Full opinion text
CUMMINGS, Circuit Judge. The government seeks to deport eighty-year-old Konrads Kalejs, an alleged Nazi collaborator who has now lived in the United States for thirty-four years. After Germany’s defeat, Kalejs fled to Australia. He came to the United States in 1959 claiming to have been a farm laborer during the war. Whatever his real occupation then, Kalejs has been a financial success in the United States: he owns four homes, had assets in excess of' a million dollars in the mid-1980s, and was able to post a $750,000 bond to secure his freedom while this case was pending. The Justice Department first set its sights on Kalejs in late 1984. But when he was about to be nabbed, he took $350,000 in cash and fled to Canada and Australia. When Kalejs returned to the United States, he tried to assume a new identity and managed to elude capture for six months. He was finally arrested in Florida on April 19, 1985; government agents expended 1,500 hours in the search. In the more than eight years since his arrest, Kalejs has bitterly disputed the charges that he was an officer in a pro-Nazi unit that killed tens of thousands of people, and that he assisted in other persecutions as an army officer, policeman and concentration camp guard. Both an immigration judge and the Board of Immigration Appeals (“BIA”) — sitting in Chicago after Kalejs was granted a change of venue- — considered the case in extraordinary detail, found Kalejs’ denials unconvincing, and held that he should be deported under 8 U.S.C. §§ 1251(a)(1)(A), 1251(a)(1)(B) and 1251(a)(4)(D). If he is deported, Kalejs will return to Australia where he retains citizenship. We have jurisdiction to hear direct appeals of BIA decisions under 8 U.S.C. § 1105a(a). Kalejs presses upon us essentially three arguments: that he did not commit war crimes, that he did not lie on his visa application to enter the United States (or rather, that the lies he told were immaterial), and that prosecutors relied on inherently untrustworthy evidence — depositions and documents salvaged from the archives of the former Soviet Union — and then compounded the error by denying him due process. We affirm the BIA’s decision in all respects. Konrads Kalejs was born on June 26,1913, in Riga, Latvia. He was educated as a professional soldier and served as a lieutenant and first lieutenant in the Latvian military. In 1940, the Russians overran Latvia. Ka-lejs salvaged his military career by joining the conquering Red Army, but a year later the Russians were themselves pushed out of Latvia by the Nazis, whose forces were driving relentlessly toward Russia on the eastern front. Again Kalejs sided with the victors; he deserted his Red Army comrades and, according to the evidence presented here, joined a pro-German force called the Latvian Auxiliary Security Police. The unit was also known as the Arajs Kommando after its leader Viktors Arajs, who was convicted by a German court and sentenced to life imprisonment in 1979 for committing wartime atrocities. (Arajs died in prison.) According to the Justice Department, from July 1941 until at least June or July of 1944, Kalejs was a company commander and first lieutenant in the Arajs Kommando. The Nazis’ policy in Latvia (as elsewhere) was to murder all Jews, Gypsies and many Communists. After the German army swept through an area, a mobile killing crew would follow shortly, hoping to catch victims unaware. These mobile killing units were called the Einsatzgruppe or, in Latvia, the Einsatzkommando. According to the government’s expert witness in the case against Kalejs, Dr. Raul Hilberg, a renowned Holocaust scholar and professor of political science at the University of Vermont, the Ein-satzkommando assigned to Latvia had just 170 members. The logistics of attempting the systematic annihilation of the 70,000 Jews in Latvia prompted the Einsatzkom-mando to rely on bands of local soldiers. The Arajs Kommando was such a group. As a company commander, Kalejs was one of six or seven officers who were second in command to Arajs; he had a hundred men or more under his direction. Dr. Hilberg testified that according to German documents, the Einsatzkommando with the help of the Arajs Kommando and similar local groups managed to murder 29,000 people (90 percent of them Jewish) before August 10, 1941. A few months later, in order to make room in Riga’s Jewish ghetto for the thousands of Jews whom Hitler had shipped out of Germany, 27,800 Jews were shot in the woods near Riga in the space of three days. By January 1942, only 4,000 of the 70,000 Jews who were in Latvia at the beginning of the war were still alive. The Arajs Komman-do working with the Einsatzkommando was responsible for more than half of these killings. Kalejs and his unit had two other duties besides killing Jews in the Riga ghetto. Outside of Latvia (usually in Russia) the Arajs Kommando joined the German SS in so-called anti-partisan activity, which was little more than a cover for arresting and murdering civilians. In addition, the Arajs Kom-mando under the leadership of Kalejs served as guards at the Salaspils concentration camp. The conditions there were brutal, although Salaspils was a labor camp whose inmates died primarily from inhumane conditions or being shot while trying to escape, rather than a killing camp such as Auschwitz where the prisoners were systematically murdered in gas chambers. The Arajs Kom-mando was charged with guarding work details and preventing escapes at Salaspils. The United States has the authority to deport Nazi collaborators for assisting in the persecution of innocents because of their race, religion, national origin or political opinion, 8 U.S.C. § 1182(a)(3)(E), and for lying about a material fact on immigration forms, Fedorenko v. United States, 449 U.S. 490, 506, 101 S.Ct. 737, 747, 66 L.Ed.2d 686. The government alleges that Kalejs is guilty of both. We will deal with each accusation in turn although the issues are married because of course the reason former Nazis lie on their immigration forms is that they would not gain admission if they told the truth about their war crimes. Stephen J. Massey, Individual Responsibility for Assisting the Nazis in Persecuting Civilians, 71 Minn.L.Rev. 97, 106 (1986). The Holtzman Act confers on the United States the power to deport, or keep out in the first instance: 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, (II) any government in any area occupied by the military forces of the Nazi government of Germany, (III) any government established with the assistance or cooperation of the Nazi government of Germany, or (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 * * *. 8 U.S.C. § 1182(a)(3)(E). Assigning personal responsibility in a military regime is complex, particularly with regard to Holocaust era crimes because the Nazis’ murderous proficiency insured there would be few witnesses. In only a handful of these cases are there people who can place the accused at the scene of a specific crime with a gun in his hand. The same is true here. The Holtz-man Amendment’s non-criminal provision thus makes assistance in persecution an independent basis for deportation, and assistance may be inferred from the general nature of the person’s role in the war; therefore, the atrocities committed by a unit may be attributed to the individual based on his membership and seeming participation. The Supreme Court suggested in Fedorenko, for example, that an armed guard at a concentration or labor camp assisted in persecution under the statute, no matter that it could not be proved he committed a specific atrocity and despite the fact that the guard acted at the direction of a camp commandant. 