Appendix — Kalejs v. Immigration & Naturalization Service

: —

Supreme Court, U.S. |

ae a ee a

93123 2 JAN 31 19%

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

No.

October Term, 1993

KONRADS KALEJS,

Petitioner,

Vv.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Dated: January 31, 1994

Charles W. Nixon, Esq.

29 S. LaSalle St., Suite 340

Chicago, Illinois 60603

(312) 782-7450

Fax (312) 236-3833

Counsel for Petitioner,

KONRADS KALEJS

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

TABLE OF CONTENTS OF APPENDIX

Description: Page

Herein

Opinion of the Court of

Appeals for the Seventh Circuit

(November 17, 1993 APP 1

Decision of the Immigration

court ordering deportation

(November 1, 1988) APP 102

Opinion and Order of the

Board of Immigraticn Appeals

affirming (April 30, 1992) APP 193

Judgment of the Court of

Appeals (November 17, 1993) APP 394

Order of the Court of

Appeals denying rehearing

(December 30, 1993) APP 396

Order of the Court of

Appeals granting stay

(January 10, 1992) APP 398

Statutes Cited APP 400

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 92-2198

KONRADS KALEJS,

Petitioner,

Vv.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition for Review from the

Board of Immigration Appeals of the

Immigration and Naturalization Service.

No. All 655 361

Argued April 30, 1993 -- Decided

November 17, 1993

Before CUMMINGS and MANION, Circuit

Judges, and EISELE, Senior District

APP1

Judge. *

CUMMINGS, Circuit Judge. The government

seeks to deport eighty-year-old Konrads

Kalejs, an alleged Nazi collaborator who

has now lived in the United States for

thirty-four years. After Germany's defeat,

Kalejs fled to Australia. He came to the

United States in 1959 claiming to have

been a farm laborer during the war. What-

ever his real occupation then, Kalejs has

been a financial success in the United

States: he owns four homes, had assets in

excess of a million dollars in the mid-19-

80s, and was able to post a $750,000 bond

to secure his freedom while this case was

pending. The Justice Department first set

its sights on Kalejs in late 1984. But

when he was about to be nabbed, he

* The Honorable Garnett Thomas Eisele, Senior

District Judge of the Eastern District of Arkansas,

is sitting by designation.

APP2

took $350,000 in cash and fled to Canada

and Australia. When Kalejs returned to

the United States, he tried to assume a

new identity and managed to elude capture

for six months. He was fiually arrested

in Florida on April 19, 1985; government

agents expended 1,500 hours in the search.

In the more than eight years since his

arrest, Kalejs has bitterly disputed the

charges that he was an officer in a pro-

Nazi unit that killed tens of thousands of

people, and that he assisted in other

persecutions as an army officer, policeman

and concentration camp guard.

Both an immigration judge and the Board

of Immigration Appeals("BIA")--sitting in

Chicago after Kalejs was granted a change

of venue--considered the case in extraor-

dinary detail, found Kalejs' denials un-

convincing, and held that he should be

APP3

deported under 8 U.S.C. §§ 1251(a)(1)(A),

1251(a)(1)(B) and 1251(a)(4)(D).+ If he

is deported, Kalejs will return to

Australia where he retains citizenship.

We have jurisdiction to hear direct ap-

peals of BIA decisions under 8 U.S.C. §

1105a(a). Kalejs presses upon us essen-

tially three arguments: that he did not

commit war crimes, that he did not lie on

his visa application to enter the United

States (or rather, that the lies he told

were immaterial), and that prosecutors

relied on inherently untrustworthy evid-

1 The sections were previously numbered as

8 U.S.C. §§ 1251(a)(1), (2) and(19).

8 U.S.C. § 1251(a)(1)(A) provides:

Any alien who at the time of entry or adjustment

of status was within one or more of the classes of

aliens excludable by the law existing at such time

is deportable.

8 U.S.C. § 1251(a)(1)(B) provides:

Any alien who entered the United States without

inspection or at any time or place other than as

designatea by the Attorney General or is in the

United States in violation of this chapter or any

other law of the United States is deportable.

8 U.S.C. § 1251(a)(4)(D) provides:

._ Any alien described in clause (i) or (ii) of

section 1182(a)(3)(E) of this title is deportable.

See infra for the text of 8 U.S.C. § 1182(a)(3)(E).

APP4

(ere

ence -- depositions and documents salvaged

from the archives of the former Soviet

Union -- and then compounded the error by

denying him due process. We affirm the

BIA's decision in all respects.

Konrads Kalejs was born on June 26,

1913, in Riga, Latvia. He was educated as

a professional soldier and served as a

lieutenant and first lieutenant in the

Latvian military. In 1940, the Russians

overran Latvia. Kalejs salvaged his mili-

tary career by joining the conquering Red

Army, but a year later the Russians were

themselves pushed out of Latvia by the

Nazis, whose forces were driving relent-

lessly toward Russia on the eastern front.

Again Kalejs sided with the victors; he

deserted his Red Army comrades and, ac-

cording to the evidence presented here,

joined a pro-German force called the Lat-

APP5

vian Auxiliary Security Police. The unit

was also known as the Arajs Kommando after

its leader Viktors Arajs, who was con-

victed by a German court and sentenced to

life imprisonment in 1979 for committing

wartime atrocities. (Arajs died in prison)

According to the Justice Department, from

July 1941 until at least June or July of

1944, Kalejs was a company commander and

first lieutenant in the Arajs Kommando.

The Nazis' policy in Latvia (as else-

where) was to murder all Jews, Gypsies and

many Communists. After the German army

swept through an area, a mobile killing

crew would follow shortly, hoping to catch

victims unaware. These mobile killing

units were called the Einsatzgruppe or, in

Latvia, the Einsatzkommando. According to

the government's expert witness in the

case against Kalejs, Dr. Raul Hilberg, a

APP6

renowned Holocaust scholar and professor

of political science at the University of

Vermont, the Einsatzkommando assigned to

Latvia had just 170 members. The logistics

of attempting the systematic annihilation

of the 70,000 Jews in Latvia prompted the

Einsatzkommando to rely on bands of local

soldiers. The Arajs Kommando was such a

group. As a company commander, Kalejs was

one of six or seven officers who were

second in command to Arajs; he had a

hundred men or more under his direction.

Dr. Hilberg testified that according to

German documents, the Einsatzkommando with

the help of the Arajs Kommando and similar

local groups managed to murder 29,000

people (90 percent of them Jewish) before

August 10, 1941. A few months later, in

order to make room in Riga's Jewish ghetto

for the thousands of Jews whom Hitler had

APP7

srersitiiesiiiniiiaaiaaitaii iil iiciaai

shipped out of Germany, 27,800 Jews were

shot in the woods near Riga in the space

of three days. By January 1942, only 4,000

of the 70,000 Jews who were in Latvia at

the beginning of the war were still alive.

The Arajs Kommando working with the Ein-

satzkommando was responsible for more than

half of these killings.

Kalejs and his unit had two cther duties

besides killing Jews in the Riga ghetto.

Outside of Latvia (usually in Russia) the

Arajs Kommando joined the German SS in

so-called anti-partisan activity, which

was little more than a cover for arresting

and murdering civilians. In addition, the

Arajs Kommando under the leadership of

Kalejs served as guards at the Salaspils

concentration camp. The conditions there

were brutal, although Salaspils was a

labor camp whose inmates died primarily

APP8

from inhumane conditions or being shot

while trying to escape, rather than a

killing camp such as Auschwitz where the

prisoners were systematically murdered in

gas chambers. The Arajs Kommando was

charged with guarding work details and

preventing escapes at Salaspils.

The United States has the authority to

deport Nazi collaborators for assisting in

the persecution of innocents because of

their race, religion,national origin or

political opinion, 8 U.S.C. § 1182(a)(3)-

(E), and for lying about a material fact

on immigration forms, Fedorenko v. United

States, 449 U.S. 490, 506. The government

alleges that Kalejs is guilty of both. We

will deal with each accusation in turn

although the issues are married because of

course the reason former Nazis lie on

their immigration forms is that they would

APP9

Ee Se rare nD

not gain admission if they told the truth

about their war crimes. Stephen J. Massey,

Individual Responsibility for Assisting

the Nazis in Persecuting Civilians, 71

Minn. L. Rev. 97, 106 (1986). The Holtzman

Act confers on the United States the power

to deport, or keep out in the first in-

stance:

Any alien who, during the period begin-

ning on March 23, 1933, and ending on

May 8, 1945, under the direction of, or

in association with--

(I) the Nazi government of Germany,

(II) any government in any area occu-

pied by the military forces of the

Nazi government of Germany,

(III) any government established with

the assistance or cooperation of the

Nazi government of Germany, or

(IV) 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, na-

tional origin, or political opinion

* «*

8 U.S.C. § 1182(a)(3)(E).

Assigning personal responsibility in a

APP10

military regime is complex, particularly

with regard to Holocaust era crimes be-

cause the Nazis' murderous proficiency

insured there would be few witnesses. In

only a handful of these cases are there

people who can place the accused at the

scene of a specific crime with a gun in

his hand. The same is true here. The

Holtzman Amendment's non-criminal provi-

sion thus makes assistance in persecution

an independent basis for deportation, and

assistance may be inferred from the gener-

al nature of the person's role in the war;

therefore, the atrocities committed by a

unit may be attributed to the individual

based on his membership and seeming par-

ticipation. The Supreme Court suggested

in Fedorenko, for example, that an armed

guard «wt a concentration or labor camp

assisteé in persecution under the statute,

no matter that it could not be proved he

—————

committed a specific atrocity and despite

the fact that the guard acted at the di-

rection of a camp commandant. 449 U.S. at

512 n.34. As we recently said,

If the operation of [a concentration]

camp were treated as an ordinary crimi-

nal conspiracy, the armed guards, like

the lookouts for a gang of robbers,

would be deemed coconspirators, or if

not, certainly aiders and abettors of

the conspiracy; and no more should be

required to satisfy the noncriminal

provision of the Holtzman Amendment that

makes assisting in persecution a ground

for deportation.

Kairys v. Immigration and Naturalization

Service, 981 F.2d 937,943 (7th Cir. 1992),

certiorari denied, 113 S.Ct. 1832. See

also Schellong v. Immigration and Natural-

ization Service, 805 F.2d 655, 660, 662

(7th Cir. 1986), certiorari denied, 481

U.S. 1004; United States v. Kairys, 782

F.2d 1374, 1377n.3 (7th Cir. 1986), cer-

tiorari denied, 476 U.S. 1153.

According to testimen,, Kalejs was not

"merely" a guard at a concentration camp

but the commander of such guards. In addi-

tion, he was a key officer in a unit that

has been proved by eyewitness testimony

and Nazi-era documents to have killed tens

APP12

|

of thousands of innocents. The charges

levelled against Kalejs, if true, undeuwpt-

edly qualify as assistance in persecution

under the Holtzman Act. Kalejs' status as

an officer in the Arajs Kommando probably

qualifies as ordering, inciting and par-

ticipating in persecution under the Act as

well. Dr. Hilberg's expert opinion was

that, in this instance, attributing the

atrocities of the group to the individual

is logical because an officer in the Arajs

Kommando would have "as a matter of

course" participated in the slaughter.

Kalejs' primary defense, then, is to deny

membership in the Arajs Kommando. He ar-

gues that the immigration judge and BIA

relied on inherently untrustworthy evi-

dence and that, even on its own terms, the

evidence does not establish his guilt.

The government produced a number of

APP13

documents from 1941 to 1945 referring to

Konrads Kalejs as a member, company com-

mander or first lieutenant of the Arajs

Kommando. One was a form submitted to the

University of Riga on November 28,1941,

and signed by the head of the unit, Vik-

tors Arajs, that said, "First lieutenant

Konrads Kalejs has been a member of the

Latvian Auxiliary Security Police from 29

July, this year, to the present." Recall

that the Latvian Auxiliary Security Police

was the official name of the Arajs

Kommando.Another form submitted by the

deputy chief of the Kommando on November

5, 1942,provides that "First Lieutenant

Konrads Kalejs born on 26 June 1913, has

been in the service of the Latvian Securi-

ty Section since 30 July 1941 and was at

the Eastern front between 14 February 1942

and 27 April 1942." Even more compelling

is a note in Kalejs' handwriting, dated

APP14

"Riga, 15 May 1943," to the university

registrar that says, "I hereby inform you

that I am in the service of the Commander

of the Security Police and SD of Latvia--

in the Latvian Security Section as a com-

pany commander" (App. at 56). The record

in this case is strewn with similar docu-

ments including certified copies of offi-

cers' identification badges. The United

States also produced three witnesses who

testified that Kalejs was a company com-

mander and first lieutenant in the Arajs

Kommando; four witnesses placed Kalejs as

a head guard at the Saliaspils concentra-

tion camp.

Kalejs first took the Fifth Amendment at

his deportation hearing. When he decided

to testify, Kalejs explained these damning

documents by saying that, in order to

continue his studies at the university, he

APP15

ee

needed to demonstrate participation in the

German war effort. A friend helped him

procure these affidavits, petitioner main-

tains, and told him what to write. He did

not know Viktors Arajs and did not learn

the true nature of the Arajs Kommando

until the war was over. He was also utter-

ly unaware that Jews, Gypsies and Commu-

nists were being executed in mass numbers

in Latvia. As Kalejs tells it, he was

merely a student in early 1942 when he

joined a police unit of skiers and was

sent to the eastern front. Then, in late

1942, he developed an ulcer and was out of

commission for twenty-seven or twenty--

eight months, although he continued to

receive his military salary from the Ger-

mans. He continued to study and worked

part time on a farm. In 1943 he married

and lived with his parents in Riga. He was

called to report to the Latvian Legion in

APP16

|

1944 and was sent for training in late

1944 and early 1945 to Germany. At the

war's end he became police chief ina dis-

placed persons’ camp.

The immigration judge and the BIA did

not believe Kalejs' denials and neither do

we. He does not explain, for example, how

he so easily obtained affidavits identify-

ing him as not merely a member but an

officer of the Arajs Kommando, or why he

didn't simply obtain a certificate from

the unit he claimed to be a member of. It

is also incredible that the Germans would

have continued to pay the military salary

of a Latvian soldier for two-and-a-half

years while he was recuperating from an

ulcer, studying and laboring on a farm.

Kalejs claims to have had no knowledge of

the mass executions of Jews outside Riga,

APP17

|

subject had set the town abuzz at the

time. And Kalejs admitted to serving

under a general who was head of the Ein-

satzgruppe, the mobile killing unit, in

Latvia, although he later tried to dis-

tance himself from this testimony. Final-

ly, there are multiple witnesses including

other members of the Arajs Kommando who

placed Kalejs in the unit as an officer as

well as at Salaspils concentration camp.

Several of these witnesses identified

Kalejs as the man they knew from an array

of 250 photographs, a stunning indictment

given the fifty years that have passed

Since any of these people had seen the

accused. We hold, therefore, that the BIA

was amply justified in concluding that

Kalejs assisted in the persecution of

people because of their race, religion,

national origin or political beliefs with-

in the meaning of the Holtzman Act.

APP18

The second ground for deporting Kalejs

is his fraudulent statements on immigra-

tion forms. On December 3, 1958, Kalejs

appeared before an American vice consul in

Melbourne, Victoria, Australia, and signed

a statement (Swearing that he was telling

the truth) that listed his activities

Since the age of sixteen. The twenty--

fifth question on the visa application

asked for a list of residences and occupa-

tion(s). Kalejs wrote that he was a mem-

ber of the Latvian Army from 1929 to 1941,

but that from 1941 to 1944 he was a farm

laborer and lived in Nurmuiza, fTalsi,

Latvia. Petitioner admits in his brief

that this information was false or at

least incomplete but makes the extraordi-

nary argument that there was not space on

the form to give an accurate description.

Even Kalejs admits that he received a

military salary throughout the war; he

APP19

could have said "soldier" or "military" or

"army" in as little space as "farm labor-

er." And given our conclusion that Kalejs

was actually an officer in a brutal pro-

Nazi military unit, the description "farm

laborer" was not even a partially accurate

description of Kalejs' activities during

the war. The real reason Kalejs decided

to lie, of course, was not an absence of

space on the visa application--after all,

he also had a personal interview with

American consular officials during which

he could have given a more expansive and

accurate representation of his war years--

but the fear that he would not be allowed

to enter the United States if his true

involvement were known. Kalejs admitted as

much in a 1984 deposition taken before he

had obtained counsel or attempted to flee

from American authorities—and deportation

hearings.

APP20

The government may deport or exclude

"any alien who, by fraud or wilfully mis-

representing a material fact, seeks to

procure (or has sought to procure or has

procured) a visa, other documentation, or

entry into the United States * * *," g

U.S.C. § 1182(a)(6)(C)(i). This statute

requires that the government prove by

clear and convincing evidence four things:

(1) the person misrepresented or concealed

some fact; (2) the person did so willful-

ly; (3) the fact was material; and (4) the

misrepresentation resulted in the person

obtaining a visa, documentation or entry

into this country. Kungys_v. United

States, 485 U.S. 759, 767. There is no

question in this case that Kalejs' visa

applications violated prongs one and two;

that is, Kalejs misrepresented facts and

he did this willingly. In fact, Kalejs

admitted as much on two occasions. The

APP21

ny

issue,then, is whether petitioner's lies

were material and whether they resulted in

his acquisition of the U.S. visa. Under

Kungys, a false statement is material if

it had a natural tendency to influence the

decisions of the Immigration and Natural-

ization Service. Id. at 772. Once materi-

ality is proved by clear and convincing

evidence, the government is deemed to have

established a rebuttable presumption that

the person got his visa because of the

misrepresentation. The accused may rebut

the presumption by showing through a pre-

ponderance of the evidence that the statu-

tory requirement for admission was met

regardless of the falsehood. Id. at 777.

