Dailide v. U.S. Atty. Gen.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation387 F.3d 1335
Docket NumberNo. 03-15164.,03-15164.
PartiesAlgimantas M. DAILIDE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
Decision Date18 October 2004

Joseph T. McGinness, Beachwood, OH, for Petitioner.

Jeffrey L. Menkin, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

DUBINA, Circuit Judge:

Petitioner Algimantas M. Dailide petitions this court for review of the final order of removal of the Board of Immigration Appeals ("BIA"). The BIA's order affirmed the Immigration Judge's ("IJ") decision that directed Dailide's removal to Lithuania pursuant to the Immigration and Nationality Act of 1952 § 237(a)(4)(D), 8 U.S.C. § 1227(a)(4)(D). For the reasons that follow, we deny the petition for review.1

I. BACKGROUND

Dailide was born in Kaunas, Lithuania in 1921. On June 22, 1941, Nazi Germany invaded Lithuania and reestablished the Lithuanian Security Police known as the Saugumas.2 In June 1941 Dailide voluntarily joined the Saugumas in Vilnius, Lithuania. Dailide remained an active member of the Saugumas until 1944 when the Saugumas dissolved along with the Nazi regime.

In 1944 Dailide left Vilnius, Lithuania and fled to Germany, where he remained until 1949. On February 19, 1950, Dailide entered the United States as a non-quota immigrant under a visa issued pursuant to the Displaced Persons Act of 1948 ("DPA"). In order to obtain a DPA visa, an applicant had to qualify as a refugee within "the concern" of the International Refugee Organization ("IRO"), receive a determination of displaced-person status by the Displaced Persons Commission ("DPC"), and qualify for and receive a visa from the United States Department of State. United States v. Dailide, 227 F.3d 385, 388 (6th Cir.2000) (Dailide II).

An "eligible displaced person" under section 2(c) of the DPA is defined in section 2(b) of the Act as, "any displaced person or refugee as defined in Annex I of the Constitution of the International Refugee Organization and who is the concern of the International Refugee Organization." The Constitution of the IRO, in turn, sets forth those who are, and those who are not, "the concern" of the IRO. Those who are not "the concern" of the IRO include, at Part II, section 2, of its Constitution, "[a]ny other persons who can be shown: (a) to have assisted the enemy in persecuting civilian populations of countries."

"After apparently qualifying as a refugee under the [Constitution of the] IRO, Dailide completed a personal history form prepared by the United States Army's Counter Intelligence Corps[](`CIC'), an organization which conducted investigations and interviews of applicants on behalf of the DPC." Dailide, 227 F.3d at 388. Based on the information that he provided to the CIC, Dailide received displaced person status and was granted a DPA visa. Id.3 On February 3, 1955, Dailide applied for naturalization, and on September 6, 1955, the United States District Court for the Northern District of Ohio granted Dailide's application.

A. Denaturalization Proceedings

On December 7, 1994, after Saugumas records became available to the Immigration and Naturalization Service, the government filed a complaint in the Northern District of Ohio, where Dailide resided, seeking to revoke Dailide's citizenship and cancel his certificate of naturalization pursuant to 8 U.S.C. § 1451(a). Under 8 U.S.C. § 1451(a), an individual's citizenship may be revoked and the certificate of naturalization may be canceled if both were "illegally procured."4

Section 316 of the Immigration and Naturalization Act, 8 U.S.C. § 1427(a), requires that a naturalized citizen must have been "lawfully admitted" into the United States. Because Dailide entered the United States pursuant to the DPA, "the continuing validity of his citizenship and naturalized status must be judged by reference to the standards set forth at Part II, Section 2(a), of the IRO constitution." United States v. Dailide, 953 F.Supp. 192, 195 (N.D.Ohio 1997) (Dailide I). Thus, if Dailide "is found not to be the concern of the IRO by its terms, then he is not (and never was) an `eligible displaced person' who was `lawfully admitted' to this country, and his citizenship must be revoked under 8 U.S.C. § 1451(a) because it was `illegally procured.'" Id.

