Ruling to Let Demjanjuk Return Is Fought : Immigration: Justice Department challenges a decision to let accused Nazi guard re-enter U.S. He was cleared of being ‘Ivan the Terrible.’

Justice Department lawyers, in their effort to keep accused Nazi death camp guard John Demjanjuk from re-entering the United States, sought an emergency stay Monday of a lower-court order allowing his return, contending that the three-judge panel which issued the ruling overstepped its authority.

In a strongly worded petition urging the full U.S. 6th Circuit Court of Appeals to overturn its panel’s ruling, the Justice Department argued that the lower-court order improperly overrode a congressional mandate prohibiting any person who assisted in Nazi persecution from entering the United States.

“The panel’s order requires government officials to commit illegal acts, either by issuing Demjanjuk a visa for which he is ineligible or by allowing him to make an undocumented entry into this country,” the department said in petitioning the full 14-member court.

The petition came two days before the Israeli government is scheduled to decide whether to retry Demjanjuk on other charges after Israel’s Supreme Court acquitted him on July 29 of being the infamous “Ivan the Terrible” who operated gas chambers at Poland’s Treblinka death camp.

“Demjanjuk’s service as an SS guard at the Nazi camp at Trawniki renders him ineligible to enter the United States whether or not he was Ivan the Terrible at Treblinka,” said Patty Merkamp Stemler and Joseph Douglas Wilson, lawyers in the department’s criminal division. “New documentary evidence confirms that Demjanjuk served as an SS guard in a unit whose sole purpose was the persecution and murder of Jews.”

Demjanjuk, 73, a retired Cleveland auto worker, was stripped of his U.S. citizenship and ordered deported in the early 1980s based on his service as an SS guard at Nazi camps in Trawniki and Treblinka in Poland. In 1986, Israel extradited him on charges that he operated the Treblinka gas chambers.

He was convicted and sentenced to death. But his conviction was voided on the basis of evidence from the Soviet Union that an Ivan Marchenko actually operated the Treblinka gas chambers.

The 6th Circuit panel, citing the new evidence, reopened the extradition proceedings to determine whether the Justice Department had defrauded the court by concealing evidence relating to Marchenko. A special master appointed by the court found that department attorneys had “acted in good faith” and that Demjanjuk’s allegations of fraud had no merit.

The special master said that nothing “uncovered in these proceedings . . . has cast any substantial doubt on (the) finding that Mr. Demjanjuk served in the German SS at the Trawniki training camp. Because the Trawniki allegations formed an independent ground for Mr. Demjanjuk’s denaturalization and deportation . . . the judgment was, and is, a sound one.”

On Friday, the three-judge panel reconsidering the extradition directed that Demjanjuk be permitted to return to the United States while the proceeding continues.

Contending that his presence would serve no purpose, the two department lawyers said that he has had “ample opportunity to contest the Trawniki allegations.” They noted that his original Trawniki identification card was provided to him for expert examination here and in Israel but that he introduced no evidence to support his claim that the card was a Soviet forgery.

The department characterized Trawniki as an “SS facility dedicated to training guards for service in the death camps and for other acts of persecution against the Jews.”

It said that Trawniki guards were “indispensable to operation of Action Reinhard--the code word for the systematic extermination of the Jews from all countries of Europe occupied by German forces.”

The two lawyers said substantial evidence has surfaced since Demjanjuk’s denaturalization trial that confirms he served at Trawniki and Sobibor, another camp. Israel is considering using his alleged activities at Sobibor as the basis of new charges.