Firishchak v. Holder

• Decision Date: 12 April 2011
• Docket Number: No. 09–2238.,09–2238.
• Citation: 636 F.3d 305
• Parties: Osyp FIRISHCHAK, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

636 F.3d 305

Osyp FIRISHCHAK, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09–2238.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 20, 2010.Decided Feb. 14, 2011.Rehearing and Rehearing En Banc Denied April 12, 2011.

James Maher, III (argued), Chicago, IL, for Petitioner.William H. Kenety (argued), OIL, Department of Justice, Washington, DC, for Respondent.Before FLAUM, RIPPLE, and EVANS, Circuit Judges.FLAUM, Circuit Judge.

Osyp Firishchak hid an ignominious past when he came to the United States in the wake of World War II. He represented to U.S. officials that his wartime activities comprised working on a Ukrainian cooperative. In fact, he served in the Ukrainian Auxiliary Police (“UAP”), an organization whose activities included aiding Nazis by forcibly rounding up Jews for deportation to concentration camps.

In 2005, a district court concluded that Firishchak lied to enter the country and obtain naturalization. The sanction was severe: Firishchak was stripped of his citizenship. We affirmed, United States v. Firishchak, 468 F.3d 1015 (7th Cir.2006) (“ Firishchak II ”), and this appeal concerns the fallout. The government initiated removal proceedings. An Immigration Judge (“IJ”) applied the doctrine of collateral estoppel, ruling that the findings in the 2005 case at once barred re-litigation of the underlying issues and dictated Firishchak's ouster from the country. The Board of Immigration Appeals (“BIA”) agreed that collateral estoppel was both appropriate and appropriately applied. Firishchak has now filed a petition for review with us. For the reasons stated below, we deny the petition.

I. Background

We need not say much more than we have before about the underlying facts. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (collateral estoppel serves the twin purposes of protecting litigants from re-litigating identical issues and protecting courts from re-deciding them). Most of what we need can be drawn from the district court's denaturalization decision, following a bench trial, in United States v. Firishchak, 426 F.Supp.2d 780 (N.D.Ill.2005) (“ Firishchak I ”), aff'd 468 F.3d 1015 (7th Cir.2006).

In 1949, Firishchak filed an application for a visa under the Displaced Persons Act. See 62 Stat. 1009–14 (1948) (“DPA” or “Act”). The DPA created the Displaced Persons Commission. Under the Act, an “eligible displaced person” (generally a victim of, or one who fled, Nazi persecution) could obtain permanent residence in the United States. When Firishchak filed his application with the Commission, he indicated that, between 1941 and 1944, he was working on a Ukrainian cooperative. He procured a visa and, in 1954, was naturalized as an American citizen.

Firishchak's actual wartime activities varied markedly from his post-war representations. In fact, he spent several years working for the UAP in a city called L'viv. (The city lies in modern-day Ukraine, but was part of Poland at the beginning of World War II.) The UAP was a Nazi-controlled armed force that persecuted Jews during the war. The work included confining Jews to a ghetto near L'viv, forcibly removing Jews from the ghetto so they could be relocated to concentration camps, and arresting Jews who lacked proper paperwork or who failed to wear Star of David armbands. The UAP's members, playing their part in a particularly infamous round-up of Jews known as the “Great Operation,” shot and killed Jews who resisted, fled, or attempted to hide.

Firishchak maintained during the proceedings in Firishchak I, as he does now, that he was not involved with the UAP. But considerable evidence indicated that he was lying, and the district court made unvarnished findings to that effect. The lie had consequences: the DPA's mechanism for obtaining permanent residence was extended only to “eligible displaced persons”—a term that included victims of Nazi persecution, but left out oppressors as well as those who “willfully make a misrepresentation for the purpose of gaining admission into the United States.” 62 Stat. at 1013.

