FEDORENKO v. UNITED STATES
No. 79-5602
Supreme Court of the United States
Argued October 15, 1980—Decided January 21, 1981
449 U.S. 490
Brian M. Gildea argued the cause and filed a brief for petitioner.
Attorney General Civiletti argued the cause for the United States. On the brief were Solicitor General McCree, Assist-
JUSTICE MARSHALL delivered the opinion of the Court.
Section 340 (a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended,
*Briefs of amici curiae urging affirmance were filed by Phil Baum, Nathan Z. Dershowitz, and Marc D. Stern for the American Jewish Congress et al.; and by Harold P. Weinberger, Justin J. Finger, Jeffrey P. Sinensky, and Richard A. Weisz for the Anti-Defamation League of B‘nai B‘rith et al.
A
Petitioner was born in the Ukraine in 1907. He was drafted into the Russian Army in June 1941, but was captured by the Germans shortly thereafter. After being held in a series of prisoner-of-war camps, petitioner was selected to go to the German camp at Travnicki in Poland, where he received training as a concentration camp guard. In September 1942, he was assigned to the Nazi concentration camp at Treblinka in Poland, where he was issued a uniform and rifle and where he served as a guard during 1942 and 1943. The infamous Treblinka concentration camp was described by the District Court as a “human abattoir” at which several hundred thousand Jewish civilians were murdered.2 After an armеd uprising by the inmates at Treblinka led to the closure of the camp in August 1943, petitioner was transferred to a German labor camp at Danzig and then to the German prisoner-of-war camp at Poelitz, where he continued to serve as an armed guard. Petitioner was eventually transferred to Hamburg where he served as a warehouse guard. Shortly before the British forces entered that city in 1945, petitioner discarded his uniform and was able to pass as a civilian. For the next four years, he worked in Germany as a laborer.
In 1948, Congress enacted the Displaced Persons Act (DPA or Act), 62 Stat. 1009, to enable European refugees driven from their homelands by the war to emigrate to the United States without regard to traditional immigration quotas. The Act‘s definition of “displaced persons”3 eligible for immigration to this country specifically excluded individuals who had “assisted the enemy in persecuting civil [ians]” or had “voluntarily assisted the enemy forces . . . in their operations . . . .”4 Section 10 of the DPA, 62 Stat. 1013, placed the burden of proving eligibility under the Act on the person seeking admission and provided that “[a]ny person who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States.” The Act established an elaborate system for determining eligibility for displaced person status. Each applicant was first interviewed by representatives of the International Refugee Organization of the United Nations (IRO) who ascertained that the person was a refugee or displaced person.5 The ap-
In October 1949, petitioner applied for admission to the United States as a displaced person. Petitioner falsified his visa application by lying about his wartime activities. He told the investigators from the Displaced Persons Commission that he had been a farmer in Sarny, Poland, from 1937 until March 1942, and that he had then been deported to Germany and forced to work in a factory in Poelitz until the end of the war, when he fled to Hamburg.8 Petitioner told the same
In 1969, petitioner applied for naturalization at the INS office in Hartford, Conn. Petitioner did not disclose his wartime service as a concentration camp armed guard in his application,9 and he did not mention it in his sworn testimony to INS naturalization examiners. The INS examiners took petitioner‘s visa papers at face value and recommended that his citizenship application be granted. On this recommendation, the Superior Court of New Haven County granted his petition for naturalization and he became an American citizen on April 23, 1970.
C
Seven years later, after petitioner had moved to Miami Beach and become a resident of Florida,10 the Government filed this action in the United States District Court for the Southern District of Florida to revoke petitioner‘s citizenship. The complaint alleged that petitioner should have been deemed ineligible for a DPA visa because he had served as an armed guard at Treblinka and had committed crimes or atroc-
The Government‘s witnesses at trial included six survivors of Treblinka who claimed that they had seen petitioner commit specific acts of violence against inmates of the camp.12 Each witness made a pretrial identification of petitioner from a photo array that included his 1949 visa photograph, and three of the witnesses made courtroom identifications. The Government also called as a witness Kempton Jenkins, a career foreign service officer who served in Germany after the war as one of the vice consuls who administered the DPA. Jenkins had been trained to administer the Act and had re-
Jenkins testified that the vice consuls made the final decision about an applicant‘s eligibility for displaced person status.13 He indicated that if there had been any suggestion that an applicant “had served or been involved in” a concentration camp, processing of his application would have been suspended to permit a thorough investigation. Id., at 766. If it were then determined that the applicant had been an armed guard at the camp, he would have been found ineligible for a visa as a matter of law. Id., at 767-768, 822. Jenkins explained that service as an armed guard at a concentration camp brought the applicant under the statutory exclusion of persons who “assisted the enemy in persecuting civil [ians],” regardless of whether the applicant had not volunteered for service14 or had not committed atrocities against inmates. Id., at 768, 797-798. Jenkins emphasized that this interpretation of the Act was “uniformly” accepted by the vice consuls, and that furthermore, he knew of no case in which a known concentration camp guard was found eligible for a DPA visa.15 Id., at 767. Jenkins also described the elabo-
Petitioner took the stand in his own behalf. He admitted his service as an armed guard at Treblinka and that he had known that thousands of Jewish inmates were being murdered there. Id., at 1442, 1451-1452, 1465. Petitioner claimed that he was forced to serve as a guard and denied any personal involvement in the atrocities committed at the camp, id., at 1276, 1297-1298, 1539-1540; he insisted that he had merely been a perimeter guard. Petitioner admitted, however, that he had followed orders and shot in the general direction of escaping inmates during the August 1943 uprising that led to closure of the camp. Id., at 1507-1509, 1546, 1564. Petitioner maintained that he was a prisoner of war at Treblinka, id., at 1495, although he admitted that the Russian armed guards significantly outnumbered the German soldiers at the camp,16 that he was paid a stipend and received a good service stripe from the Germans, and that he was allowed to leave the camp regularly but never tried to escape. Id., at 1467-1471, 1489-1494, 1497, 1508.17 Finally, petitioner conceded that he deliberately gave false statements about his wartime activities to the investigators from the Displaced Persons Commission and to the vice consul who reviewed his visa application. Id., at 1518-1524.
