Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2005

Szehinskyj v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-3710




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                                        PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                    No. 04-3710


             THEODOR SZEHINSKYJ,

                           Petitioner

                           v.

 ATTORNEY GENERAL OF THE UNITED STATES,

                          Respondent


           On Petition for Review from an
      Order of the Board of Immigration Appeals
               (Board No. A07 900 159)


      Submitted Under Third Circuit LAR 34.1(a)
                  October 27, 2005

Before: SLOVITER, FISHER, and GREENBERG, Circuit
                     Judges.

             (Filed: December 13, 2005)
Andre Michniak
Michniak, Bezpalko & Associates
1420 Walnut Street, Suite 801
Philadelphia, PA 19102
      Attorney for Petitioner

David W. Folts
U.S. Department of Justice
10th & Constitution Avenue, N.W.
OSI Suite 200
Washington, D.C. 20530

William H. Kenety V
U.S. Department of Justice
Office of Special Investigations
1001 G Street, N.W.
Washington, D.C. 20530
       Attorneys for Respondent




                 OPINION OF THE COURT




FISHER, Circuit Judge.

       At issue in this case is whether the statutory language
“assisted in persecution” means the same thing in the Displaced
Persons Act of 1948 and the Holtzman Amendment of 1978.
We hold that it does.

                              2
                                I.

         Petitioner Theodor Szehinskyj entered the United States
in 1950 and was naturalized in 1958. He was denaturalized on
July 24, 2000, following trial on the issue of whether he had
illegally procured entry into the United States in 1950 under the
Displaced Persons Act of 1948 (“DPA”), Pub. L. No. 80-774, 62
Stat. 1009, amended by Pub. L. No. 81-555, 64 Stat. 219 (1950).
The DPA provided for expedited immigration to the United
States following World War II, with the restriction that, inter
alia, “[n]o visas shall be issued under the provisions of this Act
. . . to any person who advocated or assisted in the persecution
of any person because of race, religion, or national origin.” Pub.
L. No. 81-555 § 13. In recent years, based on archival
documents that became available after the collapse of the Soviet
Union, the government has pursued denaturalization
proceedings against a number of alleged former Nazis, on the
grounds that they were ineligible for admission under the DPA
because of their conduct during the war. In this case, the
government charged that Szehinskyj had been a prison guard at
several concentration camps and a member of the Waffen SS, a
special army unit in charge of the concentration camps. The
district court found that Szehinskyj had been a concentration
camp guard and an SS member, and as such had assisted in
persecution, and that he was therefore ineligible for entry under
the DPA. United States v. Szehinskyj, 

, 499
(E.D.P.A. 2000).

       After Szehinskyj had exhausted his appeals, see United
States v. Szehinskyj, 

(3d Cir. 2002), the
government instituted removal proceedings under the Holtzman

                                3
Amendment, Pub. L. No. 95-549, 92 Stat. 2065 (1978), which
provides for the exclusion and removal 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 [Nazi
Germany or its allies] 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).1

        At those proceedings, the government moved to estop
Szehinskyj from challenging the removal order on the grounds
that the identical issue had been litigated in the district court in
the denaturalization trial, and that the conditions for application
of collateral estoppel had been met. The Immigration Judge
(“IJ”) granted the motion, and found Szehinskyj to be
removable. The Board of Immigration Appeals (“BIA”)
affirmed.

                                  II.

      Because the BIA affirmed the IJ’s ruling without opinion,
we review the opinion of the IJ. Partyka v. Attorney General,

, 411 (3d Cir. 2005). Application of collateral
estoppel is a question of law, Nat’l R.R. Passenger Corp. v. Pa.
Pub. Util. Comm’n, 

, 252 (3d Cir. 2003), and we


       1
         The Holtzman amendment is codified in two places, 8 U.S.C.
§ 1182(a)(3)(E) (providing for exclusion of the listed class of aliens)
and 8 U.S.C. § 1227(a)(4)(D) (providing for removal of the same
class, incorporated by reference).

                                  4
exercise plenary review of the BIA’s legal determinations,
subject to established principles of deference. See Auguste v.
Ridge, 

, 144 (3d Cir. 2005); Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, 

(1984).