This is most definitely not a "but for"

analysis,according to the Court; that is,

the government need not establish that

"but for" the misrepresentation, the per-

son would have been denied entry. Id. at

APP22

|

777-779. Obviously, since materiality has

been defined as the tendency to influence

immigration officials, it is intertwined

with the question of whether the person

obtained a visa because of the misrepre-

sentation. In essence, the materiality

requirement is designed to exclude trivial

or irrelevant misstatements and the ob-

taining or procuring requirement is de-

Signed to measure how heavily officials

relied on the falsehood.

Kalejs argues that Kungys does not apply

to him because that decision was not ren-

dered until all the evidence was submitted

in his case. This is not correct. Kunays

was actually decided on May 2, 1988, three

months before Kalejs began his defense.

Even so, Kungys would apply. Petitioner

relies on Allen v. Hardy, 478 U.S. 255,

for the proposition that for him to be

APF’23

|

bound by the new rule of law enunciated in

Kungys would be unjust. But Allen was a

criminal case in which anew constitutional

rule was announced; the instant case is a

Civil proceeding in wr.<h a_ statutory

interpretation was’ merely clarified.

Where the Supreme Court has applied a rule

of law to litigants in one case, we are

bound to apply the same rule to all others

in the civil context unless specific pro-

cedural rules or res judicata prevents it.

James B. Beam Distilling Co. v.Georgia,

111 S.Ct. 2439. Moreover, even if Kungys

did not apply to Kalejs, his misrepresen-

tations would still be material under

Chaunt v. United States, 364 U.S. 350,

355, since "facts were suppressed which,

if known, would have warranted denial of

citizenship or * * * [whose] disclosure

might have been useful in an investigation

possibly leading to the discovery of other

APP24

a N

facts warranting denial of citizenship."

When Kalejs applied to enter the United

States, consular officials had the author-

ity under 8 U.S.C. § 1182(a)(27) to ex-

clude those who "seek to enter the United

States solely, principally, or incidental-

ly to engage in activities which would be

prejudicial to the public interest, or

endanger the welfare, safety, or security

of the United States." This statute con-

ferred great discretion on consular offi-

Cials and, according to’ testimony at

Kalejs' hearing, it was frequently em-

ployed in the late 1950s to exclude those

suspected of Nazi involvement. Two former

consular officials told the immigration

judge that State Department policy in 1958

when Kalejs applied for a visa was to

explore in great depth the wartime activi-

ties of German collaborators, and anyone

APP25

a a |

with serious involvement in Nazi activity

would have had their applications denied.

If Kalejs had told the truth about any

part of his war service in the Arajs Kom-

mando, it would certainly have prompted

further inquiry--in this sense the lies

undoubtedly tended to influence the deci-

Sion of American officials to permit

Kalejs to enter the country, the test

under Kungys--and would probably have

tipped the scales entirely against admit-

ting him. This establishes a rebuttable

presumption that Kalejs would not have

been admitted to this country had he told

the truth, and Kalejs has done nothing to

refute this notion. We hold, therefore,

that Kalejs' lies on immigration documents

were material and resulted in his obtain-

ing a visa and admission to the United

States. He is thus deportable for lying

on his immigration forms, although as

APP26

noted the BIA was also justified in decid-

ing to deport Kalejs for persecuting inno-

cents.

Petitioner finally argues that we should

scrap most of the evidence against him

because it is inherently unreliable. Bs

number of witnesses were deposed in Riga

in September 1987 in what was then part of

the Soviet Union, and many Nazi-era docu-

ments were stored in Soviet-controlled

archives. Moscow recognized Latvia's

independence in September 1991 before the

Soviet Union itself dissolved, but those

events do not alter this case. According

to Kalejs, prosecutors erred in consider-

ing evidence from the Soviet Union and

then compounded their error by failing to

allow the accused to engage in sufficient

discovery so that he could prove the Sovi-

et treachery. At its heart, this is a

APP27

claim about the denial of due process.

First, we reject out of hand the overarch-

ing argument that any evidence flowing

from the Soviets is fundamentally flawed

because, as the petitioner's brief points

out, "Lenin as a founder of his country

was no George Washington" (Brief at 35).

It is true that Lenin might not have

fessed up to chopping down cherry trees,

and we do not discount the possibility

that the Soviets may have manufactured

evidence in some cases involving Nazi

collaboration to excuse their own conduct

in the war. But we have relied on evidence

from the Soviet Union before, see, e.g.,

Kairys, 783 F.2d 1374, and Kalejs has not

pointed to any reason why the Soviets

would want to implicate him personally, or

demonstrated any unusual interest in his

case by Soviet authorities. Where, as

here, the Soviet evidence is corroborated

APP28

by Western documentation, plus reliable

eyewitness testimony subject to vigorous

cross-examination, and the evidence is

credible on its own terms, we will not

discard a case against a Nazi collaborator

merely because some of the evidence origi-

nated in the Soviet Union.

More specifically, Kalejs complains that

(1) he could not interview witnesses be-

fore their depositions were taken in the

Soviet Union; (2) witnesses' previous

statements were withheld; (3) the witness-

es should have been deposed in the United

States rather than the Soviet Union; (4)

Kalejs could not attend the depositions;

(5S) witnesses were intimidated by the

Soviet prosecutors; and (6) neither

Kalejs' attorney nor United States offi-

Cials could rent cars and visit the sites

of the atrocities or examine Soviet ar-

APP29

chives. We can easily dismiss most of

these claims because there is no general

right to discovery in a deportation hear-

ing so long as the accused had reasonable

opportunity for cross-examination, as

there was here. Kulle v. Immigration and

Naturalization Service, 825 F.2d 1188,

1194 (7th Cir. 1987), certiorari denied,

484 U.S. 1042. The Federal Rules of Civil

Procedure simply do not apply, thus most

of the cases cited by Kalejs are irrele-

vant. In one instance in his brief,

Kalejs actually attempts to hold the gov-

ernment to the standards of a criminal

proceeding under Washington v. Texas, 388

U.S. 14 (Brief at 32). Such cases are

wholly inapplicable. Clearly, the stakes

of deportation hearings are great in terms

of reputations and disruptions to lives,

and we must ensure that such proceedings

do not turn into kangaroo courts. But the

APP30

hearings in this case were conducted with

eminent fairness to Kalejs.

Also, many of Kalejs' due process claims

are patently ridiculous. The depositions

were taken in the Soviet Union because the

witnesses were too old and frail to travel

to the United States. Kalejs did not at-

tend because he did not ask to attend, and

SO waived that issue even if it had merit.

The government actually did turn over to

Kalejs' counsel all witness statements it

had in its possession; those witnesses for

whom the United States did not have previ-

ous statements were by and large witnesses

called by Kalejs himself to corroborate

his case. As noted, there is no general

right to discovery in a deportation hear-

ing, but there is certainly no right to

discovery of documents that the government

does not have in its possession and is

APP31

ee

unable to obtain. Finally, the accused

has not told us and we cannot even begin

to imagine what Kalejs would hope to un-

cover by visiting the sites of atrocities

committed fifty years ago. In short,

Kalejs received ample due process. We

reject this and all other claims made by

the petitioner.

For the reasons stated above, the BIA's

decision to deport Konrads Kalejs is af-

firmed.

MANION, Circuit Judge, concurring. The

Board of Immigration Appeals determined

that Kalejs should be deported under U.S-

-C. §§ 1251(a)(1)(A), 1251(a)(1)(B) and

1251(a)(4)(D). I concur. Although I

agree with the dissent that "evidence"

generated under the watchful eye of the

Soviet dictatorship is inherently unreli-

able and has no place in an American pro-

APP32

|

ceeding, I think the untainted evidence

Supports the Board's decision. Therefore,

I agree that the Board's decision to

deport Kalejs should be affirmed.

The dissent properly recognizes the

reality of the "evil empire," brought into

full view recently by the fall of the Iron

1 The dissent, however, fails to

Curtain.

consider the highly deferential standard

by which we review Board deportation

decisions. Sivaainkaran v. I.N.S., 972

F.2d 161, 163 (7th Cir. 1992). "We must

uphold the Board's determination if it is

‘supported by reasonable, substantial, and

probative evidence on the record as a

whole,» ..'" Id.; 8 U.S.C. § 1105(a)(4).

.

The court is correct that neither Lenir

nor nis successors Stalin, Khruschev or Brezhnev

"fessed up to chopping down cherry trees.” Opn. at

12. I would add to this observation that they also

never fessed up to imposing a corrupt system on the

people they ruled, nor to maintaining that system

through intimidation, lies, and the wholesale

Slaughter of millions of people.

APP33

y

7

J

The evidence which exists independent of

any Soviet taint includes the expert tes-

timony of Dr. Raul Hilberg, set forth at

length throughout the court's opinion, and

Kalejs' own testimony concerning the Uni-

versity of Riga documents which confirm

his service in the Latvian Security Sec-

tion, also discussed at length in the

court's opinion at 8. The record must be

taken as a whole; as a whole, the tainted

Soviet depositions and documents merely

confirm the untainted evidence. The evi-

dence is, therefore, sufficient to satisfy

the deferential substantial evidence test.

The Board's decision of deportation is,

accordingly, conclusive. § 1105(a)(4). I,

therefore, concur.

EISELE, Senior District Judge, dissent-

ing.

Konrads Kalejs is now 80 years of age.

APP34

He is a native of Latvia and a naturalized

citizen of Australia. He resided in Latvia

from 1941-1944 during the German occupa-

tion. In 1959 he was admitted to the U.S.

as a permanent resident based upon his

application to the American Consulate in

Australia. He was arrested in Florida on

April 19, 1985, as a result of this depor-

tation action which was brought pursuant

to § 241(a)(1), 241(a)(2), and 241(a)(19)

of the Immigration and Naturalization Act

of 1952, as amended. 8 U.S.C. § 1251(a)-

(1), 1251(a)(2), 1251(a)(19). A final

Order of Deportation was entered on April

30, 1992. On May 22, 1992, Kalejs filed a

Petition for Review in this Court pursuant

to 8 U.S.C. § 1105(a). Such a Petition

for Review is the sole and exclusive pro-

cedure for the review of final orders of

deportation.

APP35

The record on review consists of some

twenty volumes containing almost 8,000

pages but there are only two major allega-

tions that we must deal with:

1) Whether Mr. Kalejs participated in,

or assisted in, persecution under the

Holtzman Amendment, and

2) Whether Mr. Kalejs made any wilful

misrepresentation as to a material fact

in the application he made in connection

with the issuance of his United States

visa.

The two issues are interrelated. In his

application for a visa in 1959, Mr.Kalejs

Claimed that he had been a farm laborer

during the war. Although he may have

worked from time to time on a farm during

that period, this cannot be considered a

true statement. But we need to know the

real truth in order to determine if this

APP36

falsehood constitutes a misrepresentation

of a material fact which would justify his

exclusion in 1959. It appears that if he

had stated that he had served in Latvian

military units fighting with the Germans

against the Russians, and if that repre-

sentation were true, he would not, on that

basis alone, have been excluded from entry

in 1959. And if that were the truth, then

it appears that the false statement (that

he was a farm laborer) would not alone

have been deemed material so as to pre-

clude his entry into the U.S. at that

time.?+

q The “materiality” analysis explained in

Petkiewytsch v. INS, 945 F.2d 871, 881 (6th Cir.

1991) is helpful:

We agree with the Maikovskis 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 dis-

covery 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."

APP37

eee

But the respondent contends and believes

that Mr. Kalejs participated in the perse-

cution of Jews and others and was, indeed,

a member of a "killing squad" that mur-

dered some 29,000 persons before August

10, 1941. And, more specifically, it is

also contended that Mr. Kalejs was in-

volved in the killing of 27,000 people on

November 30, 1941, and another 17,000 on

December 8, 1941. One can legitimately

ask: if the respondent INS had not be-

lieved that Kalejs participated in, or

assisted in, such persecution, would it

nevertheless have maintained that he

should be deported because of a wilful

misrepresentation of material fact on his

application for a visa? So the two issues

cannot be clinically separated in my opin-

ion. If the allegations that Mr. Kalejs

participated and assisted in persecution

cannot be sustained on this record then

APP38

eee

the basis for determining \whether the visa

application misrepresentation was material

will also be undercut.

The Amended Order to show cause con-

tained 25 allegations. The first 6 were

not seriously contested. The remaining

allegations (7-25) relate to three major

substantive issues, one of which has sev-

eral sub-parts.

The first issue was whether Mr. Kalejs'

membership or activities in an unnamed

Latvian self-defense unit at Litene in

mid-July, 1941, shortly after the invasion

of Lat- via by Germany, constituted par-

ticipation in persecution. The Immigra-

tion Judge thought not and the BIA made no

finding.

The next issue was whether Mr. Kalejs

was a member of the Arajs Kommando and, if

so, whether his activities in that unit

APP39

a i

constituted participation in persecution.

This issue had four sub-parts:

1) Concerning activities from July,

1941, until December, 1941. The IJL

stated that ". . . the evidence reflects

that the respondent signed his name to

the rolls of the Arajs Kommando in July

[1941] . . . There is no evidence of

participation or assistance beyond this

act . . . I find the government has

failed to sustain its heavy burden of

proof .. ." The BIA reversed.

2) Concerning the period from January,

1942, to November, 1942. The Immigra-

tion Judge found ". . . respondent was

a member of Arajs Kommando .. . on the

eastern front from January through fall

of 1941, . . . and that respondent as-

sisted and participated in this persecu-

tion." The BIA reversed.

APP40

3) For the year 1943. The Immigration

Judge ruled ". . . respondent was the

Company Commander of a guard unit at a

camp for Latvian Jews in Porkof, and

that members of his company participated

in the execution of 20-39 gypsies in

Porkof . . . respondent assisted in

persecution . . . in Porkof in 1943."

The BIA affirmed.

4) Dealing with Mr. Kalejs' alleged role

as a Company Commander of the external

guard unit at Salaspils and Sauriesi

concentration camps. The Immigration

Judge found ". . . respondent was a

Company Commander under the Arajs Kom-

mando and German SD of the armed exteri-

or guard unit at Salaspils and Sauriesi

é The IJ and BIA agreed that in 1943 Kalejs

acted as a company commander in the Arajs Kommando

of a guard unit at Porkov concentration camp which

guarded some 20-39 gypsies before, but not at the

time, the Nazis shot them. The sole evidence for

this finding came from the deposition of one Soviet

witness.

APP41

- - »-Respondents' positions and activi-

ties at [these camps] constituted assis-

tance and participation in persecution

. -" The BIA affirmed.

The third major issue is whether Mr.

Kalejs misrepresented to the American

Consulate his membership and activities in

connection with the Arajs Kommando and, if

so, whether such misrepresentation was

material. The Immigration Judge found

that ". . . . respondent's failure to

reveal his wartime activities when apply-

ing for his U.S. visa was a willful and

material misrepresentation." The BIA

affirmed.

The lack of congruity between the find-

ings of the IJ and the BIA on the various

issues is striking. They disagreed on all

but the following: The BIA affirmed the

IJ's ruling that Kalejs was the company

APP42

commander of a guard unit for Latvian Jews

at Porkov and "that members of his company

participated in the execution of 20-39

gypsies in Porkov." And the BIA affirmed

the IJ's finding that Kalejs was the com-

pany commander of the exterior guard unit

at Salaspils and Sauriesi concentration

camps and that his "positions and activi-

ties" at [those camps] constituted assis-

tance and participation in persecution.

Finally,the BIA affirmed the IJ's finding

that Kalejs' failure to reveal his wartime

activities in his visa application consti-

tuted a wilful and material misrepresenta-

tion.

It is the contention of the petitioner

that the proof of his participation or

assistance in persecution did not meet the

"clear and convincing" standard of proof.

He argues that the video depositions of

APP43

persons controlled by the Soviet Union

which were taken in the Latvian Soviet

Socialist Republic should not have been

admitted into evidence and, in any event,

should be disregarded in any assessment of

the factual basis for the charges against

him. He argues that the restrictions

placed upon him and his attorneys deprived

him of the opportunity to develop his

defense or to participate in meaningful

cross-examination of the Soviet controlled

witnesses. He also contends that the Sovi-

et Union placed the same restrictions upon

the U.S. Government as it did upon him,

thereby depriving the Government of any

realistic Opportunity to evaluate the

truthfulness of the Soviet controlled

witnesses upon whom it relied. He asks:

how can our government vouch for the tes-

timony of witnesses it was unable to in-

terrogate? How could it evaluate the

APP44

witnesses' testimony without having access

to their earlier written statements or

previous testimony taken years ago and

much nearer the events at issue? He ar-

gues that the testimony taken in the Sovi-

et Union, under the control of the then

Soviet Government and under the restric-

tions imposed, was inherently unreliable.

But the petitioner's contention with re-

spect to the Soviet witnesses is better

stated in his own words:

The Soviet Union did not permit the

United States to independently, private-

ly interview the Soviet witnesses, nor

for that matter to interview Soviet

witnesses at all prior to the taking of

the video taped depositions. The United

States was not permitted to visit the

Russian sites of the conduct charged; it

was not permitted to independently in-

vestigate within the Soviet Union in

efforts to find its own witnesses; it

was not permitted to visit and search

the Soviet archives; it was not permit-

ted to inspect and review the prior

written statements of the Soviet wit-

nesses that were refused to the defense.

