagoland area, the US Attorney brought former clients from the Detroit area. And despite the fact that he had dealt with over 4,000 cases in his career, the prosecution brought only 9 former clients to testify.

One such former client was Nahail Najam of Detroit. Nahail had come to the United States in 2006 on his own through fiancé fraud. He admitted this on the stand. He also admitted that he was a Chaldean Christian, was threatened by Islamic fundamentalists because he owned or worked in a liquor store in Mosul, was a deacon in the Chaldean Church, had his store bombed by Muslim fundamentalists and his partner was killed by them. Incredibly, Najam testified that what had occurred was not frightful enough for him to seek asylum. It was Robert who had suggested fear to him. When he was cross-examined by DeKelaita's attorney, he could not recall many details, stating that he could not recall or remember over 66 times.

It was clear to those heard Najam testify in Court that he had no fear of returning to Iraq. Yet, incredibly, at a time when the Department of Homeland Security has begun to remove Iraqis from the United States -- even when they claim to be afraid to return there - Najam is still in the United States.

The agents who prosecuted Robert DeKelaita claimed that he was not promised a benefit -- the right to keep his status and stay. Was Najam assisted to remain in the United States in return for testifying against his former lawyer?

The other government witnesses from the Detroit area testified under oath that they did not have a problem in Iraq, but that the government was not helping them to remain in the United States. Many wondered, then, how these witnesses persisted with their status intact in the United without the help of the Department of Homeland Security.

Unlike these witnesses, after the trial, many Iraqis were detained in the Detroit area despite the fact that they claimed fear of persecution if returned to Iraq. The Chaldean Community Foundation in Detroit filed a brief before the Federal Court to stop their deportation. It argued, inter alia, that removing Iraqi Christians to Iraq "would violate the Immigration and Nationality Act ("INA") because [Christians] face persecution and/or torture in Iraq on the basis of their ethnicity and/or religion."1

U.S. Immigration is unambiguously clear when someone admits he or she filed a fraudulent asylum application. Upon determining that one has done so, the Department permanently bars that person from having any benefits under the Immigration and Nationality Act, the main source of immigration law in the United States, meaning that no matter what status the person seeks, he cannot by law be entitled to it and must be removed from the United States if the he has already been granted entry.

In cases cited by the Courts, it is clear that when a person is determined to have filed a fraudulent or "frivolous" asylum application, even when that person may be entitled to other benefits, such as a petition by a United States citizen wife or husband, the person cannot qualify because of the permanent bar leveled against him or her.

In October of 2018, Robert DeKelaita filed a Habeas Corpus petition, arguing that his conviction was unconstitutional because the witnesses that testified against him received immigration benefits, even though they said otherwise under oath.

DeKelaita's petition to clear the only remaining count is now before the Court. He asserts that if not for the government's intervention it would be impossible for the witnesses who testified to remain in the United States, with their status intact. If that is the case, DeKelaita's constitutional rights, said the Judge Kennelly, may have been violated because the jury was not informed. This fact is especially disturbing because the law was seemingly violated by U.S. attorneys behind the jury's back multiple times when persons who should be deported were not.

Also disturbing is the fact that all of the witnesses that testified were from the Detroit area, where the Department of Homeland Security has acted very assertively to deport Iraqis recently.

The Judge ordered the US Attorney to respond to DeKelaita's allegations but when a response came, the Judge was not convinced and ordered a hearing. Specifically, the question that must be addressed is whether the witnesses that testified against Robert DeKelaita were given benefits to remain in the United States. How else could they remain with their status?

Other former clients of Robert DeKelaita came forward to state that agents of the Department of Homeland Security pressured them to get them to testify against their former attorney. However, they refused because they believed in their cases and were not being fooled by agents. Their cases were being delayed in an obvious attempt to harass them.

Many in the community speculate that those who testified -- in essence agreed with the government's narrative that Christians in Iraq had no fear of persecution in their homeland -- may have set the stage for the deportations that took place in Detroit, MI sometime after the trial.

One case in particular, that of Jimmy Al-Daoud, a 41-year old citizen of Iraq, has shocked many. Jimmy was born in Greece to Iraqi parents who emigrated to the United States when he was an infant. As a result of committing crimes in the US, Immigration and Customs Enforcement deported Jimmy to Iraq, a country he never resided in, even though he claimed he was fearful to go there because he had never lived in Iraq. However, the witnesses who testified against Robert stated without hesitation that they had not any problems in Iraq. Despite this, they have remained in the United States.

The Supreme Court of the United States has ruled that the prosecution cannot withhold evidence from the defense which would show that a particular witness was rewarded. A jury has the right to look into the motives of anyone who testifies, including what incentives or benefits such a person received in return for his or her testimony.

Attorney Christina Abraham now represents Robert DeKelaita in federal Court, and is seeking to obtain the immigration files of all of the witnesses who testified as well as calling them in for depositions to see if they were rewarded in return for their testimonies. In addition, agents who were involved in possibly assisting these witnesses to remain in the United States will be called in.

If the persons who testified against Robert DeKelaita were in fact rewarded and not deported from the United States, while claiming that the agents who got them to testify never promised them any benefit, the Court may find that DeKelaita's constitutional rights may have been violated. DeKelaita's supporters point to many flaws and injustices in the case. One source noted "the United States government helped bring about the destruction of Iraq for Christians. And now, it acts to go after Iraqi Christians seeking asylum as a direct result of its actions in Iraq and after one of our activists. It is unfair and unjust."

For many in the legal profession, the idea that the witnesses who testified against DeKelaita were not rewarded is absurd. One source stated "let's be honest: these witnesses may not have been told directly what benefit they would get. But there may have been a wink and a nod."

1 See Amicus Brief by Chaldean Community Foundation (Case No. 2:17-cv-11910).



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