Amicus Curiae Brief — Schmidt v. United States

(S)

9)

No. 91-87

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

MICHAEL SCHMIDT.

Pe titioner.

V.

UNITED STATES,

Respon den t -

On Petition For Writ of Certiorari to the

United States Court of Appeals of the Seventh Circuit

AMICUS CURIAE OF

THE PARISH COUNCIL OF

OUR LADY OF LOURDES CATHOLIC CHURCH,

THE DANUBE-SWABIAN ASSOCIATION, USA, INC.,

THE TRICENTENNIAL FOUNDATION,

THE AMERICAN AID SOCIETY OF

GERMAN DESCENDANTS, AND THE

INSTITUTE FOR GERMAN-AMERICAN RELATIONS

(SUPPORTING PETITIONER)

nr

JAMES VICTOR Voss, Esa.

(Counsel of Record)

MEYER, Unkovic & Scori

1300 Oliver Building

Pittsburgh, PA 15222

Telephone: 412/456-2800

PETER N. JANSSON, ESQ

Jansson & Shupe, Ltd.

245 Main Street

Racine, WI 53403

Telephone: 414/632-6900

Attorneys for the Amici Curiae

Case No. 91-87

IN THE UNITED STATES SUPREME COURT

1991-92 Term

MICHAEL SCHMIDT, Petitioner-Defendant

vs.

UNITED STATES, Respondent-Plaintiff

MOTION FOR LEAVE TO FILE

I OR OUT-OF-TIM LING

The Parish Council of Our Lady of

Lourdes Catholic Church, Milwaukee, WI,

the Danube-Swabian Association, USA, Inc.,

Warren, MI, the Tricentennial Foundation,

Sepulveda, CA, the American Aid Society of

German Descendants, Chicago, IL, and the

Institute for German-American Relations,

Pittsburgh, PA, acting through counsel,

and praying that this Court waive the time

requirements of Rule 36.2 for the filing

of this Motion, hereby request leave of

«he

this Court to file a brief as amici curiae

in the above-entitled appeal. Further,

leave of Court for out-of-time filing is

respectfully requested.

As required by Rule 36.2, the pro-

posed brief accompanies this motion.

The amici curiae, as set forth fur-

ther in the brief itself, are groups of

American citizens deeply concerned about

an increasing, institutionalized denial of

citizens' rights by the Office of Special

Investigations (OSI) of the United States

Justice Department's Criminal Division,

particularly in recent denaturalization

and deportation proceedings.

The amici curiae view Schmidt's peti-

tion to the Supreme Court as very impor-

tant because the OSI's disregard for

Schmidt's rights, as reflected in the

OSI's arguments against him, typifies a

|

a3a

dangerous new tack in OSI prosecution

practices.

This amicus brief describes key

characteristics of this growing new tack,

and asks this Court for help. While

Schmidt's counsel concentrates on the

narrow question of denial of trial

(certainly important to Schmidt), the

attached brief deals more directly with

the substantive issues raised by the OSI's

current efforts against many citizens:

-use of mere guard-status as grounds

for a finding of "persecution";

-persistent misapplication of this

Court's Fedorenko decision in an

effort to find a per se rule which

this Court never intended; and

-attempts to strip away knowledge

and intent as elements of "persecu-

tion," even in the absence of active

wrongful conduct.

aie

These issues are relevant to disposi-

tion of the case, just as they were

relevant in disposition of the just-issued

Sixth Circuit case of Petkiewytsch v. INS,

decided September 30, i991. Unlike the

briefs of the parties in the instant case,

the attached amicus brief cites and

applies the very thorough Petkiewytsch

decision. Petkiewytsch appears to be the

most thorough judicial analysis to date o:

precisely the substantive questions impor-

tant to Schmidt's appeal.

The amici curiae sought consent of

both parties. Consent was granted by

Schmidt, after refusal by his counsel.

The OSI refused its consent, just as it

did earlier when requested to consent to

proposed filing of an amicus brief with

the Seventh Circuit.

This brief would have been prepared

~s

and filed earlier had the attorneys ear-

lier been aware of the Seventh Circuit's

denial of rehearing. The brief was filed

promptly when this fact became known and

the amici requested that this brief be

filed. .

Respectfully Submitted,

(a / Vyaa

Meyer, Unkovic & Scott

1300 Oliver Building

Pittsburgh, PA 15222

Telephone: 412/456-2800

meyer Victor Voss, Esq.

Peter N. Jansson, Esq.

Jansson & Shupe, Ltd.

245 Main Street

Racine, WI 53403

Telephone: 414/632-6900

eS ae

Case No. 91-87

IN THE UNITED STATES SUPREME COURT

1991-92 Term

MICHAEL SCHMIDT, Petitioner-Defendant

vs.

UNITED STATES, Respondent-Plaintiff

On Writ of Certiorari to the United States

Court of Appeals of the Seventh Circuit

AMICUS CURIAE BRIEF OF

THE PARISH COUNCIL

OF OUR LADY OF LOURDES CATHOLIC CHURCH,

THE DANUBE-SWABIAN ASSOCIATION, USA, INC.

THE TRICENTENNIAL FOUNDATION,

THE AMERICAN AID SOCIETY OF

GERMAN DESCENDANTS, AND THE

INSTITUTE FOR GERMAN-AMERICAN RELATIONS

(Supporting Michael Schmidt)

James Victor Voss, Esq.

Meyer, Unkovic & Scott

1300 Oliver Building

Pittsburgh, PA 15222

Telephone: 412/456-2800

Peter N. Jansson, Esq.

Jansson & Shupe, Ltd.

245 Main Street

Racine, WI 53403

Telephone: 414/632-6900

Attorneys for the Amici Curiae

ee

TABLE OF CONTENTS Page

Table of Authorities ........ i

Interest of the Amici Curiae .....1

Argument .«.«+«-e«eeeeese eee e 8

Mere Status As a Guard Is

Insufficient As Grounds For

a Holding of Assistance In

Persecution Because of Race,

Religion, National Origin or

POLACSZGGL GOAMAOM. «© oe ew ew ew ew ew ew ee DB

The Per Se Rule Urged by the

OSI Is Not Found in the

Fedorenko Decision. .....++.+.7

Knowledge Is an Essential Element

of Persecution: For Race, Religion,

National Origin or Political

Gpameeis ss ete wwe ww we ew lw el UG

The Lower Court Decisions in the

Instant Case Allow the Practice

of Guilt By Association. ...... 13

Summary of Argument. ......... 15

ar ee ee ee ee

Appendix (Amici Curiae Letters). ... 19

TABLE OF AUTHORITIES

Petkiewytsch v. INS

Decided September 30, 1991

Sixth Circuit Court of Appeals

_ F2d

Decision Attached

Fedorenko v. United States

United States Supreme Court

(1981)

449 US 490

66 L Ed 2d 686

303 & Ce 737.

Kulle v. INS

7th Circuit Court of mpneaete

825 F2d 1188 . ;

ST _O E E

The amici curiae are groups of Amer-

ican citizens deeply concerned about an

increasing, institutionalized denial of

citizens' rights by the Office of Special

Investigations (OSI) of the United States

Justice Department's Criminal Division,

particularly in recent denaturalization

and deportation proceedings.

