Q: I’ve heard lots of rumors in my community about Operation Fiction Writer, that Immigration is taking away people’s green cards because their attorneys were arrested. What is the true story? Should I be worried?
A: Operation Fiction Writer (O.F.W.) was a joint investigation by the U.S. Attorney for the Southern District of New York, the FBI, the NYPD, and USCIS into fraudulent asylum applications filed by several law firms in New York City on behalf of predominantly Chinese clients. It took place between 2010 and 2012, and focussed primarily on cases filed with the Asylum Office and Immigration Courts in New York and New Jersey.
Every asylum application must include a personal statement from the applicant detailing the harm inflicted on them by agents of their government which supports their claim of persecution. Asylum Officers noticed that applications from these law firms contained personal statements which were very similar, and in some cases identical to those of applicants who had no connection to each other. There were similarities in writing style, similarities in details of arrests and beatings, and similarities in phraseology.
USCIS concluded that the majority of these statements were manufactured for clients, rather than being written by them. They began monitoring these firms, and brought in the F.B.I. to help. As part of the investigation, they recruited some of the law firm employees to report to them on illegal activities that they observed. They even went so far as to have clients “wear a wire” to catch the attorneys red-handed (In one recording, excerpts of which were published in the New York Times in 2014 the attorney can be heard telling his client that USCIS will only ask her “the same rubbish questions…just make it up”).
The investigators realized that what they had stumbled upon were true asylum mills: a client could pay an exorbitant fee, give the attorney or paralegal some basic information, and the firm’s “story writers” would come up with a false story of persecution relating to either religion or China’s One Child Policy that fit the client’s background or level of education. The client would then be coached on standard answers to provide to either an Asylum Officer or an Immigration Judge, and in many cases the applications were approved.
In December 2012 the FBI raided some of these law firms and arrested many of the employees. The firms were shut down and their client files and computers were seized.
Q: What happened to those attorneys? Are they still in business?
A: They were charged in federal court in Manhattan with immigration fraud, a federal crime under Title 18, U.S. Code Section 1546. The maximum sentence for this type of immigration fraud is 10-15 years, but some received reduced or suspended sentences in return for cooperating with the FBI and USCIS by giving detailed information on how the scam worked. Naturally, the attorneys who were convicted lost their law licenses; they will not be missed.
Q: So is USCIS deporting ALL of these law firm’s clients?
A: They seem to be trying! We saw many clients in 2017 and 2018 who had received “Notices of Termination” from USCIS/DHS and were scheduled for termination interviews. These interviews are supposed to give the asylee an opportunity to rebut the allegations of fraud. In theory, if the asylee convinces USCIS that his application was not fraudulent, he would keep his asylum status. However, in our experience the interviews are merely window dressing since USCIS seems hell-bent on terminating any asylum grant which was linked to O.F.W.
Q: What happens if an O.F.W. client does not yet have a green card, but their application is pending?
A: If the application is pending, USCIS is issuing “Notices of Intent to Deny” (NOID), on the basis that the client must have participated in or at least known about the fraud (These NOIDs are being issued years after the green card application was filed in some cases).
The NOID will usually include excerpts from the personal statement, excerpts from other statements filed by the same firm, and a side-by-side comparison of the similarities. In some cases they are even pulling up records from the person’s visa application (from their initial entry to the U.S.) and pointing out omissions or misrepresentations which they believe shows that the person is not credible, even though these visa applications were usually completed by travel agents in China.
In cases where a person was granted asylum in Immigration Court, DHS is filing motions with Immigration Judges to reopen asylum cases to terminate them.
Q: What happens if the person already has a green card?
A: The government’s job is harder in such a case. If you are already a LPR, DHS must convince a judge by “clear and convincing evidence” that you are deportable. This is a higher burden than the “balance of probabilities” standard (more likely than not) which would apply if DHS were attempting to terminate your asylum status. We have attended several of these removal hearings, and our argument is usually that DHS does not have “clear and convincing evidence” that our clients are deportable; usually what they have is circumstantial at best. DHS will often proffer depositions from the OFW perpetrators as evidence; we maintain that those statements were given by professional fraudsters in return for reduced sentences and should not be trusted.
There are several of these cases pending at the New York City Immigration Court. It remains to be seen how they will be decided, but we are confident that an Immigration Judge will be a more neutral arbiter than the Asylum Office.
Q: If a person has naturalized, can DHS take away their citizenship?
A: Denaturalization is a very complex process and it does not happen often. A U.S. Attorney must convince a federal judge that you did not qualify for LPR status and therefore should never have been allowed to become a U.S. citizen. While there was much talk about denaturalization in 2018 when the White House created a “Denaturalization Task Force”, we have not (yet) encountered a U.S. citizen who was an O.F.W. client and who DHS now seeks to denaturalize. But yes, it IS possible.
Q: How can I convince USCIS or an Immigration Judge that I deserved my asylum grant and had nothing to do with the fraud?
A: It is more difficult with an allegation of fraud hanging over your head, but I would give you the same advice I give all our asylum clients: tell your story with as much detail and consistency as you can.
Show us that the things you claim happened did happen. Get affidavits from friends, family, neighbors, or co-workers who might have witnessed the harm that befell you, or seen you shortly afterwards. Pictures, medical reports, police reports, all of these are the foundation of a successful case. Show us where the “story writer” inserted their own narrative in place of the truth, and show us that even if they embellished your story, the underlying facts are true (There is even a 2007 Second Circuit case which acknowledges that “striking similarities” in statements are not necessarily indicative of fraud by the applicant). If your persecution was based on your religion, show us that you are an active member of your church.
If you have been persecuted by your government, the law says that you deserve asylum and we are the firm with the expertise to help you win it!
By-Alexandre Law Firm