FLAUM, Circuit Judge.
Osyp Firishchak hid an ignominious past when he came to the United States in the wake of World War II. He represented to U.S. officials that his wartime activities comprised working on a Ukrainian cooperative. In fact, he served in the Ukrainian Auxiliary Police ("UAP"), an organization whose activities included aiding Nazis by forcibly rounding up Jews for deportation to concentration camps.
In 2005, a district court concluded that Firishchak lied to enter the country and obtain naturalization. The sanction was severe: Firishchak was stripped of his citizenship. We affirmed, United States v. Firishchak, 468 F.3d 1015 (7th Cir.2006) ("Firishchak II"), and this appeal concerns the fallout. The government initiated
We need not say much more than we have before about the underlying facts. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (collateral estoppel serves the twin purposes of protecting litigants from re-litigating identical issues and protecting courts from re-deciding them). Most of what we need can be drawn from the district court's denaturalization decision, following a bench trial, in United States v. Firishchak, 426 F.Supp.2d 780 (N.D.Ill. 2005) ("Firishchak I"), aff'd 468 F.3d 1015 (7th Cir.2006).
In 1949, Firishchak filed an application for a visa under the Displaced Persons Act. See 62 Stat. 1009-14 (1948) ("DPA" or "Act"). The DPA created the Displaced Persons Commission. Under the Act, an "eligible displaced person" (generally a victim of, or one who fled, Nazi persecution) could obtain permanent residence in the United States. When Firishchak filed his application with the Commission, he indicated that, between 1941 and 1944, he was working on a Ukrainian cooperative. He procured a visa and, in 1954, was naturalized as an American citizen.
Firishchak's actual wartime activities varied markedly from his post-war representations. In fact, he spent several years working for the UAP in a city called L'viv. (The city lies in modern-day Ukraine, but was part of Poland at the beginning of World War II.) The UAP was a Nazi-controlled armed force that persecuted Jews during the war. The work included confining Jews to a ghetto near L'viv, forcibly removing Jews from the ghetto so they could be relocated to concentration camps, and arresting Jews who lacked proper paperwork or who failed to wear Star of David armbands. The UAP's members, playing their part in a particularly infamous round-up of Jews known as the "Great Operation," shot and killed Jews who resisted, fled, or attempted to hide.
Firishchak maintained during the proceedings in Firishchak I, as he does now, that he was not involved with the UAP. But considerable evidence indicated that he was lying, and the district court made unvarnished findings to that effect. The lie had consequences: the DPA's mechanism for obtaining permanent residence was extended only to "eligible displaced persons"—a term that included victims of Nazi persecution, but left out oppressors as well as those who "willfully make a misrepresentation for the purpose of gaining admission into the United States." 62 Stat. at 1013.
Firishchak's lie poisoned his subsequent procurement of citizenship because the Immigration and Nationality Act ("INA") requires, as a prerequisite to nationalization, five years of continuous residence in the United States "after being lawfully admitted for permanent residence." 8 U.S.C. § 1427(a) (emphasis added). And the INA further provides that procuring citizenship "by concealment of a material fact or by willful misrepresentation" is a ground for revoking citizenship. 8 U.S.C. § 1451(a). Thus, by lying to obtain permanent resident status, Firishchak planted the seed for the revocation of his subsequently obtained
After we, in Firishchak II, affirmed the district court's decision, the government initiated removal proceedings. Removal was sought on the same grounds as the district court had relied on in revoking Firishchak's citizenship. See 8 U.S.C. § 1227(a)(1)(A) (an alien inadmissible at time of entry is deportable); id. § 1182(a)(3)(E)(i) (participants in Nazi persecution are ineligible for visas or entry); id. § 1227(a)(4)(D) (an alien who participated in Nazi persecution is deportable). The IJ ruled that the district court's denaturalization proceeding in Firishchak I was entitled to preclusive effect, concluding that all of the elements to establish removability were "fully litigated and necessarily decided" in the prior proceeding. Therefore, the IJ ordered that Firishchak be removed to the Ukraine. The BIA dismissed Firishchak's appeal, after which he filed a petition for review with us.
Under the doctrine of collateral estoppel, also referred to as issue preclusion, "once 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 involving a party to the prior litigation." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); see also Bobby v. Bies, ___ U.S. ___, 129 S.Ct. 2145, 2152, 173 L.Ed.2d 1173 (2009); Taylor v. Sturgell, 553 U.S. 880, 891, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (the preclusive effect of a prior federal court decision is a matter of federal common law). The organizing principle is that courts should respect "the first actual decision of a matter that has been actually litigated." 18 Wright, Miller & Cooper, FEDERAL PRACTICE AND PROCEDURE § 4416, at 386 (2d ed. 2002).
When the requirements for collateral estoppel
Firishchak argues that collateral estoppel should not bar relitigation of the issues in his removal proceeding because he did not receive a full and fair opportunity to litigate in Firishchak I.