OSI's expert witness, Dr. Hilberg was

not permitted to visit any Soviet ar-

Te

Chives. OSI's attorneys and investiga-

tors were not permitted self drive car

rentals and their visas were restricted

to Riga just as the defense attorney's.

OSI's response is parity--that OSI was

also denied the same witness statements

and investigation in the Soviet Union.

But, OSI's failure to investigate and

confirm Soviet witness reliability exac-

erbates rather than ameliorates’ the

deficiencies. The Soviet deposition

evidence adduced in this case has not

been adequately investigated by our

government. The deposition evidence is

unverified. What was produced on the

Soviet video tapes is the spoonfed cre-

ation of the KGB untested by the defense

and untested by OSI. OSI can not vouch

for the accuracy of the Soviet offered

evidence.

Kalejs' Opening Brief, pp. 33-34.

It will be helpful to review the proce-

dural background to these contentions.

After a change of venue, the case was

assigned to Immigration Judge Petrone.

The Office of Special Investigation (OSI)

moved for permission to take evidentiary

depositions in the Latvian Soviet Social-

ist Republic. Mr. Kalejs asked for copies

of all prior witnesses' statements. The

APP46

OSI agreed to provide such statements that

were in its possession in advance of the

trip to the Soviet Union. [The trouble was

that there were many acknowledged prior

statements made by the soviet witnesses

which were not in the possession of the

OSI and which were not produced by the

Soviets Mr. Kalejs also asked for site

visits and the opportunity to go into the

Soviet controlied archives where reievan

documents are allegedly maintained.” Such

opportunities were denied to the defense

It obviously would have been to the inter-

est of the defense if Mr.Kalejs could have

personally attended the taking of the

Soviet depositions. However, daue to the

o ao - Kno & es -

terms of his bond and the refusal of tne

rn

1)

D

2

=

D

ct

ry

0

ry

Soviet Government to qdisc

access to some this archival information but

only that which was supplied by the Soviet govern-

ie 7

a

ment. He was not permitted to visit the archives.

criminal charges would be placed against

him in the Soviet Union, he was, as a

practical matter, unable to attend with

his attorneys. It does not seem unreason-

able that he would be greatly concerned

that the Soviets would detain and charge

him if he attended the depositions. After

all he had deserted from the Red Army and

had admittedly fought with Latvian units

in support of the Germans against the

Soviets. So I have difficulty with the

majority's assertion that ". . . Kalejs

has not pointed to any reason why the

Soviets would want to implicate him per-

sonally or demonstrated any unusual inter-

est in his case by Soviet authorities."

If history is to play a major role in the

government's case against Mr. Kalejs, as

appears to be the situation, then one

would want not only the history of the

German Nazi's plans and actions and those

APP48

of their evil collaborators, but, also the

plans and actions of the Soviets during

the events at issue and subsequent thereto

during prosecutions of those alleged by

the Soviets to be responsible. For histo-

ry is revealing more and more as time goes

by that the evil deeds of the Soviet Union

in this area of the world were second only

to those of the Nazi regime. But I will

have more to say later about the "expert"

evidence relied upon by the government in

this case.

Basically my problems with these pro-

ceedings arise out of my belief in the

importance and efficacy of process in

reliably resolving factual issues, that

is, in establishing the truth. And with-

out first establishing the truth, we can

have no confidence in the justness of the

outcome.

APP49

If I believed that there exists in this

record a reliable evidentiary basis for

the following "facts", as quoted from the

majority opinion, that is, that such

"facts" had been reliably established,

using appropriate due process standards, I

would of course concur in that opinion:

Konrads Kalejs was born on June 26,

1913, in Riga, Latvia. He was educated

as a professional soldier and served as

a lieutenant and first lieutenant in the

Latvian military. In 1940, the Russians

overran Latvia. Kalejs salvaged his

military career by joining the conquer-

ing Red Army, but a year later the Rus-

Ssians were themselves pushed out of

Latvia by the Nazis, whose forces were

driving relentlessly toward Russia on

the eastern front. Again Kalejs sided

with the victors; he deserted his Red

Army comrades and, according to the

evidence presented here, joined a pro--

German force called the Latvian Auxilia-

ry Security Police. The unit was alleg-

edly known as the Arajs Kommando after

its leader Viktors Arajs, who was con-

victed by a German court and sentenced

to life imprisonment in 1979 for commit-

ting wartime atrocities. (Arajs died in

prison.) According to the Justice De-

partment, from July 1941 until at least

June or July of 1944, Kalejs was a com-

pany commander and first lieutenant in

APP50

the Arajs Kommando.

The Nazis' policy in Latvia (as else-

where) was to murder all Jews, Gypsies

and many Communists. After the German

Army swept through an area, a mobile

killing crew would follow shortly, hop-

ing to catch victims unaware. These

mobile killing units were called the

Einsatzgruppe or, in Latvia, the Ein-

satzkommando. According to the govern-

ment's expert witness in the case

against Kalejs, Dr.Raul Hilberg, a re-

nowned Holocaust scholar and professor

of political science at the University

of Vermont, the Einsatzkommando assigned

to Latvia had just 170 members. The

logistics of attempting the systematic

annihilation of the 70,000 Jews in Lat-

via prompted the Einsatzkommando to rely

on bands of local soldiers. The Arajs

Kommando was such a group. As a company

commander, Kalejs was one of six or

seven officers who were second in com-

mand to Arajs; he had a hundred men or

more under his direction.

Dr. Hilberg testified that according

to German documents, the Einsatzkommando

with the help of the Arajs Kommando and

Similar local groups managed to murder

29,000 people (90 percent of them Jew-

ish) before August 10, 1941. A few

months later, in order to make room in

Riga's Jewish ghetto for the thousands

of Jews whom Hitler had shipped out of

Germany, 27,800 Jews were shot in the

woods near Riga in the space of three

days. By January 1942, only 4,000 of

the 70,000 Jews who were in Latvia at

the beginning of the war were still

alive. The Arajs Kommando working with

APP51

—————EEE———eeeS

the Einsatzkommando was responsible for

more than half of these killings.

Kalejs and his unit had two other

duties besides killing Jews in the Riga

ghetto. Outside of Latvia (usually in

Russia) the Arajs Kommando joined the

German SS in so-called anti-partisan

activity, which was little more than a

cover for arresting and murdering civil-

ians. In addition, the Arajs Kommando

under the leadership of Kalejs served as

guards at the Salaspils concentration

camp. The conditions there were brutal,

although Salaspils was a labor camp

whose inmates died primarily from inhu-

mane conditions cr being shot while

trying to escape, rather than a killing

camp such as Auschwitz where the prison-

ers were systematically murdered in gas

chambers. The Arajs Kommando was charged

with guarding work details and prevent-

ing escapes at Salaspils.

The horror of the Holocaust and certain

accepted historical facts can create a

cloud, or an inertial wave, that can en-

gulf the innocent as well as the guilty.*

And the circumstance that there is no

statute of limitations in cases of this

. This is certainly not to suggest that Mr.

Kalejs is innocent, or, for that matter, guilty.

It is to emphasize the need for cautious objectivi-

ty which, although always important, is doubly so

in these emotional circumstances.

APP52

type--and most would agree, properly so--

Should not make us close our eyes to some

of the problems with which such limitation

rules are intended to deal: staleness,

loss of memory, the death of witnesses and

the disappearance of documentary and other

evidence. Frustrations arising out of the

difficulties experienced in bringing evil

persons to justice some 50 years after

their crimes may dull concerns for the due

process requirements of our law. And when

the vehicle for the inquiry into a per-

son's alleged participation im persecutior

during the early 1940s is a statute, such

as the Holtzman Amendment, one must guard

against the tendency to expand that "net"

beyond the ordinary and natural meaning o

the language employed.

So just as I am concerned about the

reliability of the factual findings stated

4

by the majority, I am also not confident

that the majority has correctly defined

the reach of the Holtzman Amendment and

particularly the phrase "assisted or oth-

erwise participate in the persecution of

any person because of race, religion,

national origin or political opinion."

The majority states:

Assigning personal responsibility in

a military regime is complex, particu-

larly with regard to Holocaust era

crimes because the Nazi's murderous

proficiency insured there would be few

witnesses. In only a handful of these

cases are there people who can place the

accused at the scene of a specific crime

with a gun in his hand. The same is

true here. The Holtzman Amendment's

non-criminal provision thus makes assis-

tance in persecution an independent

basis for deportation, and assistance

may be inferred from the general nature

of the person's role in the war; there-

fore, the atrocities committed by a unit

may be attributed to the individual

based on his membership and seeming

participation.

"Assistance" can only take us so far. It

is equivalent to "aid and abet." Both to

APP54

"participate in persecution" and to "as-

Sist in persecution" should require acts

and conduct coupled with the pertinent

culpable state of mind. [It is doubtful

that a deportation statute could be writ-

ten, constitutionally, to omit either of

these requirements. In any event, the

Holtzman Amendment, in my opinion, re-

quires both. But, of course, these re-

quirements may be established Dy circum-

Stantial, as well as direct, evidence.

Even so, I do not believe that "atrocities

committed by a unit may be attributed to

the individual based [solely] on his mem-

bership and seeming participation."

I agree with the majority's citation of

the language in Kairys v. INS, 981 F.2d

113 S.Ct. 1832 (1993), analogizing the

provisions of the Holtzman Amendment to

APP55

ee

the requirements of an "ordinary criminal

conspiracy." And we know that co-conspir-

ators must have knowledge of the illegal

purposes of the conspiracy and act in some

way, however minor, to help the conspiracy

succeed.

So I disagree with Mr. Stephen Massey's

conclusion in his article "Individual

Responsibility for Assisting the Nazis in

Persecuting Civilians," 71 Minn. Law Re-

view 97, 169 (1986), cited by the majori-

ty, in which he argues that persons assist

in persecution if they personally partici-

pated in persecution or "knowingly and

more than minimally contributed to a group

that persecuted civilians." Mr. Massey

does not agree with Laipenieks v. INS, 750

F.2d 1427 (9th Cir. 1985) requiring "per-

sonal active assistance or participation."

APP56

One of the more complete discussions of

the issue will be found in Petkiewytsch v.

INS, 945 F.2d 871, 876-881 (6th Cir. 1991)

where some very different "line drawing"

by the Seventh Circuit and the other Cir-

cuits is described:

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 107 S.Ct. 1624, 95 L.Ed.2d

199(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. Id. 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, 106 S.Ct.

2258, 90 L.Ed.2d 703(1986), that service

as a guard at a concentration camp

equaled persecution under the DPA [Dis-

placed Persons Act] without proof of

personal involvement in atrocities. Id.

at 660. Concluding that the purposes of

the two statutes were {26] identical,

the court found that proof of

Schellong's service as a guard at a

APP57

aaa eet nae enaae eee

| concentration camp established that he

had “assisted in persecution for purpos-

es of Section 1251(a)(19)" and therefore

was deportable. Id. at 661. The court

specifically rejected the argument that

an individual must have actively or

personally participated in persecution

to be deportable under the Holtzman

Amendment as inconsistent with Fedoren-

ko. Id. This holding was reaffirmed in

Kulle v. INS, 825 F.2d 1188 (7th Cir.

\ 1987), cert. denied, 484 U.S. 1042, 108

S.Ct. 773, 98 L.Ed.2d 860 (1988).

Another court reached a different con-

clusion in Laipenieks v. INS, 750 F.2d

1427 (9th Cir.1985), a deportation pro-

ceeding under the Holtzman Amendment

against a native of Latvia. The peti-

tioner had served voluntarily as a mem-

ber of the Latvian Political Police, an

organization formed to investigate and

arrest individuals who participated in

Soviet atrocities against Latvian citi-

zens during the period of Soviet domina-

tion which preceded Nazi occupation, Id.

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 Laip-

enieks' individual conduct had been

motivated by the political opinion of

the prisoners. Relying on the legisla-

tive 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 or-

dered, incited, assisted, or otherwise

participated in the persecution of indi-

viduals." Id. at 1431 (emphasis added).

APP58

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 partic-

ipation in persecutorial acts ..." Id.

at 1432 (emphasis added).

The opinion then goes on to explain the

background of the Holtzman Amendment and

its important legislative history:

Although the Holtzman Amendment was

designed to fill a loophole in the per-

manent immigration law and its language

is Similar to that found in the DPA, the

legislative history indicates an inten-

tion, 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 II. rhe

problem was one of immense proportions

and there was need for immediate action.

These factors doubtless account for the

absence of any legislative history ad-

dressing the provision in the 1948 DPA

excluding persons who had assisted in

persecution and for the decision merely

to incorporate portions of the IRO con-

stitution. Thirty years later, when the

Holtzman Amendment was adopted, it had

become clear that some war criminals,

actual perpetrators of the Holocaust and

other war crimes, had entered this coun-

try under the 1952 Act. The Holtzman

Amendment provided the basis for their

ria

deportation.

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. Holtz-

man) (emphasis added), and that the

"bill applies to any person who commit-

ted war crimes under the Nazis .. ."

id. at 31,649 (emphasis added). The

specific discussion on the House floor

in which Representative Holtzman ex-

plained the purpose and scope of the

bill demonstrates that the focus of the

bill's intent centers on Nazi war crimi-

nals. 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 re-

ported here contains an amendment that

limits the language of the bill solely

to those persons who engaged in war

crimes . . ." 134 Cong. Rec.31,647 (19-

78) (emphasis added). Again she stated,

"The bill is intended to cover active

participation and not mere acquiescence

by the population as a whole."Id. at

| 31,649 (emphasis added). Representative

Holtzman was joined in explaining the

bill by another subcommittee member,

Representative Eilberg, who stated the

bill's purpose:

Mr. EILBERG. The purpose of this

bill, which is cosponsored by all of

APP60

the members of the Subcommittee on

Immigration Citizenship and Interna-

tional Law, is to prevent the entry

into, as well as facilitate the de-

portation from the United States of

aliens who have engaged in persecu-

tion based on race, religion, nation-

al origin or political opinion under

the Nazis.

[d. at 31647 (emphasis added). Mr. Eil-

berg and Ms. Holtzman each went on to

make several additional references re-

garding the bill's applications to those

who engaged in war atrocities. Id. at

31,647-48. Representative Eilberg also

stated:

That 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 re-

se 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

flect the purpo

APP61

Eilberg's statements 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 clari-

fied by statements in the legislative

history indicating the degree of partic-

ipation in persecution necessary to come

within the Holtzman Amendment. The

statement of the Holtzman Amendment's

purpose reads:

Purpose of the Bil]

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, na-

tional origin, or political opinion

and facilitate the deportation of

such aliens who have been admitted

into the United States.

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

Sess. at 1, reprinted in 1978 U.S. Code

Cong. & Admin.News 4700. This language

appears to require active participation

in persecution going beyond "as-

sistance." In discussing the Holtzman

Amendment's application, the House Re-

port goes on to state that "it is impor-

tant to stress that the conduct envi-

sioned must be of a deliberate and se-

vere nature and such that is condemned

by civilized governments, . ." Id. at 7

1978 U.S. code Cong. & Admin. News at

4706.

APP62

Finally the Court integrates the legisla

tive history of the Holtzman Amendment

with the Fedorenko case:

[f, as the Supreme Court states, the

focus under the DPA should be on the

"particular conduct" of the immigrant,

then given the legislative history of

the Holtzman Amendment, the focus should

be even more searching under § 1251(a)-

(19). Although Petkiewytsch wore a uni

form and carried a rifle, the Board

found that he was at all times a reluc-

tant civilian guard, once himself in-

prisoned for failing to perform hi

guard duties diligently. The camp where

he served was the least punitive of ai)

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 personaliy 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 crin-

inai” 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 Fed-

orenko requires a finding that Petkie-

wytsch is subject to deportation under

§ 1251(a)(19). Deporting this petition-

er would not further the goal of the

APP6 3

Holtzman Amendment and would carry out

no discernable policy of the United

States.

This discussion of the Holtzman Amend-

ment and the proper "line drawing" there-

under becomes important only if it is

determined that much of the evidence re-

lied upon by the government to prove that

Mr. Kalejs was a member of the Arajs Kom-

mando and participated in persecution must

be stricken and ignored. For if all of

the government's evidence is accepted,

including the Soviet depositions, then the

deportation order would have to be af-

firmed.

As pointed out by the majority, Mr.

Kalejs' basic attack is predicated on due

process grounds. I quote the pertinent

portions of the majority opinion:

Kalejs presses upon us essentially three

arguments: .. . that prosecutors relied

on inherently untrustworthy evidence --

APP64

depositions and documents salvaged from

the archives of the former Soviet Union

-- and then compounded the error by

denying him due process.

x * &

Petitioner finally argues that we should

scrap most of the evidence against him

because it is inherently unreliable. A

number of witnesses were deposed in

Riga, Latvia in September 1987 in what

was then part of the Soviet Union, and

many Nazi -era documents were stored in

Soviet-controlled archives. Moscow rec-

ognized Latvia's independence in Septen-

ber 1991 before the Soviet Union itself

dissolved, but those events do not alter

this case. According to Kalejs, prose-

cutors erred in considering evidence

from the Soviet Union and then compound-

ed their error by failing to allow the

accused to engage in sufficient discov-

ery so that he could prove the Soviet

Treachery. At its heart, this is a

claim about the denial of due process.

x *« &

More specifically, Kalejs complains that

(1) he could not interview witnesses

before their depositions were taken in

the Soviet Union; (2) witnesses' previ-

ous statements were withheld; (3) the

witnesses should have been deposed in

the United States rather than the Soviet

Union; (4) Kalejs could not attend the

depositions; (5) witnesses were intimi-

dated by the Soviet prosecutors; and (6)

neither Kalejs' attorney nor United

States officials could rent cars and

visit the sites of the atrocities or

examine Soviet archives.

