Szehinskyj v. Attorney General of the United States

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

12-13-2005

Szehinskyj v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-3710

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-3710

THEODOR SZEHINSKYJ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A07 900 159)

Submitted Under Third Circuit LAR 34.1(a)

October 27, 2005

Before: SLOVITER, FISHER, and GREENBERG, Circuit

Judges.

(Filed: December 13, 2005)

Andre Michniak

Michniak, Bezpalko & Associates

1420 Walnut Street, Suite 801

Philadelphia, PA 19102

Attorney for Petitioner

David W. Folts

U.S. Department of Justice

10th & Constitution Avenue, N.W.

OSI Suite 200

Washington, D.C. 20530

William H. Kenety V

U.S. Department of Justice

Office of Special Investigations

1001 G Street, N.W.

Washington, D.C. 20530

Attorneys for Respondent

OPINION OF THE COURT

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.

2

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.P.A. 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

3

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

1

The Holtzman amendment is codified in two places, 8 U.S.C.

§ 1182(a)(3)(E) (providing for exclusion of the listed class of aliens)

and 8 U.S.C. § 1227(a)(4)(D) (providing for removal of the same

class, incorporated by reference).

4

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 (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 (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

5

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

6

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.

7

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

2

Even the most ardent academic defenders of the use of

legislative history in statutory interpretation are quick to disavow

cherry-picking from floor speeches. See, e.g., Lawrence M. Solan,

Private Language, Public Laws: The Central Role of Legislative

Intent in Statutory Interpretation, 93 Geo. L. J. 427, 447-48 (2005)

(“[S]tray remarks from individual legislators . . . are most often not

probative of much of anything.”).

8

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 world . . . because in many cases . . . they have engaged in

persecution of people for political and other reasons.” 124 C.R.

at 31,649 (statement of Rep. Seiberling). The five dissenting

members of the committee had protested that the statute would

include many of our allies:

While the original object of this legislation was to

deal with alleged Nazis in this country, the bill as

reported applies to anyone who persecutes others

based on race, religion, national origin, or

political opinion. Would this apply to Vietnamese

who ‘persecuted’ Communists because of their

political opinion, as did many of our allies during

the Vietnam War? Would this apply to British

soldiers who ‘persecuted’ Catholics in Northern

Ireland because of their religion? Would this

apply to white South Africans or Rhodesians who

are members of or who support the present

9

governments that have allegedly persecuted

blacks because of their race? What future

situations will arise where persons working for

our friends and allies allegedly persecuted others

who are our political adversaries or enemies in

war and thereby are ineligible to enter the United

States?

H.R. Rep. 95-1452, 9th Cong., 2d Sess. at *17 (dissenting views

of Reps. Wiggins, Kastenmeier, Butler, Hyde, and Ertel).

The proposed amendment was designed to meet that

objection, and its sponsors sought to reassure opponents that the

reach of the bill would be limited to Nazis. Representative Fish

put it as follows: “There has been criticism in committee of the

bill as originally reported as being too broad, raising potential

future problems in its application. However, with the

amendment to the bill which we now consider, this provision

would be restricted in its application to those who engaged in

persecution at the direction of the Nazi government.” 124 C.R.

at 31,648 (statement of Rep. Fish). This statement makes it

clear that Representative Fish’s earlier statement, which

Szehinskyj quotes, that “our intent [is] to restrict the scope of

this bill to Nazi war criminals, as opposed to any person who

persecutes,” 124 C.R. at 31,648, is drawing a distinction

between the Nazis and other regimes, and not between some

Nazis and other Nazis. Szehinskyj baldly misrepresents the

meaning of this statement by underlining “Nazi war criminals”

and suggesting that somehow the statute distinguishes between

Nazi non-war-criminal persecutors and Nazi war-criminal

persecutors. There is nothing in the debate even hinting at a

10

distinction between those Nazis who “merely” persecuted and

those Nazis who committed “war crimes.”

In her opening statement, Representative Holtzman

described the amendment as operating “to exclude from

admission into, and to deport from the United States all aliens

who persecuted any person on the basis of race, religion,

national origin, or political opinion, under the direction of the

Nazi government of Germany . . .” 124 C.R. 31,646. This

description straightforwardly tracks the language of the statute.

