# Appendix — Kalejs v. Immigration & Naturalization Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1171%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1196 ## Text : — 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. r 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 or not the claim was grounded in fact. The Govern- ment itself has argued elsewhere that Claimed alliance with the German army against "communists" was attendant with certain privileges. See Government's Post-Trial Brief at 10. The respondent's purpose in contacting the partisan chief for this document was to take advantage of one such privilege, entry into the Univer- Sity (Tr. 1149-50). Finally, the respon- dent testified that his participation in this unit was as a soldier fighting re- treating Russian Troops (Tr. 1145, 1266, APP168 Ex. 17 at 25, 59-64). B. Arajis Kommando (allegations 9-14, il). The Government has presented ample evidence to prove the existence of Latvian Security Auxiliary Police, or "Arajs Kom- mando," as a Nazi-subordinated organiza- tion which assisted in persecuting racial- ly undesirable persons or political ene- mies of Nazi Germany (Exs. 20T-22T, 26T- 28T, 32T-36T). The deposition witnesses (with the uncorroborated exception of Ernests Karklins) testified that members of the Arete Kommando assisted in persecu- tion which took place in the Riga Ghetto, the forests surrounding Riga, at Salaspils and other concentration or labor camps, and on the eastern front of Latvia. These witnesses confirmed that the Latvian Secu- rity Auxiliary Police was led by Viktors Arajs who was directly responsible to the German officer Dr. Lange. Dr. Hilberg testified to the existence of the Arajs Kommando, its subordination to Nazi offi- cials including General Stahlecker, and its persecutory actions (see also Ex. 19). His testimony was Supplemented by that of the survivor witnesses Winter, Servos and Ilberg. The SD and SS were declared to be criminal organizations by the Internation- al Military Tribunal at Nuremberg, Germa- ny, aS were parts of the Security Police. 6 F.R.D. at 136-43. Viktors Arajs was convicted and sentenced to life imprison- ment for his actions in leading the Arajs Kommando (Ex. 22T). Based on this evi- dence, I find that allegations 9 thru 14, and the second sentence of allegation 17 which alleges the murder of thousands of Jews in the forests Surrounding Riga, have been established. APP170 C. Respondent's alleged membership in the Arajs Kommando (allegations 15-21). The Government raises four key areas of the respondent's alleged activity in the Arajs Kommando: (1) the period from July 1941 thru December 1941; (2) the respon- dent's role as a company commander on Latvia's eastern front from January to November of 1942; (3) the respondent's role as the company commander of a guard company and anti-partisan unit in 1943; and (4) the respondent's role as the com- pany commander of the exterior guard unit at the Salaspils and Sauriesi. (1) July thru December 1941 The respondent testified that he does not remember Viktors Arajs and never served in the Arajs Kommando (Tr. 1212; Ex. 17 at 43, 46). The Government asserts APP171 that the respondent joined the Arajs Kom- mando on July 29 or 30, 1941 (allegation 15). These dates are based on two certif- icates offered by the Government. Exhibit 23 is signed by Viktors Arajs and E. Ruda and states that Kalejs was a member of the Latvian Security Auxiliary Police from July 29 to the date of the certificate, November 8, 1941. Exhibit 25 is a certif- icate signed by Ozols, Assistance Head of the Latvian Security Section, in which Ozols confirms that First Lieutenant Kon- rads Kalejs, born on 26 June 1913 was in the service of the Latvian Security Sec- tion since 30 July 1941 (to the date of the letter, November 5, 1942) and was at the eastern front between 14 Feb 1942 and 27 April 1942. The respondent testified that these certificates are false and were obtained by him from friends so that he could enter the university (Tr. 1243; Ex. APP172 17 at 36, 43-45, 56, 95). I do not find the respondent's explanation to be credi- ble. The respondent testified that he registered at the Latvian Society Building in July of 1941 upon return to Riga. He responded to announcements by radio and newspaper. Gennadij Murnieks testified that he also responded to a radio an- nouncement and that the call was to regis- ter with the Latvian Security Auxiliary Police (Ex. 86CT at 32). The respondent testified that he returned to the Latvian Society Building several times expecting word that he was to be mobilized. There is no evidence to support an assertion that such mobilization would not be in conjunction with, or under supervision of, the Nazi forces. Moreover, Lenoids Jan- sons testified that he met Kalejs at Arajs Kommando headquarters on Valdemara Street in Riga in July 1941 (Ex. 91CT at 7-8), APP173 and Rolands Bahsteins testified that Kalejs was one of the first to join the sD in July 1941 (Ex. 89CT at 47). In sun, I do not find the respondent's self-serving explanation of Exhibits 23 and 25 to rebut the evidence that he was at least nominal- ly enrolled in the Latvian Auxiliary Soci- ety Police between July of 1941 and Janu- ary of 1942. However, I do not conclude that the respondent's mere registration with the Security Police is sufficient to make a finding of assistance in persecution even under the Fedorenko standard. As noted by the Board of Immigration of Appeals in Matter of Fedorenko, Int. Dec. 2963 at 17 (BIA 1984), the "objective effect of the respondent's conduct" must "in some small measure" assist the Nazi's persecution. The Government argues that, due to the APP174 shortage of manpower, the Germans enrolled all available Latvians in the Arajs Kom- mando and required all members to partici- pate in persecutory acts. Therefore, the Government deduces, the respondent must have participated in persecutory acts. The Government argues by this logical deduction because they have no facts spe- cific to the respondent. No witness, including Leonids Jansons and Rolands Bahsteins, the only witnesses to identify Kalejs as a member of the Security Police during this period, and no documentary evidence presented, identified the respon- dent as holding some position with the Arajs Kommando prior to January 1942. Dr. Hilberg estimated that the Arajs Kommando began