             NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 06a0034n.06
                          Filed: January 11, 2006


                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
     Plaintiff-Appellee,                         )
                                                 )
             v.                                  )      Nos. 04-1059, 04-1066, 04-3337
                                                 )
JOHANN LEPRICH,                                  )
      Defendant-Appellant.                       )
___________________________________              )
                                                 )
JOHANN LEPRICH,                                  )
     Petitioner-Appellant,                       )
                                                 )
             v.                                  )
                                                 )
PHILIP WRONA, INTERIM DIRECTOR,                  )
      Respondent-Appellee.                              )
___________________________________              )
                                                 )
JOHANN LEPRICH,                                  )
     Petitioner-Appellant,                       )
                                                 )
             v.                                  )
                                                 )
JOHN ASHCROFT, ATTORNEY GENERAL,                 )
     Respondent-Appellee.                               )


            Appeal No. 04-1059: On Appeal from the United States District Court
                       for the Eastern District of Michigan at Detroit
                   No. 2:86-CV-72531 – George C. Steeh, District Judge.

            Appeal No. 04-1066: On Appeal from the United States District Court
                       for the Eastern District of Michigan at Detroit
                   No. 2:03-CV-74052 – George C. Steeh, District Judge

                   Appeal No. 04-3337: On Petition for Review from the
                         Board of Immigration Appeals at Detroit
                                        No. A08 272 762
                                      Argued: March 15, 2005

                                Decided and Filed: _____________

                Before: NELSON, Circuit Judge; BATCHELDER Circuit Judge;
                             and O’MALLEY, District Judge.*

_________________________________________/


       O’MALLEY, J. These consolidated appeals all relate to the citizenship status of Appellant

Johann Leprich (“Leprich”) and to a 1987 district court order revoking Leprich’s United States

citizenship (“the 1987 order”). Specifically, Leprich comes before this court to appeal the

following: (1) the denial of his motion to vacate the 1987 order; (2) the denial of his petition for a

writ of habeas corpus; and (3) the decision of the Board of Immigration Appeals (“BIA”) finding

Leprich removable from the United States.

       Although the factual and procedural histories giving rise to these appeals are lengthy and

complex, our legal determinations are not. Leprich’s core argument is that the 1987 order did not

constitute a “final” judgment, and, therefore, the district court’s order revoking his citizenship in

1987 was invalid, the United States government unlawfully detained him for illegally re-entering

the United States in 2003 because he is still a United States citizen, and, likewise, the immigration

court lacked jurisdiction to hold removal proceedings against him because he is still a United States

citizen. For the reasons stated below, we find that Leprich’s core argument is without merit, and that

his resulting conclusions, therefore, must also fail.

       We, therefore, AFFIRM the district court’s denial of Leprich’s motion to vacate, we



 *     The Honorable Kathleen O’Malley, United States District Judge for the Northern District
       of Ohio, sitting by designation.

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AFFIRM the district court’s denial of Leprich’s petition for a writ of habeas corpus, and we

AFFIRM the BIA’s decision finding Leprich removable from the United States.

I.     BACKGROUND

       A.       Factual Background

       Leprich was born in 1925 in Birk, Romania. In November 1943, Leprich became a member

of the Nazi military organization known as the Waffen SS and, shortly thereafter, commenced

service as a uniformed SS guard at the Mauthausen concentration camp in Austria, where he served

until April or May 1944. Mauthausen was intended as a camp for severe punishment of the enemies

of Nazi Germany, and inmates there were starved, beaten, tortured, and killed by a variety of

methods, including gassing, hanging, strangling, heart injection, electrocution, beating, drowning,

burning, starving, and shooting. Inmates at Mauthausen included Jews, Gypsies, Jehovah’s

Witnesses, and Poles, as well as members of almost every nationality of Europe. While at

Mauthausen, Leprich became a member of the SS Totenkopf-Sturmbann (Death’s Head Battalion),

which was later found by the International Military Tribunal at Nuremberg to be a criminal

organization involved in “the persecution and extermination of Jews, brutalities, and killings in

concentration camps, excesses in the administration of occupied territories, administration of the

slave labor program and the mistreatment and murder of prisoners of war.” Later, in June 1945,

Leprich was captured by the United States Army and held as a prisoner of war until he was released

in June 1946.

