concurring in part and dissenting in part:
I agree with the majority that Maikovsk-is was properly found deportable under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1) (1982), for failure to disclose his police service during the Nazi occupation of Latvia, a disclosure that would probably have led to knowledge of his role in the Audrini episode, which in turn would have warranted his exclusion under the Displaced Persons Act. But I respectfully dissent from the additional holding that Maikovskis has properly been found deportable under section 241(a)(19) of the Act, 8 U.S.C. § 1251(a)(19), for participation in an act of political persecution. The additional ground renders Maikovskis ineligible for discretionary relief under sections 241(f), 243(h)(2)(A), and 244(a) of the Act, 8 U.S.C. §§ 1251(f), 1253(h)(2)(A), and 1254(a) (1982), a matter of significance to this 81-year-old man who has resided in this country for 33 years.
The issue under section 241(a)(19) is whether Maikovskis participated in persecution of the Audrini villagers “because of” their “political opinions.” The horror of the episode, still vivid despite the passage of 44 years, must not deter us from requiring faithful compliance with applicable substantive and procedural requirements of administrative law. This is especially so when the administrative task is the difficult one of determining the precise motivation for actions taken four decades ago during a war. Though the events of the episode were properly found by the Board of Immigration Appeals (BIA), the *449issue of motivation, on which the applicability of section 241(a)(19) turns, has not, in my view, been properly resolved by the Board, nor has Maikovskis been accorded a fair opportunity to participate in the resolution of that critical issue.
The key facts may be briefly summarized. In December 1941, while Germany and the Soviet Union were at war, Soviet partisans hiding in the Latvian village of Audrini, then under German occupation, killed at least two Latvian police officers. As a reprisal for those killings and as a warning to other villages not to harbor Soviet partisans, the Nazis ordered swift and brutal retaliation: All the villagers of Audrini, some 200 to 300 men, women, and children, were arrested and shot, and their village was burned to the ground. Boles-lavs Maikovskis, a Latvian native, had been installed by the Nazis as chief of a police precinct for the area that included Audrini. Maikovskis ordered his Latvian police officers to assist German soldiers in arresting the villagers and burning their town. It is. not clear whether he or his police officers played any role in shooting the villagers.
1. The merits of the section 241(a)(19) decision. The persecution charge presented the BIA with a difficult question of ascertaining motive. Were the Audrini villagers arrested and shot as an act of reprisal for the harboring of the partisans who had shot the Latvian policemen, or as a persecution of the villagers for the political opinions held by some of them, or for both reasons, .with political persecution of sufficient significance to satisfy the motivation requirement of the statute?
The BIA answered this difficult question with the following sentences:
The inhabitants of Audrini, who were Latvian, and whose faith was apparently Orthodox, were persecuted because Soviet partisans had been found hiding in the village. As a result of the fact that some of the villagers were apparently sympathetic to the Soviet cause, all were arrested, and eventually killed, and the village was burned. The dragnet was large, and no doubt encompassed some who were not sympathetic to the Communists, and who in fact may have held no political views at all. . Nevertheless, the actions carried out against the Audri-ni villagers were initiated because of the political opinions held by some of the inhabitants. Under these circumstances, we have no difficulty in concluding that the persecution in which [Maikovskis] assisted was based on political opinion and comes within the meaning of section 241(a)(19).
(citations omitted) (emphasis added).
As this critical excerpt makes clear, the BIA has made two findings as to motivation but offered no reasoned explanation as to how or whether the findings fit together. The first sentence says flatly that the persecution occurred “because Soviet partisans had been found hiding in the village.” These were the partisans who had shot the Latvian policemen. Thus the BIA finds that the persecution was an act of reprisal. Then the BIA says the action was “initiated because of the political opinions held by some of the inhabitants.” If true, this would be the political motivation required for deportation under section 241(a)(19). But the BIA has not offered a word of explanation to assist us in reviewing these two facially inconsistent findings. Indeed the BIA has not even recognized that its findings create an issue of dual motivation, nor provided any basis for determining how it resolved the issue, much less whether it did so in conformity with the standard enunciated in the majority opinion. Several possibilities come to mind. The action was essentially an act of reprisal, as the BIA first concludes. Or the action was essentially an act of political persecution with reprisal only a pretext for taking action against Communist sympathizers. Or the action was based on dual motivation with reprisal the initiating cause and political motivation the reason for the extent and severity of the reprisal action. Or the BIA has not fully appreciated the problem of dual motivation and has yet to determine precisely what its thinking is as to the *450extent to which political motivation prompted the action.
