Laipenieks v. I.N.S.

• Citation: 750 F.2d 1427
• Decision Date: 09 January 1985
• Docket Number: No. 83-7711,83-7711
• Parties: Edgars LAIPENIEKS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1427

750 F.2d 1427

Edgars LAIPENIEKS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 83-7711.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 8, 1984.

Decided Jan. 9, 1985.

Jan I. Goldsmith, Dorazio, Barnhorst, Goldsmith & Bonar, San Diego, Cal., for petitioner.

Bruce J. Einhorn, Dept. of Justice, Washington, D.C., for respondent.

Petition for Review of Decision of the Board of Immigration Appeals.

Before TANG, BOOCHEVER and BEEZER, Circuit Judges. ^*

TANG, Circuit Judge:

Edgars Laipenieks petitions from a Board of Immigrations Appeals ("BIA" or the "Board") decision finding him deportable under section 241(a)(19) of the Immigration and Nationality Act ("INA") [8 U.S.C. Sec. 1251(a)(19) ]. The BIA found Laipenieks deportable on the ground that he participated in or assisted the Nazi government in the persecution of Communists because of their political opinion.

Laipenieks argues that the Immigration and Naturalization Service ("INS" or the "government") failed to prove deportability on the basis of Section 1251(a)(19) by clear, convincing and unequivocal evidence. We

agree with Laipenieks and reverse the decision of the BIA.

I FACTS

Edgars Laipenieks was born in 1913 in Latvia which at the time was part of the Russian empire. During World War I, Latvia became an independent state. The Communist party was officially abolished and it was a crime to be a member. In June 1940, the Soviets invaded Latvia, deporting thousands of Latvian citizens to Siberia and killing numerous others. In June 1941, Nazi forces entered Latvia and occupied the region until 1944.

In July 1941, Laipenieks joined the Latvian Political Police ("LPP"), an organization formed to investigate and arrest individuals who had participated in the atrocities during the Soviet occupation. A historical expert testified at the deportation hearing that the LPP collaborated with the Nazis to apprehend Communists and other suspected Soviet sympathizers. Laipenieks admitted to working with suspected Soviet criminals at LPP central headquarters and at the Riga Central Prison.

In 1944, Laipenieks fled from Latvia to avoid the impending Russian invasion. Laipenieks moved to Chile in 1947 and worked there until 1960 as a professor of physical education and track coach. He also became a Chilean citizen. In 1960, he obtained a visa to the United States which enabled him to come to the United States and accept a position as Professor of Physical Education at the University of Denver.

On June 1, 1981, the Office of Special Investigations initiated deportation proceedings against Laipenieks, alleging that: (1) Laipenieks willfully misrepresented facts on his 1960 visa application making him ineligible for a visa and, therefore, deportable under Sections 212(a)(19) [8 U.S.C. Sec. 1182(a)(19) ] and 241(a)(1) [8 U.S.C. Sec. 1251(a)(1) ] of the INA and; (2) during World War II, Laipenieks assisted in the persecution of persons on the basis of political opinion, rendering him deportable under Section 241(a)(19) of the INA [8 U.S.C. Sec. 1251(a)(19) ].

The deportation hearing was held during the period January 26, 1982 through February 18, 1982. Following the hearing, the Immigration Judge ("IJ") terminated the proceedings on the basis that the government had failed to establish grounds for deportation under either Sections 1251(a)(1) or 1251(a)(19). The government appealed the IJ's decision to the BIA. On September 8, 1983, the BIA reversed the IJ's decision and ordered Laipenieks deported on the basis of its finding that Laipenieks had participated or assisted in the persecution of communists during World War II because of their political opinion.

II DISCUSSION

A. Standard of Review.

We first note that in a deportation case, the INS has the burden of proving its case by clear, convincing and unequivocal evidence which does not leave the issue in doubt. Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 746, 66 L.Ed.2d 686 (1981). See also United States v. Kowalchuk, No. 83-1571, slip op. at 9 (3d Cir. Sept. 11, 1984). On review, we must consider whether there is reasonable, substantial and probative evidence in the record, when considered as a whole, to support a finding that each material fact has been established by clear, convincing and unequivocal evidence. Espinoza-Ojeda v. INS, 419 F.2d 183, 186 (9th Cir.1969). The standard is to be applied equally stringently regardless of the difficulty which the Government may encounter when relying on events from the distant past. Woodby v. INS, 385 U.S. 276, 286 n. 19, 87 S.Ct. 483, 488 n. 19, 17 L.Ed.2d 362 (1966).

