195 F.3d 836 (6th Cir. 1999)
Ferdinand Hammer, Petitioner,v.Immigration and Naturalization Service, Respondent.
No. 98-4339
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: September 15, 1999Decided and Filed: November 8, 1999

On Petition for Review of an Order from the Board of Immigration Appeals; No. Acu-fvm-sck[Copyrighted Material Omitted]
William E. Bufalino II, BUFALINO & PALAZZOLO, Clinton Township, Michigan, for Petitioner.
Jeffrey L. Menkin, Lisa Newell, U.S. DEPARTMENT OF JUSTICE, SPECIAL INVESTIGATIONS,  CRIMINAL DIVISION, Washington, D.C., for Respondent.
Before: BATCHELDER and GILMAN, Circuit Judges; HOOD,* District Judge.
OPINION
RONALD LEE GILMAN, Circuit Judge.


1
Ferdinand Hammer, a 78-year-old resident of Michigan, complains that he is  about to be deported to a country that he has not seen in more than half a century on the basis of conduct that he claims is  wrongly attributed to him. In response, the government charges that in his youth Hammer was an active participant in  Hitler's "final solution." There is no question that Hammer served as a member of the SS in the army of Nazi Germany  during World War II. After the war, he entered the United States and became an American citizen. In 1994, the  government commenced denaturalization proceedings against him in the United States District Court for the Eastern  District of Michigan, alleging that he had concealed from the immigration authorities the fact that he had served as an  armed SS guard at the Auschwitz and Sachsenhausen concentration camps and on prisoner rail transports between  concentration camps.


2
The district court ordered that Hammer be denaturalized, an order from which Hammer did not appeal. Following the  denaturalization decision, the government began this deportation action against Hammer in an administrative proceeding  brought before the immigration court. The immigration judge concluded that Hammer should be deported, and the Board  of Immigration Appeals (BIA) dismissed Hammer's appeal. For the reasons set forth below, we DENY Hammer's petition  for review.

I. BACKGROUND

3
It is undisputed that Hammer is an ethnic German, born in Lacarak, Croatia, who served as a member of the SS in the  army of Nazi Germany. He came to the United States and was naturalized as a citizen in 1963. Beyond these bare facts,  however, the parties do not agree. The government claims that Hammer was an armed SS prison guard at the notorious  Auschwitz concentration camp, where over one million Jews, Gypsies, Christian clergy, and other opponents of the Nazi  regime lost their lives. It further claims that he served as an armed guard at the Sachsenhausen concentration camp, and on  prisoner transport trains between the Auschwitz, Sachsenhausen, and Mauthausen concentration camps.


4
In 1994, the government commenced a denaturalization proceeding against Hammer. The gravamen of the  government's complaint was that Hammer had illegally obtained United States citizenship by concealing the fact that he  had served in the notorious "Death's Head Battalion" (Totenkopfverbaende) of the Nazi Waffen-SS. Hammer, in contrast,  claimed that he had served in an SS combat unit known as the Wiking Division which saw action on the Russian front. In  its June 1996 order, the district court specifically found Hammer's testimony incredible. The district court concluded that  Hammer had procured his United States citizenship by willful, material misrepresentation and concealment of his service  as an armed concentration camp guard and prisoner escort. It ordered his certificate of naturalization revoked. Hammer did  not appeal.


5
In October of 1996, the government began deportation proceedings against Hammer. It charged that Hammer was  deportable pursuant to the Holtzman Amendment, 8 U.S.C. §1182(a)(3)(E). The Holtzman Amendment renders ineligible  for entry into the United States any alien who 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. A corresponding statutory section, 8 U.S.C. § 1227(a)(4)(D), authorizes the government to deport such aliens.  The immigration judge held a hearing on March 17, 1997, during which the government introduced over 2,000 pages of  exhibits, including the bulk of the evidence that it had presented at the denaturalization proceeding. Hammer presented two  witnesses who had briefly known him in Europe, gave his own testimony, and introduced an unauthenticated document  stating that ethnic Germans in Croatia were automatically drafted into the Waffen-SS.