The District Court entered judgment in favor of petitioner.
Turning to the question whether petitioner‘s false statements about his activities during the war were misrepresentations of “material” facts, the District Court, relying on our decision in Chaunt v. United States, 364 U. S. 350 (1960), held that the Government had to prove
“that either (1) facts were suppressed ‘which, if known, would have warranted denial of citizenship’ or (2) that their disclosure ‘might have been useful in an investiga-
tion possibly leading to the discovery of other facts warranting denial of citizenship.‘” 455 F. Supp., at 915 (quoting 364 U. S., at 355).
The District Court rejected the Government‘s claim that disclosure of petitioner‘s service as a concentration camp armed guard would have been grounds for denial of citizenship. The court therefore ruled that the withheld facts were not material under the first Chaunt test. The Government argued, however, that the second Chaunt test did not require proof that the concealed facts prevented an investigation that would have revealed facts warranting denial of citizenship. The Government contended instead that the second test merely required proof that аn investigation might have uncovered such facts and it argued that petitioner‘s concealment of his service at Treblinka fell within this test. The District Court conceded that the language of Chaunt was ambiguous enough to support the Government‘s interpretation of the second test. But relying on decisions by the United States Courts of Appeals for the Third and Ninth Circuits,20 the District Court rejected the Government‘s position and interpreted both Chaunt tests as requiring proof that “the true facts would have warranted denial of citizenship.” 455 F. Supp., at 916. Applying this test, the court ruled that petitioner‘s false statements were not “material” within the meaning of the denaturalization statute. In doing so, the court first rejected Jenkins’ testimony and held that petitioner was not ineligible for a DPA visa. The court concluded that petitioner did not come under the DPA‘s exclusion of persons who had assisted in the persecution of civilians because he had served involuntarily. Second, the court found that although disclosure of petitioner‘s service as a Treblinka guard “certainly would” have prompted an investigation into
As an alternative basis for its decision, the District Court held that even assuming that petitioner had misrepresented “material” facts, equitable and mitigating circumstances required that petitioner be permitted to retain his citizenship. Specifically, the court relied on its finding that the evidence that petitioner had committed any war crimes or atrocities at Treblinka was inconclusive, as well as the uncontroverted evidence that he had been responsible and law-abiding since coming to the United States. The District Court suggested that this Court had not previously cоnsidered the question whether a district court has discretion to consider the equities in a denaturalization case. The court reasoned that since naturalization courts have considered the equities in determining whether citizenship should be granted, similar discretion should also be available in denaturalization proceedings.
The Court of Appeals for the Fifth Circuit reversed and remanded the case with instructions to enter judgment for the Government and to cancel petitioner‘s certificate of citizenship. 597 F. 2d 946 (1979). Although the Court of Appeals agreed with the District Court that Chaunt was controlling on the question of the materiality of petitioner‘s false statements, it disagreed with the District Court‘s interpreta-
In applying its formulation of the second Chaunt test to the facts of the case, the Court of Appeals concluded that one part of the test was satisfied by the District Court‘s finding that the American authorities would have conducted an investigation if petitioner had disclosed that he had served as an armed guard at Treblinka. The Court of Appeals then found that Jenkins’ testimony and other evidence before the District Court clearly and convincingly proved that the investigation might have resulted in denial of petitioner‘s application for a visa23 and the Court of Appeals held that petitioner procured his naturalization “by misrepresentation and concealment of his whereabouts during the war years and his service as a concentration camp guard.” 597 F. 2d, at 953. The Court of Appеals further held that the District Court had erred in supposing that it had discretion to enter judgment in favor of petitioner notwithstanding a finding that
II
Our examination of the questions presented by this case must proceed within the framework established by two lines of prior decisions of this Court that may, at first blush, appear to point in different directions.
