Ex-immigration lawyer gets 15 months for bogus asylum claims

Case Number: 17‐1644

Judge: Diane Pamela Wood

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Andrianna D. Kastanek

Defendant's Attorney: Mike Nash

Description: One of DeKelaita’s specialties was providing legal repre‐
sentation for recent immigrants applying for asylum. Asylum
in the United States is reserved for people who are unable to
return to their home country because of either persecution or
a well‐founded fear of persecution based on “race, religion,
nationality, membership in a particular social group, or polit‐
ical opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Asy‐
lum is unavailable if the person can be sent to a safe country
that is willing to accept him or her. § 1158(a)(2)(A). Applicants
for asylum must submit a form that sets forth the basis for
their application and how they meet the statutory criteria.
They must then sit for an interview with a U.S. Citizenship
and Immigration Services officer. The Affirmative Asylum Pro‐
cess, U.S. CITIZEN SERVICES (last visited Nov. 15, 2017),
https://www.uscis.gov/humanitarian/refugees‐asylum/asy‐
lum/affirmative‐asylum‐process. The applicant must provide
a translator if one is needed. The interviewing officer eventu‐
ally makes the initial determination of the applicant’s eligibil‐
ity. Id.
No. 17‐1644 3
DeKelaita’s clients were primarily Assyrian or Chaldean
Christians from Muslim‐ruled countries, such as Iraq. Many
clients had indeed suffered persecution, but their eligibility
was statutorily foreclosed or doubtful because they either had
already found refuge in another county or their history of per‐
secution failed to meet the required severity for asylum in the
United States. Not willing to take “no” for an answer,
DeKelaita tried to improve the chances of asylum for at least
nine of his clients by submitting fraudulent applications. The
nature of the fraud depended on the client. For some,
DeKelaita concealed evidence that the applicant already had
obtained legal status in a safe country. For others, he drafted
and submitted applications that either fabricated or exagger‐
ated the extent of persecution the applicant had endured.
At the interview stage, DeKelaita was able to ensure that
applicants stuck to the script by bringing interpreters into the
fold. He worked with the interpreter and client pre‐interview
to hammer out the narrative. When the interpreter accompa‐
nied the client to the interview, the interpreter spoon‐fed an‐
swers to the applicant or “translated” incorrectly. Before 2006,
the government did not have the benefit of interview moni‐
tors who might have flagged the discrepancies. Post‐2006,
there was a dearth of monitors who spoke Assyrian or Chal‐
dean, the languages of DeKelaita’s clients, leaving many in‐
terviews difficult, if not impossible, to review.
Between 2000 and 2003, DeKelaita followed this template
for seven applicants. In all but one case, DeKelaita employed
the same interpreter. A three‐year gap followed before
DeKelaita worked on the next allegedly fraudulent applica‐
tion. His modus operandi was unchanged, though he now used
4 No. 17‐1644
the services of a different interpreter, Adam Benjamin. An‐
other three years elapsed before DeKelaita submitted the last
of the nine applications. This application, filed in November
2009 on behalf of Hilal Albqal, relied on an exaggerated his‐
tory of persecution, which DeKelaita had concocted.
DeKelaita again worked with Benjamin.
At trial he was convicted on four charges: one for conspir‐
acy to defraud the government on the asylum applications,
and three for false statements he either made or induced on
Albqal’s application. The district court vacated the three con‐
victions related to Albqal’s application following a post‐trial
motion. The jury unanimously found only one false statement
in Albqal’s application, but the court ruled that this statement
was immaterial to his receipt of asylum. That meant, the court
concluded, that the government had failed to prove an ele‐
ment of the substantive crimes. That left standing only the
conspiracy conviction.  
II
On appeal from that remnant of the case, DeKelaita com‐
plains of a variance between the crime the government
proved and the crime with which he was indicted. To prevail
on his variance argument, DeKelaita must show both that no
rational trier of fact could have found that the evidence at trial
proved a single conspiracy and that the variance was prejudi‐
cial. United States v. Avila, 557 F.3d 809, 815 (7th Cir. 2009). This
case presents a twist on the normal situation. Ordinarily, an
argument of this sort arises in a “hub‐and‐spoke” conspir‐
acy—in other words, an arrangement in which there is a brain
center (the hub) masterminding either contemporaneous,
similar‐looking conspiracies or one large conspiracy with bit
players (the spokes) orbiting the hub and coordinated
No. 17‐1644 5
through it. The spokes rarely have anything to do with one
another. Variance arguments are most often made by the
spokes. Their complaint is typically that by charging what re‐
ally was many conspiracies as one, the government put the
defendant on trial for criminal conspiracies in which he
played no part.  
This case is different because DeKelaita is the hub. Usually
there is no need to distinguish between a single conspiracy
and multiple conspiracies in a case against the hub, because
no matter the relationship between alleged conspiracies, the
hub is involved in each. Consequently, there is no danger of
wrongfully transferring guilt based on conduct from an un‐
connected conspiracy. United States v. Flood, 965 F.2d 505, 509
(7th Cir. 1992). DeKelaita nonetheless argues that he was prej‐
udiced by the joinder of the allegedly distinct conspiracies be‐
cause the government should not be able to “string together
… conspiracies related in kind though they might be, when
the only nexus among them lies in the fact that one man par‐
ticipated in  all.” United States v. Varelli, 407 F.2d 735, 745 (7th
Cir. 1969). He assumes that this statement from Varelli applies
even to cases in which the defendant is that “one man.”  
DeKelaita also raises a second point about the significance
in his case of the line between a single conspiracy and multi‐
