Matter of Laipenieks

• Decision Date: 08 September 1983
• Docket Number: A-11937435,Interim Decision Number 2949
• Parties: MATTER OF LAIPENIEKS In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

18 I&N Dec. 433

MATTER OF LAIPENIEKS

In Deportation Proceedings

Interim Decision Number 2949

A-11937435

Board of Immigration Appeals

Decided by Board September 8, 1983

(1) The respondent is charged with deportability under section 241(a)(19) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(19) (the 1978 "Holtzman Amendment"), due to his employment and activities with the Latvian Political Police (LPP) from 1941-43 in Riga, Latvia; he is subject to deportation under that provision if there -is clear, convincing, and unequivocal evidence that (a) "under the direction of, or in association with — the Nazi government of Germany, [or] any government in any area occupied by the military forces of the Nazi government of Germany," the respondent; (b) "assisted or otherwise participated in"; (c) "the persecution of any person"; (d) "because of . . . political opinion."

(2) The Holtzman Amendment was intended to close an "undesirable loophole" in the Immigration and Nationality Act which, unlike special post-war immigration laws such as the Displaced Persons Act of 1948 and the Refugee Relief Act of 1953, previously had not mandated the exclusion or deportation of aliens who were involved in Nazi persecution.

(3) Congress expressly declined to incorporate a specific statutory definition of "persecution" in the Holtzman Amendment, but intended that term to be construed in accordance with the administrative and judicial case law developed in interpreting other persecution provisions contained in the Immigration and Nationality Act.

(4) Section 241(a)(19) of the Act encompasses persecution because of any and all types of political opinion, including communism.

(5) As both an arm of the government of Nazi-occupied Latvia and an organization which was directed by orders issued from a chain of command originating with Reichsfuehrer Heinrich Himmler in Nazi Germany, the role of the LPP was to "combat" Nazi political enemies, particularly communists of all kinds, including those who simply held communist beliefs, were communist sympathizers and supporters, or were engaged in noncriminal activities based upon their communist beliefs; such persons were commonly arrested and incarcerated at Riga Central Prison, often subjected to brutal mistreatment while imprisoned, and sometimes taken to Nazi concentration camps or killed, which constitutes persecution under the Act.

(6) Under the Holtzman Amendment, an alien's motivations and intent behind his assistance or participation in persecution are irrelevant; therefore, we look not to the alien's subjective intent but, rather, to the objective effect of his actions in determining whether he assisted or participated in the specified persecution.

(7) The respondent admittedly was employed in the LPP as an armed, paid, full-time, relatively high-ranking officer whose duties included investigation of all types of communists and interrogation of communist prisoners at Riga Central Prison, the information from which was used by his superiors to decide the fate of those suspects and prisoners; thus,

the respondent was a necessary link between the LPP/Nazi Security Police and the objects of their persecution, and thereby assisted and participated in the specified persecution.

(8) The record establishes by clear, convincing, and unequivocal evidence that from 1941 to 1943, under the direction of, and in association with, both the LPP and the Nazi German government, the respondent assisted and otherwise participated in the persecution of persons because of political opinion; therefore, he is deportable under section 241(a) (19) of the Act.

(9) An alien deportable under the Holtzman Amendment is statutorily ineligible for suspension of deportation under section 244(a) of the Act, 8 U.S.C. 1254(a), or for the privilege of voluntary departure under section 244(e) of the Act.

CHARGE:

Order: Act of 1952 — Sec. 241(a)(19), [8 U.S.C. 1251(a)(19)] — Assisted or participated in Nazi persecution

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

ON BEHALF OF RESPONDENT: Jan I. Goldsmith, Esquire Dorazio, Barnhorst, Goldsmith & Bonar Suite B-223 438 Camino Del Rio South San Diego, California 92108 Ivars Berzins, Esquire 484 West Montauk Highway Babylon, New York 11702

ON BEHALF OF SERVICE: Allan A. Ryan, Jr., Director Neal M. Sher, Deputy Director Clarice R. Feldman Bruce J. Einhorn Michael Wolf Trial Attorneys Office of Special Investigations United States Department of Justice

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

In his decision of June 9, 1982, the immigration judge determined that the Government had failed to establish that the respondent is deportable under sections 241(a)(1) and (19) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1) and (19). Therefore, he terminated these deportation proceedings against the respondent. The Government appeals. We reverse with respect to the section 241(a)(19) charge, and, accordingly, the appeal will be sustained on that basis.

