Description: In May 2017, on the eve of trial, the parties settled this civil forfeiture action for
approximately $5.9 million. Absent settlement, the trial would have showcased a tale of
international intrigue—a massive tax fraud in Russia resulting in the transfer of $230 million
through a Byzantine web of shell companies. In view of recent revelations regarding Russia’s
outsized influence, there may have been more to this money laundering case than a few luxury
condominiums at 20 Pine Street.
Six months later, Prevezon refuses to pay, and the Government seeks to re-open
the case to enforce the parties’ settlement agreement. A pre-motion conference is scheduled for
November 9, 2017. (ECF No. 737.) In anticipation of that conference, Prevezon made a
supplemental request seeking an order from this Court directing the Government to offer
temporary immigration parole to its principal, Denis Katsyv, and its lawyer, Natalia
Veselnitskaya. (ECF No. 736.)
The authority to grant temporary immigration parole arises under Immigration
and Nationality Act, 8 U.S.C. § 1182. Section 212(d) provides that the Attorney General may
“in his discretion parole into the United States temporarily under such conditions as he may
prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public
benefit any alien applying for admission to the United States.” 8 U.S.C. § 1182(d)(5)(A).
Charged with the responsibility for the administration and enforcement of the nation’s laws
pertaining to immigration and naturalization, the Attorney General enjoys broad discretion in
deciding whether to grant the temporary parole request at issue here. “Indeed, section 1182(d)(5)
permits the Attorney General to deny parole to all or to certain groups of unadmitted aliens on
the ground that he finds no emergent or public interest reasons justifying their release on parole.”
Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982).
While such discretion “may not be exercised to discriminate invidiously against a
particular race or group or to depart without rational explanation from established polices,” there
is no reason here to question the Government’s “presumptively legitimate and bona fide”
decision not to grant parole. Sava, 684 F.2d at 212–13. As an initial matter, Prevezon offers
very little, if anything, to justify its request. It asserts that “the importance of this matter and the
unusual circumstances of this case” warrant parole to permit its representatives to attend next
week’s pre-motion conference or any subsequent proceedings. (ECF No. 736, at 2.) Every case,
however, is consequential in the eyes of a party that has a vested interest in the outcome. And
while the external circumstances surrounding this case may make it unusual, the subject matter
of the Government’s anticipated motion is no more unique than any other case in which a party
seeks to excuse its performance under a settlement agreement.
Further, that the Government has previously exercised its discretion to grant or
deny parole at different stages in this action only bolsters the “presumptive legitimacy of [its]
discretionary decisions.” Sava, 684 F.2d at 218. As the Government notes in its letter dated
November 2, 2017, it granted parole “for periods when necessary to facilitate the provision of
live testimony by witnesses,” including Katsyv, who was deposed in 2015 and early 2016.
Veselnitskaya also was paroled to assist foreign witnesses in preparing their testimony. (ECF
No. 738, at 2.) These decisions are wholly supported by the statute authorizing temporary
parole. See 8 C.F.R. § 212.5(b).
By contrast, in March 2016, the Government denied the parole request for Katsyv
and Veselnitskaya to prepare with U.S. counsel Prevezon’s appeal of the district court’s decision
to disqualify its then-counsel. The Government also refused to parole Katsyv and Veselnitskaya
to permit them to attend the oral argument on Prevezon’s appeal at the Second Circuit. (ECF
No. 738, Ex. A.) The Government in its discretion determined that in-person meetings with
counsel or attendance at oral argument do not justify the exercise of its immigration parole
authority. Nor do they serve any statutory purpose for which temporary parole may be granted.
The same result is warranted here. Next week’s conference is merely an
opportunity for each party to summarize its position and for this Court to enter a briefing
schedule for the Government’s anticipated motion to enforce the settlement agreement. And to
the extent that this Court permits oral argument on the motion at some point in the future, it is
difficult to imagine how a denial of temporary parole for that argument differs from the
Government’s refusal to parole Katsyv and Veselnitskaya for argument in the Second Circuit
regarding the disqualification of their previous counsel. Absent “strong proof” that the
Government’s decision was made “irrationally or in bad faith,” this Court sees no basis to
interfere with a decision that sits squarely within the purview of the Executive Branch. Sava,
684 F.2d at 213.
Outcome: Accordingly, Prevezon’s supplemental request seeking an order directing the
Government to grant temporary immigration parole for Denis Katsyv and Natalia Veselnitskaya is denied.