Appeal from a judgment of the Eastern District of New York, Frank X. Altimari, Judge, dismissing the government's suit to cancel the naturalization of Elmars Sprogis and to revoke his citizenship. Affirmed. Judge Mansfield concurs in a separate opinion.
Lumbard, Mansfield, and Cardamone, Circuit Judges.
This case presents, in its most difficult and troubling form, the question of whether a naturalized citizen's conduct while a native police officer in a country invaded and occupied by the Nazis during World War II constitutes an involvement in the Nazis' persecution of civilians sufficient to require the revocation of his citizenship over 40 years later. The government appeals from the May 21, 1984 dismissal, by Judge Altimari, of its suit, brought in the Eastern District under § 340(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1451(a) (1982), to cancel the naturalization of Elmars Sprogis and to vacate an April 16, 1962 order of the Southern District of New York granting him United States citizenship. Judge Altimari dismissed the suit based on his conclusion that the government failed to prove, by clear, unequivocal and convincing evidence, that Sprogis assisted in persecuting Jews and other civilians while serving as a policeman in Nazi-controlled Latvia during World War II.
On appeal, the government contends that, even in the absence of additional proof, Sprogis' admissions establish that he assisted in persecution. We agree substantially with Judge Altimari's decision that the government offered insufficient proof of assistance in persecution.
Elmars Sprogis was born in Latvia on November 26, 1914. During World War II, he worked there as a police officer. On November 25, 1950, Sprogis entered the United States, having gained a visa from U.S. immigration officials in Wentorf, West Germany pursuant to the Displaced Persons Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009 (DPA). On his immigration papers, including his I-144, a form filed out by all person immigrating under the DPA, Sprogis disclosed his Latvian police service and stated that he had not become involved in persecuting any civilians.
The government, in a six-count complaint, advanced two theories for revoking Sprogis' citizenship under § 340 (a) of the INA.*fn1 It asserted that his citizenship was illegally procured, under 8 U.S.C. §§ 1427(a) (1), 1427 (a) (3), 1429, because of his assistance in persecuting Soviet prisoners of war, Jews and other civilians while a Latvian police officer and because of his failure to disclose that assistance on his immigration papers.*fn2 In addition, it asserted that his citizenship was procured through misrepresentations concerning his participation in persecution.
A bench trial was held before Judge Altimari in October 1983. Most of the evidence focused on Sprogis' alleged involvement in three incidents of persecution: 1) the detention and forced transport of nine Jews and the confiscation of their property on July 19, 1941; 2) the mass execution of approximately 200 Jews at Litene, Latvia on August 1 or 2, 1941; and 3) the confiscation of property from the homes of arrested Jews.
The government called Dr. Raul Hilberg, an expert historian who has studied the Holocaust for over 35 years. Hilberg testified that Germany invaded Soviet-controlled Latvia on June 22, 1941, occupying Gulbene on or about July 5, 1941 and the entire country by the end of the summer. According to Hilberg, there were approximately 83 Jews in Gulbene at the time of the Nazi invasion. throughout Latvia, the Nazis initiated a systematic effort to seize and shoot all Jews except for a small number of skilled laborers. Usually, but not always, a special unit of Latvians, under the direction of the Nazis and known as the Arajs Kommandos, carried out the executions. In some cases, the Nazis, asserting their authority over the local Latvian police, used the police to locate, arrest, guard, transport or execute Jews, and to confiscate their property. Hilberg conceded, however, that the role of the local Latvian police varied from region to region.
The government also introduced Sprogis' sworn statements of March 9, 1976, November 25, 1981 and February 24, 1982 and his September 24, 1983 deposition, all of which were taken by immigration officials and government lawyers in New York.
Sprogis also testified on his own behalf: He graduated from military college in 1937 and served in the Latvian Army until June 1940, when the Soviets occupied Latvia. During the Soviet occupation, he served in the Latvian Territorial Corps, a group formed by the Soviets. In the summer of 1941, he was stationed in Cesis, but he left on July 5 or 6 and travelled to Riga, Latvia, in search of his brothers, and then to Gulbene, an eastern Latvian town of approximately 2,900 people, where his wife was living and working. On July 16, he joined the Gulbene police force at the request of the chief of police, a friend. Sprogis' father had previously served as chief of police in Gulbene. Sprogis continued to serve on the police force, as assistant precinct chief, until August 10, 1941, although he maintained that after the first of August he missed some work because of a knee injury. On September 8, 1941, he left Gulbene in order to become assistant chief of police in Madona, a larger city. Eventually he became police chief in Madona.
Sprogis testified that the Gulbene police were under the control of the Nazis. he consistently denied, however, that he ever arrested any Jews. He asserted that all Jews in Gulbene had been arrested prior to his joining the police force there on July 16. According to Sprogis, the Nazi presence in Gulbene was centered not at the police station but at the Gulbene military airport where Major Schaeffer was in charge. Reporting to Schaeffer was a Latvian unit, headed by Captain Lietuvietis, responsible for guarding the airport and the prisoners the Nazis held there. Sprogis asserted that the police had no authority over the military airport and that he visited it only once.
Sprogis also testified concerning his role in the confiscation of the property of arrested Jews and in the July 19, 1941 incident involving the detention of nine Jews at the Gulbene police station. Initially, Sprogis, in his 1981 sworn statement, denied any involvement in either the confiscation of property or the July 19 incident. However, subsequent to that interview, the government produced four documents, which, according to Sprogis, refreshed his memory concerning the July 19 incident.
The first document, dated July 19, 1941 and signed by Sprogis, F. Ermiks, and one other, reads, as translated:
The following sums of money that were found on July 19, 1941 on the arrested Jews were confiscated and turned over to the mayor of Gulbene for his dis-position: A total of six thousand four hundred ninety three(6,493) rubles. One hundred rubles (100.00 rbl.) out of this sum have been paid to four farmers of the Municipality of Litene for transporting the Jews along a dirt road from Litene to the police precinct in Gulbene-see enclosed receipts. Six ...