We have been given an inadequate basis for determining the correctness of the administrative decision. What little may be gleaned from the BIA’s account of the episode serves only to perpetuate uncertainty. For example, the BIA states, “The burning of the entire village of Audrini hardly served the claimed purpose of ferreting out and punishing only the guilty villagers.” That observation does not show that political motivation was present in addition to reprisal motivation; it simply fails to reckon with the brutality of wartime reprisals. If the Nazi occupiers had identified only the specific villagers who had harbored the partisans who had shot the policemen, retribution against these individuals would have been punishment, not reprisal. The whole point of wartime reprisal, offensive as it may be, is to inflict suffering and even death on innocent persons to deter others from future hostile acts out of concern for the plight of innocent victims.
A reasoned explanation could readily be supplied if the evidence showed that in some villages in Nazi-occupied territories retribution for harboring partisans who had shot local collaborators yms normally confined to guilty individuals, with mass reprisal action, such as that taken in Audri-ni, occurring only in communities with significant political sympathy for Communists or others opposed to the occupying regime. But we have no reason to believe that the BIA views the evidence in this light, and it is far from clear that such a conclusion would be warranted on this record.
I agree with the majority that the BIA need not find that political motivation was the “but for” cause of the Audrini massacre. Unlike dual motivation issues that arise in the context of adverse action based on both improper conduct and protected activity such- as exercise of First Amendment rights, see Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 g.Ct. 568, 50 L.Ed.2d 471 (1977), or rights under the National Labor Relations Act, see N.L.R.B. v. Charles Bat-chelder Co., 646 F.2d 33 (2d Cir.1981), there is no need to protect acts of wartime reprisal. Whatever the status of such actions under military or international law, we need not insist that political motivation be the “but for” cause of the persecution that is grounds for deportation under section 241(a)(19) since action taken in part as a wartime reprisal may properly be a basis for deportation without impairing any protected right of the alien. I therefore agree with the majority that' political opinion need be only a “major motivation” for the persecution that occurred at Audrini. However, I do not agree that the BIA has provided a reasoned explanation from which we can determine whether it has properly analyzed the problem of dual motivation presented by the ease and fairly determined that political opinions were a “major motivation” for the fate of the Audrini villagers.
2. Procedural fairness in reaching the section 241(a)(19) decision. In light of the importance of careful consideration by the BIA of the dual motivation issue, it is essential that Maikovskis be afforded a full and fair opportunity to challenge' before the BIA the Government’s contention that the political opinions of the Audrini villagers were a sufficient motivation for the massacre to justify deportation under section 241(a)(19). Regrettably, the actions of the Government denied Maikovskis that opportunity. The Audrini episode was withdrawn from the case as a basis for seeking to establish deportation under section 241(a)(19), and, on the administrative appeal by the Government to the BIA, no claim was made that the Audrini episode constituted grounds for finding Maikovskis deportable under that subsection. Mai-kovskis has thus been denied the most elemental aspect of due process — an opportunity to be heard.
As the case was initially presented to the Immigration Judge, the charge of deportation under section 241(a)(19) was sought to be supported by various specific allegations, three of which concerned the Audrini episode. The events at Audrini were included in Allegations 11, 12, and 13. After *451the hearing record was closed, the Immigration Judge met with counsel for both sides in an effort to clarify and, if possible, narrow the issues on which decision was required. At the conference the Government explicitly stated that it was not relying on the Audrini episode in support of Charge VI, the only charge brought under section 241(a)(19). The Immigration Judge made inquiry to pin the matter down:
The Immigration Judge: And you do not include 11, 12 and 13 ... right?
Counsel for the Government: That is correct.
A chart of the charges and those factual allegations relied on by the Government in support of the charges was prepared by the Immigration Judge and shows that Allegations 11, 12, and 13 formed no part of Charge VI. The Government has not claimed otherwise.
