In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1518

Juozas Naujalis,

Petitioner,

v.

Immigration and Naturalization Service and
John Ashcroft, Attorney General of the United
States,

Respondents.



Petition for Review from the
Board of Immigration Appeals of the
Immigration and Naturalization Service
No. A 7 258 120


Argued September 28, 2000--Decided February 15, 2001



  Before Posner, Manion, and Diane P. Wood, Circuit
Judges.

  Manion, Circuit Judge. In May 1949, Juozas
Naujalis, a Lithuanian native, applied for and
received an immigrant visa to enter the United
States under the Displaced Persons Act; but in
doing so he failed to disclose his service in a
Lithuanian battalion that assisted the Nazis in
their persecution of civilians during World War
II. In October 1995, the United States filed an
Order to Show Cause with the Immigration Court,
charging that Naujalis was deportable because of
his service in the Lithuanian battalion. After a
merits hearing in 1997, the Immigration Court
ordered Naujalis deported to Lithuania. The Board
of Immigration Appeals affirmed the deportation
order, and Naujalis appeals. We affirm.

I.

  On June 22, 1941, the armed forces of Nazi
Germany invaded the Soviet Union, sweeping
through the Soviet-dominated Baltic States and
occupying Lithuania within a week. Special Nazi
Security Police forces followed the German Army
into Lithuania primarily to execute Jews,
communists, and others regarded as enemies of the
Third Reich.
  Many Lithuanians initially viewed the German
Army as liberators from Soviet domination, and
they attempted to establish an independent
Lithuanian government and form a national army.
But the Germans quickly converted the provisional
national government into an indigenous
administrative apparatus, and subordinated the
Lithuanian Army into auxiliary police forces to
supplement the Nazi Security Police units. In
early August 1941, the German 11th Police Reserve
Battalion (German 11th Battalion) arrived in
Lithuania and assumed control of all indigenous
Lithuanian units, including the auxiliary police
force that became known as the 2nd Auxiliary
Police Battalion (2nd Battalion)./1 The members
of the 2nd Battalion were volunteers and were
paid in German marks.

  Juozas Naujalis served in the Lithuanian Army
from 1938 to July 1940, when he returned to his
father’s farm in Lithuania. After the Germans
forced the Soviets out of Lithuania, Naujalis
voluntarily joined the 2nd Battalion in August of
1941 to serve the new Lithuanian Army. He was
transferred as a "gunner" to the First Company of
the 2nd Battalion with the rank of Lance Corporal
and the rights of a squad leader. The Nazis took
control of the 2nd Battalion shortly after
Naujalis joined.

  On October 6, 1941, the Nazis transferred the
2nd Battalion, along with the German 11th
Battalion, from Lithuania to Minsk in Byelorussia
(now Belarus). Their mission was to exterminate
"Bolshevism" by eliminating the remnants of the
Bolshevik army and its partisans from the Minsk-
Borisov-Slutsk region. According to the Nazis,
"Bolshevism" and "Bolsheviks" referred to Jews
and members of the Communist Party. Naujalis was
transferred to Minsk with the 2nd Battalion.

  During October 1941, the 2nd Battalion assisted
the German 11th Battalion in a series of killing
missions in which they executed over 11,000 men,
women and children. The soldiers of the 2nd
Battalion participated in these missions by
surrounding villages, locating victims in their
homes and workplaces, marching them to killing
fields, forcing them to undress and lie in pits,
and then shooting the victims. The Battalions’
"cleansing" actions in Byelorussia included the
execution of at least 617 civilians in Dukara on
October 8, 1941; 800 communists, Jews, and other
"partisans" in the Rudensk area from October 9-
11; 1,300 communists, Jews, and other "hostile"
persons in Smilovichi on October 14; 625
communists from a civilian prison camp in Minsk
on October 15; an additional 1,150 communists
from the Minsk camp on October 18; 1,000 Jews and
communists in Kojdanov on October 21; and 5,900
Jews in Slutsk on October 27-28, 1941.

  In Naujalis’s sworn statement taken in 1992, he
claimed that he did not personally participate in
any of the 2nd Battalion’s killing missions
because he spent the month of October 1941 (and
that entire winter) in Minsk guarding a railway
station against possible Soviet attack.

  From November 1-14, 1941, Naujalis was assigned
with other 2nd Battalion members to the village
of Kojdanov. In November of 1943, two years after
the atrocities, Naujalis deserted the 2nd
Battalion while on furlough. He was caught and
arrested for desertion, and spent a year in jail.
He later fled to Germany where he worked as a
forced laborer.