On the one hand, our decisions have recognized that the right to acquire American citizenship is a precious one, and that once citizenship has been acquired, its loss can have severe and unsettling consequences. See Costello v. United States, 365 U. S. 265, 269 (1961); Chaunt v. United States, 364 U. S., at 353; Baumgartner v. United States, 322 U. S. 665, 675-676 (1944); Schneiderman v. United States, 320 U. S. 118, 122 (1943). For these reasons, we have held that the Government “carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship.” Costello v. United States, supra, at 269. The evidence justifying revocation of citizenship must be “‘clear, unequivocal, and convincing‘” and not leave “‘the issue in doubt.‘” Schneiderman v. United States, supra, at 125 (quoting Maxwell Land-Grant Case, 121 U. S. 325, 381 (1887)). Any less exacting standard would be inconsistent with the importance of the right that
At the same time, our cases have also recognized that there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship “illegаlly procured,” and naturalization that is unlawfully procured can be set aside.
“An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. . . .”
“No alien has the slightest right to naturalization unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it . . . and demand its cancellation unless issued in accordance with such requirements.” United States v. Ginsberg, supra, at 474-475.
This judicial insistence on strict compliance with the statutory conditions precedent to naturalization is simply an acknowledgment of the fact that Congress alone has the constitutional authority to prescribe rules for naturalization,25 and the courts’ task is to assure compliance with the particular prerequisites to the acquisition of United States citizen-
Thus, what may at first glance appear to be two inconsistent lines of cases actually reflect our consistent recognition of the importance of the issues that are at stake—for the citizen as well as the Government—in a denaturalization proceeding. With this in mind, we turn to petitioner‘s contention that the Court of Appeals erred in reversing the judgment of the District Court.
III
Petitioner does not and, indeed, cannot challenge the Government‘s contention that he willfully misrepresented facts about his wartime activities when he applied for a DPA visa in 1949. Petitioner admitted at trial that he “willingly” gave false information in connection with his application for a DPA visa so as to avoid the possibility of repatriation to the Soviet Union.26 Record 1520. The District Court specifically noted that there was no dispute that petitioner “lied” in his aрplication. 455 F. Supp., at 914. Thus, petitioner falls within the plain language of the DPA‘s admonition that “[a]ny person who shall willfully make a misrepresentation for the purposes of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States.” 62 Stat. 1013. This does not, however, end our inquiry, because we agree with the Government27 that this provision only applies to willful misrepresentations about “material” facts.28 The first issue we must
examine then, is whether petitioner‘s false statements about his activities during the war, particularly the concealment of his Treblinka service, were “material.”
A
At the outset, we must determine the proper standard to be applied in judging whether petitioner‘s false statements were material. Both petitioner and the Government have assumed, as did the District Court and the Court of Appeals, that materiality under the above-quoted provision of the DPA is governed by the standard announced in Chaunt v. United States, 364 U. S. 350 (1960). But we do not find it so obvious that the Chaunt test is applicable here. In that case, the Government charged that Chaunt had procured his citizenship by concealing and misrepresenting his record of arrests in the United States in his application for citizenship, and that the arrest record was a “material” fact within the meaning of the denaturalization statute.29 Thus, the materiality standard announced in that case pertained to false statements in applications for citizenship, and the arrests that Chaunt failed to disclose all took place after he came to this country. The case presented no question concerning the lawfulness of his initial entry into the United States.
In the instant case, however, the events on which the Government relies in seeking to revoke petitioner‘s citizenship took place before he came to this country and the Govern-
It is, of course, clear that the materiality of a false statement in a visa application must be measured in terms of its effect on the applicant‘s admissibility into this country. See United States v. Rossi, 299 F. 2d 650, 652 (CA9 1962). At the very least, a misrepresentation must be considered material if disclosure of the true facts would have made the applicant ineligible for a visa. Because we conclude that disclosure of the true facts about petitioner‘s service as an armed guard at Treblinka would, as a matter of law, have made him ineligible for a visa under the DPA, we find it unnecessary to resolve the question whether Chaunt‘s materiality test also governs false statements in visa applications.
