On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A07 900 159)
The opinion of the court was delivered by: Fisher, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) October 27, 2005
Before: SLOVITER, FISHER, and GREENBERG, Circuit Judges.
At issue in this case is whether the statutory language "assisted in persecution" means the same thing in the Displaced Persons Act of 1948 and the Holtzman Amendment of 1978. We hold that it does.
Petitioner Theodor Szehinskyj entered the United States in 1950 and was naturalized in 1958. He was denaturalized on July 24, 2000, following trial on the issue of whether he had illegally procured entry into the United States in 1950 under the Displaced Persons Act of 1948 ("DPA"), Pub. L. No. 80-774, 62 Stat. 1009, amended by Pub. L. No. 81-555, 64 Stat. 219 (1950). The DPA provided for expedited immigration to the United States following World War II, with the restriction that, inter alia, "[n]o visas shall be issued under the provisions of this Act . . . to any person who advocated or assisted in the persecution of any person because of race, religion, or national origin." Pub. L. No. 81-555 § 13. In recent years, based on archival documents that became available after the collapse of the Soviet Union, the government has pursued denaturalization proceedings against a number of alleged former Nazis, on the grounds that they were ineligible for admission under the DPA because of their conduct during the war. In this case, the government charged that Szehinskyj had been a prison guard at several concentration camps and a member of the Waffen SS, a special army unit in charge of the concentration camps. The district court found that Szehinskyj had been a concentration camp guard and an SS member, and as such had assisted in persecution, and that he was therefore ineligible for entry under the DPA. United States v. Szehinskyj, 104 F. Supp. 2d 480, 499 (E.D.P.A. 2000).
After Szehinskyj had exhausted his appeals, see United States v. Szehinskyj, 277 F.3d 331 (3d Cir. 2002), the government instituted removal proceedings under the Holtzman Amendment, Pub. L. No. 95-549, 92 Stat. 2065 (1978), which provides for the exclusion and removal of 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 [Nazi Germany or its allies] 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).*fn1
At those proceedings, the government moved to estop Szehinskyj from challenging the removal order on the grounds that the identical issue had been litigated in the district court in the denaturalization trial, and that the conditions for application of collateral estoppel had been met. The Immigration Judge ("IJ") granted the motion, and found Szehinskyj to be removable. The Board of Immigration Appeals ("BIA") affirmed.
Because the BIA affirmed the IJ's ruling without opinion, we review the opinion of the IJ. Partyka v. Attorney General, 417 F.3d 408, 411 (3d Cir. 2005). Application of collateral estoppel is a question of law, Nat'l R.R. Passenger Corp. v. Pa. Pub. Util. Comm'n, 342 F.3d 242, 252 (3d Cir. 2003), and we exercise plenary review of the BIA's legal determinations, subject to established principles of deference. See Auguste v. Ridge, 395 F.3d 123, 144 (3d Cir. 2005); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).
The Supreme Court has described the doctrine of collateral ...