449 U.S. at 512 n. 34, 101 S.Ct. at 750 n. 34. As we recently said, If the operation of [a concentration] 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. Kairys v. Immigration and Naturalization Service, 981 F.2d 937, 943 (7th Cir.1992), certiorari denied, - U.S. -, 113 S.Ct. 1832, 123 L.Ed.2d 460. See also Schellong v. Immigration and Naturalization Service, 805 F.2d 655, 660, 662 (7th Cir.1986), certiorari denied, 481 U.S. 1004, 107 S.Ct. 1624, 95 L.Ed.2d 199; United States v. Kairys, 782 F.2d 1374, 1377 n. 3 (7th Cir.1986), certiorari denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703. According to testimony, Kalejs was not “merely” a guard at a concentration camp but the commander of such guards. In addition, he was a key officer in a unit that has been proved by eyewitness testimony and Nazi-era documents to have killed tens of thousands of innocents. The charges levelled against Kalejs, if true, undoubtedly qualify as assistance in persecution under the Holtzman Act. Kalejs’ status as an officer in the Arajs Kommando probably qualifies as ordering, inciting and participating in persecution under the Act as well. Dr. Hilberg’s expert opinion was that, in this instance, attributing the atrocities of the group to the individual is logical because an officer in the Arajs Kom-mando would have “as a'matter of course” participated in the slaughter. Kalejs’ primary defense, then, is to deny membership in the Arajs Kommando. He argues that the immigration judge and BIA relied on inherently untrustworthy evidence and that, even on its own terms, the evidence does not establish his guilt. The government produced a number of documents from 1941 to 1945 referring to Konrads Kalejs as a member, company commander or first lieutenant of the Arajs Kom-mando. One was a form submitted to the University of Riga on November 28, 1941, and signed by the head of the unit, Viktors Arajs, that said, “First lieutenant Konrads Kalejs has been a member of the Latvian Auxiliary Security Police from 29 July, this year, to the present.” Recall that the Latvian Auxiliary Security Police was the official name of the Arajs Kommando. Another form submitted by the deputy chief of the Kommando on November 5, 1942, provides that “First Lieutenant Konrads Kalejs born on 26 June 1913, has been in the service of the Latvian Security Section since 30 July 1941 and was at the Eastern front between 14 February 1942 and 27 April 1942.” Even more compelling is a note in Kalejs’ handwriting, dated “Riga, 15 May 1943,” to the university registrar that says, “I hereby inform you that I am in the service of the Commander of the Security Police and SD of Latvia — in the Latvian Security Section as a company commander” (App. at 56). The record in this case is strewn with similar documents including certified copies of officers’ identification badges. The United States also produced three witnesses who testified that Kalejs was a company commander and first lieutenant in the Arajs Kommando; four witnesses placed Kalejs as a head guard at the Salaspils concentration camp. Kalejs first took the Fifth Amendment at his deportation hearing. When he decided to testify, Kalejs explained these damning documents by saying that, in order to continue his studies at the university, he needed to demonstrate participation in the German war effort. A friend helped him procure these affidavits, petitioner maintains, and told him what to write. He did not know Viktors Arajs and did not learn the true nature of the Arajs Kommando until the war was over. He was also utterly unaware that Jews, Gypsies and Communists were being executed in mass numbers in Latvia. As Kalejs tells it, he was merely a student in early 1942 when he joined a police unit of skiers and was sent to the eastern front. Then, in late 1942, he developed an ulcer and was out of commission for twenty-seven or twenty-eight months, although he continued to receive his military salary from the Germans. He continued to study and worked part time on a farm. In 1943 he married and lived with his parents in Riga. He was called to report to the Latvian Legion in 1944 and was sent for training in late 1944 and early 1945 to Germany. At the war’s end he became police chief in a displaced persons’ camp. The immigration judge and the BIA did not believe Kalejs’ denials and neither do we. He does not explain, for example, how he so easily obtained affidavits identifying him as not merely a member but an officer of the Arajs Kommando, or why he didn’t simply obtain a certificate from the unit he claimed to be a member of. It is also incredible that the Germans would have continued to pay the military salary of a Latvian soldier for two-and-a-half years while he was recuperating from an ulcer, studying and laboring on a farm. Kalejs claims to have had no knowledge of the mass executions of Jews outside Riga, but according to expert testimony the subject had set the town abuzz at the time. And Kalejs admitted to serving under a general who was head of the Einsatzgruppe, the mobile killing unit, in Latvia, although he later tried to distance himself from this testimony. Finally, there are multiple witnesses including other members of the Arajs Kom-mando who placed Kalejs in the unit as an officer as well as at Salaspils concentration camp. Several of these witnesses identified Kalejs as the man they knew from an array of 250 photographs, a stunning indictment given the fifty years that have passed since any of these people had seen the accused. We hold, therefore, that the BIA was amply justified in concluding that Kalejs assisted in the persecution of people because of their race, religion, national origin or political beliefs within the meaning of the Holtzman Act. The second ground for deporting Kalejs is his fraudulent statements on immigration forms. On December 3, 1958, Kalejs appeared before an American vice consul in Melbourne, Victoria, Australia, and signed a statement (swearing that he was telling the truth) that listed his activities since the age of sixteen. The twenty-fifth question on the visa application asked for a list of residences and occupation(s). Kalejs wrote that he was a member of the Latvian Army from 1929 to 1941, but that from 1941 to 1944 he was a farm laborer and lived in Nurmuiza, Talsi, Latvia. Petitioner admits in his brief that this information was false or at least incomplete but makes the extraordinary argument that there was no space on the form to give an accurate description. Even Kalejs admits that he received a military salary throughout the war; he could have said “soldier” or “military” or “army” in as little space as “farm laborer.” And given our conclusion that Kalejs was actually an officer in a brutal pro-Nazi military unit, the description “farm laborer” was not even a partially accurate description of Kalejs’ activities during the