Michael Schmidt is a long-time Ameri-

can citizen who is innocent of involvement

in Nazi persecution by any reasonable

standard of law. The amici curiae see the

OSI's attacks against Schmidt and others,

including many friends and neighbors, as

gross perversions of the law.

The amici curiae view Schmidt's peti-

tion to the Supreme Court as critically

important because the OSI's disregard for

Schmidt's rights, as reflected in the

OSI's positions and arguments against hin,

=2-

typifies a dangerous new tack in OSI

practices. This amicus brief describes

key characteristics of this new approach,

and asks this Court to stop it.

The enormous strength and perhaps-

even-excessive motivation of the OSI's

prosecutorial machine, applied against an

aging group of low-level World War II

conscriptees who cannot begin to afford

the kinds of defense the OSI's assaults

demand, are matters of grave concern to

the amici curiae. The OSI's assaults

against Schmidt and others are assaults on

their fellow American citizens.

The amici curiae recognize the OSI's

massive strength and the lack of effective

legislative and administrative oversight

as a prescription for massive denials of

citizens' rights. They see such abuses

occurring at an accelerating pace, even as

the 1940's fall more decades into the past.

-3-

In view of the mixed signals coming

from various appeals courts and the OSI's

persistence in applying unreasonable rules

and standards, the amici curiae understand

that the intervention of this Court is

needed to bring reform to the administra-

tion of justice in an area of great and

particular importance to then.

The interest of the amici curiae is

shown further by their attached letters.

ARGUMENT

Mere Status As a Guard Is Insufficient

As Grounds For a Holding of Assistance

In Persecution Because of Race, Religion,

, tea Rs Ao (boty

Unable to find a continuing stream of

defendants who actively assisted in Nazi

persecution because of race, religion,

national origin or political opinion, the

OSI is increasingly, as in Schmidt's case,

basing its complaints against aging Ameri-

-4-

can citizens merely upon their status as

guards some 40-50 years ago -- rather than

on allegations of specific active wrongful

conduct.

The OSI's accusations against Schmidt

with respect to his service during the war

all relate to status. He is not accused

of ever hurting anyone during his time as

a guard, of ever shooting anyone or at

anyone, of ever striking or even shoving

anyone, or of ever having seen any such

things. Schmidt admitted serving as a

guard outside a walled prison, and this

alone was the basis for the summary judg-

ment against him.

The very recent unanimous decision of

the Sixth Circuit Court of Appeals in the

case of Petkiewytsch v. INS, (decided Sep-

tember 30, 1991; decision attached), is

the most thorough judicial analysis to

date of precisely the substantive ques-

a eT

-5-

tions raised in the instant appeal. Its

logic and ruling clash directly with the

Seventh Circuit decision from which

Schmidt here appeals. The Sixth Circuit's

review of legislative histories and case

law clearly compelled its decision that

mere status as a guard does not satisfy

the statutory language regarding "persecu-

tion." This Court should adopt the Sixth

Circuit's rationale on the guard-status

issue and related issues.

Like Schmidt, Petkiewytsch was a

guard against whom no accusations of

active wrongdoing were made. The Pet-

kiewytsch decision is commended to the

Court.

Turning for a moment to a procedural

issue in the instant case, the district

court ignored undisputed evidence of

admirable conduct by Schmidt and found

guilt by status on summary judgment,

-6-

denaturalizing citizen Schmidt for "assis-

ting in persecution" without even giving

him a chance to stand before a court, even

once. Summary judgment clearly denied

Schmidt an appropriate opportunity to

defend himself.

It is ironic that the Seventh Cir-

cuit, in the portion of its 2-1 majority

opinion which described the horrors of the

Third Reich, referred to "incarceration

without trial for indefinite periods of

time." Michael Schmidt, too, has been

denied a trial, despite the absence of any

specific active-conduct charge against him

and despite his long-time status as an

American citizen. Furthermore, for three

and one-half years this retired janitor

and his family have been put through hell

at the hands of our government, despite

the fact that, in the words of the Sixth

Circuit in the Petkiewytsch decision:

=Joa

"Deporting this petitioner would not

further the Holtzman Amendment and

would carry out no discernable policy

of the United States." (page 20)

This Court should overturn the deci-

sion of the Seventh Circuit in the instant

case, and stop the OSI from accusing

elderly Americans of having "assisted in

persecution" based merely on their former

status as guards.

The Per Se Rule Urged By the OSI

Is Not Found in the Fedorenko Decision.

A key part of the OSI's current

approach to condemning merely on the basis

of status is a gross misapplication of the

Supreme Court's decision in Fedorenko v.

United States, 449 US 490 (1981).

The OSI makes much of a portion of

footnote 34 of the Fedorenko decision

which states, "[T]here can be no question

that a guard who was issued a uniform and

armed with a rifle and a pistol, who was

paid a stipend and was regularly allowed

-8-

to leave the concentration camp ... fits

within the statutory language about

persons who assisted in the persecution of

civilians." When they generalize this

footnote statement, the OSI attorneys

misread it and the intent of the decision.

If the Court had intended Fedorenko

to establish the ironclad per se rule

urged by the OSI, it would not have been

put in a footnote. In fact, it is only

reasonable to read "a guard who" as the

Court's way of referring to Fedorenko in

particular. But not all guards were like

Fedorenko; Schmidt most certainly was not.

Indeed, the Supreme Court's clear

intent, as set forth later in the same

footnote, is that cases be examined on a

case-by-case basis. The Court said:

"Other cases may present more

difficult line-drawing problems but

we need decide only this case."

In its arguments against Schmidt, the

as nnn emma

-9-

OSI has contended that Fedorenko and its

progeny focus on the conduct of a typical

armed guard of prisoners at a concentra-

tion camp to hold that guard duty per se

renders a visa applicant under the DPA

ineligible for a visa. In fact, however,

the cases since Fedorenko have looked at

individual conduct, and that was just as

Fedorenko commands.

Perhaps the strict per se rule urged

by the OSI would be acceptable if applied

at a time before citizenship rights have

accrued to an individual, as in Kulle v.

INS, 825 F2d 1188 (CA7 1987). But after

rights have accrued, as in Schmidt's and

other denaturalization cases, Fedorenko

Clearly does not close the door to show-

ings of fact contrary to the OSI's expec-

tations of the typical guard.

Fedorenko was never intended as the

simplistic per se tool that OSI urges for

litt anal

-10-

use against prison and camp guards of the

World War II era. The crack in the door

was not slammed shut.

Summary judgment, as in Schmidt's

case, precludes the sort of detailed anal-

ysis which the Supreme Court calls for in

Fedorenko. See also Petkiewytsch, supra.

For that reason alone, the lower court

should be reversed in the present matter.

This Court should correct the persis-

tent misapplication of its 1981 Fedcrenko

by the OSI.

Knowledge Is an Essential Element

of Persecution For Race, Religion,

National Origin or Political Opinion.

Because of the OSI's inability to

allege active wrongful conduct, the OSI

now often finds it necessary, as in

Schmidt's case, to go to the extreme of

arguing that a person whom it could not

accuse of persecution in the form of

specific wrongful conduct need not even

alae it le

-ll-

have had concurrent knowledge of persecu-

tion because of race, religion, national

origin or political opinion.

