*2 TANG, Bеfore BEEZ BOOCHEVER and ER, Judges.* Circuit TANG, Judge: Circuit Edgars petitions from a (“BIA” Appeals Immigrations Board of “Board”) finding him deporta- decision 241(a)(19) Immigra- under ble section (“INA”) Nationality Act tion and U.S.C. [8 § 1251(a)(19) The BIA found ]. he deportable ground partici- on Nazi pated or assisted the of Communists political opinion. their Laipenieks argues Immigration that the (“INS” and Naturalization Service or the “government”) prove deportability failed to 1251(a)(19) clear, basis of Section convincing unequivocal evidence. We * panel Judge Ely Ely panel replace lot to on the and has Judge Walter was member of argument tapes originally listening case. heard oral in this to the had benefit of proposed majority reading He argument, had concurred the briefs and oral as well as opinion an his death but had before not reviewing the record consideration of this in his dissenting proposed opportunity to consider case. opinion. Judge Robert R. Beezer was chosen agree Laipenieks and reverse the deci- deportation hearing was held sion of the BIA. period 26,1982 January through Febru- ary Following hearing,
I Immigration Judge (“U”) terminated the proceedings on the govern- basis that FACTS *3 ment had grounds failed to establish for Edgars Laipenieks was born 1913 in deportation under 1251(a)(1) either Sections Latvia part which at the time was 1251(a)(19). appealed empire. I, During Russian World War Lat- the IJ’s decision to the BIA. Septem- On independent via became an state. The 8, 1983, ber the BIA reversed the IJ’s deci- party officially Communist abolished sion Laipenieks and ordered deported on and it was a crime to a In be member. finding basis of its 1940, Latvia, June the Soviets invaded de- participated or assisted in porting thousands Latvian citizens to during communists World War II killing and be- Siberia numerous others. In 1941, cause of their opinion. June Nazi forces entered Latvia and region occupied the until 1944. 1941, July In Laipenieks joined the Latvi- II (“LPP”),
an
organization
Political Police
an
DISCUSSION
investigate
formed to
and arrest
individu-
als who had
in the atrocities
A. Standard
Review.
occupation.
thе Soviet
A historical
We first note
deporta
in a
expert
deportation
testified at the
hearing
case,
tion
the INS has the
prov
that the LPP
burden of
collaborated
with
Nazis to
ing
clear,
apprehend
by
its case
convincing
Communists
suspect-
and other
and un
sympathizers. Laipenieks
equivocal
ed Soviet
admit-
evidence which does not leave the
working
suspected
ted to
crimi-
issue in doubt. Fedorenko v. United
nals at LPP
headquarters
central
and at States,
490, 505,
449
737,
U.S.
101 S.Ct.
Riga
Central Prison.
746,
(1981).
On June Special Office of which Investigations deportation pro- may initiated the Government rely encounter when ceedings against Laipenieks, alleging ing that: on events from past. the distant (1) Laipenieks willfully misrepresented INS, Woodby v. 276, 19, 385 U.S. 286 n. 87 facts on his 1960 application making visa 483, 19, S.Ct. 488 n. 17 (1966). L.Ed.2d 362 ineligible and, therefore, him for a visa The standard of review is not al deportable 212(a)(19) under Sections [8 tered when an agency decision runs con § 1182(a)(19) 241(a)(1) U.S.C. U.S.C. ] [8 trary findings to the hearing § examin 1251(a)(1)] and; (2) during of the INA er. See NLRB v. Warren L. Rose Cast II, Laipenieks World War assisted in the Inc., ings, 1005, (9th F.2d 587 1008 Cir. persons polit- basis of 1978). However, this court has opinion, rendering deportable ical him observed un- 241(a)(19) der that in hearing Section of the INA U.S.C. a situation where the exam [8 § 1251(a)(19) Agency iner opposite and the have reached ]. 1430 However, legislation con- reviewing eye War II.
results,
appellate court's
searching:
rendering
may
provisions
certain
express
more
tained
Displaced
ineligible
Person
individuals
independent,
there is
when
[E]ven
Among
excluded
those
decision, Status.
of the Board’s
evidence
credited
who had
individuals
“assisted
reviewing
scrutinize the DPA were
court will
critically if
persecuting civilians]____”
more
findings
enemy
of fact
Board’s
factual conclu-
States,
contradict the AU’s
v. United
449 U.S.
See Fedorenko
they are in accord with
sions than if
4,
737,
5,
490,
741
66
n.
101 S.Ct.
n.
495
findings.
AU’s
(1981).
L.Ed.2d 686
NLRB,
Service, Inc. v.
Loomis Courier
1013,
DPA,
10 of the
62 Stat.
Section
Cir.1979).
(9th
also
595
496
See
F.2d
proving eligibility placed the burden of
NLRB, Village,
Penasquitos
Inc.
displaced person
applicant
on the
status
Cir.1977) (“the
(9th
special
F.2d
*4
seeking
provided
“[a]ny
admission
deservedly
the
afforded
adminis-
deference
willfully
misrepre-
shall
make a
person who
judge’s factual determinations
law
trative
purpose
gaining
for the
of
admis-
sentation
weigh
inferences will
based on testimonial
eligible
the
as an
sion into
United States
finding
contrary
of a
heavily in our review
displaced person
not
shall thereafter
Board”).
by. the
into the United States”.
admissible
B. The Merits.
litiga
government
The
has succeeded in
applicable statutory provision.