The majority disposes of the due process

APP65

——————————

issue as follows:

We can easily dismiss most of these

claims because there is no general right

to discovery in a deportation hearing so

long as the accused had reasonable op-

portunity for cross-examination, as

there was here. Kulle v. Immigration

and Naturalization Service, 825 F.2d

1188, 1194 (7th Cir.1987), certiorari

denied, 484 U.S. 1042. The Federal

Rules of Civil Procedures imply do not

apply, thus most of the cases cited by

Kalejs are irrelevant. In one instance

in his brief, Kalejs actually attempts

to hold the government to the standards

of a criminal proceeding under Washing-

ton v. Texas, 388 U.S. 14 (brief at 32).

Such cases are wholly inapplicable.

Clearly, the stakes of deportation hear-

ings are great in terms of reputations

and disruptions to lives, and we must

ensure that such proceedings do not turn

into kangaroo courts. But the hearings

in this case were conducted with eminent

fairness to Kalejs.

) Also, many of Kalejs' due process claims

are patently ridiculous. The deposi-

tions were taken in the Soviet Union

because the witnesses were too old and

frail to travel to the United States.

Kalejs did not attend because he did not

ask to attend, and so waived that issue

even if it had merit. The government

actually did turn over to Kalejs' coun-

sel all witness statements it had in its

possession; those witnesses for whom the

United States did not have previous

statements were by and large witnesses

APP66

called by Kalejs himself to corroborate

his case. As noted, there is no general

right to discovery in a deportation

hearing but there is certainly no right

to discovery of documents that the gov-

ernment does not have in its possession

and is unable to obtain. Finally the

accused has not told us and we cannot

even begin to imagine what Kalejs would

hope to uncover by visiting the sites of

atrocities committed fifty years ago.

In short, Kalejs received ample due

process.

Short of constitutional requirements,

just what are the due process rights of

aliens in deportation cases? The statute

and regulations which identify certain of

the rights of respondents in such civil

proceedings are set forth as follows:

Section 1105 of Title 8 provides in

part:

The procedure prescribed by, and all the

provisions of chapter 158 of Title 28

shall apply to, and shall be the sole

and exclusive procedure for, the judi-

cial review of all final orders of de-

portation heretofore or hereafter made

against aliens within the United States

pursuant to administrative proceedings

under section 1252(b) of this title or

APP67

comparable provisions and of any prior

Act

Section 1252(b) of Title 8 provides in

part:

x* * *&

Proceedings before a special inquiry

officer acting under the provisions of

this section shall be in accordance with

such regulations, not inconsistent with

this chapter, as the Attorney General

shall prescribe. Such regulations shall

include requirements that are consistent

with section 1252b of this title and

that provide that--

* * *

(3) the alien shall have a reasonable

opportunity to examine the evidence

against him, to present evidence on his

own behalf, and to cross-examine wit-

nesses presented by the Government, and

(4) no decision of deportability

shall be valid unless it is based upon

reasonable, substantial, and probative

evidence.

8 C.F.R. § 242.16 (1988) provides in part:

Hearing.

(a) Opening. The Immigration Judge

Shall .. . . advise the respon-

dent that he will have a reason-

able opportunity to examine and

object to the evidence against

him, to present evidence in his

own behalf and to cross-examine

witnesses presented by the Govern-

ment;

APP68

The government relied principally on its

expert witness, Dr. Hilberg, and Soviet

supplied documents and witnesses to estab-

lish Mr. Kalejs' membership in the Arajs

Kommando and his assistance in persecu

tion.

First, I have much difficulty with the

majority's willingness to accept and rely

upon the opinion testimony of the govern-

ment's expert witness, Dr. Raul Hiiberg,

facts, not

to establish critical ultimate

just general historical background, in

deportation prosecutions such as this.

The stakes are too high, the consequence

of error too great, to rely upon such com-

pound hearsay. Dr. Hilberg is indoubtedly

a renowned Holocaust scholar and histori-

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expert opinion to establish any and all

historical facts? All facts may be con-

sidered "historical" whether they relate

to events occurring minutes ago, or 50

years ago, or 1000 years ago.

Dr. Hilberg concluded that Mr. Kalejs

was a member of the Arajs Kommando. He

based his opinion on certificates to the

University of Riga, which were produced at

the trial, on other documents that were

not produced at the trial, and upon the

statement of one Arthur Abols, who died in

the early 1960's, that Kalejs was a compa-

ny commander at Salaspils in the spring of

1943. Petitioner questions the existence

of the Abols statement (which was not

offered in evidence). He further notes

that there is no explanation for its ab-

sence.

The government does not take exception

to the following comments of petitioner's

APP70

attorney on Dr. Hilberg's testimony:

Hilberg identified and testified from a

chart prepared by OSI, Exhibit 19 (v. 9,

3197). The chart purports to be a table

of organization from Hitler to the Arajs

Kommando. The bottom line of the chart

purports to name company commanders of

the Arajs Kommando (v. 3,-842)--Cukurs,

Kalejs, Kalnins, Laukers, Ozols, S8vi-

keris (v. 9,3197). . . . Hilberg ob-

tained all the names, except Kalejs'

from the decision in the case of People

vs. Arajs, District Court of Hamburg,

1980, Exhibit 22T, (v.11, 3634).

The Soviet documents in evidence upon

which Hilberg may rely relating to

Kalejs during the war were represented

to come from the Central State Histori-

cal Archive of the Soviets in Latvia (v.

12, Exhibits 23, 25, 37A, 44,45, 46).

The defense was denied entry into those

Archives. . . . Hilberg did not feel

these documents compelling, however, he

stated he had seen other more compelling

documents connecting Kalejs to Arajs

Kommando. These documents, if they

existed at all, were not offered into

evidence.

Dr. Hilberg's list of the company com-

manders of the Arajs Kommando, with the

exception of Mr. Kalejs, came from the

decision in the case of People v. Arajs in

District Court of Hamburg, Germany in

APP71

eT

1980. As mentioned, that 157 page opinion

names all of the Arajs officers except Mr.

Kalejs. And Mr. Arajs' German attorney,

Mr. Burger, confirmed that Mr. Kalejs's

name was not mentioned in the testimony or

the exhibits in the Arajs trial nor, ap-

parently, was the name of Mr. Kalejs men-

tioned in the various books written about

the Arajs Kommando. And there appear to

be no German records which name Mr. Kalejs

as a member of that organization.

Again, it appears that Dr. Hilberg's

opinion was based principally on absent

documents and the Abols statement.° The

University of Riga documents, which were

produced, were compromised in his opinion:

"The problem I have encountered with

> Indeed, Dr. Hilberg relied solely on the

Abols statement to establish Mr.Kalejs' service at

the Salaspils-Sauriesi concentration camps. This

was hearsay on hearsay without the production of

the Abols statement or evidence supporting its

reliability.

APP72

——————

materials that come from the Soviet

Union is .. . I do not see the entire

folder from which the document is taken.

What I am missing is a context, a before

and after, which would make it possible

for me to better understand the contents

of the document."

Mr. Kalejs could very well have been a

member of the Arajs Kommando, but the

evidence in this case, excluding the Sovi-

et depositions, is inadequate in my opin-

ion to establish that fact. So how should

we evaluate the Soviet depositions?

The majority opinion gives short treat-

ment to Mr. Kalejs' arguments about the

unreliability of the Soviet witnesses and...

documents. It states:

But we have relied on evidence from the

Soviet Union before, see, e.g., Kairys,

783 F.2d 1374, and Kalejs has not point-

ed to any reason why the Soviets would

want to implicate him personally, or

demonstrated any unusual interest in his

case by Soviet authorities. Where, as

here, the Soviet evidence is corroborat-

ed by Western documentation, plus reli-

able eyewitness testimony subject to

vigorous cross-examination, and the

APP73

evidence is credible on its own terms,

we will not discard a case against a

Nazi collaborator merely because some of

the evidence originated in the Soviet

Union.

First, this Court has been cautious and

very selective in relying upon evidence

from the Soviet Union in these immigration

law cases. There appear to be eleven cases

involving OSI's use of Soviet depositions.

These cases are:

Matter of Laipenieks, All 937 435,(Im-

migration Court, San Diego 1982). Matter

of Maikovskis, A8 194 566 (Immigration

Court, New York, 1983). United States v.

Sprogis, No. CV1804(E.D.N.Y. 1984).

United States v. Koziy, 540 F.Supp. 25

(S.D. Fla. 1982). United States v. Pal-

Ciauskas, 559 F.Supp. 1294 (M.D. Fla.

1983). United States v. Hutyrczky, 803

F.Supp. 1001 (D.N.J. 1992). United

States v. Linnas, 527 F. Supp.426 (E.D.-

N.Y. 1981), aff'd without opinion 685

F.2d 427 (2d Cir 1982). United States v.

Osidach, 513 F. Supp. 51 (E.D. Pa 1981).

United States _v. Kairys, 600 F.Supp.

1254 (N.D.I1ll. 1984), aff'd, 782 F.2d

1374 (7th Cir. 1986). United States v.

Kowalchuk, 571 F.Supp. 72, E.D. Pa.

1983), 773 F.2d 488 (3rd Cir 1985).

United States _v. Kungys, 571 F.Supp.

1104 (N.D.N.J. 1983), 793 F.2d 516(3d

Cir. 1986).

APP74

I find myself in agreement with petition-

er's analysis of these cases:

Respondent reviews eleven United States

cases involving use of OSI's Soviet depo-

Sition evidence in its Brief. OSI admits

that the depositions were neither credited

as principal inculpatory evidence nor as

corroborative of other inculpatory evi-

dence in three of those cases (R. BEr., BF

8). None of the other eight cases used

the Soviet depositions as the principal

inculpatory evidence where there was a

finding against the citizen or immigrant.

OSI has not taken issue with the assertion

in Kalejs' Brief that:

"The previous Seventh Circuit cases

decided favorably to OSI regarding 'par-

ticipation in persecution' each had the

required, official German military as-

Signments that formed the basis of the

persecution counts, with photographs of

those defendants attached--most dis-

played defendants' fingerprints." Kalejs

Brief, p. 44.

APP75

No such documents were offered against

Kalejs. In the eight cases OSI cites in

its support, where Soviet evidence was

credited at least in part, witnesses from

sources other than the Soviet Union

claimed personal knowledge and identified

the defendants Kosiy, Palciauskas, Osi-

dach, Kowalchuk); or defendants had admit-

ted membership (Linnas, Palciauskas); or

the documentary evidence was "conclusive"

(Kairys) or depositions were limited to

show killings occurred (Kungys); or in the

most recent case the depositions were

taken in the United States (Hutyrczky).

Objection by the defense was not made in

(Koziy, Hutyrezky); or the defendant did

not participate in the Soviet depositions

and objection was waived (Koziy, Palciaus-

kas, Linnas); or held to be at most harm-

less (Palciauskas). Here the sole identi-

fication witnesses who claim personal

APP76

knowledge of Kalejs were Soviet citizens

and their depositions were taken inside of

and under the control of the Soviet Union.

No German or Latvian military identifica-

tion records were introduced relevant to

alleged Arajs Kommando membership-—no

photo or thumbprint. Kalejs has consis-

tently denied any service with the Arajs

Kommando.

second, the Soviet authorities had a

very good reason to implicate him person-

ally: they considered him a traitor for

fighting with the Germans. And their

current animus was reflected in the testi-

mony Of various Soviet witnesses that they

had recently seen articles in the local

Communist press about Kalejs.

Third, I am unaware how the Soviet

evidence was "corroborated by Western

documentation plus reliable eyewitness

APP77

testimony subject to vigorous cross-exam-

ination."

Fourth, the majority's statement that it

will not discard a case against a Nazi

collaborator merely because some of the

evidence originated in the Soviet Union

assumes the petitioner's guilt when that

is precisely what is in issue.

And the statement by the majority that

credits the Soviet's explanation that the

reason the Soviet witnesses did not travel

to the United States to testify in these

proceedings, that is, because they were

"too old and frail" to travel, reflects an

uncritically narrow focus that borders on

the naive.® And its statement that Kalejs

6 ‘The Soviet witnesses here, without excep-

tion, served long prison terms in Soviet prisons.

Their testimony by deposition was taken in the

presence of the Senior Assistant Procurator of

Latvian S.S.R., two of his assistants, two prosecu-

tors of the U.S.S.R. General Procurator's Office in

addition to two OSI attorneys, the defense attor-

ney, the court reporter, the video tape operator

APP78

did not attend the taking of the Soviet

depositions “because he did not ask to

attend" does not adequately reflect the

record on this issue and dismisses the

importance of confrontation too casually.

Finally, the majority states that the

accused "has not told us and we cannot

even begin to imagine what Kalejs would

hope to uncover by visiting the sites of

atrocities committed fifty years ago."

The potentials of visiting the site, in-

and a translator. The Senior Assistant Procurator

of Latvian S.S.R, one Mr. Batarage, presided. So

each witness was facing the Soviet Prosecutors from

the offices that had sent him to prison. The

defense attorney states that no witness who is a

citizen of the U.S.S.R. has ever testified in the

United States in an OSI case. In People v. Arajs,

District Court of Hamburg (1980) the Court ob-

served: "It is known to the Court that witnesses in

the Soviet Union generally do not receive exit

visas. This, however, is not openly discussed by

the Soviets, but generally bears the remark that

the witness can not travel due to poor health.

When Mrs. Medalje did not respond to the summons to

Hamburg, but did appear for the interrogation in

Riga, it became clear that the medical reasons had

only been contrived. This also applies for the

witnesses Lutrinsch and Kalninsch who, though ready

to travel, did not appear in Hamburg.” The Soviet

witness in this case, Mr. Kalnins, is the same

person as the Mr.Kalninsch in the Arajs case.

APP79

Pe

terviewing local survivors, reviewing old

newspaper morgues, and just’ snooping

around, are well known and understood by

good lawyers and investigators.

Here we are dealing with a deportation

proceeding. The statutes and regulation

quoted above mandate that the alien "have

a reasonable opportunity to examine the

evidence against him, to present evidence

in his own behalf and to cross-examine

witnesses presented by the Government."

Did Mr. Kalejs have such "reasonable op-

portunity" here? One could, by interpret-

ing the language quoted from the regula-

tion expansively, argue that it simply

incorporates Brady v.Maryland, Washington

v. Texas, and the evidentiary rules gov-

erning cross-examination. But even if one

interprets the language narrowly and con-

cludes that Mr. Kalejs had a reasonable

APP80

Opportunity to examine the evidence that

the government actually chose to use

against him, it can be questioned whether

he had a "reasonable Opportunity to pres-

ent evidence on his own behalf," consider-

ing the restrictions placed on him in

relation to discovery. And, in no event

can it be said that he had a "reasonable

Opportunity to cross-examine witnesses

presented by the government," considering

the same limitations on discovery (includ-

ing denial of pre-deposition access to the

witnesses and to their prior statements)

and the locus and circumstances of the

taking of the depositions, including the

role of the Soviet procurator in restrict-

ing cross-examination. If the regulation

does not require this conclusion, surely

the Constitution does.

It is not enough for the government to

APP81

argue that it did the best it could under

adverse circumstances over which it had no

control. The government did have control

over the prosecution of the deportation

proceeding. It had to decide whether to

rely on and vouch for witnesses and evi-

dence it had no opportunity to adequately

investigate. It could even, as a last

resort, choose _ to forego proceeding

against one it felt probably guilty of

serious war crimes rather than risk reli-

ance on untestable evidence and witnesses,

all compromised by Soviet control.

The language of Chief Judge Aldisert in

his dissent in United States v. Kowal-

chuk, 773 F.2d 488, 498 (3rd Cir. 1985),

cert. denied, 475 U.S.1012, 106 S.Ct.

1188, 89, L. Ed.2d 303 (1986), even though

dealing with a denaturalization proceed-

ing, makes the same point:

APP82

I quickly recognize that it is always

difficult to reconstruct what actually

happened at any point in history, and

more difficult still when the events of

consequence occurred during totally

devastating wartime conditions, in enemy

territory, over forty years ago. In-

deed, this realization lies at the core

of the due process issues which I will

soon discuss.

x* *& &

But Kowalchuk's due process claim,

deemed so insignificant by the majority

that they summarily dismissed it, see

page 498-499, is to me so important an

issue that I choose to address it first.

x* *& *&

Although I recognize that we would nor-

mally not address the constitutional

issue if an independent statutory ground

Supports the outcome, I feei that under

these particular circumstances the con-

Stitutional violation is so compelling

that it requires discussion first. Our

Department of Justice required Serge

Kowalchuk to defend himself against

charges based on events that occurred

over forty years ago in the Soviet Un-

ion. John Rogers Carroll, an experi-

enced Philadelphia trial lawyer, repre-

sented him, but wes not able to obtain,

interview, or even seek witnesses in the

Soviet Union. Attorney Carroll was

permitted to travel to the Soviet Union,

but, incredibly, was allowed to inter-

view only those witnesses obtained and

controlled by the Soviet government.