After the Immigration Judge ruled in favor of Maikovskis, the Government appealed to the BIA. The Government’s briefs before the BIA make it absolutely clear that it was not seeking deportation under section 241(a)(19) based on the Audri-ni episode. Having disclaimed reliance on Allegations 11, 12, and 13 in support of Charge VI before the Immigration Judge, the Government sought to have the BIA consider the Audrini episode solely in connection with the claim that Maikovskis should be deported as a person who was excludable under the Displaced Persons Act. Unlike section 241(a)(19), the Displaced Persons Act makes no mention of political motivation in describing persecution, participation in which renders a person excludable. In urging the BIA to find that Maikovskis was excludable under the Displaced Persons Act, the Government relied exclusively on section 2 of that Act, which bars from entry those who “assisted the enemy in persecuting civil populations.”1 The claim that Maikovskis was excludable under the Displaced Persons Act was set forth in Charges II, V, and VII, not Charge VI, the only charge that alleged deportability under section 241(a)(19). Having abandoned the Audrini episode as a basis for seeking deportation under section 241(a)(19), the Government made no argument whatever that the Au-drini massacre was motivated by any of the factors listed under section 241(a)(19). Indeed, responding to the Immigration Judge’s finding that the massacre had not been racially motivated, the Government argued that the persecution of the Audrini villagers “does not have to be based on race, religion or national origin. The inhabitants of Audrini were persecuted because they lived in Audrini.” Government’s Brief to the BIA at 22-23 (footnote omitted). The Government’s only claim about the Audrini episode on its appeal to the BIA was that Maikovskis’ conduct there made him “ineligible [for entry] under the DP [Displaced Persons] Act.” Id. at 57.
The majority does not challenge Mai-kovskis’s essential point that due process does not permit a government agency to abandon an allegation and later proceed against a person on the basis of that allegation. Instead, the majority maintains that the Government’s disclaimer does not require a remand of the section 241(a)(19) determination because Maikovskis originally had notice of the allegation and was not prejudiced by the subsequent disclaimer. With deference, I do not believe these considerations adequately reckon with the serious procedural flaw that has occurred. The notice recounted by the majority concerns the procedural stages of this case before the Government’s appeal to the BIA. It is true that Maikovskis initially had notice that the Audrini episode would be *452urged in support of Charge VI. That notice may well have alerted him to the need to place in the record his evidence in defense of Charge VI. But Maikovskis is not contending that he lacked a fair chance to present evidence; his point is that, after prevailing before the Immigration Judge, he lacked a fair chance to persuade the BIA, on the Government’s appeal, that the administrative record does not support a finding by the requisite standard of proof, see Woodby v. I.N.S., 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), that the Audrini episode was based on political motivation sufficient to satisfy section 241(a)(19). That opportunity was foreclosed by the Government’s action, first, in disclaiming any reliance on the Audrini episode in support of Charge VI, and, second, in pursuing the appeal to the BIA without any mention that the Audrini episode was being reclaimed as a basis for deportation under section 241(a)(19).
This absence of notice that political motivation for the events at Audrini would be at. issue on the appeal to the BIA cannot, in my view, be said to have caused Maikovsk-is no prejudice. Unless appellate advocacy, whether before judicial or administrative tribunals, is to be deemed worthless, what happened in this case denied Maikovskis a significant opportunity to present his side of the dual motivation issue, a matter, as I have indicated above, that is exceedingly troublesome. This is not simply a case where an agency has relied on a fact adequately supported by the record though not particularly emphasized by the Government during the process of administrative appeal. Here the key issue of political motivation was explicitly taken out of the case by the Government’s disclaimer before the Immigration Judge and kept out of the case on the appeal to the BIA.
In sum, this case should be returned to the BIA for further consideration of the section 241(a)(19) ground of deportation for two reasons: The BIA has not provided a reasoned explanation as to how it concluded that political opinions of the Audrini villagers were a sufficient motivation for the Audrini episode, beyond the BIA’s stated reason of wartime reprisal, to satisfy section 241(a)(19), and Maikovskis has not been accorded a fair opportunity before the BIA to present his side of. the political motivation issue. Perhaps, after notice to Maikovskis that political motivation will be the issue on the administrative appeal and despite his counsel’s argument, the BIA upon reconsideration could articulate a rationale for concluding that arresting and shooting all the villagers was not only an act of wartime reprisal but also a persecution based on their political beliefs. But such notice and opportunity to be heard have not yet been afforded, and Maikovskis should not be deported under section 241(a)(19) unless and until a procedurally and substantively valid decision has been made.
. Section 2 of the Displaced Persons Act of 1948 incorporated the definition of "displaced person” contained in Annex I of the Constitution of the International Refugee Organization (IRO). Act of June 25, 1948, 62 Stat. 1009 (1948), as amended by Act of June 16, 1950, 64 Stat. 219 (1950). The IRO Constitution precluded from “displaced person” status any person who "assisted the enemy in persecuting civil populations.” Section 13 of the Displaced Persons Act, as amended in 1950, prohibited the issuance of visas under the Act to any person who "assisted in the persecution of any person because of race, religion, or national origin." 64 Stat. 227.