Matter of Fedorenko

• Decision Date: 17 April 1984
• Docket Number: Interim Decision Number 2963,A-7333468.
• Citation: 19 I&N Dec. 57
• Parties: MATTER OF FEDORENKO. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

19 I&N Dec. 57

MATTER OF FEDORENKO.

In Deportation Proceedings.

Interim Decision Number 2963

A-7333468.

Board of Immigration Appeals.

Decided by Board April 17, 1984.

(1) Under the judicially-developed doctrine of collateral estoppel, a prior denaturalization judgment conclusively establishes the "ultimate facts" of a subsequent deportation proceeding, i.e., those facts upon which an alien's deportability and eligibility for relief from deportation are to be determined, and precludes reconsideration of issues of law resolved by the prior judgment, so long as the issues in the prior suit and the deportation proceeding arise from virtually identical facts and there has been no change in the controlling law.

(2) The doctrine of collateral estoppel applies in deportation proceedings when there has been a prior judgment between the parties that is sufficiently firm to be accorded conclusive effect, the parties had a full and fair opportunity to litigate the issues resolved by and necessary to the outcome of the prior judgment, and the use of collateral estoppel is not unfair. Title v. INS, 322 F.2d 21 (9th Cir. 1963), distinguished.

(3) The language in section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b) (1982), which provides that a deportation proceeding shall be "the sole and exclusive procedure for determining the deportability of an alien," does not preclude the use of collateral estoppel in a deportation proceeding; rather this language was intended to exempt deportation proceedings from the provisions of any other law, most particularly the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, repealed by Pub. L. No. 89-554, 80 Stat. 378 (1966).

(4) A former prisoner of war of the Nazis who was forced to serve, upon penalty of death, as a concentration camp guard is deportable pursuant to section 241(a)(19) of the Act, 8 U.S.C. § 1251(a)(19) (1982), for assisting the Nazis in persecuting others, even if his actions were involuntary and he personally harbored no racial or religious prejudice against Jews; the objective effect of an alien's actions, not his motivation and intent, controls in determining whether he "assisted" in persecution within the meaning of section 241(a)(19).

(5) The 1981 amendment to section 244(a) of the Act, 8 U.S.C. § 1254(a) (1982), which withdrew suspension of deportation as an available form of relief in the case of aliens found deportable pursuant to section 241(a)(19) for assisting the Nazis in persecution, is properly applicable to an application for suspension of deportation filed prior to the 1981 amendment.

CHARGE:

Order: Act of 1952 — Sec. 241(a)(1) [8 U.S.C. § 1251(a)(1)] — Excludable at entry under sections 2 and 10 of the Displaced Persons Act of 1948

Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)] — Entered in violation of sections 2 and 10 of the Displaced Persons Act of 1948

Sec. 241(a)(19) [8 U.S.C. § 1251(a)(19)] — Participation in Nazi persecution

ON BEHALF OF RESPONDENT: Brian M. Gildea, Esquire The Hotchkiss House 512 Blake Street New Haven, Connecticut 06515

ON BEHALF OF SERVICE: Joseph P. Lynch Trial Attorney Office of Special Investigations Criminal Division Department of Justice

BY: Milhollan, Chairman; Maniatis, Dunne, and Vacca, Board Members. Board Member James P. Morris has abstained from consideration of this case.

In this appeal the respondent challenges the immigration judge's February 23, 1983, decision finding the respondent deportable as charged and denying him suspension of deportation pursuant to section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1) (1982). We affirm the immigration judge's decision in substantial part and dismiss this appeal.

The respondent is a 76-year-old male native and citizen of the Ukraine in the U.S.S.R. He entered the United States in 1949 as an immigrant, pursuant to the Displaced Persons Act of 1948, 62 Stat. 1009 ("DPA"), which was enacted by Congress to enable European refugees driven from their homelands by World War II to immigrate to the United States. In 1970 the respondent became a naturalized citizen of the United States.

