Petition for review of a decision of the Board of Immigration Appeals finding petitioner deportable under §§ 241 (a) (1) and (19) of the Immigration and Nationality Act, as amended, U.S.C. §§ 1251 (a) (1) and (19). Denied. Judge Newman concurs in part and dissents in part in a separate opinion.
Before: MANSFIELD, NEWMAN, and KEARSE, Circuit Judges.
Petitioner Boleslavs Maikovskis petitions this Court pursuant to the Immigration and Nationality Act, as amended ("INA" or the "ACT"), 8 U.S.C. § 1101 et seq. (1982), to review a unanimous decision of the Board of Immigration Appeals ("BIA" or the "Board") finding him deportable under § 241 (a) (1) of the Act, 8 U.S.C. § 1251 (a) (1), for having procured his immigration visa means of willful misrepresentation of material facts, and under § 241 (a) (19) of the Act, 8 U.S.C. § 1251 (a) (19), for having assisted the Nazis in political persecution. On this petition, Maikovskis challenges the Board's finding of deportability under § 241 (a) (1) on the ground that the Board incorrectly found his false statements to be material; he challenges the § 241 (a) (19) finding of deportability on the grounds that he had inadequate notice that the Immigration and Naturalization Service ("INS") would rely on a certain series of events as a basis for the § 241 (a) (19) charge and that, in any event, that charge was not proven. We reject these challenges and uphold the determinations of deportability under both sections.
Maikovskis, a native of Latvia, entered the United States in 1951 on an immigrant visa issued under the Displaced Persons Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009 (1948), as amended by Pub. L. No. 81-555, 64 Stat. 219 (1950) ("DP Act"). His application for admission pursuant to the DP Act stated that from December 1941 to October 1944 he had worked as a bookkeeper for the Latvian Railway Department in Riga, Latvia.
In 1976, INS instituted deportation proceedings against Maikovskis, initially invoking § 241 (a) (1) of the Act, and later invoking § 241 (a) (19) of the Act as well. Section 241 (a) (1) provides for the deportation of any alien who
at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry.
8 U.S.C. § 1251 (a) (1). The DP Act, at the time of Maikovskis's entry, made excludable any person who "willfully made a misrepresentation for the purpose of gaining admission into the United States," § 10, 62 Stat. 1013, or "who advocated or assisted in . . . persecution because of race, religion, or national origin," § 13, 64 Stat. 227. INA § 241 (a) (19) provides for the deportation of any alien who
during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with --
(A) the Nazi government of Germany,
(B) any government in any area occupied by the military forces of the Nazi government of Germany,
(C) any 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 otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.
8 U.S.C. § 1251 (a) (19). As discussed in greater detail in Part III.A. below, the deportation proceeding was long and complex. Briefly, the grounds of INS's charges, as initially pleaded and as modified during the course of the hearings, were (1) that Maikovskis was deportable pursuant to § 241 (a) (1) because statements in his DP Act application as to his employment during the period 1941-1944 were materially false, since in fact he had not been a bookkeeper for the railroad but had been chief of police in a Nazi-dominated police force in Rezekne, Latvia; and (2) that he was deportable under § 241 (a) (19) because, in his position of police chief, he had assisted the Nazis in political persecution. Evidence presented at the deportation hearings before the Immigration Judge ("IJ") painted the following picture, much of which is not here disputed.
At the time of the Nazi Germany invasion of the Soviet Union, Maikovskis lived in Rezekne. In July 1941, German forces reached Rezekne and established a local Latvian police unit under the command of the SS. Maikovskis volunteered for and obtained the position of Chief of the Second Police Precinct of the Rezekne District for the Nazi-created police force, a full-time job he held from about July 1941 until 1944.
Maikovskis was responsible for an area that included the village of Audrini, which had an ethnic Russian population of the Orthodox faith believed by the Germans to be inclined toward Communism. In December 1941, altercations occurred between Latvian police and Soviet partisans believed to be harbored in Audrini, and at least two Latvian police officers were killed.
Nazi authorities ordered that action be taken against Audrini, and, on or about December 22, 1941, Maikovskis ordered his Latvian police to join with German soldiers in arresting all of the Audrini villagers, totaling 200-300 men, women, and children; on or about January 2, 1942, pursuant to Maikovskis's orders, his policemen assisted the Germans in burning the village to the ground. INS introduced several authenticated documents relating to these events, one of which was a memorandum, which Maikovskis acknowledged having signed, in which Maikovskis reported to his Latvian supervisor the mass arrests and burning of the village (hereinafter the "Audrini incident"). Maikovskis testified that he had had no choice but to order the mass arrests and burning of the village because the Nazis, through his Latvian superior, had ordered him to do so. Subsequently, in events with which Maikovskis denies involvement, about 30 of the Audrini villagers were publicly shot in the Rezekne market square, and the remaining villagers were transported to the nearby Anchupani Hills where they too were shot.
In order to show the materiality of Maikovskis's visa application misrepresentations, INS presented the testimony of the official who, as State Department vice consul in 1951, had issued Maikovskis's visa under the DP Act. She testified that if Maikovskis's application had revealed his police activities, Maikovskis would have been per se ineligible under the DP Act, and she would have denied him a visa. In an effort to show that his misrepresentations were not material, Maikovskis introduced witnesses who testified that some known members of the Latvian police in fact had not been excluded under the DP Act. These witnesses acknowledged, however, that a visa applicant who was known to have served in the Latvian police force would have had his background fully investigated.