Mr. Carroll, Kowalchuk's attorney, was

also not permitted to visit Lubomyl, for

APP83

the purpose of either obtaining witness-

es or collecting physical evidence;

iacredibly he was denied access to the

very town where the government claims

the illegal conduct of Kowalchuk took

place. App. at 1689. The Soviets sowed

the seeds of these proceedings by blast-

ing away accusations against Kowalchuk

in Trud, the house organ of the KGB.

When this American citizen, Kowalchuk,

attempted to prepare a defense to these

Soviet-instigated charges, he found the

Soviet fox to be the keeper of the

chicken house. Kowalchuk's contention,

therefore, goes far beyond an argument

that he was denied the opportunity to

interview potential witnesses. Rather,

it is that he was denied the opportunity

to develop a meaningful defense of any

type. Because I believe that the right

to present witnesses and establish a

defense is a fundamental element of due

process of law, I also believe that

revocation of Serge Kowalchuk's citizen-

ship, under the circumstances here,

constitutes a blatant violation of a

very precious fundamental right.

x * *&

Professor Raul Hilberg, one of the Gov-

ernment witnesses, acknowledged that

Soviet authorities tightly control all

access to all documents concerning World

War II war crimes. Id. at 827-30. Addi-

tionally, testimony of the defense wit-

nesses established that Soviet authori-

ties routinely manipulate witnesses,

especially in political trials, and that

any efforts by defendant to obtain fa-

vorable evidence from Soviet citizens

APP84

would endanger those citizens' safety.

Id. at 1401.

Other courts have expressed hesitancy in

crediting evidence from Soviet sources.

In United States v. Kungys, 571 F.Supp.

1104 (D.N.J. 1983), a case involving

facts that are quite similar to those of

this appeal, the court emphasized the

Soviet's motivation for discrediting

emigres:

Despite Soviet conquest [of Lithua-

nia} there remain strong nationalis-

tic feelings and continuing alle-

giance by a significant portion of

the population to the Roman Catholic

Church. The attempts by Soviet au-

thorities to stamp out these influ-

ences and to create the myth of his-

toric friendship between the people

of the Soviet Union and its various

national groups are weakened by the

presence abroad of large groups of

emigres who experienced personally

the effects of Soviet occupation and

who help keep alive Lithuanian na-

tional and religious convictions.

In 1964 there was formed the Latvian

Committee for Cultural Relations of

Latvians abroad, and during 1970-76

Lesinskis {a Latvian member of the KGB

who defected in 1978] was chairman of

its presidium, receiving instructions

from the KGB. Its objective was also to

discredit Latvian emigres, particularly

those who actively sought the end of the

Soviet occupation. This was accomplished

by publication of books and articles

purporting to describe the war crimes

and collaboration of which emigres were

guilty. The facts were often embel-

APP85

lished and supplemented with forged

documents, false testimony and pure

invention. When he was assigned to a

post in the United States, Lesinskis'

job was to obtain information about

Latvian communities abroad, to promote

discord within them and to discredit

their leaders. All of this was a KGB

function.

Id. at 1124. The court concluded that:

We are faced with a situation where

the Soviet Union has a continuing,

strong state interest in a finding

that defendant was guilty of atro-

cious conduct while collaborating

with German occupation forces. we

also are faced with the fact that the

Soviet Union uses special procedures

in political cases such as this

which, on occasion at least, result

in false or distorted evidence in

order to achieve the result which the

state interest requires.

Id. at 1126.

In Kungys the district court found the

government's evidence not credibie and

denied the government's petition to revoke

Kungys's citizenship. The court rebuked

the government for its use of Soviet sup-

plied evidence:

The government elected to collaborate in

APP86

the prosecution of this case with the

Soviet Union, a totalitarian state. It

has accepted the assistance of Soviet

authorities, particularly the testimony

of witnesses who had been interrogated

by Soviet investigators and from whom

Statements had been obtained by those

interrogators.

Knowing the nature of the Soviet legal

System, the government had an obligation

to make every effort to ensure that the

testimony it received under the auspices

of the Soviet authorities was not taint-

ed by the known Soviet practices de-

Signed to obtain the desired results in

a particular case even at the expense of

the truth. If the government deputizes

a totalitarian state to obtain for it

evidence to be used in a United States

court, the government must take whatever

steps are necessary to ensure that the

evidence was not coerced or otherwise

tainted by improper pressures.

Id. at 1131-32. See also United States

Vv. Sprogis, 763 F.2d 115, 120-21 (2d

Cir.1985); Laipenieks v. L.N.S-., 750

F.2d 1427, 1435-36 (9th Cir. 1985).

Congruent with the Supreme Court's

teaching in Washington, I conclude that

a significant deprivation of due process

occurred because the Soviet authorities

controlled both the witnesses supplied

to the government and Kowalchuk's access

to any possible exculpatcry information.

It 1S apparent that the only archival

evidence Supporting respondent's conten-

tion that Kalejs was a member of the Arajs

APP87

Kommando was provided directly or indi-

rectly by Soviet authorities. It is obvi-

ous that those authorities had full access

to the archives. They could pick and

choose there from as they wished. The

Soviet Union not only refused Kalejs ac-

cess to archival documents and to actual

and potential witnesses, but, to repeat,

it also refused such access to our govern-

ment.

The respondent argues that Mr. Kalejs

has not demonstrated that any additional

relevant archival documents exist. Howev-

er, it is interesting to note that two

days before oral argument in this case the

government produced protocols that it had

just discovered. And we know that the

Soviet government has coiu.sistently lied

about its own role in many of the perti-

nent historical events. It will be re-

APP88

called that the Soviets attempted to place

responsibility on the Nazis for the massa-

cre of the Polish officers in the Katyn

Forrest. [t has only recently been ac-

Knowledged that the Communist forces were

responsible for that crime. The "C

War" was still on when the depositions ir

this case were taken under the supervision

f Soviet officials

‘Ty ‘either . r “Ae , F _——

rhe Aoi S reiiance bil, and liefense Aa

P . , or Als - a= tre ,

mmunist jatnhnered eviaence nas i= eq 1enciy

i; | i P i A©@ tli &¢ >

> i Lé P iVUe > t i j 165 >) . } | >a

1986 m June 3, 199 tne Sixth ircuit

a Led 40 1) che i | to jes Libdbe evi ien .

nat 4 t na j sn Wilh J that Ven jan ) UA vas 2 >t

called that Mr. Demjanjuk had, between the

1985 extradition and the date of the Sixth

Circuit order in 1992, been tried and

sentenced to death in Israel. The Sixth

Circuit called upen Judge Tom Wiseman, as

Special Master, to take evidence and de-

termine if there had been any fraud upon

the Court. Judge Wiseman recently filed

his 195 page report which essentially

absolves the government attorneys of any

intentional wrongdoing. Nevertheless, his

findings show how both Mr.Demjanjuk and

the judicial process were prejudiced by

the manner in which the case was handled.

He states, inter alia:

The Soviet evidence, viewed in its

entirety, casts a substantial doubt on

Mr. Demjanjuk's factual guilt of the

central allegation of the denaturaliza-

tion complaint--that he was Ivan the

Terrible of the Treblinka gaschambers.

The statements of former Treblinka

guards and laborers recently obtained

from the Soviet Union constitute an

harmonious chorus which inculpate a man

APP90

named Ivan Marchenko as the Ivan who

worked at the gas chambers, and thus

exculpate Mr. Demjanjuk from those spe-

cific crimes.

2 @& @

What is particularly telling about

this evidence is that it provides no

corroboration for the key elements of

the government's theory in the denatu-

ralization trial. For example, there are

no additional witnesses naming Mr. Dem-

janjuk as a motorist of the gas cham-

bers. Nor do the statements provide any

Support for the transfers of the sort

Mr. Moscowitz hypothesized could explain

the evidence. As mr. Parker observed,

the evidence in 1980 Suggested that

there were two roads, one leading toward

the Treblinka gas chambers, the other

toward Treblinka. The road to the Tre-

blinka gas chambers is not developed at

all by the new Soviet evidence, and the

evidence's silence on the question of

his presence at the gas chambers speaks

loudest of all. (Emphasis added)

Other comments of Judge Wiseman bear re-

peating:

Ultimately, this is a case about

questions that were never asked, and

questions asked that went unanswered.

Government attorneys failed to ask ques-

tions regarding the evidence they pos-

sessed, and this error prevented them

from asking questions designed to obtain

additional evidence.

Government attorneys failed to chal-

lenge the evidence they possessed, and

APP91

this led them to abandon leads which

contradicted their interpretation of the

evidence.

*x* * &®

Thus, the government was inadequately

skeptical of this theory to begin with,

and this shortcoming was compounded by

the unintended silencing of the lone

dissenting voice--Mr. Parker's. If Mr.

Ryan and Mr. Moscowitz had received and

read his February 26, 1980 memorandum,

the latent suspicions about the case may

have been resolved in the light of day.

Mr. Parker had believed that they under-

stood the gravity of his feelings about

the case, and this misunderstanding

eventually resulted in his resignation.

In specific terms, the prosecutors

never attempted to prove the null hypo-

thesis--an alternative hypothesis which

is the converse of that in which one

believes. In the Demjanjuk case, at-

tempting to prove the null hypothesis

would have led the government investiga-

tors and attorneys to look for evidence

that someone other than John Demjanjuk

was Ivan the Terrible. Ironically,

Allan Ryan, Jr., described this process

in his book Quiet Neighbors,in describ-

ing the reinvestigation of the case of

Frank Walus:

'My aim was to follow two distinct

lines of investigation: first, to

reexamine the existing evidence, both

the prosecution and defense; second,

to search for any new evidence that

would shed light on the truth.'

In addition, the case is about ques-

tions asked that went unanswered. As I

have discussed above, a careful reading

APP92

__k

of Mr. Demjanjuk's discovery requests

demonstrates that he asked for virtually

every piece of evidence that is at issue

in these proceedings. As demonstrated,

the government did not provide the evi-

dence because it believed that it was

under no duty to do so. The heart of

the discovery problems, therefore, was

a tragic misunderstanding."

These difficulties were only con-

pounded, however, by the attitude the

trial attorneys took toward discovery;

an attitude that at times bordered on

gamesmanship. ’

Using the null hypothesis here, one would

first examine Mr. Kalejs' own story of his life

during the years 1941-1944. That story may not be

true, but it could be, and portions of it are

Supported by other evidence. Briefly the explana-

tion given by Mr. Kalejs at trial and in his

pre-charge statement (when he was unrepresented by

counsel) is summarized in his Reply Brief as

follows:

Kalejs consistently denied membership in Arajs

Kommando first in his precharge unrepresented

Sworn statement and at trial (v. 5, 1953).

Kalejs returned to Riga after the Soviet inva-

sion and after his desertion from the Soviet

Army. As required, he registered as a former

Latvia Army officer in Riga (2001, 1964) He

wanted to attend the University of Riga (1888).

He needed to obtain certificates to vouch for

service against the Soviets (1983). He obtained

such certificates from a friend (1890, 1985).

These were submitted to the University and he

gained admission (1889). He studied there for

one semester in the fall of 1941. In early 1942

he was then called to service in a Latvian ski

company (1969). He developed ulcers (1903) and

returned to Riga in 1942 and was hospitalized

(1990). After he was released as unfit for duty

he returned to his University studies (1904)

until near the end of the war when he joined the

Latvian Legion(1907). During school vacation

APP93

There is nothing to suggest that the

intramural problems that beset the prose-

periods, he performed farm labor for friends he

had met away from Riga (1904, 1981). His testi-

mony was corroborated. Burger testified Arajs

told him that the Arajs Kommando often prepared

false certificates for Latvians since the Ger-

mans would make little effort to be of assis-

tance to Latvians (v. 5, 1784,5). Mrs. Namguads

and her daughter, Mrs.Kula, testified he had

lived with them prior to the Soviet invasion (v.

5, 1796,1848). He then left. He returned later

sick with ulcers (v. 5, 1799), 1854) and worked

on their farm and neighboring farms from time to

time during the war (v.5, 1797, 1850). Mr.

Olins testified he saw and spoke to Kalejs in

Riga in late 1942 (v. 5, 1865) and Kalejs was

ill with stomach problems (v. 5, 1866).

Of course there are many good reasons to be

skeptical. The majority opinion, for instance,

asks:

He does not explain, for example, how he so

easily obtained affidavits identifying him as

not merely a member but an officer of the Arajs

Kommando, or why he didn't simply obtain a

certificate from the unit he claimed to be a

member of. It is also incredible that the

Germans would have continued to pay the military

salary of a Latvian soldier for two-and-a-half

years while he was recuperating from an ulcer,

studying and laboring on a farm. Kalejs claims

to have had no knowledge of the mass executions

of Jews outside Riga, but according to expert

testimony the subject had set the town abuzz at

the time. And Kalejs admitted to [service]

under a general who was head of the Einsatzgrup-

pe, the mobile killing unit, in Latvia, although

he later tried to distance himself from this

testimony.

What is needed is a new proceeding and new trial

in which all reasonably available relevant evidence

is brought forth, to the end that the truth may be

uncovered.

APP94

cution in the Demjanjuk case in any way

affected this case. But the attitude of

the government toward the due process

rights of the respondent here, particular-

ly with respect to discovery, appear simi-

lar to those of the government in its

dealings with Mr. Demjanjuk. So Dem jan juk

is cited to emphasize the hazards that

exist in any proceeding where the evidence

is controlled by unreliable third parties,

the prosecution is not sensitive to the

charged party's rights, and judicial qual-

ity due process standards for discovery,

the admission of evidence, the conduct of

depositions, and cross-examination of

witnesses are not adequately recognized

and enforced.

I urge a straightforward recognition

that, either under 8 C.F.R. § 242.16(1988)

or the United States Constitution, or

APP95

both, aliens in deportation cases such as

this are entitled to discovery just as

other civil litigants in our United States

District Courts. And certainly the govern-

ment should be required to disclose any

exculpatory evidence of which it has know-

ledge. See Judge Tom Wiseman's discussion

cf Brady in his report in Demjanjuk. The

right of cross-examination is trivialized

if the alien does not have fair and rea-

sonable access to potential witnesses,

documentary evidence and site investiga-

tion. What is fair and reasonable in any

case will depend on the circumstances, but

complete stonewalling, whether by our

government or by another government, will

require that evidence tainted by such

restrictions be disregarded. The govern-

ment states in its brief:

Where, as here, the government states

that to its knowledge the only extant

APP96

Statements are those it has turned over

to Kalejs, immigration law imposes no

duty on the court or the government to

determine whether other statements may

exist merely because Kalejs' attorney so

alleges.

But an absolute cut-off of access to po-

tentially relevant prior statements of any

deponent known to exist should har the use

of such deponent's testimony. Here the

government was aware by virtue of the

Soviet deponents' testimony that prior

Statements were made and that a report or

transcript thereof possibly still existed.

The government did not have to rely merely

on Mr. Kalejs' attorney's allegations; it

heard the witnesses describe such prior

Statements.

The government also states that Mr.

Kalejs had some independent source of

certain prior statements made by some of

the Soviet witnesses so it observes, "It

1)

ae

Y

ls open to question whether Kalej

APP97

actually missing any prior protocols or,

if any are missing, whether they are mate-

rial." Exactly! No one knows, except the

Soviet authorities. The petitioner does

not know. The government does not know.

Only the Soviet authorities know or can

find out, absent access to the archives by

our government and/ or the petitioner.

Each of the charges that resulted in

findings against Mr. Kalejs depend upon

proof that he was a member of the Arajs

Kommando. It is my opinion that the record

does not contain enough substantial compe-

tent evidence to meet the clear and con-

vincing standard on this key factual is-

sue. I further conclude that the conse-

quence of this decision undercuts the

government's contention that Mr.Kalejs

made a materially false statement on his

Visa application. I therefore conclude

APP98

that the deportation order can not be

affirmed on this record.® However, I de

not believe that the record requires us to

dismiss the entire proceeding. Rather it

is my opinion that a new trial should be

ordered consistent with the view expressed

herein.

Conditions in Russia and Latvia have

8 I have stated that it is my Opinion that

this record, absent the tainted evidence, would not

Sustain a factual conclusion that Mr. Kalejs was a

member of the Arajs Kommando or assisted in perse-

cution. But what if I believed the non-tainted

evidence would suffice for that purpose?

The suggestion that we should affirm if we

determine that the competent, non-Soviet, evidence

would be sufficient to sustain the decisions of the

iJ and the BIA raises an additional question in a

deportation case such as this where administrative

discretion is broad: Would the IJ or the BIA have

determined that Mr. Kalejs was a member of the

Arajs Kc smando and assisted in persecution in the

absence of the tainted evidence? One hesitates to

assume that, if they could have so found on the

competent evidence, they necessarily would have so

found. This same type of inquiry is pertinent to

the visa misrepresentation issue: If the competent

evidence would permit the finding that Mr. Kalejs

made a willful false statement as to a material

matter not related to his membership in the Arajs

Kommando, can we assume that such a finding would

nave been made? Indeed one may question whether

any deportation proceeding against Mr. Kalejs

would have been initiated absent the belief that

Mr. Kalejs had assisted in persecution.

APP99

changed dramatically in the last two

years. If a new trial is held, who knows

what may happen?

Perhaps, indeed probably, the Latvian

and Russian authorities will now allow

direct, private, access to the witnesses,

to the archives, and to site investiga-

tions. If so, the government would have

then, for the first time, the opportunity

to carefully evaluate its case in the

light of any evidence that this new access

might provide. It would then know which

Soviet witnesses to vouch for and which

not to vouch for, and which documents

exist that support or weaken Mr. Kalejs'

testimony concerning his life between July

1941 and 1944.