This leads to an unusual conclusion,

to wit: A long-time American citizen who,

as an eastern European teenager of German

heritage conscripted by the Germans, did

not actively assist in Nazi persecution 50

years ago and did not have knowledge of

Nazi persecution on grounds of race,

religion, national origin or political

opinion, nonetheless must be denaturalized

by a federal court, without trial, ona

summary finding of having "advocated or

assisted in persecution on grounds of

race, religion, national origin or politi-

cal opinion."

The OSI's misreading of Fedorenko is

part of its effort to skirt the knowledge

issue. The OSI has argued that enforcing

concentration camp enslavement through

VE

-12-

service as a guard is conduct which per se

constitutes the assistance in persecution

proscribed by the DPA. This is a dramatic

overstatment of Fedorenko. In fact, that

Supreme Court decision makes it very clear

that Fedorenko knew what was going on at

the Treblinka concentration camp. He knew

there was persecution, and he knew it was

for reasons of race, religion, national

origin or political opinion. To imply

that such knowledge is unnecessary is

simply wrong. That view cannot stand

under the light of Fedorenko.

Knowledge and intent must be elements

of "assisting in persecution." The idea

of unintentional persecution is a contra-

Giction in terms. As Judge Pell said in

his dissent below,

"I cannot conceive how a person can

be rendering assistance in persecu-

tion without some showable knowledge

"

-13-

This Court should require that know-

ledge of persecution on grounds of race,

religion, national origin or political

opinion be a prerequisite to a finding of

actionable "assistance in persecution,"

certainly at least in the absence of

specific allegations of active wrongful

conduct.

The Lower Court Decisions in the

Instant Case Allow the Practice

of Guilt By Association.

The OSI attorneys accuse Michael

Schmidt of nothing specific -- but the

entire Holocaust in general, and pile on

top of that "immorality" because of the

lot that life dealt out to the man, who

never even counted himself a Nazi. It is

purely a matter of guilt by association.

Indeed, what the OSI lawyers are

doing in this matter, as can be seen

Clearly by a reading of the Amended Con-

plaint, is beneath the moral equivalent of

[a

-14-

what Schmidt is said to have done. Acting

under color of law, they are mercilessly

ruining the life of an innocent man. Like

guilty Nazis of the day (who should indeed

be denaturalized and deported under appli-

cable law), the OSI lawyers are themselves

administering blows, under color of law --

but with complete disregard for personal

guilt or innocence. Furthermore, they

appear to be doing so in the belief that

somehow they represent some higher good.

There is no specific charge of wrong-

doing against Michael Schmidt. He must

not be condemned based on guilt by assoc~

iation. Condemnation because of status is

precisely what troubles us about Nazi

atrocities.

Yet, the decision of the district

court on summary judgment, and the up-

holding of that decision by the Appeals

Court on a 2-1 vote, unless overturned,

-15-

will serve to allow the OSI's continued

practice of guilt by association.

SUMMARY OF ARGUMENT

The OSI is still engaging in efforts

to secure for itself an effective prosecu-

torial tool -- i.e., court holdings that a

person's mere status as a guard is suffi-

cient grounds for a holding of "assistance

in persecution." Such a concept is wrong

on its face, and is not supported either

by legislative history or case law.

Nevertheless, in view of decisions like

that here appealed by Schmidt, a strong

Supreme Court ruling against the concept

of guilt by mere status is desperately

needed.

The OSI argues that a per se rule on

this point is found in the 1981 Supreme

Court decision in Fedorenko. Such argu-

ment is a gross misapplication of the law.

———————oo”6h— OCCULT ee

Ee

-16-

In fact, the Fedorenko decision is direct-

ly concerned with the nature of individual

conduct, as certain subsequent cases

clearly note. But the OSI needs to be

told, and clarification is needed by the

courts.

The OSI argues, as it does against

Schmidt, that knowledge of persecution is

not an essential element of persecution

because of race, religion, national origin

or political opinion. It bases its argu-

ments on Fedorenko, a decision which

Clearly fails to support that rash conclu-

sion. Knowledge of persecution must be

clearly understood to be a prerequisite to

a finding of actionable "assistance in

persecution."

Guilt by association is contrary to

the American system of law. Court deci-

sions and government prosecutions surely

should not be based on concepts and

-17=

holdings which are tantamount to guilt by

association.

A thorough hearing and ruling on the

issues of this case by this honorable

Court are necessary to work justice for

Michael Schmidt. A hearing and ruling are

also necessary at this time to guide the

often-divided lower courts, who are faced

with the OSI's persistent arguments based

on incorrect principles. Stated very

directly, a hearing and ruling by this

Court are essential as a guide for, or

throttle on, the OSI with respect to the

handling of its ever-growing docket of

cases against aged American citizens.

ONC

The amici curiae respectfully request

that the petition of Michael Schmidt for a

hearing of his appeal be granted. They

further request that this honorable Court

|

-18-

eventually render a decision clarifying

the issues summarized above, which are of

great importance to the amici curiae and

others who love justice.

Respectfully Submitted,

James Victor Voss, Esq.

Meyer, Unkovic & Scott

1300 Oliver Building

Pittsburgh, PA 15222

Telephone: 412/456-2800

Peter N. Jansson, Esq.

Jansson & Shupe, Ltd.

245 Main Street

Racine, WI 53403

Telephone: 414/632-6900

Attorneys for the Amici Curiae

Amici Curiae Letters

Milwaukee, WI 53220 OCT, 1 isl

Our Lady of Lourdes Congregation

3722 S. 58th Street

Dear Mr. Jansson,

As a parish council we have voted to file a friend of the court brief in the

Michael Schmidt case because we fee! so strongly about the denial of rights to

ethnic German conscriptees who had the misfortune to serve as guards during

World War 0 and are not accused of ty specific wrongdoing. We believe that

they are being punished merely because of their status.

Would you be so kind as to file a brief on our behalf?

Thank you for your kind attention to this matter.

fest Counst of Ous Lady of Lourdes Congregation

OCTAUe-1991 16:52 FRO. ‘<“YSrEr To 141-8 sce7 Pa

Danube Swabian Association of the U.S.A Inc.

Berband der Bonauschwaben in den AGA, vc. B.

Sept. 29,1991

Mr. Peter N. Jansson, At<or-ey

245 Main Street,

Mezzanine Suite

Racine, WI 53403

Dear Mr. Jansson!

We, the above orcanization, wish to file a Friend of the Court Brief on behalf of

Michael Schmidt, because of the cross wrougs we see in this case and a moter of

other where our Senicr Citizens have been tarceted by the OSI. —

We would be hapry if other organizations join us in the Brief.

Kindly prepare the necessary Amicus Brief anc accept cur appreciation.

incerely

Aé2m Mece2i, President

hae oe e tie eS ae ed

Darmbe Swabian Associatica of the U.S.A. Inc.

BEST AVAILABLE COPY

es

ae Bt

Fp ett ie ete

“a Pin at ate ee

sg aril owl

rena

tee

‘Sipiiadaes

I

THE TRICENT ENNIAL FOUNDATION

Horonng Cver 200 Years of Cerman-American Achievenent

Mr. Peter Jansson, £3q.

Jansson & Shupe, Ltrs.