1. The
deportation
seeking
tion
of several individ
8
deportable
found
under
Laipenieks was
country
this
uals who were admitted to
§ 1251(a)(19)
the
provides
which
for
U.S.C.
See,
Fedorenko,
e.g.
DPA.
449
under the
any
of
alien
deportation
who:
737,
686;
490, 101
66 L.Ed.2d
U.S.
S.Ct.
23,
period
beginning
on March
Koziy,
F.Supp.
540
25
United
v.
States
8, 1945,
1933,
ending May
under
(S.D.Fla.1982),
(11th
government Germany,
of
883,
179,
459
103
ber pursuant country this who had not entered loophole in United States perceived to a provisions to the DPA or the similar immigration The first Immigration Law. Refugee who had Relief Act 1953 and legislation persons itself to that directed Germany persecutorial in assisted Nazi persecution of involved in who had been subject deportation. not acts were See provi- is contained certain individuals 3, reprinted Report House No. 95-1452 at 1948 Displaced Persons Act of sions of 4700, Cong. & 1978 U.S.Code Ad.News (“DPA”), seq. 1009 DPA 62 Stat. et intent of the 4702. clear Section purpose pro- for the broad was enacted 1251(a)(19) deрor amendment was to allow viding country visas to this entrance ordered, incit- displaced by ravages of individuals who had peoples tation of World
1431 ed, persecutorial or assisted on orders from the commandant of the regime. under Nazi acts Id. camp, fits within the statutory language persons about perse- assisted important There is one difference be- cution of may civilians. Other cases 1251(a)(19) tween the DPA and the Section present more difficult line-drawing prob- 2, amendment. In addition to Section Sec- lems but we need decide this case. ineligible 13 of tion the DPA makes Displaced Person Status individuals who 512-13, 34, Id. at n. 101 at S.Ct. n. 34. of, partici- are or have “been member Osidach, F.Supp. 513 at the court in, pated any movement has which is or language read the above as requiring that been hostile to the United States”. Stat. in order to “participation” establish or “as- Osidach, interpreted court sistance”, the act of participation in- must precluding Section of the DPA as Dis- personal “some volve activity involving per- placed willing Person “mere Status for secution”. membership proof personal —without DPA, Similar to Section 2 of the participation in acts of a—in subject deportation aliens under Section persecuted movement that civilians”. 513 1251(a)(19)are those F.Supp. at 72. individuals who “or dered, incited, partici assisted or otherwise provision parallel We note no pated any person ...” Section 13 of DPA exists the Section We find language that the intent 1251(a)(19) Thus, legislation. to the extent 1251(a)(19)requires Section deportabil *5 DPA such rely that cases on Osidach may ity only when be sustained the evi ground Section 13 as a deportability, we dence that in establishes the individual find inapposite them to the case at It bar. question personally ordered, incited, assist plain is clear from language the of Section ed participated persecu or otherwise in the 1251(a)(19), willing that more than member tion of individuals. ship required in a to movement is establish deportability. interpretation by This is mandated first plain language 1251(a)(19). the of Section DPA interpret
The 2 cases Section statutory provision clearly however, states that helpful, of the DPA are in inter- deportability preting 1251(a)(19) the amendment. is established when Section the “al- ” Fedorenko, ordered, In Supreme rejected the Court ien has been found to have incit- of Appeals’ finding ed, the Court 2 participated Section assisted or in otherwise of the DPA was intended to exclude persecutorial acquiescence acts. Mere or displaced person individuals from status membership organization in an is insuffi- voluntarily perse- who had in assisted the trigger deportability provision cient to the 511, cution civilians. 449 at 101 U.S. 1251(a)(19). of Section S.Ct. at 749. Fedorenko stated that the Second, legislation intent the the proper analysis under the statute was demonstrates personal that active involve whether the of the acts individual amount- persecutorial ment in acts to needs be dem assisting ed to of civil- deportability may onstrated beforе be es ians: following dialogue tablished. The between individual who did more cut no than [A]n Representative Holtzman, cosponsor of the hair of female before inmates legislation, Representative the and Seiber were executed cannot found to have during ling occurred the House debate: assisted in the civilians. Ms. HOLTZMAN.... bill is in- [T]he hand, the ques- On other there can be no participation tended to cover active and guard tion that a who issued was a uni- acquiescence mere by population not the and pistol, form armed with a rifle and a whole ... as a paid stipend regular- who and was membership SEIBERLING. Would ly allowed the Mr. to leave concentration itself, camp village standing by nearby party, and in Nazi visit a the shooting escaping participation? admitted to at inmates active constitute 1432 witnesses, presence continually No.
