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kins testified such information would have triggered an inquiry. Did the inquiry show his status there? If so, did the Vice-Consul apply the test that Jenkins had described, resolving the doubts to the benefit of the applicants? After all, doubts were resolved in favor of members of General Vlasov's army and their applications were approved. We can't be sure because the Government did not produce the ViceConsul to testify. Not only were the doubts often resolved in favor of applicants under the Displaced Persons Act, but the Supreme Court instructs the United States Courts to resolve the law "as far as is reasonably possible” in favor of the naturalized citizen. Schneiderman, 320 U.S. at 122, 63 S.Ct. at 1335. Therefore this court must resolve the doubt in favor of defendant as to Counts 1, 2 and 3. This court specifically holds that petitioner lawfully entered the United States.

Count 4 of the complaint charges defendant with giving a false answer to question number 6 on the application form for citizenship (form N-400). That question asks "Have you ever committed any crime, whether or not you were arrested? Inasmuch as the court has determined that the Government has failed to prove defendant's commission of any crimes, it cannot be said that defendant's answer was not truthful. Therefore the Government has failed to meet its burden as to Count 4.

Turning now to Count 5, question number 7 asked defendant to list membership in any organizations, including foreign military service. Defendant listed only Russian military service in 1941. Mr. Zimon, the naturalization examiner who used red markings to indicate his additions, added “labor union at work” as an organization of which defendant was a member.

The Government contends that defendant willfully failed to reveal his status as an armed guard for the Germans 26 in response to the question.

It is clear that defendant served only in the Russian army until his capture in 1941. Defendant has maintained that he was a prisoner of war until his surrender to the British. It is clear that he was transported from place to place and was obliged to obey orders under penalty of death and was not free to do whatever he chose. In view of the evidence the court concludes that there would be strong reason in defendant's mind to view himself as a prisoner of war; it therefore cannot be said that his omission was willful. United States v. Tooma, 187 F. Supp. 928 (E.D. Mich. 1960), United States v. Profaci, 274 F.2d 289 (2d Cir. 1960). Even if defendant clearly understood the question and willfully concealed the truth, the court must necessarily hold in accordance with the previous findings that the false answer was not proved to be material.

Counts 6 and 7 charge defendant with not being a person of good moral character for the five years preceding naturalization both because of the commission of atrocities and because he lied on his N-400 form.

Good moral character is a difficult term to define. As the Supreme Court has stated, "the term, by itself is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitude, experience and prejudices of the definer". Konigsberg v. State Bar of California, 353 U.S. 252, 263 (1957). Thus it has been consistently held that to meet the requirements for citizenship a petitioner's character must measure up to that of the average citizen in the community in which he resides. Brukiewicz v. Savoretti, 211 F.2d 541 (5th Cir. 1954). Although the immigration laws require proof of good moral character only for the five years preceding naturalization 27 conduct outside the statutory period is relevant and should be considered. 28

The evidence concerning Fedorenko's good conduct for 20 years in America is uncontroverted. In contrast, the evidence concerning defendant's conduct at Treb linka is fraught with conflict and uncertainty and is therefore inconclusive.

While it may be true that defendant was not completely candid in his interviews with Immigration officials, and that such “temporizing with the truth" should not be condoned, the court cannot find under the circumstances that defendant was guilty of the type of willful deceit which alone might justify a revocation of citizenship. It must be again emphasized that the bur is no longer on def to demonstrate his entitlement to citizenship. Berenyi, supra, but is on the Government to show clearly and convincingly that he is not. Chaunt, supra. The court therefore concludes that the Government has not met its burden as to Counts 6 and 7 of the complaint.

26 The complaint originally charged defendant with being a member of the German Army. It was amended at the pretrial conference.

17 $ 316(a) of the Immigration and Naturalization Act of 1952, 8 U.S.C. § 1427(a).

28 8 316(e), 8 U.S.C. § 1427(e) provides that the court may take into consideration as a basis for its determination the petitioner's conduct and acts at any time prior to that period.

THE EQUITIES INVOLVED-AN ALTERNATIVE BASIS FOR THE HOLDING Even if the court were to find that defendant had willfully concealed material facts in applying for citizenship, the court's inquiry would not stop there. This denaturalization proceeding is a suit in equity, Knauer v. United States, supra, and equity demands the weighing of the rights of the parties in light of all the circumstances in order to arrive at a decision which is fair and just.