       On February 12, 1952, Leprich entered the United States and obtained a visa pursuant to the

Displaced Persons Act of 1948, as amended (“DPA”). In his signed and sworn visa application,

Leprich listed his residences through 1946 as follows: “1939-1943 Birk, Rumania; May, 1945,


                                                3
soldier in Hungarian army; 1946, Sopron, Hungary.” Upon arriving in the United States, Leprich

signed and swore in an affidavit that he had “never advocated or assisted in the persecution of any

person because of race, religion, or national origin.” He never disclosed to any United States official

that he had been a member of the Waffen SS, the SS Totenkopf-Sturmbann, or a guard at

Mauthausen. He also had never been a soldier in the Hungarian army as he claimed, nor had he ever

lived in Sopron, Hungary. Leprich was naturalized as a United States citizen on December 30, 1958.

       In 1986, the United States government, through the Office of Special Investigations (“OSI”)

for the Criminal Division of the Department of Justice, filed an eight count complaint against

Leprich in the United States District Court for the Eastern District of Michigan, seeking to revoke

his citizenship pursuant to the Immigration and Nationality Act of 1952, as amended (“INA”). The

complaint alleged that Leprich made willful misrepresentations and omissions of material fact in

procuring a February 4, 1952 certificate of eligibility for immigration; in securing a February 12,

1952 immigration visa and alien registration; in entering the United States on March 29, 1952; and,

ultimately, in obtaining a December 30, 1958 court order of naturalization. Each of the eight counts

sought the following relief: (1) cancellation of Leprich’s naturalization certificate and revocation

of his United States citizenship; (2) a judgment restraining and enjoining Leprich from claiming any

rights under any document evidencing United States citizenship; (3) a judgment requiring Leprich

to surrender and deliver his naturalization certificate; and (4) such other relief as appropriate.

       The government moved for summary judgment, and, on July 13, 1987, the district court

granted the government’s motion on two counts: Count I (unlawful entry into the United States in

violation of the DPA as a person who advocated or assisted in the persecution of any person

because of race, religion, or national origin) and Count IV (unlawful entry into the United States in


                                                  4
violation of the DPA for willful misrepresentations and omissions of material fact made in the

affidavit supporting his visa application). In a separate order, on July 10, 1987, the district court

stated that “IT IS ORDERED AND ADJUDGED that the plaintiff’s motion for summary judgment

is granted,” and further granted the government the three specific forms of relief it requested (i.e.,

cancelling Leprich’s certificate of naturalization and revoking his United States citizenship;

restraining and enjoining Leprich from claiming any rights, privileges, or advantages under any

document evidencing United States citizenship; and requiring Leprich to immediately surrender his

certificate of naturalization and any passport or other documentary evidence of citizenship).

       Leprich did not appeal the district court’s 1987 decision; rather, he fled to Canada before the

government initiated removal proceedings. Leprich claims to have resided in Canada from 1987 to

2003, but he renewed his Michigan driver’s license twice during the 1990s, and the government

suspected he remained in the United States during portions of that time. Leprich returned to the

United States in April 2003 to visit his wife in Michigan, and, on July 1, 2003, agents from the

Department of Homeland Security (“DHS”) arrested Leprich after obtaining a lawful search warrant.

He has been in custody since his arrest in July 2003.1

       B.      Procedural Background

       On October 7, 2003, after being taken into custody, Leprich filed a motion in the United

States District Court for the Eastern District of Michigan seeking to vacate the 1987 order revoking

his citizenship. In that motion, Leprich argued that, in 1987, the district court granted the

government only partial summary judgment, and, therefore, the order revoking Leprich’s citizenship



       1
               On March 15, 2004, Leprich’s motion for release on bail pending appeal was
               denied.

                                                  5
was not a final appealable judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

Because the order was not a final appealable order, according to Leprich, it was not a valid

revocation of his citizenship. On December 10, 2003, the district court denied Leprich’s motion to

vacate, and Leprich now appeals.