Section 2 (b) of the DPA, 62 Stat. 1009, by incorporating the definition of “[p]ersons who will not be [considered dis-
Our conclusion that petitioner was, as a matter of law, ineligible for a visa under the DPA makes the resolution of this case fairly straightforward. As noted, supra, at 506-507, our cases have established that a naturalized citizen‘s failure to comply with the statutory prerequisites for naturalization renders his certificate of citizenship revocable as “illegally procured” under
B
This conclusion would lead us to affirm on statutory grounds (and not on the basis of our decision in Chaunt), the judgment of the Court of Appeals. Petitioner argues, however, that in a denaturalization proceeding, a district court has discretion to consider the equities in determining whether citizenship should be revoked. This is the view adopted by the District Court but rejected by the Court of Appeals. It is true, as petitioner notes, that this Court has held that a denaturalization action is a suit in equity. Knauer v. United States, 328 U. S. 654, 671 (1946); Luria v. United States, supra, at 27-28. Petitioner further points to numerous cases in which the courts have exercised discretion in determining whether citizenship should be granted. See, e. g., In re Iwanenko‘s Petition, 145 F. Supp. 838 (ND Ill. 1956); Petition of R., 56 F. Supp. 969 (Mass. 1944). Petitioner would therefore have us conclude that similar discretion should be available to a denaturalization court to weigh the equities in light of all the circumstances in order to arrive at a solution that is just and fair. He then argues that if such power exists, the facts of this case, particularly his record of good conduct over the past 29 years and the reasonable doubts about some of the allegations in the Government‘s complaint, all weigh in favor of permitting him to retain his citizenship. Although petitioner presents this argument with respect to revocation of citizenship procured through willful misrepresentation of material facts, we assume that petitioner believes that courts should also be allowed to weigh the equities in
We agree with the Court of Appeals that district courts lack equitable discretion to refrain from entering a judgment of denaturalization against a naturalized citizen whose citizenship was procured illegally or by willful misrepresentation of material facts. Petitioner is correct in noting that courts necessarily and properly exercise discretion in characterizing certain facts while determining whether an applicant for citizenship meets some of the requirements for naturalization.39 But that limited discretion does not include the authority to excuse illegal or fraudulent procurement of citizenship. As the Court of Appeals stated: “Once it has been determined that a person does not qualify for citizenship, . . . the district court has no discretion to ignore the defect and grant citizenship.” 597 F. 2d, at 954. By the same token, once a district court determines that the Government has met its burden of proving that a naturalized citizen obtained his citizenship illegally or by willful misrepresentation, it has no discretion to excuse the conduct. Indeed, contrary to the District Court‘s suggestion, see supra, at 503, this issue had been settled by prior decisions of this Court. In case after case, we have rejected lower court efforts to moderate or otherwise avoid the statutory mandate of Congress in denaturalization proceedings. For example, in United States v. Ness, 245 U. S. 319 (1917), we ordered the denaturalization of an individual who “possessed the personal qualifications which entitle aliens to admission and to citizenship,” id., at 321, but who had failed to file a certificate of arrival as required by statute. We explained that there was “no power . . . vested in the naturalization court to dispense with” this requirement.
“An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon the terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare. United States v. Ginsberg, 243 U. S., at 474-475.
See Maney v. United States, 278 U. S., at 22-23; Johannessen v. United States, 225 U. S., at 241-242.
In sum, we hold that petitioner‘s citizenship must be revoked under
So ordered.
THE CHIEF JUSTICE concurs in the judgment.
JUSTICE BLACKMUN, concurring in the judgment.
I agree with much of the Court‘s reasoning as well as with the result it reaches. I am perplexed, however, by the Court‘s reluctance, ante, at 508-509, to apply the materiality standard of Chaunt v. United States, 364 U. S. 350 (1960), to petitioner‘s circumstances. I write separately to express my understanding that application of Chaunt would yield no different result here and to state my belief that a standard as rigorous as Chaunt‘s is necessary to protect the rights of our naturalized citizens.
In Chaunt, the issue presented was whether failure to reveal certain prior arrests in response to a question on a citizenship application form constituted misrepresentation or concealment
The Court says that Chaunt need not be invoked when denaturalization is premised on deliberate misstatements at the visa application stage, but does not explain why this is so. I fail to see any relevant limitation in the Chaunt decision or the governing statute that bars Chaunt‘s application to this case. By its terms, the denaturalization statute at the time of Chaunt, as now, was not restricted to any single stage of the citizenship process.2 Although in Chaunt the nondisclosures arose in response to a question on a citizenship application form filed some years after the applicant first arrived in this country, nothing in the language or import of the opinion suggests that omissions or false statements should be assessed differently when they are tendered upon initial entry into this country. If such a distinction was intended, it has eluded the several courts that unquestioningly have applied Chaunt‘s materiality standard when reviewing alleged distortions in the visa request process. See, e. g., Kassab v. Immigration & Naturalization Service, 364 F. 2d 806 (CA6 1966); United States v. Rossi, 299 F. 2d 650 (CA9 1962); Langhammer v. Hamilton, 295 F. 2d 642 (CA1 1961).
I doubt that the failure of these courts to raise any question about the relevance of Chaunt was an oversight. It is far from clear to me that the materiality of facts should vary because of the time at which they are concealed or misrepresented. Nor do I see why the events or activities underlying these facts become more or less material depending upon the country in which they transpired.3 In each context, the inquiry concerning nondisclosure addresses the same fundamental issue: did the applicant shield from review facts material to his eligibility for citizenship?
