Safe Havens

A noncitizen is deportable who, from March 23, 1933 to May 8, 1945, in association with the Nazi government of Germany, or its allies or dependents, participated in the persecution of any person because of race, religion, national origin, or political opinion.[1454]  NOTE: No conviction is required to establish this ground of deportation.  The term persecution “contemplates the infliction of suffering or harm, under government sanction, upon persons who differ from others in the ways specified by the Act, i.e., race, religion, national origin, or political opinion.”[1455]  The BIA has held that this statute includes persecution of Communists in a Nazi-occupied country.[1456]  The court of appeals, however, reversed the Board’s decision, finding that mere acquiescence or membership in an organization does not trigger deportation under this ground, which “may only be sustained when the evidence establishes that the individual in question personally ordered, incited, assisted or otherwise participated in the persecution of individuals.”[1457]  A court found a noncitizen’s service as a Nazi concentration camp guard sufficient to establish this ground of deportability.[1458]  Involuntary service as a civilian guard in a Nazi “labor education camp,” without ever personally inflicting abuse on any prisoners, did not trigger deportation.[1459]  Punitive mass arrests and burning of a village by a chief of police in Nazi-dominated Latvia constitute persecution “because of” political opinion.[1460]  Moreover, the statute may summon the constitutional challenges discussed earlier in this chapter because it is an apparently punitive measure that imposes a severe new sanction for conduct that occurred many years earlier.[1461]  However, a noncitizen may be found to have assisted in persecution based on the general nature of the person’s role in World War II, and atrocities committed by a unit may be attributed to the individual based on membership and apparent participation.[1462]

[1454] INA § 237(a)(4)(D), 8 U.S.C. § 1227(a)(4)(D), referring to INA§ 212(a)(3)(E)(i), 8 U.S.C. § 1182(a)(3)(E)(i).  Former INA § 241(a)(19) was added by Act of Oct. 30, 1978, Pub. L. No. 95-549, § 103, 92 Stat. 2065, redesignated as INA § 241(a)(4)(D) by the Immigration Act of 1990, Pub. L. No. 101-649, § 602, 104 Stat. 4978, and redesignated as INA § 237(a)(4)(D) by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (enacted as Division C of Pub. L. No. 104-208, § 305(a)(2), 110 Stat. 3009, 3009-597).

[1455] Matter of Kulle, 19 I. & N. Dec. 318 (BIA 1985).

[1456] Matter of Laipenieks, 18 I. & N. Dec. 433 (BIA 1983) (police officer in occupied Latvia).

[1457] Laipenieks v. INS, 750 F.2d 1427, 1431 (9th Cir. 1985) (court also held the persecution in this case against Communists related to their status as enemies of Latvia rather than to their political beliefs).

[1458] Kalejs v. INS, 10 F.3d 441 (7th Cir. 1993) (noncitizen found subject to deportation on ground that he served as an officer of a German mobile killing unit during World War II); Kairys v. INS, 981 F.2d 937 (7th Cir. 1992) (service at Treblinka work camp made noncitizen deportable as one who assisted in persecution of Jews); Schellong v. INS, 805 F.2d 655, 661 (7th Cir. 1986) (“Likewise, an individual who served as a guard has assisted in persecution for purposes of former Section 1251(a)(19).  The purposes of the two statutes (reference made to Displaced Persons Act of 1948) were identical: to exclude from the United States individuals who along with the Nazis had inflicted suffering on persons because of their race, religion, or political opinion”).

[1459] Petkiewytsch v. INS, 945 F.2d 871 (6th Cir. 1991) (“This language [the Holtzman Amendment] appears to require active participation in persecution going beyond ‘assistance;’ . . .  If, as the Supreme Court stated, the focus . . . should be on the’particular conduct’ of the immigrant, . . . that focus should be even more searching under (former) § 1251(a)(19); Although Petkiewytsch wore a uniform and carried a rifle, . . . he was at all times a reluctant civil guard; . . . the petitioner served under duress and . . . was told he would be shot if he attempted to escape”) (distinguishing Schellong, supra, 805 F.2d at 661, Laipenieks, supra, 750 F.2d at 1431, and Maikovskis v. INS, 773 F.2d 435, 445 (2d Cir. 1985).

[1460] Maikovskis v. INS, 773 F.2d 435, 445 (2d Cir. 1985).

[1461] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § § 71.01[2][a]-[c], 71.02[3] (2004).  Some courts have lessened the statute’s harsh effect by permitting noncitizens to assert the Fifth Amendment privilege against self-incrimination on the basis of possible self-incrimination in foreign courts. See United States v. Gecas, 50 F.3d 1549 (11th Cir. 1995) (noncitizen may assert privilege against self-incrimination in response to questions concerning participation in execution of Lithuanian Jews during World War II because answer may incriminate alien under laws of Israel and Lithuania).

[1462] Kalejs v. INS, 10 F.3d 441 (7th Cir. 1993).