Kulle v. I.N.S., 86-1277

• Citation: 825 F.2d 1188
• Decision Date: 05 August 1987
• Docket Number: No. 86-1277,86-1277
• Parties: Reinhold KULLE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1188

825 F.2d 1188

Reinhold KULLE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 86-1277.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 1986.

Decided Aug. 5, 1987.

Charles Nixon, Chicago, Ill., for petitioner.

Ronnie L. Edelman, U.S. Dept. of Justice, Washington, D.C., for respondent.

Before COFFEY and EASTERBROOK, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

In a decision rendered on November 20, 1984, Immigration Judge Olga Springer ordered Reinhold Kulle deported to the Federal Republic of Germany under section 241(a)(19) of the Immigration and Nationality Act as amended. In its decision of December 10, 1985, the Board of Immigration Appeals ("Board") dismissed Kulle's appeal, agreeing with the judge that Kulle was deportable. He now appeals, and we affirm, the decision of the Board.

I.

Kulle was born in 1921, in the Breslau district of Silesia, once a part of Germany but now a part of Poland. He remains a citizen of Germany, although he was admitted to the United States for permanent residence on November 7, 1957. As a teenager, in 1940, Kulle joined the Waffen SS of the German military and served that notorious arm of the Nazi regime through May of 1945. The government's Order to Show Cause alleged that Kulle served with the Death's Head (Totenkopf) Division of the Waffen SS, which required his duty in France, Austria, the Soviet Union and throughout Nazi Germany. For his services, Kulle received the decoration of the Iron Cross Second Class. In August of 1942, Kulle was assigned to the Death's Head Battalion at Gross-Rosen, a concentration camp in Kulle's native Silesia. During his nearly three-year tenure at Gross-Rosen, Kulle received a promotion to the rank of corporal and another to the rank of sergeant. He worked as a guard and as a training leader.

The Order to Show Cause further alleged that Kulle's position as a guard involved the armed guarding of Gross-Rosen prisoners under the strain of forced labor. As a training leader, Kulle instructed SS recruits in the use of weapons. Most importantly, the Order to Show Cause alleged that during Kulle's term at Gross-Rosen the camp was a place for persecution of prisoners of the Nazi regime. The persecution included forcible internment and slave labor of prisoners for reasons of race, religion, national origin or political opinion. The Order also alleged that in January of 1945 Kulle participated in the forced evacuation of prisoners, via open freight cars, from Gross-Rosen to Mauthausen, an infamous concentration camp in Austria.

In the Order to Show Cause, the government asserted that Kulle was deportable because, as an instrument of the Nazi regime, he participated in the persecution of persons on account of their race, religion, national origin or political opinion. The government also alleged deportability on the grounds that Kulle procured his immigrant visa by misrepresenting material facts, and that he therefore does not possess a valid visa. At the deportation hearing held on January 17, 1983, Kulle denied all charges of deportability. The immigration judge denied various motions, including Kulle's motions for discovery and jury trial. Kulle petitioned for, and was denied, a writ of mandamus to compel discovery. Kulle v. Springer, 566 F.Supp. 279 (N.D.Ill.1983). Once the deportation hearing was reconvened, Judge Springer issued a forty-seven page decision declaring Kulle deportable on the basis of clear and convincing evidence indicating his participation in the persecution of persons because of race, religion, political opinion or nationality. The government's evidence at the deportation hearing consisted of various documents, Kulle's statements made under oath in an interview held on August 14, 1982, and testimony from six witnesses. The witnesses included a German history professor, four survivors of Gross-Rosen, and a former Foreign Service Officer of the American Consulate in Frankfurt, Germany, where Kulle obtained his visa in September of 1957.

On appeal, the Board agreed that the evidence demonstrated Kulle's assistance in the persecution of persons because of their race, religion or political opinion. The Board also concluded that the record established additional charges of deportability because Kulle entered the United States by fraud and with an invalid immigrant visa. On this appeal Kulle contests the dual grounds for his deportation, and he also contends that he was not afforded a fair trial.

II.

