Osyp Firishchak v. Eric Holder, Jr. ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2238
O SYP F IRISHCHAK,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A007-164-402
A RGUED O CTOBER 20, 2010—D ECIDED F EBRUARY 14, 2011
Before F LAUM, R IPPLE, and E VANS, Circuit Judges.
F LAUM, Circuit Judge. Osyp Firishchak hid an ignomini-
ous past when he came to the United States in the
wake of World War II. He represented to U.S. officials
that his wartime activities comprised working on a Ukrai-
nian cooperative. In fact, he served in the Ukrainian
Auxiliary Police (“UAP”), an organization whose
activities included aiding Nazis by forcibly rounding
up Jews for deportation to concentration camps.
2 No. 09-2238
In 2005, a district court concluded that Firishchak lied
to enter the country and obtain naturalization. The
sanction was severe: Firishchak was stripped of his citi-
zenship. We affirmed, United States v. Firishchak, 468
F.3d 1015 (7th Cir. 2006) (“Firishchak II”), and this
appeal concerns the fallout. The government initiated
removal proceedings. An Immigration Judge (“IJ”)
applied the doctrine of collateral estoppel, ruling that
the findings in the 2005 case at once barred re-litigation
of the underlying issues and dictated Firishchak’s ouster
from the country. The Board of Immigration Appeals
(“BIA”) agreed that collateral estoppel was both appro-
priate and appropriately applied. Firishchak has now
filed a petition for review with us. For the reasons
stated below, we deny the petition.
I. Background
We need not say much more than we have before
about the underlying facts. See Parklane Hosiery Co., Inc. v.
Shore, 439 U.S. 322, 326 (1979) (collateral estoppel serves
the twin purposes of protecting litigants from re-litigating
identical issues and protecting courts from re-deciding
them). Most of what we need can be drawn from the
district court’s denaturalization decision, following a
bench trial, in United States v. Firishchak, 426 F. Supp. 2d
780 (N.D. Ill. 2005) (“Firishchak I”), aff’d 468 F.3d 1015(7th Cir. 2006).
In 1949, Firishchak filed an application for a visa
under the Displaced Persons Act. See 62 Stat. 1009-14
No. 09-2238 3
(1948) (“DPA” or “Act”). The DPA created the Displaced
Persons Commission. Under the Act, an “eligible dis-
placed person” (generally a victim of, or one who fled,
Nazi persecution) could obtain permanent residence in
the United States. When Firishchak filed his application
with the Commission, he indicated that, between 1941
and 1944, he was working on a Ukrainian cooperative.
He procured a visa and, in 1954, was naturalized as an
American citizen.
Firishchak’s actual wartime activities varied markedly
from his post-war representations. In fact, he spent
several years working for the UAP in a city called
L’viv. (The city lies in modern-day Ukraine, but was
part of Poland at the beginning of World War II.) The
UAP was a Nazi-controlled armed force that persecuted
Jews during the war. The work included confining Jews
to a ghetto near L’viv, forcibly removing Jews from the
ghetto so they could be relocated to concentration
camps, and arresting Jews who lacked proper paperwork
or who failed to wear Star of David armbands. The UAP’s
members, playing their part in a particularly infamous
round-up of Jews known as the “Great Operation,” shot
and killed Jews who resisted, fled, or attempted to hide.
Firishchak maintained during the proceedings in
Firishchak I, as he does now, that he was not involved
with the UAP. But considerable evidence indicated that
he was lying, and the district court made unvarnished
findings to that effect. The lie had consequences: the
DPA’s mechanism for obtaining permanent residence
was extended only to “eligible displaced persons”—
4 No. 09-2238
a term that included victims of Nazi persecution, but left
out oppressors as well as those who “willfully make a
misrepresentation for the purpose of gaining admis-
sion into the United States.” 62 Stat. at 1013.
Firishchak’s lie poisoned his subsequent procurement
of citizenship because the Immigration and Nationality
Act (“INA”) requires, as a prerequisite to nationalization,
five years of continuous residence in the United States
“after being lawfully admitted for permanent residence.”