                               III.

       The Supreme Court has described the doctrine of
collateral estoppel as follows:

       [O]nce an issue is actually and necessarily
       determined by a court of competent jurisdiction,
       that determination is conclusive in subsequent
       suits based on a different cause of action that
       involves a party to the prior litigation.

Montana v. United States, 

, 153 (1979). As we
have recently explained:

       [T]he standard requirements for collateral
       estoppel, more generally termed issue preclusion,
       [are] (1) the identical issue was previously
       adjudicated; (2) the issue was actually litigated;
       (3) the previous determination was necessary to
       the decision; and (4) the party being precluded
       from relitigating the issue was fully represented in
       the prior action.

Henglein v. Colt Indus. Operating Corp., 

, 209 (3d
Cir. 2001) (citing Raytech Corp. v. White, 

, 190 (3d


                                5
Cir. 1995) and Restatement (Second) of Judgments § 27 cmt. j
(1982)) (internal quotation marks omitted).

       The IJ held that “the factual and legal issues decided in
the denaturalization trial are identical to those to be decided in
the instant proceeding,” and that because Szehinskyj was
represented in the denaturalization trial and had a full and fair
opportunity to litigate the issues presented there, collateral
estoppel properly applied. At the denaturalization trial, the
government “proved by ‘clear, unequivocal, and convincing’
evidence that Szehinskyj was a member of the SS Death’s Head
Battalion,” that “the [concentration] camps were ‘places of utter,
devastating persecution,’” and that serving as an armed guard at
a concentration camp is sufficient to establish assistance in
persecution.

        Szehinskyj’s appeals of his denaturalization proceeding
have been exhausted, so he cannot challenge those findings
here. Nor does he argue that he was not adequately represented
at the denaturalization trial, that the nature of his activities
during World War II was not actually litigated there, or that
specification of those activities was not necessary to the
denaturalization decision. Instead, he contends that the issues
in the two proceedings are not identical. He suggests that the
statutory provision under which the government now seeks to
deport him requires a different showing from that required by
the statutory provision under which his citizenship was revoked.
Specifically, he contends that section 13 of the DPA applies to
a broader set of conduct and individuals than does the identical
language of the Holtzman Amendment. The Holtzman
Amendment, Szehinskyj argues, applies only to “Nazi war

                                6
criminals,” and thus the district court’s finding that Szehinskyj
“assisted in [Nazi] persecution” under the DPA should not be
conclusive of the question of whether he is deportable under the
Holtzman Amendment.

        The Holtzman Amendment provides that any alien is
deportable “who, during the period beginning on March 23,
1933, and ending on May 8, 1945, under the direction of, or in
association with [Nazi Germany or its allies] 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). The relevant language,
“assisted in persecution,” is precisely the same in the Holtzman
Amendment as in the provision of the DPA, quoted above, at
issue in Szehinskyj’s denaturalization trial.

        Szehinskyj nonetheless quotes from floor speeches in the
House of Representatives and argues that because the term
“Nazi war criminal” was used “at least 11 times in the floor
debate,” Congress’s intent was that only “war criminals” would
be covered by the statutory language, and not – the words of the
text notwithstanding – all those who assisted in Nazi
persecution. Szehinskyj rests his argument squarely upon the
House floor speeches, because his interpretation flies directly in
the face of the plain language of the statutory text. He urges that
the Sixth Circuit’s decision in Petkiewytsch v. INS, 

(6th Cir. 1991), which used the same floor speeches to reach the
result Szehinskyj seeks in this Court, should be taken as judicial
validation of this approach.



                                7
        We reject Szehinskyj’s argument for two reasons. First,
the statutory language is not ambiguous, and is contrary to
Szehinskyj’s interpretation. Second, scrutiny of the full floor
debate reveals absolutely no suggestion of the distinction
Szehinskyj proposes. Szehinskyj’s selective invocation of
fragments of the floor debate is an object lesson in the perils of
appealing to this particular kind of legislative history as a guide
to statutory meaning.2 This case is a perfect illustration of the
well-known admonition that what individual legislators say a
statute will do, and what the language of the statute provides,
may be far apart indeed. The law is what Congress enacts, not
what its members say on the floor. This axiom has particular
force in this case, and we think it appropriate to analyze the
floor debate in some detail, because we have not yet had
occasion to decide the precise scope of the Holtzman
Amendment.

