Originally Published in Politico
Natasha Bertrand - September 3, 2020
Gregory Duralev's supporters say he's just one of many people fleeing persecution who have been flagged for removal by U.S. immigration authorities.
A Russian national living in California with his American family is now facing deportation from the U.S. due to what experts say is a politically motivated request by Russia for his arrest — one of a number of cases in which U.S. immigration authorities have relied on such a request for prolonged detention and so-called backdoor extraditions.
The story of Gregory Duralev is a tale worthy of Franz Kafka. A former bodybuilder turned businessman, Duralev wrote a master’s thesis on a subject he had encountered firsthand: corruption in the Russian economy.
“I was a little naive, so I decided to send it directly to the presidential website as my own kind of civil initiative,” he said in an interview. “Soon thereafter, I was charged with fraud.”
Duralev was detained in a maximum-security facility for nearly 18 months, at times in solitary confinement, according to documents he provided and interviews with his friends and legal advisers. His case is now in the Ninth Circuit, and he is expecting a decision by the end of this year on whether he will be ordered for deportation. In the meantime, the Department of Homeland Security has equipped him with an ankle bracelet that monitors his every move.
“DHS has acted no better than the Russian authorities,” Duralev said. “They simply fabricated charges against me for violations I never committed — and if DHS can trump up charges against immigrants with impunity, nobody can guarantee they won’t start doing it” to regular Americans. “So that’s the main message I now hope to send.”
DHS and ICE did not return requests for comment.
Duralev has no criminal record in the U.S. or Russia. Nor do Russia and the United States have a formal extradition treaty. But he was arrested, deemed a flight risk and denied bond, he says, because of a Red Notice issued by Russia and shared with POLITICO. Experts who have reviewed the document say it was so incomplete and riddled with inaccuracies that it was nearly incomprehensible. A Red Notice is a request to law enforcement worldwide, sent through Interpol, to locate and provisionally arrest a person pending their extradition.
“The use that has been made of this Red Notice in the legal process on Mr. Duralev raises serious questions,” Ted Bromund, an expert in Interpol — formally known as the International Criminal Police Organization, headquartered in Brussels — and a senior research fellow at the conservative think tank Heritage Foundation, wrote in an expert report that he submitted in support of Duralev and provided to POLITICO.
Russia’s abuse of Interpol to persecute the Kremlin’s rivals and political dissidents has been extensively documented by journalists, think tanks and lawyers. The most prominent example may be the case of Bill Browder, an American businessman-turned-activist who was the largest foreign investor in Russia until 2005, when he fell out of favor with Russian President Vladimir Putin. After Browder began a campaign to expose Kremlin corruption, he was subsequently targeted with eight separate requests by Russia through Interpol for his arrest — a campaign of harassment so pervasive that Browder made “Red Notice” the title of his 2015 book.
But equally if not more insidious is the ongoing willingness of Western immigration authorities to lean on Red Notices from autocratic countries that are obviously politically motivated, frequently resulting in the detention of asylum-seekers who have lawful status in the U.S.
According to the Justice Department, a Red Notice is “not a sufficient basis for the arrest of a subject because it does not meet the requirements for arrest under the 4th Amendment to the Constitution.”
But Red Notices, including from authoritarian regimes known to abuse the process, like Russia, China and Venezuela, have nevertheless been used by U.S. immigration authorities to target immigrants, supplement offenses like visa overstays, and justify prolonged detention and deportation, according to federal public defenders, immigration attorneys, experts in transnational crime and corruption and the victims themselves.
Immigration attorney Sandra Grossman, who specializes in international human rights and Interpol issues, said ICE has increasingly been using Red Notices “to manufacture immigration violations,” particularly visa overstays for those waiting on an asylum decision. The federal government began to monitor the issue of visa overstays in January 2016 but Trump ordered a crackdown on the issue in April 2019.
“We are in an enforcement atmosphere, but ironically ICE is actually not applying what the law and policy is,” said Grossman, who said that at least anecdotally, she’d noticed the problem “worsening” over the last year. She added that in her cases, she had seen increasing instances of ICE accessing law enforcement databases to find Red Notices and use those to target foreign nationals, including those awaiting asylum decisions who are technically in the U.S. legally.