8 U.S.C. § 1427(a) (emphasis added). And the INA
further provides that procuring citizenship “by conceal-
ment of a material fact or by willful misrepresentation” is
a ground for revoking citizenship. 8 U.S.C. § 1451(a). Thus,
by lying to obtain permanent resident status, Firishchak
planted the seed for the revocation of his subsequently
obtained citizenship. See Fedorenko v. United States, 449
U.S. 490, 514 (1981) (concealment of war-time activities
to obtain a visa under the DPA is grounds for revoking
citizenship); United States v. Tittjung, 235 F.3d 330, 336
(7th Cir. 2000) (a certificate of naturalization does not
act as a blank slate where a visa was unlawfully
obtained under the DPA). In addition, stripping
Firishchak’s citizenship was appropriate for two dis-
tinct though intertwined reasons—the UAP was a move-
ment hostile to the United States under the DPA, and
the UAP assisted in Nazi persecution. Firishchak II, 468
F.3d at 1024-25.
After we, in Firishchak II, affirmed the district court’s
decision, the government initiated removal proceedings.
Removal was sought on the same grounds as the district
No. 09-2238 5
court had relied on in revoking Firishchak’s citizenship.
See 8 U.S.C. § 1227(a)(1)(A) (an alien inadmissible at
time of entry is deportable); id. § 1182(a)(3)(E)(i) (partici-
pants in Nazi persecution are ineligible for visas or
entry); id. § 1227(a)(4)(D) (an alien who participated in
Nazi persecution is deportable). The IJ ruled that
the district court’s denaturalization proceeding in
Firishchak I was entitled to preclusive effect, concluding
that all of the elements to establish removability were
“fully litigated and necessarily decided” in the prior
proceeding. Therefore, the IJ ordered that Firishchak be
removed to the Ukraine. The BIA dismissed Firishchak’s
appeal, after which he filed a petition for review with us.
II. Discussion
Under the doctrine of collateral estoppel, also referred to
as issue preclusion, “once an issue is actually and neces-
sarily determined by a court of competent jurisdiction,
that determination is conclusive in subsequent suits
based on a different cause of action involving a party
to the prior litigation.” Montana v. United States, 440
U.S. 147, 153 (1979); see also Bobby v. Bies, ___ U.S. ___,
129 S. Ct. 2145, 2152 (2009); Taylor v. Sturgell, 553 U.S.
880, 891 (2008) (the preclusive effect of a prior federal
court decision is a matter of federal common law).
The organizing principle is that courts should respect
“the first actual decision of a matter that has been
actually litigated.” 18 Wright, Miller & Cooper, FEDERAL
P RACTICE AND P ROCEDURE § 4416, at 386 (2d ed. 2002).
6 No. 09-2238
When the requirements for collateral estoppel 1 are
met, we have held that it is proper to give preclusive
effect to a denaturalization proceeding in a subsequent
removal proceeding. Tittjung v. Reno, 199 F.3d 393, 397 n.2
(7th Cir. 1999) (applying collateral estoppel in this
context is well established); Kairys v. I.N.S., 981 F.2d 937,
939 (7th Cir. 1992) (“[T]he existence of principles that
limit the scope of a doctrine does not make its applica-
tion discretionary . . . .”); Schellong v. I.N.S., 805 F.2d
655, 658-59 (7th Cir. 1986) (noting the variety of contexts
in which collateral estoppel has been appropriately
applied and concluding that the doctrine should apply
to removal proceedings so long as “the doctrine’s ap-
plication will not be unjust”).
Firishchak argues that collateral estoppel should not
bar relitigation of the issues in his removal proceeding
because he did not receive a full and fair opportunity
1
Formulations vary, but for our purposes five conditions
must be present for collateral estoppel to apply to a given
issue: (1) Firishchak must have been afforded a full and fair
opportunity to litigate in the denaturalization case; (2) the
issue in the denaturalization case and in the removal
proceeding had to have been identical; (3) the contested issue
in the removal case must have been the same as, and neces-
sarily decided in, the denaturalization case; (4) the issue
must have been necessary to the judgment in the denaturaliza-
tion case; and (5) Firishchak must have been a party in the
denaturalization case. Schellong v. I.N.S., 805 F.2d 655, 658 (7th
Cir. 1986). Almost all of Firishchak’s arguments relate to the
first requirement—a full and fair opportunity to litigate.