Firishchak's lie poisoned his subsequent procurement of citizenship because the Immigration and Nationality Act (“INA”) requires, as a prerequisite to nationalization, five years of continuous residence in the United States “after being lawfully admitted for permanent residence.” 8 U.S.C. § 1427(a) (emphasis added). And the INA further provides that procuring citizenship “by concealment of a material fact or by willful misrepresentation” is a ground for revoking citizenship. 8 U.S.C. § 1451(a). Thus, by lying to obtain permanent resident status, Firishchak planted the seed for the revocation of his subsequently obtained citizenship. See Fedorenko v. United States, 449 U.S. 490, 514, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) (concealment of war-time activities to obtain a visa under the DPA is grounds for revoking citizenship); United States v. Tittjung, 235 F.3d 330, 336 (7th Cir.2000) (a certificate of naturalization does not act as a blank slate where a visa was unlawfully obtained under the DPA). In addition, stripping Firishchak's citizenship was appropriate for two distinct though intertwined reasons—the UAP was a movement hostile to the United States under the DPA, and the UAP assisted in Nazi persecution. Firishchak II, 468 F.3d at 1024–25.

After we, in Firishchak II, affirmed the district court's decision, the government initiated removal proceedings. Removal was sought on the same grounds as the district court had relied on in revoking Firishchak's citizenship. See 8 U.S.C. § 1227(a)(1)(A) (an alien inadmissible at time of entry is deportable); id. § 1182(a)(3)(E)(i) (participants in Nazi persecution are ineligible for visas or entry); id. § 1227(a)(4)(D) (an alien who participated in Nazi persecution is deportable). The IJ ruled that the district court's denaturalization proceeding in Firishchak I was entitled to preclusive effect, concluding that all of the elements to establish removability were “fully litigated and necessarily decided” in the prior proceeding. Therefore, the IJ ordered that Firishchak be removed to the Ukraine. The BIA dismissed Firishchak's appeal, after which he filed a petition for review with us.

II. Discussion

Under the doctrine of collateral estoppel, also referred to as issue preclusion, “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); see also Bobby v. Bies, ––– U.S. ––––, 129 S.Ct. 2145, 2152, 173 L.Ed.2d 1173 (2009); Taylor v. Sturgell, 553 U.S. 880, 891, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (the preclusive effect of a prior federal court decision is a matter of federal common law). The organizing principle is that courts should respect “the first actual decision of a matter that has been actually litigated.” 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4416, at 386 (2d ed. 2002).

When the requirements for collateral estoppel ¹ are met, we have held that it is proper to give preclusive effect to a denaturalization proceeding in a subsequent removal proceeding. Tittjung v. Reno, 199 F.3d 393, 397 n. 2 (7th Cir.1999) (applying collateral estoppel in this context is well established); Kairys v. I.N.S., 981 F.2d 937, 939 (7th Cir.1992) ( “[T]he existence of principles that limit the scope of a doctrine does not make its application discretionary....”); Schellong v. I.N.S., 805 F.2d 655, 658–59 (7th Cir.1986) (noting the variety of contexts in which collateral estoppel has been appropriately applied and concluding that the doctrine should apply to removal proceedings so long as “the doctrine's application will not be unjust”).

Firishchak argues that collateral estoppel should not bar relitigation of the issues in his removal proceeding because he did not receive a full and fair opportunity to litigate in Firishchak I.² The ground is theoretically sound. “Redetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” Montana, 440 U.S. at 164 n. 11, 99 S.Ct. 970; Restatement (Second) of Judgments § 28(3) & comment d (1982). Specifically, Firishchak argues that he did not receive a full and fair opportunity to litigate because the judge in the denaturalization case (and the IJ) were not randomly assigned; because the judge in the denaturalization case acted more like a litigant than a judge; and because the judge in the denaturalization case incorrectly concluded that the government met its burden of proof. We take up each argument in turn.

A. Random Assignment

Firishchak maintains that the judges who have heard his case—the IJ in the removal proceeding and the district court in Firishchak I—were not randomly assigned. The non-random assignment, Firishchak intimates, deprived him of due process. Factual and legal problems hamstring the argument. First, Firishchak offers no reason to doubt that the judge in the denaturalization case—the case we focus on, as that is the case whose collateral-estoppel effect we consider—was randomly assigned. Instead, he offers only the possibility, as an epistemological matter, that the Northern District of Illinois might have abandoned its standard, decades-long randomized case assignment system. Without a reason to be suspicious, the argument fails on its own terms. See N.D. Ill. Local Rule 40.1(a) (random case assignment, with exceptions spelled out in the local rules). Although a party asserting collateral estoppel bears the burden of establishing that the earlier opportunity to litigate was full and fair, Kulavic v. Chicago & Ill. Midland Ry. Co., 1 F.3d 507, 517 n. 6 (7th Cir.1993), that does not...