with approximately 50 members and totalled only about 300 by the end of 1941. Yet despite this small number, the respondent, whose alleged participation in APP175 the Arajs Kommando was repeatedly de- scribed as that of a company commander of at least 100 men, is not Placed by any of the witnesses at any of the numerous ar- rests and shootings, the Synagogue burn- ings, or the atrocities associated with the Riga Ghetto during 1941. As noted in the preceding paragraph, the evidence reflects that the respondent signed his name to the rolls of the Arajs Kommando in July. There is no evidence of participa- tion or assistance beyond this act until he was called up by Schroeder in January of 1942. I find these facts Significantly different than the facts in Fedorenko, Supra, or, for example, in the case where an individual could be deemed to have assisted in persecution based on "his position and occupation and for no other reason." Matter of Blach, A10 629 292 (Imm. Ct., Los Angeles, April 27, 1987) at APP176 24-25 (cited in Government's Post-Trial Brief at 90). Moreover, unlike other points in the Government's case, the Gov- ernment cannot rely on the respondent's own admissions to support the claim that his involvement in the Arajs Kommando exceeded simple registration prior to 1942. The respondent throughout the hear- ing and in the March 1, 1984, interview maintained that he was not active in mili- tary or police service between July 1941 and January 1942 (Tr. 1228). I find that the Government has failed to sustain its heavy burden of proof in establishing that the respondent participated in persecution as a member of the Arajs Kommando prior to 1942.° ; In reaching my findings on this and all other issues in the hearing I have given no weight to either party's alleged interview with Viktors Arajs (see (Government's) Ex. 98T, testimony of Thomas Fusi, and Ex. 107; (Respondent's) Ex. 102 and testimony of Georg Buerger). Neither interview was transcribed verbatim and the circumstances APP177 (2) Respondent's activities on Latvia's eastern front in 1942. The respondent testified that he volun- teered for service in conjunction with German forces in Riga in January 1942. He stated that he was appointed company com- mander of a ski patrol unit by German officer Schroeder and sent to the eastern front in February 1942. The respondent testified that at the front he participat- ed in the battle where German General Stahlecker was fatally wounded (Tr. 1157- 62); see also Respondent's report in "Laikmets," Ex. 42). However, the respon- dent maintains that he was not under the jurisdiction of the Arajs Kommando in his capacity as a company commander, and that he functioned as a soldier, not as one who under which they were taken render them without value. See Respondent's Post-Hearing Brief at 23- 28; Government's Post-Trial Brief at 60-62. APP178 —— i - LE EO eS persecuted civilians (Tr. 1161, 1170, 1244-48, 1252-60; Ex. 17 at 83, 95). He testified that some villagers were burned and some civilians may have died, but only as a result of combat, not as an act of reprisal or purpose (Ex. 17 at 77-82). The respondent testified specifically that in the battle where Stahlecker was wound- ed, prisoners were handed over to the Germans, not executed (Tr. 1160, 1280-81). The respondent's testimony is insuffi- cient to rebut the convincing evidence presented by the Government. Deposition witnesses Rudolfs Soms and Karlis Rozkalns testified that Kalejs was a company com- mander in the Arajs Kommando, subordinate to the German SD, on Latvia's eastern front in 1942. Both witnesses testified, as noted above, that villages were burned and civilians killed in battles where APP179 Kalejs participated. Rudolf Soms stated that, based on work from members of Kalejs' own unit, inhabitants of the vil- lages near Zabolotye and Sanniki were exterminated. He testified that the kill- ing of villagers at Sanniki was a reprisal for the death of Stahlecker. Kalejs' company was the group who entered the villages on each occasion. Karlis Roz- kalns also testified that the civilians in the village where Stahlecker was wounded were killed. Dr. Hilberg testified that such actions against civilians at the front was typical of the detachment units under the SD (Tr. 267-73). see also Ex. 20T. Rudolf Soms identified two photo- graphs which he had identified in an in- vestigation in 1983 as photographs of Kalejs (Ex. 81 CT at 53, Government's Dep. Ex. 1; compare photographs in Ex. 5 and 6 to Ex. 17). Karlis Rozkalns also identi- APP180 fied his prior choice of Kalejs' photo- graph (=x. 92CT at 25). Mr. Soms also identified a photograph presented by the respondent's attorney (Respondent's Dep. Ex. 19) which I believe corresponds to the respondent's graduation photograph from the Latvian Military Academy as presented in Exhibit 108 at 35 (81CT at 74).°® The Government introduced several docu- ments relevant to the respondent's partic- ipation on the front. Exhibit 37 confirms his participation with the "Loknja Detach- ment" at Nasva, Sanniki, and Rogova in early 1942, and was issued by the Security Police and SD, Einsatzgruppe A. See also Exhibit 25. Exhibit 45 is a note signed Kalejs, dated 15 May 1943, to the Regis- trar's Office of the University and 6 I do not give significant weight to the inconsistencies in physical descriptions of Kalejs by the deposition witnesses for the reasons stated in the Government's Post-Trial Brief at 28 n.17. APP181 States: "I hereby inform you that I am in the service of the Commander of the Secu- rity Police and SD of Latvia - in the Latvian Security Section as company com- mander." The respondent testified that he Submitted this note along with Exhibit 23 to the university in conjunction with the request for a program transfer. The re- Sspondent explained that he did not in fact belong to the Latvian sp as he indicated in Exhibit 45, but that he characterized his duty at the front under the German Ostland Police in this fashion in order to obtain his program transfer (Ex. 17 at 30- 42, 95-96). However, while proof of mili- tary service may have been required for the university, the respondent gives no credible reason as to why membership in the Latvian Security Police would suffice for the university, but command of a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1171%3A2. Public record. Not legal advice.