No. 09-2238 7
to litigate in Firishchak I.2 The ground is theoretically
sound. “Redetermination of issues is warranted if there
is reason to doubt the quality, extensiveness, or fairness
of procedures followed in prior litigation.” Montana, 440
U.S. at 164 n.11; R ESTATEMENT (SECOND ) OF JUDGMENTS
§ 28(3) & comment d (1982). Specifically, Firishchak
argues that he did not receive a full and fair opportunity
to litigate because the judge in the denaturalization
case (and the IJ) were not randomly assigned; because
the judge in the denaturalization case acted more like a
litigant than a judge; and because the judge in the
denaturalization case incorrectly concluded that
the government met its burden of proof. We take up
each argument in turn.
A. Random Assignment
Firishchak maintains that the judges who have heard
his case—the IJ in the removal proceeding and the
district court in Firishchak I—were not randomly as-
2
Firishchak makes an additional argument that collateral
estoppel is inappropriate because the issues in the
denaturalization case and the removal proceeding were
not the same, because there was no finding that Firishchak
misrepresented facts in the earlier proceeding. The argument,
however, is waived because it was not advanced in his
opening brief. United States v. Lupton, 620 F.3d 790, 807 (7th
Cir. 2010). In any event, the district court specifically deter-
mined in the denaturalization case that Firishchak had misrep-
resented facts, not just omitted them on the visa application.
8 No. 09-2238
signed. The non-random assignment, Firishchak in-
timates, deprived him of due process. Factual and legal
problems hamstring the argument. First, Firishchak offers
no reason to doubt that the judge in the denaturalization
case—the case we focus on, as that is the case whose
collateral-estoppel effect we consider—was randomly
assigned. Instead, he offers only the possibility, as an
epistemological matter, that the Northern District of
Illinois might have abandoned its standard, decades-
long randomized case assignment system. Without a
reason to be suspicious, the argument fails on its
own terms. See N.D. Ill. Local Rule 40.1(a) (random
case assignment, with exceptions spelled out in the
local rules). Although a party asserting collateral
estoppel bears the burden of establishing that the
earlier opportunity to litigate was full and fair, Kulavic
v. Chicago & Ill. Midland Ry. Co., 1 F.3d 507, 517 n.6
(7th Cir. 1993), that does not mean that the estoppel
proponent must preemptively address every way in
which a proceeding could hypothetically have been
rendered unfair. The government did not have to
show that the judge was randomly assigned any
more than it had to establish that the president’s nom-
ination of the judge had been confirmed by the Senate.
See also Nguyen v. United States, 539 U.S. 69, 80-82
(2003) (vacating the judgment of an improperly con-
stituted court).
Of course, the inadequate legal basis for Firishchak’s
argument is just as important as the missing factual
underpinnings. A non-randomly assigned judge, with-
out more, simply does not make for a due process vio-
No. 09-2238 9
lation, and Firishchak does not explain why the analysis
should work differently in the context of collateral
estoppel. The Fifth Amendment’s due process clause
guarantees the right to an impartial decisionmaker, e.g.,
Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborer’s
Pension Trust for S. Cal., 508 U.S. 602, 617 (1993), but not
to a particular judge, United States v. Braasch, 505 F.2d
139, 147 (7th Cir. 1974). And in United States v. Keane,
522 F.2d 534, 557 (7th Cir. 1975), we adopted the
reasoning of a district court which ruled that an
individual does not have a due-process right to a
randomly assigned judge. See United States v. Keane, 375
F. Supp. 1201, 1204 (N.D. Ill. 1974). In Tyson v. Trigg,
50 F.3d 436, 439-42 (7th Cir. 1995), we upheld the con-
stitutionality of a case assignment system that permit-
ted prosecutors to play an active role in selecting trial
judges, although we described the system as “unsightly.”
Other courts to have considered the question agree
that due process does not demand random assignment
of judges. Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987)
(assignments need not be random and can be made for
any reason, so long as it is not made in a biased manner
“or [with] the desire to influence the outcome of the
proceedings”); United States v. Osum, 943 F.2d 1394, 1400-
1401 & n.3 (5th Cir. 1991) (suggesting that no enforceable
right prevents a court from ignoring local rules in an
effort to steer a case to a given judge); see also 28 U.S.C.
