Konrads Kalejs v. Immigration and Naturalization Service

10 F.3d 441

• Court: Court of Appeals for the Seventh Circuit
• Decided: December 30, 1993
• Docket: 92-2198
• Status: Published

Opinions

CUMMINGS, Circuit Judge.

The government seeks to deport eighty-year-old Konrads Kalejs, an alleged Nazi collaborator who has now lived in the United States for thirty-four years. After Germany’s defeat, Kalejs fled to Australia. He came to the United States in 1959 claiming to have been a farm laborer during the war. Whatever his real occupation then, Kalejs has been a financial success in the United States: he owns four homes, had assets in excess of' a million dollars in the mid-1980s, and was able to post a $750,000 bond to secure his freedom while this case was pending. The Justice Department first set its sights on Kalejs in late 1984. But when he was about to be nabbed, he took $350,000 in cash and fled to Canada and Australia. When Kalejs returned to the United States, he tried to assume a new identity and managed to elude capture for six months. He was finally arrested in Florida on April 19, 1985; government agents expended 1,500 hours in the search. In the more than eight years since his arrest, Kalejs has bitterly disputed the charges that he was an officer in a pro-Nazi unit that killed tens of thousands of people, and that he assisted in other persecutions as an army officer, policeman and concentration camp guard.

Both an immigration judge and the Board of Immigration Appeals (“BIA”) — sitting in Chicago after Kalejs was granted a change of venue- — considered the case in extraordinary detail, found Kalejs’ denials unconvincing, and held that he should be deported under 8 U.S.C. §§ 1251(a)(1)(A), 1251(a)(1)(B) and 1251(a)(4)(D).¹ If he is deported, Kalejs will return to Australia where he retains citizenship. We have jurisdiction to hear direct appeals of BIA decisions under 8 U.S.C. § 1105a(a). Kalejs presses upon us essentially three arguments: that he did not commit war crimes, that he did not lie on his visa application to enter the United States (or rather, that the lies he told were immaterial), and that prosecutors relied on inherently untrustworthy evidence — depositions and documents salvaged from the archives of the former Soviet Union — and then compounded the error by denying him due process. We affirm the BIA’s decision in all respects.

Konrads Kalejs was born on June 26,1913, in Riga, Latvia. He was educated as a professional soldier and served as a lieutenant and first lieutenant in the Latvian military. In 1940, the Russians overran Latvia. Ka-lejs salvaged his military career by joining the conquering Red Army, but a year later the Russians were themselves pushed out of Latvia by the Nazis, whose forces were driving relentlessly toward Russia on the eastern front. Again Kalejs sided with the victors; he deserted his Red Army comrades and, according to the evidence presented here, joined a pro-German force called the Latvian Auxiliary Security Police. The unit was also known as the Arajs Kommando after its leader Viktors Arajs, who was convicted by a German court and sentenced to life imprisonment in 1979 for committing wartime atrocities. (Arajs died in prison.) According to the Justice Department, from July 1941 until at least June or July of 1944, Kalejs was a company commander and first lieutenant in the Arajs Kommando.

The Nazis’ policy in Latvia (as elsewhere) was to murder all Jews, Gypsies and many Communists. After the German army swept through an area, a mobile killing crew would follow shortly, hoping to catch victims unaware. These mobile killing units were called the Einsatzgruppe or, in Latvia, the Einsatzkommando. According to the government’s expert witness in the case against Kalejs, Dr. Raul Hilberg, a renowned Holocaust scholar and professor of political science at the University of Vermont, the Ein-satzkommando assigned to Latvia had just 170 members. The logistics of attempting the systematic annihilation of the 70,000 Jews in Latvia prompted the Einsatzkom-mando to rely on bands of local soldiers. The Arajs Kommando was such a group. As a company commander, Kalejs was one of six or seven officers who were second in command to Arajs; he had a hundred men or more under his direction.

Dr. Hilberg testified that according to German documents, the Einsatzkommando with the help of the Arajs Kommando and similar local groups managed to murder 29,000 people (90 percent of them Jewish) before August 10, 1941. A few months later, in order to make room in Riga’s Jewish ghetto for the thousands of Jews whom Hitler had shipped out of Germany, 27,800 Jews were shot in the woods near Riga in the space of three days. By January 1942, only 4,000 of the 70,000 Jews who were in Latvia at the beginning of the war were still alive. The Arajs Komman-do working with the Einsatzkommando was responsible for more than half of these killings.

