The Spy Who Can’t Go Home Again : Espionage: Nikolai Ogorodnikov should have been deported six months ago. But there’s a glitch. The INS can’t send the convicted Soviet agent back to the U.S.S.R., since it no longer exists.

Nikolai Ogorodnikov is a man without a country, and that suits him just fine.

But it is creating a legal dilemma for the United States, which is unable to ship the convicted Soviet spy back home because his country no longer exists.

Adding to the predicament, Ogorodnikov is risking a second criminal prosecution in the United States for refusing to ask any other country to accept him. A 1952 law says he must cooperate in his own deportation or face 10 years in prison.

But Ogorodnikov, who is stateless, flatly refuses to help.

“I’d rather stay in jail here than go back there,” he told his lawyer from the Winchester, Va., federal penitentiary, where he has been awaiting “imminent” departure for six months. Ogorodnikov, says the lawyer, David Carliner, a long-time expert on immigration issues, “is simply not deportable.”

The U.S. government is equally unyielding.

“We are adamant that this man will not go on the street again,” vows Kenneth Elwood, assistant director of the U.S. Immigration and Naturalization Service in Los Angeles. “He was convicted of espionage as an employee of the KGB (secret police). We don’t see any reason to give him relief.”

A wiry, 5-foot-4-inch man, 60-year-old Ogorodnikov has led such a sad and eventful life--much of it in jail on two continents--that he seems to be the real-life counterpart of the Al Capp cartoon character Joe Bftsplk, who was perpetually shadowed by a dark cloud.

While free for about 20 months pending deportation, Ogorodnikov was working in Los Angeles as a hotel van driver last year when an armed convict tried to steal his vehicle after exchanging gunshots with a police officer. Ogorodnikov refused to give up the keys, was hit in the face several times, but managed to jam the would-be hijacker’s head down between seats of the van until police arrived.

He was hailed as a hero--but only briefly. By the end of the year, he had been returned to prison for deportation.

Also while free, Ogorodnikov was injured twice at work, once as the van driver and again as a meat packer. But by the time his cases came up before the California worker’s compensation board, he was in jail in Virginia and could not attend the hearing.

Born Nikolai Wolfson in Kiev, Ogorodnikov fought in World War II with the Red Army, which he says he joined when only 11 years old. He was twice wounded and captured and survived a German prison camp, he says, because although he is Jewish, he is not circumcised.

In his native Ukraine, he spent about 10 years in prison on six criminal charges, mostly burglary. A final charge of rape was dropped before he emigrated to the United States in 1973. He left on an Israeli exit visa, but he and his wife, Svetlana, chose to go to Los Angeles instead.

Ogorodnikov was cuckolded by the much younger Svetlana and former FBI agent Richard W. Miller when the threesome were spying for the Soviets. After a celebrated trial in 1985, Ogorodnikov was judged the least culpable and received the lightest sentence: eight years, of which he served five. Svetlana and Miller, the latter recently retried and again convicted, are still in jail.

Ogorodnikov is suspected of having been a KGB plant from the start, aided in emigrating so he could be used for espionage. The KGB is believed to have sent many criminals abroad as emigres over the years, often as Jews on Israeli visas whether they were in fact Jewish or not, to be called on when needed to support spy activities.

A permanent U.S. resident rather than a citizen, Ogorodnikov was ordered deported in February, 1990, a month after his release from jail. He refused to choose a destination, so the judge chose for him: the Soviet Union.

The Soviet Union, however, subsequently was dissolved. Even if it still existed, it technically would not have to take Ogorodnikov because he renounced Soviet citizenship so he could emigrate. Russia, as the successor state, offered to accept Ogorodnikov--”to show good will to the United States,” Carliner says--if he voluntarily asked for Russian travel documents to return.

But he refuses to ask.

In March, the Immigration Appeals Board rejected Ogorodnikov’s efforts to remain in the United States. The board noted that he had been a “model parolee” after finishing his sentence and had showed heroism in foiling the armed hijacker. Even so, it said, “he has indicated no remorse for his crime (espionage), but rather, has repeatedly denied culpability.”

The board added: “Much more of a showing of rehabilitation is required before it can be said in the face of his past conviction that there are no longer reasonable grounds for regarding him as a danger to the security of the United States.”

Although the Soviet Union no longer exists, the board noted that “the term country has been interpreted to mean a foreign territory that is under the control of a de jure government recognized by the United States.” Thus, it held that Russia could be asked to take Ogorodnikov.

Meanwhile, he is subject to U.S. prosecution as a convicted felon who refuses to cooperate in his own deportation. The law, which covers 11 classes of criminal activity, including national security cases, has been upheld in appeals, most recently in deporting a Nigerian drug dealer from the Baltimore area.

But, according to Carliner, courts have never ruled on its basic constitutionality, and the United States has never tried to deport an individual to a state that no longer exists.

In the continuing impasse, the United States “is putting pressure on the Russians to reconsider their refusal to take Ogorodnikov unless he asks,” Carliner says. The Russians have taken the renewed American request under advisement.

If they again refuse, other countries may be sought to take him. One is Ukraine, his birthplace, now an independent country. Others are Austria and Italy, through which he traveled before reaching the United States.

A final possibility would be Israel.

“But if they ask the Israelis,” says Carliner, “I can imagine how fast they’ll say no.”