Ms. HOLTZMAN. to the matter as the “war criminal referred (1978). Cong.Rec. 124 31649 case” the “Nazi criminal sum, Fedorenko, by the lan- guided prejudicial The IJ that the case”. fоund statute, legislative guage of and by suggestive language highly used 1251(a)(19) intent, re- that Section we find deposition official tainted the case, govern- quires in instant that the proceedings. provide proof personal as- ment active persecutorial participation sistance or also found that the Soviet officer The IJ may deportability be estab- acts before frequently sharply curtailed defense slip Kowalchuk, op. at lished. See also opportunity counsel’s to cross-examine 16-22. deposition witnesses. IJ determined the cross-examination restrictions 2. The evidence. placed Laipenieks’ counsel limited the present hearing in the deportation expose opportunity memory faults in the period January case was held perception the Soviet witnesses 18, February through 1982 intimidating highlight atmosphere support Twelve witnesses testified deposed. which the witnesses government’s claim light prejudicial made statements persecutorial or assisted and the Soviet Procurator limitations However, only three of witnesses acts. placed on cross-examination the Soviet actually deportation at hear- testified witnesses, the IJ felt it neces- ing. The nine other witnesses testified sary deposition testimony. to discount the deposition taped oral conducted video skeptical Other courts been have Riga, in the Soviet Union. Both the Latvia deposition of similar testi- trustworthiness findings IJ and the BIA’s contain extensive mony. example, For United States testimony. of the witnesses’ discussions (D.N.J.1983), F.Supp. ap- Kungys, necessary also it to examine the We find docketed, (3rd No. peal 83-5884 Dec. Cir. if the evidence in- to determine *6 1983), government’s much of the case support deportabil- to troduced is sufficient against deposition involved the defendant ity. in testimony obtained the Soviet Union. deposi- court that the district found deposition testimony. a. The witnesses’ tions taken under such circumstances were government Nine of the witnesses testi- seriously credibility. as to undermine their depоsition testimony in through fied taken comprehensive In discus- Id. at 1123. its Rode, Edgars Andreivich the Soviet Union: problems sion with such involved Engelis, Janis Edvardovich Carlis Smeker- the testimony, the court first noted that stans, Endelis, Nikolays Aleksandrs Karlis prosecution of the from “an case resulted Augustovitch Zvirgzds, Alexan- Yladimar of cooperative effort of the Office unusual Ignats, Striguns, drovich Janis Otto Juris Special Investigations and Soviet authori- Edgars Ansis Beikmanis and Christiano- spoke next to the ties”. Id. court vich Salminsh. of involvement: difficulties Soviet admitting testimony the deposition While the are outside of The Soviet authorities witnesses, the the IJ was jurisdiction judicial of the United States greatly through the procedures troubled is system. Consequently impossible it procured. depositions which the were safeguards provide the of trust- usual First, pre-hearing the noted in the IJ that having its of the evidence worthiness deposition of three the wit- statements Union. This be- source Soviet nesses, presiding the Soviet officer re- rea- a matter concern for two comes ferred to the matter as the “case the First, the authorities have sons. Soviet Laipenieks”. The Nazi war criminal IJ also strong govern- motive that the to ensure taking observed that the actual case. the depositions, Procurator, ment succeeds in this Second Soviet criminal judicial system Soviet is he could not recall the individual who had produce structured to tailor instigated evidence and beating. results which important will further the The IJ found the deponents seven other political ends of the Soviet state at the similarly lacking in credibility. The IJ ob- expense, be, justice if need partic- in a served seventy-three year that old ular case. memory faulty. Smerkerstans, Rode’s
Id. too, faulty memory. had The IJ noted The motive the court alluded to in the deposition that demonstrated that passage above is the desire of the current occasionally Smerkerstans was unrespon- emigres to discredit sive, difficulty had hearing, had lost his who fled Europe Eastern in the face of the eyesight damaged and had nerves. Thе IJ impending Soviet advancement towards the found testimony probative Endelis’ only end of the. Second World War. Id. placing extent of Laipenieks at prison central depositions 1941. The procedural As a result of irregularities Striguns and help Salminsh did establish similar to case, those evinced in the instant Laipenieks worked for the LPP. How- the Kungys court refused to consider the ever, Striguns neither nor Salminsh deposition testimony as evidence that the Laipenieks claimed that engaged had defendant committed persecution. acts of persecutorial acts during his tenure with Id. at 1132. Ignats the LPP. Laipenieks also linked appeal, In the again instant we are prison suggest but did not Laipen- cooperative faced with a among effort engaged persecutorial ieks had acts. Fi- Special Investigations Office of and the nally, testimony Beikmanis’ was found agree Soviet authorities. We with the IJ scattered, imprecise IJ to be and dis- that Soviet procurement involvement credited. deposition testimony seriously un only IJ noted that two of the nine dermined Therefore, its trustworthiness. deponents, Smekerstans, Rode and whose we find properly that the IJ discounted the memories noticeably faulty, were able deposition testimony finding in his fact de identify positively Laipenieks from the terminations. eight-person photo spread. addition, spite problems trustworthiness IJ found of little depo- value several of the deposition with the testimony, the IJ did prisoners nents’ that fellow had videotapes. review the He found them of communicated to them had probative First, little value. the IJ noted mistreated forty year them. He noted the deponents, Engelis two of the span