In Chaunt, the Court articulated two approaches to provide guidance and uniformity in such inquiries. The Court today adopts what it considers a new and minimal definition of materiality: it announces that a misrepresentation is material “if disclosure of the true facts would have made the applicant ineligible for a visa.” Ante, at 509. This standard bears no small resemblance to the “first test” of Chaunt, for it too deems material those facts “which, if known, would have warranted denial of” eligibility. 364 U. S., at 355. Because I see no effective difference between the standards, nor any persuasive grounds for contriving a difference, I would rely explicitly upon the Chaunt test here and avoid risking
Application of Chaunt to the instant record would not result in any significant departure from the Court‘s basic analysis. As the Court notes, ante, at 500, petitioner admitted at trial that he deliberately misrepresented his wartime activities and whereabouts when communicating with representatives of the Displaced Persons Commission during the visa application process. Record 1518-1522.5 The expert testimony of former Vice Consul Jenkins demonstrates convincingly that an applicant who had served as a concentration camp guard would not have qualified for a displaced person‘s visa.6 The determination to exclude persons who had assisted in persecuting civilians was grounded in a clear statutory mandate,7 and uncontroverted testimony established that
This test strikes a careful and necessary balance between the Government‘s commitment to supervising the citizenship process and the naturalized citizen‘s interest in preserving his status. The individual seeks to retain his citizenship right to full and equal status in our national community, a right conferring benefits of inestimable value upon those who possess it. The freedoms and opportunities secured by United States citizenship long have been treasured by persons fortunate enough to be born with them, and are yearned for by countless less fortunate. Indeed, citizenship has been described as “man‘s basic right for it is nothing less than the right to have rights,”9 and the effects of its loss justly have been called “more serious than a taking of one‘s property, or
The Chaunt decision is properly attentive to this long-recognized unique interest in citizenship, and I must join the Court in not accepting the reasoning of the Court of Appeals, which would have diluted the materiality standard. The Court of Appeals reasoned that materiality was established if the nondisclosed facts would have triggered an inquiry that might have uncovered other unproved and disqualifying facts. See 597 F. 2d 946, 950-951 (CA5 1979). By concluding that the Government has demonstrated the actual existence of disqualifying facts—facts that themselves would have warranted denial of petitioner‘s citizenship—this Court adheres to a more rigorous standard of proof. I believe that Chaunt indeed contemplated only this rigorous standard, and I suspect the Court‘s reluctance explicitly to apply it stems from a desire to sidestep the confusion over whether Chaunt created more than one standard.
Chaunt, to be sure, did announce a disjunctive approach to the inquiry into materiality, but several factors support the conclusion that under either “test” the Government‘s
Instead, I conclude that the Court in Chaunt intended to follow its earlier cases, and that its “two tests” are simply two methods by which the existence of ultimate disqualifying facts might be proved. This reading of Chaunt is consistent with the actual language of the so-called second test;13 it
Significantly, this view accords with the policy considerations informing the Court‘s decisions in the area of denaturalization. If nаturalization can be revoked years or decades after it is conferred, on the mere suspicion that cer
JUSTICE WHITE, dissenting.
The primary issue presented in the petition for certiorari was whether the Court of Appeals had properly interpreted the test articulated in Chaunt v. United States, 364 U. S. 350 (1960), for determining whether an individual procured his citizenship by concealment or misrepresentation of a “material” fact. In Chaunt the Government sought to revoke an
Recognizing that the relevance of Chaunt to visa applications may be problematic, the majority turns to a wholly separate ground to decide this case, resting its decision on its interpretation of “adopted” § 2 (a) of the Displaced Persons Act (see ante, at 510, n. 31). I am reluctant to resolve the issue of whether Chaunt extends to visa applications, since the parties have neither briefed nor argued the point. However, I am equally reluctant to adopt the course chosen by the majority, for the language of § 2 (a) is not entirely unambiguous,3 and the parties have not addressed the proper interpretation of the statute.4 Under these circumstances, I would
In Chaunt the Court stated that to prove misrepresentation or concealment of a material fact the Government must prove by clear and convincing evidence
“either (1) that facts were suppressed which, if known, would have warranted denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.” 364 U. S., at 355.5
Under the District Court‘s interpretation of the second Chaunt test and that urged by petitioner, the Government would be required to prove that an investigation prompted by a complete, truthful response would have revealed facts justifying denial of citizenship.6 The Court of Appeals and the Government contend that under the second Chaunt test the Government must prove only that such an investigation might have led to the discovery of facts justifying denial of citizenship.7 In my opinion, the latter interpretation is correct.8
In this case, the Government alleged that when petitioner filled out his application for citizenship, he willfully concealed that he had served as an armed guard for the Germans during the war. Petitioner failed to disclose this information, although the application form required him to list his past or present membership in any organization in the United States or elsewhere, including foreign military service. Although the Government produced evidence to support a finding of materiality under its interpretation of the second Chaunt test,9 the District Court concluded that petitioner‘s service as an armed guard for the Germans was immaterial under the District Court‘s interpretation of Chaunt. It also found that the nondisclosure was not willful.10
JUSTICE STEVENS, dissenting.
The story of this litigation is depressing. The Government failed to prove its right to relief on any of several theories advanced in the District Court. The Court of Appeals reversed on an untenable ground. Today this Court affirms on a theory that no litigant argued, that the Government expressly disavowed, and that may jeopardize the citizenship of countless survivors of Nazi concentration camps.
The seven-count complaint filed by the Government in the District Court prayed for a revocation of petitioner‘s citizenship on four different theories: (1) that his entry visa was invalid because he had misstated his birthplace and place of residence and therefore he had never been lawfully admitted to the United States; (2) that he committed war crimes or atrocities and therefore was not eligible for admission as a displaced person; (3) that he made material misstatements on his application for citizenship in 1970; and (4) that he was not a person of good moral character when he received his American citizenship. After a long trial, the District Court concluded that the Government had failed to prove its case.
The trial judge was apparently convinced that the suggestive identification procedures endorsed by the prosecution
The Court of Appeals reversed, holding that the District Court committed two errors of law. 597 F. 2d 946. First, the Court of Appeals held that the District Court in assessing the materiality of the misstatement in petitioner‘s 1949 visa application had misapplied this Court‘s decision in Chaunt v. United States, 364 U. S. 350; second, the Court of Appeals rejected the equitable basis for the District Court‘s judgment. The Court of Appeals did not, however, disturb any of the District Court‘s findings of fact.
