Convicted aliens who will be deported anyway should get lighter sentences, according to David G. Banes, who is the lawyer for a Japanese businessman who is awaiting sentencing for engaging in fraud in connection with the applications for CNMI-Only Transitional Worker program or CW-1 permits.
Citing Kosuke Tomokiyo’s personal history and lack of criminal history, Banes recommended to the U.S. District Court for the NMI to impose a probation sentence only on Tomokiyo or, at worst, a month of home confinement, as he poses no realistic threat to society.
Banes said his client’s impending deportation mitigate the amount of imprisonment necessary to punish Tomokiyo.
Tomokiyo will be sentenced on March 11 at 1:30pm.
Banes said it is very unlikely that the 55-year-old Tomokiyo will commit more crimes, given that this is his first conviction and he is already a deportable alien. Banes said deportation itself is a punishment.
Banes pointed out that the U.S. Probation Office agrees that Tomokiyo played a minor role in the fraudulent scheme at the center of this case.
He said it is clear from the allegations in this indictment and the investigation reports that Mizanur Khan was the mastermind behind the fraud.
The court should also consider, he said, that Tomokiyo helps support three minor children, and two minor live with him here on Saipan and he helps supports his wife’s younger brother.
The U.S. government, through assistant U.S. attorney Eric O’Malley, also recommended a sentence of probation and a fine of $5,000.
O’Malley said the U.S. government does not believe that Tomokiyo needs to be imprisoned in order to protect the public.
O’Malley said the U.S. government believes that a sentence of probation and a fine will deter Tomokiyo and others who may be tempted to engage in this type of crime.
Tomokiyo pleaded guilty to one count of fraud and misuse of visas for a scheme in which he obtained a CW-1 permit by conspiring with Khan.
As part of the scheme, Tomokiyo agreed to provide Khan with capital to start a small business called K.C.A. Corp.
In exchange, Khan and K.C.A. sponsored Tomokiyo as one of its employees, even though he was not, in fact, an employee.
Tomokiyo and Khan sustained this scheme for three years, twice submitting information to USCIS in order to obtain CW-1 renewals.
O’Malley noted that Tomokiyo was willing to testify against Khan and, although Khan’s case was also resolved by a plea agreement, there was no reason to believe that Tomokiyo would not have testified honestly if called to do so.
O’Malley said the U.S. government has seen no evidence that Tomokiyo was involved in other illegal activities while in the CNMI, but believes he merely wished to reside here as a de facto tourist.
However, O’Malley said, the offense was not without harm.
At the very least, he pointed out, it likely deprived a CNMI employer of a needed foreign work.
“It also likely removed an opportunity for the putative foreign worker to make a better living,” he said.
He said Tomokiyo’s behavior also damaged the reputation of the CW-1 program, on which the CNMI’s economy has grown dependent, and whose continued existence—especially at the time of the offense—was precarious.
According to court documents, Tomokiyo was vice president and part-owner of K.C.A. Corp. Khan, who was president and part-owner of the company, was charged with four counts of fraud and misuse of visas and permits and two counts of mail fraud.
According to the indictment, on Aug. 5, 2015, Khan lied to U.S. Citizenship and Immigration Services that three foreign workers would be employed by K.C.A. as an “operation service worker (charcoal maker)” and that they would be employed in that capacity for 40 hours per week, for a period of one year.
On Aug. 22, 2016, Khan and Tomokiyo allegedly lied to USCIS that Tomokiyo had previously been and was to be employed by K.C.A. as a “sales manager,” and that Tomokiyo had been employed in that capacity since January 2016.