  In May 1949, Naujalis applied to the United
States Displaced Persons Commission (DPC) to
establish his status as a Displaced Person so
that he could emigrate to the United States under
the Displaced Person Act (DPA)./2 Naujalis never
informed the DPC of his service in the 2nd
Battalion, and the DPC certified him as a
Displaced Person on May 16, 1949. He then applied
for and received an immigrant visa, and entered
the United States under the DPA in August 1949.
Naujalis never applied for U.S. citizenship.

  In October 1995, the United States filed an
Order to Show Cause (Order) with the Immigration
Court, charging that Naujalis was deportable,
pursuant to 8 U.S.C. sec. 1227(a)(4)(D)(the
Holtzman Amendment),/3 for assisting Nazi-
directed persecution through his membership and
service in the 2nd Battalion. The Order also
charged that Naujalis was deportable under 8
U.S.C. sec. 1227(a)(1)(A)/4 for being
inadmissible when he entered the United States
because his service in the 2nd Battalion
constituted voluntary assistance to the enemy
(rendering him ineligible for a visa under
Section 2 of the DPA), and membership or
participation in a movement hostile to the United
States (rendering him ineligible for a visa under
Section 13 of the DPA)./5 The Immigration Court
held a merits hearing in April 1997, found that
Naujalis was deportable under 8 U.S.C. sec.sec.
1227(a)(4)(D) and 1227(a)(1)(A), and ordered him
deported to Lithuania.

  Naujalis appealed to the Board of Immigration
Appeals (Board), arguing that he was not
deportable under the Holtzman Amendment because
he spent the month of October 1941 (and that
entire winter) guarding a Minsk railway station,
and thus never personally participated in any of
the 2nd Battalion’s atrocities. He also contended
that he was not deportable under 8 U.S.C. sec.
1227(a)(1)(A) for providing voluntary assistance
to the enemy (pursuant to Section 2 of the DPA)
because his service in the 2nd Battalion was no
longer voluntary when the Germans transported the
2nd Battalion at gunpoint from Lithuania to
Minsk. Naujalis also challenged the Immigration
Court’s conclusion that he was ineligible for a
visa under Section 13 of the DPA because,
according to Naujalis, the 2nd Battalion was
formed as a Lithuanian police force and not as a
movement hostile to the United States.

  The Board dismissed Naujalis’s appeal,
concluding that he was deportable under the
Holtzman Amendment pursuant to United States v.
Ciurinskas, 148 F.3d 729 (7th Cir. 1998), in
which this court held that Ciurinskas’s
membership and service in the same 2nd Lithuanian
Battalion (without proof that he personally
participated in atrocities) was sufficient to
establish his assistance in persecution under
Section 2(b) of the DPA./6 Id. at 734. The Board
also noted that a finding of assistance in
persecution is legally identical under the DPA
and the Holtzman Amendment./7 See Schellong v.
INS, 805 F.2d 655, 660-61 (7th Cir. 1986). And
the Board concurred with the Immigration Court’s
conclusion that Naujalis was deportable under 8
U.S.C. sec. 1227(a)(1)(A) because his membership
and service in the 2nd Battalion constituted
voluntary assistance to the enemy (according to
Section 2 of the DPA), and membership in a
movement hostile to the United States (according
to Section 13 of the DPA). Naujalis, who is now
81 years old, appeals to this court.
II.

  Naujalis does not dispute that the 2nd Battalion
committed the atrocities listed above. His first
argument on appeal is that the United States
never presented clear, unequivocal and convincing
evidence that he personally participated in any
of the 2nd Battalion’s killing missions, and thus
the Board erroneously found him deportable under
the Holtzman Amendment.

  The government has the burden of proof in
deportation proceedings, and must establish the
facts supporting deportability with clear,
convincing and unequivocal evidence that does not
leave the issue in doubt. Fedorenko v. United
States, 449 U.S. 490, 505 (1981). We review the
Board’s legal conclusions de novo, Sayaxing v.
I.N.S., 179 F.3d 515, 519 (7th Cir. 1999), but we
defer to the Board’s factual findings, reversing
them only if they lack the support of substantial
evidence in the record. Malek v. I.N.S., 198 F.3d
1016, 1021 (7th Cir. 2000). Therefore, the
Board’s determination that a petitioner is
deportable is conclusive unless evidence in the
record would compel a reasonable adjudicator to
conclude to the contrary. 8 U.S.C. sec. 1252(b)
(4)(B); I.N.S. v. Elias-Zacarias, 502 U.S. 478,
481 (1992).