26€ Main Street

Racine, #1 §2203

Oct. 2, 1991

Dear Mr. Jansson,

As an organization we further the Laterests of the

Gersan-acerican comsunity, Indefinite as to asupber

of persons, of the general publis. Many cf them have

paid tke altis

p a ye price for Freedos and Dencoracy

or the Jnited States.

We Pespectfully request you to represert our

interests and to file a friend of the court orief in

the case of Michsel Schaidt, because we fael stronly

about the dental of rights to ethnic Gersans, who

had the gisfortune to serve as conscriptees and were

asaigned to guard duty during Yorid War IZ and have

not been accused of any specific wrongdoing, except

of serving on the loseing side.

Tf there is such-se-thing az justice or sorals in

our society, than we gust raise the question- wad

Morgenthau and his plan or Eisenhower, as discribed

in the Book "Other Losses" by James Bacque, after

the War --- or the Siots during the

Wer over

Dresden more zoraliy accountable or responsible than

a soldier ordered ts pull guard duty in time of Yar?

Thank you for you interest in this matter,

Sincerely,

H. W. Zderhara

8628 Onn0n Avenue, cs Angeves. Cailtomis OIMs5e15

@15 663-0805

PO. SOX 44587, Wasningion, DC, 20026-4367

Q0d 223-4817

PRad . 802

a Aid Society

of German DP astendlante

6540 Norch Milweckee Aven:e - CHICAGO, BUNOS 60671

Gecober 3, 1991

Mr. Petar 3. Janasoa, attorney

245 Main Screet,

Mezzacinse Saite

Racine, WI $3403

Dear Mr. Jansson:

We, the above orgacization, wish to file a Friend of the Courc Brief on behaif of

Michael Scheidt, becacse of the gross wrongs we see in Chis case and « aucber of

ethers where our Senior Cicizeas have been targeced by the O51.

We would be happy if other ergenizations join ws in this Brief. Kindly prepare .

che necessary Amicus Brief and sccept vur appreciation.

Bans Gebavi, President

Acaricar Ald Society of German Descendaacs

ss TOTEL FRGE

-8cz

INSTITUTE FOR

GZRMAN AMERICAN

RELATIONS (IGAR)

$349 McLane: Bead

Suse 4102

Prarga. PA 15207

Tel = (4D) Dees

FAX. 4123) 264-772

10/2/91

Peter Jansson

Jansson & Shupe, Ltc.

245 Maic St.

Racine, WI $3403

Dear Mr. Jansson,

Qur organization wishes to submit an amicus curiae brief before the

Supreme Court regarding the Michael Schmidt case, using the argument:

which we discussed.

We are aware of many cases in which the OSI is usicg just status as

a@ guard and other strained and wrongful arguments to denaturslize

asc

deport elderly Acerican citizens wNO are ethnic Germans from Easter=

Europe.

Uncil 3 ¢ays aco, we were nct aware that we cctid file such a brief

and appreciate your doing sc.

Sincerely,

(ly. Equcaie

. Dr. Marianne Bouvier

Executive Director

Institute fcr German Americas Relaticns

MB:21

RECOMMENDED FOR FULL TEXT PUBLICATION

Pursuant to Sixth Curcuit Rule 24

No. 90-3952

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LEONID PETKIEWYTSCH, 7

Petitioner,

v. Petition for Review

of a Deportation Order

IMMIGRATION AND of the Board of

NATURALIZATION SERVICE, Immigration Appeals

Respondent. |

Decided and Filed September 30, 1991

Before: MERRITT, Chief Judge; LIVELY, Senior

Circuit Judge; and HULL, Chief District Judge. °

LIVELY, Senior Circuit Judge. The question in this

case is whether a permanent resident alien who served

involuntarily as a civilian guard in a German “labor

education camp” during the period of Nazi control and

who never personally abused prisoners is subject to

deportation under the Immigration and Nationality Act of

1952, as amended, (the Act), 8 U.S.C. § 1101, et seq.

More specifically, the question arises under section

*The Honorable Thomas G. Hull, United States District Chief

Judge for the Eastern District of Tennessee, sitting by designation.

2 Petkiewytsch v. INS No. 90-3952

241(a)(19) of the Act, 8 U.S.C. § 1251(a)(19)(the

Holtzman Amendment). The Holtzman Amendment was

enacted in 1978; section 103 provides for the deportation

of any alien who, under the direction of or in association

with the Nazi government of Germany, ordered, incited,

assisted, or otherwise participated in the persecution of

any person because of race, religion, national origin, or

political opinion between March 23, 1933 and May 8,

1945. Holtzman Amendment § 103, Pub. L. No. 95-549,

92 Stat. 2065, codified at 8 U.S.C. § 1251(a)(19).

l.

The facts relating specifically to the petitioner's

background and conduct are not disputed by the parties

and consistent factual determinations were made by the

immigration judge and the Board of Immigration Appeals

(the Board).

A.

The petitioner is a 67 year old married male and a

native of Poland. The petitioner lived in Poland under

Nazi occupation until 1944. In 1944, petitioner, then age

21, fled with his family from Poland to Czechoslovakia to

avoid the consequences of battle and occupation by the

approaching Russian army. From Czechoslovakia, the

petitioner and his family were sent with other refugees to

a transit camp in Austria. After arriving in Austra, the

family was ordered by the Germans to report to the labor

exchange in Kiel, Germany. At Kiel, the family was

separated. The petitioner's parents were assigned to a

local fish cannery while the petitioner and his twin brother

were ordered to report to the Kiel-Hasse labor education

camp to serve as civilian guards. The petitioner and his

twin brother objected to the assignment but nevertheless

reported for duty. Refusing the assignment would have

subjected the petitioner to imprisonment or execution.

After reporting to the camp, the petitioner, ep

serving as a civilian guard, was issued a used uniform of a

a a Mate tl a >.

No. 90-3952 Petkiewytsch v. INS 3

Gestapo SS member and given a rifle with five rounds of

ammunition. The petitioner was instructed on how to

escort prisoners to and from work sites and how to clean

and load his rifle. His guard duties required him to act as

a perimeter guard, to escort prisoners to work sites and,

on a rotating basis, to stand guard at the entrance to a

bunker where prisoners were interrogated and sometimes

mistreated. The petitioner's penny Apes sap was to

prevent the escape of prisoners and he was under orders to

shoot an pe oa i to escape. When not on duty,

the petitioner was allowed unescorted liberty outside the

camp which he used to visit his family. petitioner

was informed that he would be imprisoned or shot if he

disobeyed orders or attempted to run away.

While serving as a civilian guard, the petitioner

witnessed frequent mistreatment of prisoners and was

aware that some executions took place. However, during

his eight-month service as a civilian guard the petitioner

never used his rifle, never struck a prisoner and never

personally inflicted any form of abuse upon prisoners

beyond impeding their escape through his presence as a

civilian guard.

