*2 SCHROEDER, Before GOODWIN and * Circuit Judges, and SOLOMON District Judge.
GOODWIN, Judge. Circuit Andrija petition Artukovic filed a to re- view an order of the Board of Immigration Appeals revoking of Immigration of the and Na- tionality Act of 1952. U.S.C. § (as 1978)1. amended We vacate the order of the board.
* Solomon, 17, 1980, The Honorable Gus J. Senior United 92 Stat. and Act of March Judge Oregon, II, States District the 203(e), District of Pub.L. No. Title 94 Stat. sitting by designation. 1251(a)(19) provides: Section 243(h), 1253(h) provides: 1. Section U.S.C. . “Any (including alien in the United States “(1) Attorney deport shall not General shall, crewman) upon an alien the order of any (other or return alien than an alien de- General, Attorney deported the be who.. 1251(a)(19) title) scribed in section of this country Attorney if the General determines (19) during period beginning .on March that such or alien’s life freedom would be 23, 1933, ending May on country threatened in such race, on account of of, the direction in or association with— religion, nationality, membership in a (A) government Germany, the Nazi of particular group, opinion; social or (B) any government any occupied in (2) area Paragraph (1) shall not military forces of the Nazi Attorney alien if the General determines Germany, ment of that— (C) any government (A)the ordered, incited, assisted, established with alien or cooperation participated persecution assistance or otherwise any Nazi person Germany on account na- (D) tionality, particular any government membership ally in a social which was an group, political opinion, government Germany, ...” the Nazi 1253(h), ordered, incited, assisted, 8 U.S.C. Act partic- as amended of Octo- or otherwise I, ipated ber any person Title Pub.L. No. be- In when attempt- entered the United States the commissioner using false name. to revoke the stay, a visitor’s visa ed on obtained a injunction district court given tempo- preventing He two extensions of his was government from depart they revoking stay except but did not when rary stay, motion before reopen the board expired. 3.2, 3.8, reconsider under or 242.22 of §§ *3 1951, Immigration In and Naturaliza- Title 8 of the Regulations. Code Federal brought deportation proceed- tion Service Bell, Artukovic v. No. CV-77-2333-IH because, Artukovic he had en- ings against (C.D.Cal. September 19, 1977) (amended passport under a false and because he tered 27, February 1980). overstayed had his visitor’s visa. Artukovic 1978, In Congress Immigra- amended the applied suspension deportation for a un- provide tion Act to that members of Nazi 19(c) of the Act of Immigration der Section governments Europe who persecuted had (39 874). Immigration 1917 and Stat. people because of their na- hearing Naturalization Service officer de- origin, political opinion tional were de- suspension hearing nied the after a in 1952. portable eligible and were not for stays 1953, hearing In officer’s decision was 243(h). 95-549, under Pub.L. No. I, Title § by Immigration Ap- the Board of affirmed (1978) (codi- 92 Stat. 2065-2066 §§ peals. Because Artukovic had failed to 1251(a)(19), fied at 8 1253(h)). U.S.C. §§ qualify suspension deportation Immigration and Naturalization Ser- 19(c), him deport- section the board ordered vice then moved the board to reconsider ed. That order was not executed because Artukovic’s stay. argued that by Yugoslavian of a pending request the stay could not be revoked without a government to extradite Artukovic for trial reopening for a full factual hearing. The on 22 counts of murder. Artukovic v. See the, board revoked stay hearing. without a Boyle, F.Supp. (S.D.Cal.1956), 140 245 aff'd It findings held that the factual of the 1953 nom., Artukovic, sub Karadzole v. 247 F.2d decision were sufficient to that determine (9th Cir.1957), remanded, and 198 vacated longer eligible Artukovic was no 393, 381, 2 355 78 S.Ct. L.Ed.2d 356 U.S. 243(h) stay applied § administrative res (1958). judicata. This appeal followed. 15, 1959, January On the United States argues (1) that: 1978 -for the District of Commissioner Southern 243(h) amendment to apply does not to California denied extradition because the case; (2) his the 1978 amendment is uncon- government had failed to offer Yugoslavian stitutional; (3) the board did-not follow its indictment support sufficient evidence proper procedures in revoking stay. to provide and there was no evidence rea- REACH OF THE 1978 AMENDMENT cause to probable sonable or believe that guilty participation Artukovic was 405(a) Artukovic contends that § crimes committed others in the 1952, of the Immigration Act of 66 166 Stat. Artukovic, ment. v. 170 United States (codified 1101, (1976)), at 8 note U.S.C. § (S.D.Cal.1959). F.Supp. 383 only was intended to insure that Immigration Act to all apply pro would 22, 1959, May Regional On Commis- ceedings argues started before 1952. He sioner of Immigration and Naturaliza- that because his deportation proceedings tion granted Service Artukovic a 1952, began before the 1978 amendment Immigra- of the apply does not to his case. tion Act of 1952 on the that ground Artuko- vic 1101, note, would subject 405(a), be if he pro- Section 8 U.S.C. § deported were Yugoslavia. vides: race, religion, origin, 1251(a)(19), cause of national 8 amended Act of U.S.C. as 30, I, opinion.” 1978, Title October Pub.L. No. 103, 92 Stat. 2065.
