Asan claimed he was told by the government on the day he signed his cooperation agreement in 1983 that he would not be deported and that Rakoff told him "not to worry."
But Rakoff testified that he negotiated the agreement with Cohen to include a line about informing the Immigration and Naturalization Service about Asan's cooperation.
Asan claimed that at his guilty plea on Jan. 5, 1983, he pressed Rakoff on deportation consequences and Rakoff repeated his reassurances of no deportation.
But Haight found that "contrary to the assertion in the petition, Mr. Asan and Mr. Rakoff did not have a substantive discussion on the subject of deportation consequences" during the plea hearing.
The only discussion, Haight said, was the one that took place when Asan signed the cooperation agreement on Nov. 22, 1983.
Rakoff testified that he knew at the time that "the likelihood of eventual deportation was very, very high and I so informed him," and that was why he insisted the INS be fully informed about Asan's cooperation.
Haight found it "inherently implausible to suppose that Mr. Rakoff gave an assurance against deportation open-ended as to time."
Haight cited Rakoff's experience as a prosecutor "as well as a subsequent convert to the defense side on the CJA panel."
"He knew that a United States Attorney's office within the Department of Justice had no authority to suggest, let alone promise, that if an alien defendant cooperated with that office, immigration authorities occupying an entirely separate place within the Executive Branch of Government would guarantee against any future deportation," Haight said. "At the time of his representation of Mr. Asan, Mr. Rakoff did not have, and could not have had, the belief that the United States Attorney had the power to make such a promise; and he did not advise Mr. Asan that the prosecutors had that power or had exercised it in Mr. Asan's favor."
Haight credited the testimony of both Asan and his wife that Rakoff reviewed the cooperation agreement with them line by line and he credited Rakoff's own statement that he included the notification of the INS so he could help out Asan "on the immigration side."
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