The standard of review is not altered when an agency decision runs contrary to the findings of the hearing examiner. See NLRB v. Warren L. Rose Castings, Inc., 587 F.2d 1005, 1008 (9th Cir.1978). However, this court has observed that in a situation where the hearing examiner and the Agency have reached opposite [E]ven when there is independent, credited evidence of the Board's decision, a reviewing court will scrutinize the Board's findings of fact more critically if they contradict the ALJ's factual conclusions than if they are in accord with the ALJ's findings.

results, the appellate court's reviewing eye may be more searching:

Loomis Courier Service, Inc. v. NLRB, 595 F.2d 491, 496 (9th Cir.1979). See also Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1079 (9th Cir.1977) ("the special deference deservedly afforded the administrative law judge's factual determinations based on testimonial inferences will weigh heavily in our review of a contrary finding by the Board").

B. The Merits.

1. The applicable statutory provision.

Laipenieks was found deportable under 8 U.S.C. Sec. 1251(a)(19) which provides for the 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.

Section 1251(a)(19) was enacted on October 13, 1978, as a Congressional response to a perceived loophole in United States Immigration Law. The first immigration legislation that directed itself to persons who had been involved in persecution of individuals is contained in certain provisions of the Displaced Persons Act of 1948 ("DPA"), 62 Stat. 1009 et seq. The DPA was enacted for the broad purpose of providing entrance visas to this country for peoples displaced by the ravages of World War II. However, that legislation contained express provisions rendering certain individuals ineligible for Displaced Person Status. Among those excluded by the DPA were individuals who had "assisted the enemy in persecuting civil[ians]...." See Fedorenko v. United States, 449 U.S. 490, 495 n. 4, 101 S.Ct. 737, 741 n. 5, 66 L.Ed.2d 686 (1981).

Section 10 of the DPA, 62 Stat. 1013, placed the burden of proving eligibility for displaced person status on the applicant seeking admission and provided that "[a]ny person who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States".

The government has succeeded in litigation seeking deportation of several individuals who were admitted to this country under the DPA. See, e.g. Fedorenko, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686; United States v. Koziy, 540 F.Supp. 25 (S.D.Fla.1982), aff'd, 728 F.2d 1314 (11th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 130, 83 L.Ed.2d 70 (1984); United States v. Linnas, 527 F.Supp. 426 (E.D.N.Y.1981), aff'd, 685 F.2d 427 (2nd Cir.), cert. denied, 459 U.S. 883, 103 S.Ct. 179, 74 L.Ed.2d 146 (1982); United States v. Osidach, 513 F.Supp. 51 (E.D.Pa.1981). The general ground for deportation is that the individuals willfully misrepresented facts relating to persecutorial acts and therefore entered the country in violation of Section 10. See Fedorenko, 449 U.S. at 514-15, 101 S.Ct. at 751-52.

Section 1251(a)(19) was passed by Congress in recognition that individuals who had not entered this country pursuant to the DPA or the similar provisions of the Refugee Relief Act of 1953 and who had assisted Nazi Germany in persecutorial acts were not subject to deportation. See House Report No. 95-1452 at 3, reprinted in 1978 U.S.Code Cong. & Ad.News 4700, 4702. The clear intent of the Section 1251(a)(19) amendment was to allow deportation of individuals who had ordered, incited There is one important difference between the DPA and the Section 1251(a)(19) amendment. In addition to Section 2, Section 13 of the DPA makes ineligible for Displaced Person Status individuals who are or have "been a member of, or participated in, any movement which is or has been hostile to the United States". 62 Stat. 1014. In Osidach, the court interpreted Section 13 of the DPA as precluding Displaced Person Status for "mere willing membership--without proof of personal participation in acts of persecution--in a movement that persecuted civilians". 513 F.Supp. at 72.

assisted or participated in persecutorial acts under the Nazi regime. Id.

We note that no provision parallel to Section 13 of the DPA exists in the Section 1251(a)(19) legislation. Thus, to the extent that DPA cases such as Osidach rely on Section 13 as a ground for deportability, we find them inapposite to the case at bar. It is clear from the plain language of Section 1251(a)(19), that more than willing membership in a movement is required to establish deportability.

The DPA ...