                                 IV.

      Szehinskyj’s contention that the floor debate evidences
a congressional intent to cover only “war crimes” in the
Holtzman Amendment is simply not borne out by examination
of the record. Szehinskyj quotes several statements from

       2
         Even the most ardent academic defenders of the use of
legislative history in statutory interpretation are quick to disavow
cherry-picking from floor speeches. See, e.g., Lawrence M. Solan,
Private Language, Public Laws: The Central Role of Legislative
Intent in Statutory Interpretation, 93 Geo. L. J. 427, 447-48 (2005)
(“[S]tray remarks from individual legislators . . . are most often not
probative of much of anything.”).

                                  8
Representative Holtzman, the amendment’s sponsor, which he
claims show that she did not intend the bill to include the same
broad category of persecution as the DPA. But Szehinskyj’s
quotations are very selective. The distinction at issue in the
floor debate is not between Nazi “persecutors” and Nazi “war
criminals,” but rather between Nazi persecutors and persecutors
from other, non-Nazi, regimes.

       The floor debate was prompted by concerns raised in
committee that the language as originally proposed – language
that did not limit the bill’s application to actions carried out
under the Nazi regime – was too broad, and would include “a
goodly proportion of the heads of state of the various nations of
the world . . . because in many cases . . . they have engaged in
persecution of people for political and other reasons.” 124 C.R.
at 31,649 (statement of Rep. Seiberling). The five dissenting
members of the committee had protested that the statute would
include many of our allies:

       While the original object of this legislation was to
       deal with alleged Nazis in this country, the bill as
       reported applies to anyone who persecutes others
       based on race, religion, national origin, or
       political opinion. Would this apply to Vietnamese
       who ‘persecuted’ Communists because of their
       political opinion, as did many of our allies during
       the Vietnam War? Would this apply to British
       soldiers who ‘persecuted’ Catholics in Northern
       Ireland because of their religion? Would this
       apply to white South Africans or Rhodesians who
       are members of or who support the present

                                9
       governments that have allegedly persecuted
       blacks because of their race? What future
       situations will arise where persons working for
       our friends and allies allegedly persecuted others
       who are our political adversaries or enemies in
       war and thereby are ineligible to enter the United
       States?

H.R. Rep. 95-1452, 9th Cong., 2d Sess. at *17 (dissenting views
of Reps. Wiggins, Kastenmeier, Butler, Hyde, and Ertel).

        The proposed amendment was designed to meet that
objection, and its sponsors sought to reassure opponents that the
reach of the bill would be limited to Nazis. Representative Fish
put it as follows: “There has been criticism in committee of the
bill as originally reported as being too broad, raising potential
future problems in its application.         However, with the
amendment to the bill which we now consider, this provision
would be restricted in its application to those who engaged in
persecution at the direction of the Nazi government.” 124 C.R.
at 31,648 (statement of Rep. Fish). This statement makes it
clear that Representative Fish’s earlier statement, which
Szehinskyj quotes, that “our intent [is] to restrict the scope of
this bill to Nazi war criminals, as opposed to any person who
persecutes,” 124 C.R. at 31,648, is drawing a distinction
between the Nazis and other regimes, and not between some
Nazis and other Nazis. Szehinskyj baldly misrepresents the
meaning of this statement by underlining “Nazi war criminals”
and suggesting that somehow the statute distinguishes between
Nazi non-war-criminal persecutors and Nazi war-criminal
persecutors. There is nothing in the debate even hinting at a

                               10
distinction between those Nazis who “merely” persecuted and
those Nazis who committed “war crimes.”

