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 MinskBorisov-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 Nazidirected 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).