In Count I of its complaint, the government alleged that Dailide's citizenship was illegally procured insofar as he was never the concern of the IRO because he assisted the enemy in the persecution of civil populations. The district court granted the government's motion for summary judgment on Count I. Id. at 199.5 The district court specifically found that Dailide "assisted in the persecution of civilian populations within the meaning of the IRO constitution, and was therefore ineligible for immigration to this country under section 2 of the DPA." Id. at 197. Accordingly, the district court held that "Dailide was not `lawfully admitted' into the United States for purposes of naturalization under 8 U.S.C. § 1427(a), and that his citizenship and naturalization were `illegally procured...' within the meaning of 8 U.S.C. § 1451(a)." Id. at 199.

In Dailide I the district court determined, based on documents presented by the government from the Lithuanian National Archives and the affidavit testimony of the government's expert, Dr. Yitzhak Arad, that the Saugumas assisted the Germans in "maintaining the control of the local populations of conquered nations," and that the Saugumas were responsible for the "enforcement of anti-Jewish laws such as curfews and confinement to ghettos, prohibitions against the use of public facilities and transportation, and requirements that Jews display visibly a yellow Star of David." Id. at 196. In addition, the district court considered specific atrocities committed by members of the Saugumas, and determined that Dailide's membership in the organization was sufficient to enter judgment for the government on Count I. See id. at 196-197.

The district court also considered, as "an alternate and independent basis for [its] holding that Dailide assisted in the persecution of civilian populations," specific acts committed by Dailide as a member of the Saugumas. Id. at 197. The court reviewed documentary evidence provided by the government as to two instances of persecution: Dailide's individual participation in the searches and arrests of "individuals of Jewish Nationality who were escaping from Vilnius," including the arrests of Izrael and Riva Soak; and Dailide's search of a Jewish prisoner, Mark Sapyro, which was detailed in a report signed by Dailide. Id.

Dailide appealed the district court's order, and on September 5, 2000, the Sixth Circuit affirmed. Dailide, 227 F.3d at 386.6 In order to determine whether Dailide assisted the enemy in persecution, the Sixth Circuit considered "whether the Saugumas persecuted civil populations," and whether "Dailide assisted the Saugumas in the persecution." Id. at 391. The court also noted that "membership in an enemy group" would not be sufficient, without more, to constitute assistance in persecution. Id. at 390-391.

With respect to the role of the Saugumas, the Dailide II court determined that "the Germans created, staffed, and directed the Saugumas," id. at 391, and that the Saugumas were used to assist the Einsatzkommando 3—a mobile killing unit, which was responsible for the execution of all Jews in the Vilnius region—with searches, arrests, and investigations. Id. at 387, 391. Thus, the court concluded that "the Saugumas assisted the Nazi regime in persecuting the Jews in Lithuania, particularly during the time when Dailide was a member." Id. at 392. With respect to the role of Dailide, the court determined that Dailide "assisted the Saugumas in persecuting Jewish civilians" based on Dailide's role in the searches and arrests of Izrael and Riva Soak. Id. at 392-93; id. at 399 (Nelson, J. concurring).

On June 21, 2001, the district court entered an order cancelling Dailide's certificate of naturalization, and revoking and setting aside its previous order, entered on September 6, 1955, which admitted Dailide to United States Citizenship. The court also directed Dailide to surrender his certificate of naturalization, United States passport, and any other documentation of United States citizenship. In addition, the district court also disposed of seven post-trial collateral motions filed by Dailide. Dailide appealed the court's order, and on January 15, 2003, the Sixth Circuit affirmed. See United States v. Dailide, 316 F.3d 611 (6th Cir.2003) (Dailide III).

B. Removal Proceedings

On July 10, 2001, the Director of the Office of Special Investigations for the Criminal Division of the United States Department of Justice initiated removal proceedings against Dailide by filing a Notice to Appear ("NTA") in the Immigration Court. The government sought removal of Dailide from the United States to Lithuania pursuant to 8 U.S.C. § 1227(a)(4)(D), which states that any alien described in 8 U.S.C. § 1182(a)(3)(E) is deportable. Section 1182(a)(3)(E), which is commonly referred to as the Holtzman Amendment, describes, "[a]ny alien who, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with ... the Nazi government of Germany ... ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion is inadmissible."

The NTA is framed in 11 paragraphs that set forth the government's allegations against Dailide. On appeal in this court, Dailide specifically denies the allegations in paragraphs 8 through 11. Paragraph 8 alleges that the Saugumas assisted the Nazi forces in the persecution of Jews. Paragraph 9 alleges that in October 1941 as a member of the Saugumas, Dailide arrested Jews escaping from...

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