EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, November 16, 2007

Nazis. I Hate These Guys: Deportation Order Entered Against Man Who Belonged to the Ukranian Auxiliary Police

An immigration judge in Chicago has ordered the deportation of Osyp Firishchak, an 88 year-old man living in the north side of Chicago.  Two years ago, Firishchak had his U.S. citizenship revoked after a trial in which lawyers presented documents showing that an Osyp Firishchak who was born on the same day and in the same town as the defendant belonged to the Nazi-controlled Ukranian Auxiliary Police.  This Ukranian unit assisted Nazis in rounding up, beating up, and killing tens of thousands of Jews.

At his trial, Firishchak claimed that the 60 year-old documents introduced against him were unreliable, circumstantial, and filled with hearsay.  Yesterday, Immigration Judge Robert Vinikoor ordered that Firishchak be deported to his native Ukraine, finding that he was a member of a movement hostile to the United States and that he made willful misrepresentations on his visa application for the purpose of gaining admissions to the United States.

Looking at the the Seventh Circuit Court of Appeals' decision on Firishchak's appeal from his trial from two years ago, we can see how Firishchak's argument about the documents being unreliable because they were 60 years-old actually worked against him.  Normally the documents at issue would have been considered hearsay because they contained out of court statements offered to prove the truth of the matter asserted in those statements.  Federal Rule of Evidence 803(16), the "ancient document" exception, however, indicates that statements contained in documents in existence for twenty years or more are admissible as an exception to the rule against hearsay as long as their authenticity is established.  Furthermore, Federal Rule of Evidence 901(b)(8) states that ancient documents are authenticated when they are in a condition as to create no suspicion as to their authenticty and when they are found in a place where one would expect to find them.

Indeed, this is not the first case where ancient documents have led to the deportation of an individual with Nazi ties.  For instance, in United States v. Stelmokas, 100 F.3d 302 (3rd Cir. 1997), the defendant had his citizenship revoked after ancient documents revealed that he was a member of an armed Lithuanian unit known as Schutzmannschaft, which assisted Germans in confining and murdering Jews.



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