since the conversations had occurred Zvirgzds, claimed that phys- *7 hearsay problems and the obvious inherent ically Engelis, however, assaulted them. in testimony. such recognize Laipenieks was unable to from a photographic display as the individual who hearing b. The testimony. witnesses’ addition, Engelis had beaten him. re- carefully analyzed IJ also the hear- person called that the he remembered as ing testimony witnesses Laipenieks had entered another room to to determine if established that Lai- have a smoke. Yet the IJ observed that penieks had assisted participated per- in the record revealed that at that time Lai- Only secutorial acts. hearing three of the penieks Olympic was an class athlete and persecutorial witnesses testified about acts did not smoke. allegedly engaged in Laipenieks; Ar- Zvirgzds identified three different indi- Berzins, nold Edward Virsis and Ber Mais- eight-person photo display viduals from an ter. Laipenieks. Zvirgzds’ as The IJ found tes- timony Laipenieks that a Berzins and testified had beaten fellow Virsis at the hear- prisoner impeached ing Laipenieks inconsistent 1976 that by an had beaten them. Ber- statement made to a official which zins person Soviet recalled that the he knew as may that there have been The IJ noted jacket in a Laipenieks dressed was to sus Latvian authorities good reason for Not length pants. knee
black boots pre prisoner witnesses pect each of wit- other eleven one of the Depu activity. Engelis was illegal vious they had seen that who asserted nesses under an Executive Committee ty Chief of headquarters or central Laipenieks at the genuinely suspected and was the Russians similarly at- Laipenieks as prison described of Latvians who were preparing a list Laipenieks’ that The IJ observed tired. Berzins also was deported to Siberia. be also Laipenieks, was brother, Miervaldis preparing a list of Latvians charged with Noting the strik- prison. employed at the deported to Siberia. to be who were descriptions dress be- ingly different thought to be Zvirgzds and Virsis testimony and the other wit- tween Berzins’ the time of their sympathizers at Russian nesses, Berzins was most found that the IJ high rank imprisonment. Rode had been confusing likely the two brothers. occupation. during the Soviet ing official found to be even testimony was Virsis’ assisting the accused of was Smekerstans at the hear- convincing. His account less рrivate property dur liquidating Soviets sharp odds with a beating was at ing of his suspected Endelis was ing occupation. po- French to the he made 1947 statement sympathizer and activist. being a statement, instance, in his lice. For the Soviet Striguns a member of had been Dep- Laipenieks was a asserted Virsis cooperated with Soviet army. Ignats had Gestapo. At the uty of the German Chief defeat attempt to stave off officials in their story testified his hearing, he modified Beikmanis the hands of the Germans. at the LPP. was a member of Laipenieks militia, organ the local a member of was testimony Maister’s Finally, the IJ found Army and supplement the Soviet ized to First, credibility. he noted that lacking in being activist. suspected of a Soviet was made pre-hearing statements beaten, several ap there persons allegedly Of the alleged beating to the Maister in relation legitimate suspicion of peared to no his hear- significant variance with activity only were at to Levitanus.1 anti-Latvian addition, Maister ing testimony. whilе assaulted apparently And was Levitanus hearing, reputed persecuto the IJ Laipenieks at the of his two sons’ identified because rule and not separate occasions the Soviet that on two ria! behavior observed political his beliefs. had been unable 1974 and 1975 Maister spread. identify Laipenieks photo from a tes- Finally, Laipenieks’ the IJ noted The IJ con- timony largely credible. Laipenieks’ testimony. c. irreg- light procedural cluded that in testimony prejudice Finally, potential the IJ reviewed ularities and testimony, probative ad- val- Laipenieks. deposition He noted that the low occasionally at of both the striking ue and lack of trustworthiness inmates mitted “eyewitness” deposition testimony and the central headquarters or at the police largely credible testimony, and the However, nothing in trial found prison. IJ govern- Laipenieks, that the these acts were to establish that the record ment failed to establish that against individuals because undertaken had assisted or Rather, the IJ found political beliefs. their their of individuals because of that the witnesses the mistreatment *8 opinion. that traced to the claim could “be suffered during the re- betrayed Latvia they had The BIA Decision. occupation between pressive Soviet IJ, disagreed The BIA with 1941”, than of their rather because government had estab- finding that opinion. political Levitanus, prisoner. Maister, Alexandrovich admitting a fellow that he while was nev- 1. Ber “eyewit- remaining government Striguns, through by Laipenieks, testified er mistreated ness", headquar- Laipenieks at LPP worked with person deposition he remembered as Lai- that beating ters. penieks participated in a of one Laipenieks partici- quirements lished that assisted or for deportability. In order to pated persecution of individuals because deportability establish under Section political opinion. The BIA did concede 1251(a)(19),the individual must be found that the “mass de- murder and forceable participated have or assisted organi- portation of appar- Latvian citizens which persecutorial zation in Thus, acts. the ex- ently place occupa- took under the Soviet pert testimony as to the acts the LPP is clearly nature, tion were criminal and only helpful to the extent it establishes by [Laipenieks] efforts LPP and the organization may have in- been locate, arrest, punish responsible those persecution volved in acts of because of for prosecution such crimes constitute for political government beliefs. The must conduct, criminal political persecution.” not clear, prove by also convincing and un- However, the BIA found that equivocal evidence that