Today the Court declines to endorse the Court of Appeals’ first rationale. Because the Chaunt test was formulated in the context of applications for citizenship, and because the only misstatements here were made on petitioner‘s visa application,3 the Court acknowledges that the Chaunt test is not
I cannot accept the view that any citizen‘s past involuntary conduct can provide the basis for stripping him of his American citizenship. The Court‘s contrary holding today rests entirely on its construction of the Displaced Persons Act of 1948 (DPA). Although the Court purports to consider the materiality of petitioner‘s misstatements, the Court‘s construction of the DPA renders those misstatements entirely irrelevant to the decision of this case. Every person who entered the United States pursuant to the authority granted by that statute, who subsequently acquired American citizenship, and who can be shown “to have assisted the enemy in persecuting civil populations“—even under the most severe duress—has no right to retain his or her citizenship. I believe that the Court‘s construction of the DPA is erroneous and that the Court of Appeals misapplied the Chaunt test.
I
Section 2 (a) of the DPA was “adopted” from the Constitution of the International Refugee Organization (see ante, at 510, n. 31), which described in Part II of Annex I “Persons who will not be [considered as displaced persons].” The second listing had two classifications:
“2. Any other persons who can be shown:
“(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or
“(b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.”
The District Court recognized that the section dealing with assisting enemy forces contained the word “voluntarily,” while the section dealing with persecuting enemy populations did not. The District Court refused to construe the statute to bar relief to any person who assisted the enemy, whether voluntarily or not, however, because such a construction would have excluded the Jewish prisoners who assisted the SS in the operation of the concentration camp. 455 F. Supp., at 913. These prisoners performed such tasks as cutting the hair of female prisoners prior to their execution and performing in a camp orchestra as a ruse to conceal the true nature of the camp. I agree without hesitation with the District Court‘s conclusion that such prisoners did not perform their duties voluntarily and that such prisoners should not be considered excludable under the DPA.4 The Court resolves the dilemma perceived by the District Court by concluding that prisoners who did no more than cut the hair of female inmates before they were executed could not be considered to be assisting the enemy in persecuting civilian populations. See ante, at 512-513, n. 34. Thus the Court would give the word “persecution” some not yet defined specially limited reading. In my opinion, the term “persecution” clearly applies to such conduct; indeed, it probably encompasses almost every aspect of life or death in a concentration camp.
The Court‘s resolution of this issue is particularly unper
The Government was apparently persuaded by the force of the District Court‘s reasoning. In the Court of Appeals the Government unequivocally accepted the District Court‘s
II
If the DPA is correctly construed, petitioner is entitled to retain his citizenship unless the Government proved that he made a material misstatement in his application for citizenship in 1970 or that he was ineligible for citizenship in 1970. Given the District Court‘s findings that he made no willful misstatement in 1970 and that he had not committed any crimes because his service at Treblinka was involuntary, the challenge to his citizenship rests entirely on the claim that he was not lawfully admitted to the United States in 1949 because he made material misstatements in his visa application. Even if the Chaunt test applies equally to visa applications and citizenship applications, I would hold that the Government failed to satisfy its burden under what I believe to be the proper interpretation of that test.
The Court and the parties seem to assume that the Chaunt test contains only two components: (1) whether a truthful answer might have or would have triggered an investigation, and (2) whether such an investigation might have or would
The Government in this case failed to prove that petitioner materially misrepresented facts on his citizenship application. Because I do not believe that “adopted” § 2 (a) of the DPA applies to persons whose assistance in the persecution of civilian populations was involuntary, and because the District Court found that petitioner‘s service was not voluntary, it necessarily follows that the Government failed to prove the existence of a disqualifying circumstance with respect to peti
The gruesome facts recited in this record create what Justice Holmes described as a sort of “hydraulic pressure” that tends to distort our judgment. Perhaps my refusal to acquiesce in the conclusion reached by highly respected colleagues is attributable in part to an overreaction to that pressure. Even after recognizing and discounting that factor, however, I remain firmly convinced that the Court has committed the profoundest sort of error by venturing into the unknown to find a basis for affirming the judgment of the Court of Appeals. That human suffering will be a consequence of today‘s venture is certainly predictable; that any suffering will be allayed or avoided is at best doubtful.
I respectfully dissent.
Notes
Title
“It shall be the duty of the United States attorneys ... to institute proceedings ... in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation . . . .”
The statute is § 340 (a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended,Historians estimate that some 800,000 people were murdered at Treblinka. See L. Dawidowicz, The War Against the Jews, 1933-1945, p. 149 (1975); R. Hilberg, The Destruction of the European Jews 572 (1978).
The District Court described Treblinka in this manner:
“It contained only living facilities for the SS and the persons working there. The thousands who arrived daily on the trains had no need for barracks or mess halls: they would be dead before nightfall. It was operated with a barbarous methodology—brutally efficient—and such camps surely fill one of the darkest chapters in the annals of human existence, certainly the darkest in that which we call Western civilization.” 455 F. Supp. 893, 901, n. 12 (SD Fla. 1978).
Except for the prohibition against “illegally procured” citizenship, added in 1961 by Pub. L. 87-301, § 18 (a), 75 Stat. 656, the statute today is unchanged from the version considered in Chaunt. Now, as then, it authorizes the initiation of denaturalization proceedings should the Government discover that the order admitting a person to citizenship was “procured by concealment of a material fact or by willful misrepresentation.” In accord with the Court‘s prior construction of this phrase, both the concealment and the misrepresentation must be willful, and each must also relate to a material fact. Ante, at 507-508, n. 28, citing Costello v. United States, 365 U. S. 265, 271-272, n. 3 (1961). Similarly, both the District Court and the Court of Appeals assumed that the Chaunt materiality test should be applied to the Government‘s claim that petitioner concealed material information when he applied for a visa.In view of the extensive references to Jenkins in the Court‘s opinion, some of the District Court‘s observations should be quoted:
“Unfortunately, and inexplicably, the Government did not find the Vice-Consul who approved defendant‘s application. . . .
“Jenkins’ testimony about the structure of the death camp organization was hardly expert and conflicts consistently with other evidence presented at the trial. For example, he testified that the Ukrainian guards had the same uniforms as the SS with only slightly different insignia. However, the unanimous testimony was the Germans wore their usual gray-green uniforms but the prisoner-guards didn‘t. He testified that the camp guards could get leave and get away from the camp and could transfer. The testimony was clear that they could not take leave (and go to Berlin, as Jenkins opined) but could only get a two-to-four-hour pass to visit a small village a couple of miles away.
“Jenkins also would have considered the kapos as excludable because they assisted the Germans. This is totally contrary to the reaction of every witness who survived Treblinka; each of the Israeli witnesses testified the kapos did only what they had to do and the witnesses were quite indignant when asked if they had ever testified against the kapos. The witnesses replied that there was no reason to do so. In addition, Jenkins speculated that the kapos were probably shot in 1945 during a period of retaliation, but the testimony was to the contrary.” Id., at 911-913.
In Count 4 of its complaint the Government alleged that petitioner did not truthfully answer the question on his citizenship application whether he had ever committed a crime. Having found that his service in Treblinka was not voluntary, the District Court concluded that petitioner‘s negative answer was truthful. In Count 5 of its complaint (as amended at a pretrial conference) the Government alleged that petitioner had a duty to disclose his guard service at Treblinka in answer to the following question:
“7. List your present and past membership in every organization, association, fund, foundation, party, club, society, or similar group in the United States and in any other place, and your foreign military service.”
The District Court concluded that because petitioner regarded himself as a prisoner of war, and because he had listed his Russian military service, this omission could not be considered willful. See id., at 917. That conclusion was certainly permissible; indeed it is arguable that the Treblinka guard service was neither the sort of “membership” in a club or organization nor the sort of “military service” that the question contemplated.
The IRO Constitution provided that the following persons would not be eligible for refugee or displaced person status:
“1. War criminals, quislings and traitors.
“2. Any other persons who can be shown:
“(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or
“(b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.” Annex I, Part II, 62 Stat. 3051-3052.
Confusion to some extent is already present. We granted certiorari in this case primarily to resolve conflicting interpretations of the Chaunt materiality standard. Compare United States v. Riela, 337 F. 2d 986 (CA3 1964), and United States v. Rossi, 299 F. 2d 650 (CA9 1962), with Kassab v. Immigration & Naturalization Service, 364 F. 2d 806 (CA6 1966), and Langhammer v. Hamilton, 295 F. 2d 642 (CA1 1961). The Government did not contend that § 2 (a) of the Displaced Persons Act should be interpreted as excluding persons who involuntarily assisted the enemy in persecuting civil populations. Rather, it argued that the finding that petitioner had “involuntarily” served as a concentration camp guard was clearly erroneous. It therefore urged us to affirm on the ground that the first Chaunt test had been satisfied. One particular squad of Jewish prisoners was responsible for undressing the aged and infirm prisoners and leading them to the lazaret, the eternally burning pit, where they were shot. Record 287 (Kohn). One of the prisoners who worked in the camp stated when asked whether this squad “assist[ed] in bringing [prisoners] to their death“: “We automаtically assisted, all of us, but . . . it was under the fear and terror.” Id., at 293 (Kohn).The Displaced Persons Act, 62 Stat. 1009, enabled refugees driven from their homelands during and after World War II to emigrate to the United States without regard to traditional immigration quotas. Eligibility was extended consistent with requirements set forth in Annex I to the Constitution of the International Refugee Organization of the United Nations. This excluded the following displaced persons from its ambit of concern:
“1. War criminals, quislings and traitors.
“2. Any other persons who can be shown:
“(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or
“(b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.” Annex I, Part II, 62 Stat. 3051-3052.
597 F. 2d 946, 951 (CA5 1979). We also note that Vice Consul Jenkins, upon whose testimony the Court heavily relies, indicated that he would have considered kapos to be ineligible under the DPA if they could be proved to be “internal camp inmate collaborators.” Id., at 828.The dissent in Chaunt proposed its own standard, which it apparently believed was at odds with what the Court had adopted:
“The test is not whether the truthful answer in itself, or the facts discovered through an investigation prompted by that answer, would have justified a denial of citizenship. It is whether the falsification, by misleading the examining officer, forestalled an investigation which might have resulted in the defeat of petitioner‘s application for naturalization.” Id., at 357. (Emphasis in original.)