As discussed in greater detail in Part III.A. below, the numerous charges asserted by the government against Maikovskis were eventually consolidated and numbered I through VII. As thus restated, Charges I through V and VII invoked § 241 (a) (1), asserting the Maikovskis was deportable because of his misrepresentations in obtaining his visa (Charges I, II, and IV); because his entry was "prejudicial to the interest of the United States" (Charge III); because he had "advocated or . . . assisted in the persecution of any person because of race, religion, or national origin" (Charge V); and because he had "been a member of or participated in a movement which was hostile to the United States: (Charge VII). Charge VI invoked § 241 (a) (19) and asserted that Maikovskis was deportable because he had
ordered, incited, assisted or otherwise participated in the persecution of persons because of race, religion, national origin, or political opinion, under the direction of, or in association with, the Nazi government of Germany, any government in any area occupied by the military forces of the Nazi government of Germany, any government established with the assistance or cooperation of the Nazi government of Germany, or any government which was an ally of the Nazi government of Germany, during the period beginning on March 23, 1933, and ending on May 8, 1945.
In a decision dated June 30, 1983 ("IJ Decision"), the IJ found, inter alia, that Maikovskis had knowingly and intentionally failed to disclose that he had been a policeman in Rezekne during the period 1941 through 1943, and that in that period Maikovskis had participated or acquiesced in the arrest of a number of peaceful civilian inhabitants of Audrini and in the burning of their dwellings. The IJ nonetheless concluded that Maikovskis was not deportable under any of the seven charges lodged against him.
The IJ declined to find Maikovskis deportable on the basis of the misrepresentations in the visa application documents. He noted that, although Maikovskis had provided "obviously false" information as to his prior employment, that was insufficient to require deportation because "the Government must establish not only a misrepresentation which cut off a relevant line of inquiry, but one which would have led to a proper determination that he was ineligible for a visa. This they have not done." IJ Decision at 17.
With regard to the Audrini incident, the IJ concluded:
The Government has not established that the respondent was excludable under Sections 2, 10, or 13 [of the DP Act] as one who advocated or assisted in persecution. It has been shown that he participated in the arrest of the Audrini villagers and in the burning of the village under orders of the German invaders of Latvia, as a reprisal against the killing of one or more Latvian policemen. That event ultimately led to the Audrini massacre. There has been no suggestion of racist motivation in that atrocity. On this record, the respondent's complicity has not been shown to have gone beyond the arrests and the burning of the village. The ultimate violation of the laws of war which followed has not been shown to be either predictable, planned or inevitable. Charge V and Charge VI are therefore not sustained.
Id. at 18. The IJ ordered the deportation proceedings terminated.
The government appealed the IJ's decision to the Board, which, in a decision dated August 14, 1984 ("BIA Decision"), reversed, finding Maikovskis deportable under both § 241 (a) (1) and § 241 (a) (19).
First, with respect to the § 241 (a) (19) charge, the BIA concluded that "even on the facts admitted by [Maikovskis] and found by the immigration judge, the respondent engaged in persecution of civilian populations" in connection with the Audrini incident. BIA decision at 21. The Board found, on the basis of expert testimony and numerous documents submitted at the hearing, that the Rezekne police force operated under the direction of the Nazis. It found, on the basis of Maikovskis's own testimony, that Maikovskis had assisted the Nazis in carrying out the mass arrests and burning of the village. The Board had no difficulty in concluding that the Audrini incident constituted persecution of the villagers. Noting that the legislative history of § 241 (a) (19) indicated that Congress viewed "persecution" as including "the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life, '" BIA Decision at 22 (quoting and emphasizing H.R. Rep. No. 1452, 95th Cong., 2d Sess. 3, reprinted in 1978 U.S. Code Cong. & Ad. News 4700, 4704), the Board stated that, even leaving aside the subsequent mass murders of the villagers, "the arrests of every inhabitant closely followed by the burning of their village constituted persecution of the civilian population," BIA Decision at 21.
Finally, the Board found that the persecution had been initiated because Soviet partisans had been found hiding in the village and because some of the villagers were apparently sympathetic to the Soviet cause. It concluded that
the actions carried out against the Audrini villagers were initiated because of the political opinions held by some of the inhabitants. Under these circumstances, we have no difficulty in concluding that the persecution in which the respondent assisted was based on political opinion . . . .
Id. at 24. The Board rejected Maikovskis's contention that the Audrini incident was a nonpolitical response to the earlier killings of two Latvian policemen since there was no evidence of any attempt to ferret out the persons who did the killing, and the mass arrests and burning of the entire village went beyond any so-called necessary military retaliation.
With respect to the § 241 (a) (1) charges, the BIA concluded that Maikovskis's concealment of his position as police chief was material and therefore rendered him deportable as asserted in Charges I, II, and IV. The BIA noted that all of the witnesses who testified as to the effect of Maikovskis's misrepresentations
stated that, at the very least, further inquiry would have been made if the respondent had revealed that he was the police chief of the Second Precinct in Rezekne during World War II. It is fair to assume that further inquiry would have led [to] the discovery of other true facts, including disclosure of the ...