6th circuit upholds deportation of nazi policeman

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Deborah S. Hunt Clerk

100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988 Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: January 04, 2013

Ms. Susan L. Siegal U.S. Department of Justice Human Rights and Special Prosecutions Section 1301 New York Avenue, N.W. Suite 200 Washington, DC 20530-0000 Mr. Elias T. Xenos Xenos Law Firm 261 E. Maple Road Birmingham, MI 48009

Re: Case No. 11-4030, John Kalymon v. Eric Holder, Jr. Originating Case No. : A 007 156 474

Dear Counsel:

The Court issued the enclosed (Order/Opinion) today in this case.

Sincerely yours,

s/Patricia J. Elder Senior Case Manager Direct Dial No. 513-564-7034

cc: Mr. Thom W. Hussey Ms. Leslie McKay Enclosure

Mandate to issue

Case: 11-4030 Document: 006111548998 Filed: 01/04/2013 Page: 1 (1 of 5)

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 11-4030

UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT

JOHN KALYMON, aka Ivan/Iwan Kalymun,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

)))))))))

ON PETITION FOR REVIEW OF A FINAL ORDER OF THE BOARDOF IMMIGRATION APPEALS

O R D E R

Before: SUTTON and DONALD, Circuit Judges; ECONOMUS, District Judge.*

John Kalymon seeks judicial review of a decision of the Board of Immigration Appeals

(“BIA”) that dismissed his appeal of an immigration judge’s order that he be removed from the

United States. The parties have waived oral argument, and we unanimously agree that it is not

needed in this case. See Fed. R. App. P. 34(a).

Kalymon entered the United States after World War II, under the Displaced Persons Act of

1948 (“the DPA”). He became a naturalized citizen in 1955. However, denaturalization proceedings

were brought against Kalymon in 2004, because of his activities with the Ukranian Auxiliary Police

(“the UAP”) during the war. The district court revoked Kalymon’s citizenship in 2007, after finding

that he had persecuted Jews during the war, had advocated or acquiesced in conduct contrary to

civilization and human decency, and had misrepresented a material fact on his visa application. Our

court affirmed that decision. United States v. Kalymon, 541 F.3d 624, 638 (6th Cir. 2008).

The Honorable Peter C. Economus, Senior United States District Judge for the Northern*

District of Ohio, sitting by designation.


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Filed Stamp

No. 11-4030- 2 -

The Department of Homeland Security subsequently issued a notice to appear (“NTA”) that

charged Kalymon with being removable: 1) because he assisted or otherwise participated in

persecution because of race, religion, national origin or political opinion in association with Nazi

Germany; and 2) because he willfully made misrepresentations for the purpose of gaining admission

into the United States. The parties agreed to rely upon the district court record that had been

developed in Kalymon’s denaturalization proceeding. An immigration judge (“IJ”) applied the

doctrine of collateral estoppel in finding that Kalymon was removable. She also found that the

evidence from his denaturalization proceeding was sufficient to establish removability, even if

collateral estoppel did not apply to the district court’s prior opinion.

The BIA dismissed Kalymon’s administrative appeal of the removal order. In so ruling, the

BIA held that Kalymon was collaterally estopped from relitigating the district court’s factual findings

and that the charges alleged in the NTA had been established by clear and convincing evidence.

Kalymon filed a timely petition for judicial review of the BIA’s decision on September 27,

2011. A panel of this court has already denied his motion for a stay of removal. In so ruling, the

panel noted that Kalymon had not demonstrated a likelihood of success in light of the BIA’s

application of the collateral estoppel doctrine and that it would not be necessary to reach Kalymon’s

other issues if he did not successfully challenge the application of collateral estoppel.

We review the BIA’s legal conclusions de novo. See Hammer v. INS, 195 F.3d 836, 840 (6th

Cir. 1999). However, the BIA’s factual determinations are subject to the substantial evidence

standard of review. See Klawitter v. INS, 970 F.2d 149, 151 (6th Cir. 1992). To reverse those

determinations, this court must find that the evidence compels a contrary conclusion. Adhiyappa v.

INS, 58 F.3d 261, 265 (6th Cir. 1995).

“Under the doctrine of collateral estoppel, which is also referred to as issue preclusion, ‘once

an issue is actually and necessarily determined by a court of competent jurisdiction, that

determination is conclusive in subsequent suits based on a different cause of action involving a party

to the prior litigation.’” Hammer, 195 F.3d at 840 (quoting Montana v. United States, 440 U.S. 147,

153 (1979)).


No. 11-4030- 3 -

Although the requirements for collateral estoppel are enumerated differently indifferent opinions, this court has recently stated that the doctrine applies only when(1) the issue in the subsequent litigation is identical to that resolved in the earlierlitigation, (2) the issue was actually litigated and decided in the prior action, (3) theresolution of the issue was necessary and essential to a judgment on the merits in theprior litigation, (4) the party to be estopped was a party to the prior litigation (or inprivity with such a party), and (5) the party to be estopped had a full and fairopportunity to litigate the issue.

Id.

The IJ relied on the district court’s opinion to find that the following facts were established

by collateral estoppel: 1) Kalymon was born on May 16, 1921, in Komancza, Poland; 2) he served

in the UAP from September 1941 through March 1944; 3) the UAP assisted the German police in

reducing the Jewish population and confining Jews in ghettos; 4) while serving in the UAP,

Kalymon collected and escorted Jews to railcars for transportation to forced labor or death camps,

guarded cordon posts to capture Jews who were trying to escape, participated “in sweeps to capture

Jews for placement in ghettos or for transportation, shooting at Jews attempting to escape, wounding

one and killing another”; 5) Kalymon “made a willful misrepresentation to United States consulate

officials about his employment with the UAP and residences during World War II”; and 6) if

Kalymon had been truthful about his UAP service, he would not have received a visa under the DPA.

After adopting those findings, the IJ held that the government had met its burden of proving

Kalymon was removable by clear and convincing evidence.

Kalymon states that he “is not ascribing error . . . with respect to any individual prong of the

collateral estoppel doctrine.” Instead, he generally argues that applying the doctrine violated public

policy. However, Kalymon has not identified any specific public policy that might be undermined

by applying the collateral estoppel doctrine in this case. Thus, the IJ and the BIA properly relied on

that doctrine to establish the grounds for his removal. See Hammer, 195 F.3d at 840.

The application of collateral estoppel makes it unnecessary to reach Kalymon’s other

arguments. Nevertheless, we note that substantial evidence supports the alternative finding of the

IJ and the BIA that Kalymon would be removable based upon the evidence in the district court

record, even if collateral estoppel did not prevent him from challenging the district court’s holdings.


No. 11-4030- 4 -

As noted above, the parties agreed to rely upon the record that had been developed in Kalymon’s

denaturalization proceedings. The district court’s findings regrading revocation were affirmed and

those findings provide substantial evidence for the decision of the IJ and the BIA to remove

Kalymon from the United States.

Accordingly, the petition for judicial review is denied.

ENTERED BY ORDER OF THE COURT

Clerk


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Signature - Deborah Hunt

6th circuit upholds deportation of nazi policeman

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