The respondent is a 69-year-old native of Latvia and citizen of Chile who was admitted to the United States for permanent residence on March 9, 1960. On June 2, 1981, the respondent was served with an Order to Show Cause alleging that he is deportable under section 241(a)(19) of the Act due to his employment and activities with the Latvian Political Police (LPP) in Riga, Latvia, during the Nazi German occupation there in World War II. It is alleged that the respondent assisted or otherwise participated in the persecution of persons both because of political opinion and race or religion. The respondent is also charged with having been excludable at entry in that he procured his immigrant visa by misrepresenting material facts concerning his work with the LPP, and other matters as well. The respondent's deportation hearing was conducted in 11 sessions from January 23 to February 18, 1982. The hearing transcript consists of 1,177 pages and the record contains some 150-200 Government exhibits and 14 respondent exhibits. As the proceedings progressed, the factual evidence presented focused principally on allegations regarding the respondent's assistance and participation in persecution because of political opinion. The testimony of 11 of the 12 eyewitnesses presented by the Government related almost entirely to this aspect of the case. The immigration judge ultimately concluded that the Government had failed to prove the respondent's deportability under either of the charges by clear, convincing, and unequivocal evidence, as required by Woodby v. INS, 385 U.S. 276 (1966). Accordingly, the immigration judge ordered the proceedings terminated.

After our review of the record, we find clear, convincing, and unequivocal evidence that the respondent "assisted, or otherwise participated in the persecution of . . . person[s] because of . . . political opinion" and is therefore deportable under section 241(a)(19) of the Act. Inasmuch as this finding is dispositive of the case before us and as the evidence in this regard is the clearest aspect of the case presented, the appeal will be resolved on this basis alone.

HISTORICAL BACKGROUND

The alleged events which led to the issuance of the Order to Show Cause took place primarily in 1941 and 1942 during World War II in Riga, Latvia. Latvia is of one of three small Baltic nations located on the eastern shore of the Baltic Sea, situated between Estonia to the north and Lithuania to the south. To the west, across the Baltic Sea, is Sweden, and to the east is the Soviet Union. Latvia has an area of 25,000 square miles. Its capital is Riga, a Baltic merchant city which originated from the Germanic-Hanseatic League in the 16th century. Latvia was a part of the Russian empire from the time of Peter the Great's defeat of the Swedish empire in the early 18th century until the collapse of the Russian empire towards the end of World War I.

After the Russian revolution and Russia's withdrawal from the War, Latvia and its two Baltic state neighbors were temporarily occupied by German forces. Thereafter, Latvia, Lithuania, and Estonia declared their independence in 1918. They remained independent nations until 1940 when they were annexed by the Soviet Union following the German-Soviet treaty of 1939. On June 22, 1941, Nazi German armed forces invaded the Baltic states, forced out the Soviet troops, and quickly drove to Leningrad where the war front stabilized. Nazi Germany then established occupation governments in Latvia and the other Baltic States. They remained under Nazi German rule from 1941 until the German Army was driven out of the Baltic States by the Soviet Union in 1945. Following the defeat of Germany, the Soviet Union once again annexed the three Baltic nations. The United States has never recognized the legitimacy of the Soviet annexation.¹

EVALUATION OF THE GOVERNMENT'S EXPERT WITNESS

Particularized historical background information was provided by testimony of the Government's expert witness, Dr. Raul Hilberg, Ph.D.² Dr. Hilberg is a noted author and historian in areas which comprehend the nature of Nazi German military movement and Nazi policies and their implementation in the Eastern occupied territories, including the organization of German police units and their relationship to the local indigenous Latvian police groups. Dr. Hilberg's expertise is based upon his extensive study of captured Nazi documents and other sources on wartime activities, and incorporates his research and analysis of the Nazi German persecution of Jews, communists, and its other political enemies. In support of Dr. Hilberg's testimony, the record also contains copies of several captured Nazi documents. Chief among these is Exhibit G-28, an extensive report dated October 15, 1941, from the commander of Einsatz...