  Congress enacted the Holtzman Amendment in 1978
to ensure "that the United States is not a haven
for individuals who assisted the Nazis in the
brutal persecution and murder of millions of
people." Schellong, 805 F.2d at 662. The
Amendment provides for the deportation of aliens
who "ordered, incited, assisted, or otherwise
participated" in Nazi-directed persecution of
individuals because of their race, religion,
national origin, or political opinion. United
States v. Tittjung, 235 F.3d 330, 334 n.2 (7th
Cir. 2000); 8 U.S.C. sec.sec. 1182(a)(3)(E) and
1227(a)(4)(D).

  In this case, the government must demonstrate
that Naujalis’s conduct assisted the 2nd
Battalion to commit atrocities. See Fedorenko,
449 U.S. at 512 n. 34. To prove that Naujalis
assisted in Nazi-directed persecution, the
government does not have to establish that
Naujalis’s assistance in persecution was
voluntary, id. at 512, or that he personally
participated in the atrocities. See id. (a
perimeter guard at the Treblinka death camp
assisted in persecution even though there was
insufficient evidence that the guard personally
committed atrocities); see also Ciurinskas, 148
F.3d at 734 (Ciurinskas’s membership and service
in the 2nd Battalion (without proof of his
personal involvement in atrocities) was
sufficient to constitute assistance in
persecution); accord Kulle v. I.N.S., 825 F.2d
1188, 1192 (7th Cir. 1987). According to the
Holtzman Amendment’s non-criminal provision, we
may infer one’s assistance in persecution "from
the general nature of the person’s role in the
war" and thus "atrocities committed by a unit may
be attributed to the individual based on his
membership and seeming participation." Kalejs v.
I.N.S., 10 F.3d 441, 444 (7th Cir. 1993).

  In support of the Board’s conclusion that
Naujalis’s membership and service in the 2nd
Battalion constituted assistance in persecution
under the Holtzman Amendment, the Board cited the
Fedorenko case for the principle that an
individual’s military service may qualify as
assistance in persecution under the DPA without
proof of the individual’s personal involvement in
atrocities. The Board then discussed the
Ciurinskas case in which the defendant served in
the same 2nd Lithuanian Battalion as Naujalis.
According to the Board, this court in Ciurinskas
concluded that "even if Ciurinskas had not
personally participated in the killing actions in
Byelorussia, his service in the persecutory unit,
like that of a concentration camp guard, was
sufficient to constitute assistance in
persecution under the DPA." The Board also quoted
Ciurinskas where this court stated that "We see
little difference between being a concentration
camp guard as Fedorenko was and being a member of
a force dedicated to the extermination of large
numbers of civilians as was Ciurinskas."
Ciurinskas, 148 F.3d. at 734. The Board then
concluded that "in light of the court’s holding
in [Ciurinskas], by which we are bound, we find
that [Naujalis’s] undisputed service in the [2nd
Battalion], in and of itself, establishes his
deportability under [8 U.S.C. sec.
1227(a)(4)(D)]."

  Naujalis contends that his case is different
from the Ciurinskas case because unlike
Ciurinskas (who falsely claimed that he was never
stationed with the 2nd Battalion in Minsk),
Naujalis admitted that he was in Minsk and
distinguished his duties from the majority of 2nd
Battalion members who participated in killing
missions. In support of his contention, Naujalis
claims that it is "inconceivable" that the
Germans would have abandoned the "vital" railway
station in Minsk while the 2nd Battalion and the
German 11th Battalion were deployed on killing
missions, and thus the Germans entrusted
experienced soldiers like himself (not mere
privates) to guard the station to ensure that
munitions, tanks and artillery arrived at the
Eastern Front. To further corroborate his claim,
Naujalis identifies statements in the record made
by other former 2nd Battalion members who
affirmed that all of the soldiers participated in
the killing operations unless they were guarding
other facilities.