At the war's conclusion, the petitioner and his twin

brother sought work at local farms. They were quickly

apprehended by the British, however, and interned for

thirty-four months as suspected war criminals. After his

internment, the petitioner was released by the British

under “category 5,” which meant that he was totally

exonerated of my wrongdoing and of all charges against

him. In March 1948, the petitioner applied to the

Preparatory Commission of the International Refugee

Organization to receive benefits as a refugee, which

would have certified him for entrance into the United

States under the Displaced Persons Act of 1948 (DPA),

Pub. L. No. 80-774, ch. 647, 62 Stat. 1009 (1948), as

amended, June 16, 1950, Pub. L. No. 81-555, ch. 262,

64 Stat. 219 (1950). However, part II of annex I to the

Constitution of the Internati Refugee Organization

(IRO), which was incorporated by reference into the DPA

4 Petkiewytsch v. INS No. 90-3952

as enacted in 1948, denied benefits to anyone who could

be shown “to have assisted the enemy in persecuting civil

poe .._." IRO Constitution, annex I, part Il

§ 2(a); DPA § 2(b). The petitioner was denied assistance

from the IRO because he had served as a guard at the

labor education camp. In 1955, the petitioner applied to

the United States Consulate in Hamburg, Germany for an

immigration visa under the Immigration and Nationality

Act, which then contained no provision denying admission

to those who had participated or assisted in Nazi

persecutions. On March 9, 1955, the petitioner was

issued an immigration visa under the Act by the American

Consulate in Hamburg, Germany, and has lived in the

United States as a permanent resident since 1955.

The administrative record contains expert testimony

regarding the system of camps established by the Nazi

regime, their purposes and their organizational control.

The most repressive Nazi camps came under the direction

the German SS, the organization established by Hitler to

suppress groups targeted on the basis of race, religion and

national origin. Concentration camps were established

prior to the war in order to intimidate and torture those

largeted groups perceived as impeding Nazi goals.

Concentration camps were used by the SS as permanent

institutions of the state and were designed as intimidation

instruments for political dissenters, opposition groups and

groups in society that the Nazi regime determined to be

unworthy of full citizenship. These camps contained

many permanent buildings, heavily concentrated inmates

and were surrounded with electric wire carrying a lethal

charge.

After the outbreak of war, sub-camps of the

concentration camps emerged, also controlled by the

German SS, which became known as the extermination

camps. Consisting of gas chambers, railroad sidings and

very little else, extermination camps such as Auschwitz,

Treblinka and Buchenwald were intended and used solely

No. 90-3952 Petkiewytsch v. INS 5

to eliminate Jews and other groups of people deemed

inferior by the Nazis.

Forced labor camps were another suv-component of

concentration camps, also primarily under the control of

the German SS. Forced labor camps were temporary

outcamps typically set up near concentration camps or

near a particular work site to permit exploitation of the

labor available from the concentration camp for economic

purposes. These camps were also fenced, but much less

extensively than concentration camps, and the fencing

typically did not contain a lethal charge.

This appeal involves a labor education camp. Labor

education camps were initially created as repositories for

foreign laborers involuntarily deported into Germany to

fill the acute labor shortage created by the massive

mobilization for wa However, the labor education

camps also quickly became used as punishment camps for

workers accused of slacking, other labor infractions or

other generalized violations of state policy, such as sexual

contact with German nationals, minor crimes, practicing

religion in a language other than German or failing to

wear a special badge designating one as Jewish or Polish.

Labor education camps involved much less security than

other camps and typically involved sentences of relatively

short duration.

At the Kiel-Hasse labor education camp there was no

fence nor any other feature of a concentration or

extermination camp and the normal period of

incarceration was fifty-six days. Physical abuses,

malnutrition and overcrowded conditions were

nevertheless prevalent and former inmates testified to

interrogations, torture and executions. Expert witnesses

testified that documents from Kiel-Hasse revealed that

guards were prohibited from beating prisoners at Kiel-

Hasse. These witnesses expressed the opinion that the

inmates experienced persecution primarily at the hand of

SS guards present at the camp and more senior Gestapo

officials rather than at the hand of civilian guards such as

6 Petkiewytsch v. INS No. 90-3952

the petitioner.

Il.

In July 1985 the United States Immigration and

Naturalization Service (INS) issued an Order to Show

Cause charging that the petitioner was deportable, among

other provisions, under section 103 of the Holtzman

Amendment, for assisting or otherwise participating in

Nazi persecution. The petitioner denied the allegations in

the show cause order material to deportation under the

Holtzman Amendment. In April 1986 an eight-day

evidentiary hearing was held before an immigration law

judge on the issue of deportability. During the hearing

the testimony of numerous witnesses was admitted,

including historians with expertise in the operation of

Nazi camps, former inmates of Kiel-Hasse, government

officials and family members of the petitioner.

In March 1987 the immigration judge issued a brief

opinion that ordered the deportation proceedings against

the petitioner terminated. The immigration judge found

that the petitioner had not personally engaged in any

persecutorial acts and that the petitioner's “wrongful

conduct, at most, was his acceptance under duress of his

duties as a civilian labor education camp guard.” Noting

the petitioner's young age at the relevant time period, the

immigration judge concluded that the petitioner “was

equally a victim of the times that he lived in... ." The

government appealed the immigration judge's opinion to

the Board.

The Board rendered a decision in May 1990 reversing

the decision of the immigration judge and ordering

deportation. After a thorough review of the evidence, the

Board agreed with the factual findings deemed critical by

the immigration judge that the petitioner's service as a

civilian guard was involuntary and that the petitioner had

not personally engaged in any acts of abuse. The Board

in fact described the petitioner as "a rather reluctant guard

who performed his duties as ordered in order to escape

No. 90-3952 Petkiewytsch v. INS 7

imprisonment or death." Unlike the immigration judge,

however, the Board found these factual determinations to

be without legal relevance in applying the =a

Amendment. The Board concl that only

“objective effect" of the petitioner's conduct conbules

(emphasis in original) and that the “objective effect" of

his service as a civilian guard was to assist the Nazis in

their persecution of those within Kiel-Hasse by preventing

their escape.

The Board found the key issue presented by the case to

be whether Kiel-Hasse was a place where persecution

occurred due to race, nationality, religion or political

Opinion, as is required for deportation under the Holtzman

Amendment. After reviewing the policies served by the

labor education camps and the practice of using the camps

as an enforcement mechanism to carry out labor decrees

directed against foreign workers deemed politically

suspect, racially unreliable or of an inferior national

origin, the Board concluded that Kiel-Hasse was a

repository for the persecution of people based on race,

nationality and political opinion. The Board further found

that persecution took place in Kiel-Hasse, not only by the

fact of involuntary confinement, but also by deprivation,

torture and executions. The Board thus concluded that the

petitioner was deportable under the Holtzman Amendment

because of his duties as a guard at a camp where persons

were persecuted based upon race, religion, national origin

or political opinion.

The petitioner has challenged the factual finding of the

Board that Kiel-Hasse was a place of persecution based

upon race, religion, national origin or political opinion.

However, the record contains evidence of deprivations,

torture and executions at Kiel-Hasse that leaves no

question but that it was a place of persecution.

Additionally, petitioner's contention that internment at

Kiel-Hasse required the commission of an act by the

inmate, and thus that the persecution in the camp was

innate

8 Petkiewytsch v. INS No. 90-3952

based upon an infraction rather than upon race, religion or

national origin is unpersuasive. While German nationals

were not immune from labor education camp

imprisonment for genuine labor—violations, the record

clearly demonstrates that the “infractions” resulting in

labor education camp imprisonment were predominantly

based upon race and nationality, such as the refusal of

Jews, Poles or other eastern workers to wear the insignia

assigned to them on their clothing. Persecution stemming

from such “infractions” must, therefore, be considered to

be based on race, religion, national origin or political

opinion. We agree with the Board's decision in this

regard.