§ 137 (leaving it to individual courts to determine
how they divide their business); 28 U.S.C. § 1407(a), (b)
(assignment to particular judges by the panel on
multidistrict litigation); Bd. of Sch. Dirs. of the City of
10 No. 09-2238
Milwaukee v. State of Wisconsin, 102 F.R.D. 596, 598 (E.D.
Wis. 1984) (related pending cases may be transferred to
a single judge); United States v. Isaacs, 493 F.2d 1124, 1168
(7th Cir. 1974) (panel of non-Seventh Circuit judges
constituted by the Chief Justice of the United States
after mass recusal).
In sum, there is nothing in the assignment of the judge
in this case, factually or legally, indicating that Firishchak
was deprived of due process. The parties do not
suggest another basis, different from the constitutional
standards, for concluding that non-random assignment
necessarily bars the application of collateral estoppel.3
B. Lack of Impartiality
Firishchak next suggests that he did not receive a full
and fair opportunity to litigate because the judge’s
opinion reveals a lack of impartiality. Although he cites
no legal authority, the argument is on sounder legal
footing than his non-random-assignment argument. E.g.,
Edwards v. Balisok, 520 U.S. 641, 647 (1997) (suppression
of evidence of innocence by prison hearing officer
violates due process). A biased judge would give us
3
Firishchak’s additional argument that collateral estoppel
is inappropriate because the IJ was not randomly assigned is
a non sequitur, at least as he has presented the matter: we
are deciding whether to give preclusive effect to the
denaturalization case, not the removal proceeding, and our
review of the former is de novo.
No. 09-2238 11
reason to doubt the fairness of the earlier proceeding, cf.
Castilho de Oliveira v. Holder, 564 F.3d 892, 899-900 & n.4
(7th Cir. 2009) (asylum applicant was denied a meaning-
ful opportunity to be heard, under the regulatory
scheme, based on “the tone of the IJ’s cross-examination,”
as well as its frequent interruptions, inappropriate ques-
tions and comments, and failure to engage with the
record evidence), which might make the application of
collateral estoppel improper.
The argument, however, founders on the merits. Ac-
cording to Firishchak, the district court’s memorandum
opinion, following a bench trial, “reads like the closing
argument of a criminal prosecutor.” We disagree.
Firishchak highlights the district court’s conclusion that
the former “lied on the stand” as revealed by his
demeanor and mannerisms. That was a finding, more
descriptive than reproachful, and does not approach the
sort of abusive language that would give us pause.4
4
The same conclusion applies to Firishchak’s argument that
the district court adopted portions of the government’s pro-
posed findings verbatim. Firishchak does not say how much
was adopted or provide citations, so the argument is waived,
but the district court’s engagement with the evidence in
Firishchak I indicates that the argument lacks merit. See
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 572-73
(1985) (concluding that there was no reason to “doubt that the
findings issued by the District Court represent the judge’s
own considered conclusions” where adoption of one side’s
findings was not “uncritical[]”); Metavante Corp. v. Emigrant Sav.
Bank, 619 F.3d 748, 759 (7th Cir. 2010) (district court gave
(continued...)
12 No. 09-2238
Compare Liteky v. United States, 510 U.S. 540, 555-56 (1994)
(“[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias
or partiality challenge.”), with Berger v. United States,
255 U.S. 22, 29 (1921) (trial judge said of German-Ameri-
cans, “Your hearts are reeking with disloyalty”); see also
In re United States, 614 F.3d 661, 666 (7th Cir. 2010)
(record revealed “unreasonable fury” toward government
lawyers); Castilho de Oliveira, 564 F.3d at 899-900 & n.4;
United States v. Giorgi, 840 F.2d 1022, 1035 (1st Cir. 1988)
(to establish partiality, a litigant must do more than
point to the mere fact of an adverse ruling or credibility
determination). In this case, we do not agree that the
language used by the judge evinces partiality. Here,
while giving comprehensive and thoughtful treatment to
the evidence and arguments, the court used stern lan-
guage. Liteky, 510 U.S. at 555. It is not a case in which
the use of inflammatory language saps us of confidence
that a party received a fair shake. See United States v.
