Kalejs v. I.N.S., 92-2198

• Decision Date: 30 December 1993
• Docket Number: No. 92-2198,92-2198
• Citation: 10 F.3d 441
• Parties: Konrads KALEJS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 441

10 F.3d 441

Konrads KALEJS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-2198.

United States Court of Appeals Seventh Circuit.

Argued April 30, 1993.

Decided Nov. 17, 1993.

Rehearing Denied Dec. 30, 1993.

Charles W. Nixon (argued), Chicago, IL, for petitioner.

Fred Foreman, U.S. Atty., Office of the U.S. Atty., Crim. Div., Chicago, IL; William J. Howard, David J. Kline, Dept. of Justice, Office of Immigration Litigation; Richard L. Thornburg, U.S. Atty. Gen., Office of the U.S. Atty. Gen., Washington, DC; Samuel Der-Yeghiayan, I.N.S., Chicago, IL; and Ronnie L. Edelman, and Betty-Ellen Shave (argued), Dept. of Justice, Office of Sp. Investigations, Washington, DC, for respondent.

Before CUMMINGS and MANION, Circuit Judges, and EISELE, Senior District Judge. ^*

CUMMINGS, Circuit Judge.

The government seeks to deport eighty-year-old Konrads Kalejs, an alleged Nazi collaborator who has now lived in the United States for thirty-four years. After Germany's defeat, Kalejs fled to Australia. He came to the United States in 1959 claiming to have been a farm laborer during the war. Whatever his real occupation then, Kalejs has been a financial success in the United States: he owns four homes, had assets in excess of a million dollars in the mid-1980s, and was able to post a $750,000 bond to secure his freedom while this case was pending. The Justice Department first set its sights on Kalejs in late 1984. But when he was about to be nabbed, he took $350,000 in cash and fled to Canada and Australia. When Kalejs returned to the United States, he tried to assume a new identity and managed to elude capture for six months. He was finally arrested in Florida on April 19, 1985; government agents expended 1,500 hours in the search. In the more than eight years since his arrest, Kalejs has bitterly disputed the charges that he was an officer in a pro-Nazi unit that killed tens of thousands of people, and that he assisted in other persecutions as an army officer, policeman and concentration camp guard.

Both an immigration judge and the Board of Immigration Appeals ("BIA")--sitting in Chicago after Kalejs was granted a change of venue--considered the case in extraordinary detail, found Kalejs' denials unconvincing, and held that he should be deported under 8 U.S.C. Secs. 1251(a)(1)(A), 1251(a)(1)(B) and 1251(a)(4)(D). ¹ If he is deported, Kalejs will return to Australia where he retains citizenship. We have jurisdiction to hear direct appeals of BIA decisions under 8 U.S.C. Sec. 1105a(a). Kalejs presses upon us essentially three arguments: that he did not commit war crimes, that he did not lie on his visa application to enter the United States (or rather, that the lies he told were immaterial), and that prosecutors relied on inherently untrustworthy evidence--depositions and documents salvaged from the archives of the former Soviet Union--and then compounded the error by denying him due process. We affirm the BIA's decision in all respects.

Konrads Kalejs was born on June 26, 1913, in Riga, Latvia. He was educated as a professional soldier and served as a lieutenant and first lieutenant in the Latvian military. In 1940, the Russians overran Latvia. Kalejs salvaged his military career by joining the conquering Red Army, but a year later the Russians were themselves pushed out of Latvia by the Nazis, whose forces were driving relentlessly toward Russia on the eastern front. Again Kalejs sided with the victors; he deserted his Red Army comrades and, according to the evidence presented here, joined a pro-German force called the Latvian Auxiliary Security Police. The unit was also known as the Arajs Kommando after its leader Viktors Arajs, who was convicted by a German court and sentenced to life imprisonment in 1979 for committing wartime atrocities. (Arajs died in prison.) According to the Justice Department, from July 1941 until at least June or July of 1944, Kalejs was a company commander and first lieutenant in the Arajs Kommando.

The Nazis' policy in Latvia (as elsewhere) was to murder all Jews, Gypsies and many Communists. After the German army swept through an area, a mobile killing crew would follow shortly, hoping to catch victims unaware. These mobile killing units were called the Einsatzgruppe or, in Latvia, the Einsatzkommando. According to the government's expert witness in the case against Kalejs, Dr. Raul Hilberg, a renowned Holocaust scholar and professor of political science at the University of Vermont, the Einsatzkommando assigned to Latvia had just 170 members. The logistics of attempting the systematic annihilation of the 70,000 Jews in Latvia prompted the Einsatzkommando to rely on bands of local soldiers. The Arajs Kommando was such a group. As a company commander, Kalejs was one of six or seven officers who were second in command to Arajs; he had a hundred men or more under his direction.