Of course, it is possible that this new

access would produce no new documentary

evidence, either because it never existed,

APP100

was lost or destroyed over the years, or

because the departing Communists officials

took or destroyed such evidence. Reality

will have to be dealt with.

Still, any decision based upon all of

the available relevant evidence will enjoy

much more credibility than the decision we

now examine.

I therefore respectfully dissent.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

APP101

UNITED STATES DEPARTMENT OF JUSTICE

Executive Offi

Office of

File: All 655 3

ce for Immigration Review

the Immigration Judge

61 - Chicago

In the Matter of )

Konrads KALEJS

Respondent

CHARGES l.

) IN DEPORTATION

) PROCEEDING UNDER

) SECTION 242 OF

) IMMIGRATION AND

) NATIONALITY ACT

)

section 241(a)(1) of the

Immigration and Nationality

Act of 1952 as amended [8

U.S.C. section 1251(a)(1)]

~~ Excludable at entry un-

der section 212(a)(19) of

the Act [8 U.S.C. section

1182(a)(19)] as an alien

who sought to and did pro-

cure a visa or other docu-

APP102

mentation, or sought to and

did enter the United States

by Fraud, or by willfully

misrepresenting material

facts.

a2 Section 241(a)(1) of the

Immigration and Nationality

Act of 1952 as amended [8

U.S.C. section 1251(a)(1) ]

-- Excludable at entry as

an alien who sought to and

did procure a visa or other

documentation, or sought to

and did enter the United

States, by fraud, or by

willfully misrepresenting

material facts, and there-

fore was not in possession

of a valid unexpired immi-

grant visa under section

APP103

212(a)(20) of the Act (8

U.S.C. section 1182(a)(20)

section 241(a)(2) of the [mmi-

gration and Nationality Act of

1952 as amended [8 U.S.C. sec-

tion 1251(a)(2)] -= Excludable

at entry as an alien who sought

to and did procure a visa or

other documentation, or sought

to and did enter the United

States, by fraud, or by will-

fully misrepresenting materia]

facts, and therefore is in the

United States in Violation of

o Q a : 5 - co

S U.S.C. section 1182(/a L9

+ “ + ~ rs

seCTION 4 4 A a +P ii@ immi =

- Wa anrw “7 p> 4

grati In anda Nati nat Lty Act 4 +

10cq% > snadaod IT ’ . . oan

LY52 aS amended 5 U.S.C. gec

= —— * : 4

C Ji A >i * =| ka L v4 i 44aD ie

at entry as an alien not in

possession of a valid unexpired

immigrant visa and therefore is

in the United States in viola-

tion of section 212(a)(20) of

the Act [8 U.S.C. section 1182-

(a) (20) ]

Section 241(a)(19) of the

Immigration and Nationality

Act of 1952 as amended [8

U.S.C. section 1251(a)(19) }

-- Deportable as an alien

who ordered, incited, as-

Sisted, or otherwise par-

ticipated in the persecu-

tion of persons because of

race, religion, national

origin, or political opin-

ion between March 23, 1933

and May 8, 1945, under the

APP105

APPLICATIONS:

direction of or in associa-

tion with the Nazi govern-

ment of Germany or a gov-

ernment in an area occupied

by the military forces of

the Nazi government Germa-

ny.

Termination of proceedings,

and in the alternative ap-

plication for all available

forms of relief (deemed

pretermitted by the Immi-

gration Judge (Tr. 1363)

ON BEHALF OF THE RESPONDENT:

Ivars Berzins, Esq.

484 West Montauk Hwy

Babylon, N. Y.

11702

ON BEHALF OF THE SERVICE:

Ronnie L, Edelman, Esq.

APP106

Nee

Betty-Elien Shave, Esq.

Aron A. soldberg, Esq.

Trial Attorneys

Office of Special Investigations

1400 New York Ave., N.W.

Washington, D.C. 20530

DECISION OF THE IMMIGRATION JUDGE

The respondent is a 75-year-old male, a

citizen of Australia, who was admitted to

the United States for permanent residence

on February 6, 1959. On October 29, 1984,

an Order to Show cause was issued against

the respondent pursuant to Section 242 of

the Immigration and Nationality Act of

1952, as amended [hereinafter, the Act]

(Bx.1i). An amended Order to Show Cause

dated March 18, 1988, was served on the

respondent's attorney by express mail on

March 22, 1988 (Ex. 15). In this amended

APP107

Order the Government alleges that the

respondent is deportable under the five

above~captioned charges of the Act.

po Allegations

The first six allegations in the amended

Order to Show Cause state that the respon-

dent is a native of Latvia and citizen of

Australia who resided primarily in Latvia

between 1941 and 1944, during the German

occupation of Latvia, and that he was

admitted to the United States for perma-

nent residence on February 6, 1959, based

on presentation of an Immigrant Visa and

Alien Registration card issued on December

3, 1958, by the American Consulate General

in Melbourne, Australia.

Allegations 7 thru 25 of the amended

Order to Show Cause can be grouped into

four lines of inquiry: Respondent's mem-

bership) is an anti-Soviet self-defense

APP108

unit; the existence of the Nazi-subordi-

nated "Arajs Kommando"; Respondent's mem-

bership and activities in the Arajs Kom-

mando; and Respondent's alleged misrepre-

sentations to obtain a visa.

A. Respondent's Membership in an Anti-

Soviet Self-Defense Unit

Allegations 7 and 8 state that in June

and July of the 1941 the respondent was a

member and organizer of a "Self Defense

Unit" in Litene, Latvia, where he assisted

and participated in the persecution of

persons on the basis of their political

opinions.

Arajs Kommando

Allegations » thru 14, and 17, state

that a Kommando unit known inter alia as

the "Latvian Security Auxiliary Police"

was organized during the early months of

the German occupation by Viktors Arajs in

APP109

Riga, Latvia; that the Latvian Security

Auxiliary Police, or "Arajs Kommand~ " was

organized with approval of the Nazi au-

thorities and acted in association with

the subordinat: to the German Security

Police and SD under the regional direction

of German SS General Walter Stahlecker;

that the SD, SS, and parts of the Security

Police were declared to be criminal orga-

nizations by the International Military

Tribunal at Nuremberg, Germany; that the

occupying Nazi authorities used the Arajs

Kommando to aid in the persecution and

murder of those persons considered to be

racially undesirable or enemies of Nazi

Germany; and that the Arajs Kommando mur-

dered thousande of Jewish men, women and

children in the forests Surrounding Riga.

e Respondent's Alleged Membership

and Activities in the Arajs Kon-

mando

APP110

Allegations 15 thru 21 state that the

respondent joined the Arajs Kommando on

July 29 or 30, 1941; that the respondent

served as a member, First Lieutenant, and

Company Commander in the Arajs Kommando;

that the respondent was stationed in Riga

from on or about July 29, 1941, to January

1942 during which time the Arajs Kommando

murdered thousands of Jewish men, women

and children in the forests surrounding

Riga; that during the period January 1942

to December 1944, the respondent served as

a Company Commander of the Arajs Kommando,

subordinate to the Commander of the Secu-

rity Police and SD; that during the period

July 1941 to December 1944, the respondent

served as commander of an Arajs Kommando

guard unit in concentration camps in the

Ostland; that during the period July 1941

to December 1944, the respondent assisted

or participated in the shooting of civil-

APP111

ians, including Gypsies, and in the de-

struction of at least one village; and

that as a member of the Arajs Kommando and

Security Police the respondent assisted or

participated in the persecution of persons

because of race, religion, national ori-

gin, or political opinion, under the di-

rection of or in association with the Nazi

government of Germany or a government in

an area occupied by the Military forces of

the Nazi government of Germany.

D. Visa Application and Interview

Allegations 23-24 of the Order to Show

Cause state that the respondent failed to

reveal his association with the Arajs

Kommando when obtaining his immigration

visa to the United States and therefore

wilfully misrepresented material facts.

The Order further states in allegation 25

that on March 1, 1984, the respondent,

APP112

under oath, admitted to U.S. officials for

the first time that he had served as a

company commander of a police unit direct~

ly subordinate to General Stahlecker; that

he served in the 15th SS Grenadier Divi-

sion of the Latvian Legion (see allegation

22); and that he had misrepresented and

concealed these facts when he applied for

a visa to enter the United States.

II. Deportation Hearing

Hearings in this matter were held before

the undersigned on April 4-5, 19-21, 25,

May 24, and August 1-3, 1988. The respon-

dent exercised his Fifth Amendment right

against compulsory self-incrimination when

called by the Government to testify.

However, in rebuttal he chose to testify

in his own behalf and was cross-examined.

Witness testimony and documentary evidence

was offered by both parties. Included in

APP113

the evidence are video cassettes and cor-

rected transcripts recording the testimony

of 13 witnesses deposed in Latvia. These

depositions were conducted in Latvia under

the supervision of the Soviet Government,

and the attorneys for both parties con-

cerned here were present. I granted prior

permission to conduct these depositions, I

have viewed the results, and I find these

depositions admissible as probative and

not inherently untrustworthy. See United

States v. Osidach, 513 F. Supp. 51 (E.D.

Pa. 1981); United States v. Kairys, 600 F.

Supp. 1254 (N.D. Ill. 1984), aff'd, 782

F.2d 1374 (7th Cir. 1985), cert. denied,

476 U.S. 1153 (1986). See Ex. 103 and

104. The weight accorded to the testimony

of each deponent has been judged individu-

ally and is reflected below.

Key Government Witness

APP114

The case presented by the Government at

the respondent's deportation hearing with

respect to the 241(a)(19) charge was based

in large part on the testimony of histori-

cal expert Dr. Raul Hilberg, three survi-

vors of war atrocities in Latvia, the

deposition witnesses, and admissions made

by the respondent in transcribed interview

conducted under oath by Justice Department

investigator Jeffrey Mausner on March l,

1984. The following is a selective dis-

tillation of the key witnesses' testimony.

A. Dr. Raul Hilberg!

’ Dr. Hilberg was qualified as an expert

witness in these proceedings. He is a professor of

political science at the University of Vermont

where his primary field of academic study is the

Holocaust. A detailed description of Professor

Hilberg's qualifications is set forth in the

Government's Post-Trial Brief at 4-6. I note in

particular that Professor Hilberg previously has

been qualified as an expert on the Holocaust in

deportation cases before the Immigration Court and

deportation and denaturalization cases before

District Courts of Appeals. See cases cited at

Government's Post-Trial Brief at 4 n.1l.

APP115

Dr. Hilberg testified that the armed

forces of Nazi Germany invaded Latvia in

June of 1941 (Tr. 96, 97). Within the

first few days of the invasion an organi-

zation consisting of Latvians and offi-

cially known as Latvian Auxiliary Security

Police was formed under the direction of

the German forces. Latvian Major Viktors

Arajs was placed in command of the Latvian

Auxiliary Security Police which commonly

became known as the "Arajs Kommando" (Tr.

138, 166-81). The Arajs Kommando was a

division of the German Security Police for

Latvia (Einsatzkommando 2) which was in

turn a division of the German Einsatzgrup-

be A for the Ostland region. German Dr.

Ruldolf Lange was a commander for the

Einsatzkommando 2; German Genera] Walter

Stahlecker was the initial] commander for

the Einsatzgruppe A (Tr. 105-11, 128-29,

164, 165). Dr. Hilberg testified that the

APP116

: :

Arajs Kommando was headquartered in Riga

and its task was te assist the Germans in

Carrying out acts of persecution against

Jews, Communists and Gypsies as part of

the Nazi program to annihilate these

groups (TR. 97, 98, 104-07, 136, 137, 144-

46, 148, 227-28). Dr. Hilberg stated that

membership in the Arajs Kommando was ini-

tially 50-60, totalled about 100 by August

1941, grew to approximately 300 by the end

of 1941, and included at least 700 members

during 1942 and 1943 (Tr. 158-63). He

noted that volunteers would not have been

confused as to the purpose of the Arajs

Kommando, or to the requirement that all

members participate in the persecutions

(Tr. 154-58, 185-87, 227-28).

Members of the Arajs Kommando assisted

in the execution of civilians in and

around Riga and at other villages within

APP117

Latvia, particularly on the Latvian east-

ern front, where villages were burned and

their civilians killed as part of "anti-

partisan" activity (Tr. 267-73). They

participated in the SS-organized mass

killing of thousands of Latvian Jews who

had been confined in a section of Riga

known as the Riga Ghetto (Tr. 1890-90,

194-95, 227-28).

Arajs Kommando members served as guards

at the concentration camp at Salaspils

outside of Riga (Tr. 145-46). Dr. Hilberg

testified that the inmate population at

the Salaspils camp contained from 1000 to

1800 Jews at any one time between December

1941 and the summer of 1942 (Tr. 233-40).

Many of these Jews had been transported by

the German army from Europe by train (Tr.

roe After the summer of 1942 most of

the Jewish population was moved to the

APP118

Riga ghetto and the camp thereafter was

comprised mainly of political and criminal

prisoners. The Jews at the camp wore a

yellow star on their clothing and had

separate barracks from other prisoners

(Tr. 241-43). Beginning in December of

1941 the camp was built by the prisoners

to include eighteen barracks by the summer

of 1942, a double barbed-wired exterior

fence, guard towers, and search lights

(Tr. 234-35). The camp was under the

overall command of Gestapo officer Kurt

Krause. Arajs Kommando members were as-

Signed as perimeter guards under the com-

mand of a Arajs Kommando guard company

commander (Tr. 237-39). Dr. Hilberg gave

detailed descriptions of the severe condi-

tions under which the prisoners of Salas-

pils were forced to live and work (Tr.

235ff). Many prisoners died from starva-

tion, exposure, overwork and disease (Tr.

APP119

235, 255). OQthers were beaten or murdered

directly by camp guards, including some by

public hangings in the camp (Tr. 235-36,

429757).

B. Alfred Winter, Kurt Servos and

Ernest Ilberg

Alfred Winter and Kurt Servos testified

that they were deported from Germany to

Riga, Latvia, in December of 1941 because

they were Jews. Ernest Ilberg stated that

he was deported from Germany to Riga in

January of 1942 (Tr. 423-24, 491-92). All

three testified that they were confined in

the Riga Ghetto and at the Salaspils camp

at various times. Each confirmed that

testimony of Dr. Hilberg regarding the

horrible conditions at the Salaspils camp.

Alfred Winter stated that he was impris-

oned at Salaspils concentration camp from

December 22, 1941, until mid-July 1942,

APP120

with the exception of a 12-day transfer to

the Riga Ghetto (Tr. 432-34). At this

time two barracks had been built by the

prisoners and they were working on more

(Tr. 434-35). 500 prisoners were housed

in each barracks wit minimal bedding,

meager rations of food, only what clothing

they were permitted to keep from what they

brought, and lack of sanitary facilities

(Tr. 435-42). Alfred Winter testified

that he was assigned to burial duty, col-

lecting bodies from the barracks and lying

them in an open field until mass graves

could be prepared (Tr. 444-53). Later he

was assigned to be a corpsman at a sawmill

outside the camp and often treated persons

who had been beaten (Tr. 468-70). He

testified that he was guarded in this

Capacity by Latvian guards. He stated

that he witnessed about one hundred execu-

tions by hanging or shooting, and several

APP121

random killings (Tr. 543, 462-65). Most

of these executions were carried out by

members of the Latvian guard under the

Supervision of the Germans (Tr. 454). On

one occasion Alfred Winter was beaten by

Nickel, the camp commandant (Tr. 468-70).

Kurt Servos was imprisoned at Salaspils

from the end of December 1941 thru the end

Of May or the beginning of June 1942, and

again from the end of June or beginning of

July thru early September 1942 (Tr. 491-

98, 503). Kurt Servos confirmed that

overcrowded living conditions, hard labor,

inadequate food, and deaths by malnutri-

tion and disease cited in the testimony of

Alfred Winter. Kurt Servos stated that

every morning corpses were brought from

the barracks, and that perhaps 40% of the

prisoners died in the first four months

that Kurt Servos spent at the camp (Tr.

APP122

505-09). He stated that the camp was

guarded by armed Latvian SS men who were

supervised by German officers. The guards

carried out executions and stood guard at

the work sites (Tr. 509-10). Kurt Servos

testified that he witnessed several random

killings by Dr. Lange on visits to the

camp. He also witnessed the execution by

hanging of five prisoners who had attempt-

ed to escape (TR. 512-15). Kurt Servos

was assigned to work in the sawmills and

to unload personal baggage belonging to

new arrivals at the camp. He stated that

from the names on the baggage he could

tell that it had belong to German Jews

(Tr. 515-17).

Ernest Ilberg was confined in Salaspils

from February of 1942 to mid-August 1942

(Tr. 550). He confirmed the poor condi-

tions of the camp and that the prisoners

APP123

were guarded by armed Latvian ss men under

the command of German SS men (Tr. 550-54).

Jews, political prisoners and Latvian

women were among the prisoners at Salas-

pils (Tr. 560). Ernest Ilberg testified

that near to the Salaspils camp was a

Soviet prisoner-of-war camp (Tr. 560-61).

Ernest Ilberg was assigned to forced labor

at the sawmill and then later to a bar-

racks within the camp where he sorted and

cleaned possessions that had been confis-

cated from the inmates On arrival (Tr.

554-58). Ernest Ilberg testified that he

witnessed public hangings at the camp, and

he stressed that the prison population was

forced to line up and view the executions.