war. The real reason Kalejs decided to lie, of course, was not an absence of space on the visa application — after all, he also had a personal interview with American consular officials during which he could have given a more expansive and accurate representation of his war years — but the fear that he would not be allowed to enter the United States if his true involvement were known. Kalejs admitted as much in a 1984 deposition taken before he had obtained counsel or attempted to flee from American authorities and deportation hearings. The government may deport or exclude “[a]ny alien who, by fraud or wilfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States * * 8 U.S.C. § 1182(a)(6)(C)(i). This statute requires that the government prove by clear and convincing evidence four things: (1) the person misrepresented or concealed some fact; (2) the person did so willfully; (3) the fact was material; and (4) the misrepresentation resulted in the person obtaining a visa, documentation or entry into this country. Kungys v. United States, 485 U.S. 759, 767, 108 S.Ct. 1537, 1544-45, 99 L.Ed.2d 839. There is no question in this case that Kalejs’ visa applications violated prongs one and two; that is, Kalejs misrepresented facts and he did this willingly. In fact, Kalejs admitted as much on two occasions. The issue, then, is whether petitioner’s lies were material and whether they resulted in his acquisition of the U.S. visa. Under Kungys, a false statement is material if it had a natural tendency to influence the decisions of the Immigration and Naturalization Service. Id. at 772, 108 S.Ct. at 1547. Once materiality is proved by clear and convincing evidence, the government is deemed to have established a rebuttable presumption that the person got his visa because of the misrepresentation. The accused may rebut the presumption by showing through a preponderance of the evidence that the statutory requirement for admission was met regardless of the falsehood. Id. at 777, 108 S.Ct. at 1549-50. This is most definitely not a “but for” analysis, according to the Court; that is, the government need not establish that “but for” the misrepresentation, the person would have been denied entry. Id. at 777-779, 108 S.Ct. at 1549-51. Obviously, since materiality has been defined as the tendency to influence immigration officials, it is intertwined with the question of whether the person obtained a visa because of the misrepresentation. In essence, the materiality requirement is designed to exclude trivial or irrelevant misstatements and the obtaining or procuring requirement is designed to measure how heavily officials relied on the falsehood. Kalejs argues that Kungys does not apply to him because that decision was not rendered until all the evidence was submitted in his case. This is not correct. Kungys was actually decided on May 2, 1988, three months before Kalejs began his defense. Even so, Kungys would apply. Petitioner relies on Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199, for the proposition that for him to be bound by the new rule of law enunciated in Kungys would be unjust. But Allen was a criminal case in which a new constitutional rule was announced; the instant case is a civil proceeding in which a statutory interpretation was merely clarified. Where the Supreme Court has applied a rule of law to litigants in one case, we are bound to apply the same rule to all others in the civil context unless specific procedural rules or res judicata prevents it. James B. Beam Distilling Co. v. Georgia, — U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481. Moreover, even if Kungys did not apply to Kalejs, his misrepresentations would still be material under Chaunt v. United States, 364 U.S. 350, 355, 81 S.Ct. 147, 151, 5 L.Ed.2d 120, since “facts were suppressed which, if known, would have warranted denial of citizenship or * * * [whose] disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.” When Kalejs applied to enter the United States, consular officials had the authority under 8 U.S.C. § 1182(a)(27) to exclude those who “seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.” This statute conferred great discretion on consular officials and, according to testimony at Kalejs’ hearing, it was frequently employed in the late 1950s to exclude those suspected of Nazi involvement. Two former consular officials told the immigration judge that State Department policy in 1958 when Kalejs applied for a visa was to explore in great depth the wartime activities of German collaborators, and anyone with serious involvement in Nazi activity would have had their applications denied. If Kalejs had told the truth about any part of his war service in the Arajs Kommando, it would certainly have prompted further inquiry — in this sense the lies undoubtedly tended to influence the decision of American officials to permit Kalejs to enter the country, the test under Kungys — and would probably have tipped the scales entirely against admitting him. This establishes a rebuttable presumption that Kalejs would not have been admitted to this country had he told the truth, and Kalejs has done nothing to refute this notion. We hold, therefore, that Kalejs’ lies on immigration documents were material and resulted in his obtaining a visa and admission to the United States. He is thus deportable for lying on his immigration forms, although as noted the BIA was also justified in deciding to deport Kalejs for persecuting innocents. Petitioner finally argues that we should scrap most of the evidence against him because it is inherently unreliable. A number of witnesses were deposed in Riga in September 1987 in what was then part of the Soviet Union, and many Nazi-era documents were stored in Soviet-controlled archives. Moscow recognized Latvia’s independence in September 1991 before the Soviet Union itself dissolved, but those events do not alter this case. According to Kalejs, prosecutors erred in considering evidence from the Soviet Union and then compounded their error by failing to allow the accused to engage in sufficient discovery so that he could prove the Soviet treachery. At its heart, this is a claim about the denial of due process. First, we reject out of hand the overarching argument that any evidence flowing from the Soviets is fundamentally flawed because, as the petitioner’s brief points out, “Lenin as a founder of his country was no George Washington” (Brief at 35). It is true that Lenin might not have fessed up to chopping down cherry trees, and we do not discount the possibility that the Soviets may have manufactured evidence in some cases involving Nazi collaboration to excuse them own conduct in the war. But we have relied on evidence from the Soviet Union before, see e.g., Kahys, 782 F.2d 1374, and Kalejs has not pointed to any reason why the Soviets would want to implicate him personally, or demonstrated any unusual interest in his case by Soviet authorities. Where, as here, the Soviet evidence is corroborated by Western documentation, plus reliable eyewitness testimony subject to vigorous cross-examination, and the evidence is credible on its own terms, we will not discard a case against a Nazi collaborator merely because some of the evidence originated in the Soviet Union. More specifically, Kalejs