Dr. Hilberg testified that according to German documents, the Einsatzkommando with the help of the Arajs Kommando and similar local groups managed to murder 29,000 people (90 percent of them Jewish) before August 10, 1941. A few months later, in order to make room in Riga's Jewish ghetto for the thousands of Jews whom Hitler had shipped out of Germany, 27,800 Jews were shot in the woods near Riga in the space of three days. By January 1942, only 4,000 of the 70,000 Jews who were in Latvia at the beginning of the war were still alive. The Arajs Kommando working with the Einsatzkommando was responsible for more than half of these killings.

Kalejs and his unit had two other duties besides killing Jews in the Riga ghetto. Outside of Latvia (usually in Russia) the Arajs Kommando joined the German SS in so-called anti-partisan activity, which was little more than a cover for arresting and murdering civilians. In addition, the Arajs Kommando under the leadership of Kalejs served as guards at the Salaspils concentration camp. The conditions there were brutal, although Salaspils was a labor camp whose inmates died primarily from inhumane conditions or being shot while trying to escape, rather than a killing camp such as Auschwitz where the prisoners were systematically murdered in gas chambers. The Arajs Kommando was charged with guarding work details and preventing escapes at Salaspils.

The United States has the authority to deport Nazi collaborators for assisting in the persecution of innocents because of their race, religion, national origin or political opinion, 8 U.S.C. Sec. 1182(a)(3)(E), and for lying about a material fact on immigration forms, Fedorenko v. United States, 449 U.S. 490, 506, 101 S.Ct. 737, 747, 66 L.Ed.2d 686. The government alleges that Kalejs is guilty of both. We will deal with each accusation in turn although the issues are married because of course the reason former Nazis lie on their immigration forms is that they would not gain admission if they told the truth about their war crimes. Stephen J. Massey, Individual Responsibility for Assisting the Nazis in Persecuting Civilians, 71 Minn.L.Rev. 97, 106 (1986). The Holtzman Act confers on the United States the power to deport, or keep out in the first instance:

Any alien who, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with--

(I) the Nazi government of Germany,

(II) any government in any area occupied by the military forces of the Nazi government of Germany,

(III) any government established with the assistance or cooperation of the Nazi government of Germany, or

(IV) any government which was an ally of 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 * * *.

8 U.S.C. Sec. 1182(a)(3)(E). Assigning personal responsibility in a military regime is complex, particularly with regard to Holocaust era crimes because the Nazis' murderous proficiency insured there would be few witnesses. In only a handful of these cases are there people who can place the accused at the scene of a specific crime with a gun in his hand. The same is true here. The Holtzman Amendment's non-criminal provision thus makes assistance in persecution an independent basis for deportation, and assistance may be inferred from the general nature of the person's role in the war; therefore, the atrocities committed by a unit may be attributed to the individual based on his membership and seeming participation. The Supreme Court suggested in Fedorenko, for example, that an armed guard at a concentration or labor camp assisted in persecution under the statute, no matter that it could not be proved he committed a specific atrocity and despite the fact that the guard acted at the direction of a camp commandant. 449 U.S. at 512 n. 34, 101 S.Ct. at 750 n. 34. As we recently said,

If the operation of [a concentration] camp were treated as an ordinary criminal conspiracy, the armed guards, like the lookouts for a gang of robbers, would be deemed coconspirators, or if not, certainly aiders and abettors of the conspiracy; and no more should be required to satisfy the noncriminal provision of the Holtzman Amendment that makes assisting in persecution a ground for deportation.

Kairys v. Immigration and Naturalization Service, 981 F.2d 937, 943 (7th Cir.1992), certiorari denied, --- U.S. ----, 113 S.Ct. 1832, 123 L.Ed.2d 460. See also Schellong v. Immigration and Naturalization Service, 805 F.2d 655, 660, 662 (7th Cir.1986), certiorari denied, 481 U.S. 1004, 107 S.Ct. 1624, 95 L.Ed.2d 199; United States v. Kairys, 782 F.2d 1374, 1377 n. 3 (7th Cir.1986), certiorari denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703.

According to testimony, Kalejs was not "merely" a guard at a concentration camp but the commander of such guards. In addition, he was a key officer in a unit that has been proved by eyewitness testimony and Nazi-era documents to have...