Dekelaita v. United States

108 F.4th 960

Robert W. DEKELAITA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 22-2911

United States Court of Appeals, Seventh Circuit

Argued January 23, 2024

Decided July 24, 2024

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:18-cv-06682 — Matthew F. Kennelly, Judge.

Christina Abraham, Attorney, Abraham Law & Consulting, LLC, Chicago, IL, Richard Dvorak, Attorney, Dvorak Law Offices, LLC, Clarendon Hills, IL, for Petitioner-Appellant.

Brian J. Kerwin, Attorney, Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before Rovner, Brennan, and Pryor, Circuit Judges.

Brennan, Circuit Judge.

A jury found Robert Dekelaita, a former immigration attorney, guilty of various crimes for conspiring with clients, interpreters, and his employees to defraud the United States by submitting fabricated asylum applications.

Unsuccessful in his direct appeal, Dekelaita moved to vacate his sentence under 28 U.S.C. § 2255. The district court authorized broad discovery, conducted a thorough, weeklong hearing, evaluated the parties' post-hearing briefs, and denied his motion. Dekelaita now appeals that decision. He contends the district court erred in its rulings about benefits the government provided to some witnesses, before and after trial.

The undisclosed information about pre-trial benefits was immaterial, so the district court correctly denied Dekelaita's claims as to those benefits. And Dekelaita's rights were not violated because some of the alleged post-trial benefits were not promised to witnesses, while others would not have affected the trial's outcome had they been disclosed. Thus, we affirm.

I. Background

A. Criminal Activity, Trial, and Conviction

Dekelaita was an attorney licensed to practice in Illinois beginning in 1997. In 2000, he opened his own law firm which specialized in immigration law. In his practice, Dekelaita represented foreign nationals applying for asylum, citizenship, and other immigration benefits from the U.S. government.

Some of these foreign nationals were Middle Eastern Christians. Upon seeking assistance to gain asylum in the United States, Dekelaita would discuss the client's background, disparage the client's chances of securing asylum with their true story, and offer to create a fraudulent story instead. With assistance, he would submit a fictitious claim to United States Citizenship and Immigration Services ("USCIS"), often including tales of rape, false arrests, murder, and torture—all characteristics of persecution. On the asylum applications, Dekelaita would alter the country of origin, modify dates of travel, change last names, and instruct the client to obtain false documentation. Depending on the client, Dekelaita would instruct the client to conceal the client's citizenship or legal status in other countries where the client was not at risk of persecution. His clients were instructed to memorize these fabricated stories but often could not because of their length and complicated facts.

Dekelaita needed the assistance of interpreters, Yousif Yousif and Adam Benjamin, to perpetuate the fraud. Dekelaita instructed the interpreters to help clients memorize false information in their applications and provide fraudulent translations at asylum interviews to corroborate the fabricated stories. At pre-interview meetings, Dekelaita or the interpreter would coach the client to say a random phrase in neo-Aramaic if the client forgot a detail of the story. The interpreter would then fill in the gap. At the asylum interview, the interpreter would falsely translate questions and answers, provide the client with the "correct" answer to a question, or falsely translate a client's "wrong" answers to reflect "correct" information.

During the twelve-day jury trial, nine former clients testified. For each of the client-witnesses, the government said it did not offer benefits, assurances, or promises regarding their future immigration status in the United States.

Before trial, the government disclosed to Dekelaita that it advised the client-witnesses that only three possibilities existed as to their future immigration status: removal, no change in status, or notification to USCIS of cooperation. The government was transparent about this at trial. All the client-witnesses testified that the government had made no promises or representations about how their testimony might affect their immigration status.