Kalejs and his unit had two other duties besides killing Jews in the Riga ghetto. Outside of Latvia (usually in Russia) the Arajs Kommando joined the German SS in so-called anti-partisan activity, which was little more than a cover for arresting and murdering civilians. In addition, the Arajs Kom-mando under the leadership of Kalejs served as guards at the Salaspils concentration camp. The conditions there were brutal, although Salaspils was a labor camp whose inmates died primarily from inhumane conditions or being shot while trying to escape, rather than a killing camp such as Auschwitz where the prisoners were systematically murdered in gas chambers. The Arajs Kom-mando was charged with guarding work details and preventing escapes at Salaspils.

The United States has the authority to deport Nazi collaborators for assisting in the persecution of innocents because of their race, religion, national origin or political opinion, 8 U.S.C. § 1182(a)(3)(E), and for lying about a material fact on immigration forms, Fedorenko v. United States, 449 U.S. 490, 506, 101 S.Ct. 737, 747, 66 L.Ed.2d 686. The government alleges that Kalejs is guilty of both. We will deal with each accusation in turn although the issues are married because of course the reason former Nazis lie on their immigration forms is that they would not gain admission if they told the truth about their war crimes. Stephen J. Massey, Individual Responsibility for Assisting the Nazis in Persecuting Civilians, 71 Minn.L.Rev. 97, 106 (1986). The Holtzman Act confers on the United States the power to deport, or keep out in the first instance:

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—

(I) the Nazi government of Germany,

(II) any government in any area occupied by the military forces of the Nazi government of Germany,

(III) any government established with the assistance or cooperation of the Nazi government of Germany, or

(IV) 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. § 1182(a)(3)(E). Assigning personal responsibility in a military regime is complex, particularly with regard to Holocaust era crimes because the Nazis’ murderous proficiency insured there would be few witnesses. In only a handful of these cases are there people who can place the accused at the scene of a specific crime with a gun in his hand. The same is true here. The Holtz-man Amendment’s non-criminal provision thus makes assistance in persecution an independent basis for deportation, and assistance may be inferred from the general nature of the person’s role in the war; therefore, the atrocities committed by a unit may be attributed to the individual based on his membership and seeming participation. The Supreme Court suggested in Fedorenko, for example, that an armed guard at a concentration or labor camp assisted in persecution under the statute, no matter that it could not be proved he committed a specific atrocity and despite the fact that the guard acted at the direction of a camp commandant. 449 U.S. at 512 n. 34, 101 S.Ct. at 750 n. 34. As we recently said,

If the operation of [a concentration] camp were treated as an ordinary criminal conspiracy, the armed guards, like the lookouts for a gang of robbers, would be deemed coconspirators, or if not, certainly aiders and abettors of the conspiracy; and no more should be required to satisfy the noncriminal provision of the Holtzman Amendment that makes assisting in persecution a ground for deportation.

Kairys v. Immigration and Naturalization Service, 981 F.2d 937, 943 (7th Cir.1992), certiorari denied, - U.S. -, 113 S.Ct. 1832, 123 L.Ed.2d 460. See also Schellong v. Immigration and Naturalization Service, 805 F.2d 655, 660, 662 (7th Cir.1986), certiorari denied, 481 U.S. 1004, 107 S.Ct. 1624, 95 L.Ed.2d 199; United States v. Kairys, 782 F.2d 1374, 1377 n. 3 (7th Cir.1986), certiorari denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703.

According to testimony, Kalejs was not “merely” a guard at a concentration camp but the commander of such guards. In addition, he was a key officer in a unit that has been proved by eyewitness testimony and Nazi-era documents to have killed tens of thousands of innocents. The charges levelled against Kalejs, if true, undoubtedly qualify as assistance in persecution under the Holtzman Act. Kalejs’ status as an officer in the Arajs Kommando probably qualifies as ordering, inciting and participating in persecution under the Act as well. Dr. Hilberg’s expert opinion was that, in this instance, attributing the atrocities of the group to the individual is logical because an officer in the Arajs Kom-mando would have “as a'matter of course” participated in the slaughter. Kalejs’ primary defense, then, is to deny membership in the Arajs Kommando. He argues that the immigration judge and BIA relied on inherently untrustworthy evidence and that, even on its own terms, the evidence does not establish his guilt.