897
Act,
prohibition
post
(a) “Nothing
against
contained in this
ex
facto laws and
chapter]
specifical-
unless otherwise
bills of
apply
attainder does not
to deporta-
[this
therein,
ly provided
shall be construed to
Bonds,
tion statutes.
v.
Marcello
349 U.S.
any
affect
...
validity
proceeding
764,
.the
S.Ct.
L.Ed. 1107
...
at
...
status
the time this
(1955) (construing
post
ex
clause);
facto
effect;
chapter]
Act
shall take
but
[this
Immigration
Rubio de Cachu v.
& Naturali-
as
proceedings
to all such ...
...
Serv.,
(9th
zation
627-28
Cir.
statutes
.. .
repealed
Act [this
1977) (bill
clause).
of attainder
chapter] are,
specifically
unless otherwise
Congress may
establish
provided therein, hereby
continued
deportation that apply retroactively. Leh
force and effect....”
Carson,
mann
U.S.
S.Ct.
This merely
“savings
clause” to insure
(1957); Mulcahey
L.Ed.2d 1122
v. Catala
the 1917 Act
continue
would
notte,
1025, 1
L.Ed.2d
pending
cases
in 1952 if not “otherwise
*4
(1957).
case,
1127
In this
Congress has
for in the
specifically provided”
1952 Act.
merely withdrawn the basis for Artukovic’s
Carson,
685,
See Lehmann v.
353
77
U.S.
temporary, discretionary stay of deporta-,
1022,
(1957).
S.Ct.
1
1122
It
L.Ed.2d
does
Congress
tion.
If
may establish retroactive
passing
not bar Congress
legislation
from
grounds
deportation,
it has the privilege
that
anyone
affects the status of
whose
of restricting
discretionary
the
relief availa
immigration proceedings began before 1952.
ble to aliens for
there
whom
already exist
Moreover,
history
the
of
legislative
the 1978
deportation.
Artukovic has no
Congress
amendment
that
indicates
intend-
basis for
the
asserting that
1978 amend
ed it
apply retroactively
to Nazi war
ment does
not
to his case.
not deportable
criminals who were
H.Rep.
earlier
laws.
immigration
No. 95-
argues
also
that the word
1452,
3, reprinted
95th
Sess.
Cong., 2d
in “persecution” in the 1978 amendment is un
4700,
1978
Cong. & Ad.News
U.S.Code
4702. constitutionally vague.
“persecu
The term
The
applies
1978 statute
to this case.
tion” appears in at
two
immigra
least
other
CONSTITUTIONALITY OF THE 1978 tion
1153(a)(7),
statutes.
8See U.S.C. §§
243(h)
AMENDMENT TO
1253(h).