        In her opening statement, Representative Holtzman
described the amendment as operating “to exclude from
admission into, and to deport from the United States all aliens
who persecuted any person on the basis of race, religion,
national origin, or political opinion, under the direction of the
Nazi government of Germany . . .” 124 C.R. 31,646. This
description straightforwardly tracks the language of the statute.
Representative Holtzman then stated that the language in the
amendment was deliberately chosen to match that in the DPA.
“Let me state to my colleagues that the language of the bill is
not new. Two prior laws – the Displaced Persons Act of 1948
and the Refugee Relief Act of 1953 – contained language
prohibiting the entry into the United States of persons who
engaged in persecution on account of race, religion, or national
origin. . . . The omission of such language from current law has
hampered the Immigration Service’s efforts to act against
alleged Nazi war criminals.” 

Here, and
repeatedly throughout the debate, members used terms such as
“war criminals” and “mass murderers” to refer to the Nazis, as
they sought to emphasize the importance of the issue by
recalling the brutality of the Nazi regime. Several members
invoked the horrors of the Holocaust, including Representative
Eilberg. Szehinskyj quotes the portion of Rep. Eilberg’s
statement in which Eilberg describes the Holocaust as “that
dreadful period in the history of mankind [that] should forever
serve as a tragic reminder to all civilized people of the terrible
extremes to which an entire nation can be led by a small, but
highly organized group of demented and ruthless leaders. This

                               11
bill addresses itself to members of that group – to the
perpetrators of the Holocaust.” 124 CR at 31,647. We have
little difficulty believing that many members were motivated to
support the bill by their desire to deport notorious war
criminals.3 But even if we thought such speculation relevant to
statutory analysis, that motivation does not imply that those
members believed that deportation of notorious war criminals
was all that the bill authorized.4 Indeed, Representative Eilberg
himself was plainly under no illusions about its broad sweep. In
the paragraphs preceding the sentence quoted by Szehinskyj,
Representative Eilberg explains exactly what the bill will do:
“Mr. Speaker, the purpose of this bill . . . is to prevent the entry
into, as well as facilitate the deportation from, the United States
of aliens who have engaged in persecution based on race,
religion, national origin or political opinion under the Nazis.”
124 C.R. at 31,647.

       It is evident that the term “war criminals,” as used by
Representative Holtzman and the other speakers in the debate,
is simply a rhetorical descriptor for “Nazis,” and not, as
Szehinskyj would have it, a technical legal term applying only
to those susceptible to prosecution at Nuremberg. For example,
Representative Holtzman observes that “[s]ince 1952 there has


       3
        There is a suggestion in the floor debates that some members
had particular alleged former Nazis in mind. See 124 C.R. at 31,649
(statements of Rep. Fish and Rep. Wiggins).
       4
          Nor would it help Szehinskyj, unless we thought that what
any particular members believed the bill authorized determines what
the bill in fact authorized. And we do not.

                                12
been no provision in our regular immigration law to exclude or
deport Nazi war criminals who persecuted people for racial,
religious, or other reasons,” and describes the bill as intended to
“close this loophole” by “denying sanctuary in the United States
to Nazi war criminals.” 

Any suggestion that “war
criminals” has a technical meaning here that excludes simple
persecution is destroyed by Representative Holtzman’s next
sentence: “The bill includes an amendment limiting the
applicability of H.R. 12509, as reported out of the Committee on
the Judiciary, to persons who engaged in persecution under the
Nazis.” 

makes three interpretive points
crystal clear, all of which vitiate Szehinskyj’s argument. First,
Representative Holtzman clearly believes that the amendment
will apply to “persons who engaged in persecution under the
Nazis.” Therefore, second, either she is using “war criminals”
synonymously with “persons who engaged in persecution under
the Nazis,”or she is explicitly stating that the coverage of the
proposed language extends beyond just “war criminals.” 5 Third,
she is reiterating – as speakers do throughout the debate – that
the “limitation” in the amendment’s coverage is limitation to
Nazis as opposed to members of other regimes. This is in sharp
contrast to Szehinskyj’s contention that there was some
contemplated distinction between run-of-the-mill Nazi
persecutors (not covered) and higher-up Nazi “war criminals”
(covered).




