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under this Act, we were unable to locate any discussion of the reasons for the inclusion of this language.
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33-762 O 79 12
STEP-BY-STEP PROCEDURE FOR REVOCATION OF CITIZENSHIP AND DEPORTATION OF NATURALIZED CITIZENS
(1) District Director having jurisdiction over the area where the naturalized citizen resides reviews the evidence and reports to Regional Commissioner.
(2) Regional Commissioner prepares "affidavit of good cause" stating why action should be taken to denaturalize (remove the citizenship) of the naturalized citizen. (3) Affidavit of good cause is forwarded to the General Counsel of the Immigration Service and INS headquarters in Washington.
(4) INS General Counsel recommends to Justice Department Criminal Division that proceedings be initiated to revoke citizenship.
(5) Criminal Division, if it concurs in the recommendation, advises U.S. Attorney having jurisdiction over the area where the naturalized citizen resides to file a suit in U.S. District Court seeking to have the naturalization revoked.
(6) Naturalized citizen has full rights of appeal through judicial system. (If successful in having citizenship revoked, INS then must initiate separate proceedings to deport the alien).
STEP-BY-STEP PROCEDURE FOR DEPORTATION PROCEEDINGS AGAINST ALIENS
(1) An "Order to show cause" is issued by the Immigration Service District having jurisdiction over the area where the alien resides. The document describes the charges against the alien and sets forth the legal basis as to why the individual is deportable. The alien is instructed to report to the Immigration Service office on a specified date for a hearing on the charges before an administrative hearing officer, (immigration judge).
(2) Hearing is held, with the burden of proof on the Government to show that the alien is deportable. Deportability must be shown by clear, covincing and unequivocal evidence (as set forth by the Supreme Court).
(3) The hearing officer renders a decision.
(4) The decision can be appealed by either the alien or the Government to the Board of Immigration Appeals. The Board is composed of a five-man panel within the Justice Department. It is not under the jurisdiction of the Commissioner of Immigration.
(5) If the Board rules against the alien, he can obtain judicial review before the U.S. Circuit Court of Appeals. The petition for judicial review results in an automatic stay of execution of the deportation order. The Government cannot appeal an adverse ruling by the Board.
(6) If the Court of Appeals rules against the alien, he may petition the Supreme Court to review the decision.
(7) When appeals through the court system have been exhausted, the Immigration Service approaches the country to which the alien is to be deported requesting that his return be accepted. (Inquiries may have been initiated earlier on this matter.) (8) When a country agrees to accept return of the alien, he is removed to that nation at U.S. Government expense.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA, Plaintiff,
FEODOR FEDORENKO, Defendant.
Case No. 77-2668-Civ-NCR
The Government seeks to strip defendant of his American citizenship granted in 1970. Basically the Government charges that defendant lied on his application for a visa in 1949, particularly in not disclosing he served as a guard at the death camp at Treblinka during World War II. Further, the Government charges he participated in atrocities at Treblinka, precluding him from having the good moral character necessary to become an American citizen. Defendant, originally a Ukrainian, contends that he was not a guard voluntarily but he was forced to be one as a prisoner
of war of Nazi Germany and denies committing any atrocities at Treblinka or elsewhere.1
DEFENDANT'S CONDUCT IN AMERICA
Defendant Fedorenko came to America in 1949 and has been a respectable resident ever since. Following his arrival he worked on a farm in Connecticut. After a year he worked in a factory in Waterbury and then went to work for Scovill, a manufacturer of brass and copper products; he worked there, usually as a foundry worker, for 20 years until his retirement. He was emphatically described by fellowworkers at Scovill as an "excellent" worker who did not speak unkindly of anyone; that he was so good a worker he had no problems and was a "real gentleman" with no apparent prejudices of any type. The union representative at Scovill testified strongly as to his reliability and performance-a man who never put in a grievance and never had one filed against him. His foreman described defendant as a man who did his job well and cheerfully-a very conscientious and a very good worker.2 The court accepts these appraisals as accurately reflecting defendant's work-life and personal life for 29 years.
The defendant married while in America but his American wife has died. For background: until the early 1960's defendant believed his wife and two children in Russia had been killed during World War II. He had been so advised at a prisoner of war camp by two brothers from his town. He has since discovered his wife and sons are alive and living in Crimea; he has visited them in the 1970's. His only schooling was in his native Ukraine for three years from the years 1915 to 1918, during the defeat and collapse of czarist Russia.
Defendant has retired on a social security pension and a pension from his 20 years labor at Scovill. He doesn't own a car; he doesn't own a house; he owns no real estate except a cemetery lot, and he has burial insurance policy. He has accumulated a life savings of $5,000 but owes his attorney an unknown fee for a trial which lasted 14 days. He has never been arrested in 29 years-not even for a traffic offense. His one failure as a resident and citizen in 29 years: he received one parking ticket. Feodor Fedorenko has been a hard-working and responsible American citizen.
