Petkiewytsch v. Immigration and Naturalization Service

Polish native Leonid Petkiewytsch (plaintiff) fled to Czechoslovakia at age 21 and was sent to an Austrian transit camp and then ordered by the Germans to serve as a civilian guard at the Kiel-Hasse labor-education camp. Petkiewytsch objected to the assignment but would have been imprisoned or executed had he refused it. Labor-education camps, created to house foreign laborers, became punishment camps for labor infractions and state-policy violations such as failing to wear a Jewish- or Polish-identity badge. Although labor-education camps were less repressive than other Nazi camps, inmates were subjected to physical abuse, malnutrition, overcrowded conditions, interrogations, torture, and executions. Petkiewytsch had to wear a Gestapo uniform, carry a loaded rifle, escort prisoners to work, and guard the perimeter and a bunker where prisoners were interrogated and abused. Petkiewytsch was ordered to shoot anyone who tried to escape and told he would be imprisoned or shot if he disobeyed. Petkiewytsch was once imprisoned for failing to perform his duties. Petkiewytsch never used his rifle or struck a prisoner. After the war, Petkiewytsch was interned by the British but exonerated and released. In 1955, Petkiewytsch obtained a visa under the Immigration and Nationality Act (INA) and became a permanent United States resident. In 1985, the U.S. Immigration and Naturalization Service (INS) (defendant) sought Petkiewytsch’s deportation under the 1978 Holtzman Amendment to the INA, which provided for deportation of aliens who, under the direction of or in association with the Nazis, ordered, incited, assisted, or otherwise participated in persecuting anyone because of race, religion, national origin, or political opinion. After a hearing, the immigration judge terminated the deportation proceedings, finding that Petkiewytsch had not personally engaged in abusive acts and had served under duress. The INS appealed. Reversing, the Board of Immigration Appeals (BIA) found that inmates were persecuted in Kiel-Hasse due to race, religion, national origin, or political opinion and that the objective effect of Petkiewytsch’s service was to assist the Nazis’ persecution by preventing inmates from escaping. Petkiewytsch petitioned the Sixth Circuit for review.