6
In an opinion dated April 24, 1997, the immigration judge held that the doctrine of collateral estoppel barred Hammer  from relitigating issues relating to his date of birth, wartime service, and the conditions at the concentration camps where  he served. The immigration judge also conducted an independent review of the evidence submitted at the denaturalization  proceeding, concluding that the government had proven by unequivocal, clear, and convincing evidence that Hammer had  assisted in persecutions on the basis of race, religion, national origin, or political opinion. Accordingly, the immigration  judge held that Hammer was subject to deportation pursuant to the Holtzman Amendment. He found Hammer's testimony  to be inconsistent and incredible, just as the district court had. (Among other things, Hammer could not recall the name of  the SS Wiking Division officer under whom he had supposedly served or the name of a single battle in which he had  supposedly fought.)


7
Hammer was ordered deported to Croatia, although the Croatian embassy subsequently advised the government that  Croatia would not accept him.  The deportation order was thereafter amended to state that Austria was the country to  which Hammer was to be deported. He timely appealed to the BIA, which dismissedHammer's appeal. This petition for  review followed.

II. ANALYSIS
A. Standard of review

8
The BIA's factual determinations are subject to the substantial evidence standard of review. "All the substantial  evidence standard requires is that the BIA's conclusion, based on the evidence presented, be substantially reasonable." See  Klawitter v. INS, 970 F.2d 149, 151 (6th Cir. 1992) (internal quotation marks and citation omitted). "Substantial evidence  is thus a deferential standard which plainly does not entitle a reviewing court to reverse . . . simply because it is convinced  that it would have decided the case differently . . . [I]n order to reverse the BIA's factual determinations, the reviewing  court must find that the evidence not only supports a contrary conclusion, but indeed compels it." Adhiyappa v. INS, 58  F.3d 261, 265 (6th Cir. 1995) (internal quotation marks and citation omitted). Legal questions are reviewed de novo. See  id.

B. Collateral estoppel

9
Hammer claims that the BIA incorrectly applied the doctrine of collateral estoppel to the district court's factual findings  in the denaturalization proceeding. Although he does not explicitly say so, it appears that Hammer seeks another hearing so  that he may contest the facts in question.


10
The availability of collateral estoppel is a mixed question of law and fact which this court reviews de novo. See United  States v. Sandoz Pharm. Corp., 894 F.2d 825, 826 (6th Cir. 1990). Under the doctrine of collateral estoppel, which is 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 (1979). The doctrine reflects the longstanding policy that one full  opportunity to litigate an issue is sufficient. See Hickman v. Commissioner, 183 F.3d 535, 537 (6th Cir. 1999).


11
Although the requirements for collateral estoppel are enumerated differently in different opinions, this court has  recently stated that the doctrine applies only when (1) the issue in the subsequent litigation is identical to that resolved in  the earlier litigation, (2) the issue was actually litigated and decided in the prior action, (3) the resolution of the issue was  necessary and essential to a judgment on the merits in the prior litigation, (4) the party to be estopped was a party to the  prior litigation (or in privity with such a party), and (5) the party to be estopped had a full and fair opportunity to litigate  the issue. See United States v. Real Property Known and Numbered as 415 E. Mitchell Ave., 149 F.3d 472, 476 (6th Cir.  1998); Bills v. Aseltine, 52 F.3d 596, 604 (6th Cir. 1995).


12
As a preliminary matter, we must determine exactly what facts were deemed established by operation of the collateral  estoppel doctrine. The district court made twelve findings of fact in the denaturalization proceeding. Although Hammer  and the government do not agree on which of those facts were deemed established by collateral estoppel, the immigration  judge's order states that only four facts were so established for the purposes of the deportation proceeding. Those facts  were as follows:


13
1) [Hammer] was born on July 30, 1921;


14
2) [Hammer] had the rank of "Sturmmann" [roughly equivalent to a lance corporal] and served during World War II,  as an armed Waffen-SS Death's Head Battalion guard at the Auschwitz and Sachsenhausen concentration camps  established and operated by the Nazi government of Germany;3) [Hammer] served as an armed Waffen-SS Death's Head Battalion (SS-Totenkopfverbaende) guard for prisoner  transports between Auschwitz and Sachsenhausen concentration camps, and prisoner transport between  Sachsenhausen and Mauthausen concentration camps;


15
4) During [Hammer's] service as an armed Waffen-SS Death's Head Battalion guard at the Auschwitz,  Sachsenhausen, and Mauthausen concentration camps, "horrible mistreatment was meted out to inmates of those  camps."


16
Notwithstanding the parties' arguments to the contrary, the immigration judge held that those four facts were the only  ones established by collateral estoppel. We agree.