VENUE AND PRELIMINARY MATTERS
This suit was instituted in August, 1977 while defendant was a resident in Miami Beach, pursuant to the requirement of 8 U.S.C. § 1451(a) that suit be filed "in the district in which defendant resides." Defendant challenged venue on the grounds that his presence in Miami Beach, where he was then living, was only temporary and that his permanent residence was in Waterbury, Connecticut. The court denied defendant's motion to transfer, holding that venue properly lay in the Southern District of Florida.3
However, in an effort to alleviate defendant's claim of financial hardship in producing witnesses in Florida the court-through the gracious hospitality of the United States District Court for the District of Connecticut-held a portion of the trial in Waterbury. Although the hearing in Connecticut was originally scheduled to follow presentation of the Government's case in Fort Lauderdale in April, the Government's case was postponed until late May and June because of a recent appearance by Florida defense counsel.5
Consequently, part of defendant's case was heard out of turn prior to the presentation of the Government's case in Fort Lauderdale without objection by either side. Two government witnesses also testifed in Waterbury without objection, as a convenience to the witnesses.
1 This memorandum opinion contains the court's findings of fact and conclusions of law in compliance with Rule 52, F.R.C.P. In addition, the court has included considerable detail about the evidence because of the extensive review of evidence afforded to the Supreme Court and Court of Appeals in denaturalization cases. U.S. v. Nowak, 356 U.S. 660, 78 S. Ct. 955 (1958) and others. Further, the court has added observations to give the flavor of the trial as well. 2 The only reference to World War II by defendant any fellow worker remembers was when he cried about the loss of his wife and sons.
Although the Government produced only minimal proof to justify denial of the motion, defendant admitted at trial that he was a resident of Miami Beach from August 1976 to September 1977 after suit was filed.
The court appointed itself a special master under Rule 53 F.R.C.P. for the purpose of holding a hearing and receiving evidence in Waterbury. The parties stipulated that the evidence be received without the necessity of filing the report and further that it could be considered as if it had been presented at trial.
* Defendant's initial counsel, Brian Gildea of New Haven, was permitted to withdraw after Gregg Pomeroy of Fort Lauderdale filed his appearance. However, Mr. Gildea assisted at the hearing in Connecticut.
A second problem developed prior to trial with regard to the Government's obtaining testimony of foreign witnesses. Early in November 1977, the court learned of the Government's intention to take depositions out of the country. Because it was concerned that the Government might intend to produce only deposition testimony of foreign witnesses, the court sua sponte entered an order prohibiting the use of deposition testimony at trial in order to enable the court to observe the witnesses' faces, body language and reactions in the courtroom, particularly in the presence of defendant and also his reactions to their testimony. The court felt that in-court testimony would be particularly critical in view of possible identification problems and the passage of 35 years since the events complained of at Treblinka. In addition, depositions taken by the Government in Israel almost surely would not have provided cross-examination. In compliance with the court's order the Government was compelled to bring its witnesses from Israel to Fort Lauderdale."
CHARGES AND DEFENSES
Title 8 U.S.C. § 1451(a) provides that for good cause shown the United States Attorney shall institute proceedings to set aside an order admitting a person to citizenship and cancel the certificate of naturalization on the grounds that such order and certificate were "illegally procured or were procured by concealment of a material fact or by willful misrepresentation" and concealment as grounds for denaturalization.
In Count 1 the Government charges that defendant gave false information in his application for Immigration Visa and Alien Registration, and that his citizenship was therefore "illegally procured" because he was never lawfully admitted to the United States.
Counts 2 and 3 allege that defendant was not admissible to the United States under the Displaced Persons Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009, nor was he otherwise admissible under the Immigrations Laws and Orders and Regulations issued thereunder because he participated in the commission of crimes and atrocities against civilians in the Treblinka concentration camp during 1942-43.
Count 4 alleges that defendant wilfully failed to disclose the commission of crimes at Treblinka in response to question No. 6 on his Application to File Petition for Naturalization (Form N-400).
In Count 5 the Government charges that defendant wilfully failed to disclose his service as an armed guard for the Germans in response to question No. 7 on the N-400 form.
Finally, Counts 6 and 7 allege that defendant lacked the good moral character required to become a citizen by virtue of his commission of atrocities at Treblinka and the giving of false statements with request to questions No. 6 and No. 7 as alleged in Counts 4 and 5.
Defendant Fedorenko in his answer raised the special defenses of waiver and estoppel, improper venue, and the statute of limitations. Primarily defendant contended that the long passage of time between the incidents at issue and the institution of this law suit served to bar the Government from proceeding. The defense of improper venue was based on the allegation that defendant did not reside in Florida at the commencement of this law suit.
At trial, defendant virtually abandoned these special defenses; instead he denied generally having committed atrocities or crimes against humanity while a prison guard at Treblinka. Also, defendant sought to establish that his service as a guard at Treblinka and elsewhere was performed involuntarily while he was himself a prisoner of war.
