Matter of Kulle

• Decision Date: 10 December 1985
• Docket Number: Interim Decision Number 3002,A-10857195.
• Citation: 19 I&N Dec. 318
• Parties: MATTER OF KULLE. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

19 I&N Dec. 318

MATTER OF KULLE.

In Deportation Proceedings.

Interim Decision Number 3002

A-10857195.

Board of Immigration Appeals.

Decided by Board December 10, 1985.

(1) The term "persecution" as used in section 241(a)(19) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(19) (1982), includes the confinement of political prisoners, Jehovah's Witnesses, Protestant and Catholic clergy, Jews, and other opponents of the Nazi regime in the Nazi work camp at Gross-Rosen.

(2) Those persons who actively participated in the management of Nazi concentration camps which included the supervising and training of concentration camp guards engaged in persecution as defined under section 241(a)(19) of the Act.

(3) The respondent, a concentration camp guard at Gross-Rosen, assisted in the persecution of prisoners who, because of their religious and political beliefs, were singled out for harsher treatment.

(4) The respondent was found to have assisted in the persecution of prisoners under section 241(a)(19) of the Act notwithstanding the absence of evidence that his activities were the result of political or religious motivation.

(5) The respondent, who claimed that he merely obeyed orders and was denied a transfer from the Gross-Rosen concentration camp, did assist in persecution and is deportable under section 241(a)(19) of the Act, notwithstanding his claim that his actions were involuntary.

(6) The respondent materially misrepresented his wartime military service to immigration authorities and thus is deportable as excludable at entry under sections 212(a)(19) and (20) of the Act, 8 U.S.C. §§ 1182(a)(19) and (20) (1982).

(7) An alien deportable under section 241(a)(19) of the Act is ineligible for relief from deportation under sections 241(f) and 244(a) and (e) of the Act, 8 U.S.C. §§ 1251(f) and 1254(a) and (e) (1982).

CHARGE:

Order: Act of 1952 — Sec. 241(a)(1) [8 U.S.C. § 1251(a)(1)] — Excludable at entry under section 212(a)(19) [8 U.S.C. § 1182(a)(19)] — Procured visa by fraud or willful misrepresentation of a material fact

Sec. 241(a)(1) [8 U.S.C. § 1251(a)(1)] — Excludable at entry under section 212(a)(20) [8 U.S.C. § 1182(a)(20)] — No valid immigrant visa

Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)] — In the United States in violation of section 212(a)(19) [8 U.S.C. § 1182(a)(19)] — Procured visa by fraud or willful misrepresentation of a material fact

Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)] — In the United States in violation of section 212(a)(20) [8 U.S.C. § 1182(a)(20)] — No valid immigrant visa

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

ON BEHALF OF RESPONDENT: Charles W. Nixon, Esquire 29 South LaSalle Street, Suite 340 Chicago, Illinois 60603

ON BEHALF OF SERVICE: Bruce J. Einhorn Ronnie L. Edelman General Attorneys Office of Special Investigations Criminal Division U.S. Department of Justice

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

The respondent appeals from the immigration judge's decision of November 20, 1984, finding the respondent deportable as charged and denying him relief from deportation. The appeal will be dismissed after a minor modification of the immigration judge's decision.

PROCEDURAL OVERVIEW

The respondent is a 63-year-old native of the Breslaw district of Silesia, which, at his birth, was a part of Germany and is now a part of Poland. He is still a citizen of Germany and was admitted to the United States for lawful permanent residence on November 7, 1957. On December 3, 1982, the respondent was served with an Order to Show Cause and Notice of Hearing (Form I-221), which alleged that he was deportable under sections 241(a)(1), (2), and (19) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(1), (2), and (19) (1982).

At his deportation hearing, which commenced on January 17, 1983, the respondent admitted, in substance, 12 of the Government's 18 allegations of fact in the Order to Show Cause but denied all charges of deportability. He also filed motions to terminate the deportation proceedings and various other motions, including a motion for discovery, all of which were denied. In addition, the respondent demanded a trial by jury, which was also denied by the immigration judge. He then sought a writ of mandamus in the United States District Court for the Northern District of Illinois, Eastern Division, seeking to force the immigration judge to compel discovery in these deportation proceedings. Consequently, the deportation proceedings were stayed until July 19, 1983, pending a resolution of this writ. The petition for the writ of mandamus was dismissed by the district court on June 23, 1983. Kulle v. Springer, 566 F. Supp. 279 (N.D. Ill. 1983).