Representative Holtzman then stated that the language in the

amendment was deliberately chosen to match that in the DPA.

“Let me state to my colleagues that the language of the bill is

not new. Two prior laws – the Displaced Persons Act of 1948

and the Refugee Relief Act of 1953 – contained language

prohibiting the entry into the United States of persons who

engaged in persecution on account of race, religion, or national

origin. . . . The omission of such language from current law has

hampered the Immigration Service’s efforts to act against

alleged Nazi war criminals.” Id. at 31,647. Here, and

repeatedly throughout the debate, members used terms such as

“war criminals” and “mass murderers” to refer to the Nazis, as

they sought to emphasize the importance of the issue by

recalling the brutality of the Nazi regime. Several members

invoked the horrors of the Holocaust, including Representative

Eilberg. Szehinskyj quotes the portion of Rep. Eilberg’s

statement in which Eilberg describes the Holocaust as “that

dreadful period in the history of mankind [that] should forever

serve as a tragic reminder to all civilized people of the terrible

extremes to which an entire nation can be led by a small, but

highly organized group of demented and ruthless leaders. This

11

bill addresses itself to members of that group – to the

perpetrators of the Holocaust.” 124 CR at 31,647. We have

little difficulty believing that many members were motivated to

support the bill by their desire to deport notorious war

criminals.3 But even if we thought such speculation relevant to

statutory analysis, that motivation does not imply that those

members believed that deportation of notorious war criminals

was all that the bill authorized.4 Indeed, Representative Eilberg

himself was plainly under no illusions about its broad sweep. In

the paragraphs preceding the sentence quoted by Szehinskyj,

Representative Eilberg explains exactly what the bill will do:

“Mr. Speaker, the purpose of this bill . . . is to prevent the entry

into, as well as facilitate the deportation from, the United States

of aliens who have engaged in persecution based on race,

religion, national origin or political opinion under the Nazis.”

124 C.R. at 31,647.

It is evident that the term “war criminals,” as used by

Representative Holtzman and the other speakers in the debate,

is simply a rhetorical descriptor for “Nazis,” and not, as

Szehinskyj would have it, a technical legal term applying only

to those susceptible to prosecution at Nuremberg. For example,

Representative Holtzman observes that “[s]ince 1952 there has

3

There is a suggestion in the floor debates that some members

had particular alleged former Nazis in mind. See 124 C.R. at 31,649

(statements of Rep. Fish and Rep. Wiggins).

4

Nor would it help Szehinskyj, unless we thought that what

any particular members believed the bill authorized determines what

the bill in fact authorized. And we do not.

12

been no provision in our regular immigration law to exclude or

deport Nazi war criminals who persecuted people for racial,

religious, or other reasons,” and describes the bill as intended to

“close this loophole” by “denying sanctuary in the United States

to Nazi war criminals.” Id. at 31,647. Any suggestion that “war

criminals” has a technical meaning here that excludes simple

persecution is destroyed by Representative Holtzman’s next

sentence: “The bill includes an amendment limiting the

applicability of H.R. 12509, as reported out of the Committee on

the Judiciary, to persons who engaged in persecution under the

Nazis.” Id. This statement makes three interpretive points

crystal clear, all of which vitiate Szehinskyj’s argument. First,

Representative Holtzman clearly believes that the amendment

will apply to “persons who engaged in persecution under the

Nazis.” Therefore, second, either she is using “war criminals”

synonymously with “persons who engaged in persecution under

the Nazis,”or she is explicitly stating that the coverage of the

proposed language extends beyond just “war criminals.” 5 Third,

she is reiterating – as speakers do throughout the debate – that

the “limitation” in the amendment’s coverage is limitation to

Nazis as opposed to members of other regimes. This is in sharp

contrast to Szehinskyj’s contention that there was some

contemplated distinction between run-of-the-mill Nazi

persecutors (not covered) and higher-up Nazi “war criminals”

(covered).

5

As Representative Eilberg appears to do. See 124 C.R. at 647

(statement of Rep. Eilberg) (referring to the amendment as covering

“war atrocities and other acts of persecution”).