complains that (1) he could not interview witnesses before them depositions were taken in the Soviet Union; (2) witnesses’ previous statements were withheld; (3) the witnesses should have been deposed in the United States rather than the Soviet Union; (4) Kalejs could not attend the depositions; (5) witnesses were intimidated by the Soviet prosecutors; and (6) neither Kalejs’ attorney nor United States officials could rent cars and visit the sites of the atrocities or examine Soviet archives. We can easily dismiss most of these claims because there is no general right to discovery in a deportation hearing so long as the accused had reasonable opportunity for cross-examination, as there was here. Kulle v. Immigration and Naturalization Service, 825 F.2d 1188, 1194 (7th Cir.1987), certiorari denied, 484 U.S. 1042, 108 S.Ct. 773, 98 L.Ed.2d 860. The Federal Rules of Civil Procedure simply do not apply; thus most of the cases cited by Kalejs are irrelevant. In one instance in his brief, Kalejs actually attempts to hold the government to the standards of a criminal proceeding under Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (Brief at 32). Such cases are wholly inapplicable. Clearly, the stakes of deportation hearings are great in terms of reputations and disruptions to lives, and we must ensure that such proceedings do not turn into kangaroo courts. But the hearings in this case were conducted with eminent fairness to Kalejs. Also, many of Kalejs’ due process claims are patently ridiculous. The depositions were taken in the Soviet Union because the witnesses were too old and frail to travel to the United States. Kalejs did not attend because he did not ask to attend, and so waived that issue even if it had merit. The government actually did turn over to Kalejs’ counsel all witness statements it had in its possession; those witnesses for whom the United States did not have previous statements were by and large witnesses called by Kalejs himself to corroborate his case. As noted, there is no general right to discovery in a deportation hearing, but there is certainly no right to discovery of documents that the government does not have in its possession and is unable to obtain. Finally, the accused has not told us and we cannot even begin to imagine what Kalejs would hope to uncover by visiting the sites of atrocities committed fifty years ago. In short, Kalejs received ample due process. We reject this and all other claims made by the petitioner. For the reasons stated above, the BIA’s decision to deport Konrads Kalejs is affirmed. . The sections were previously numbered as 8 U.S.C. §§ 1251(a)(1), (2) and (19). 8 U.S.C. § 1251(a)(1)(A) provides: Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens excludable by the law existing at such time is deportable. 8 U.S.C. § 1251(a)(1)(B) provides: Any alien who entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or any other law of the United States is deportable. 8 U.S.C. § 1251(a)(4)(D) provides: Any alien described in clause (i) or (ii) of section 1182(a)(3)(E) of this title is deportable. See infra for the text of 8 U.S.C. § 1182(a)(3)(E).
MANION, Circuit Judge, concurring. The Board of Immigration Appeals determined that Kalejs should be deported under U.S.C. §§ 1251(a)(1)(A), 1251(a)(1)(B) and 1251(a)(4)(D). I concur. Although I agree with the dissent that “evidence” generated under the watchful eye of the Soviet dictatorship is inherently unreliable and has no place in an American proceeding, I think the untainted evidence supports the Board’s decision. Therefore, I agree that the Board’s decision to deport Kalejs should be affirmed. The dissent properly recognizes the reality of the “evil empire,” brought into full view recently by the fall of the Iron Curtain. The dissent, however, fails to consider the highly deferential standard by which we review Board deportation decisions. Sivaain-karan v. I.N.S., 972 F.2d 161, 163 (7th Cir. 1992). “[W]e must uphold the Board’s determination if it is ‘supported by reasonable, substantial, and probative evidence on the record as a whole, ... ’ ” Id.; 8 U.S.C. § 1105a(a)(4). The evidence which exists independent of any Soviet taint includes the expert testimony of Dr. Raul Hilberg, set forth at length throughout the court’s opinion, and Kalejs’ own testimony concerning the University of Riga documents which confirm his service in the Latvian Security Section, also discussed at length in the court’s opinion at 445. The record must be taken as a whole; as a whole, the tainted Soviet depositions and documents merely confirm the untainted evidence. The evidence is, therefore, sufficient to satisfy the deferential substantial evidence test. The Board’s decision of deportation is, accordingly, conclusive. § 1105a(a)(4). I, therefore, concur. . The court is correct that neither Lenin nor his successors Stalin, Khruschev or Brezhnev “fessed up to chopping down cherry trees.” Opn. at 447. I would add to this observation that they also never fessed up to imposing a corrupt system on the people they ruled, nor to maintaining that system through intimidation, lies, and the wholesale slaughter of millions of people.
EISELÉ, Senior District Judge, dissenting. Konrads Kalejs is now 80 years of age. He is a native of Latvia and a naturalized citizen of Australia. He resided in Latvia from 1941-1944 during the German occupation. In 1959 he was admitted to the U.S. as a permanent resident based upon his application to the American Consulate in Australia. He was arrested in Florida on April 19, 1985, as a result of this deportation action which was brought pursuant to § 241(a)(1), 241(a)(2), and 241(a)(19) of the Immigration and Naturalization Act of 1952, as amended. 8 U.S.C. § 1251(a)(1), 1251(a)(2), 1251(a)(19). A final Order of Deportation was entered on April 30,1992. On May 22,1992, Kalejs filed a Petition for Review in this Court pursuant to 8 U.S.C. § 1105a(a). Such a Petition for Review is the sole and exclusive procedure for the review of final orders of deportation. The record on review consists of some twenty volumes containing almost 8,000 pages but there are only two major allegations that we must deal with: 1) Whether Mr. Kalejs participated in, or assisted in, persecution under the Holtz-man Amendment, and 2) Whether Mr. Kalejs made any wilful misrepresentation as to a material fact in the application he made in connection with the issuance of his United States visa. The two issues are interrelated. In his application for a visa in 1959, Mr. Kalejs claimed that he had been a farm laborer during the war. Although he may have worked from time to time on a farm during that period, this cannot be considered a true statement. But we need to know the real truth in order to determine if this falsehood constitutes a misrepresentation of a material fact which would justify his exclusion in 1959. It appears that if he had stated that he had served in Latvian military units fighting with the Germans against the Russians, and if that representation were true, he would not, on that basis alone, have been excluded from entry in 1959. And if that were the truth, then it appears that the false statement (that he was a farm laborer) would not alone have been deemed material so as to preclude his entry into