1. Identical issues

17
There is no question that the above issues are identical to those that were in dispute at the denaturalization proceeding.  Hammer argues, however, that the government was required to prove certain elements in the deportation proceeding that it  was not required to prove in the denaturalization proceeding. He therefore reasons that the "issues litigated" were not  identical and collateral estoppel does not apply.


18
We find this argument to be without merit. As noted above, the only findings that the doctrine of collateral estoppel  precluded him from contesting were the four findings outlined above (i.e., his date of birth, his service as a concentration  camp guard, his service as a prisoner transport guard, and the fact that inmates at the Auschwitz, Sachsenhausen, and  Mauthausen concentration camps were horribly mistreated). Although Hammer points out the absence of eyewitness  testimony that he had personally engaged in persecution, the immigration judge did not assume that the district court had  found that Hammer had personally participated in wartime atrocities (at least beyond the atrocities in which an armed  concentration camp guard necessarily would have participated or assisted simply by virtue of being an armed concentration  camp guard). The district court was not required to make, and in fact did not make, any such finding. In order to  denaturalize Hammer, the district court had only to find that he obtained his United States citizenship through concealment  of a material fact or by a willful, material misrepresentation. Hammer's argument is more properly understood as one  regarding the sufficiency of the evidence presented, and is therefore discussed in Part C below.

2. Actually litigated and decided

19
The issues of when Hammer was born, where and when he served, and what happened at the concentration camps in  question were extensively litigated in the denaturalization proceeding in the district court. There, the government presented  documentary evidence showing that Hammer was an armed SS guard at Auschwitz and Sachsenhausen, and served as a  guard on prisoner rail transports between Nazi concentration camps. Included in this evidence were Nazi-regime  documents identifying Hammer by name, rank, and date of birth. The government also presented the testimony of an  expert witness and two Auschwitz survivors to prove the nature of the concentration camp.


20
In the district court's opinion and order, it specifically found that Hammer was born on July 30, 1921, that he served in  the Death's Head Battalion of the Waffen-SS at Auschwitz and Sachsenhausen concentration camps, and that while  Hammer was a guard there, "horrible mistreatment was meted out to inmates of these camps." The four factual findings  were thus actually litigated and decided in the denaturalization proceeding.


21
3. Necessary and essential to a judgment on the merits


22
The key legal question in the denaturalization proceeding was whether Hammer had procured his citizenship through theconcealment of a material fact or by willful, material misrepresentation. See 8 U.S.C. § 1451. In Hammer's case, the  material facts were where he served during the war and when he was there. The first three findings established by collateral  estoppel directly relate to these material facts.


23
Hammer testified that he was a soldier on the Russian front, but the government's evidence established that he was  actually an SS concentration camp and prisoner transport guard. The location and duration of Hammer's Nazi service were  clearly "necessary and essential" to the denaturalization proceeding. Hammer's birth date was also necessary and essential.  As part of demonstrating that Hammer had materially misrepresented the nature of his involvement with the Nazis, the  government also had to prove his birth date, by which he was identified in Nazi documents along with his name and rank.  The first three findings were thus necessary and essential to a judgment on the merits.


24
As to the final finding--that the conditions of Nazi concentration camps were horrible--the government contends that  this fact was "essential to the court's finding that Hammer's misrepresentations of his guard service were material to the  decision to grant Hammer citizenship." Hammer has not challenged this finding, presumably because his defense is based  on his contention that he served in an SS combat unit, not as a concentration camp guard.


25
4. Hammer was a party to the prior litigation


26
Hammer necessarily concedes that he was a party to the prior litigation.


27
5. Hammer had a full and fair opportunity to litigate the issues


28
Hammer states in his brief that he was denied a full and fair opportunity to litigate the issues, but does not identify any  specific deficiency in the proceedings. To the contrary, the record reflects that the district court provided Hammer a  hearing that comported with all of the standards of due process.


