Linnas v. I.N.S.

• Citation: 790 F.2d 1024
• Decision Date: 08 May 1986
• Docket Number: No. 895,D,895
• Parties: Karl LINNAS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. ocket 85-4163.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1024

790 F.2d 1024

Karl LINNAS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 895, Docket 85-4163.

United States Court of Appeals, Second Circuit.

Argued March 17, 1986.

Decided May 8, 1986.

Ivars Berzins, Babylon, N.Y., for petitioner.

Rudolph W. Giuliani, U.S. Atty. for Southern Dist. of N.Y., New York City, Neal M. Sher, Director Office of Special Investigations, Washington, D.C. (Michael D. Patrick, Sp. Asst. U.S. Atty., Michael Wolf, Deputy Director Office of Special Investigations, Steven E. Obus, Asst. U.S. Atty., Philip L. Sunshine, Aron A. Golberg, Trial Attys., Office of Sp. Investigations, of counsel) for respondent.

Eli M. Rosenbaum, New York City, for The World Jewish Congress, amicus curiae.

Marc D. Stern, Phil Baum, New York City (Samuel Rabinove, Dennis Rapps, of counsel), for American Jewish Congress, amicus curiae.

Before PIERCE, MINER and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Petitioner, Karl Linnas, seeks review of an order of the Board of Immigration Appeals ("BIA") determining that petitioner must be deported to the Soviet Union. The BIA ordered Linnas deported under section 241(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1251(a), because of Linnas' active participation in the Nazi persecution of Estonian Jews during World War II. The Soviet Union was designated as the country of deportation pursuant to section 243(a) of the INA, 8 U.S.C. Sec. 1253(a).

Linnas now seeks review of the determination of the BIA on the ground that sections 241(a)(19), 243(h) and 244(e) of the INA, 8 U.S.C. Secs. 1251(a)(19), 1253(h), and 1254(e), constitute a bill of attainder in violation of Article I, section 9 of the Constitution of the United States. Alternatively, Linnas argues that his deportation to the Soviet Union would violate his rights to due process and equal protection.

BACKGROUND

Karl Linnas was born in Estonia in 1919 and entered the United States in 1951 under the auspices of the Displaced Persons Act ("DPA"), Pub.L. No. 80-774, 62 Stat. 1009 (1948), amended by Pub.L. No. 81-555, 64 Stat. 219 (1950). In order to gain admittance to the United States as a displaced person, Linnas informed members of the Army Counter Intelligence Corps that he had been a university student during the years 1940 to 1943. In May 1951 Linnas signed an immigration form stating that he had "never advocated or assisted in the persecution of any person because of race, religion or national origin." Upon entering the United States some three months later, Linnas swore to the truth of that statement. The New York State Supreme Court (Suffolk County) admitted Linnas to citizenship in 1960. See United States v. Linnas, 527 F.Supp. 426, 436-38 (E.D.N.Y.1981), aff'd, 685 F.2d 427 (2d Cir.), cert. denied, 459 U.S. 883, 103 S.Ct. 179, 74 L.Ed.2d 146 (1982).

In 1979, the government began an action to revoke Linnas' certificate of naturalization on the grounds that it had been "illegally procured" and "procured by concealment of a material fact or by willful misrepresentation." See 8 U.S.C. Sec. 1451(a). Because American citizenship is such a precious possession, denaturalization is not a process which may be lightly accomplished. The government, therefore, had the heavy burden of proving its case against Linnas by clear, unequivocal and convincing evidence which did not leave the issue in doubt. See Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 746, 66 L.Ed.2d 686 (1981).

The evidence presented at Linnas' denaturalization trial before District Judge Jacob Mishler was overwhelming and largely uncontroverted. The government presented eyewitness testimony that Linnas was chief of the Nazi concentration camp in Tartu, Estonia during the time period that Linnas later claimed to have been a university student.

Linnas' duties as a concentration camp chief were such as to offend the decency of any civilized society. Eyewitnesses testified that Linnas supervised the transportation of prisoners from his camp to a nearby antitank ditch. On such occasions innocent Jewish women and children were tied by their hands and brought in their underwear to the edge of the ditch where they were forced to kneel. The guards then opened fire. The ditch became a mass grave.

