*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, 62 L.Ed.2d 405 hear- “reopened “new facts” at a prove hearings, In the 1952-1953 3.8(a), there is no such ing,” 8 C.F.R. § primary issue was whether for a motion to reconsider. requirement country *5 had entered and remained this interprets regulation per- The board a name illegally, by entering under false reopening mit reconsideration rather than remaining expired. after his visa had requests where a motion the board to on Artukovic to show that The burden was law, there are no change in the because discretionary suspen- he was entitled to a “new facts” to Thus the board re- prove. deportation. attempted sion of Artukovic judicata in revok- lied on administrative res qualify suspension on the ing stay. Artukovic’s While the board’s economic detriment to his one and one-half interpretation is entitled to the deference citizen child. The year old United States given interpreta- ordinarily agency’s an found that he had failed to hearing officer procedural regulations, tion of its own see detriment, and that prove serious economic Corp. Vermont Yankee Nuclear Power proving he had not sustained his burden of NRDC, 519, 544-55, good moral character.2 (1978), reconsidera- 55 L.Ed.2d tion appropriate procedure was not an law, Congress the 1978 intended Under case. The 1978 law’s creation Artukovic’s alien’s mem- government prove that the categories requires new factual a re- “clear, bership class described opened hearing to whether Artu- determine evi- convincing unequivocable [sic] categories. kovic comes within- the new 2d H.Rep. Cong. dence.” No. 95th (1978), Cong. & Ad. Sess. U.S.Code The govern issue raised News 4712. ment’s motion to reconsider was whether places 1978 amendment made Ar- The 1978 statute the burden on the ineligible stay. govern government. tukovic for a The use of collater- offensive question proce- al of fair sought rely suspension estoppel ment on a raises are, course, cases in which deportation hearing, initiated dure. There earlier, prove estoppel almost the offensive use of collateral thirty years See, passed parties. Artukovic fell within a statute in both efficient and fair to the merits, may significant have been a factor We also note that the decision made refer- discretionary proceed- then-pending to withhold relief ence extradition in the decision to the ing by government. pro- Yugoslavian This at that time. ceeding, subsequently dismissed on which was e.g., States, Mendoza v. United (9th Cir.1982). But this is not such a

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.