perse- and the LPP’s beyond activities extended political cuted individuals opin- because of legitimate investigation suspected Com- ion or Laipenieks’ at least that acts led to apprehension munist criminals to of all of individuals because of general. Communists in The BIA found political belief. imprisonment that this of individuals mere- aсcepted The BIA government wit- ly they because were Communists consti- testimony they nesses’ were incarcer- political tuted opin- because Riga ated at merely Central Prison ion. they sympathizers were Soviet and activ- The BIA noted that several of the problems ists. We find with the BIA’s witnesses asserted that acceptance tacit of the wit- imprisoned apparent were for no reason testimony nesses’ and the Board’s ultimate political other than their The BIA beliefs. conclusion that these individuals were observed that impris- Yirsis claimed he was jailed political because of their opinion. being “pro-Soviet.” oned for sug- The BIA gested position that Rode’s innocuous as an above, agree As stated we with the IJ inspector athletics on a sports Soviet com- procedural irregularities in the taking mittee support legitimate could not belief deposition testimony seriously un- that Rode had engaged in violent acts dermine the trustworthiness of the state- against during occupa- Lаtvians the Soviet ments problems made. The BIA noted the tion. The BIA also noted several witness- deposition testimony and stated es’ testimony that other individuals had rely that it testimony only would on the imprisoned being been sympa- type persons establish the incarcerated thizers. BIA Zvirgzds found that prison at the central and also that testimo- jailed being a member of a local Soviet ny which was not Laipen- contradicted agricultural accepted committee. The BIA clearly ieks. Yet the Board relied on the testimony Beikmanis’ and Endelis’ deposition testimony help formulate its they were being incarcerated for Commu- conclusion that individuals imprisoned nist “activists.” complex at the merely because of The BIA Laipen- concluded that based on beliefs. eyewitnesses’ ieks’ and the testimony, “the procedural We find that the irregularities LPP participated perse- assisted and in the caused participation the Soviet in the persons cution of not because of crimi- procurement dеposition nal conduct but because of their communist political opinions, sympathies, or reliability activities cast the of such testimony into stemming therefrom which were not of a especially This is doubt. true here where criminal nature”. deponents’ participation admitted anti-Latvian atrocities the Soviet oc- analysis We find the BIA’s and conclu- cupation would have amounted to state- faulty First, respects. sion in several we against deponents’ ments own inter- note that the BIA’s conclusion that clearly “LPP per- upon assisted and ests. It was incumbent *9 secution” of individuals misstates the re- deposition witnesses and the Soviet authori- conspirators working to pro-Soviet under- deponents the as Communist portray to
ties Thus, imprisoned government power. in Lai- had mine the who been “innocents” certainly beliefs. the LPP had reason penieks of their and merely because of itself the behavior Soviet to concern with addition, the difficulties note that we “sympathizers”. and “activists” credibility and had with thе that the IJ the and trial deponents of Laipenieks’ heavily trustworthiness BIA relied of claims also extended to their witnesses investigated he all of that kinds admission merely they were because imprisonment question We whether this Communists. to chose The BIA sympathizers. Soviet government’s adds much to the statement of ignore credibility determinations the IJ’s First, Laipenieks quali- we note that case. the accepted witnesses and government the that by explaining the fied his statement they incar- that were assertions witnesses’ interrogations investigations spe- and were- legitimate reason. for no cerated cifically separate those structured to who or difficulty participated the in atrocities were had Soviet A we have further incar- in suspected working its that collu- analysis legitimately is conclusion of Board’s Soviet individuals who were from those who ceration sion with Soviet officials per- to amounts sympathizers and activists merely opposed to ideologically Ger- were political oрinion. Even secution because Additionally, questioning the man rule. accept government wit- if to the we were during acts suspected Communists about credible, entirely we nesses’ occupation expected to be in the Soviet was the problematic to hold that find it would light state of in Latvia when affairs through their testi- government established investigations Suspected occurred. partici- or Laipenieks assisted mony that likely most Communists were the The BIA con- pated persecutorial acts. citizenry have involved or Latvian to been investigation and incarceration cluded that concerning knowledge who was have merely ac- who were Soviet individuals responsible for committed acts perse- to sympathizers or amounted tivists occupation. Laipen- The fact that Soviet record Yet it is unclear from the cution. all investigating to Commu- ieks admitted sympathizer being a Soviet activist or what itself, nists, does not establish as a note that a “activ- might entail. We Soviet investigations of thesе individuals result any- “sympathizer” ist” could refer or political opin- persecuted because of merely an individual thing from ion. agreement ideology to with Communist important An distinction between the al- person endeavoring who was behind case leged persecution present in the and re- departed Soviet scenes to reinstall involving circumstances individuals who little gime in did Latvia. in the participated assisted establish witnesses religion, on the basis of race individuals the for- present closely case more resemble origin or national must also be considered. latter. reiterate mer than the And we singled out and by When individuals are vic- it that must establish is religion, on the race or clear, convincing unequivocal evidence timized basis origin legitimate Laipenieks assisted or national there is no reason instance, doing individuals For there was for so. no political opinion. persecution perpetrat- rational basis during the against ed Holocaust. Jews important place find it We alsо explanation can for the There one “sympathizer” “activist” terms Soviet acts; persecut- the Jews were persecutorial they in which must be inter- the context contrast, ed because were Jews. preted. During Laipenieks’ service with case more present is much trouble- LPP, Latvia was a war-torn nation. legiti- the LPP had a some. before, country Only months had suf- investigating Communists. mate basis at the fered terrible atrocities hands of remaining Communists Latvia were rule. Latvia was at war with Russia sympathetic fear hostile nation who was spies, had reason to saboteurs and