the U.S. at that time. But the respondent contends and believes that Mr. Kalejs participated in the persecution of Jews and others and was, indeed, a member of a “killing squad” that murdered some 29,000 persons before August 10, 1941. And, more specifically, it is also contended that Mr. Kalejs was involved in the killing of 27,000 people on November 30, 1941, and another 17,000 on December 8, 1941. One can legitimately ask: if the respondent INS had not believed that Kalejs participated in, or assisted in, such persecution, would it nevertheless have maintained that he should be deported because of a wilful misrepresentation of material fact on his application for a visa? So the two issues cannot be clinically separated in my opinion. If the allegations that Mr. Kalejs participated and assisted in persecution cannot be sustained on this record then the basis for determining whether the visa application misrepresentation was material will also be undercut. The Amended Order to show cause contained 25 allegations. The first 6 were not seriously contested. The remaining allegations (7-25) relate to three major substantive issues, one of which has several sub-parts. The first issue was whether Mr. Kalejs’ membership or activities in an unnamed Latvian self-defense unit at Litene in mid-July, 1941, shortly after the invasion of Latvia by Germany, constituted participation in persecution. The Immigration Judge thought not and the BIA made no finding. The next issue was whether Mr. Kalejs was a member of the Arajs Kommando and, if so, whether his activities in that unit constituted participation in persecution. This issue had four sub-parts: 1) Concerning activities from July, 1941, until December, 1941. The IJL stated that “... the evidence reflects that the respondent signed his name to the rolls of the Arajs Kommando in July [1941] ... There is no evidence of participation or assistance beyond this act ... I find the government has failed to sustain its heavy burden of proof ...” The BIA reversed. 2) Concerning the period from January, 1942, to November, 1942. The Immigration Judge found “... respondent was a member of Arajs Kommando ... on the eastern front from January through fall of 1941, ... and that respondent assisted and participated in this persecution.” The BIA reversed. 3) For the year 1943. The Immigration Judge ruled “... respondent was the Company Commander of a guard unit at a camp for Latvian Jews in Porkof, and that members of his company participated in the execution of 20-39 gypsies in Porkof ... respondent assisted in persecution ... in Porkof in 1943.” The BIA affirmed. 4) Dealing with Mr. Kalejs’ alleged role as a Company Commander of the external guard unit at Salaspils and Sauriesi concentration camps. The Immigration Judge found “... respondent was a Company Commander under the Arajs Kommando and German SD of the armed exterior guard unit at Salaspils and Sauriesi ... Respondents’ positions and activities at [these camps] constituted assistance and participation in persecution....” The BIA affirmed. The third major issue is whether Mr. Ka-lejs misrepresented to the American Consulate his membership and activities in connection with the Arajs Kommando and, if so, whether such misrepresentation was material. The Immigration Judge found that “- respondent’s failure to reveal his wartime activities when applying for his U.S. visa was a willful and material misrepresentation.” The BIA affirmed. The lack of congruity between the findings of the IJ and the BIA on the various issues is striking. They disagreed on all but the following: The BIA affirmed the IJ’s ruling that Kalejs was the company commander of a guard unit for Latvian Jews at Porkov and “that members of his company participated in the execution of 20-39 gypsies in Porkov.” And the BIA affirmed the IJ’s finding that Kalejs was the company commander of the exterior guard unit at Salaspils and Sauriesi concentration camps and that his “positions and activities” at [those camps] constituted assistance and participation in persecution. Finally, the BIA affirmed the IJ’s finding that Kalejs’ failure to reveal his wartime activities in his visa application constituted a wilful and material misrepresentation. It is the contention of the petitioner that the proof of his participation or assistance in persecution did not meet the “clear and convincing” standard of proof. He argues that the video depositions of persons controlled by the Soviet Union which were taken in the Latvian Soviet Socialist Republic should not have been admitted into evidence and, in any event, should be disregarded in any assessment of the factual basis for the charges against him. He argues that the restrictions placed upon him and his attorneys deprived him of the opportunity to develop his defense or to participate in meaningful cross-examination of the Soviet controlled witnesses. He also contends that the Soviet Union placed the same restrictions upon the U.S. Government as it did upon him, thereby depriving the Government of any realistic opportunity to evaluate the truthfulness of the Soviet controlled witnesses upon whom it relied. He asks: how can our government vouch for the testimony of witnesses it was unable to interrogate? How could it evaluate the witnesses’ testimony without having access to their earlier written statements or previous testimony taken years ago and much nearer the events at issue? He argues that the testimony taken in the Soviet Union, under the control of the then Soviet Government and under the restrictions imposed, was inherently unreliable. But the petitioner’s contention with respect to the Soviet witnesses is better stated in his own words: The Soviet Union did not permit the United States to independently, privately interview the Soviet witnesses, nor for that matter to interview Soviet witnesses at all ■prior to the taking of the video taped depositions. The United States was not permitted to visit the Russian sites of the conduct charged; it was not permitted to independently investigate within the Soviet Union in efforts to find its own witnesses; it was not permitted to visit and search the Soviet archives; it was not permitted to inspect and review the prior written statements of the Soviet witnesses that were refused to the defense. OSI’s expert witness, Dr. Hilberg was not permitted to visit any Soviet archives. OSI’s attorneys and investigators were not permitted self drive car rentals and their visas were restricted to Riga just as the defense attorney’s. OSI’s response is parity — that OSI was also denied the same witness statements and investigation in the Soviet Union. But, OSI’s failure to investigate and confirm Soviet witness reliability exacerbates rather than ameliorates the deficiencies. The Soviet deposition evidence adduced in this case has not been adequately investigated by our government. The deposition evidence is unverified. What was produced on the Soviet video tapes is the spoon fed creation of the KGB untested by the defense and untested by OSI. OSI can not vouch for the accuracy of the Soviet offered evidence. Kalejs’ Opening Brief, pp. 33-34. It will be helpful to review the procedural background to these contentions. After a change of venue, the case was assigned to Immigration