In 1977 the Government brought a denaturalization action against the respondent in the United States District Court for the Southern District of Florida, alleging that he illegally procured his citizenship by failing to disclose that he had been a guard at the Nazi death camp, Treblinka, during World War II. United States v. Fedorenko, 455 F. Supp. 893 (S.D. Fla. 1978). The district court entered a judgment for the respondent, id., but the United States Court of Appeals for the Fifth Circuit reversed and ordered entry of a judgment of denaturalization. United States v. Fedorenko, 597 F.2d 946 (5th Cir. 1979). The Supreme Court affirmed the judgment of the court of appeals. Fedorenko v. United States, 449 U.S. 490 (1981). Accordingly, on March 11, 1981, the district court revoked the respondent's citizenship and cancelled his certificate of naturalization.

On or about March 17, 1981, the Immigration and Naturalization Service commenced deportation proceedings against the respondent, alleging, inter alia, that he had served as an armed guard at Treblinka during World War II, had lied in his visa application about his wartime activities, and consequently had been ineligible for a visa and inadmissible under the DPA. On the basis of these allegations the Service charged the respondent with being deportable: (1) pursuant to section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1982), as an alien who entered the United States in violation of section 10 of the DPA by willfully misrepresenting material facts for the purpose of gaining entry to the United States; (2) pursuant to section 241(a)(2) of the Act, as an alien who entered the United States in violation of section 2 of the DPA because he assisted the enemy regime of Nazi Germany in persecuting civilian populations; (3) pursuant to section 241(a)(1) of the Act, as an alien who was within a class of aliens excludable under the law existing at the time of entry because he was an immigrant not entitled to enter the United States under sections 2 and 10 of the DPA; and (4) pursuant to section 241(a)(19) of the Act, as an alien who assisted the Nazi government of Germany in the persecution of persons because of their race or religion during the period beginning on March 23, 1933, and ending on May 8, 1945.

At the deportation hearing, the respondent denied each of the charges of deportability. He argued that he should not be deported for falsifying information in his visa application because he did so merely to avoid repatriation to the Soviet Union. He also argued that he should not be deported for having assisted the Nazis in persecution because he involuntarily served at Treblinka as a prisoner of war, under constant fear of death. The Service took the position that the denaturalization judgment resolved the significant issues in the case and established the respondent's deportability on all of the charges.

The respondent applied at the deportation hearing for suspension of deportation, a discretionary form of relief which is available to an alien who can show that he has been continuously physically present in the United States for the 7 years immediately preceding his application for suspension, that he has been a person of good moral character during that time, and that his deportation would cause "extreme hardship" to him or to a spouse, parent, or child who is a United States citizen or a permanent resident alien. Section 244(a)(1) of the Act. Suspension of deportation is not available to an alien found to be deportable under section 241(a)(19) of the Act for assisting the Nazis in persecution. Id. In support of his suspension application, the respondent testified that he would suffer "extreme hardship" upon deportation because he is old, he suffers from a number of diseases of varying severity, and he would be deprived of the social security and pension payments which are his sole source of support.

On February 23, 1983, the immigration judge issued his written decision in the case. He found the respondent deportable pursuant to sections 241(a) (1) and (2) of the Act on the basis of the Supreme Court's decision in the denaturalization case and the principles of res judicata. He dismissed as a contrivance the respondent's claimed fear of death at the hands of the Nazis and found the respondent's service at Treblinka to have been voluntary. Holding that voluntary service as a concentration camp guard constituted "assistance" in "persecution" within the meaning of the Act, he found the respondent deportable pursuant to section 241(a)(19).

The immigration judge also found the respondent ineligible for suspension of deportation. He concluded that the respondent was precluded as a matter of law from obtaining suspension of deportation because of his deportability under section 241(a)(19). He found that the respondent had failed to satisfy the "continuous physical presence" and "extreme hardship" prerequisites for suspension of deportation. See section 244(a)(1) of the Act. He also indicated that even if the respondent had been eligible for suspension of deportation, the relief would not be warranted as a matter of discretion. The immigration judge ordered the respondent to be deported to the U.S.S.R.

On appeal, the respondent concedes deportability pursuant to section 241(a)(2) of the Act but contests deportability pursuant to sections 241(a) (1) and (19).¹ He also challenges the denial of his application for suspension of deportation.

The Service has moved for summary dismissal, arguing that the respondent's appeal is frivolous. We consider this appeal to present important issues of law which may have severe consequences for the respondent. Therefore, the appeal deserves our full consideration and is not suitable for summary dismissal.

THE LEGAL EFFECT OF THE JUDGMENT IN THE...