Firishchak v. Holder
636 F.3d 305
| 7th Cir. | 2011Background
- Firishchak admitted to the Displaced Persons Act visa process in 1949 and obtained U.S. permanent residence and citizenship after alleging wartime work on a Ukrainian cooperative.
- In fact, he worked for the Ukrainian Auxiliary Police (UAP), involved in rounding up Jews for deportation and related Nazi persecution.
- The district court denaturalization decision (Firishchak I) found he lied about his wartime activities; Firishchak II affirmed this finding on appeal in 2006.
- After denaturalization, the government initiated removal proceedings asserting collateral estoppel barred relitigation of issues decided in Firishchak I.
- An Immigration Judge (IJ) applied collateral estoppel to removability findings, and the Board of Immigration Appeals (BIA) dismissed the appeal; Firishchak then petitioned for review.
- The Seventh Circuit denied the petition, holding collateral estoppel appropriately applied and Firishchak had a full and fair opportunity to litigate in Firishchak I.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Firishchak had a full and fair opportunity to litigate in Firishchak I | Firishchak claims procedures were unfair; reasons include non-random assignment and perceived bias | Government argues full and fair opportunity was provided; no due-process violation shown | Collateral estoppel valid; Firishchak had a full and fair opportunity |
| Whether non-random judge assignment violated due process for estoppel | Non-random assignment undermines due process | Non-random assignment does not necessarily violate due process in collateral estoppel | Non-random assignment does not bar collateral estoppel here |
| Whether lack of impartiality by the denaturalization judge invalidates the estoppel | District judge's conduct suggests partiality | record shows no improper bias; ordinary judicial tone is not bias | No due-process flaw; no partiality undermines estoppel |
| Whether the issues in Firishchak I and removal were identical and necessary for estoppel | Arguments may differ; merits could be relitigated | Identical issues decided in Firishchak I control removal | Yes; issues were identical and necessary to the prior judgment |
Key Cases Cited
- Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (U.S. 1979) (collateral estoppel; finality and preclusion of relitigation of identical issues)
- Montana v. United States, 440 U.S. 147 (U.S. 1979) (federal common-law governing collateral estoppel; finality in prior adjudication)
- Taylor v. Sturgell, 553 U.S. 880 (U.S. 2008) (preclusion in federal law; scope of virtual representation and related limits)
- Tittjung v. Reno, 199 F.3d 393 (7th Cir. 1999) (collateral estoppel in removal proceedings; prerequisites and application)
- Kairys v. I.N.S., 981 F.2d 937 (7th Cir. 1992) (limits and application of collateral estoppel in immigration context)
- Schellong v. I.N.S., 805 F.2d 655 (7th Cir. 1986) (estoppel; preclusive effect of denaturalization decisions)
- Liteky v. United States, 510 U.S. 540 (U.S. 1994) (judicial remarks; neutrality and appearance of bias standards)
- Castilho de Oliveira v. Holder, 564 F.3d 892 (7th Cir. 2009) (due-process considerations in asylum/adjudication contexts; tone and fairness)
- United States v. Giorgi, 840 F.2d 1022 (1st Cir. 1988) (bias and partiality standards in adjudication)
- Edwards v. Balisok, 520 U.S. 641 (U.S. 1997) (due-process limitations on biased adjudicators)
- United States v. Keane, 522 F.2d 534 (7th Cir. 1975) (due process and random assignment questions in particular contexts)
- Tyson v. Trigg, 50 F.3d 436 (7th Cir. 1995) (case assignment practices and institutional concerns)
- Cruz v. Abbate, 812 F.2d 571 (9th Cir. 1987) (non-random assignment; due process scope in assignments)