Judge Petrone. The Office of Special Investigation (OSI) moved for permission to take evidentiary depositions in the Latvian Soviet Socialist Republic. Mr. Kalejs asked for copies of all prior witnesses’ statements. The OSI agreed to provide such statements that were in its possession in advance of the trip to the Soviet Union. The trouble was that there were many acknowledged prior statements made by the Soviet witnesses which were not in the possession of the OSI and which were not produced by the Soviets. Mr. Kalejs also asked for site visits and the opportunity to go into the Soviet controlled archives where relevant documents are allegedly maintained. Such opportunities were denied to the defense. It obviously would have been to the interest of the defense if Mr. Kalejs could have personally attended the taking of the Soviet depositions. However, due to the terms of his bond and the refusal of the Soviet Government to disclose whether criminal charges would be placed against him in the Soviet Union, he was, as a practical matter, unable to attend with his attorneys. It does not seem unreasonable that he would be greatly concerned that the Soviets would detain and charge him if he attended the depositions. After all he had deserted from the Red Army and had admittedly fought with Latvian units in support of the Germans against the Soviets. So I have difficulty with the majority’s assertion that “... Kalejs has not pointed to any reason why the Soviets would want to implicate him personally or demonstrated any unusual interest in his case by Soviet authorities.” If history is to play a major role in the government’s case against Mr. Kalejs, as appears to be the situation, then one would want not only the history of the German Nazi’s plans and actions and those of their evil collaborators, but also the plans and actions of the Soviets during the events at issue and subsequent thereto during prosecutions of those alleged by the Soviets to be responsible. For history is revealing more and more as time goes by that the evil deeds of the Soviet Union in this area of the world were second only to those of the Nazi regime. But I will have more to say later about the “expert” evidence relied upon by the government in this case. Basically my problems with these proceedings arise out of my belief in the importance and efficacy of process in reliably resolving factual issues, that is, in establishing the truth. And without first establishing the truth, we can have no confidence in the justness of the outcome. If I believed that there exists in this record a reliable evidentiary basis for the following “facts”, as quoted from the majority opinion, that is, that such “facts” had been reliably established, using appropriate due process standards, I would of course concur in that opinion: Konrads Kalejs was born on June 26, 1913, in Riga, Latvia. He was educated as a professional soldier and served as a lieutenant and first lieutenant in the Latvian military. In 1940, the Russians overran Latvia. Kalejs salvaged his military career by joining the conquering Red Army, but a year later the Russians were themselves pushed out of Latvia by the Nazis, whose forces were driving relentlessly toward Russia on the eastern front. Again Kalejs sided with the victors; he deserted his Red Army comrades and, according to the evidence presented here, joined a pro-German force called the Latvian Auxiliary Security Police. The unit was allegedly known as the Arajs Kommando after its leader Viktors Arajs, who was convicted by a German court and sentenced to life imprisonment in 1979 for committing wartime atrocities. (Arajs died in prison.) According to the Justice Department, from July 1941 until at least June or July of 1944, Kalejs was a company commander and first lieutenant in the Arajs Kommando. The Nazis’ policy in Latvia (as elsewhere) was to murder all Jews, Gypsies and many Communists. After the German Army swept through an area, a mobile killing crew would follow shortly, hoping to catch victims unaware. These mobile killing units were called the Einsatzgruppe or, in Latvia, the Einsatzkommando. According to the government’s expert witness in the case against Kalejs, Dr. Raul Hilberg, a renowned Holocaust scholar and professor of political science at the University of Vermont, the Einsatzkommando assigned to Latvia had just 170 members. The logistics of attempting the systematic annihilation of the 70,000 Jews in Latvia prompted the Einsatzkommando to rely on bands of local soldiers. The Arajs Kom-mando was such a group. As a company commander, Kalejs was one of six or seven officers who were second in command to Arajs; he had a hundred men or more under his direction. Dr. Hilberg testified that according to German documents, the Einsatzkommando with the help of the Arajs Kommando and similar local groups managed to murder 29,000 people (90 percent of them Jewish) before August 10, 1941. A few months later, in order to make room in Riga’s Jewish ghetto for the thousands of Jews whom Hitler had shipped out of Germany, 27,800 Jews were shot in the woods near Riga in the space of three days. By January 1942, only 4,000 of the 70,000 Jews who were in Latvia at the beginning of the war were still alive. The Arajs Kommando working with the Einsatzkommando was responsible for more than half of these killings. Kalejs and his unit had two other duties besides killing Jews in the Riga ghetto. Outside of Latvia (usually in Russia) the Arajs Kommando joined the German SS in so-called anti-partisan activity, which was little more than a cover for arresting and murdering civilians. In addition, the Arajs Kommando under the leadership of Kalejs served as guards at the Salaspils concentration camp. The conditions there were brutal, although Salaspils was a labor camp whose inmates died primarily from inhumane conditions or being shot while trying to escape, rather than a killing camp such as Auschwitz where the prisoners were systematically murdered in gas chambers. The Arajs Kommando was charged with guarding work details and preventing escapes at Salaspils. The horror of the Holocaust and certain accepted historical facts can create a cloud, or an inertial wave, that can engulf the innocent as well as the guilty. And the circumstance that there is no statute of limitations in cases of this type — -and most would agree, properly so — should not make us close our eyes to some of the problems with which such limitation rules are intended to deal: staleness, loss of memory, the death of witnesses and the disappearance of documentary and other evidence. Frustrations arising out of the difficulties experienced in bringing evil persons to justice some 50 years after their crimes may dull concerns for the due process requirements of our law. And when the vehicle for the inquiry into a person’s alleged participation in persecution during the early 1940s is a statute, such' as the Holtzman Amendment, one must guard against the tendency to expand that “net” beyond the ordinary and natural meaning of the language employed. So just as I am concerned about the reliability of the factual findings stated by the majority, I am also not confident that the majority has correctly defined the reach of the Holtzman Amendment and particularly