IV.

This brings us to the principal issue presented by this

appeal: Whether the Board correctly construed the

Holtzman Amendment to require the deportation of one

who involuntarily served as a labor education camp

civilian guard to avoid imprisonment or death and who

never personally committed any acts of abuse against

prisoners.

The Holtzman Amendment was added to the Act in

1978. Section 103 of the amendment provides, in

pertinent part:

Any alien in the United States . . . shall, upon

the order of the Attorney General, be deported

who-

-_s *

(19) during the period beginning on March 23,

1933, and ending on May 8, 1945, under the

direction of, or in association with-

(A) the Nazi government of Germany,

(B) any government in any area occupied

No. 90-3952 Petkiewytsch v. INS 9

by the military forces of the Nazi government of

Germany,

(C) any government established with the

assistance or cooperation of the Nazi government

of Germany, or

(D) any government which was an ally of

the Nazi government of Germany,

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. § 1251(a)(19).

A.

Whether § 1251(a)(19) requires the result reached by

the Board is clearly a question of statutory construction.

The standard of review applicable to questions of statutory

construction was stated by the Supreme Court in INS v.

Cardoza-Fonseca, 480 U.S. 421 (1987): - ” aoe

judiciary is the final authority on issues of statutory

construction and must reject administrative constructions

which are contrary to clear congressional intent. [Citing

cases.] If a court, employing traditional tools of statutory

construction, ascertains that Congress had an intention on

the precise question at issue, that intention is the law and

must be given effect.’ " Jd. at 447-48 (quoting U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 843 n.9 (1984)). We discuss briefly the

development of the relevant legislation as a background to

our more specific treatment of the issue before the court.

B.

Congress passed the DPA in 1948 as a means of

temporarily eliminating restrictive immigration quotas and

providing relief to the vast numbers of persons displaced

by the ravages of World War II by permitting their

10 Petkiewytsch v. INS No. 90-3952

entrance into the United States for permanent residence.

As initially enacted, the DPA expressly prohibited the

issuance of a visa “to any person who is or has been a

member of, or participated in, any movement which is or

has been hostile to the United States or the form of

government of the United States.” DPA § 13, Pub. L.

No. 80-774, ch. 647, Stat. 1009, 1014 (1948). In

addition, § 2(b) of the DPA limited the application of the

DPA to those “who [were] the concern of the

International Refugee Organization" under the terms of

that organization's constitution. Congress thus

incorporated by reference the provision of annex I, part Il

of the IRO Constitution which listed the categones of

persons who were not of concern to the IRO. Such

persons were described in the IRO Constitution as

follows:

2. Any other persons who can be shown:

(a) to have assisted the enemy in persecuting

civil populations of countries, Members of the

United Nations; or

(b) to have voluntarily assisted the enemy

forces since the outbreak of the Second World War

in their operations against the United Nations. '

‘Mere continuance of normal and peaceful duties,

not performed with the specific purpose of aiding

the enemy against the Allies or against the civil

population of territory in enemy occupation shall

not be considered to constitute “voluntary

assistance”.

IRO Constitution, Chapter XXIX, annex I, part Il § 2(a)

& (b)(footnote in original).

Congress subsequently amended § 13 of the DPA in

~ 1950 to prohibit issuance of a visa “to any person who

No. 90-3952 Petkiewytsch v. INS 11

advocated or assisted in the persecution of any person

because of race, religion, or national origin... .” June

16, 1950 Amendment to DPA, Pub. L. No. 81-555, ch.

262, 64 Stat. 219, 227 (1950). Thus, as enacted in 1948

and as amended in 1950, the DPA effectively blocked

immigration to the United States of those who assisted in

persecution.

The Immigration and Nationality Act as adopted in

1952 did not proscribe issuance of visas to those who had

assisted in persecution during the war. Section 340(a) of

the Act, 8 U.S.C. § 1451(a), did provide authority to

denaturalize and revoke the citizenship of one who gained

admission to the United States either illegally, by

concealment of a material fact, or by willful

misrepresentation. Thus, one who entered the United

States under the DPA by concealing assistance or

participation in rsecution remained subject to

deportation under § 340(a) of the Act. However, because

the Act contained no restrictive provision similar to the

DPA, a person who assisted in persecution but who

entered the United States pursuant to the Act legally and

without concealment or misrepresentation was not subject

to deportation under § 340(a).

This loophole in the Act was remedied by section 103

of the 1978 Holtzman Amendment which added to the

permanent immigration laws of the United States a

provision for the deportation of aliens who participated in

Nazi-directed persecution of individuals “because of”

race, religion, national origin or political opinion. The

Holtzman Amendment thus provided an independent basis

for deporting immigrants who entered the United States

lawfully despite their participation or assistance in

persecution of civilians during the war.

wd

Although the parties briefed the case extensively and

argued it fully, their positions can be stated rather

succinctly. The petitioner contends that this is a case of

12 Petkiewytsch v. INS No. 90-3952

first impression because no court has decided that a

resident alien who has been found to have served

involuntarily as a guard in a labor education camp is

deportable under the Holtzman Amendment. He argues

that these two factors - involuntariness and guard duty in

the least restrictive type of Nazi detention camp -

demonstrate that he was not a war criminal. The

legislative history of the Holtzman Amendment makes it

clear, he asserts, that it was not intended to apply to a

person with his wartime record.

The government responds that neither of the factors

cited by the petitioner makes any difference. The cases,

meeteniats Fedorenko v. United States, 449 U.S. 490

(1981), make it clear, according to the government, that

the petitioner is deportable because Kiel-Hasse was a

“place of persecution” and the petitioner assisted in the

persecution of individuals “because of race, religion,

national origin, or political opinion.” It is enough, the

government argues, that the petitioner wore a uniform and

carried a loaded weapon and his job was to prevent the

escape of those confined and subject to persecution.

It is clear that the case is unique in at least one respect:

the immigration judge and,the Board agreed that the

petitioner acted involuntarily Yand that the record contains

no evidence that the petitioner personally abused or

mistreated any inmate. Many of the cases we have

examined contained sharply conflicting evidence of the

alien's personal participation in persecution, and

deportability often turned on a court's resolution of such

evidence. Here, although a number of former inmates of

Kiel-Hasse testified, none was able to relate an incident in

which the petitioner abused anyone.

V.

The Holtzman Amendment, although an independent

legisiative act, was designed to “establish within the

permanent U.S. immigration law a provision which . . .

appeared previously in [the DPA]." H.R. Rep. No. 95-

No. 90-3952 Petkiewytsch v. INS 13

1452, 9Sth Cong., 2d Sess. at 3, reprinted in 1978 U.S.

Code Cong. & Admin. News 4700, 4702. Thus, our

Starting point is the Supreme Court's construction of the

DPA in Fedorenko. We then examine decisions applying

the teachings of Fedorenko to cases under the Holtzman

Amendment.

A.

