Kairys v. I.N.S.

• Citation: 981 F.2d 937
• Decision Date: 16 February 1993
• Docket Number: No. 91-2768,91-2768
• Parties: Liudas KAIRYS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 937

981 F.2d 937

Liudas KAIRYS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-2768.

United States Court of Appeals Seventh Circuit.

Argued Sept. 9, 1992.

Decided Dec. 2, 1992.

As Amended Dec. 3, 1992.

Rehearing and Rehearing En Banc

Denied Feb. 16, 1993.

David E. Springer (argued) Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, Ivars Berzins, Babylon, NY, for Liudas Kairys.

Ira H. Raphaelson, Asst. U.S. Atty., Criminal Div., Chicago, IL, Lori L. Scialabba, Dept. of Justice, Office of Immigration Litigation, Richard L. Thornburg, U.S. Atty. Gen., Washington, DC, A.D. Moyer, Michael L. Harper, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, Denise N. Slavin, Michael D. Bergman, Betty-Ellen Shave, (argued) Debora D. Caruth, Dept. of Justice, Office of Special Investigations, Washington, DC, for I.N.S.

Before POSNER and COFFEY, Circuit Judges, and SHADUR, Senior District Judge. ^*

POSNER, Circuit Judge.

In United States v. Kairys, 782 F.2d 1374 (7th Cir.1986)--familiarity with which is assumed in this opinion--a different panel of this court upheld the revocation of Liudas Kairys's American citizenship because, having been an armed guard in a Nazi concentration camp, he had not been eligible to become a naturalized citizen of this country. The government then instituted deportation proceedings. The immigration judge, affirmed by the Board of Immigration Appeals, held that Kairys was deportable under (among other provisions) the Holtzman Amendment to the Immigration and Nationality Act, which so far as bears on this case authorizes the deportation of any alien who, under the direction of the Nazi regime or any regime allied with it, "assisted ... in the persecution of any person because of race, religion, national origin, or political opinion." 8 U.S.C. § 1182(a)(3)(E)(i); see 8 U.S.C. § 1251(a)(4)(D). En route to this conclusion the immigration judge and the Board invoked the doctrine of collateral estoppel to bar Kairys from relitigating any of the facts determined in the denaturalization proceeding--the central fact being, of course, that Kairys had been an armed guard in a Nazi concentration camp. Kairys asks us to set aside the order of deportation. If we do not, he will not be able to seek discretionary relief from deportation by asking the Attorney General to suspend or withhold deportation; the Holtzman Amendment bars such relief. 8 U.S.C. § 1254(a).

Now 70 years old, Kairys has lived in this country since 1949. He has designated Germany as the country to which he would like to be deported if the deportation order is upheld, and Germany has agreed to take him. He does not face prosecution there or, so far as anyone is aware, anywhere else for his wartime activities, as he is not accused of murder or any other crime for which applicable statutes of limitations have not yet run.

His principal argument is that collateral estoppel either should never be applied in deportation proceedings or should not have been applied to him. The first branch of the argument, rejected in Schellong v. INS, 805 F.2d 655, 658-59 (7th Cir.1986), and Howard v. INS, 930 F.2d 432 (5th Cir.1991) (per curiam); see also Palciauskas v. INS, 939 F.2d 963, 966-67 and n. 9 (11th Cir.1991), is based on the statement in section 242(b) of the Immigration and Nationality Act that the statutory procedure for deportation "shall be the sole and exclusive procedure for determining the deportability of an alien." 8 U.S.C. § 1252(b). The argument persuaded the Ninth Circuit some years ago. Title v. INS, 322 F.2d 21 (9th Cir.1963). It should not have. The Supreme Court had already held, and the legislative history makes crystal clear, that the only purpose of the quoted language was to exempt deportation proceedings from the provisions of the Administrative Procedure Act. The language had been added by Congress in order to overrule a decision which had held that the Act did apply to such proceedings. Marcello v. Bonds, 349 U.S. 302, 309-10, 75 S.Ct. 757, 761-62, 99 L.Ed. 1107 (1955); In re Fedorenko, 19 I & N Dec. 57, 63-64 (1984). Title does not even cite Marcello v. Bonds. The argument made in Title, 322 F.2d at 24 n. 8, and in 2 Kenneth Culp Davis, Administrative Law Treatise § 18.11, at p. 622 (1958), that a judicial decision ought not preclude administrative redetermination of facts committed to the agency for its putatively expert evaluation, has no application to a case such as this. For there is no question that a federal district court is authorized in a denaturalization proceeding--a proceeding within the trial jurisdiction rather than the review jurisdiction of the district court--to find all facts bearing on denaturalization, centrally including the fact of initial excludability. That such a proceeding takes place in a federal district court, moreover, subject to the usual right of appeal to this court, means that the defendant retains his full Article III procedural rights. He thus cannot complain that the findings sought to be made preclusive against him were found merely in an administrative proceeding. (Not that the argument would be likely to persuade today. University of Tennessee v. Elliott, 478 U.S. 788, 797-98, 106 S.Ct. 3220, 3225-26, 92 L.Ed.2d 635 (1986); United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966); Truck Drivers Local Union No. 807 v. Regional Import & Export Trucking Co., 944 F.2d 1037, 1043 (2d Cir.1991).) Given the full and fair judicial hearing to which an alien is entitled in a denaturalization proceeding, there is no reason not to apply the doctrine of collateral estoppel in a subsequent deportation proceeding to bar the relitigation of facts actually litigated and necessarily determined (Cooper v. Federal Reserve Bank, 467 U.S. 867, 874, 104 S.Ct. 2794, 2798-99, 81 L.Ed.2d 718 (1984); Truck Ins. Exchange v. Ashland Oil, Inc., 951 F.2d 787, 792 (7th Cir.1992)) in the denaturalization case.

