Schellong v. U.S. I.N.S.
| Decision Date | 14 November 1986 |
| Docket Number | No. 85-2430,85-2430 |
| Citation | 805 F.2d 655 |
| Parties | Conrad SCHELLONG, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Charles W. Nixon, Chicago, Ill., for petitioner.
David M. Marblestone, Office of Special Investigation, Dept. of Justice, Washington, D.C., for respondent.
Before BAUER, Chief Judge, CUMMINGS and FLAUM, Circuit Judges.
The petitioner, Conrad Schellong, contests a deportation order issued by the United States Immigration Court. Schellong was first denaturalized and later ordered deported for his activities in Nazi concentration camps in pre-war Germany. Two branches of litigation have brought this case before this Court. The first was a suit by the Office of Special Investigations (OSI) against Schellong to revoke his naturalized citizenship. The government was successful in denaturalizing Schellong as recorded in United States v. Schellong, 547 F.Supp. 569 (N.D.Ill.1982), affirmed by opinion, 717 F.2d 329 (7th Cir.1983), certiorari denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234. After obtaining its final order of denaturalization, the OSI proceeded to seek an order of deportation. An Immigration Judge granted that order on September 5, 1984. Schellong appealed to the Board of Immigration Appeals, which affirmed the decision of the Immigration Judge on July 11, 1985. Schellong then petitioned this Court for review.
Schellong was denaturalized under 8 U.S.C. Sec. 1451(a) as having procured his certificate of naturalization by concealment of a material fact or by willful misrepresentation. 717 F.2d at 334. This determination was made because of misleading representations on Schellong's visa application and naturalization petition. Because the facts initially determined in the denaturalization litigation are central to the controversy in the case before us, we will quickly summarize those facts. See 547 F.Supp. at 570-574; 717 F.2d at 331-333.
Schellong was born in Germany in 1910. In 1932 he joined a branch of the Nazi Party known as the Storm Troopers. He then entered the Schutzstaffel (SS), which provided protective and intelligence services for the Nazi Party. Adolf Hitler came into power in 1933, and Schellong remained a member of the Nazi Party until Hitler's fall in 1945.
In February 1934, Schellong joined the SS Sonderkommando (Special Commando) "Sachsen." The members of this organization were assigned to administrative and guard duties at the Sachsenburg Concentration Camp in Saxony, Germany. The SS Special Commando "Sachsen " were separate from the camp commandant's staff, which supervised the daily operation of the camp. During this time the SS was a Nazi Party organization; it had no military responsibilities. As a corporal at Sachsenburg, Schellong supervised a platoon of guards and served as a Security Officer and a Reserve Officer on a rotating basis. As such, Schellong was in charge of security for the camp for 24-hour periods.
In early 1936 Schellong was temporarily assigned to the SS Guard Unit "Oberbayern " at Dachau Concentration Camp near Dachau, Germany. There he took a platoon leaders' training course. When he returned to Sachsenburg he took command of 30 men who guarded the camp. These guards supervised the prisoners at work sites. The guards were instructed to warn and then shoot to kill any escaping prisoner. They were aware of the treatment given prisoners and of their work and living conditions. As a rotating Security Officer, Schellong was in charge of security for the entire camp for 24-hour shifts.
Late in 1936 petitioner was transferred to the Dachau Concentration Camp and assigned to the Seventh Company of the Death's Head Unit "Oberbayern." Between 1936 and 1939 Schellong commanded several units, all of which performed guard duty at the camp. Schellong trained new recruits and performed other administrative tasks necessary to the supervision of the guards under his command. These guards watched the prisoners on work detail, manned the watchtowers, and generally maintained order in the camp. Schellong was eventually promoted to Captain during his tenure at Dachau.
There was no evidence presented in the denaturalization case that Schellong personally engaged in physical abuse of the prisoners. He did admit, however, that he was aware of the treatment of the prisoners at Dachau--the forced labor, the living conditions, and the arbitrary punishment.
In late 1939 the various Death's Head Units were consolidated into a single military organization that was part of the German Armed Forces. This military organization was called the Waffen SS, or "Armed SS." Schellong remained with the Death's Head Regiment of the Waffen SS in Norway until 1941. For the remainder of the war he served on the eastern front. By the end of the war he had attained the rank of Lieutenant Colonel.