Most of the camp deaths, however, were

from starvation or disease. Ernest Ilberg

Stated that when he left Salaspils in

August of 1942, at least some Jews and the

Latvian Women prisoners remained there

APP124

(Tr. 653).

oe Government Deposition Witness”

Rudolfs Soms (Ex. 81CT, 9-14-87)

Rudolfs Soms joined the Arajs Kommando

in February 1942 and served in the organi-

zation until 1944 (18). Shortly after

joining he was sent from Riga to Zabo-

lotye, near Nasva, on Latvia's eastern

front, as a private in a platoon commanded

by Indans. Rudolfs Soms testified that

Indans was subordinate to company command-

er First Lieutenant Kalejs (19-20, 25,

36). Kalejs was in turn responsible to

Viktors Arajs, and Kalejs' unit was part

of the Arajs Kommando (19-20, 99). The

Arajs Kommando was a division of the Ger-

man SD, and Viktors Arajs reported to

2 For all depositions the page cites in

parentheses refer to the page(s) of the Exhibit

listed in the caption behind the name of the

deponent.

APP125

German officer Dr. Lange, who reported to

Kaltenbruenner (21, 37). Rudolfs Soms

testified that his platoon was stationed

in Zabolotye, and that Kalejs was sta-

tioned in Nasva. Rudolfs Soms Stated he

was told that Kalejs was the company com-

mander upon arrival.

At the front, Rudolfs Soms engaged in

two battles, the first near Zabolotye (6-8

Kilometers from Nasva), and the second,

about one month later, at the village of

Sanniki (about 20 Kilometers from Zabo-

ltye). Rudolfs Soms testified that Kalejs

participated in each battle, although he

only saw Kalejs from a distance and did

not have personal contact with him at

these actions (8, 13, 60).

Rudolfs Soms testified that the first

battle his platoon was assigned to the

Outskirts of the village to guard against

APP126

potential escapees. Rudolfs Soms did not

see any of the inhabitants of the village

and none attempted to escape. While

Rudolfs Soms' platoon remained outside the

village, Kalejs' unit entered. Rudolfs

Soms saw the village houses and a church

spire burning. He stated he believes the

church spire had been used as an observa-

tion tower. Rudolfs Soms stated that

later he learned from his commander and

from members of Kalejs' unit, that the

inhabitants of the village, who were Gyp-

sies, had been exterminated and the entire

village burned (10, 27, 29, 97-100).

German General Stahlecker commanded the

attack against Sanniki, which involved

Latvian, German Estonian Units. Rudolfs

Soms testified that Stahlecker had re-

ceived information that Sanniki contained

a headquarters for Soviet military units

APP127

and had to be destroyed (97). Similar to

the first battle, Rudolfs Soms' unit re-

mained 1 to 1 1/2 kilometers from the

village. Rudolfs Soms testified that

Kalejs' ski patrol company broke into the

village, and Shooting and return machine-

gun and rifle fire could be heard. On

cross~-examination, Rudolfs Soms stated

that 9 men in his platoon were killed and

many wounded.

General Stahlecker was among those

wounded. Rudolfs Soms testified he be-

lieves that in revenge for the wounding of

Stahlecker, who died being transported

from the battle, the village was burned

down and the inhabitants in the central

village annihilated (12, 97). Some civil-

ians resisted and died in battle, others

escaped the central village and remained

alive (97). Rudolfs Soms stated he later

APP128

heard that an order to level the village

and kill the remaining inhabitants had

been issued, but he does not know who gave

the order (30).

Karlis Strazds (Ex. 83CT, 9-15-87)

Karlis Strazds voluntarily joint the

Auxiliary Police of the SD at the end of

February 1942. From February thru April

he served as an Arajs Kommando guard in

Leipaja (73-83), and from the end of April

thru June as an Arajs Kommando guard in

Minsk (84). In July 1942 he was sent to

the Fuerstenberg Police School in Germany.

When he returned to Riga from Fuerstenberg

in November 1942 he was sent to the Salas-~-

pils camp. At Salaspils Karlis Strazds

served for approximately one week as an

exterior camp guard. Karlis Strazds tes~-

tified that First Lieutenant Kalejs was

the company commander of the guard unit at

APP129

Salaspils, and that the guard company was

4 unit of the Arajs Kommando (9-11). Both

Karlis Strazds' and Kalejs' uniforms were

marked SD on the sleeve (23, 141). The

Arajs Kommando was in turn responsible to

Lange, the chief of the German SD (39).

Karlis Strazds indicated that Kalejs was

already present at the camp when Karlis

Strazds arrived, and he estimated that

Kalejs commanded 3 platoons totalling 100-

120 men (20, 32). Kalejs gave the orders

as to who went on guard duty. His orders

were carried out by the platoon leader and

top sergeant (31). Karlis Strazds' pla-

toon leader was named Lacias (32).

Karlis Strazds stated that during his

week at Salaspils he was stationed as a

guard along the exterior fence which sur-

rounded the entire camp. He was armed

with a German rifle (24) and had orders to

APP130

shoot any prisoner attempting to escape

from the camp (27). Karlis Strazds re-

called that at the time he was present at

Salaspils there were approximately 7-8

thousand prisoners housed in 15-20 bar-

racks. The prisoners were mainly politi-

cal, including soviet activists and Jews

(24~25). The Jews were housed in a sepa-

rate barracks and were required to wear a

star on their clothing (30). Karlis

Strazds recalled that both men and women

prisoners were present at the camp. He

stated that he believes there were no

children at the camp during the time he

was a guard. The external guards were not

permitted to have contact with the prison-

ers. This was left to a system of inter-

nal guards who were commanded by Viduss

(39). The internal guards carried trun-

cheons and beat the prisoners (39).

APP131

In December 1942 Karlis Strazds was sent

to Sauriesi where there was a second con-

centration camp located near a quarry.

Karlis Strazds testified that he was ap-

pointed chief of the Sixteen guards at

Sauriesi by Kalejs. Kalejs personally

traveled to the Sauriesi camp to install

Karlis Strazds as chief of the guards, and

he returned to visit the camp weekly (40,

42, 131). Karlis Strazds described the

Sauriesi camp as smaller and more tolera-

ble for the prisoners than Salaspils. The

camp housed 300 Latvian male prisoners,

Suspected activists, in two barracks.

Karlis Strazds stated that there were no

Jewish prisoners at Sauriesi (36). The

prisoners worked in a quarry.

In June 1943 the Kalejs company, includ-

ing Karlis Strazds and Kalejs were sent to

Porkhov. The company consisted of 3 pla-

APP132

toons of 40 members each plus 10 persons

who performed cooking, supply, and medical

functions (44). In Porkhov, the company

guarded another prisoner camp located in

the village of Krasnaya Beryozka and also

searched for partisans in the surrounding

area (11, 48). Karlis Strazds testified

that Kalejs decided which platoon would

remain to guard the prisoners and who

would go out to search for partisans (48).

Kalejs received his orders from the German

SD chief in Porkhov (47). The majority of

the 200 prisoners at the Porkhov camp were

Latvian Jews who were required to work on

a farm (49, 102).

Karlis Strazds recalled one incident

where shootings took place in Porkhov. He

testified that on this occasion 20-30

Gypsies were brought by truck to a pit, or

bomb crater, about 2-3 kilometers outside

APP133

Krasnaya Beryozka, where they were shot

and buried in the pit. Karlis Strazds

testified that Germans did all the shoot-

ing while Lacias' platoon, including Kar-

lis Strazds, was Ordered to guard the

Surrounding area to keep curious villagers

away, watch for escape attempts, and bury

the victims. Initially karlis Strazds

Stated that Kalejs had ordered the platoon

to stand guard, later he Clarified that he

did not know who had given the order to

the platoon. Karlis Strazds testified

that Kalejs was not present at the shoot-

ings (12-13, 50-53).

In August of 1943 the Kalejs company,

including Karlis Strazds and Kalejs, re-

turned to Riga where they were reorganized

into units again under the command of

Kalejs. The company was then sent to

Skaune to guard the border and search for

APP134

Soviet partisans (13, 59). Only one skir-

mish with partisans occurred during this

time. At this incident a woman was taken

prisoner by Kalejs and the rest of the

officers and was forced to serve as a

charwoman. Karlis Strazds stated that

this woman managed to escape in October

1943 (14, 60). The company did not meet

any civilians, as the villagers had al-

ready fled the area (66). In November

1943 the company and various German divi-

sions met with regular Soviet army troops

near the town of Nevel (14). On December

23, 1943, they were attacked by the Soviet

army. Karlis Strazds testified that

Kalejs was present with the company up to

the day of this attack when he fell ill

and left the front line (14, 67). Karlis

Strazds remained at the front line until

mid-February 1944, when he returned to

Riga (67).

APP135

Karlis Strazds testified that he last

Saw Kalejs in June or July 1944 at Arajs

Kommando headquarters in Riga where Kalejs

congratulated him on receiving an "iron

Cross" decoration (15, 68, 144).

Alfred Putnins (kx. 84CT, 9-17-87)

Kalejs is the brother of Alfred Putnins'

former wife, Vilhelmine Olga Kalejs.

Alfred Putnins testified that he first met

Kalejs in the summer of 1940. In March of

1942 Alfred Putnins and Vilhelmine Olga

Kalejs were married. Alfred Putnins stat-

ed that Kalejs wore the uniform of a First

Lieutenant of the Latvian Army. Alfred

Putnins stated that his former wife lived

with Kalejs and her parents in an apart-

ment in Riga, and that the family also had

aS summer home. When Alfred Putnins came

to Riga on leave form military service at

the end of 1943, and in Spring 1944, he

APP136

did not meet up with Kalejs. Alfred

Putnins testified that his recollection,

no certificate showing military service

was required to enter the Riga University,

at least if one was already enrolled (30).

Alfred Putnins was presented with a prior

statement he made to Soviet officials on

July 24, 1985. He disagreed with one

sentence on this Protocol by stating that

he did not have personal knowledge that

Kalejs was in the Arajs Kommando, only

that his wife had said that others said

that Kalejs was a member of the Arajas

Kommando (48). The evidence reflects that

Alfred Putnins may have last seen Kalejs

in Latvia in Kalejs' apartment in 1944

(51, 59).

Rolands Bahsteins (Ex. 89Ct, 9-19-87)

Rolands Bahsteins served as a

clerk/secretary/interpreter for Kalejs at

APP137

the Salaspils concentration came from the

beginning of 1943 until autumn of that

year when he deserted (8-9). He stated

that Kalejs was the commander of the guard

company at Salaspils. The Kalejs company

WaS part of the Latvian SD and was headed

by Viktors Arajs (8, 13). Rolands

Bahsteins testified that he worked in the

Same building as Kalejs, in an adjoining

room, that he saw Kalejs at least once

every day, and that one of this tasks was

to interpret for Kalejs who did not speak

German (15, 20, 33). Rolands Bahsteins

Carried a rifle. His and Kalejs' uniforms

were marked with sp epaulets (14).

Rolands Bahsteins described Salaspils as

a concentration camp for political and

Criminal prisoners. The camp was a large

field surrounded by barbed wire with

watchtowers in each corner and barracks

APP138

for the prisoners. Rolands Bahsteins

testified that it seemed to him there were

on Jews at the Camp, and he did not recall

seeing prisoners marked with the Star of

David (15-16). He did not remember any

hangings that took place at the camp (37).

The purpose of the Kalejs company guards

was to guard the prisoners at the camp and

on work details (9, 19). The Kalejs

guards were stationed outside the perime-

ter fence and they were forbidden to have

contact with the prisoners inside the camp

(54-56). Rolands Bahsteins gave conflict-

ing testimony as to whether there was an

internal guard at Salaspils led by Viduss,

and also whether there were German guards

at the camp (20-22, 29, 46). Rolands

Bahsteins also believes that the Kalejs

guard company guarded the camp at Sauriesi

(29). Rolands Bahsteins did not recognize

what the Government purports to be Kalejs'

APP139

Signature on an application to the Univer-

Sity of Riga, 15 May 1943 (Government's

Dep. Ex. 5) (34-36). When confronted with

a protocol signed by Rolands Bahsteins in

1986, he stated that Germans gave orders

to Kalejs was one of the first to join the

SD in 1941 (47). On cross-examination

Rolands Bahsteins stated that he had read

in a newspaper that Kalejs was a war crim-

inal who was living in the United States

(48).

Viktors Ennitis (Ex. 90CT, 9-21-87

Viktors Ennitis was appointed a guard at

the Sauriesi camp in July 1942 where he

served for approximately two weeks under

one Lieutenant Berzins (8-9). There were

at most 150 prisoners at Sauriesi during

his tour of duty (48). He then trans-

ferred to the guard company at Salaspils

where he served until being transferred to

APP140

the front jon December 16, 1942 (9, 14).

Viktors Ennitis testified that Lieutenant

Kalejs was the commander of the guard

company at Salaspils, and that the guard

unit he had served in at Sauriesi was a

detail of the Kalejs company (14, 42).

Kalejs was subordinate to Viktors Arajs

who reported to Dr. Lange (15). The

Kalejs company guards had no contact with

prisoners aside from escorting them to

work places outside the camp (9). The

inmates were Jews and political prisoners

(23). Viktors Ennitis stated that Kalejs

distributed guard duties through his sub-

ordinates (10, 18, 20). Viktors Ennitis

was assigned to guard duty in the perime-

ter watchtowers and also as an escort to

22 prisoners assigned to dig up tree

stumps outside the camp (9, 15). He car-

ried a rifie and had orders indirectly

from kalejs to fire one warning shot, and

APP141

then shoot to kill, if anyone tried to

escape (16-18).

Victor Ennitis testified that during the

time he was at the camp Viduss was in-

Stalled as head of the internal guards.

According to Viktors Ennitis, Viduss was a

Latvian of lower rank than Kalejs, but he

did not report to Kalejs. Viduss was

responsible only to German officers, and

the internal guards did not mix with the

external Kalejs guards. Among the Germans

involved at the camp were Lange, Krause,

camp commandant Nickel, and Teckemeier

(31-41).

Viktors Ennitis stated that he witnessed

the hanging of two Jews on the gallows at

the camp under the Supervision of Lange

and Krause who forced another Jew to serve

as executioner (29). He stated that other

prisoners were made to watch, and that

APP142

Kalejs was also present at this execution

(29-30). He also indicated that members

of the Kalejs guard company participated

in treating the prisoners brutally by

making them do exercises to the point of

exhaustion (66).

Karlis Rozkalns (Ex. 92CT, 9-22-87)

Karlis Rozkalns joined the Arajs Komman-

do in December 1941 at the headquarters on

Valdemara Street (8, 28). He testified

that he was a camp guard at Salaspils in

January to early February 1942. He ini-

tially stated that Kalejs was the company

commander of the Salaspils guard unit (8,

22), then he withdrew his statement con-

cerning Kalejs' presence at Salaspils (70-

71).

In February 1942 Karlis Rozkalns was

sent to Nasva as a member of a ski patrol

led by company commander First Lieutenant

APP143

Kalejs (9, 17). This company led by

Kalejs was a part of the Arajs Kommando

(17). Near Nasva he Participated in an

attack on a village allegedly containing

partisans. He testified that he was also

present at the battle in mid-March 1942

where German Genera] Stahlecker was fatal-

ly wounded (12), and he heard that inhab-

itants of the Village had been driven into

one building and the building burned (13).

Karlis Rozkalns accidently injured his

leg at the front and was sent first to

Berlin and then back to Riga where he

served in the canteen at the Arajs Komman-

do headquarters on Krisjana Borona street.

He testified that he saw Kalejs at the

canteen in uniform four or five times (21,

58). Karlis Rozkalns remembered there

being three company commanders in the

Arajs Kommando, of Which Kalejs was one

APP144

(59). The canteen was later transferred

to Kalnv Street (13, 52-53).

Georgs Pimanis (Ex. 93CT, 9-23-87

Georgs Pimanis testified that he severed

as an armed guard of the Arajs Kommando at

the Salaspils camp for five days to two

weeks at the end of August or beginning of

September 1942 (9). During this time he

saw Kalejs at the Salaspils camp one time.

Kalejs was wearing a Latvian Army uniform.

It was Georgs Pimanis' understanding that

Kalejs was a Senior Lieutenant, the com-

mander of a company in the Arajs Kommando,

and that he was at the camp to recruit

soldiers (10-13, 17, 30-31). At Salas-

pils, Georgs Pimanis, as a member of the

external guards, was under the command of

Grundmanis (14, 21). He testified that

the internal guard unit at Salaspils was

composed of Germans led by German officers

APP145

Krause, Nickels, and Teckemeier, and the

Latvian Viduss (29). Georgs Pimanis tes-

tified that there were approximately 20

Jews remaining at Salaspils at the time he

was stationed there, and that the rest had

been shot in the Bikernieki Forest. These

20 Jews were distinguished by a Star of

David on their Clothing (16-18). George

Pimanis also noted that there were women

and Soviet children at the camp (19).

After Salaspils, Georgs Pimanis served at

the Bene detention camp for political

prisoners (21-22), and occasionally also

at the Sauriesi camp (26).

D. Respondent's Deposition Witnesses

Edgars Jurgitis (Ex. 82CT, 9-15-87)

Edgars Jurgitis joined the Arajas Kom-

mando in July 1941 and remained until the

end of the war in 1945. He served as an

Office worker in the Supply department

APP146

under Elmuts at the Arajas Kommando head-

quarters at 99 Krisjana Barona Street in

Riga. Edgars Jurgitis stated that the

Arajs Kommando was also known as the Lat-

vian Security Auxiliary Police and was

subordinate to the German Security Police

(23). Edgars Jurgitis testified that at

headquarters he saw office data naming

Kalejs. He also saw Kalejs at the supply

department setting accounts with Elmuts,

although he did not speak to Kalejs.