       Also on October 7, 2003, Leprich filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241, arguing again that the district court’s 1987 order was not a final appealable order,

and, therefore, that he is being detained unlawfully because he is still a United States citizen. On

December 10, 2003, the district court denied Leprich’s petition for a writ of habeas corpus, and

Leprich now appeals.

       Lastly, after arresting Leprich in 2003, DHS began administrative removal proceedings,

arguing that, because Leprich’s citizenship had been revoked in 1987, he is subject to removal. In

a decision dated November 21, 2003, an immigration judge found Leprich removable on the basis

of an unlawful entry into the United States. On March 4, 2004, the BIA affirmed that decision.

Leprich filed a petition for judicial review in this court. Leprich’s petition for review has been

consolidated for submission with his other two appeals.

II.    ANALYSIS

       We address Leprich’s appeals in the same order in which we described them above: (1) the

denial of his motion to vacate the 1987 order; (2) the denial of his petition for a writ of habeas

corpus; and (3) the decision of the BIA finding Leprich removable. As to Leprich’s first appeal, his

inability to obtain relief is largely the result of his own doing. Rather than appealing the district

court’s 1987 order (or challenging its finality), Leprich chose to flee the country and elude execution

of the order for over sixteen years, challenging its validity only after being detained by United States


                                                   6
immigration authorities. Although we conclude that the district court’s 1987 order is a final order

and would have remained so regardless of how long Leprich waited to challenge it, his remaining

arguments in support of his motion to vacate clearly are time-barred due to his extraordinary delay.

In addition, we can dispose of Leprich’s second appeal based on our determination that the 1987

order was, indeed, a final order. As to his appeal of the BIA’s decision, his arguments are simply

without merit.

        One common thread runs through each of Leprich’s three appeals, and, therefore, we will

address it at the outset of our analysis. Leprich’s core argument is that the district court’s 1987 order

was not a final order because it was based on the grant of partial summary judgment. Because the

district court granted summary judgment on only two of the government’s eight counts, Leprich

argues, the judgment was not final and could not provide the basis for a final citizenship revocation

order. The district court denied Leprich’s motion to vacate, determining, in part, that the 1987 order

was a final appealable order primarily because the government’s complaint presented the same claim

for relief under eight theories of recovery, thereby presenting only one claim on which it won final

summary judgment.

        We hereby adopt the thorough and well-reasoned opinion of the district court, which

concluded that the 1987 opinion and order constituted a final appealable judgment. That conclusion

is bolstered by the fact that the district court, in 1987, issued an opinion and then, consistent with

Rule 58 of the Federal Rules of Civil Procedure, issued a separate judgment. The separate judgment,

indicating that “IT IS ORDERED AND ADJUDGED . . . ,” further reflects an intention to enter final

judgment in the case, dispelling any doubts that now may exist as to the finality of the summary

judgment.


                                                   7
          A.     The 1987 Order

          In addition to arguing that the district court should vacate its 1987 order because it was not

a “final” order, Leprich also argued before the district court that it should vacate the 1987 order

because (1) the district court lacked jurisdiction to redetermine his visa eligibility and lawful

admission into the United States, (2) the government sought revocation of Leprich’s United States

citizenship under the wrong statute, (3) Leprich’s previous counsel did not oppose the government’s

motion for summary judgment, (4) Leprich enjoys a substantial defense to Counts I and IV (the

counts for which summary judgment was granted), (5) the district court improperly relied upon

disputed facts and assessments of credibility, and (6) the district court failed to apply the appropriate

materiality test.

          After determining that the 1987 order was a final order, the district court treated the

remainder of Leprich’s arguments as part of a motion pursuant to Rule 60(b) of the Federal Rules

of Civil Procedure (“Rule 60(b)”) and found that Leprich’s arguments were barred by the relevant

time limits set forth in Rule 60(b). See Fed. R. Civ. P. 60(b) (“The motion shall be made within a

reasonable time, and for reasons (1) (mistake), (2) (newly discovered evidence) and (3) (fraud), not

more than one year after the judgment, order, or proceeding was entered or taken”) (emphasis

added).

