By KAREN ALEXANDER. Legal Times, July 28, 1997.
It was bad enough for the Immigration and Naturalization Service that it lost its yearlong battle last week to keep a Russian banker behind bars while he fights deportation.
By week's end, the INS itself, as well as a high-ranking agency lawyer, had fallen under scrutiny over its handling of the case. It was facing a barrage of ethics allegations from the onetime INS prosecutor on the case and from a former KGB agent who consulted on the matter—charges that seem to have captured the attention of a U.S. district judge in Virginia.
The complicated case stems from an accusation by Russian prosecutors that Alexandre Konanykhine, who made a fortune in post-communist Russia, embezzled $8 million from a Russian bank.
In 1992, Konanykhine and his wife, Elena Gratcheva, entered the United States on multi-national business visas.
In June 1996, Konanykhine and Gratcheva were arrested for alleged visa violations at their co-op in the Watergate apartments. Gratcheva was released on bond, but Konanykhine was jailed in Winchester, Va. The two filed for asylum, claiming that Russian mobsters were trying to steal Konanykhine's businesses and have him killed.
The INS claims that Konanykhine, now 30, lied on his business visa, is a fugitive from justice in Russia, and must be kept in custody until he can be deported because he is a flight risk. An immigration judge denied Konanykhine asylum and found him deportable.
But in federal court last week in Alexandria, Va., Judge T. S. Ellis III, ruling on Konanykhine's third habeas petition, granted him temporary relief, allowing him to go home under house arrest. And two unlikely sources launched accusations against lawyers at the INS Washington district office in Arlington, Va.
The witnesses said INS officials including District Counsel Eloise Rosas, the top lawyer in the office, had misled the court about their reasons for detaining Konanykhine and had ignored suggestions that some of the evidence against him is flawed.
Antoinette Rizzi, a former INS attorney who originally prosecuted the case against Konanykhine while working for Rosas, and Yuri Shvets, a former agent of the KGB foreign intelligence service, portrayed INS officials as either dupes of the KGB or its knowing accomplices.
Konanykhine, a lanky, boyish-looking financier who once ran the All-Russian Exchange Bank, was worth an estimated $300 million in his mid-20s. He claims he is the victim of a conspiracy by Russian mobsters who have stolen his businesses and want him returned to his homeland on false criminal charges to be jailed or killed.
Judge Ellis seemed persuaded by the case for Konanykhine, which was made by his pro bono lawyers, John Nassikas III, of counsel at D.C.'s Arent Fox Kintner Plotkin & Kahn, and D. Jacques Smith, a senior associate at the firm.
"I find the testimony today to be credible and somewhat disturbing," Ellis said from the bench at the end of the all-day hearing on July 22. He ordered that Konanykhine be allowed to live with his wife in their small Northwest Washington, D.C., apartment until a permanent ruling is reached on his habeas petition. Konanykhine must wear an electronic anklet and cannot leave home.
Ellis noted that one of the reasons he ordered the temporary release was the "likelihood of success" of Konanykhine's quest for permanent release on bond.
In a separate matter, the Board of Immigration Appeals has agreed to hear oral arguments in the immigration case of Konanykhine and Gratcheva on July 31. The couple is represented in that case by the well-known immigration lawyer Michael Maggio of D.C.'s Maggio & Kattar. Maggio has also filed a motion to remand the case to the immigration judge on the basis that the evidence against Konanykhine is faulty.
Rosas, as well as two of her assistant counsel, Stephen Paskey and Deborah Todd, were in court during last week's hearing, but did not participate actively in the questioning of Rizzi and Shvets. INS attorney Genevieve Augustine conducted a sometimes faltering cross-examination, seeking to cast doubt on the credibility of Rizzi and Shvets and to portray Rosas as the target of a vendetta by Rizzi.
Rizzi testified that she had made numerous attempts to bring concerns about the evidence against Konanykhine to the attention of INS and Justice Department officials. Court filings and interviews indicate that the INS's conduct on the case had been raised with officials including David Martin, INS general counsel; Frederick Tournay, INS ethics officer; Jack Penca, INS regional counsel; Michael Shaheen, director of the Office of Professional Responsibility at the Justice Department; and Michael Bromwich, inspector general at Justice.
Rosas declines to discuss the Konanykhine case.
John Ingham, an INS spokesman said, "The INS has great confidence in its case against Alexandre Konanykhine and believes all of its actions have been proper and legitimate. The government has no reason to doubt the reliability of documents presented in the case."
In response to the three petitions for Konanykhine's release, the INS has told the court that the banker was being detained because he is a flight risk. But Rizzi says that INS attorneys, including Rosas, her former boss, have misled the court about the service's reasons for detaining Konanykhine.
Rizzi, now a solo practitioner in Falls Church, Va., alleges that Konanykhine has been detained because the INS—eager to please the Russian government in light of recent prosecutorial cooperation between the nations—had promised Russian prosecutors that he would be held in custody until he could be delivered back to Russia.