1437 day and who presently at war with the Latvians rests on the conclusion that the only a few earlier had exterminated government’s months evidence failed to establish light In thousands of Latvian citizens. deportability present in the case. legitimate investi- potentially the basis for ques- gating at the time in “Communists” III. tion, govern- we believe it incumbent on the clearly convincingly CONCLUSION ment to establish solely persecuted that individuals were be- sum, we find insufficient evidence to political opinion. of their cause support the BIA’s determination that the by BIA to government clear, Another fact relied on by established convinc- deportability Laipenieks’ establish is admis- ing unequivocal Laipen- evidence that prisoners. occasionally sion that he struck ieks assisted or persecu- certainly do not condone the While we persons political tion of of their because prisoners apparently treatment that re- petition beliefs. We therefore GRANT the prison, find ceived at the central we do not for review and REVERSE the BIA deci- Laipenieks’ support admission sufficient to sion. Perhaps deportability. the treatment prisoners at the received hands Lai- BOOCHEVER, Judge, dissenting: Circuit penieks might correctly interpreted as respectfully I dissent from the court’s 1251(a)(19). “persecution” under Section conclusion that there was insufficient evi- case, Even if this were the support dence to the BIA’s determination persecution has failed to show that this met its burden of politi- prisoner’s occurred because proof my view, in this majori- case. It this element of the statu- cal is beliefs. ty exhaustive, scholarly did not accord the tory by provision that remains unfulfilled opinion, BIA decided a unanimous five government’s evidence. board, member the deference it deserved suggests Laipenieks’ The Board also prior under this circuit’s decisions on the position assisting in the LPP amounted standard of review of administrative deci- participating or indi- sions. political opinion. viduals because of Laipenieks’ Board concluded that work as I. Standard of Review investigator an of “all kinds of commu- states, majority correctly As the in re- up nists” turned individuals were decision, viewing deportation the BIA we eventually persecuted by the LPP. The reasonable, must consider there is whether apparently BIA assumed that included substantial, probative evidence investigations by Laipenieks conducted record, whole, when considered as a persecuted were individuаls who were sole- support finding that each material fact ly political opinion. of their because How- clear, convincing, has established been ever, the record contains no evidence that INS, unequivocal Woodby evidence. v. any apprehended by individual 276, 281-83, 483, 485-87, 385 U.S. 87 S.Ct. eventually persecuted (1966). 17 L.Ed.2d 362 When Board political proof of person’s beliefs. Without disagrees with the administrative law Laipenieks’ at least one instance in which judge, reviewing may court look harder per- investigations resulted in the ultimate findings at the Board’s fact if than of his secution of an individual because beliefs, findings. to infer that we are unable accord with the officer’s NLRB, such occurred. Loomis 595 F.2d Courier Serv. v. 491, Cir.1979); (9th Penasquitos 496 Vil- limited nature of our hold- We stress the NLRB, lage, 565 F.2d Inc. v. suggest ing. It is not intended to (9th Cir.1977). However, disagree- such 1251(a)(19) deportation precludes Section ment does not alter the basic standard grounds partic- that an alien assisted Tischler, review. v. 615 F.2d NLRB ipated individuals because (9th Cir.1980); The decision to- 511 L. politicаl opinion. of their NLRB Warren *11 Inc., 1005, (3) 1008 ticipated persecution any 587- in” “the Castings, Rose F.2d of (9th Cir.1978). person” (4) opin- of political “because ... ion.” this,
Having
majority proceeds
the
said
standard, incorrectly treating
to alter the
majority
The
concedes that
(IJ’s)
Immigration Judge’s
findings
the
worked under the
of
direction
the Nazi
deference,
according
none at all to
government.
seriously ques-
It does not
proper
the BIA’s decision. The
method of
government participated
tion that that
findings
part
is to treat the IJ’s
as
review
persecution
the
of communists because of
appeal. Penasqui
of the whole record on
political
their
The majority,
beliefs.
how-
tos,
1078, quoting
565 F.2d at
Universal
ever, questions
finding
the
NLRB,
474, 496,
Corp.
340
Camera
U.S.
individually
partici-
assisted or otherwise
456, 468,
(1951).
71
95 L.Ed.
S.Ct.
456
pated
persecution
any person
the
be-
Weight may
given
the
IJ’s determina
cause of
beliefs.
credibility,
tions of
those are infer
because
Regardless
unpopularity
of com-
from
ences he or she draws
observation
society,
munism in оur
the
of a
Penasquitos,
demeanor.
at
witnesses’
person
pro-
because of communist beliefs is
However,
1078.
the IJ’s determinations of
ample
scribed
the statute. There was
Board,
credibility are not
on the
conclusive
convincing
Laipenieks partici-
evidence that
special
given
and no
deference is
to the
pated
assisted
derivative inferences the IJ draws from the
individuals
findings of fact.
were communists.