29
All five collateral estoppel factors having been satisfied, we conclude that the BIA did not err in affirming the  immigration judge's application of the doctrine of collateral estoppel. We also note that even without the benefit of  collateral estoppel, the evidence that the government presented at Hammer's deportation hearing, and which the  immigration judge independently reviewed, was more than sufficient for the BIA to have reached a substantially  reasonable decision to deport Hammer. The government introduced into evidence properly authenticated wartime  concentration camp guard rosters that identified Hammer as an SS Death's Head Battalion guard at the Auschwitz and  Sachsenhausen concentration camps, and as a guard on prisoner transports between the Auschwitz and Sachsenhausen  camps and between the Sachsenhausen and Malthausen camps. In addition, the government introduced a properly  authenticated document prepared in 1945 by the United States Army, which was based on a review of seized SS records,  and which identified Hammer by name, rank, date, and place of birth as a member of the 1st Company of the SS Death's  Head Battalion at the Auschwitz concentration camp.

C. Direct evidence of persecution

30
Hammer claims that the government failed to prove that he is deportable under the Holtzman Amendment. His primary  point is that the government did not prove that he personally engaged in "persecution" as defined by the Amendment.


31
The Holtzman Amendment provides as follows:


32
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,


33
(II) any government in any area occupied by the military forces of the Nazi government of Germany,


34
(III) any government established with the assistance or cooperation of the Nazi government of Germany, or


35
(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 is inadmissible.


36
8 U.S.C. § 1182(a)(3)(E).


37
Hammer argues that the government failed to meet its burden of proving that he "ordered, incited, assisted, or otherwise  participated in . . . persecution" because it did not present "specific evidence of persecution by the Petitioner against the  prisoners or that, as a guard, he engaged in acts of brutality against them." The government, however, need not present  evidence of personal involvement in specific atrocities under the Holtzman Amendment. As the Seventh Circuit has observed:


38
Because the statute authorizes deportation of anyone who "assisted" in persecution, personal involvement in  atrocities need not be proven. [A]n individual who served as a guard has assisted in persecution for purposes of [the  Holtzman Amendment] . . . . Nazi concentration camps were places of persecution; individuals who, armed with  guns, held the prisoners captive and prodded them into forced labor with threats of death or capital punishment  cannot deny that they aided the Nazis in their program of racial, political and religious oppression.


39
Kulle v. INS, 825 F.2d 1188, 1192 (7th Cir. 1987) (first set of brackets in original). See also Kairys v. INS, 981 F.2d 937,  942-43 (7th Cir. 1992) (holding that an alien's service as an armed SS guard at a labor camp attached to the Treblinka  concentration camp rendered the alien deportable under the Holtzman Amendment for having "assisted" in Nazi  persecution "whether or not he committed a specific atrocity by beating a Jewish inmate to death or otherwise mistreating  him beyond what is implicit in serving as a guard at such a camp . . . "). As Judge Posner explained in Kairys:


40
If the operation of such a 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.


41
Id. at 943.


42
We find the reasoning in both Kulle and Kairys to be persuasive. The facts presented by the government show that  Hammer served as an armed SS guard at Auschwitz and Sachsenhausen, and on prisoner rail transports. As a guard,  Hammer had standing orders to shoot anyone who attempted to escape. Although Hammer correctly observes that the  government produced no evidence that Hammer actually shot anyone or forced any prisoner into a gas chamber, no court  has required such a showing. Over one million people were murdered based solely on their religion or ethnicity at the  concentration camps where Hammer stood guard. Hammer's interpretation of the Holtzman Amendment would read the  words "assisted, or otherwise participated" out of the statute. We conclude that the requirements of the Holtzman  Amendment may be satisfied even in the absence of eyewitness testimony that the alien personally engaged in acts of  brutality.


43
The cases most strongly supporting Hammer's position are Laipenieks v. INS, 750 F.2d 1427 (9th Cir. 1985), and United States v. Sprogis, 763 F.2d 115 (2d Cir. 1985), both of which involved aliens who served as Latvian police officers  during the time that Latvia was occupied by NaziGermany. To the extent that those cases would require the government to  prove the alien's personal participation or active assistance in specific acts of brutality, see Laipenieks, 750 F.2d at 1431; see also Sprogis, 763 F.2d at 122, we decline to follow them. Compare United States v. Kairys, 782 F.2d 1374, 1377 n.3  (7th Cir. 1986) (concluding that service as an armed concentration camp or labor camp guard as a matter of law equals  persecution of civilians within the meaning of the Displaced Persons Act); Schellong v. INS, 805 F.2d 655, 661 (7th Cir.  1986) (rejecting Laipenieksand Sprogis as inconsistent with Fedorenko v. United States, 449 U.S. 490 (1981), and  specifically distinguishing the two cases as involving local police officers rather than SS concentration camp guards).