the phrase “assisted or otherwise participate in the persecution of any person because of race, religion, national origin or political opinion.” The majority states: Assigning personal responsibility in a military regime is complex, particularly with regard to Holocaust era crimes because the Nazi’s murderous proficiency insured there would be few witnesses. In only a handful of these cases are there people who can place the accused at the scene of a specific crime with a gun in his hand. The same is true here. The Holtz-man Amendment’s non-criminal provision thus makes assistance in persecution an independent basis for deportation, and assistance may be inferred from the general nature of the person’s role in the war; therefore, the atrocities committed by a unit may be attributed to the individual based on his membership and seeming participation. “Assistance” can only take us so far. It is equivalent to “aid and abet.” Both to “participate in persecution” and to “assist in persecution” should require acts- and conduct coupled with the pertinent culpable state of mind. It is doubtful that a deportation statute could be written, constitutionally, to omit either of these requirements. In any event, the Holtzman Amendment, in my opinion, requires both. But, of course, these requirements may be established by circumstantial, as well as direct, evidence. Even so, I do not believe that “atrocities committed by a unit may be attributed to the individual based [solely] on his membership and seeming participation.” I agree with the majority’s citation of the language in Kairys v. INS, 981 F.2d 937, 943 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1832, 123 L.Ed.2d 460 (1993), analogizing the provisions of the Holtzman Amendment to the requirements of an “ordinary criminal conspiracy.” And we know that co-conspirators must have knowledge of the illegal purposes of the conspiracy and act in some way, however minor, to help the conspiracy succeed. So I disagree with Mr. Stephen Massey’s conclusion in his article “Individual Responsibility for Assisting the Nazis in Persecuting Civilians,” 71 Minn.Law Review' 97, 169 (1986), cited by the majority, in which he argues that persons assist in persecution if they personally participated in persecution or “knowingly and more than minimally contributed to a group that persecuted civilians.” Mr. Massey does not agree with Laipenieks v. INS, 750 F.2d 1427 (9th Cir.1985) requiring “personal active assistance or participation.” One of the more complete discussions of the issue will be found in Petkiewytsch v. INS, 945 F.2d 871, 876-881 (6th Cir.1991) where some very different “line drawing” by the Seventh Circuit and the other Circuits is described: The “line drawing” in cases under the Holtzman Amendment has been particularly difficult and has produced conflicting results. In Schellong v. INS, 805 F.2d 655 (7th Cir.1986), cert. denied, 481 U.S. 1004 107 S.Ct. 1624, 95 L.Ed.2d 199 (1987), the court of appeals applied the Holtzman Amendment to affirm the deportation of a person who voluntarily joined a special commando unit of the Nazi SS and served as an armed guard at two concentration camps. Id. at 656-57. There was no evidence, however, that Schellong personally engaged in physical abuse of prisoners while serving as a guard. Id. at 657. The court noted that it had previously held in United States v. Kairys, 782 F.2d 1374 (7th Cir.) cert. denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986), that service as a guard at a concentration camp equaled persecution under the DPA [Displaced Persons Act] without proof of personal involvement in atrocities. Id. at 660. Concluding that the purposes of the two statutes were identical, the court found that proof of Shellong’s service as a guard at a concentration camp established that he had “assisted in persecution for purposes of Section 1251(a)(19)” and therefore was deportable. Id. at 661. The court specifically rejected the argument that an individual must have actively or personally participated in persecution to be deporta-ble under the Holtzman Amendment as inconsistent with Fedorenko. Id. This holding was reaffirmed in Kulle v. INS, 825 F.2d 1188 (7th Cir.1987), cert. denied, 484 U.S. 1042, 108 S.Ct. 773, 98 L.Ed.2d 860 (1988). Another court reached a different conclusion in Laipenieks v. INS, 750 F.2d 1427 (9th Cir.1985), a deportation proceedingqqq under the Holtzman Amendment against a native of Latvia. The petitioner had served voluntarily as a member of the Latvian Political Police, an organization formed to investigate and arrest individuals who participated in Soviet atrocities against Latvian citizens during the period of Soviet domination which preceded Nazi occupation, Id. at 1429. Although Laipen-ieks admitted slapping Soviet sympathizers taken as prisoners, the court of appeals found that the INS failed to establish by clear and convincing evidence that Laipen-ieks’ individual conduct had been motivated by the political opinion of the prisoners. Relying on the legislative history of the Holtzman Amendment, the court held that deportability under § 1251(a)(19) “may only be sustained when the evidence establishes that the individual in question 'personally ordered, incited, assisted, or otherwise participated in the persecution of individuals.” Id. at 1431 (emphasis added). Relying on note 34 in Fedorenko and the legislative history of the Holtzman Amendment, the court concluded that the proper analysis under the Holtzman Amendment was whether there was “proof of personal active assistance or participation in perse-cutorial acts ...” Id. at 1432 (emphasis added). The opinion then goes on to explain the background of the Holtzman Amendment and its important legislative history: Although the Holtzman Amendment was designed to fill a loophole in the permanent immigration law and its language is similar to that found in the DPA, the legislative history indicates an intention, at least in part, to accomplish a different purpose. The DPA was designed to provide relief to the multitude of displaced persons and refugees in Europe after the end of World War II. The problem was one of immense proportions and there was need for immediate action. These factors doubtless account for the absence of any legislative history addressing the provision in the 1948 DPA excluding persons who had assisted in persecution and for the decision merely to incorporate portions of the IRO constitution. Thirty years later, when the Holtzman Amendment was adopted, it had become clear that some war criminals, actual perpetrators of the Holocaust and other war crimes, had entered this country under the 1952 Act. The Holtzman Amendment provided the basis for their deportation. The Holtzman Amendment’s legislative history contains a clear and repetitive message that the amendment was intended to deny “sanctuary in the United States to Nazi war criminals” 124 Cong.Rec. 31,647 (1978) (statement of Rep. Holtzman) (emphasis added), and that the “bill applies to any person who committed war crimes under the Nazis ...” id. at 31,649 (emphasis added). The specific discussion on the House floor in which Representative Holtz-man explained the purpose and scope of the bill demonstrates that the focus of the bill’s intent centers on Nazi war criminals. Indeed, reference to “Nazi war criminals” or “war criminals” is made no less than nineteen times during the short discussion in which the purpose and reach of the bill is explained. See 134 Cong.Rec. 31,646-50 (1978). At one point Representative Holtzman explained the bill as follows: “The bill as reported here contains an amendment that limits the language of the bill solely to those persons who engaged in war crimes ...” 