Firishchak maintains that the judges who have heard his case—the IJ in the removal proceeding and the district court in Firishchak I—were not randomly assigned. The non-random assignment, Firishchak intimates, deprived him of due process. Factual and legal problems hamstring the argument. First, Firishchak offers no reason to doubt that the judge in the denaturalization case—the case we focus on, as that is the case whose collateral-estoppel effect we consider—was randomly assigned. Instead, he offers only the possibility, as an epistemological matter, that the Northern District of Illinois might have abandoned its standard, decades-long randomized case assignment system. Without a reason to be suspicious, the argument fails on its own terms. See N.D. Ill. Local Rule 40.1(a) (random case assignment, with exceptions spelled out in the local rules). Although a party asserting collateral estoppel bears the burden of establishing that the earlier opportunity to litigate was full and fair, Kulavic v. Chicago & Ill. Midland Ry. Co., 1 F.3d 507, 517 n. 6 (7th Cir.1993), that does not mean that the estoppel proponent must preemptively address every way in which a proceeding could hypothetically have been rendered unfair. The government did not have to show that the judge was randomly assigned any more than it had to establish that the president's nomination of the judge had been confirmed by the Senate. See also Nguyen v. United States, 539 U.S. 69, 80-82, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003) (vacating the judgment of an improperly constituted court).
Of course, the inadequate legal basis for Firishchak's argument is just as important as the missing factual underpinnings. A non-randomly assigned judge, without more, simply does not make for a due process violation, and Firishchak does not explain why the analysis should work differently in the context of collateral estoppel. The Fifth Amendment's due process clause guarantees the right to an impartial decisionmaker, e.g., Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602,
In sum, there is nothing in the assignment of the judge in this case, factually or legally, indicating that Firishchak was deprived of due process. The parties do not suggest another basis, different from the constitutional standards, for concluding that non-random assignment necessarily bars the application of collateral estoppel.
Firishchak next suggests that he did not receive a full and fair opportunity to litigate because the judge's opinion reveals a lack of impartiality. Although he cites no legal authority, the argument is on sounder legal footing than his non-random-assignment argument. E.g., Edwards v. Balisok, 520 U.S. 641, 647, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (suppression of evidence of innocence by prison hearing officer violates due process). A biased judge would give us reason to doubt the fairness of the earlier proceeding, cf. Castilho de Oliveira v. Holder, 564 F.3d 892, 899-900 & n. 4 (7th Cir.2009) (asylum applicant was denied a meaningful opportunity to be heard, under the regulatory scheme, based on "the tone of the IJ's cross-examination," as well as its frequent interruptions, inappropriate questions and comments, and failure to engage with the record evidence), which might make the application of collateral estoppel improper.
The argument, however, founders on the merits. According to Firishchak, the district court's memorandum opinion, following a bench trial, "reads like the closing argument of a criminal prosecutor." We disagree. Firishchak highlights the district court's conclusion that the former "lied on the stand" as revealed by his demeanor and mannerisms. That was a
Firishchak also complains that the district court used the word "we" when it was speaking for itself—e.g., "we find that he was a member of the UAP." Firishchak I, 426 F.Supp.2d at 784 (emphasis added). Apparently the suggestion is that the district court tipped its hand that it was allied with the government. To be sure, the practice of using the word "we" when writing in the first-person singular—a nosism commonly referred to as the "royal we"— is on the wane. THE NEW FOWLER'S MODERN ENGLISH USAGE 835 (R.W. Burchfield ed., 3d ed. 1996); H.W. Fowler, A DICTIONARY OF MODERN ENGLISH USAGE 689 (2d ed. 1965) (noting that we may mean "this newspaper, or this nation, or several other things" but discouraging its use where "collective anonymity ... is out of place"). Some view the practice by district judges critically. See Federal Judicial Center, JUDICIAL WRITING MANUAL 22 (1991) (characterizing the convention as "pompous"); but see THE CHICAGO MANUAL OF STYLE § 5.51, at 160 (15th ed. 2003) (suggesting that the practice may "draw in the reader" by making the prose less personal). There is, in any event, no prohibition against the royal we and its use does not support Firishchak's suggestion that the district court treated him unfairly.
Other evidence of partiality can be dispensed with quickly. Firishchak contends that the district court interrupted one witness's examination 19 times. He failed to include examples, either in an appendix as
Firishchak argues at length that the evidence in the denaturalization case was insufficient and that the district court ignored the applicable burden of proof. As Firishchak's brief maintains, "This case was always and still is all about the gross insufficiency of the evidence under the applicable burden of proof." We respectfully disagree: Firishchak's argument amounts to a contention that collateral estoppel should not apply because the first case was wrongly decided. The possibility that a prior action could result in the wrong outcome is a reason, as a matter of first principles, why one may not want courts to recognize the doctrine at all. Wright, Miller, & Cooper, supra, § 4416, at 398 (noting that the "dangers of issue preclusion are as apparent as its virtues"). Yet, whenever principles compete with one another—fairness versus finality, certainty versus economy—there are no right answers, only better ones. Courts recognize and apply collateral estoppel; Firishchak's efforts to relitigate the merits of the denaturalization case is precisely what the doctrine prevents.
The bookends of Osyp Firishchak's life have involved deportation, on different sides of the Atlantic Ocean, on different sides of the process, and by profoundly different means. When the government learned that Firishchak had been allowed to enjoy the benefits of American citizenship only as a result of a lie, our laws and justice system afforded him both the benefit of the doubt and a fair opportunity to be heard. The contention that he was denied a full and fair opportunity to litigate in the denaturalization case is not supported by the record. Therefore, collateral estoppel in the removal proceeding was both appropriate and appropriately applied. His petition for review is DENIED.