44
We also note that in Petkiewytsch v. INS, 945 F.2d 871 (6th Cir. 1991), a case involving a civilian forced laborer who  had served under duress as a labor education camp guard, this court suggested that the Holtzman Amendment might  require something more than "assistance," even though the word "assisted" appears directly in the statute. See id. at 880  (stating that the Holtzman Amendment "appears to require active participation in persecution going beyond 'assistance.'").  Hammer does not place great reliance on Petkiewytsch, and for good reason. The BIA found that he served willingly as an  armed SS concentration camp guard. This is materially different than a prisoner serving under duress as a civilian guard at  a labor education camp. Hammer, in fact, never claimed in the proceedings below that he served involuntarily as a  concentration camp guard. Furthermore, the BIA found that the SS had no legal authority to conscript an ethnic German in  Croatia, and even the unauthenticated document relied upon by Hammer refers only to the induction, and not conscription,  of ethnic Germans.


45
Petkiewytsch thus appears to stand for the proposition that some forms of "assistance" to the Nazi regime (such as  membership, without more, in an organization which cooperated with the Nazis) may be too attenuated to be considered  "under the direction of, or in association with" the Nazi government, and thus insufficient to trigger deportation under the  Holtzman Amendment. We do not believe that Petkiewytsch compels the conclusion that "assistance" to the Nazi regime  can never be sufficient for deportation under the Holtzman Amendment, because such an interpretation would be squarely  at odds with the text of the statute. In any event, even if Hammer did not "assist[]" in persecution, he certainly "otherwise  participated" in it. Indeed, in Petkiewytsch, this court took pains to distinguish labor education camps and those required to  serve involuntarily as civilian guards at such camps from "extermination camps such as Auschwitz," Petkiewytsch, 945  F.2d at 873-74 (emphasis added), and the SS guards who controlled them.


46
We thus conclude that the BIA's dismissal of Hammer's appeal was substantially reasonable.

D. Special and affirmative defenses

47
Finally, Hammer claims that the BIA erred in disregarding his "special and affirmative defenses." Hammer apparently  refers to a series of claims made before the immigration judge that his deportation is barred by (1) the statute of  limitations, (2) the doctrine of laches and estoppel, (3) waiver, and (4) the doctrine of unclean hands. In contrast, his brief  on appeal discusses the constitutional prohibition against Bills of Attainder, the problems of stale evidence, and the  requirements of due process under the Fifth Amendment, with references to suggestive identifications and the problems of  relying on evidence from the Soviet Union. He also argues that the immigration judge's failure to rule on his "special and  affirmative defenses" before the hearing deprived him of due process because he was put at "a great disadvantage."


48
Hammer's argument that the immigration judge erred in deferring a ruling on his defenses until after the hearing ismeritless. Indeed, it appears that the decision preserved Hammer's due process rights by affording him the benefit of oral  argument on his purported defenses. In any event, Hammer did not object during the proceedings below to the immigration  judge's failure to rule on the defenses before the hearing, and has thus failed to preserve the issue for appeal.


49
The defenses themselves, many of which have no conceivable application to this case, indicate that they were simply  culled from briefs originally prepared in another case. Hammer, for example, objects to "photographic displays" and  "highly suggestive" eyewitness identifications, even though no photographs were admitted into evidence and the  government did not call any eyewitnesses to identify Hammer. He also argues that the witnesses were elderly and had  memory problems, even though, again, the government offered no eyewitness testimony concerning his behavior. The only  eyewitness testimony in this case involved the general mistreatment that occurred at Auschwitz, an issue which cannot  seriously be disputed and which Hammer in fact does not dispute.


50
The only "defense" that has any semblance of merit--that the Holtzman Amendment is a Bill of Attainder--was not  raised below and thus has not been preserved for appeal. Even if it had been preserved, however, the argument has been  rejected by every court that has considered it. See Schellong v. INS, 805 F.2d 665, 662 (7th Cir. 1986); Linnas v. INS, 790  F.2d 1024, 1029-30 (2d Cir. 1986); Artukovic v. INS, 693 F.2d 894, 897 (9th Cir. 1982). In short, we find that Hammer's  "special and affirmative defenses" are devoid of merit.

III. CONCLUSION

51
For all of the reasons set forth above, the petition for review is DENIED.



Notes:


*
  The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting by  designation.