  We conclude that Naujalis’s own admissions and
assertions that he guarded a vital railway
facility in Minsk as a soldier in the 2nd
Battalion during October 1941 sufficiently
establish that he assisted Nazi-directed
persecution. The Nazis controlled the 2nd
Battalion, and its primary mission in October of
1941 was to murder civilian populations in and
around Minsk. The 2nd Battalion and the German
11th Battalion executed over 11,000 men, women,
and children in 21 days. According to Naujalis,
he was an experienced soldier who supported the
2nd Battalion with armed, uniformed, military
service as a guard of a railway station that was
vital to the Nazi war effort. Thus he provided
active, armed, military service on a significant
assignment, and did not merely accommodate the
Nazis in some passive, minimal way by performing
non-military tasks. Moreover, Naujalis’s service
contributed to the overall strength and dynamic
of the 2nd Battalion. The Nazis could rely on
Naujalis to guard a vital facility so that other
2nd Battalion (and German 11th Battalion)
soldiers could be deployed on large-scale killing
missions. Arguably, the 2nd Battalion would not
have been able to murder so many civilians as
efficiently and effectively without Naujalis’s
contribution. We conclude, therefore, that
substantial evidence supports the Board’s finding
that Naujalis assisted the Nazis in persecuting
civilians, and thus he is deportable under the
Holtzman Amendment./8 See Ciurinskas, 148 F.3d
at 734. Accordingly, we AFFIRM the Board’s
decision.


/1 The Germans designated the 2nd Battalion as the
"2nd Lithuanian Schutzmannschaft Battalion" in
October of 1941.

/2 Congress enacted the DPA in 1948 "to enable
European refugees driven from their homelands by
the war to emigrate to the United States without
regard to traditional immigration quotas."
Fedorenko v. United States, 449 U.S. 490, 495
(1981).

/3 This is the current provision. The Order actually
charged that Naujalis was deportable under
Section 241(a)(4)(D) of the Immigration and
Nationality Act of 1952 (INA), 8 U.S.C. sec.
1251(a)(4)(D). These provisions are now codified
as INA Section 237(a)(4)(D), 8 U.S.C. sec.
1227(a)(4)(D). For simplicity, we will refer only
to the current provision: 8 U.S.C. sec.
1227(a)(4)(D).

/4 This is the current provision. The Order actually
charged that Naujalis was also deportable under
INA Section 241(a)(1)(A), 8 U.S.C. sec.
1251(a)(1)(A). These provisions are now codified
as INA Section 237(a)(1)(A), 8 U.S.C. sec.
1227(a)(1)(A). For simplicity, we will refer only
to the current provision: 8 U.S.C. sec.
1227(a)(1)(A).

/5 We note that although Naujalis never informed the
DPC of his service in the 2nd Battalion, the
United States chose not to charge him as
ineligible for a visa pursuant to Section 10 of
the DPA (and thus deportable under 8 U.S.C. sec.
1227(a)(1)(A)) for willfully making a
misrepresentation to gain entry into the United
States. See United States v. Ciurinskas, 148 F.3d
729, 734 (7th Cir. 1998).

/6 Section 2 of the DPA excluded individuals from
"displaced person" status if they assisted the
enemy in persecuting civilians, or voluntarily
assisted enemy forces. See Fedorenko, 449 U.S. at
509-12; see also Ciurinskas, 148 F.3d at 732.

/7 Furthermore, the Board found implausible
Naujalis’s claim that he was exclusively assigned
to guard a railway station in Minsk and never
personally participated in any of the 2nd
Battalion’s atrocities. According to the Board,
Naujalis’s account of his 2nd Battalion duties is
not credible because his 1992 statement contains
significant discrepancies about his assignments
in Minsk: Naujalis first claimed that he spent
the month of October in Minsk doing "absolutely
nothing" in an old school building, but later
asserted that he guarded a railway station during
the entire winter season. The Board also noted
that there was no evidence in the record to
corroborate Naujalis’s claim that some 2nd
Battalion members were assigned exclusively to
guard duty at railway stations or other such
installations during the period of the
Battalion’s killing actions in Byelorussia. The
Board further reasoned that it was "inherently
improbable" that Naujalis never participated in
any killing missions while, according to the
government’s expert historian, Dr. Conrad Kwiet,
Naujalis commanded ten to fifteen men as a squad
leader with the rank of Lance Corporal in the
First Company, which the Nazis used more than the
Battalion’s other two companies for "particularly
important duties" to accomplish the mission of
exterminating perceived racial and political
enemies of the Nazi regime.

/8 Naujalis also raises several claims on appeal
that he never received a "full and fair" hearing,
but because his own admissions and assertions
sufficiently establish that he assisted
persecution and is deportable, we decline to
address this issue. And because we conclude that
Naujalis is deportable under the Holtzman
Amendment, we reserve opinion on the Board’s
additional findings that he is deportable under 8
U.S.C. sec. 1227(a)(1)(A).