"The court in its order suggested that if the Justice Department wished to bear the expense of defendant and his counsel, and the court's as well, to hear testimony of the Israeli witnesses at some neutral site such as Athens or Istanbul, the court would be willing to do so as a Special Master. The Justice Department declined but the court has since been informed by Government counsel at the pretrial conference that it would have been more economical for them to have done so inasmuch as they brought ten witnesses from Israel for the purposes of trial and most insisted on bringing their spouses as a condition of testifying.
Subsequent to the court's order regarding witnesses' testimony, the Judicial Conference of the United States passed a resolution at the March 1978 meeting prohibiting United States Courts from holding court outside the United States. In view of the expense problem of the Israeli witnesses, as well as the much more critical problem of obtaining testimony of the Russian witnesses discussed subsequently in this opinion, this court must respectfully suggest that special circumstances might justify authorization for a United States District Court to hold evidentiary hearings outside the United States for trial purposes.
BURDEN OF PROOF
Because of the importance of a loss of citizenship to the individual, a denaturalization proceeding is a most sensitive trial.
Thus, the burden of proof in denaturalization cases has been clearly stated by the Supreme Court in Nowak v. United States, 356 U.S. 660, 663, 78 S.Ct. 955, 957 (1958), as follows:
Where citizenship is at stake the Government carries the heavy burden of proving its case by "'clear, unequivocal, and convincing' evidence, which does not leave 'the issue in doubt'* '* * *." Schneiderman v. United States, 320 U.S. 118, 158, 63 S. Ct. 1333, 1352, 87 L.Ed. 1796. "Especially is this so when the attack is made long after the time when the certificate of citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness." Id. 320 U.S. at pages 122-123, 63 S.Ct. at page 1335.
As the Supreme Court has stated:
[Denaturalization cases] are extremely serious problems. They involve not only fundamental principles of our political system designed for the protection of minorities and majorities alike. They also involve tremendously high stakes for the individual. For denaturalization, like deportation, may result in the loss "of all that makes life worth living." (citation omitted) Knauer v. United States, 328 U.S. 654, 659, 66 S.Ct. 1304, 1307 (1947).
PUBLISHED POLICY CONCERNING DENATURALIZATION CASES
A failure to follow the published policy of the Department of Justice does not bar the bringing of the suit. United States v. Nelligan, 573 F.2d 251 (5th Cir. 1978). However, it is interesting to observe the policy of the Department of Justice with respect to bringing denaturalization cases:
In the opinion of the department, as a general rule, a good cause is not shown for the institution of proceedings to cancel certificates of naturalization alleged to have been fraudulently or illegally procured unless some substantial results are to be achieved thereby in the way of betterment of the citizenship of the country."
The court cannot help but question the application of this policy towards defendant in view of his 29 years of lawful conduct-except for one parking ticket-and hard work here in America.
The court observed at the trial and iterates it here: never in six years on the bench has the court seen the Government indulge in such expenses as daily copy of the reporter's transcript of testimony or having four lawyers at the Government's counsel table Such expenditures of the taxpayers' treasure and talent have not occurred in this court's previous cases such as the prosecution of an alleged Mafia don, a continuing criminal enterprise case, the only dangerous special offender indictment in this district for the reputed salaried slayer for a narcotics importation gang which was responsible for at least 26 murders in the South Florida area according to the testimony in the District Court in Miami, as well as many other serious prosecutions. Clearly the expenditure of the resources of the Executive Branch lies within the discretion of that branch of the Government. However, the court must venture that in view of the similarity in the burden of proof between criminal cases and denaturalization cases, and in view of what is at stake for the naturalized American citizen, the defendant in a denaturalization case ought to have the same resources that are provided a defendant in a criminal case under the Criminal Justice Act; in short the naturalized citizen-provided the defendant's financial condition warrants it-should receive the benefit of court-appointed counsel and other experts at the Government's expense.
'The statement of policy continues, as follows: The legislation referred to, being retroactive, is construed to be remedial rather than penal in its nature; for the protection of the body politic rather than for the punishment of the individuals concerned. Ordinarily, nothing less than the betterment of the citizenship of the country should ber regarded as sufficient to justify the disturbance of personal and property rights which cancellation proceedings may occasion. This does not mean that such proceedings should not be instituted in any case where willful and deliberate fraud appears, as the perpetration of such fraud would indicate lack of the moral qualifications necessary for citizenship. If, however, many year have elapsed since the judgment of naturalization was apparently so procured, and the party has since conducted himself as a good citizen and possesses the necessary qualifications for citizenship, cancellation proceedings should not, as a rule, be instituted. Dept. of Justice Circular Letter No. 107 (Sept. 20, 1909), reprinted in Immigration and Naturalization Service Handbook at 6508, 08.1.
In addition, the Government which bears the expense of translators, hired two Russian translators for defendant's testimony. The extra one sat behind Government counsel's tableanother first.
The Government neither provided a copy of the daily transcript to defendant nor did it offer to provide a "back-up" translator when the Israeli witnesses testified.