The government produced a number of documents from 1941 to 1945 referring to Konrads Kalejs as a member, company commander or first lieutenant of the Arajs Kom-mando. One was a form submitted to the University of Riga on November 28, 1941, and signed by the head of the unit, Viktors Arajs, that said, “First lieutenant Konrads Kalejs has been a member of the Latvian Auxiliary Security Police from 29 July, this year, to the present.” Recall that the Latvian Auxiliary Security Police was the official name of the Arajs Kommando. Another form submitted by the deputy chief of the Kommando on November 5, 1942, provides that “First Lieutenant Konrads Kalejs born on 26 June 1913, has been in the service of the Latvian Security Section since 30 July 1941 and was at the Eastern front between 14 February 1942 and 27 April 1942.” Even more compelling is a note in Kalejs’ handwriting, dated “Riga, 15 May 1943,” to the university registrar that says, “I hereby inform you that I am in the service of the Commander of the Security Police and SD of Latvia — in the Latvian Security Section as a company commander” (App. at 56). The record in this case is strewn with similar documents including certified copies of officers’ identification badges. The United States also produced three witnesses who testified that Kalejs was a company commander and first lieutenant in the Arajs Kommando; four witnesses placed Kalejs as a head guard at the Salaspils concentration camp.

Kalejs first took the Fifth Amendment at his deportation hearing. When he decided to testify, Kalejs explained these damning documents by saying that, in order to continue his studies at the university, he needed to demonstrate participation in the German war effort. A friend helped him procure these affidavits, petitioner maintains, and told him what to write. He did not know Viktors Arajs and did not learn the true nature of the Arajs Kommando until the war was over. He was also utterly unaware that Jews, Gypsies and Communists were being executed in mass numbers in Latvia. As Kalejs tells it, he was merely a student in early 1942 when he joined a police unit of skiers and was sent to the eastern front. Then, in late 1942, he developed an ulcer and was out of commission for twenty-seven or twenty-eight months, although he continued to receive his military salary from the Germans. He continued to study and worked part time on a farm. In 1943 he married and lived with his parents in Riga. He was called to report to the Latvian Legion in 1944 and was sent for training in late 1944 and early 1945 to Germany. At the war’s end he became police chief in a displaced persons’ camp.

The immigration judge and the BIA did not believe Kalejs’ denials and neither do we. He does not explain, for example, how he so easily obtained affidavits identifying him as not merely a member but an officer of the Arajs Kommando, or why he didn’t simply obtain a certificate from the unit he claimed to be a member of. It is also incredible that the Germans would have continued to pay the military salary of a Latvian soldier for two-and-a-half years while he was recuperating from an ulcer, studying and laboring on a farm. Kalejs claims to have had no knowledge of the mass executions of Jews outside Riga, but according to expert testimony the subject had set the town abuzz at the time. And Kalejs admitted to serving under a general who was head of the Einsatzgruppe, the mobile killing unit, in Latvia, although he later tried to distance himself from this testimony. Finally, there are multiple witnesses including other members of the Arajs Kom-mando who placed Kalejs in the unit as an officer as well as at Salaspils concentration camp. Several of these witnesses identified Kalejs as the man they knew from an array of 250 photographs, a stunning indictment given the fifty years that have passed since any of these people had seen the accused. We hold, therefore, that the BIA was amply justified in concluding that Kalejs assisted in the persecution of people because of their race, religion, national origin or political beliefs within the meaning of the Holtzman Act.

The second ground for deporting Kalejs is his fraudulent statements on immigration forms. On December 3, 1958, Kalejs appeared before an American vice consul in Melbourne, Victoria, Australia, and signed a statement (swearing that he was telling the truth) that listed his activities since the age of sixteen. The twenty-fifth question on the visa application asked for a list of residences and occupation(s). Kalejs wrote that he was a member of the Latvian Army from 1929 to 1941, but that from 1941 to 1944 he was a farm laborer and lived in Nurmuiza, Talsi, Latvia. Petitioner admits in his brief that this information was false or at least incomplete but makes the extraordinary argument that there was no space on the form to give an accurate description. Even Kalejs admits that he received a military salary throughout the war; he could have said “soldier” or “military” or “army” in as little space as “farm laborer.” And given our conclusion that Kalejs was actually an officer in a brutal pro-Nazi military unit, the description “farm laborer” was not even a partially accurate description of Kalejs’ activities during the war. The real reason Kalejs decided to lie, of course, was not an absence of space on the visa application — after all, he also had a personal interview with American consular officials during which he could have given a more expansive and accurate representation of his war years — but the fear that he would not be allowed to enter the United States if his true involvement were known. Kalejs admitted as much in a 1984 deposition taken before he had obtained counsel or attempted to flee from American authorities and deportation hearings.