                 1.      Standard of Review

          We review the district court’s denial of a Rule 60(b) motion for abuse of discretion. Blue

Diamond Coal Co. v. Trustees of UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.

2001). However, because the district court’s characterization of Leprich’s motion to vacate as a

motion brought under Rule 60(b) is an interpretation and application of the Federal Rules of Civil


                                                    8
Procedure, and thus a question of law, we review that narrow decision de novo. Kalamazoo River

Study Group v. Rockwell Intern. Corp., 355 F.3d 574, 583 (6th Cir. 2004).

                2.      Discussion

          On appeal, Leprich maintains two arguments: (1) the district court lacked jurisdiction to

redetermine his visa eligibility and lawful admission into the United States; and (2) the government

sought revocation of Leprich’s United States citizenship under the wrong statute. As an initial

matter, we agree with the district court’s characterization of Leprich’s motion to vacate as a Rule

60(b) motion; Leprich’s motion sought relief from a final order entered against him, a matter

ordinarily governed by Rule 60(b). As such, Rule 60(b)’s time limits apply to Leprich’s motion, and

his remaining arguments clearly are time-barred by his sixteen year delay in challenging the 1987

order.

         As to Leprich’s claim that the district court lacked subject matter jurisdiction to redetermine

his visa eligibility, that claim is governed by Rule 60(b)(4) as a claim that the judgment is void. See

Antoine v. Atlas Turner, 66 F.3d 105, 108 (6th Cir. 1995). Motions pursuant to 60(b)(4) shall be

made “within a reasonable time,” a limit determined on a case-by-case basis by the length and

circumstances of the delay in filing, prejudice to the opposing party, and any circumstances

warranting equitable relief. Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990). In

this case, Leprich filed his motion to vacate more than sixteen years after the district court entered

the 1987 order. His delay was caused solely by his own decision to flee the United States to avoid

enforcement of the order he now challenges. It is well settled that a Rule 60(b) motion “cannot be

used to avoid the consequences of a party’s decision . . . to forego an appeal from an adverse ruling.”

Pierce v. United Mine Workers of America Welfare and Retirement Fund, 770 F.2d 449, 451-52 (6th


                                                   9
Cir. 1985). Considering the circumstances of this case, we find that the district court correctly

concluded that Leprich’s 60(b)(4) claim is time-barred.

       As to Leprich’s claim that the government sought revocation of his citizenship under the

wrong statute, that is a claim of legal error and is subsumed in the category of mistake under Rule

60(b)(1). See Pierce, 770 F.2d at 451. Leprich was required to raise this claim “within a reasonable

time, and . . . not more than one year after the judgment, order, or proceeding was entered or taken.”

Fed. R. Civ. P. 60(b). Having failed to do so, Leprich’s second claim is also time-barred. We find

the district court properly characterized Leprich’s motion to vacate as a Rule 60(b) motion and

correctly determined that his claims were unreasonably untimely. We, therefore, do not address the

merits of Leprich’s claims.

       B.      Petition for Writ of Habeas Corpus

       Leprich also appeals the denial of his petition for a writ of habeas corpus. In 2003, Leprich

petitioned for a writ of habeas corpus solely on the ground that, because the 1987 order was not a

final appealable judgment, the order was not a valid revocation of his United States citizenship, and

that DHS is, therefore, unlawfully holding him in custody. Because we adopt the district court’s

opinion as to the finality of the 1987 order, we find that its judgment entry constituted a valid

revocation of Leprich’s citizenship. The government’s detention of Leprich, therefore, is not

unlawful, and the district court correctly denied Leprich’s petition for a writ of habeas corpus.

       C.      The BIA Decision

       Lastly, Leprich challenges the BIA decision affirming an immigration judge’s ruling that

Leprich was removable because, as a non-citizen, he failed to present the required documentation

when he entered the United States from Canada in 2003. On appeal, Leprich argues that (1) the


                                                 10
immigration court had no removal jurisdiction over him because he remained, and still remains, a

United States citizen, and (2) the proper authorities did not sign the removal charges against him.2

Because we have concluded already that the 1987 order was a valid revocation of Leprich’s United

States citizenship, we do not address Leprich’s first argument again. In any event, the immigration

judge and the BIA were bound to apply the district court’s order until altered, amended, or vacated

either by the district court or by this court, none of which had occurred at the time of its decision.

