Vinod Doddamani
On June 23, DHS announced it was seeking to impose fines of $255,232 against Vinod Doddamani, an immigration lawyer operating “a nationwide practice in which he mostly represents Indian nationals”, for allegedly filing “false asylum claims on behalf of his clients”. The basis of that action isn’t mentioned, but it appears the department is dusting off section 274C of the Immigration and Nationality Act (INA), a little-used civil (not criminal) provision that can result in not-insignificant money penalties for certain immigration-related fraud offenses. Practitioners should take notice — as should applicants.
“ICE Seeking Fine of More Than $250,000 Against Immigration Attorney”
The DHS press release is titled “ICE Seeking Fine of More Than $250,000 Against Immigration Attorney for Allegedly Filing Fraudulent Asylum Claims”, and while it’s not terribly straightforward in describing how the government plans on getting its money — and doesn’t link to any charging documents — it does offer some clues.
Here are the two key paragraphs therein:
On June 22, HSI announced FIVE Notices of Intent to Fine against Attorney Vinod Doddamani, who operates a nationwide practice in which he mostly represents Indian nationals and files asylum applications on their behalf before the immigration courts. In support of the asylum claims, he files alien declarations that are identical or nearly identical in language and substance, containing the same or nearly the same factual narrative and supporting details regarding the alleged persecution.
In total, there are 32 immigration cases in which ICE alleges that Doddamani prepared and filed 64 fraudulent documents. ICE is seeking the maximum fine of $255,232. [Emphasis in original.]
Sixty-four “fraudulent documents” divided by $255,232 equals $3,988 per document, a key figure to keep in mind.
HSI
“HSI” refers to ICE’s Homeland Security Investigations directorate, a branch of the agency that, among other things (and it does a lot of other things), “conducts federal criminal investigations into the illegal movement of people, goods, money, contraband, weapons and sensitive technology into, out of and through the United States”.
Under Biden, HSI attempted to distance itself from its sister ICE directorate, Enforcement and Removal Operations (ERO), which is staffed by the sorts of employees most think of as “immigration officers”, the ones who arrest, detain, and deport removable aliens.
In fact, the word “immigration” only appears six times on HSI’s “Who We Are” page, each referring to its current agency or its predecessor, the “Immigration and Naturalization Service” (INS).
Nonetheless, Trump II has leaned on HSI to get on board with enforcing the president’s immigration policies, and this is just the latest example.
“DHS Takes Additional Steps to Crack Down on Asylum Fraud”
Because DHS never explains in the June 23 press release what authority it’s relying on to extract $255,232 from this allegedly shady immigration lawyer, piecing the claims in this case together are like reconstructing a chicken out of a bucket of KFC.
One lead can be found in the last line of that press release: “The announcement is in line with a prior directive by DHS General Counsel James Percival in May to take additional steps to crack down on fraudulent asylum claims.”
It links to a different DHS press release, this one from May 26 and captioned “DHS Takes Additional Steps to Crack Down on Asylum Fraud”, which explains:
DHS instructed ICE to develop anti-fraud policies that will further enforce 8 U.S.C. § 1324c(d), a law that establishes penalties for violations of document fraud. As a result of this directive, ICE attorneys have greater authority to enforce this law, including enforcement actions against immigration attorneys who file false asylum claims in an immigration court.
“Penalties for Document Fraud” under Section 274C
The referenced provision, 8 U.S.C. § 1324c(d), is better known (to the extent it’s known at all) as section 274C(d) of the INA, “Penalties for document fraud”.
Section 274C was added to the INA by the Immigration Act of 1990 (IMMACT 90), for a very specific reason: Congress didn’t include a punishment for aliens who offered bogus documents to prove they could work when it created the employment eligibility verification system in section 274A of the INA in the Immigration Reform and Control Act of 1986 (IRCA), and fake documents were rampant.
Congress amended section 274C of the INA in “IIRIRA”, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, adding a new paragraph (a)(5) to that provision.
Section 274C(a)(5) now makes it a civil offense to “to prepare, file, or assist another in preparing or filing, any application for benefits” under the INA “with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part”.
“Applications” includes the I-589, “Application for Asylum and for Withholding of Removal”, and just to close the loop, section 274C(f) of the INA (also added by IIRIRA) defines the term “falsely make” as:
to prepare or provide an application or document, with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted.
That’s a sweeping definition, and one that captures most forms of asylum fraud. So why hasn’t it been used more often?
Three reasons.