13

Szehinskyj has conflated the problem which prompted

the legislature to act with the action the legislature took. No

doubt some members voted for the bill in order to root out full-

blown Nazi war criminals hiding in the United States. But the

bill they enacted as law does not restrict its coverage to war

criminals. It covers all those who assisted in persecution. It is

simply not for us to speculate about individual legislators’ views

about what they thought would happen once the bill became

law, and still less is it for us to rewrite a duly enacted law on the

basis of our speculations about those views. Among the most

common rhetorical devices in politics is the repeated invocation

of an extreme example of a given problem as a justification for

legislation addressing that problem that, when enacted, sweeps

far more broadly than would be necessary to target just that

extreme example. The tenor of this floor debate is unremarkable

in that respect, and will be familiar to anyone who has spent

time in legislatures. The bill’s sponsors invoked the problem of

“Nazi war criminals” living in the United States in order to win

passage of a bill excluding not just “war criminals,” but a far

broader class of people.

Nor does it appear that members were particularly

concerned about overbreadth once language was inserted

specifying that the bill would apply only to Nazis. The only

overbreadth concern with respect to Germans – a concern

Szehinskyj asks us to read into the statute – is raised by

Representative Seiberling:

In a certain sense, the entire population of

Germany, except for the resistance, participated in

the persecution of Jews and others in Germany

14

under the Nazi regime. I assume it is not the

intention to include all those who did not actively

oppose the German Nazi regime actions within

the scope of this language; is that correct?

Id. at 31,649. Representative Holtzman replied: “[T]he bill is

intended to cover active participation and not mere acquiescence

by the population as a whole.” Id. This is the only distinction

between classes of Germans found anywhere in the debate. And

it is of no use to Szehinskyj, because Szehinskyj, who worked

as a prison guard at a concentration camp, went far beyond

“mere acquiescence by the population as a whole.” 6 And this is

not Szehinskyj’s contention in any case. He does not deny that

he has been adjudicated to have “actively participated” in Nazi

persecution; he simply argues that his participation was “mere”

persecution, and not “war crimes.” Whatever difference that

distinction may make in other arenas, it has no application to the

Holtzman Amendment.

V.

To the extent that the Sixth Circuit’s decision in

Petkiewytsch v. INS, 945 F.2d 871 (6th Cir. 1991), remains good

law, we reject the Sixth Circuit’s approach. In Petkiewytsch, the

court drew a distinction between the language enacted by

6

Accord United States v. Reimer, 356 F.3d 456, 459 (2d Cir.

2004); United States v. Tittjung, 235 F.3d 330, 341 (7th Cir. 2000);

Tittjung v. Reno, 199 F.3d 393, 398 (7th Cir. 2000); United States v.

Breyer, 41 F.3d 884, 890 (3d Cir. 1994).

15

Congress and the “purpose” the court saw as indicated by the

floor debate and the committee report. The court found two

respects in which that apparent purpose was in direct conflict

with the language of the statute. First, while the statute by its

plain terms covers all those who “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 (3)(E), the court discerned a “purpose to require active

participation in persecution going beyond ‘assistance.’” 945

F.2d at 880. The Petkiewytsch court, in other words, deleted the

term “assisted” from the statute. It took this step on the basis of

the floor debate and the committee report, which stated that

“[t]he purpose of the bill is to exclude from admission into the

United States aliens who have persecuted any person on the

basis of race, religion, national origin, or political opinion, and

to facilitate the deportation of such aliens who have been

admitted to the United States.” H.R. Rep. 95-1452, 95th Cong.,

2d Sess., at 1. The court reasoned that because the committee

statement said “persecuted” rather than “assisted in

persecution,” the statute, which did say “assisted,” didn’t really

mean it.7

Second, the court, as Szehinskyj does here, counted up

the number of times the term “war criminals” was used in the

floor debates. Tallying nineteen instances (as compared to

7

The court did not address the other verbs found in the statute

but not the committee statement, namely “ordered,” “incited,” and

“otherwise participated.” Compare 8 U.S.C. § 1182 (3)(E) with H.R.

Rep. 95-1452 at 1.

