Reversalis sought in visa case

CONCORD – A Kenyan immigrant is asking a judge to reverse her conviction for visa fraud, saying federal prosecutors withheld key evidence and pressured witnesses to testify falsely.

Wanjiku Thiongo already has served nearly two years of a 46-month federal prison sentence for conspiracy to commit visa fraud and obtaining visas for Kenyans under false pretenses.

John Markham, a Boston lawyer and former federal prosecutor helping Thiongo, said Tuesday he hopes U.S. District Judge Paul Barbadoro will grant her a hearing.

“We hope the judge will listen to us. He’s tough but fair, and if we make our case, the conviction will be reversed,” he said.

Above all, Thiongo wants to avoid deportation, said another lawyer, Jan Lint. She has lived in the United States 26 years and her husband and four children are U.S. citizens.

“It’s almost an automatic thing,” Lint said. “For those of us who know her, that’s probably the most heartbreaking part of this whole thing, because she has a family who were born and raised here.”

At trial, prosecutors said Thiongo accepted $1,000 to $4,000 apiece to help obtain short-term visas for Kenyans, on the pretext they would attend farming programs and cultural exchanges.

Assistant U.S. Attorney Terry Ollila said the programs didn’t exist and Thiongo knew the Kenyans intended to remain in the United States illegally after their visas expired.

In a motion filed Friday, Thiongo said Ollila and Immigration and Naturalization Service investigators built their case on the testimony of Kenyan witnesses who were offered help with immigration if they cooperated – and threatened with deportation if they didn’t.

At least eight witnesses applied for political asylum after the one-year statute of limitations had expired and all have either obtained it or are still awaiting decisions, the motion said. None has been deported.

The motion quotes an e-mail from witness Sammy Ngetha, written after the trial to a friend in Kenya, saying the witnesses “were told what to say.”

“We had no other wise, they had to win this case, or else we were out of there deported,” the e-mail said. “We all had to do it and say she knew what was happening and we paid her money poor woman and the way she was strict about going home and to the program.”

Two witnesses who initially had agreed to testify for Thiongo later told her INS agents came to their home early one morning and seized all their family’s passports, then said, “ ‘If you don’t testify for us we will take you to court,”‘ the motion said.

A Boston lawyer initially agreed to testify that he had advised Thiongo on immigration matters and knew she was concerned that some participants had failed to show up for her programs, court records said. However, he ended up representing several of the immigrants who testified against her, the motion said.

Ollila was out of the office Tuesday. Assistant U.S. Attorney Robert Kinsella said the government had not filed a response yet to Thiongo’s petition and could not comment.

The motion says Ollila also withheld evidence that could have cleared Thiongo, including visa applications and letters written by the witnesses that contradicted their testimony.

After Thiongo was convicted, some witnesses told her Ollila had showed them letters they wrote to Thiongo, proving their eligibility to participate in her exchange programs, the motion said. Thiongo kept the letters at her Nairobi office.

“As it happens, approximately one month before she was indicted, that office was raided and all the files and furniture seized, supposedly because past rent was back due,” the motion said. Thiongo said she did not owe any rent and demanded that her property be returned, but it never was.

“Yet somehow, the letters maintained by Thiongo among the seized files were obtained by the federal government and showed to at least two witnesses,” the motion said. They were not turned over the Thiongo’s defense lawyer, the motion said.