       5
        As Representative Eilberg appears to do. See 124 C.R. at 647
(statement of Rep. Eilberg) (referring to the amendment as covering
“war atrocities and other acts of persecution”).

                                13
        Szehinskyj has conflated the problem which prompted
the legislature to act with the action the legislature took. No
doubt some members voted for the bill in order to root out full-
blown Nazi war criminals hiding in the United States. But the
bill they enacted as law does not restrict its coverage to war
criminals. It covers all those who assisted in persecution. It is
simply not for us to speculate about individual legislators’ views
about what they thought would happen once the bill became
law, and still less is it for us to rewrite a duly enacted law on the
basis of our speculations about those views. Among the most
common rhetorical devices in politics is the repeated invocation
of an extreme example of a given problem as a justification for
legislation addressing that problem that, when enacted, sweeps
far more broadly than would be necessary to target just that
extreme example. The tenor of this floor debate is unremarkable
in that respect, and will be familiar to anyone who has spent
time in legislatures. The bill’s sponsors invoked the problem of
“Nazi war criminals” living in the United States in order to win
passage of a bill excluding not just “war criminals,” but a far
broader class of people.

       Nor does it appear that members were particularly
concerned about overbreadth once language was inserted
specifying that the bill would apply only to Nazis. The only
overbreadth concern with respect to Germans – a concern
Szehinskyj asks us to read into the statute – is raised by
Representative Seiberling:

       In a certain sense, the entire population of
       Germany, except for the resistance, participated in
       the persecution of Jews and others in Germany

                                 14
       under the Nazi regime. I assume it is not the
       intention to include all those who did not actively
       oppose the German Nazi regime actions within
       the scope of this language; is that correct?

Representative Holtzman replied: “[T]he bill is
intended to cover active participation and not mere acquiescence
by the population as a whole.” 

the only distinction
between classes of Germans found anywhere in the debate. And
it is of no use to Szehinskyj, because Szehinskyj, who worked
as a prison guard at a concentration camp, went far beyond
“mere acquiescence by the population as a whole.” 6 And this is
not Szehinskyj’s contention in any case. He does not deny that
he has been adjudicated to have “actively participated” in Nazi
persecution; he simply argues that his participation was “mere”
persecution, and not “war crimes.” Whatever difference that
distinction may make in other arenas, it has no application to the
Holtzman Amendment.

                                 V.

      To the extent that the Sixth Circuit’s decision in
Petkiewytsch v. INS, 

(6th Cir. 1991), remains good
law, we reject the Sixth Circuit’s approach. In Petkiewytsch, the
court drew a distinction between the language enacted by


       6
         Accord United States v. Reimer, 

, 459 (2d Cir.
2004); United States v. Tittjung, 

, 341 (7th Cir. 2000);
Tittjung v. Reno, 

, 398 (7th Cir. 2000); United States v.
Breyer, 

, 890 (3d Cir. 1994).

                                 15
Congress and the “purpose” the court saw as indicated by the
floor debate and the committee report. The court found two
respects in which that apparent purpose was in direct conflict
with the language of the statute. First, while the statute by its
plain terms covers all those who “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 (3)(E), the court discerned a “purpose to require active
participation in persecution going beyond 

. The Petkiewytsch court, in other words, deleted the
term “assisted” from the statute. It took this step on the basis of
the floor debate and the committee report, which stated that
“[t]he purpose of the bill is to exclude from admission into the
United States aliens who have persecuted any person on the
basis of race, religion, national origin, or political opinion, and
to facilitate the deportation of such aliens who have been
admitted to the United States.” H.R. Rep. 95-1452, 95th Cong.,
2d Sess., at 1. The court reasoned that because the committee
statement said “persecuted” rather than “assisted in
persecution,” the statute, which did say “assisted,” didn’t really
mean it.7

       Second, the court, as Szehinskyj does here, counted up
the number of times the term “war criminals” was used in the
floor debates. Tallying nineteen instances (as compared to


       7
        The court did not address the other verbs found in the statute
but not the committee statement, namely “ordered,” “incited,” and
“otherwise participated.” Compare 8 U.S.C. § 1182 (3)(E) with H.R.
Rep. 95-1452 at 1.