       Leprich’s remaining argument raises the question of which government officials are

authorized to bring charges to initiate removal proceedings in immigration courts. Agents from the

Justice Department’s OSI as well as agents from DHS were involved in authorizing the charging

documents in his removal proceeding, and Leprich contends the officials from OSI overstepped the

bounds of their authority in some instances, thereby invalidating the proceeding. We address this

argument below.

               1.      Standard of Review

       We review the BIA’s legal conclusions de novo, but with substantial deference to the BIA’s

reasonable interpretations. Hamama v. INS, 78 F.3d 233, 239 (6th Cir. 1996). The BIA’s

interpretation of immigration statutes should be affirmed unless the BIA’s view is “arbitrary,

capricious, or manifestly contrary to the statute.” Id. Factual findings made in removal proceedings



       2
               Leprich also argues that OSI attorneys have no authority to represent the
               Secretary of Homeland Security in a removal proceeding, as they did in the
               removal proceeding conducted against Leprich. Although Leprich briefed this
               issue before the BIA, he did not raise it before the immigration judge, and the
               BIA did not address it in its decision. Because a brief review of the applicable
               regulations reveals that this argument is likely without merit, and, because
               Leprich waived the argument by not raising it initially before the immigration
               judge, we decline to address it further.

                                                 11
are reviewed under the substantial evidence standard, which requires only that the findings be

“substantially reasonable” based on the evidence presented. Hammer v. INS, 195 F.3d 836, 840 (6th

Cir. 1999).

               2.      Notice to Appear

       Leprich argues that the Notice to Appear (a required part of the charging documents in a

removal proceeding, akin to a civil complaint or criminal indictment) filed against him was not

signed by the proper authorities, and, therefore, the immigration judge lacked jurisdiction over his

case. The Director of OSI signed each page of the Notice to Appear, and an Interim Associate

Special Agent in Charge from DHS signed the first page.

       Leprich concedes, as he must, that the signature of the DHS agent would have been sufficient

to authorize the Notice to Appear if the DHS agent had signed each page. Even assuming that a

signature appearing on only the first page would have been legally insufficient to authorize the

document (which is an unwarranted assumption), we agree with the BIA that the OSI Director’s

signature constitutes proper authorization of the Notice to Appear. The government brought charges

against Leprich, in part, under the Holtzman Amendment to the INA, and the Director of OSI is

delegated with authority to take legal action to deport persons described in the Holtzman

Amendment. The OSI also is charged with the responsibility of enforcing the INA and laws related

to Nazi war crimes suspects. With proper deference to the BIA’s reasonable interpretation, we find

that the BIA correctly determined that the OSI Director’s signature constitutes proper authorization




                                                12
of the Notice to Appear in this case.3

III.   CONCLUSION

       For the foregoing reasons, the district court’s denial of Leprich’s motion to vacate the 1987

order is AFFIRMED; the denial of Leprich’s petition for a writ of habeas corpus is AFFIRMED,

and the decision of the BIA finding that Leprich is removable is AFFIRMED.




       3
               Leprich also argues that the government improperly filed two amended Notices to
               Appear. Because the second amended Notice to Appear replaced the first
               amended Notice to Appear (and was nearly identical except that it was signed by
               a different official and deleted an aspect of one charge), Leprich’s arguments
               about the first amended Notice to Appear are moot. Leprich’s argument that the
               government untimely submitted the second amended Notice to Appear is without
               merit. The Code of Federal Regulations provides that additional or substituted
               charges of deportability and/or factual allegations may be lodged “at any time
               during deportation or removal proceedings.” 8 C.F.R. § 1003.30 (emphasis
               added). The second amended Notice to Appear was filed prior to the completion
               of the proceeding, and, therefore, its filing falls within the broad latitude of 8
               C.F.R. § 1003.30.

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