Section 241(a)(19) of the Immigration and Nationality Act ("INA"), known as the "Holtzman Amendment," mandates deportation of 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

(A) the Nazi government of Germany,

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

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

(D) 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. 1251(a)(19).

Kulle attacks the legislation on its face, arguing that the term "persecution" is unconstitutionally vague and overbroad, that the Holtzman Amendment, enacted in 1978, is an ex post facto law, and that it is a bill of attainder inflicting punishment without a judicial trial. These arguments must fail, however, as they did in our decision of Schellong v. Immigration and Naturalization Service, 805 F.2d 655 (7th Cir.1986). As we explained in Schellong, the term "persecution" is adequately defined by legislative history and court interpretations, 805 F.2d at 662, and rather than punish individuals for actions previously taken, the Holtzman Amendment merely "ensure[s] that the United States is not a haven for individuals who assisted the Nazis in the brutal persecution and murder of millions of people." Id.

Kulle next argues that the evidence is not sufficiently clear and convincing to establish that Gross-Rosen was a place of persecution or that he ever assisted in persecution. Kulle insists he never persecuted anybody. The government does not really attempt to make that argument, but relies instead on a theory which places Kulle in a camp of widespread persecution. But Kulle disagrees, arguing that the government "manufactured" expert testimony to fit its trial objective of depicting Gross-Rosen as a place of persecution. According to Kulle, the government pursued this course despite the fact that not one standard historical work on the Nazi era describes Gross-Rosen as a place of persecution, and the only reputable book mentioning Gross-Rosen states that it was a camp predominantly populated by criminals. Thus, in Kulle's view, the government had to rely on an inherently unreliable source, a book by Mieczyslow Moldawa entitled Gross-Rosen: A Concentration Camp in Silesia. Kulle's criticism of this source stems primarily from the author's method of compiling a very detailed description of the camp--a method which required no citation to authority, no prior note-taking or diary, and no research.

The government contests Kulle's view of the evidence and argues that its expert witness, Dr. Charles Sydnor, a professor in modern German history, testified that as of May 1, 1941, Gross-Rosen was established as an independent concentration camp. Prisoners worked in the nearby granite quarries. According to Sydnor, the prisoner population among Gross-Rosen and its many subcamps exceeded 10,000 by 1945, and it included persons of various nationalities and religions. Sydnor was adamant, however, that Gross-Rosen was not primarily a place for ordinary criminals but instead was a place for incarceration and severe treatment of disfavored religions and races (e.g., Jews and Slavs), and of political opponents of the Nazi regime. The different classifications of prisoners were identified by the patch: for example, political prisoners wore red patches and Jews wore the yellow Star of David. Kulle, in fact, admitted to knowing Jewish prisoners "through the patch."

The government also offered the testimony of four Polish prisoners who suffered at Gross-Rosen. All alleged to be imprisoned for political reasons during Kulle's term at Gross-Rosen, and all testified to the brutal conditions existing there. Moldawa testified that construction on a gas chamber at Gross-Rosen was started in 1944 but never completed. He related the cruel and arbitrary treatment of prisoners, including a punishment of death for arriving late to roll call. Marcel Lubasz testified that SS guards regularly beat the prisoners and maintained constant surveillance over the forced labor at worksites. Ludwig Kozlowski related how, upon arrival at Gross-Rosen, SS guards beat and kicked prisoners embarking from trains. He recalled the mass execution of Russian prisoners during April of 1943. Marion Wojciechowski testified to the ritual of beatings delivered by SS guards. He claimed the Jews received the worst treatment. Judge Springer found that "all of the witnesses who testified were credible."

For his part, Kulle testified that he never served as a guard within the camp itself. His guard duties included a day shift along the perimeter of Gross-Rosen, a night shift in the watchtowers located outside the protective custody area, and some guarding of work groups engaged in digging and loading. "Kapos," or criminal prisoners, were the enforcers of the work groups. Kulle testified that the kapos, not the guards, punished the prisoners when they refused to work. Kulle insists he did not have authority to shoot prisoners attempting escape. As a corporal, Kulle began training recruits for combat, and upon becoming a sergeant, Kulle trained more and guarded...