Edgars Jurgitis testified that on three

different occasions and locations, for a

couple of hours each occasion, he was

assigned to guard roads leading into the

woods (20, 26). He heard gunfire coming

from the woods and later heard talk among

Arajs Kommando members that Jews had been

executed by Germans in the forests while

the Arajs Kommando stood guard. He also

APP147

indicated that he heard people Say that

columns of people had been marched from

Riga Ghetto towards the Rumbula Forest.

T, 9-18-87)

Jekabs Kalnins testified that he served

aS an editor in the Arajs Kommando (17)

from the end of July 1941 thru February or

March of 1942 (9), and that during this

time or any time 1941-44 he did not know

Kalejs (9). During the 8 months that

Jekabs Kalnins was a member of the Arajs

Kommando he witnessed Such atrocities as

the burning of two Synagogues and the

execution of Jews in the Bikernieki Forest

Outside of Riga. (10-11, 22-25). He first

met Kalejs in a displaced persons camp in

Germany in 1948 or 1949.

Gennadij Murnieks (Ex. 86CT, 9-18-87)

Gennadij Murnieks testified that he does

not know a man by the name of Kalejs (9).

APP148

Gennadij Murnieks entered service in the

Arajs Kommando in July of 1941 in response

to an announcement over the radio calling

for Latvians to register at Arajs Kommando

headquarters at 19 Valdemara Street in

Riga (32). These headquarters later moved

to Krisjana Barona Street (40). He testi-

fied that the Arajs Kommando was subject

to Dr. Lange ot the SD and Sicherheits-

dienst (30-31). Gennadij Murnieks esti-

mated that membership in Arajs Kommando

was about 200 when he joined and grew to 6

or 7 hundred by the end of 1941 (39).

As a member of the Arajs Kommando,

Gennadij Murnieks participated three oper-

ations where he transported prisoners from

the central prison to the Bikernieki for-

est where the prisoners were shot (11).

Gennadij} Murnieks noted that the first

prisoners were Jews (43). He stated that

APP149

both Germans and members of the Arajs

Kommando did the Shooting (44). Gennaki j

Murnieks also stood guard at the December

1941 liquidation of the Riga Ghetto, where

Jews had been quartered Subsequent to the

German armed forces' arrival] in July of

1941. Gennadij Murnieks stated that on

this one day operation 20,000 Jews were

marched from the ghetto to Rumbula where

they were Stripped and shot (49-52).

Viktors Arajs, Dr. Lange, and a German

officer Krause from the sp were present at

these operations, and all three gave or-

ders (45-48).

Gennadij Murnieks also participated in

an Arajs Kommando action with Viktors

Arajs and German officers against a syna-

gogue on Gogolu street in Riga. Gennadiji

Murnieks testified that the Synagogue was

burned down, and that he heard screams

APP150

coming from the basement of the building

(12, 17-23, 35). Gennadij Murnieks served

as a guard at a second ghetto for Jews at

Jumpravmuiza in early 1942 (57-61). Be-

ginning In June or July 1942 Gennadij

Murnieks was sent to Byelorussia and then

to Vileika where he served as a guard at

Arajs Kommando headquarters (71-77).

Gennadij Murnieks testified that he

served as an exterior guard at the Salas-

pils camp from summer to fall of 1943

(63). He had orders to shoot anyone who

tried to escape. There were 30-40 exteri-

Or guards, all members of the Arajs Kom-

mando, at the camp. The external guards

did not go inside the camp. Only the

German internal guard unit led by Krause

and his assistant had contact with the

prisoners inside the camp (67-70). Gen-

nadij Murnieks stated that Arajs Kommando

APP151

guards did escort prisoners on work de-

tails to Sauriesi (68-69).

Ernests Karklins (EX. 87CT, 9-19-87)

Ernests Karklins served as a junior

investigator in the Department of Latvian

SD. His supervisor was Herberts Teide-

manis (8). Ernests Karklins testified

that he met Viktors Arajs once and does

not know Kalejs (10). Ernests Karklins

Stated that the action against the Jews

was headed by the German sp "Operation

Division" under the command of Dr. Lange.

In Ernests Karklins' opinion, the Arajs

Kommando was not involved in this opera-

tion (15-16).

Osvalds Elins (Ex. 88CT, 9-19-87)

Osvalds Elins supervised a transport of

vehicles for the Arajs Kommando in a ga-

rage on Krisjana Borona Street and later

On Kalnv Street in Riga. His service

APP152

apparently began in 1941 and lasted until

the end of the war. He stated that there

were 150-300 men in the Arajs Kommando at

the time he joined (36). Osvalds Elins

testified that he knew Viktors Arajs well.

He also named several other Arajs Kommando

members including Tobias, Eglitis, Lei-

pins, Svikers, Elmuts, Ozols and Smalkais.

However, Edgars Jurgitis did not remember

Kalejs from this period (12-14, 34, 37).

Osvalds Elins testified that in the second

part of 1941 all the members of the Arajs

Kommando who were not on specific duty

were engaged in actions of shooting civil-

ians in the forests near Riga (27-28). He

stated that one could get more ration

cards if one was a member of the Arajs

Kommando (35).

Leonids Jansons (Ex. 91CT, 9-22-87)

Leonids Jansons testified that he joined

APP153

the Arajs Kommando at the beginning of

July 1941, and that Sometime in July he

met Kalejs at Arajs Kommando headquarters

on Valdemara Street in Riga (7-8). Leo-

nids Jansons did not mention any activi-

ties involving Kalejs and testified that

he does not remember what Kalejs looked

like (34). He remained at Arajs Kommando

headquarters for about 1-2 months (59).

At Arajs Kommando headquarters, Leonids

Jansons assisted in producing identifica-

tion certificates and distributing arn-

bands for the Organization es 3 As an

Arajs Kommando member, he assisted in

making arrests of Jews, transporting pris-

oners to Bikernieki were they were execut-

ed by Arajs Kommando members, and acting

aS a guard at the burning of a Synagogue

in the Moscow section of Riga (14-20). He

testified to the existence of a board of

concentration camps formed under German

APP154

Supervision by more moderate members of

the Arajs Kommando who did not condone the

executions (60). This organization admin-

istered a camp at Vidzeme Barracks near

Riga (65-73). In December 9141 Leonids

Jansons resumed study in the University in

the civil engineering department and con-

tinued to work in one Zeldner's office

(10). He recalled that he did not submit

proof of military service in order to

enter the university (33).

E. Respondent Konrads Kalejs

The following is a brief summary chro-

nology of events taken from the respon-

dents direct examination, cross-examina-

tion, and 1984 interview with Jeffrey

3

Mausner. The respondent's testimony is

3 The March 1984 interview (Ex. 17) was

admitted over objection from the respondent. The

Government presented the interviewer, Jeffrey

Mausner, a former trial attorney with the Office of

Special Investigations, who identified the respon-

dent as Konrads Kalejs from prior contact with the

APP155

further addressed in part IV below.

The respondent testified that he is

Konrads Kalejs, born July 26, 1913, in

Latvia (Tr. 1140; REx. 17 at 6-7). He

Studied at the Latvian Military Academy

from 1934-37 where upon graduation he

served in the Latvian Army until 1940 (Tr.

1141; see Ex. 5 to EX. 17, Ex. 17 at 19).

He stated that he was at the Salaspils

camp several times between 1937 and 1941,

prior to German occupation, when the camp

was a Latvian army summer camp (Tr. 1171-

72; Ex. 17 at 64-65). From March to Sep-

respondent including the interview (Tr. 869-74).

Mr Mausner and Lori Judd, a certified court report-

er, identified Exhibit 17 as the original tran-

Script of the interview (Tr. 871, 891-93). Ms.

Judd testified that Exhibit 17 is a true and

correct transcription of the Sworn statement taken

On March 1, 1984 (894-899). She also identified

the respondent as the interviewee and Mr. Mausner

as the officer who conducted the interview (892-

94). The record reflects that the respondent had

prior notice of the scheduled interview (Ex. 17 at

7, 9, Ex. 1 to interview; Tr. 887-89, 1194). I

find that the notice was adequate, and that the

interview was not coercive or otherwise conducted

in violation of the respondent's due process

rights.

APP156

tember of 1940 the respondent attended a

Latvian army staff college.

The respondent testified that during

1940 the Russian army occupied Latvia.

The respondent served in the "Red Army"

from 1940 to the end of June 1941 (Tr.

1141). During part of this period the

respondent was stationed at the home of a

pastor named Namgauds in Nurmuiza in Talsi

(1142). He was in service "at regimental

headquarters" with the Red Army when the

German forces invaded the beginning of

June 1941 (Tr.1143).

The respondent joined a "self-defense"

unit for about one week, the first week of

July 1941 (Tr.1145, 1228, Ex. 17 at 25).

He arrived in Riga in mid-July 1941 (Tr.

1145). There he registered with other

Latvian officers at the Latvian Society

Building on Merekela Street (Tr. 1145-46)

in response to announcements over the

radio and in the newspapers (Tr. 1260).

He traveled to his summer home and then

returned to Riga where he worked two to

three weeks in a Clothing store (Tr. 1-

145). The respondent testified that sev-

eral times during the period July thru

September 1941 he went to Nurmuiza where

he did farmwork, cared for horses, and

assisted the pastor at whose farm he had

been stationed as a member of the Red Army

(Tr. 1146-47, 1266-67). In late October

Or early November 1941 the respondent

enrolled in classes at the university at

Riga (Tr. 1148, 1150-51).

In January of 1942 the respondent met

with German officer Schroeder in Riga. A

few days later, at the end of January or

early February 1942, the respondent took

command of a ski patrol company and was

APP158

given orders to fill up the German front

in eastern Latvia. The respondent's com-

pany headed by train and/or truck to

Cholm, and then was rerouted southward to

Dno (Tr. 1151-59).

The respondent testified that in March

1942 he participated in the battle where

German General Stahlecker was fatally

wounded. The respondent estimated that

this battle took place somewhere between

Dno and Welike Luki (Tr. 1157-60; Ex. 17

at 28-30, 75-82).

In September or October 1942 the respon-

dent was relieved of his command because

of illness due to ulcers (Tr. 1162). He

returned to Riga where he was examined at

the Riga hospital. He reported to Schroe-

der who presented the respondent with a

"close combat" award (Tr. 1259-60). He

then took up residence at his family's

APP159

Riga apartment and resumed studies at the

university (Ex. 17 at 31-32). The respon-

dent estimated that during the Subsequent

period to the end of 1944 he spent approx-

imately 50% of his time in Riga and the

rest in Nurmuiza, Gulbene, or Blavinas

performing mostly farmwork Or attending to

his studies (Tr. 1164; Ex. 17 at 89-91).

He continued to receive a Salary from the

German army (Tr. 1230). In March of 1943

he was married (Tr. 1164).

The respondent stated that in the summer

Of 1944 he was called up by the Latvian

Legion Recruiting Office (Tr. 1166; Ex. 17

at 23). He left for Germany at the end of

November 1944 and arrived in Germany on

December 1, 1944 (Tr. 1172). The respon-

dent fought in the Latvian Legion until

Sometime in 1945 when he was wounded in

battle near Danzig (Tr. 1172). He was

APP160

sent to Germany and then, after he recu-

perated sufficiently, to Denmark (Tr.

1172). The respondent was in Denmark when

the war ended on May 8, 1945 (Tr. 1172).

The respondent remained in Denmark until

sometime in 1947 when he went to a dis-

placed persons camp in Rotenburg, Germany

(Fee Zarare In October 1950 he traveled

to Australia where he acquired citizenship

(Tr. 1177-78). On February 6, 1959, the

respondent immigrated to the United States

(Tr. 1182; Ex. 17 at 10).

III. Statutory Standard for 241(a)(19)

Section 241(a)(19) of the Act provides

for the deportation of any alien

*x*kwho during the period beginning on

March 23, 1933, and ending on May 8,

1945, under the direction of, or in

association with --

APP161

(a) the Nazi government in Germany,

(b) any government in any area occu-

pied by the military forces of the

Nazi government of Germany,

(C) amy 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 other-

wise participated in the persecution

of any person because of race, reli-

gion, national origin, or political

opinion.

The statute requires that the persecu-

tions have taken place because of the

victim's race, religion, or other speci-

fied characteristic. The Statute does not

require that the persecutor have any per-

APP162

sonal animus toward tne object of his

attacks. Maikovskis v. INS, 773 F.2d 435

(2d Cir. 1985); Matter of Kulle, Int. Dec.

3002 (BIA 1985), aff'd, 825 F.2d 1188 (7th

Cir. 1987). Persecution under the statute

is not limited to physical harm. H.R.

Rep. No. 95-1452, 95th Cong., 2d Sess. 3,

reprinted in 1978 U.S. Code Cong. & Ad.

News 4704. (See also cases cited in Gov-

ernment's Post-Trial Brief at 89-90).

The respondent argues that the Govern-

ment must show he actively assisted in

persecution. Respondent's Post-Hearing

Brief at 66-67, citing United States v.

Sprogis, 763 F.2d 115 (2d Cir. 1985);

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

1985). This "active assistance" standard

is not controlling in the Seventh Circuit.

In the case of a concentration camp guard,

Schellong v. INS, the Seventh Circuit

APP163

directly held that no personal involvement

in atrocities was necessary for an indi-

vidual to have assisted in persecution

under section 241(a)(19). 805 F.2d at 661

(following the Supreme Court's decision in

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

(1981), and rejecting the positions of the

Second and Ninth Circuits in Laipenieks

and Sporgis). See also Kulle v. INS, 825

F.2d. 1188, 1192-93 (7th Cir. 1987).

IV. Discussion of 241(a)(19) Charge

The first six allegations in the amended

Order to Show Cause are established by the

respondent's admissions and Supporting

documentation. The respondent stated that

he is Konrads Kalejs and that he was born

in Latvia on June 26, 1913. He stated

that during the war and until December

1944 he resided in Latvia. Four witnesses

testified on behalf of the respondent --

APP164

Erns Namgauds, Arvids Elguts, Balva Kula,

and Ernest Ozolins -- confirmed the re-

spondent's presence in Latvia at various

times from 1940 to the end of 1944. The

respondent testified that he is an Austra-

lian citizen and identified Exhibit 63 as

his Australian Passport. (TR. 1221-1224;

see testimony of forensic expert Gideon

Epstein). The respondent stated that he

immigrated to the United States on Febru-

ary 6, 1959, which is confirmed by his

Immigrant Visa and Alien Registration

application, Exhibit 16.4 He has not

° I find that Exhibit 16 is the respondent's

Application for Immigrant Visa and Alien Registra-

tion as argued by the Government. The respondent

testified that the photograph on the visa was his

own (Tr.1218). He stated that the applicant

signature on the application reads "Konrads

Kalejs." He stated that he signed the visa appli-

cation he submitted (Tr.1220-21). The Government

presented signature expert Gideon Epstein who

testified that the applicant signature on Exhibit

16 is the respondent's based on comparison to other

documents contained in the respondent's A-File, to

Exhibit 63, which the respondent admits is his

Australian Passport, and to Exhibit 43 on which the

respondent identified his own signature (Tr. 604-

49; see Government's Post Trial Brief at 52-54; Tr.

1226 (Respondent's identification of signature on

APP165

subsequently obtained U.S. Citizenship

(Tr. at 1217; see Exs. 95 and 96; Tr. at

932-42 (testimony of Michael Goldstein) ).

A. Self-Defense Unit (Allegations 7

and 8).

The respondent admitted that he was a

member of a self-defense unit during the

first week of July 1941 subsequent to his

membership in the "Red Army." His member-

Ship in a self-defense unit in Litene is

confirmed by Exhibit 74 presented by the

Government and acknowledged by the respon-

dent. However, the Government has not

Shown that as a member of this self-de-

fense unit the respondent assisted or

participated in the persecution of persons

Ex. 43)). The respondent further testified that he

Signed his Visa before a male consul (Tr. 1281-84).

The Government presented Jack Liebof, the vice-

counsel whose signature appears on the application.

Mr. Leibof testified that he countersigned Exhibit

16, and that the applicant would have signed the

application in his presence (Tr. 787, 863-65).

APP166

on the basis of their political opinions

alleged in allegation 8 of the Order to

Show Cause. The Government presented

varied documentary evidence supplemented

by the testimony of Dr. Hilberg indicating

that certain self-defense units had been

organized by the German forces, and that

the activities of these groups involved

persecution (Ex. 20T at 3, 12-15, 21T at

23; @aat at 14°18, 223; 34T at 3; Tr. 131,

135-36 (Hilberg)). This General documen-

tary evidence does not indicate that the

group to which the respondent belonged was

organized under German direction, and the

evidence does not rule out the possibility

that self-defense units may have formed

independently of direct German influence.

Background evidence suggests that Latvian

soldiers would willingly band together

against the Soviet invasion. See Respon-

dent's Post-Hearing Brief at 2-4. The

APP167

Government has not alleged or presented

evidence of specific acts of persecution

performed by the respondent as a partici-

pant of this group or by the group as a

whole. Exhibit 74 apparently was signed

on 25 November 1941, an Opportune time to

claim one took part in "terrorizing and

pursuing" Communists, whether

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