16

Szehinskyj’s modest “at least eleven”), the court concluded that

the Holtzman Amendment had the “purpose of reaching war

criminals,” 945 F.2d at 880, and that “the class sought to be

made deportable” by the amendment was “[people] who

engaged in war crimes.” Id. at 881. Because Petkiewytsch only

“assisted” in persecution and did not take an “active role,” and

because what he did “just does not fit the description of a ‘Nazi

war criminal,’” id., the court held that the Holtzman Amendment

did not cover Petkiewytsch.

This Court cannot countenance such an extraordinary act

of judicial reformation of duly enacted legislation. The

Petkiewytsch court disregarded the plain language of a statute

passed by Congress, presented to the President, and signed into

law. The court inferred a congressional purpose quite at odds

with the language of the statute, on the basis of snippets of floor

debate involving only eight out of 535 members of Congress,

and snippets of a committee report which was neither voted on,

nor presented, nor signed, which was not endorsed by the full

committee, and which may or may not have even been read by

the members who voted on the bill itself. Faced with such a

conflict,8 there can be no doubt about the interpretation that the

8

Assuming a genuine conflict, that is, Petkiewytsch is wrong.

But we think Petkiewytsch is doubly wrong, because, as explained

above, our reading of the legislative history reveals no such conflict.

Five members of the committee dissented from the committee report

on the grounds that in their view the bill would cover too many

people, see H.R. Rep. 95-1452, 95th Cong., 2d Sess., at *17

(dissenting views of Reps. Wiggins, Kastenmeier, Butler, Hyde, and

Ertel); the invocations of “Nazi war criminals” in the floor debate are

17

courts must enforce. Where floor speeches and statutory

language collide, the floor speeches must give way: Congress’s

constitutional voice is the text of the statutes it enacts.

The Sixth Circuit itself appears to have been

uncomfortable with the reasoning in Petkiewytsch, and in

Hammer v. INS, 195 F.3d 836 (6th Cir. 1999), the court took

some pains to limit Petkiewytsch and disavow its approach. In

Hammer, the court held that the wartime activities of an SS

prison guard subjected him to removal under the Holtzman

Amendment.9 Petkiewytsch was not to the contrary, the court

declared; rather, it “appears to stand for the proposition that

some forms of ‘assistance’ to the Nazi regime . . . may be too

attenuated to be considered ‘under the direction of, or in

association with’ the Nazi government.” Id. at 844. This

“attenuation” theory is nowhere found in Petkiewytsch, but some

alternative reading of the case had to be discovered in order to

square Petkiewytsch with the language of the statute: “We do

not believe that Petkiewytsch compels the conclusion that

‘assistance’ to the Nazi regime can never be sufficient for

deportation under the Holzman Amendment, because such an

interpretation would be squarely at odds with the text of the

statute.” Id.

obviously rhetorical; and the debate itself was triggered by concerns

that the amendment might reach non-Nazis, not that it might reach

non-war criminal Nazis.

9

It would thus appear that had Szehinskyj’s case arisen in the

Sixth Circuit, Hammer and not Petkiewytsch would control, and the

result would be the same.

18

We agree with the Hammer court that the text of a statute

controls our interpretation of it. The Holzman Amendment

means what it says, and what it says is that Szehinskyj is

deportable if he assisted in Nazi persecution. In so holding we

are in agreement with other Circuits that have faced this

question. See, e.g., Dailide v. United States Att’y. Gen., 387

F.3d 1335, 1344 (11th Cir. 2004) (“[A] plain reading of the

Holtzman Amendment reveals that an individual’s assistance, or

some other form of participation in the persecution of any

person, would be sufficient [for removal]”); Tittjung v. Reno,

199 F.3d 393, 398-99 (7th Cir. 1999) (“[T]his Court has

consistently held that Nazi concentration camp guards assisted

in persecution. . . . [Such conduct] falls squarely within the

meaning of the Holtzman Amendment.”).

VI.

Because Szehinskyj has been fairly adjudicated to have

assisted in Nazi persecution under a statute whose provisions are

identical to those of the Holzman Amendment, he is estopped

from relitigating that issue in these removal proceedings.

Accordingly we will deny the petition for review.

19