The deportation hearing reconvened on August 10, 1983, following several continuances granted at the respondent's request. On August 23, 1983, the respondent's hearing was adjourned, again at the respondent's request. The hearing reconvened on September 17, 1983, and the Government completed its case on September 22, 1983. The hearing was again recessed at the respondent's request until November 15, 1983, when the respondent began his case. The hearing was finally closed on November 16, 1983, when the respondent finished presenting his case. After reviewing the 2,971 pages of transcript of the testimony and the copious documentary evidence presented, the immigration judge rendered her 47-page decision on November 20, 1984.

In her decision the immigration judge focused solely on the charge of deportability pursuant to section 241(a)(19) of the Act. She noted that the factual evidence presented related principally to the allegations regarding the respondent's assistance and participation in persecution because of race, religion, nationality, or political opinion. Five of the Government's six witnesses testified solely on this aspect of the case. The immigration judge found the testimony of these witnesses to be credible. Thus, she concluded that the respondent had "assisted and otherwise participated in the persecution of persons because of race, religion, political opinion, or nationality" and was, therefore, deportable under section 241(a)(19) of the Act by evidence which is clear, unequivocal, and convincing, as required by Woodby v. INS, 385 U.S. 276 (1966), and 8 C.F.R. § 242.14(a) (1984). Since this finding was dispositive of the issues of deportability and relief from deportation, the immigration judge's decision was based on this conclusion alone. The respondent appealed.

ALLEGATIONS OF DEPORTABILITY

The Order to Show Cause alleged that on June 20, 1940, the respondent had joined the Waffen Schutzstaffel ("SS"), an organization under the direction of, or in association with, the Nazi government of Germany. He served in the Waffen SS until approximately May 1945 when the Second World War ("WWII") ended. During the period that the respondent was a member of the Waffen SS, he served in its Death's Head ("Totenkopf") Division. His service with the SS Death's Head Division took place in Germany, France, the Soviet Union, and Austria, and for his services, he received the Iron Cross Second Class.

In August 1942 the respondent was assigned to the SS Death's Head Battalion at Gross-Rosen concentration camp in his native Silesia and remained there until approximately January 1945. During the time he served in the SS Death's Head Battalion at Gross-Rosen concentration camp, he received two promotions: one to the rank of corporal (rottenfuehrer) in October 1942, and another to sergeant (unterscharfuehrer) in approximately September 1943. Among his alleged activities while serving at Gross-Rosen was work as a guard and guard training leader. His work as a guard included the armed guarding of Gross-Rosen prisoners when they were sent to do forced labor. The respondent allegedly served often as group leader of SS guards and was a training supervisor of SS recruits, instructing them in the use of weapons.

The Order to Show Cause further alleges that at the time of the respondent's service the Gross-Rosen concentration camp was a place for persecution of prisoners of the Nazi government of Germany. This persecution included the forcible internment and slave labor of prisoners for reasons of race, religion, national origin, or political opinion. According to the Order to Show Cause, the respondent allegedly ordered, incited, assisted, or otherwise participated in the persecution of the Gross-Rosen concentration camp prisoners, actions which would render him deportable under section 241(a)(19) of the Act.

It is also alleged that in approximately January 1945, while still a sergeant in the Waffen SS, the respondent participated in the forced evacuation of prisoners by train from the Gross-Rosen concentration camp to the Mauthausen concentration camp in Austria. This evacuation, which was conducted in open freight cars, allegedly resulted in the persecution of the evacuated prisoners and thus constitutes another basis for the charge of deportability under section 241(a)(19) of the Act.

When the respondent applied for admission into the United States in 1957, he stated to immigration authorities that during WWII he had served in the German Army rather than in the Waffen SS. The Order to Show Cause therefore alleges that the respondent mispresented material facts regarding his membership and activities in the Waffen SS when he was seeking admission to this country. This allegation, if true, would support a finding that the respondent is deportable for having entered the United States by fraud and with an invalid visa. See sections 212(a)(19) and (20) of the Act, 8 U.S.C. §§ 1182(a)(19) and (20) (1982), and sections 241(a) (1) and (2).

THE RESPONDENT'S CONTENTIONS

The case presented by the Government at the respondent's deportation hearing consisted of admissions made by the respondent under oath in a transcribed interview on August 14, 1982; captured SS...