Id. at 1079. The basic
unchanged by
standard of review remains
III. The Evidence
disagreement
judge
between
Eyewitnesses
A. The
if
judge
Board:
and the Board
majority
The IJ and the
discounted the
interpret
differently,
the evidence
we can
testimony
except
of all the witnesses
Lai-
freely
interpre
not choose
between
two
penieks himself. As to the nine witnesses
long
tations. So
as the Board’s decision is
testimony
videotaped
whose
in the So-
supported by
evidence,
substantial
Con
Union,
guar-
viet
the IJ found insufficient
gress has mandated that
defer
we
§
antees of trustworthiness.
The Soviet
1105a(a)
Board аnd affirm.
8 U.S.C.
(1982);1
hearing officer on occasion
Camera,
prejudicial
used
Universal
II. The Statute dorses, testimony was untrust- opinion, As stated the BIA section BIA, worthy. contrast, held the 241(a)(19) Immigration and National- despite problems useful these at ity requirements Act contains four for de- facts, least to establish certain such as the portability: type prisoners and treatment of at the cen- (1) of, “under the direction or in associa- prison. credibility tral If this determina- tion with—the Nazi of Ger- evidence, tion were drawn from demeanor many, any government any area [or] interpretation spe- the IJ’s would deserve occupied by military forces of the weight. determination, however, cial Germany,” Nazi the re- (2) spondent par- “assisted or otherwise was based not on demeanor on facts but (a) (4) (B) procedure prescribed by, except provided para- and all the in сlause subsection, (5) provisions Chapter graph petition of Title shall of this to, apply proce- solely upon and be the sole and exclusive shall be determined the admin- for, judicial upon deportation dure review of all final orders istrative record which the deportation Attorney or hereafter made order is based and the heretofore General’s fact, reasonable, against pursu- findings supported by aliens within the United States if substantial, proceedings probative ant to administrative under sec- evidence on the 1252(b) whole, comparable provi- tion of this title or record considered as a shall be con- clusive; Act, any prior except sions of that— ... 1105a(a) (1982). § 8 U.S.C. prisoners known at RCP were Komsomol as well procedures about Thus, [persons provided we should the BIA as to the IJ. members Latvian deposi- finding that the training, indoctrination, defer to the BIA’s youngsters with people testimony credibly showed that tion to become model and socialization Soviet- com- imрrisoned solely on the basis of communist citizens—which activities beliefs, shortcomings munist unless the clearly do not rise to the level of criminal say as a egregious that we can were so Zvirgzds Karlis also was im- conduct]. *12 depositions should matter of law that the prisoned Salaspils at RCP and concentra- disregarded entirely. be camp years. for He tion three had been Obviously it is difficult find witnesses to a rural farmer and head of the local forty years occurred over of events which agricultural committee. He was arrest- ago, under control. at a location now Soviet suspected Party ed as a Communist depositions were taken Soviet- That sympathizer, and member and was may for caution occupied Latvia be reason interrogated by LPP as to whether case, evaluating testimony. In this he was a communist or Komsomol mem- however, conducting these the manner of Juris Beikmanis a ber. was Latvian depositions does not warrant their exclu- farmer and communist activist who was circumstances, it was sion. Under these prisoner at a RCP for several months. credibility BIA for the to evaluate prisoners He testified that his fellow upon and the extent which the witnesses they were held because were communist testimony could relied. their [sic], giving example activist as one a Specifically, the BIA found that the fol- prisoner Party had a or- been local lowing eye- facts were established ganizer. prisoner Ignats RCP Janis Otto testimony proved that indi- witnesses’ prisoners testified that his fellow were persecuted by LPP under viduals offenders, including political Communist the direction of the Nazi EK-2: members, members, Party Komsomol imprisoned for Edwards Yirsis was over members, Young League Communist year suspect- he one at RCP because was communist activists and trade union being “pro-Soviet.” Edgars ed of Rode members, as well as former Red Guards inspector govern- an on a was athletics militiamen. He defined “activists” sports ment committee the Soviet sports or as those involved with cultural sug- occupation of Latvia. There is no work. that, gestion whatsoever as an athletics testimony BIA also found that the inspector, any way Rode was in involved interrogation that LPP tech- established inflicting harm or violence on Latvi- frequently beatings with niques included Yet, imprisoned approxi- ans. he was fists, Laipen- blackjacks, or truncheons. mately years. and one-half Rode one during interrogation of ieks admitted that prisoners at also testified that his fellow he sometimes them with his prisoners beat
RCP were held because
were Soviet
“to
sympathizers.
“help”
prisoners
Prisoner Carlis Smeker-
to
talk”.
hand
released from RCP to work
stans was
activity
lead not
to
Communist
could
camp upon
a concentration
the con-
near
Prison,
imprisonment
Riga
at the
Central
nothing
he have
to do with
dition that
execution,
a
also to
or to transfer to
but
communists, Jews,
any political
activi-
camp.
eyewit-
concentration
One
Nikolays
imprisoned
Endelis was
at
ties.
nesses,
sympathizer
a Soviet
forced
camp
Salaspils concentration
RCP and
Gеstapo-
Nazi death threat
to work as a
he
approximately
years
three
informer,
LPP
testified that the role of the
an “activist” and a “Stakhano-
been
liquidate
LPP
“the Communist Par-
factory
working
bicycle
at his
vist”—
groups
against
ty and all other
that were
production
simplify
improve
their
Order.”