The targeting can happen even when the Red Notice is of extremely low quality and lacking coherence. In Duralev’s case, the notice accused him of embezzling 73 million rubles, which the Russians translated to “approximately 20,000,000 U.S. dollars.” But 73 million rubles is in reality about $1 million.
“Just a cursory Google check on the substance of the Duralev Red Notice would show you something is very wrong here,” said one public defender who requested anonymity because he was not authorized to speak to the press.
Bromund, in his report, wrote that he had “never encountered an error of this kind and scale in a Red Notice before.” At best, he said, it illustrates that Russia “exercised no care” when drafting the Red Notice. Even so, the immigration judge in Duralev’s case, Kevin W. Riley, wrote in his decision denying Duralev bond that Russia through its Red Notice had accused him of committing fraud “in the amount of approximately $20,000,000 from 2010 to 2011.”
Duralev says he wasn’t sure what was happening to him until he read Browder’s book in jail, a gift from a friend he got to know through the organization Friends of Orange County Detainees. “He was astounded by how similar his story is to Browder’s,” the friend, Gavin Cameron-Webb, said in an interview.
Browder said Duralev had reached out to him about his case, which he saw as fitting a familiar pattern.
“The fact that immigration judges are relying on Russian Red Notices to penalize Russians who have fallen out with the state makes no legal sense,” Browder said. “It shouldn't happen. It’s illegal and it’s unjust.”
He emphasized that the practice could facilitate deportations to a country with which the U.S. has deliberately chosen not to enter into an extradition treaty.
“The Justice Department, through multiple administrations across both parties, has determined that the Russian legal system is completely corrupt and therefore it would be unwise to honor a Russian extradition request,” Browder said. “A Red Notice is a provisional arrest warrant subject to extradition. Therefore the U.S., as a principle, doesn’t honor them. So for an American immigration judge to play a role in this is beyond reproach.”
Grossman said that while the problem in the U.S. begins with ICE, which does not appear to have a strong vetting mechanism in place to gauge the legitimacy of these Red Notices, immigration judges also have “a fundamental lack of understanding about what a Red Notice is or isn't. It’s not an international arrest warrant or conclusive evidence of criminality.”
Duralev, who was born in the remote Siberian city of Barnaul, says he was facing persecution in Russia when he decided to flee and apply for asylum in the U.S. in January 2016. The risks to his freedom and potentially to his life stemmed from a group called the “Tambov-Malyshev Gang,” Duralev said in legal proceedings. The gang’s leader was sentenced last year to a total of 24 years in prison for murder and for his role in founding the criminal organization.
Duralev says he first encountered the gang in 2006 in St. Petersburg, when he was violently assaulted by two members with metal clubs and landed in the hospital. In 2010, he says he refused to accommodate demands by St. Petersburg city officials—allegedly in league with the gang, which by 2007 had taken over more than a dozen companies in the city, according to Russia’s former top prosecutor Yury Chaika—to forfeit to them a commercial bid his firm Stroi Holding LLC, an electronic equipment trade company, had won from another private company.
Around the same time, Duralev was working on completing his thesis for his second master’s degree in economics, according to documents and diplomas that he provided to POLITICO. “Maybe naively,” he says, he uploaded his thesis, which focused on eliminating corruption in the Russian economy, to the presidential website. Years passed, but it was not until he left Russia for the U.S. in November 2015 that Russia decided to charge him with fraud and issue a Red Notice for his arrest.
Riley, the immigration judge in Duralev’s case, acknowledged that Russia only pursued Duralev after he left the country. But he relied on Russia’s description of Duralev’s alleged crimes to deem him a flight risk. “Given the significant amount of fraud involved, the seriousness of the charge, as well as the significant penalty that [Duralev] may face if convicted, the Court noted that [Duralev] would not have much incentive to be found, held, and removed to Russia,” Riley determined.
Accusations of fraud, theft, tax evasion and money laundering are commonly leveled against the Kremlin’s perceived enemies, Bromund noted in his expert report, citing nearly a dozen examples.