First, in 1994, a group of aliens in Walters v. Reno challenged the notice procedures the then-INS used to inform respondents they were being charged with document fraud under section 274C, and it wasn’t until more than six years later, in February 2001, that the parties in the case reached a settlement and prosecutions could continue.
Seven months later, America suffered the largest terrorist attack in U.S. history on September 11th, and immigration officers had bigger issues to handle than document fraud (assuming they remembered the long-dormant provision ever existed).
Second, fraud prosecutions under section 274C of the INA are a variety of the “briefcase enforcement” my boss Mark Krikorian has long been promoting, but that special agents in HSI have been reluctant to engage in.
Poring over I-589s to find identical asylum claims of the sort the government claims to have found in this case is every bit as tedious as matching I-9s to employment records in worksite enforcement cases under section 274A, and even the laziest and most corrupt lawyer is unlikely to use exactly the same language in each.
Admittedly, it’s more fun to run wiretaps and use confidential informants to find dope peddlers and fake Gucci vendors, two other duties in HSI’s broad remit.
The Arcane Procedures Governing Section 274C Investigations and Prosecutions
Third, section 274C fraud investigations and prosecutions follow arcane procedures set forth in 8 C.F.R. § 270.2, with agents reviewing complaints filed by “any person or entity having knowledge of a violation or potential violation” and investigating “only those complaints which, on their face, have a substantial probability of validity”, or alternatively launching investigations on their “own initiative”.
When potential violations are found, agents then must serve a Notice of Intent to Fine (NIF) on the alleged offender (which can include “anyone who knowingly prepares, files, or assists in filing an immigration application containing false statements”), informing the “respondent” of the charges.
The respondent can then request a hearing before an administrative law judge (ALJ) within the Office of the Chief Administrative Hearing Officer (OCAHO), a part of DOJ’s Executive Office for Immigration Review (“EOIR”, which also supervises the immigration courts and the Board of Immigration Appeals).
Under 28 C.F.R. § 68.52(e), the government bears the burden of proving by a preponderance of the evidence that the respondent has violated section 274C(d), while 28 C.F.R. § 68.54 allows respondents to seek review of any ALJ decision by the chief administrative hearing Officer (“CAHO”, the head of OCAHO) before seeking federal circuit court review (provided for in 28 C.F.R. § 68.56).
Simply put, there’s little “instant gratification” in most civil document fraud prosecutions, and they can be resource intensive.
Potential Fines
That said, the potential fines for 274C(a)(5) violations are steep, ranging from between $500 and $3,988 per document for a first offense and between $3,988 and $9,970 for subsequent ones — suggesting that the fines claimed in the NIFs in Doddamani’s case are indeed on the top end of the scale.
Another practitioner refers to those fines as “exceptionally high”, while noting that as “an asylum case relies heavily on a web of documents — including the Form I-589, personal affidavits, country condition reports, and supporting statements — penalties can compound rapidly for a single application”.
It’s tough to disagree, but writing a massive check to the government may be the least of many attorneys’ worries.
To practice law, you usually must have a bar license, generally issued by the highest court in a state, district, or territory, and most supervising tribunals take a dim view of fraud.
In addition, if immigration attorneys are green card holders (and more than a few are), final orders under section 274C of the INA can render them deportable under section 237(a)(3)(C)(i) of the INA, and while a waiver is available for that ground, it is exceptionally limited.
“Fraudulent Asylum Claims Threaten the Safety of Americans”
For his part, the respondent in this case told Fox News he denies “any wrongdoing”, claiming “DHS has the wrong suspect.”
Instead, the outlet reports, Doddamani “blamed ‘a rogue employee’ and his ‘office manager’ for the filings in question. He said that, ‘in a certain sense, I really feel discriminated by this country for at least the last 25 years.’”
While I won’t comment on that last point, I’ll note Doddamani enjoys the same presumption of innocence in civil section 274C fraud proceedings as any defendant would in a criminal prosecution, and unless he concedes the allegations in the NIFs, the government will be held to its proof.
The latest DHS press release quotes DHS General Counsel Percival, who notes:
Fraudulent asylum claims threaten the safety of Americans by overwhelming our burdened immigration system and delaying the removal of dangerous criminal aliens. ... For too long, immigration attorneys have not been held to the same ethical standard as other attorneys. Under President Trump, this will no longer be tolerated.
It’s clear that asylum fraud threatens both the country and the integrity of our immigration system, and I’m heartened Trump II has made combating it a priority. It's high time the government cracked down on those who abuse our humanitarian protections and are playing the American people for suckers and rubes.