Szehinskyj v. Atty. Gen. of U.S.

• Decision Date: 13 December 2005
• Docket Number: No. 04-3710.,04-3710.
• Citation: 432 F.3d 253
• Parties: Theodor SZEHINSKYJ, Petitioner v. ATTORNEY GENERAL of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 253

432 F.3d 253

Theodor SZEHINSKYJ, Petitioner v. ATTORNEY GENERAL of the United States, Respondent.

No. 04-3710.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) October 27, 2005.

Filed December 13, 2005.

Andre Michniak, Michniak, Bezpalko & Associates, Philadelphia, PA, for Petitioner.

David W. Folts, U.S. Department of Justice, Washington, D.C., William H. Kenety V, U.S. Department of Justice, Office of Special Investigations, Washington, D.C., for Respondent.

Before SLOVITER, FISHER, and GREENBERG, Circuit Judges.

FISHER, Circuit Judge.

At issue in this case is whether the statutory language "assisted in persecution" means the same thing in the Displaced Persons Act of 1948 and the Holtzman Amendment of 1978. We hold that it does.

I.

Petitioner Theodor Szehinskyj entered the United States in 1950 and was naturalized in 1958. He was denaturalized on July 24, 2000, following trial on the issue of whether he had illegally procured entry into the United States in 1950 under the Displaced Persons Act of 1948 ("DPA"), Pub.L. No. 80-774, 62 Stat. 1009, amended by Pub.L. No. 81-555, 64 Stat. 219 (1950). The DPA provided for expedited immigration to the United States following World War II, with the restriction that, inter alia, "[n]o visas shall be issued under the provisions of this Act ... to any person who advocated or assisted in the persecution of any person because of race, religion, or national origin." Pub.L. No. 81-555 § 13. In recent years, based on archival documents that became available after the collapse of the Soviet Union, the government has pursued denaturalization proceedings against a number of alleged former Nazis, on the grounds that they were ineligible for admission under the DPA because of their conduct during the war. In this case, the government charged that Szehinskyj had been a prison guard at several concentration camps and a member of the Waffen SS, a special army unit in charge of the concentration camps. The district court found that Szehinskyj had been a concentration camp guard and an SS member, and as such had assisted in persecution, and that he was therefore ineligible for entry under the DPA. United States v. Szehinskyj, 104 F.Supp.2d 480, 499 (E.D.Pa.2000).

After Szehinskyj had exhausted his appeals, see United States v. Szehinskyj, 277 F.3d 331 (3d Cir.2002), the government instituted removal proceedings under the Holtzman Amendment, Pub.L. No. 95-549, 92 Stat.2065 (1978), which provides for the exclusion and removal 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 [Nazi Germany or its allies] ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion...." 8 U.S.C. § 1182(a)(3)(E).¹

At those proceedings, the government moved to estop Szehinskyj from challenging the removal order on the grounds that the identical issue had been litigated in the district court in the denaturalization trial, and that the conditions for application of collateral estoppel had been met. The Immigration Judge ("IJ") granted the motion, and found Szehinskyj to be removable. The Board of Immigration Appeals ("BIA") affirmed.

II.

Because the BIA affirmed the IJ's ruling without opinion, we review the opinion of the IJ. Partyka v. Attorney General, 417 F.3d 408, 411 (3d Cir.2005). Application of collateral estoppel is a question of law, Nat'l R.R. Passenger Corp. v. Pa. Pub. Util. Comm'n, 342 F.3d 242, 252 (3d Cir.2003), and we exercise plenary review of the BIA's legal determinations, subject to established principles of deference. See Auguste v. Ridge, 395 F.3d 123, 144 (3d Cir.2005); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

III.

The Supreme Court has described the doctrine of collateral estoppel as follows:

[O]nce an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action that involves a party to the prior litigation.

Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). As we have recently explained:

[T]he standard requirements for collateral estoppel, more generally termed issue preclusion, [are] (1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from relitigating the issue was fully represented in the prior action.

Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 209 (3d Cir.2001) (citing Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir.1995) and Restatement (Second) of Judgments § 27 cmt. j (1982)) (internal quotation marks omitted).

The IJ held that "the factual and legal issues decided in the denaturalization trial are identical to those to be decided in the instant proceeding," and that because Szehinskyj was represented in the denaturalization trial and had a full and fair opportunity to litigate the issues presented there, collateral estoppel properly applied. At the denaturalization trial, the government "proved by `clear, unequivocal, and convincing' evidence that Szehinskyj was a member of the SS Death's Head Battalion," that "the [concentration] camps were `places of utter, devastating persecution,'" and that serving as an armed guard at a concentration camp is sufficient to establish assistance in persecution.

Szehinskyj's appeals of his denaturalization proceeding have been exhausted, so he cannot challenge those findings here. Nor does he argue that he was not adequately represented at the denaturalization trial, that the nature of his activities during World War II was not actually litigated there, or that specification of those activities was not necessary to the denaturalization decision. Instead, he contends that the issues in the two proceedings are not identical. He suggests that the statutory provision under which the government now seeks to deport him requires a different showing from that required by the statutory provision under which his citizenship was revoked. Specifically, he contends that section 13 of the DPA applies to a broader set of conduct and individuals than does the identical language of the Holtzman Amendment. The Holtzman Amendment, Szehinskyj argues, applies only to "Nazi war criminals," and thus the district court's finding that Szehinskyj "assisted in [Nazi] persecution" under the DPA should not be conclusive of the question of whether he is deportable under the Holtzman Amendment.

The Holtzman Amendment provides that any alien is deportable "who, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with [Nazi Germany or its allies] ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion." 8 U.S.C. § 1182(a)(3)(E). The relevant language, "assisted in persecution," is precisely the same in the Holtzman Amendment as in the provision of the DPA, quoted above, at issue in Szehinskyj's denaturalization trial.

Szehinskyj nonetheless quotes from floor speeches in the House of Representatives and argues that because the term "Nazi war criminal" was used "at least 11 times in the floor debate," Congress's intent was that only "war criminals" would be covered by the statutory language, and not—the words of the text notwithstanding—all those who assisted in Nazi persecution. Szehinskyj rests his argument squarely upon the House floor speeches, because his interpretation flies directly in the face of the plain language of the statutory text. He urges that the Sixth Circuit's decision in Petkiewytsch v. INS, 945 F.2d 871 (6th Cir.1991), which used the same floor speeches to reach the result Szehinskyj seeks in this Court, should be taken as judicial validation of this approach.

We reject Szehinskyj's argument for two reasons. First, the statutory language is not ambiguous, and is contrary to Szehinskyj's interpretation. Second, scrutiny of the full floor debate reveals absolutely no suggestion of the distinction Szehinskyj proposes. Szehinskyj's selective invocation of fragments of the floor debate is an object lesson in the perils of appealing to this particular kind of legislative history as a guide to statutory meaning.² This case is a perfect illustration of the well-known admonition that what individual legislators say a statute will do, and what the language of the statute provides, may be far apart indeed. The law is what Congress enacts, not what its members say on the floor. This axiom has particular force in this case, and we think it appropriate to analyze the floor debate in some detail, because we have not yet had occasion to decide the precise scope of the Holtzman Amendment.

IV.

Szehinskyj's contention that the floor debate evidences a congressional intent to cover only "war crimes" in the Holtzman Amendment is simply not borne out by examination of the record. Szehinskyj quotes several statements from Representative Holtzman, the amendment's sponsor, which he claims show that she did not intend the bill to include the same broad category of persecution as the DPA. But Szehinskyj's quotations are very selective. The distinction at issue in the floor debate is not between Nazi "persecutors" and Nazi "war criminals," but rather between Nazi persecutors and persecutors from other, non-Nazi, regimes.

The floor debate was prompted by concerns raised in committee that the language as originally proposed—language that did not limit the bill's application to actions carried out under the Nazi regime—was too broad, and would include "a goodly proportion of the heads of state of the various nations of the...