Is there perhaps some special reason not to apply the doctrine to Kairys's case? Contending that its application is always discretionary, Kairys says that the Board of Immigration Appeals was required to explain the reasoning behind its decision to apply the doctrine, just as it is required to do when deciding a petition for discretionary relief from a deportation order. Bal v. Moyer, 883 F.2d 45, 46 and n. 1 (7th Cir.1989) (per curiam); Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir.1966) (Friendly, J.). But in making this argument Kairys misuses the term "discretion." Like all legal doctrines, collateral estoppel has bounds. It does not preclude relitigation in all cases. It is not applied "if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation." Montana v. United States, 440 U.S. 147, 164 n. 11, 99 S.Ct. 970, n. 11, 59 L.Ed.2d 210 (1979). If a traffic court judge had found that Kairys had been a concentration camp guard, that finding would not have been entitled to collateral estoppel effect in the deportation proceeding. Cf. 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4423, at p. 221 (1981); Restatement (Second) of Judgments § 28, comment j, at pp. 283-84 (1982). Nor if that finding, while made by the district court in the denaturalization proceeding, had been inessential to that proceeding and as a result effectively unreviewable on appeal. Id., § 27, comment h, at p. 258; Truck Ins. Exchange v. Ashland Oil, Inc., supra, 951 F.2d at 792. But the existence of principles that limit the scope of a doctrine does not make its application discretionary, in the sense that the tribunal asked to apply it has a free-swinging, uncanalized discretion to apply it or not, so that the main task of the reviewing court is to make sure that the tribunal actually exercised its discretion.

Collateral estoppel is not discretionary in that sense. 18 Wright, Miller & Cooper, supra, § 4416, at p. 114 (1992 Supp.); cf. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320, 1325-26 (7th Cir.1992). Kairys quotes the statement in the Supreme Court's decision in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 651, 58 L.Ed.2d 552 (1979), that a tribunal has "broad discretion to determine when it [i.e., collateral estoppel] should be applied." The context of this statement is critical. The Court was discussing the use of collateral estoppel by a nonparty to the original proceeding against the defendant in that proceeding, an extension of the doctrine beyond its conventional core that the Court held was discretionary. No extension of the doctrine is involved in the present case.

Further arguing against the application of collateral estoppel to his case, Kairys complains that in the denaturalization proceeding both the district court and this court "refused to address a telling attack that petitioner made on the key identification evidence, the Soviet-produced Personalbogen." This is a reference to Kairys's SS identification card, which was furnished to the Justice Department by the Soviet Union (as it then was) from captured SS files and which contains a thumbprint that Kairys acknowledges is his. The "telling attack" is that the Soviets refused to allow Kairys's document experts to clip a fibre from the thumbprint for tests. This court discussed the thumbprint evidence, noting that "government witnesses testified that the only likely way for the print to appear on the Personalbogen was from the defendant's pressing his thumb to the paper." 782 F.2d at 1379. The fact that the panel did not discuss the extent to which this evidence should have been deemed impeached by the Soviets' failure to allow chemical analysis of a fibre hardly establishes the unfairness or inadequacy of the denaturalization proceeding....