German
no
Again,
methods.
is
indication
there
the IJ and the
impeach
To
the witnesses
way
any
these
activities were
among
rely heavily on the various wit-
majority
criminal. He also testified
inability
pick
Laipenieks’ pic
nesses’
out
ments relevant to the EK-2 and the LPP.
photo spread.
ture from a
BIA did
not
lengthy opinion, majority
In its
dispos
great
draw
an inference of untrustwor
expert
es of the
in two sen
this
thiness from
failure as did
IJ.
tences, stating:
discounting
Rather than
all of the witness
Thus,
expert testimony
as to the acts
testimony,
rely
es’
BIA
chose not to
helpful
of the LPP only
is
to the extent it
the testimony
Laipen
as to identification of
organization
establishes that
may
ieks,
accept testimony by
but to
those wit
have been involved in acts of
nesses on other relevant issues.2
political
because of
govern-
beliefs. The
ignore
if
Even we were to
the standard
clear,
ment must
prove by
also
convinc-
freely
of review and chose
between the IJ’s
ing
unequivocal
evidence that Lai-
and the Board’s inferences from the failure
penieks persecuted individuals because
identify,
position
the Board’s
is the bet-
opinion or at least that Lai-
inability
ter one of the two. The
penieks’ acts
led to the
recognize photo
witnesses to
of someone
*13
individuals
because of
belief.
forty years
last
previously
seen
does not
seriously impeach their
testimony.
other
ignores
This facile dismissal
the fact that
particularly
Laipen-
This is
true because
expert testimony
prov-
went far toward
prominence
ieks’
as an athlete made him ing
did indeed assist in the
easy
identify
to
at the time of the relevant
persecution of
politi-
individuals because of
Moreover,
acts.
because this is not de-
expert testified,
cal beliеfs. The
and the
evidence,
meanor
the standard of deference
found,
BIA
that the LPP was intimately
requires
to the BIA
accept
us to
its infer-
connected with and established under the
Thus,
ences rather than the IJ’s.
these
(EK-2),
German
2
Einsatzkommando
a di-
testimony
witnesses’
competent
is also
to
vision of the
police
German
force whose
people
establish that
imprisoned
were
sole-
primary purpose
carry
was to
out the Nazi
ly on the basis of communist beliefs.
policy
eliminating
of
communists and Jews
occupied
countries. Because the EK-2
B.
Expert
The
Testimony
enough
did not have
manpower
German
to
The majority’s reversal of the BIA
carry
goals,
out its
the Germans deemed it
stems,
large part,
from the majority’s
“necessary that
security
additional
forma-
disregard
evidence,
virtual
of
expert
tions
expeditiously
be established
from the
disputed,
which was not
and on which the
groups
ethnic
conquered
territories
BIA
heavily.
relied
government’s
The
ex
us,
acceptable
which are
to
as has аlready
witness,
pert
Ph.D,
Dr. Paul Hilberg,
is a
been done to some
by
extent
the Einsatz-
noted
era,
author and historian of the Nazi
gruppen
Security
of the
Police.”
Directive
accepted
expert
has been
as an
histori
from
25,
cal witness in
Reichsfuehrer Himmler (July
numerous other cases.3 Ad
ditionally,
1941) (Exh.
the record
opinion).
before the BIA
G-34 to BIA
includ
The
copies
ed
captured
several
Nazi docu LPP
Latvia,
was formed to fill this need in
opinion
2. The BIA
states:
of research into the holocaust. He is a doctor
However,
Government, McCullough
of Public
summaries
Law and
[of
evidence]
follow,
necessary
which
we do not
University
find it
to
Professor of Political Science at the
rely
Rather,
disputed testimony.
Vermont,
author,
on this
presiden-
a noted
and a
testimony of these witnesses —all but two of
tially-appointed member of the United States
prisoners
generally
whom were
at
will
Holocaust Memorial
RCP—
Council. He has been
type
be used
insofar as it illustrates the
accepted
expert
as an
historicаl witness in the
persons
who were incarcerated at RCP and
following
Osidach,
cases: United States v.
513
them,
happened
what
or is otherwise not
(E.D.Pa.1981);
F.Supp. 51
United States v.
respondent’s testimony.
inconsistent with the
Linnas,
(E.D.N.Y.1981),
F.Supp.
aff'd,
527
426
(2d Cir.1982),
denied,
noted,
rehearing
1441
rejected
argument, properly
in a
fashion
this
organized
parallel
BIA
hold
was
police
States,
units.
ing
German
under Fedorenko v.
United
490,
737,
101 S.Ct.
CONCLUSION in this case was re- clear, convincing,
quired prove
unequivocal evidence section
1251(a)(19)applied Laipenieks. The BIA
found that had met its proof,
burden of and we should defer to the reasonable,
BIA’s if is decision there sub-
stantial, probative support evidence to record, government present-
it. On the
ed such evidence. ABATINO, Nicholas
Victor
Plaintiff-Appellant, America,
UNITED STATES of
Defendant-Appellee.
No. 83-4098. Appeals,
United States Court of
Ninth Circuit. July
Submitted 1984*.
Decided Jan. *15 * 3(f) panel appropriate Appellate finds this case for submis- Cir.R. and Federal Rule of Proce- argument 34(a). pursuant sion without to 28 U.S.C. 9th dure