134 Cong.Rec. 31,647 (1978) (emphasis added). Again she stated, “[T]he bill is intended to cover active paHicipation and not mere acquiescence by the population as a whole.” Id. at 31,649 (emphasis added). Representative Holtzman was joined in explaining the bill by another subcommittee member, Representative Eilberg, who stated the bill’s purpose: Mr. EILBERG. [T]he purpose of this bill, which is cosponsored by all of the members of the Subcommittee on Immigration Citizenship and International Law, 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. Id. at 31,647 (emphasis added). Mr. Eil-berg and Ms. Holtzman each went on to make several additional references regarding the bill’s applications to those who engaged in war atrocities. Id. at 31,647-48. Representative Eilberg also stated: [T]hat dreadful period in the history of mankind 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 bill addresses itself to the members of that group-to the perpetrators of the “Holocaust.” Id. at 31,647 (emphasis added). We appreciate the fact that statements in floor debate often do not truly reflect the purpose of an act of Congress. Nevertheless, this bill was the work of Representative Elizabeth Holtzman, and her statement of its purpose is entitled to careful consideration, particularly in view of the similar statements found in the committee report. Representative Eilberg’s statements concerning the intent of the subcommittee which first approved the Holtzman Amendment is equally persuasive. The Holtzman Amendment’s purpose of reaching war criminals is further clarified by statements in the legislative history indicating the degree of participation in persecution necessary to come within the Holtzman Amendment. The statement of the Holtzman Amendment’s purpose reads: Purpose of the Bill The purpose of the bill is to exclude from admission to the United States aliens who have persecuted any person on the basis of race, religion, national origin, or political opinion and facilitate the deportation of such aliens who have been admitted into the United States. H.R.Rep. No. 95-1452, 95th Cong.2d Sess. at 1, reprinted in 1978 U.S.Code Cong. & AdmimNews 4700. This language appears to require active participation in persecution going beyond “assistance.” In discussing the Holtzman Amendment’s application, the House Report goes on to state that “it is important to stress that the conduct envisioned must be of a deliberate and severe nature and such that is condemned by civilized governments, .. ” Id. at 7,1978 U.S. Code Cong. & Admin.News at 4706. Finally the Court integrates the legislative history of the Holtzman Amendment with the Fedorenko ease: If, as the Supreme Court states, the focus under the DPA should be on the “particular conduct” of the immigrant, then given the legislative history of the Holtzman Amendment, the focus should be even more searching under § 1251(a)(19). Although Petkiewytsch wore a uniform and carried a rifle, the Board found that he was at all times a reluctant civilian guard, once himself imprisoned for failing to perform his guard duties diligently. The camp where he served was the least punitive of all types of Nazi camps. The Board also found that the petitioner served under duress and that he was told he would be shot if he attempted to escape. He never personally engaged in acts of persecution, and was released by the British authorities, who interned him as a suspected war criminal, upon a finding that the charges could not be sustained. His “particular conduct” just does not fit the description of a “Nazi war criminal” or a “personf ] who engaged in war crimes,” repeatedly described as the class sought to be made deportable by the Holtzman Amendment. Given all the circumstances disclosed by this record we do not believe that Fedoren-ko requires a finding that Petkiewytsch is subject to deportation under § 1251(a)(19). Deporting this petitioner would not further the goal of the Holtzman Amendment and would carry out no discernable policy of the United States. This discussion of the Holtzman Amendment and the proper “line drawing” thereunder becomes important only if it is determined that much of the evidence relied upon by the government to prove that Mr. Kalejs was a member of the Arajs Kommando and participated in persecution must be stricken and ignored. For if all of the government’s evidence is accepted, including the Soviet depositions, then the deportation order would have to be affirmed. As pointed out by the majority, Mr. Kalejs’ basic attack is predicated on due process grounds. I quote the pertinent portions of the majority opinion: Kalejs presses upon us essentially three arguments: ... that prosecutors relied on inherently untrustworthy evidence — depositions and documents salvaged from the archives of the former Soviet Union- — and then compounded the error by denying him due process. Petitioner finally argues that we should scrap most of the evidence against him because it is inherently unreliable. A number of witnesses were deposed in Riga, Latvia in September 1987 in what was then part of the Soviet Union, and many Nazi-era documents were stored in Soviet-controlled archives. Moscow recognized Latvia’s independence in September 1991 before the Soviet Union itself dissolved, but those events do not alter this case. According to Kalejs, prosecutors erred in considering evidence from the Soviet Union and then compounded their error by failing to allow the accused to engage in sufficient discovery so that he could prove the Soviet Treachery. At its heart, this is a claim about the denial of due process. More specifically, Kalejs complains that (1) he could not interview witnesses before their depositions were taken in the Soviet Union; (2) witnesses’ previous statements were withheld; (3) the witnesses should have been deposed in the United States rather than the Soviet Union; (4) Kalejs could not attend the depositions; (5) witnesses were intimidated by the Soviet prosecutors; and (6) neither Kalejs’ attorney nor United States officials could rent cars and visit the sites of the atrocities or examine Soviet archives. The majority disposes of the due process issue as follows: We can easily dismiss most of these claims because there is no general right to discovery in a deportation hearing so long as the accused had reasonable opportunity for cross-examination, as there was here. Kulle v. Immigration and Naturalization Service, 825 F.2d 1188, 1194 (7th Cir.1987), certiorari denied, 484 U.S. 1042, 108 S.Ct. 773, 98 L.Ed.2d 860. The Federal Rules of Civil Procedure simply do not apply, thus most of the cases cited by Kalejs are irrelevant. In one instance in his brief, Kalejs actually attempts to hold the government to the standards of a criminal proceeding under Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed