Naujalis v. Immigration Service et al

Decision Date15 February 2001
Docket NumberNo. 00-1518,00-1518
Citation240 F.3d 642
Parties(7th Cir. 2001) Juozas Naujalis, Petitioner, v. Immigration and Naturalization Service and John Ashcroft, Attorney General of the United States, Respondents
CourtU.S. Court of Appeals — Seventh Circuit

Petition for Review from the Board of Immigration Appeals of the Immigration and Naturalization Service No. A 7 258 120

Before Posner, Manion, and Diane P. Wood, Circuit Judges.

Manion, Circuit Judge.

In May 1949, Juozas Naujalis, a Lithuanian native, applied for and received an immigrant visa to enter the United States under the Displaced Persons Act; but in doing so he failed to disclose his service in a Lithuanian battalion that assisted the Nazis in their persecution of civilians during World War II. In October 1995, the United States filed an Order to Show Cause with the Immigration Court, charging that Naujalis was deportable because of his service in the Lithuanian battalion. After a merits hearing in 1997, the Immigration Court ordered Naujalis deported to Lithuania. The Board of Immigration Appeals affirmed the deportation order, and Naujalis appeals. We affirm.

I.

On June 22, 1941, the armed forces of Nazi Germany invaded the Soviet Union, sweeping through the Soviet-dominated Baltic States and occupying Lithuania within a week. Special Nazi Security Police forces followed the German Army into Lithuania primarily to execute Jews, communists, and others regarded as enemies of the Third Reich.

Many Lithuanians initially viewed the German Army as liberators from Soviet domination, and they attempted to establish an independent Lithuanian government and form a national army. But the Germans quickly converted the provisional national government into an indigenous administrative apparatus, and subordinated the Lithuanian Army into auxiliary police forces to supplement the Nazi Security Police units. In early August 1941, the German 11th Police Reserve Battalion (German 11th Battalion) arrived in Lithuania and assumed control of all indigenous Lithuanian units, including the auxiliary police force that became known as the 2nd Auxiliary Police Battalion (2nd Battalion).1 The members of the 2nd Battalion were volunteers and were paid in German marks.

Juozas Naujalis served in the Lithuanian Army from 1938 to July 1940, when he returned to his father's farm in Lithuania. After the Germans forced the Soviets out of Lithuania, Naujalis voluntarily joined the 2nd Battalion in August of 1941 to serve the new Lithuanian Army. He was transferred as a "gunner" to the First Company of the 2nd Battalion with the rank of Lance Corporal and the rights of a squad leader. The Nazis took control of the 2nd Battalion shortly after Naujalis joined.

On October 6, 1941, the Nazis transferred the 2nd Battalion, along with the German 11th Battalion, from Lithuania to Minsk in Byelorussia (now Belarus). Their mission was to exterminate "Bolshevism" by eliminating the remnants of the Bolshevik army and its partisans from the Minsk- Borisov-Slutsk region. According to the Nazis, "Bolshevism" and "Bolsheviks" referred to Jews and members of the Communist Party. Naujalis was transferred to Minsk with the 2nd Battalion.

During October 1941, the 2nd Battalion assisted the German 11th Battalion in a series of killing missions in which they executed over 11,000 men, women and children. The soldiers of the 2nd Battalion participated in these missions by surrounding villages, locating victims in their homes and workplaces, marching them to killing fields, forcing them to undress and lie in pits, and then shooting the victims. The Battalions' "cleansing" actions in Byelorussia included the execution of at least 617 civilians in Dukara on October 8, 1941; 800 communists, Jews, and other "partisans" in the Rudensk area from October 9- 11; 1,300 communists, Jews, and other "hostile" persons in Smilovichi on October 14; 625 communists from a civilian prison camp in Minsk on October 15; an additional 1,150 communists from the Minsk camp on October 18; 1,000 Jews and communists in Kojdanov on October 21; and 5,900 Jews in Slutsk on October 27-28, 1941.

In Naujalis's sworn statement taken in 1992, he claimed that he did not personally participate in any of the 2nd Battalion's killing missions because he spent the month of October 1941 (and that entire winter) in Minsk guarding a railway station against possible Soviet attack.

From November 1-14, 1941, Naujalis was assigned with other 2nd Battalion members to the village of Kojdanov. In November of 1943, two years after the atrocities, Naujalis deserted the 2nd Battalion while on furlough. He was caught and arrested for desertion, and spent a year in jail. He later fled to Germany where he worked as a forced laborer.