Fedorenko involved denaturalization proceedings against

Feodor Fedorenko. Fedorenko gained permanent

admission to the United States in 1949 under the 1948

DPA. During the war, Fedorenko, who was a Ukranian,

served in the Russian army. He was captured by the

Germans and required to serve as an armed guard at the

Nazi extermination camp, Treblinka. 449 U.S. at 494.

Fedorenko denied personal involvement in the atrocities at

Treblinka, but admitted that he followed orders by

shooting in the general direction of escaping inmates

during an uprising. /d. at 500. In his application for a

visa under the DPA, Fedorenko deliberately concealed his

service as a guard at Treblinka. /d. at 496. In 1969

Fedorenko applied for citizenship, again concealing his

service at Treblinka, and became a United States Citizen.

Id. at 497. Arguing that his service at Treblinka

constituted “assist{ance] [to] the enemy in persecuting

civil populations” under the 1948 DPA, the government

instituted a denaturalization action against Fedorenko in

1976 under section 340(a) of the Act, 8 U.S.C. § 1451(a)

for concealment of material evidence.

The Supreme Court held that Fedorenko's involuntary

service as an armed guard at Treblinka disqualified him as

a matter of law from admission to the United States under

the DPA. /d. at 514. In so ruling, the Supreme Court

specifically rejected the argument that the DPA required

the conduct constituting assistance in persecution to be

voluntary. /d. at 512. In place of interpreting the DPA

to include a voluntariness requirement, the Supreme Court

directed lower courts to focus “on whether particular

conduct can be considered assisting the persecution of

14 Petkiewytsch v. INS No. 90-3952

civilians.” Jd. at n.34 (emphasis in original). The

Supreme Court offered some assistance to lower courts in

making this difficult determination by describing a

continuum of conduct:

Thus, an individual who did no more than cut the

hair of female inmates before they were executed

cannot be found to have assisted in the persecution

of civilians. On the other hand, there can be no

question that a guard who was issued a uniform

and armed with a rifle and a pistol, who was paid

a stipend and was regularly allowed to leave the

concentration camp to visit a nearby village, and

whe admitted to shooting at escaping inmates on

orders from the commandant of the camp, fits

within the statutory language about persons who

assisted in the persecution of civilians.

Id. Having described the continuum, the Court noted that

"[o}ther cases may present more difficult line-drawing

problems... ." /d.

B.

The "line drawing” in cases under the Holtzman

Amendment has been particularly difficult and has

produced conflicting results. In Schellong v. INS, 805

F.2d 655 (7th Cir. 1986), cert. denied, 481 U.S. 1004

(1987), the court of appeals applied the Holtzman

Amendment to affirm the deportation of a person who

voluntarily joined a special commando unit of the Nazi SS

and served as an armed guard at two concentration camps.

Id. at 656-57. There was no evidence, however, that

Schellong personally engaged in physical abuse of

prisoners while serving as a guard. /d. at 657. The court

noted that it had previously held in United States v.

Kairys, 782 F.2d 1374 (7th Cir.), cert. denied, 476 U.S.

1153 (1986), that service as a guard at a concentration

~camp equaled persecution under the DPA without proof of

personal involvement in _ atrocities. Id. at 660.

Concluding that the purposes of the two statutes were

No. 90-3952 Petkiewytsch v. INS 15

identical, the court found that proof of Shellong's service

as a guard at a concentration camp established that he had

“assisted in persecution for purposes of Secticn

1251(a)(19)" and therefore was deportable. /d. at 661.

The court specifically rejected the argument that an

individual must have actively or personally yo in

persecution to be deportable under the Holtzman

Amendment as inconsistent with Fedorenko. Id. This

holding was reaffirmed in Kulle v. INS, 825 F.2d 1188

(7th Cir. 1987), cert. denied, 484 U.S. 1042 (1988).

Another court reached a different conclusion in

Laipenieks v. INS, 750 F.2d 1427 (9th Cir. 1985), a

deportation proceeding under the Holtzman Amendment

against a native of Latvia. The petitioner had served

voluntarily as a member of the Latvian Political Police, an

Organization formed to investigate and arrest individuals

who participated in Soviet atrocities against Latvian

citizens during the period of Soviet domination which

preceded Nazi occupation. /d. at 1429. Although

Laipenieks admitted slapping Soviet sympathizers taken as

prisoners, the court of appeals found that the INS failed to

establish by clear and convincing evidence that

Laipenieks' individual conduct had been motivated by the

political opinion of the prisoners. Relying on the

legislative history of the Holtzman Amendment, the court

held that deportability under § 1251(a)(19) "may only be

sustained when the evidence establishes that the individual

in question personally ordered, incited, assisted, or

otherwise participated in the persecution of individuals.”

Id. at 1431 (emphasis added). Relying on note 34 in

Fedorenko and the legislative history of the Holtzman

Amendment, the court concluded that the proper analysis

under the Holtzman Amendment was whether there was

"proof of personal active assistance or participation in

persecutorial acts... ." /d. at 1432 (emphasis added).

On the other hand, the court in Maikovskis v. INS, 773

F.2d 435 (2d Cir. 1985), cert. denied, 476 U.S. 1182

(1986), found that personal motivation was immaterial.

Maikovskis's application for admission to the United

16 Petkiewytsch v. INS No. 90-3952

States under the 1948 DPA concealed his voluntary

service as the Chief of Police in a Nazi-dominated

precinct in Latvia. Jd. at 438. In response to the death of

two Latvian police officers at the hands of Soviet partisans

in the village of Audrini, Maikovskis ordered his Latvian

police to join with German soldiers in arresting all of the

Audrini villagers, approximately 200-300 persons, and in

burning the village to the ground. /d. Maikovskis denied

involvement in the subsequent executions and murder of

almost all of the villagers. Jd. Nevertheless, his personal

participation in the persecution of civilians was clearly

established. | Maikovskis argued, however, that the

government had failed to produce evidence that his

conduct was personally motivated by the villager's

political opinion. /d. at 445. Citing to the language,

purpose and legislative history of the Holtzman

Amendment, the court of appeals held that the personal

motivation of the alien for assisting in persecution is

immaterial when it is shown that the Nazi persecution in

which the alien participated took place because of race,

religion, national origin or political opinion. Jd. at 445-

46.

Vi.

Although the Holtzman Amendment was designed to fill

a loophole in the permanent immigration law and its

language is similar to that found in the DPA, the

legislative history indicates an intention, at least in part, to

accomplish a different purpose. The DPA was designed

to provide relief to the multitude of displaced persons and

refugees in Europe after the end of World War Il. The

problem was one of immense proportions and there was

need for immediate action. These factors doubtless

account for the absence of any legislative history

addressing the provision in the 1948 DPA excluding

persons who had assisted in persecution and for the

decision merely to incorporate portions of the IRO

constitution. Thirty years later, when the Holtzman

Amendment was ted, it had become clear that some

war criminals, act perpetrators of the Holocaust and

No. 90-3952 Petkiewytsch v. INS 17

other war crimes, had entered this country under the 1952

Act. The Holtzman Amendment provi the basis for

their deportation.

A.