ple conspiracies. He contends that none of the independent
conspiracies (hub to spoke 1, hub to spoke 2, etc.) was subject
to prosecution. With respect to the first eight asylum applica‐
tions, he argues that prosecution is time‐barred. See 18 U.S.C.
§ 3282(a) (providing a five‐year statute of limitations). His
conviction on the ninth, as we mentioned earlier, was vacated
by the district court. Ergo, DeKalaita reasons, he cannot be
prosecuted for the related conspiracy.  
6 No. 17‐1644
We assume for present purposes that each agreement to
submit a fraudulent application was its own conspiracy, and
that while the indictment charged one overarching conspir‐
acy, the government proved nine individual conspiracies. We
assume further that the existence of the individual conspira‐
cies can be seen as a variance from the indictment. Even with
those favorable assumptions, DeKelaita cannot prevail unless
the alleged variance is prejudicial. And since he was convicted
on only one count of conspiracy, he cannot show prejudice if
there is sufficient evidence of a timely prosecution for a con‐
spiracy related to any application. We therefore take up that
question, starting with the most recent asylum application—
Albqal’s.  
DeKelaita does not directly deny his involvement in a con‐
spiracy to submit a fraudulent asylum application of behalf of
Albqal. His forbearance is wise. The record shows that about
one month after Albqal arrived in the United States, he met
with DeKelaita. During that meeting Albqal told DeKelaita he
wanted DeKelaita to be his attorney. They discussed Albqal’s
past, which included a house fire caused by an electrical short.
DeKelaita advised Albqal that his application would be
stronger if he said Islamic extremists started the fire.
DeKelaita also told Albqal that he, DeKelaita, could add facts
from Albqal’s brother’s application. The brother was also one
of DeKelaita’s clients. At the end of the meeting DeKelaita
agreed to represent Albqal for his asylum application.
Instead of denying his involvement in Albqal’s dishonest
application, DeKelaita attacks from the flanks. He argues that
his acquittal on all substantive charges related to Albqal’s ap‐
plication forecloses a conspiracy conviction. But this reveals a
fundamental misunderstanding of conspiracy law. Contrary
No. 17‐1644 7
to DeKelaita’s assertion, the post‐trial judgment of acquittal
on substantive claims does not preclude conviction for con‐
spiracy. The law plainly states: “The crime of conspiracy is the
agreement itself.” United States v. Corson, 579 F.3d 804, 810 (7th
Cir. 2009). Moreover, the judgment of acquittal in this case
was granted because the only lie that the jury unanimously
found to be included in Albqal’s asylum application was im‐
material to the grant of his application. Which lies were told
on Albqal’s application and whether they were material does
not matter for purposes of conspiracy. Nor does it matter that
the jury did not unanimously find DeKelaita had made or
procured any of the other false statements to which the gov‐
ernment pointed. Failing to achieve the conspiracy’s goal does
not negate the underlying agreement. Id.  
With that cloud cleared, we can move to the main issue:
was there an overt act in furtherance of the conspiracy within
the five‐year period preceding the indictment? See United
States v. Curley, 55 F.3d 254, 257 (7th Cir. 1995) (“The statute of
limitations runs from the last overt act in furtherance of that
conspiracy.”). The indictment was filed on September 4, 2014,
making the relevant date September 4, 2009. Several overt acts
occurred after that date, any of which renders the prosecution
timely whether there was one or several conspiracies. Albqal’s
application was submitted on November 16, 2009. After that,
Albqal met with DeKelaita on December 21, 2009, to prepare
for Albqal’s interview, which was to take place the following
day. Benjamin, the interpreter, was at that meeting. DeKelaita
told Albqal that Benjamin would interpret during the asylum
interview and that Benjamin would let Albqal know what
story Albqal was supposed to use during the interview. For
his part, Benjamin gave Albqal instructions on what facts
Albqal needed to memorize for the interview and told him
8 No. 17‐1644
that he too would have the story memorized. Benjamin was
with Albqal the next day at the asylum interview. Albqal ad‐
mits that he lied during his asylum interview, and Benjamin
translated the lies.
One final word. DeKelaita is unhappy with the govern‐
ment’s dual Santiago proffers. A Santiago proffer is a pretrial
filing made when the government intends to introduce state‐
ments from co‐conspirators under Federal Rule of Evidence
801(d)(2)(E). United States v. Cox, 923 F.2d 519, 526 (7th Cir.
1991); United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978).
The purpose is to facilitate the admissibility of co‐conspirator
evidence by making a preliminary showing that “1) a conspir‐
acy existed, 2) the defendant and the declarant were members
thereof, and 3) the proffered statement(s) were made during
the course of and in furtherance of the conspiracy.” Cox, 923
F.2d at 526. In this case there were two Santiago proffers, the
first of which alleged multiple conspiracies, while the second
represented the evidence as supporting a single conspiracy.
DeKelaita suggests that the government’s initial take on its
own evidence, revealed through the first Santiago proffer, is
compelling support for finding that each application consti‐
tuted a separate conspiracy. Because the distinction between
one and many is immaterial in this case, whatever limited
utility that argument may have has dissipated. Perhaps evi‐
dence that unfairly prejudiced the jury against DeKelaita was
admitted under the auspices of a single conspiracy, but that is
not the argument DeKelaita advances.

Outcome: DeKelaita was convicted on a single conspiracy count.
Even if there was a variance between the indictment and evi‐
dence, there was sufficient evidence to establish the existence
of a conspiracy to defraud the government. Therefore, any
variance that existed did not prejudice DeKelaita. We AFFIRM
the conviction

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