The testimony of one client-witness, Rafida Jabo-Cordova, and her husband, Francisco Cordova, is relevant to this appeal. Jabo-Cordova left Iraq in 1995, renounced her Iraqi citizenship, and became an Ecuadorian citizen in 2002 after marrying her husband, Francisco Cordova. She also held temporary legal status in Switzerland. Given these facts, Dekelaita informed Jabo-Cordova that the best way to secure legal status in the United States would be as an Iraqi asylee. He then submitted an asylum application on her behalf, bearing false information about her name, marital and legal status, and religious persecution. After immigration officials uncovered discrepancies in Jabo-Cordova's paperwork, her asylum application was denied initially and on appeal. Though a motion to reopen was granted, Jabo-Cordova terminated Dekelaita's representation before authorities issued a remand order.

Jabo-Cordova began cooperating with the government while her reopened asylum case was pending. When Dekelaita reached out to Jabo-Cordova, the government instructed her to re-hire him. She then covertly recorded conversations with Dekelaita and his associate attorneys, Alen Takhsh and Allan Jacob. They discussed her fraudulent asylum claim, including the use of false paperwork and fabricated stories.

Before trial, the government disclosed to Dekelaita's counsel that Jabo-Cordova was a long-time cooperator and, because of that cooperation, USCIS provided her with deferred action status. Additionally, the government disclosed she had been told that she would be permitted to stay in the United States so long as she actively cooperated. At trial, the jury heard from both parties that Jabo-Cordova had been permitted to remain in the United States, despite the government's knowledge of her fraud. Jabo-Cordova testified that she had remained in the United States after her deferred action status expired and that she intended to remain in the United States by obtaining a green card based on her husband's citizenship status.

Francisco Cordova also testified. The day before his testimony, Dekelaita's counsel noted that he had not received Cordova's immigration file from the government. The government responded that the file was available, though not in electronic format, and it was not aware of any evidence of fraud related to Cordova. The district court ordered the government to produce the file anyway. Cordova testified he was naturalized in 2014 while his wife worked as a confidential informant. Before that, though, an issue arose—since he spent several years abroad before returning to the United States on a tourist visa in 2002, he may have abandoned his permanent resident status. Consequently, he said he "probably" had to file an SB1 visa. He also explained his understanding that his SB1 visa had been approved. He was unsure, though, what was done to resolve the abandonment issue before his naturalization. The government disclosed this to Dekelaita prior to trial.

In addition to the testimony of the client-witnesses, Dekelaita's former associate attorney testified about his work for Dekelaita on fraudulent asylum applications and Dekelaita's relationship with the interpreters. The government also presented consensual recordings made by another former Dekelaita client. The recordings showed interpreter Benjamin's purposeful mistranslation of the asylum officer's questions and the client's responses. This corroborated testimony describing the conspiracy between Dekelaita and the interpreters.

The jury found Dekelaita guilty of a conspiracy to defraud the United States. The district court sentenced him to 15 months' imprisonment, and our court affirmed Dekelaita's conviction. United States v. DeKelaita, 875 F.3d 855, 856 (7th Cir. 2017).

B. Post-Conviction Proceedings

1. Motion for habeas relief and discovery

Dekelaita moved to vacate his sentence under 28 U.S.C. § 2255. He asserted that his former clients received undisclosed benefits—namely, promises (express or implied) that the government would permit them to remain in the United States following the trial, despite their fraudulent asylum applications. The district court construed Dekelaita's claim as arising under the Fifth Amendment as well as Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government moved to dismiss Dekelaita's motion. The court concluded that Dekelaita had articulated a plausible basis for his contention, warranting an evidentiary hearing.

Before the hearing, the district court ordered the government to produce immigration files for the individuals identified in Dekelaita's motion as well as pre- and post-trial communications between the Department of Homeland Security and the government's witnesses.

Dekelaita also filed several motions to compel, seeking records and communications between DHS's Office of Inspector General and Francisco Cordova and communications between DHS employees and the government's trial witnesses. As to materials relating to Cordova's naturalization, the court ruled this evidence was relevant. But the court denied Dekelaita's requests for testimony of a non-trial witness because it was not "connected with" the § 2255 issues before the court.

The document production that followed revealed substantial communications between the government and the client-witnesses. For the first time, the government disclosed the existence of...