670
Opinion of the Court
OSI, which was created to institute denaturalization and deportation proceedings against suspected Nazi war criminals, is now investigating whether, contrary to his representations, Balsys participated in Nazi persecution during World War II. Such activity would subject him to deportation for persecuting persons because of their race, religion, national origin, or political opinion under §§ 1182(a)(3)(E) and 1251(a)(4)(D), as well as for lying on his visa application under §§ 1182(a)(6)(C)(i) and 1251(a)(1)(A).
When OSI issued a subpoena requiring Balsys to testify at a deposition, he appeared and gave his name and address, but he refused to answer any other questions, such as those directed to his wartime activities in Europe between 1940- 1945 and his immigration to the United States in 1961. In response to all such questions, Balsys invoked the Fifth Amendment privilege against compelled self-incrimination, claiming that his answers could subject him to criminal prosecution. He did not contend that he would incriminate himself under domestic law,1 but claimed the privilege because his responses could subject him to criminal prosecution by Lithuania, Israel, and Germany.
OSI responded with a petition in Federal District Court to enforce the subpoena under § 1225(a). Although the District Court found that if Balsys were to provide the information requested, he would face a real and substantial danger of prosecution by Lithuania and Israel (but not by Germany), it granted OSI's enforcement petition and ordered Balsys to testify, treating the Fifth Amendment as inapplicable to a claim of incrimination solely under foreign law. 918 F. Supp. 588 (EDNY 1996). Balsys appealed, and the Court of Appeals for the Second Circuit vacated the District Court's order, holding that a witness with a real and substantial fear of prosecution by a foreign country may assert the Fifth Amendment privilege to avoid giving testimony in a domes-1 The Government advises us that the statute of limitation bars criminal prosecution for any misrepresentation. Tr. of Oral Arg. 4.
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