Monday, December 26, 2005

Szehinskyj: Issue Preclusion for "Assisted in Persecution" Issue

Szehinskyj v. Gonzales
Szehinskyj v. Attorney General
No. 04-3710
December 13, 2005

Issue preclusion can apply in immigration court to prevent a respondent from relitigating an issue that he raised in other proceeding, fully litigated, and wound up losing.

Issue preclusion is also known as collateral estoppel (but courts are moving toward the "preclusion" phrase) and it requires: (1) the issue previously decided is the same as the current one, (2) the previous case actually litigated the issue in question, (3) the previous case's ruling on the issue was necessary to the decision, and (4) the party to be precluded was fully represented in the earlier decision.

In this case, the Third Circuit focused on whether the issue in this case (the immigrant assisted in persecution which makes him deportable) is the same as a previous case involving the same immigrant (the immigrant assisted in persecution which revoked his U.S. citizenship).

The immigrant argued that even though both decisions relied on language that punished anyone who "assisted" in persecution in Nazi Germany, the decision to revoke his citizenship did not focus on assisting in persecution. The immigrant unsuccessfully argued that taking away someone's citizenship focused solely on Nazi war criminals, not Nazi persecutors.

The Third Circuit rejected the immigrant's argument, ruling that the plain language of the statute makes clear it covers assisting in persecution and the full text of the legislator's debate in enacting the denaturalization statute shows the legislators included Nazi persecution, not just a subset of Nazi war criminals when enacting the Holzman Amendment.


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