The government may deport or exclude “[a]ny alien who, by fraud or wilfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States * * 8 U.S.C. § 1182(a)(6)(C)(i). This statute requires that the government prove by clear and convincing evidence four things: (1) the person misrepresented or concealed some fact; (2) the person did so willfully; (3) the fact was material; and (4) the misrepresentation resulted in the person obtaining a visa, documentation or entry into this country. Kungys v. United States, 485 U.S. 759, 767, 108 S.Ct. 1537, 1544-45, 99 L.Ed.2d 839. There is no question in this case that Kalejs’ visa applications violated prongs one and two; that is, Kalejs misrepresented facts and he did this willingly. In fact, Kalejs admitted as much on two occasions. The issue, then, is whether petitioner’s lies were material and whether they resulted in his acquisition of the U.S. visa. Under Kungys, a false statement is material if it had a natural tendency to influence the decisions of the Immigration and Naturalization Service. Id. at 772, 108 S.Ct. at 1547. Once materiality is proved by clear and convincing evidence, the government is deemed to have established a rebuttable presumption that the person got his visa because of the misrepresentation. The accused may rebut the presumption by showing through a preponderance of the evidence that the statutory requirement for admission was met regardless of the falsehood. Id. at 777, 108 S.Ct. at 1549-50. This is most definitely not a “but for” analysis, according to the Court; that is, the government need not establish that “but for” the misrepresentation, the person would have been denied entry. Id. at 777-779, 108 S.Ct. at 1549-51. Obviously, since materiality has been defined as the tendency to influence immigration officials, it is intertwined with the question of whether the person obtained a visa because of the misrepresentation. In essence, the materiality requirement is designed to exclude trivial or irrelevant misstatements and the obtaining or procuring requirement is designed to measure how heavily officials relied on the falsehood.

Kalejs argues that Kungys does not apply to him because that decision was not rendered until all the evidence was submitted in his case. This is not correct. Kungys was actually decided on May 2, 1988, three months before Kalejs began his defense. Even so, Kungys would apply. Petitioner relies on Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199, for the proposition that for him to be bound by the new rule of law enunciated in Kungys would be unjust. But Allen was a criminal case in which a new constitutional rule was announced; the instant case is a civil proceeding in which a statutory interpretation was merely clarified. Where the Supreme Court has applied a rule of law to litigants in one case, we are bound to apply the same rule to all others in the civil context unless specific procedural rules or res judicata prevents it. James B. Beam Distilling Co. v. Georgia, — U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481. Moreover, even if Kungys did not apply to Kalejs, his misrepresentations would still be material under Chaunt v. United States, 364 U.S. 350, 355, 81 S.Ct. 147, 151, 5 L.Ed.2d 120, since “facts were suppressed which, if known, would have warranted denial of citizenship or * * * [whose] disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.”

When Kalejs applied to enter the United States, consular officials had the authority under 8 U.S.C. § 1182(a)(27) to exclude those who “seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.” This statute conferred great discretion on consular officials and, according to testimony at Kalejs’ hearing, it was frequently employed in the late 1950s to exclude those suspected of Nazi involvement. Two former consular officials told the immigration judge that State Department policy in 1958 when Kalejs applied for a visa was to explore in great depth the wartime activities of German collaborators, and anyone with serious involvement in Nazi activity would have had their applications denied. If Kalejs had told the truth about any part of his war service in the Arajs Kommando, it would certainly have prompted further inquiry — in this sense the lies undoubtedly tended to influence the decision of American officials to permit Kalejs to enter the country, the test under Kungys — and would probably have tipped the scales entirely against admitting him. This establishes a rebuttable presumption that Kalejs would not have been admitted to this country had he told the truth, and Kalejs has done nothing to refute this notion. We hold, therefore, that Kalejs’ lies on immigration documents were material and resulted in his obtaining a visa and admission to the United States. He is thus deportable for lying on his immigration forms, although as noted the BIA was also justified in deciding to deport Kalejs for persecuting innocents.

