945 F.2d 871 (6th Cir. 1991), 90-3952, Petkiewytsch v. I.N.S.

Docket Nº:90-3952.
Citation:945 F.2d 871
Party Name:Leonid PETKIEWYTSCH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:September 30, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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945 F.2d 871 (6th Cir. 1991)

Leonid PETKIEWYTSCH, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 90-3952.

United States Court of Appeals, Sixth Circuit

September 30, 1991

Argued July 25, 1991.

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Douglas S. Weigle (argued and briefed), Bartlett, Junewick & Weigle, Cincinnati, Ohio, for petitioner.

Nicholas J. Pantel, Asst. U.S. Atty., D. Michael Crites, U.S. Atty., Cincinnati, Ohio, Robert Kendall, Jr., U.S. Dept. of Justice, Civ. Div., Washington, D.C., Bruce J. Einhorn, Dept. of Justice, Washington, D.C., Robert L. Phillips, Office of I.N.S., Cincinnati, Ohio, Joni S. Charme, Denise Noonan Slavin, Susan L. Siegal (argued and briefed), U.S. Dept. of Justice, Office of Special Investigations, Washington, D.C., for respondent.

Before MERRITT, Chief Judge, LIVELY, Senior Circuit Judge, and HULL, Chief District Judge. [*]

LIVELY, Senior Circuit Judge.

The question in this case is whether a permanent resident alien who served involuntarily as a civilian guard in a German "labor education camp" during the period of Nazi control and who never personally abused prisoners is subject to deportation under the Immigration and Nationality Act of 1952, as amended, (the Act), 8 U.S.C. § 1101, et seq. More specifically, the question arises under section 241(a)(19) of the Act, 8 U.S.C. § 1251(a)(19) (the Holtzman Amendment). The Holtzman Amendment was enacted in 1978; section 103 provides for the deportation of any alien who, 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 between March 23, 1933 and May 8, 1945. Holtzman Amendment § 103, Pub.L. No. 95-549, 92 Stat. 2065, codified at 8 U.S.C. § 1251(a)(19).

I.

The facts relating specifically to the petitioner's background and conduct are not disputed by the parties and consistent factual determinations were made by the immigration judge and the Board of Immigration Appeals (the Board).

A.

The petitioner is a 67 year old married male and a native of Poland. The petitioner lived in Poland under Nazi occupation until 1944. In 1944, petitioner, then age 21, fled with his family from Poland to Czechoslovakia to avoid the consequences of battle and occupation by the approaching Russian army. From Czechoslovakia, the petitioner and his family were sent with other refugees to a transit camp in Austria. After arriving in Austria, the family was ordered by the Germans to report to the labor exchange in Kiel, Germany. At Kiel, the family was separated. The petitioner's parents were assigned to a local fish cannery while the petitioner and his twin brother were ordered to report to the Kiel-Hasse labor education camp to serve as civilian guards. The petitioner and his twin brother objected to the assignment but nevertheless reported for duty. Refusing the assignment would have subjected the petitioner to imprisonment or execution.

After reporting to the camp, the petitioner, though serving as a civilian guard, was issued a used uniform of a Gestapo SS member and given a rifle with five rounds of ammunition. The petitioner was instructed on how to escort prisoners to and from work sites and how to clean and load his rifle. His guard duties required him to act as a perimeter guard, to escort prisoners to work sites and, on a rotating basis, to stand guard at the entrance to a bunker where prisoners were interrogated and sometimes mistreated. The petitioner's primary responsibility was to prevent the escape of prisoners and he was under orders

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to shoot anyone attempting to escape. When not on duty, the petitioner was allowed unescorted liberty outside the camp which he used to visit his family. The petitioner was informed that he would be imprisoned or shot if he disobeyed orders or attempted to run away.

While serving as a civilian guard, the petitioner witnessed frequent mistreatment of prisoners and was aware that some executions took place. However, during his eight-month service as a civilian guard the petitioner never used his rifle, never struck a prisoner and never personally inflicted any form of abuse upon prisoners beyond impeding their escape through his presence as a civilian guard.