The United States does not have an extradition treaty with Russia. Under U.S. law, aliens who are deported are returned to the country from which they entered the United States. In Konanykhine's case, that country is Antigua.
Two Russian law enforcement agents have been instrumental in pressing the Russian government's case against Konanykhine: military prosecutor Alexander Volevodz and Igor Nisuev, a senior officer in the Russian Federation's Ministry of the Interior.
The two were in Washington at the time of Konanykhine's arrest and have met on several occasions with law enforcement officials, including representatives of the Federal Bureau of Investigation and the INS.
Rizzi testified that on June 28, 1996, in her capacity as assistant district counsel, she met with Nisuev and Volevodz to explain the deportation process to them. She said she told them that if Konanykhine and his wife were deported, they would be "sent by law to the country from which they came"—Antigua.
Rizzi testified that Rosas then entered the meeting "and said despite that law that Mr. Konanykhine would be returned to Russia."
"I sat in my chair and I was amazed," Rizzi recalled. "I said well, maybe I don't know the law as well as I thought I did."
Rosas "promised" Volevodz that Konanykhine would be held in custody until he was returned to Russia, Rizzi further alleged.
Rizzi also testified that Rosas later tried to coax her into filing an affidavit about the case that contained statements she did not believe were true, including assertions that the INS "had no interest in cooperating with Russia" and that Rizzi did not fear retaliation from Rosas for stating otherwise.
"Rosas went rooting through my trashcan for the affidavits because she had made marks about what I should add," Rizzi testified. A photocopy of the proposed affidavit, which allegedly bears Rosas' markings, was admitted as evidence.
Rizzi claims she was forced out of the INS in the fall of 1996 as a result of the concerns she raised.
On cross-examination, INS attorney Augustine indicated that Rizzi had been asked to resign because she failed her final background check due to some outstanding payments to the Internal Revenue Service.
Charges of Retaliation
This is not the only instance in which Rosas has been portrayed as a supervisor with a tendency to retaliate against employees who challenge her authority.
Rizzi alleged in court, and an INS source confirms, that three complaints alleging discrimination and retaliation have been filed against Rosas with the agency's Equal Employment Opportunity office by two employees. Rosas says that is not accurate, but declines further comment.
According to the INS source, one of the complaints has been accepted for investigation, and the other two are pending. EEO officials would not confirm the complaints against Rosas; such complaints are not a matter of public record unless they result in a finding of bias.
Also at last week's court hearing, Rizzi and Shvets, the former KGB agent, testified that they had expressed grave concerns about some of the evidence against Konanykhine.
Hundreds of pages in length and partly in Russian, the documents served as the basis for Konanykhine's arrest and the execution of a search warrant at his apartment, court papers show.
Rizzi testified that as the case against Konanykhine proceeded, she began to doubt the authenticity of some of the documents and expressed her concerns to Rosas.
"I told her I didn't think we should rely on those letters and she said she is the district counsel and she was going to rely on them," Rizzi stated.
Shvets, a KGB foreign service agent of 10 years' experience who was granted political asylum in the United States, was hired by the INS last summer to analyze the documents. He claims that Rosas and her subordinates ignored his findings that the documents showed strong indications of manipulation and corruption by KGB agents.
Shvets studied the documents for three days last summer. He testified that at the outset, Rosas told him, "The INS got instructions from the top to cooperate on this case and it looked pretty complex."
"I should tell that these two documents I read, they were screaming about the lies, about the fraud and manipulation," Shvets testified.
Shvets said he told Rosas and her deputies that they were "in big trouble with this case because you are asked to cooperate, but I saw strong indication that the documents are lying."
Shvets laid out in his testimony a conspiracy in which hundreds of millions of dollars were stolen from Russia by agents of the former KGB, and Konanykhine was a fall guy in a cover-up.
"The Russians believed no one would read this file carefully in the U.S.," he testified, "The Russians believed they could handle this behind the scenes."
Shvets says Rosas dismissed him after three days and told him it would be unnecessary to put his findings in writing or to present them in court.
For her part, Rizzi testified that Rosas removed her from the Konanykhine case and then relieved her of all of her duties as a result of the ethics concerns she raised. She was eventually placed on administrative leave and says she resigned "on the condition that the [Office of Professional Responsibility at the Justice Department] would continue its investigation."
At the hearing, Judge Ellis indicated that he took seriously the possibility that the INS had misrepresented both the evidence against Konanykhine and its reasons for seeking his continued detention.
The reasons presented for detaining Konanykhine "must be more than acceptable . . . they must also be the district director's bona fide or actual reasons," he said. "[I]t's my recollection that I was repeatedly assured that there was no desire to deliver Mr. Konanykhine to the Russians."
Both sides will be able to file additional briefs and written testimony, and the case before Ellis will resume Sept. 26.