Petitioner finally argues that we should scrap most of the evidence against him because it is inherently unreliable. A number of witnesses were deposed in Riga in September 1987 in what was then part of the Soviet Union, and many Nazi-era documents were stored in Soviet-controlled archives. Moscow recognized Latvia’s independence in September 1991 before the Soviet Union itself dissolved, but those events do not alter this case. According to Kalejs, prosecutors erred in considering evidence from the Soviet Union and then compounded their error by failing to allow the accused to engage in sufficient discovery so that he could prove the Soviet treachery. At its heart, this is a claim about the denial of due process. First, we reject out of hand the overarching argument that any evidence flowing from the Soviets is fundamentally flawed because, as the petitioner’s brief points out, “Lenin as a founder of his country was no George Washington” (Brief at 35). It is true that Lenin might not have fessed up to chopping down cherry trees, and we do not discount the possibility that the Soviets may have manufactured evidence in some cases involving Nazi collaboration to excuse them own conduct in the war. But we have relied on evidence from the Soviet Union before, see e.g., Kahys, 782 F.2d 1374, and Kalejs has not pointed to any reason why the Soviets would want to implicate him personally, or demonstrated any unusual interest in his case by Soviet authorities. Where, as here, the Soviet evidence is corroborated by Western documentation, plus reliable eyewitness testimony subject to vigorous cross-examination, and the evidence is credible on its own terms, we will not discard a case against a Nazi collaborator merely because some of the evidence originated in the Soviet Union.

More specifically, Kalejs complains that (1) he could not interview witnesses before them depositions were taken in the Soviet Union; (2) witnesses’ previous statements were withheld; (3) the witnesses should have been deposed in the United States rather than the Soviet Union; (4) Kalejs could not attend the depositions; (5) witnesses were intimidated by the Soviet prosecutors; and (6) neither Kalejs’ attorney nor United States officials could rent cars and visit the sites of the atrocities or examine Soviet archives. We can easily dismiss most of these claims because there is no general right to discovery in a deportation hearing so long as the accused had reasonable opportunity for cross-examination, as there was here. Kulle v. Immigration and Naturalization Service, 825 F.2d 1188, 1194 (7th Cir.1987), certiorari denied, 484 U.S. 1042, 108 S.Ct. 773, 98 L.Ed.2d 860. The Federal Rules of Civil Procedure simply do not apply; thus most of the cases cited by Kalejs are irrelevant. In one instance in his brief, Kalejs actually attempts to hold the government to the standards of a criminal proceeding under Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (Brief at 32). Such cases are wholly inapplicable. Clearly, the stakes of deportation hearings are great in terms of reputations and disruptions to lives, and we must ensure that such proceedings do not turn into kangaroo courts. But the hearings in this case were conducted with eminent fairness to Kalejs.

Also, many of Kalejs’ due process claims are patently ridiculous. The depositions were taken in the Soviet Union because the witnesses were too old and frail to travel to the United States. Kalejs did not attend because he did not ask to attend, and so waived that issue even if it had merit. The government actually did turn over to Kalejs’ counsel all witness statements it had in its possession; those witnesses for whom the United States did not have previous statements were by and large witnesses called by Kalejs himself to corroborate his case. As noted, there is no general right to discovery in a deportation hearing, but there is certainly no right to discovery of documents that the government does not have in its possession and is unable to obtain. Finally, the accused has not told us and we cannot even begin to imagine what Kalejs would hope to uncover by visiting the sites of atrocities committed fifty years ago. In short, Kalejs received ample due process. We reject this and all other claims made by the petitioner.

For the reasons stated above, the BIA’s decision to deport Konrads Kalejs is affirmed.

1 . The sections were previously numbered as 8 U.S.C. §§ 1251(a)(1), (2) and (19).

8 U.S.C. § 1251(a)(1)(A) provides:

Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens excludable by the law existing at such time is deportable.

8 U.S.C. § 1251(a)(1)(B) provides:

Any alien who entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or any other law of the United States is deportable.

8 U.S.C. § 1251(a)(4)(D) provides:

Any alien described in clause (i) or (ii) of section 1182(a)(3)(E) of this title is deportable. See infra for the text of 8 U.S.C. § 1182(a)(3)(E).