In December 1956 Schellong filed an application for a visa. In response to a question asking applicants to list their previous places of residence, the petitioner responded:
"Birth-1911, Dresden, Germany; 1911-1934, Leipzwig, Germany; 1934-1939, German Waffen SS; 1939-1945, Waffen SS during the war, ..."
Schellong did not mention his two-year stay at Sachsenburg Concentration Camp or his three-year stay at Dachau Concentration Camp. He was granted a visa and entered the United States in 1957.
Five years later the petitioner filed an application to file a petition for naturalization with the Immigration and Naturalization Service (INS). Question 7 requested the applicant to list her or his memberships in "each organization, association, fund, foundation, club or society." Schellong answered:
Christlicher verein junger Maenner 1920-1927
(chruch orgainzation)
Leipziger Ballspiel club (soccer club) 1926-1932
National Sozialistische Arbeiter Partie 1932-1945
(Nazi Party)
Allgemeine SS ( ) 1932-1934
elite corps
Waffen SS ( ) 1934-1945
Member of the Church of St. Luke 1957-date
(No others)
Schellong did not include his association with the storm troopers in 1932, the SS Sonderkommando "Sachsen," the SS Wachverbande "Sachsen," the SS Totenkopfverbande "Sachsen," or the SS Totenkopfverbande "Oberbayern" (Death's Head Unit).
During the processing of his naturalization petition Schellong was directed to provide an additional sworn statement concerning his activities between 1934 and 1939. As part of that statement, Schellong wrote, Schellong's petition was granted and a certificate of naturalization issued on July 17, 1962.
The district court found that Schellong willfully concealed and misrepresented material facts in his visa and citizenship applications and so revoked his citizenship pursuant to 8 U.S.C. Sec. 1451(a). United States v. Schellong, 547 F.Supp. 569, 574-575 (N.D.Ill.1982). This Court affirmed the findings of the district court and that revocation. 717 F.2d 329 (1984). In the subsequent deportation case, the Immigration Judge applied the doctrine of collateral estoppel to the facts found in the denaturalization case, and also conducted an independent review of the evidence presented by the government, which was virtually the identical evidence presented in the denaturalization proceedings. The petitioner introduced additional evidence at the deportation hearing relating to the historical use of the term "Waffen SS." The Board of Immigration Appeals affirmed on the basis of collateral estoppel.
Schellong raises essentially three issues on appeal. First he argues that collateral estoppel is inappropriate for deportation cases and that it was incorrectly applied in this case. Second he argues that his activities at Sachsenburg and Dachau Concentration Camps do not rise to the level of persecution for purposes of the Holtzman Amendment. Third he contends that the Holtzman Amendment is unconstitutional as a bill of attainder or ex post facto law. For the reasons discussed below, we affirm the order of deportation.
A. Schellong maintains that the doctrine of collateral estoppel should not be used in deportation cases, citing Title v. INS, 322 F.2d 21 (9th Cir.1963). In Title the Ninth Circuit reviewed an immigration order deporting an alien because of membership in the Communist Party. The immigration judge had denied Title's request to present evidence at the deportation hearing. All evidence relating to the alien's membership in the Communist Party was adduced by collateral estoppel. The Ninth Circuit ruled that the application of collateral estoppel denied the petitioner the hearing guaranteed by Section 242 of the Immigration and Naturalization Act, 8 U.S.C. Sec. 1252(b). Id. at 24. The court additionally held that application of the doctrine against Title would work an injustice because the petitioner had not testified at the denaturalization hearing but wished to introduce evidence at the deportation hearing because of a change in the law regarding his Communist Party affiliation. Id. at 25.
Title is distinguishable because the alien had presented no evidence at his denaturalization trial and despite a change in the applicable law was not allowed to present evidence at his deportation hearing. Thus, to apply the doctrine of collateral estoppel would work an injustice. We disagree with the Ninth Circuit's holding if it rejects all applications of collateral estoppel in deportation hearings. Under collateral estoppel, once an issue is actually and necessarily decided by a court, that determination is...
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