§
interpreted
This court
“perse
has
1253(h)
cution” in
“the
as
infliction
of
1978, 243(h)
Before
of the Immi
suffering or harm
those
upon
(in
who differ
gration Act of 1952authorized the Attorney
race, religion,
political opinion)
in way
a
deportation
General
stay
the
of
alien
regarded as offensive.” Kovac v. Immigra
persecution
who would be
subject
if de
Service,
tion and Naturalization
407 F.2d
ported. The 1978amendment withdrew the
102,
(9th
Accord,
Cir.1969).
107
Moghanian
protection of
from
members of the
etc.,
v.
Dept.
Justice,
U.S.
of
577 F.2d
governments
Europe
Nazi
who had “or
(9th Cir.1978).
142
Immigra
The Board of
dered, incited, assisted, or
partici
otherwise
tion Appeals defines the term more narrow
pated
any person
be
inly
relation to
as threatening a
race,
cause
origin,
national
person’s “life
...
or freedom
on account of
political
1253(h)(2)(A)
opinion.” 8 U.S.C. §§
his
religion, nationality, membership
1251(a)(19).
and
particular
group,
social
Artukovic contends that
opinion.”
F.2d
Moghanian, 577
at 142. Un
amendment
is a
of attainder
bill
and ex
circumstances,
der these
Artukovic’s vague
post facto law
it withdrew
because
the basis
challenge
ness
persuasive.
is not
stay
his
of deportation. Deportation,
however, is not a
it
punishment;
simply
is
THE BOARD’S PROCEDURES IN RE-
refusal by
the
per
harbor
VOKING THE STAY
sons whom it does not wish to harbor. Bu
Adams,
gajewitz
v.
228
U.S.
Artukovic asserts
33
board
S.Ct.
57
978
not have
(1913).
stay
L.Ed.
should
revoked
principles
judicata
of res
him an
Basic
granting
first
law without
estoppel preclude
proce
of collateral
immigration
an
hearing before
evidentiary
Even where an issue has been actual
appeal-
then be
dure.
decision could
judge, whose
ly litigated
and determined
a valid and
agree.
We
ed to the board.
judgment,
final
and the determination is
jurisdic-
give the board
regulations
judgment,
relitigation
essential
to the
reopen
or to reconsider
tion over motions
between
subsequent
the issue in a
action
decisions, including stays
deportation.
its
where
parties
generally
precluded
not
stay
grant-
Artukovic’s
was
3.2.
C.F.R. §
intervening change in the
there has
an
been
Commissioner, not the
Regional
ed
the.
per
where the burden of
governing law or
board,
decisions
regulations
but the
treat
the time of the
suasion has shifted from
before 1962 as
made
the commissioner
action to the second.
Restatement
first
See
of re-
purposes
the board for
decisions of
(Second)
(1982).
More
Judgments
Therefore,
reconsideration.
opening or
over,
context,
law
in the' administrative
jurisdiction
had
over
board
judi
res
estoppel
of collateral
principles
to reconsider the commis-
ment’s motion
See,
applied flexibly.
e.g.,
are
United
cata
deporta-
Artukovic’s
sioner’s 1959
(9th
Lasky,
States
tion.
denied,
Cir.1979),
cert.
reopen
a motion to
must offer
Although
(1979).
480,
case. government may rely not on a hear-
ing thirty years ago convened for a differ- purpose raising
ent different issues under a
different statute as a substitute for the
evidence required by the 1978 law. Due
process requires that the must
reopen the case for a new hearing at which
it must prove by clear and convincing evi-
dence that possesses personal
culpability bring which would him within not, law. The 1953 hearings were been,
and could not have directed to this
question.
Vacated.
SOLOMON, District Judge:
I dissent. FECHTELKOTTER, al.,
H.D. et
Plaintiffs-Appellees, ASSOCIATION,
AIR LINE PILOTS IN-
TERNATIONAL, Defendant-Appellant.
No. 81-4029.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Feb. 1982.
Decided Dec. Green,
Gary D.C., Washington, for de- fendant-appellant. Bacheller, Jr.,
John Bacheller, Shade & McDonald, Atlanta, Ga., for plaintiffs-ap- pellees.