Figueroa, 622 F.3d 739, 743-44 (7th Cir. 2010) (remanding
a case for resentencing where a “litany of inflammatory
remarks undermined anything else that the court said
during the hearing”).
Firishchak also complains that the district court used
the word “we” when it was speaking for itself—e.g., “we
(...continued)
“adequate” treatment to the case where record indicated
that “the court read the findings that it adopted and care-
fully considered them”).
No. 09-2238 13
find that he was a member of the UAP.” Firishchak I, 426
F. Supp. 2d at 784 (emphasis added). Apparently the
suggestion is that the district court tipped its hand that
it was allied with the government. To be sure, the
practice of using the word “we” when writing in the first-
person singular—a nosism commonly referred to as
the “royal we”—is on the wane. T HE N EW F OWLER’S
M ODERN E NGLISH U SAGE 835 (R.W. Burchfield ed., 3d ed.
1996); H.W. Fowler, A D ICTIONARY OF M ODERN E NGLISH
U SAGE 689 (2d ed. 1965) (noting that we may mean “this
newspaper, or this nation, or several other things” but
discouraging its use where “collective anonymity . . . is out
of place”). Some view the practice by district judges
critically. See Federal Judicial Center, JUDICIAL W RITING
M ANUAL 22 (1991) (characterizing the convention
as “pompous”); but see T HE C HICAGO M ANUAL OF S TYLE
§ 5.51, at 160 (15th ed. 2003) (suggesting that the prac-
tice may “draw in the reader” by making the prose
less personal). There is, in any event, no prohibition
against the royal we and its use does not support
Firishchak’s suggestion that the district court treated
him unfairly.
Other evidence of partiality can be dispensed with
quickly. Firishchak contends that the district court inter-
rupted one witness’s examination 19 times. He failed
to include examples, either in an appendix as the rules
require, see FRAP 30(a); Cir. R. 30(a),(b), or even in
citations to the voluminous, 727-page administrative
record that the government filed. The matter has been
waived, as we decline to further comb the record. Consoli-
dation Coal Co. v. Dir., Office of Workers’ Comp. Programs,
14 No. 09-2238
294 F.3d 885, 895-96 (7th Cir. 2002) (waiver of matter
as to which the record was devoid of underlying docu-
mentation); Linrud v. Linrud, 552 N.W.2d 342, 345 (N.D.
1996) (“Judges are not ferrets.”). Arguments related to
other incidents, such as the allegation that the judge
actively assisted the government in admitting evidence,
have been waived for the same reason. Finally, Firishchak
re-raises some objections that we reviewed and rejected
in Firishchak II; these arguments have not gained merit
with time, and we need not discuss them further.
C. Evidence and Findings in Firishchak I
Firishchak argues at length that the evidence in the
denaturalization case was insufficient and that the
district court ignored the applicable burden of proof. As
Firishchak’s brief maintains, “This case was always and
still is all about the gross insufficiency of the evidence
under the applicable burden of proof.” We respectfully
disagree: Firishchak’s argument amounts to a contention
that collateral estoppel should not apply because the
first case was wrongly decided. The possibility that a
prior action could result in the wrong outcome is a
reason, as a matter of first principles, why one may not
want courts to recognize the doctrine at all. Wright,
Miller, & Cooper, supra, § 4416, at 398 (noting that the
“dangers of issue preclusion are as apparent as its vir-
tues”). Yet, whenever principles compete with one
another—fairness versus finality, certainty versus
economy—there are no right answers, only better
ones. Courts recognize and apply collateral estoppel;
No. 09-2238 15
Firishchak’s efforts to relitigate the merits of the
denaturalization case is precisely what the doctrine
prevents.
III. Conclusion
The bookends of Osyp Firishchak’s life have involved
deportation, on different sides of the Atlantic Ocean, on
different sides of the process, and by profoundly
different means. When the government learned that
Firishchak had been allowed to enjoy the benefits of
American citizenship only as a result of a lie, our laws
and justice system afforded him both the benefit of the
doubt and a fair opportunity to be heard. The contention
that he was denied a full and fair opportunity to litigate
in the denaturalization case is not supported by the
record. Therefore, collateral estoppel in the removal
proceeding was both appropriate and appropriately
applied. His petition for review is D ENIED.
2-14-11