In May 1949, Naujalis applied to the United States Displaced Persons Commission (DPC) to establish his status as a Displaced Person so that he could emigrate to the United States under the Displaced Person Act (DPA).2 Naujalis never informed the DPC of his service in the 2nd Battalion, and the DPC certified him as a Displaced Person on May 16, 1949. He then applied for and received an immigrant visa, and entered the United States under the DPA in August 1949. Naujalis never applied for U.S. citizenship.

In October 1995, the United States filed an Order to Show Cause (Order) with the Immigration Court, charging that Naujalis was deportable, pursuant to 8 U.S.C. sec. 1227(a)(4)(D)(the Holtzman Amendment),3 for assisting Nazi- directed persecution through his membership and service in the 2nd Battalion. The Order also charged that Naujalis was deportable under 8 U.S.C. sec. 1227(a)(1)(A)4 for being inadmissible when he entered the United States because his service in the 2nd Battalion constituted voluntary assistance to the enemy (rendering him ineligible for a visa under Section 2 of the DPA), and membership or participation in a movement hostile to the United States (rendering him ineligible for a visa under Section 13 of the DPA).5 The Immigration Court held a merits hearing in April 1997, found that Naujalis was deportable under 8 U.S.C. sec.sec. 1227(a)(4)(D) and 1227(a)(1)(A), and ordered him deported to Lithuania.

Naujalis appealed to the Board of Immigration Appeals (Board), arguing that he was not deportable under the Holtzman Amendment because he spent the month of October 1941 (and that entire winter) guarding a Minsk railway station, and thus never personally participated in any of the 2nd Battalion's atrocities. He also contended that he was not deportable under 8 U.S.C. sec. 1227(a)(1)(A) for providing voluntary assistance to the enemy (pursuant to Section 2 of the DPA) because his service in the 2nd Battalion was no longer voluntary when the Germans transported the 2nd Battalion at gunpoint from Lithuania to Minsk. Naujalis also challenged the Immigration Court's conclusion that he was ineligible for a visa under Section 13 of the DPA because, according to Naujalis, the 2nd Battalion was formed as a Lithuanian police force and not as a movement hostile to the United States.

The Board dismissed Naujalis's appeal, concluding that he was deportable under the Holtzman Amendment pursuant to United States v. Ciurinskas, 148 F.3d 729 (7th Cir. 1998), in which this court held that Ciurinskas's membership and service in the same 2nd Lithuanian Battalion (without proof that he personally participated in atrocities) was sufficient to establish his assistance in persecution under Section 2(b) of the DPA.6 Id. at 734. The Board also noted that a finding of assistance in persecution is legally identical under the DPA and the Holtzman Amendment.7 See Schellong v. INS, 805 F.2d 655, 660-61 (7th Cir. 1986). And the Board concurred with the Immigration Court's conclusion that Naujalis was deportable under 8 U.S.C. sec. 1227(a)(1)(A) because his membership and service in the 2nd Battalion constituted voluntary assistance to the enemy (according to Section 2 of the DPA), and membership in a movement hostile to the United States (according to Section 13 of the DPA). Naujalis, who is now 81 years old, appeals to this court.

II.

Naujalis does not dispute that the 2nd Battalion committed the atrocities listed above. His first argument on appeal is that the United States never presented clear, unequivocal and convincing evidence that he personally participated in any of the 2nd Battalion's killing missions, and thus the Board erroneously found him deportable under the Holtzman Amendment.

The government has the burden of proof in deportation proceedings, and must establish the facts supporting deportability with clear, convincing and unequivocal evidence that does not leave the issue in doubt. Fedorenko v. United States, 449 U.S. 490, 505 (1981). We review the Board's legal conclusions de novo, Sayaxing v. I.N.S., 179 F.3d 515, 519 (7th Cir. 1999), but we defer to the Board's factual findings, reversing them only if they lack the support of substantial evidence in the record. Malek v. I.N.S., 198 F.3d 1016, 1021 (7th Cir. 2000). Therefore, the Board's determination that a petitioner is deportable is conclusive unless evidence in the record would compel a reasonable adjudicator to conclude to the contrary. 8 U.S.C. sec. 1252(b) (4)(B); I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

Congress enacted the Holtzman Amendment in 1978 to ensure "that the United States is not a haven for individuals who assisted the Nazis in the brutal persecution and murder of millions of people." Schellong, 805 F.2d at 662. The Amendment provides for the deportation of aliens who "ordered, incited, assisted, or otherwise participated" in Nazi-directed persecution of individuals because of their race, religion, national origin, or political opinion. United States v. Tittjung, 235 F.3d 330, 334 n.2 (7th Cir. 2000); 8 U.S.C. sec.sec. 1182(a)(3)(E) and 1227(a)(4)(D).

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