At the war's conclusion, the petitioner and his twin brother sought work at local farms. They were quickly apprehended by the British, however, and interned for thirty-four months as suspected war criminals. After his internment, the petitioner was released by the British under "category 5," which meant that he was totally exonerated of any wrongdoing and of all charges against him. In March 1948, the petitioner applied to the Preparatory Commission of the International Refugee Organization to receive benefits as a refugee, which would have certified him for entrance into the United States under the Displaced Persons Act of 1948 (DPA), Pub.L. No. 80-774, ch. 647, 62 Stat. 1009 (1948), as amended, June 16, 1950, Pub.L. No. 81-555, ch. 262, 64 Stat. 219 (1950). However, part II of annex I to the Constitution of the International Refugee Organization (IRO), which was incorporated by reference into the DPA as enacted in 1948, denied benefits to anyone who could be shown "to have assisted the enemy in persecuting civil populations...." IRO Constitution, annex I, part II § 2(a); DPA § 2(b). The petitioner was denied assistance from the IRO because he had served as a guard at the labor education camp. In 1955, the petitioner applied to the United States Consulate in Hamburg, Germany for an immigration visa under the Immigration and Nationality Act, which then contained no provision denying admission to those who had participated or assisted in Nazi persecutions. On March 9, 1955, the petitioner was issued an immigration visa under the Act by the American Consulate in Hamburg, Germany, and has lived in the United States as a permanent resident since 1955.

B.

The administrative record contains expert testimony regarding the system of camps established by the Nazi regime, their purposes and their organizational control. The most repressive Nazi camps came under the direction the German SS, the organization established by Hitler to suppress groups targeted on the basis of race, religion and national origin. Concentration camps were established prior to the war in order to intimidate and torture those targeted groups perceived as impeding Nazi goals. Concentration camps were used by the SS as permanent institutions of the state and were designed as intimidation instruments for political dissenters, opposition groups and groups in society that the Nazi regime determined to be unworthy of full citizenship. These camps contained many permanent buildings, heavily concentrated inmates and were surrounded with electric wire carrying a lethal charge.

After the outbreak of war, sub-camps of the concentration camps emerged, also controlled by the German SS, which became known as the extermination camps. Consisting of gas chambers, railroad sidings and very little else, extermination camps such as Auschwitz, Treblinka and Buchenwald were intended and used solely to eliminate Jews and other groups of people deemed inferior by the Nazis.

Forced labor camps were another sub-component of concentration camps, also primarily under the control of the German SS. Forced labor camps were temporary outcamps typically set up near concentration camps or near a particular work site to permit exploitation of the labor available from the concentration camp for economic purposes. These camps were also fenced, but much less extensively than concentration camps, and the fencing typically did not contain a lethal charge.

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This appeal involves a labor education camp. Labor education camps were initially created as repositories for foreign laborers involuntarily deported into Germany to fill the acute labor shortage created by the massive mobilization for war. However, the labor education camps also quickly became used as punishment camps for workers accused of slacking, other labor infractions or other generalized violations of state policy, such as sexual contact with German nationals, minor crimes, practicing religion in a language other than German or failing to wear a special badge designating one as Jewish or Polish. Labor education camps involved much less security than other camps and typically involved sentences of relatively short duration.

At the Kiel-Hasse labor education camp there was no fence nor any other feature of a concentration or extermination camp and the normal period of incarceration was fifty-six days. Physical abuses, malnutrition and overcrowded conditions were nevertheless prevalent and former inmates testified to interrogations, torture and executions. Expert witnesses testified that documents from Kiel-Hasse revealed that guards were prohibited from beating prisoners at Kiel-Hasse. These witnesses expressed the opinion that the inmates experienced persecution primarily at the hand of SS guards present at the camp and more senior Gestapo officials rather than at the hand of civilian guards such as the petitioner.

II.

In July 1985 the United States Immigration and Naturalization Service (INS) issued an Order to Show Cause charging that the petitioner was deportable, among other provisions, under section 103 of the Holtzman Amendment, for assisting or otherwise participating in Nazi persecution. The petitioner denied the allegations in the show cause order material to deportation under the Holtzman Amendment. In April 1986 an eight-day evidentiary hearing was held before an immigration law judge on the issue of deportability. During the hearing the testimony of numerous witnesses...

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