The Holtzman Amendment's legislative history contains

a clear and repetitive message that the amendment was

intended to deny “sanctuary in the United States to Nazi

war criminals” 124 Cong. Rec. 31,647 (1978)(statement

of Rep. Holtzman) (emphasis added), and that the “bill

applies to any person who committed war crimes under

the Nazis... .” /d. at 31,649 (emphasis added). The

specific discussion on the House floor in which

Representative Holtzman explained the purpose and

of the bill demonstrates that the focus of the bill's intent

centers on Nazi war criminals. Indeed, reference to "Nazi

war criminals” or “war criminals” is made no less than

nineteen times during the short discussion in which the

purpose and reach of the bill is explained. See 134 Cong.

Rec. 31,646-50 (1978). At one point Representative

Holtzman explained the bill as follows: “The bill as

reported here contains an amendment that limits the

language of the bill solely 10 those persons who engaged

in war crimes... ." 134 Cong. Rec. 31,647

(1978)(emphasis added). Again she stated, “[T]he bill is

intended to cover active participation and not mere

acquiescence by the population as a whole." /d. at 31,649

(emphasis added). Representative Holtzman was joined in

explaining the bill by another subcommittee member,

Represeniative Eilberg, who stated the bill's purpose:

Mr. EILBERG. [T]he purpose of this bill, which

is cosponsored by all of the members of the

Subcommittee on Immigration, Citizenship and

International Law, 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.

ee

18 Petkiewyitsch v. INS No. 90-3952

Id. at 31,647 (emphasis added). Mr. Eilberg and Ms.

Holtzman each went on to make several additional

references regarding the bill's applications to those who

engaged in war atrocities. Id. at 31,647-48.

Representative Eilberg also stated:

{T}hat dreadful period in the history of mankind

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 bill addresses itself to the members of that

group--to the perpetrators of the “Holocaust.”

Id. at 31,647 (emphasis added).

We appreciate the fact that statements in floor debate

often do not truly refiect the purpose of an act of

Congress. Nevertheless, this bill was the work of

Representative Elizabeth Holtzman, and her statement of

its purpose is entitled to careful consideration, particularly

in view of the similar statements found in the committee

report. Representative Eilberg’s siatements concerning

the intent of the subcommittee which first approved the

Holtzman Amendment is equally persuasive.

The Holtzman Amendment's purpose of reaching war

criminals is further clarified by statements in the

legislative history indicating the degree of participation in

persecution necessary to come within the Holtzman

Amendment. The statement of the Holtzman

Amendment's purpose reads:

Purpose of the Bill

The purpose of the bill is to exclude from

admission to 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 into the United States.

No. 90-3952 Petkiewytsch v. INS 19

H.R. Rep. No. 95-1452, 95th Cong., 2d Sess. at 1,

= in 1978 U.S. Code Cong. & Admin. News

4700. This language appears to require active

participation in persecution going beyond “assistance.” In

discussing the Holtzman Amendment's application, the

House Report goes on to state that “it is important to

Stress that the conduct envisioned must be of a deliberate

and severe nature and such that is condemned by civilized

governments, ..." /d. at 7, 1978 U.S. Code Cong. &

Admin. News at 4706.

B.

Fedorenko established that the DPA provision making

persons who assisted in Nazi persecutions ineligible for

immigration visas did not depend upon whether the visa

applicant had acted voluntarily. Thus, standing alone, the

fact that the petitioner in this case acted involuntarily

would not have rendered him eligible for entry into the

U.S. under the DPA. If the Holtzman Amendment is to

be given precisely the same meaning as the DPA, we

agree that involuntariness alone would not preclude

deportation under section 1251(a)(19). We need not

address the difficult question of the effect of

involuntariness, standing alone, under the Holtzman

Amendment, however, for after disposing of the

voluntariness issue, the Fedorenko court added the

frequently quoted footnote 34.

In the footnote, the Supreme Court stated that the

proper focus of a court faced with the problem of limiting

the DPA's exclusionary language only to those whom

Congress intended to exclude should be upon “whether

particular conduct can be considered assisting in the

persecution of civilians." 449 U.S. at $13 n. 34

(emphasis in original). Fedorenko was found subject to

denaturalization for several reasons. He was “a guard

who was issued a uniform and armed with a rifle and a

pistol, who was paid a stipend and was regularly allowed

to leave the concentration camp to visit a nearby village,

and who admitted to shooting at escaping inmates on

20 Petkiewytsch v. INS No. 90-3952

orders from the commandant of the camp... ." dd.

Obviously, Fedorenko's most egregious conduct was

shooting at escaping inmates. The petitioner in the

present case, Petkiewytsch, did not ever fire his rifle or

otherwise abuse or attempt to injure an inmate.

If, as the Supreme Court stated, the focus under the

DPA should be on the “particular conduct” of the

immigrant, then given the legislative history of the

Holtzman Amendment, that focus should be even more

searching under § 1251(a)(19). Although Petkiewytsch

wore a uniform and carried a rifle, the Board found that

he was at all times a reluctant civilian guard, once himself

imprisoned for failing to perform his guard duties

diligently. The camp where he served was the least

punitive of all types of Nazi camps. The Board also

found that the petitioner served under duress and that he

was told he would be shot if he attempted to escape. He

never personally engaged in acts of persecution, and was

released by the British authorities, who interned him as a

suspected war criminal, upon a finding that the charges

could not be sustained. His “particular conduct" just does

not fit the description of a “Nazi war criminal” or a

"person[ ] who engaged in war crimes,” repeatedly

described as the class sought to be made deportable by the

Holtzman Amendment.

Given all the circumstances disclosed by this record, we

do not believe that Fedorenko requires a finding that

Petkiewytsch is subject to deportation under

§ 1251(a)(19). Deporting this petitioner would not further

the goal of the Holtzman Amendment and would carry out

no discernable policy of the United States.

Vil.

In addition to seeking deportation under the Holtzman

Amendment, the Order to Show Cause alleged that the

petitioner was also subject to deportation under 8 U.S.C.

§§ 1251(a)(1) & (2). Subsection (a)(1) provides for the

deportation of one who was excludable by the law existing

No. 90-3952 Petkiewytsch v. INS 21

at the time of entry into the United States, and subsection

(a)(2) provides for the deportation of one who entered the

United States in violation of Chapter 12 of the

Immigration and Nationality Act. The Order to Show

Cause alleges that petitioner was excludable from entry

into the United States under subsection (a)(1) and that his

entry was illegal under subsection (a)(2). The gist of this

charge is that Petkiewytsch had procured documentation

for entry into the United States “by fraud or willfully

misrepresenting a material fact{,}) ..." 8 U.S.C.

§ 1182(a)(19), and thus was excludible and his entry

illegal.

The Board did not reach this charge, and the parties

have not raised it here. We agree with the Maikovsis

court that when an alien has made misrepresentations,

"the materiality of the misrepresentations is established

where the government shows that disclosure of the

concealed information probably would have led to the

discovery of facts warranting the denial of a visa." 773

F.2d at 442. In view of our conclusion that

Petkiewytsch's service for eight months as a guard at

Kiel-Hasse did not subject him to deportation, we do not

believe his failure to disclose that conduct related to a

“material fact." Furthermore, it would be hard to

conclude that the petitioner's failure to disclose his post-

war internment was a “willful[ ] misrepresentation” given

his complete exoneration by the British authorities.

The petition for review is granted and the decision of

the Board of Immigration Appeals is reversed.