The dissent also voiced concern that the Court, by imposing such a heavy burden of proof on the Government in denaturalization proceedings, in effect would invite dishonesty from future applicants for citizenship. Ibid. JUSTICE WHITE in dissent today expresses the same concern. Post, at 529. It of course is never easy to demonstrate the existence of statements or events that occurred long ago. Records and witnesses disappear, memories fade, and even the actor‘s personal knowledge becomes less reliable. While recognizing the arduous nature of the task, the Court nonetheless has insisted that the Government meet a very high standard of proof in denaturalization proceedings. Chaunt‘s rigorous definition of materiality, it is true, may occasionally benefit an applicant who conceals disqualifying information. Yet, practically and constitutionally, naturalized citizens as a class are not less trustworthy or reliable than the native-born. The procedural protection of the high standard of proof is necessary to assure the naturalized citizen his right, equally with the native-born, to enjoy the benefits of citizenship in confidence and without fear.
Jenkins testified as follows:
“Q If through investigation or interview you had determined that [a visa] applicant in fact did serve at a death camp . . . in occupied Poland as a Ukrainian Guard would you have denied the visa application?
“A Yes, I would.
“Q And in your expert opinion would such a person have qualified as an eligible displaced person?
“A No, he would not have.
“Q I may have asked this question, if I have permit me to ask it again, . . . are you aware of any case whatsoever in which an axis auxiliary who served in a capacity as a camp guard was ever legally qualified as a displaced person?
“A No, I am not. I am reasonably certain that there was no such case.
“Q Mr. Jenkins, referring to the last question and answer, would it have made any difference whatsoever to you as a visa officer if the person could have been proven to have been a guard but you could not prove that he committed an atrocity?
“A No.
“THE COURT: Why? Why?
“THE WITNESS: Because under the Displaced Persons Act and in the International Refugee Organization constitution by definition such a person could not be a displaced person.” Record 767-768.
On cross-examination, Jenkins was asked:
“Q Despite the apparent assumption that a guard at a concentration camp was there voluntarily, a non-German was there voluntarily, if a non-German guard came to you and said to you that his service there was involuntary would that guard have been eligible under the Displaced Persons Act and would he have been granted a visa?
“A I don‘t believe so. In the first place I can‘t imagine this hypothetical situation. And secondly, I think the language of the Act is so clear that participation or even acquiesce[nce] in really doesn‘t leave the vice consul that kind of latitude.
“THE COURT: . . . What is there about it that would make you think it was so clear that you had no latitude, if he had according to the hypothetical, persuaded you that his service as a guard was involuntary? How would that differ from involuntary service in the Waffen SS [Axis combat unit]?
“A Because the crime against humanity that is involved in the concentration camp puts it into a different category. . . .” Id., at 822-823.
The District Court refused to give conclusive weight to Jenkins’ testimony on this issue largely because it felt that Jenkins’ testimony did not recognize the “voluntariness” exception that the court read into § 2 (a). However, Jenkins’ testimony was in accordance with the plain language of the statute. Because the District Court mistakenly applied the law to the facts of this case in concluding that petitioner was lawfully admitted into this country, 455 F. Supp., at 915, we reject its conclusion.
The dissenting opinion of JUSTICE STEVENS argues that the Government “expressly disavowed” our interpretation of the DPA, post, at 530, and that the Government “unequivocally accepted” the District Court‘s construction of § 2 (a), post, at 535. Elsewhere, the dissent suggests that the District Court‘s construction is “the Government‘s interpretation of the statute,” post, at 536. The sole basis for these assertions is a fоotnote in the Government‘s brief in the Court of Appeals which merely stated: “The United States has no quarrel with [the District Court‘s] construction [of § 2 (a)] in this case” (emphasis added). In our judgment, none of the dissent‘s claims is borne out by this statement. The suggestion that the Government “unequivocally accepted” the District Court‘s interpretation of the Act is at best an exaggeration, and we have found no evidence in the record or briefs in this case of the Government‘s “express disavowal” of our construction of § 2 (a). Furthermore, being neither endowed with psychic powers nor privy to the Government‘s deliberations, we cannot join JUSTICE STEVENS, see post, at 535-536, in speculating about the reasons that the Government chose not to “quarrel with” the District Court‘s interpretation of § 2 (a) “in this case.”
As for JUSTICE STEVENS’ belief that our interpretation of the statute is “erroneous,” see post, at 533, we simply note that he is unable to point to anything in the language of the Act that justifies reading into § 2 (a) the “voluntariness” limitation that Congress omitted. Thus, we must conclude that JUSTICE STEVENS’ real quarrel is with Congress, which drafted the statute. It is not the function of the courts to amend statutes under the guise of “statutory interpretation.” See Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs, ante, at 274. Finally, since the term “persecution” does not apply to some of the tasks performed by concentration camp inmates, see n. 34, supra, we reject the speculation that our decision “may jeopardize the citizenship of countless survivors of Nazi concentration camps,” post, at 530 (STEVENS, J., dissenting).