                                 16
Szehinskyj’s modest “at least eleven”), the court concluded that
the Holtzman Amendment had the “purpose of reaching war

, and that “the class sought to be
made deportable” by the amendment was “[people] who
engaged in war crimes.” 

Because Petkiewytsch only
“assisted” in persecution and did not take an “active role,” and
because what he did “just does not fit the description of a ‘Nazi
war criminal,’” 

held that the Holtzman Amendment
did not cover Petkiewytsch.

       This Court cannot countenance such an extraordinary act
of judicial reformation of duly enacted legislation. The
Petkiewytsch court disregarded the plain language of a statute
passed by Congress, presented to the President, and signed into
law. The court inferred a congressional purpose quite at odds
with the language of the statute, on the basis of snippets of floor
debate involving only eight out of 535 members of Congress,
and snippets of a committee report which was neither voted on,
nor presented, nor signed, which was not endorsed by the full
committee, and which may or may not have even been read by
the members who voted on the bill itself. Faced with such a
conflict,8 there can be no doubt about the interpretation that the


       8
          Assuming a genuine conflict, that is, Petkiewytsch is wrong.
But we think Petkiewytsch is doubly wrong, because, as explained
above, our reading of the legislative history reveals no such conflict.
Five members of the committee dissented from the committee report
on the grounds that in their view the bill would cover too many
people, see H.R. Rep. 95-1452, 95th Cong., 2d Sess., at *17
(dissenting views of Reps. Wiggins, Kastenmeier, Butler, Hyde, and
Ertel); the invocations of “Nazi war criminals” in the floor debate are

                                  17
courts must enforce. Where floor speeches and statutory
language collide, the floor speeches must give way: Congress’s
constitutional voice is the text of the statutes it enacts.

        The Sixth Circuit itself appears to have been
uncomfortable with the reasoning in Petkiewytsch, and in
Hammer v. INS, 

(6th Cir. 1999), the court took
some pains to limit Petkiewytsch and disavow its approach. In
Hammer, the court held that the wartime activities of an SS
prison guard subjected him to removal under the Holtzman
Amendment.9 Petkiewytsch was not to the contrary, the court
declared; rather, it “appears to stand for the proposition that
some forms of ‘assistance’ to the Nazi regime . . . may be too
attenuated to be considered ‘under the direction of, or in
association with’ the Nazi government.” 

This
“attenuation” theory is nowhere found in Petkiewytsch, but some
alternative reading of the case had to be discovered in order to
square Petkiewytsch with the language of the statute: “We do
not believe that Petkiewytsch compels the conclusion that
‘assistance’ to the Nazi regime can never be sufficient for
deportation under the Holzman Amendment, because such an
interpretation would be squarely at odds with the text of the
statute.” 

and the debate itself was triggered by concerns
that the amendment might reach non-Nazis, not that it might reach
non-war criminal Nazis.
       9
        It would thus appear that had Szehinskyj’s case arisen in the
Sixth Circuit, Hammer and not Petkiewytsch would control, and the
result would be the same.

                                 18
       We agree with the Hammer court that the text of a statute
controls our interpretation of it. The Holzman Amendment
means what it says, and what it says is that Szehinskyj is
deportable if he assisted in Nazi persecution. In so holding we
are in agreement with other Circuits that have faced this
question. See, e.g., Dailide v. United States Att’y. Gen., 

, 1344 (11th Cir. 2004) (“[A] plain reading of the
Holtzman Amendment reveals that an individual’s assistance, or
some other form of participation in the persecution of any
person, would be sufficient [for removal]”); Tittjung v. Reno,

, 398-99 (7th Cir. 1999) (“[T]his Court has
consistently held that Nazi concentration camp guards assisted
in persecution. . . . [Such conduct] falls squarely within the
meaning of the Holtzman Amendment.”).

                              VI.

       Because Szehinskyj has been fairly adjudicated to have
assisted in Nazi persecution under a statute whose provisions are
identical to those of the Holzman Amendment, he is estopped
from relitigating that issue in these removal proceedings.
Accordingly we will deny the petition for review.




                               19