One notable case involved a Russian forensic accountant, Nikita Kulachenkov, who worked on anti-corruption issues with the opposition activist Alexei Navalny, who is now in a coma after being poisoned. Kulachenkov was arrested in Cyprus on the strength of a Russian diffusion, similar to a Red Notice, that accused him of stealing a piece of street art valued at one dollar. Navalny himself was convicted of embezzlement and money laundering in trials in 2013 and 2014 that Europe’s top human-rights court later called “arbitrary and manifestly unreasonable.”
In another notorious case, Alexey Kharis, the head of the construction company ZAO Rosdorsnabzhenie in the Russian port city of Vladivostok, fled to the U.S. from Russia in 2013 and applied for asylum after the Kremlin seized his private assets and bankrupted his company in a practice known as corporate raiding. Then, in 2015, Russian authorities accused Kharis and his business partner, Igor Borbot, of massive fraud and put out a Red Notice for their arrests. Their U.S. tourist visas were revoked as a result of the Red Notice, and they were subsequently detained by ICE. (Borbot was finally released after the Red Notice against him was deleted by Interpol, according to his attorney, and he and Kharis are now out on bond awaiting a decision on their asylum requests.)
In September, House and Senate lawmakers introduced the Transnational Repression Accountability and Prevention (TRAP) Act, which would outlaw the arrest of people subject to Red Notices without first verifying their eligibility for extradition and the issuance of a proper arrest warrant, among other stipulations. It would also prevent the use of a Red Notice as the sole basis to detain someone or remove them from the U.S. But the legislation has yet to pass and is still with the Senate Foreign Relations Committee, according to a congressional aide.
As for Duralev, he says he had been waiting for a decision on his asylum application for more than two years — during which he was legally allowed to remain in the U.S., according to a letter he received from the U.S. Citizenship and Immigration Services (USCIS) that was reviewed by POLITICO — when he was finally summoned for an interview by USCIS in September 2018 as part of the asylum process.
But when Duralev arrived for his interview, he says, he was arrested by ICE officers, detained at the maximum security Theo Lacy facility in Orange, Calif., and denied bond. At one point several months into his detention, after growing frustrated with a guard accusing him of venturing into another area of the jail without permission and ordering him to get on the ground, Duralev retorted that the guard didn’t have the authority to treat him like a criminal inmate when he was just an immigrant. He was consequently placed in protective custody and told to know his “place,” according to Duralev and Cameron-Webb’s contemporaneous notes from their meetings.
Documents reviewed by POLITICO suggest that the Red Notice was at the heart of Duralev’s arrest and continued detention, even though it didn’t even meet the administrative standards set out by Interpol, Bromund said, which requires that Red Notices contain sufficient judicial data before being published.
When Duralev appealed his detention to the Justice Department’s Board of Immigration Appeals, the board dismissed it, confirming Riley’s finding that Duralev was a flight risk because of the Red Notice. That assertion makes “no sense,” Grossman said, given the point of the notice is to make it harder for individuals to flee, and they often have nowhere to go.
“At what point does the U.S. become a willing participant in Russia’s persecution of dissidents?” asked one public defender who requested anonymity to discuss the issue freely, calling the root of the problem on the American side “a combination of general incompetence, and a bias by the immigration courts against granting asylum to anyone.”
Galvanized by the belief that he, like Browder and others before him, had been targeted for angering powerful Kremlin allies, Duralev began educating himself on the U.S. immigration system and ultimately decided to represent himself in filing a petition for a writ of habeas corpus, which allowed him to challenge the legality of his ongoing detention in court.
“On his own, without any assistance of an attorney, Mr. Duralev filed a habeas petition in federal court seeking his release,” Deputy Federal Public Defender David Menninger wrote in a recommendation letter for Duralev to the Washington University in St. Louis, where Duralev applied to law school earlier this year.
Duralev was finally released on bond in February, and has since been accepted into Washington University’s School of Law, where he hopes to begin his studies this fall if he is allowed to remain in the U.S.
In the meantime, from his home in California, Duralev is now pursuing a civil lawsuit against DHS for “fabricating charges” against him — accusing him of illegal visa overstay, despite USCIS allowing him to remain in the U.S. pending an asylum decision. He has also sent a complaint to the DHS inspector general, which has yet to be answered.