There was also eyewitness testimony that Linnas on at least one occasion announced his victims' death sentence at the side of the ditch and gave the order to fire. Linnas was also said to have then personally approached the edge of the ditch, and fired into it. Another eyewitness recounted having seen Linnas help direct Jews out of a school and onto a schoolbus. That witness recalled that Linnas helped a small child with a doll onto the bus, and that the doll was later placed in a storage area for The government also introduced documents signed "Karl Linnas, Chief of Concentration Camps," and "Chief of Tartu Concentration Camp." Documentary evidence was also introduced showing that Linnas later joined the 38th Estonian Police Battalion under the command of a senior colonel of the SS and was wounded in battle on August 30, 1944.

the personal effects of those who had been killed.

From the evidence presented at trial, Judge Mishler concluded that it was "beyond dispute that defendant, Karl Linnas, 'assisted the enemy in persecuting civil populations of countries'.... The inescapable conclusion is that defendant unlawfully entered the country because of the willful misrepresentations he made." United States v. Linnas, 527 F.Supp. at 439. That conclusion was affirmed by this court on January 25, 1982. United States v. Linnas, 685 F.2d 427 (2d Cir.), cert. denied, 459 U.S. 883, 103 S.Ct. 179, 74 L.Ed.2d 146 (1982). The horrific facts of Linnas' past exemplify what this court has described as the clearest case of involvement in persecution: one in which "an individual, often while employed at a concentration camp, has personally arrested, or fired upon detained civilians, or has ordered others to do so." United States v. Sprogis, 763 F.2d 115, 122 (2d Cir.1985) (citing United States v. Linnas, 527 F.Supp. 426 (E.D.N.Y.1981)).

Following Linnas' denaturalization, the government began deportation proceedings under section 242 of the INA, 8 U.S.C. Sec. 1252. Immigration Judge Howard I. Cohen ruled on May 19, 1983 that Linnas was deportable. Linnas had designated "the free and independent Republic of Estonia" as the country to which he wished to be deported. The independent Republic of Estonia was forcibly incorporated into the Soviet Union following World War II. Linnas apparently intended his designation to mean the office building in New York currently housing the representatives of the independent Republic of Estonia. Immigration Judge Cohen, however, apparently took Linnas' designation to mean that geographic territory historically associated with the Republic of Estonia and currently incorporated in the Soviet Union. In attempting to comply with Sec. 243 of the INA, Immigration Judge Cohen ordered that Linnas be deported from the United States to Estonia, but that if Estonia was unwilling to accept Linnas he was to be deported to the Soviet Union. The Soviet Union, which had tried Linnas in absentia and sentenced him to death for his war crimes, was the only country which had expressed a willingness to accept Linnas. Linnas' request for discretionary relief was denied on the ground that such relief is not available to Nazi persecutors under sections 212(a)(33) and 241(a)(19) of the INA.

Linnas filed a timely appeal to the BIA. On July 31, 1984 the BIA affirmed the decision of the immigration judge except as to the country of deportation. The BIA remanded the case to the immigration judge with instructions to consider the effect of the United States' non-recognition of the Soviet annexation of Estonia and to articulate a statutory basis for the designation of a country of deportation.

On remand, Immigration Judge Cohen reviewed the three step process delineated in Sec. 243(a) of the INA for designation of a country of deportation. Step one, the designation of a country by the deportee, was ruled inapplicable because of Linnas' designation of an office building in New York. Step two, the designation of a country of which the deportee is a citizen, was also held inapplicable. Linnas claimed to be a citizen of the Republic of Estonia, but that country no longer exists as an independent geographic territory. Under step three, the immigration judge may designate deportation to any country which falls within one of seven categories. Immigration Judge Cohen, therefore, considered deportation:

(1) to the country from which such alien last entered the United States;

(2) to the country in which is located the foreign port at which such alien embarked for the United States or for foreign contiguous territory (3) to the country in which he was born;

(4) to the country in which the place of his birth is situated at the time he is ordered deported;

(5) to any country in which he resided prior to entering the country from which he entered the United States;

(6) to the country which had sovereignty over the birthplace of the alien at the time of his birth; or

(7) if deportation to any of the foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing to accept such alien into its territory.

8 U.S.C. Sec. 1253(a). On April 9, 1985, after considering a letter from the Legal Advisor of the Department of State to the effect that Linnas' deportation to the Soviet Union would not violate the nonrecognition policy, Immigration Judge Cohen held that Linnas should be deported to the Soviet Union under either category (4) or (7). Linnas once again appealed to the BIA, which, in a decision dated October 16, 1985, affirmed the immigration judge's decision based on Sec. 243(a)(7).

Petitioner now seeks review of the BIA's decision on two grounds. First,...