The authority of the Government to take away citizenship fraudently or illegally procured has repeatedly withstood constitutional challenge. See Johannessen v. United States, 225 U.S. 227, 32 S.Ct. 613 (1912); Schneiderman v. United States, supra: Luria v. United States, 231 U.S. 9, 34 S.Ct. 10 (1913). Moreover, this right is ordinarily not subject to defenses of laches, Costello v. United States, 365 U.S. 265, 81 S.Ct. 534 (1961), estoppel, United States v. Ness, 245 U.S. 319, 38 S.Ct. 118 (1917) or res judicata, Johannessen v. United States, 225 U.S. 227, 32 S.Ct. 613 (1912). Of course, this does not mean that the Government's power to bring suit is not subject to any limitations. The grant of citizenship confers on the individual all the rights and privileges guaranteed by the Constitution, and the Government may not revoke that grant on the grounds that are arbitrary, punitive or discriminatory. See Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187 (1964); Rogers v. Bellei, 401 U.S. 815, 71 S.Ct. 1060 (1971).

The Supreme Court has held on several occasions that a certificate of citizenship shall be cancelled unless there has been strict compliance with the conditions imposed by Congress as prerequisites to the acquisition of citizenship. See Maney v. United States, 278 U.S. 17, 49 S.Ct. 17 (1928); United States v. Ness, 245 U.S. 319, 38 S.Ct. 118 (1917); United States v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422 (1917).

However, court decisions in the area of denaturalization must be considered in light of the economic and social concerns of the times, as well as the unique facts of each case.

Early in this century Congressional concerns in the area of immigration law focused on the economic and social problems created by an influx of immigrants. 29 The Immigration and Naturalization Act of 1906 instituted major procedural reforms in the administration of the laws in an effort to curb the widespread abuses occurring at that time.30 Thus many of the early denaturalization cases reflect the judicial concern for strict compliance with procedural requirements.31

During the war and post-war era of the 40's and 50's the cases take on a different posture, as the Supreme Court was faced with denaturalization suits in which the charge of illegality almost invariably was the claim that defendant was not “attached to the principles of the Constitution.”32

In this era the court was clearly concerned that citizenship not be revoked solely on the basis of one's political or ideological beliefs. Consequently the court began to exercise a virtually de novo right of review of lower court findings.33

Perhaps the most striking illustration of the scope of Supreme Court review is found in Nowak v. United States, 356 U.S. 660 (1957) where the court virtually dismissed the testimony of the witnesses and the findings of two lower courts. This case presents a startling contrast to the standards used in considering petitions for naturalization where the burden is on the petitioner. See, e.g., Berenyi v. District Director, Immigration and Naturalization Service, supra.

Similarly, the Court took a very hard look at the evidence in Chaunt v. United States, supra in order to conclude that the Government had not proven the significance of three minor arrests for membership in the Communist party, all omitted from defendant's application for citizenship.

In the late 50's and early 60's courts were faced with another category of cases as the Government began a program of seeking deportation of known or suspected underworld undesirables. 34

» For a detailed outline of the history of the immigration laws see the Legislative History of the Immigration and Naturalization Act of 1952; reported at [1952] U.S. Code Cong. & Ad. News, 1563-1674; 1674-1682.

30 See Gordon & Rosenfeld, Immigration Law & Procedure $ 20.1, 20-10 thru 20-11 (1975).

31 See, e.g., U.S. v. Ginsberg, 243 U.S. 472, 37 S.CT. 422 (1917); U.S. v. Ness, 245 U.S. 319, 38 S.Ct. 118 (1917); Johannssen v. U.S., 225 U.S. 227, 32 S.Ct. 613 (1912).

32 See, e.g., U.S. v. Schneiderman, 320 U.S. 118 (1943), Baumgartner v. U.S., 322 U.S. 665, 64 S.Ct. 1240 (1944), Knauer v. U.S., 328 U.S. 654, 66 S.Ct. 1304 (1946), Maisenberg v. U.S., 356 U.S. 670, 78 S.Ct. 960 (1958), Nowak v. U.S., 356 U.S. 660, 78 S.Ct. 955 (1958).

33 See Baumgartner v. U.S., 322 U.S. 665, 64 S.Ct. 1240 (1944). 3. See Shaughnessy v. U.S. ex rel. Accardi, 349 U.S. 280, 75 S.Ct. 746 (1955). Among the cases which appear to be part of the Government's effort are U.S. v. Montalbano, 236 F.2d 757 (3rd Cir. 1956) affirmed sub. nom. Genovese v. U.S., 352 U.S. 952 (1956) U.S. v. Anastasio, 226 F.2d 912 (3rd Cir. 1955); Corrado v. U.S. 227 F.2d 780 (6th Cir. 1955); U.S. v. Oddo, 314 F.2d 115 (2d Cir. 1963).

Thus in Costellos v. United States, 365 U.S. 265, 81 S.Ct. 534 (1961) the Court found no reason to apply the equitable principles of laches in favor of defendant.

A review of the Supreme Court decisions in denaturalization cases over the last few decades reveals no case in which the Court has been faced with the question of whether a district court has discretion to consider the equities in determining whether citizenship should be revoked after many years,

However, lower courts have exercised discretion in determining whether citizenship should be granted. For example in etition of R., 56 F. Supp. 969 (D. Mass. 1944) the court considered whether citizenship should be denied petitioner on the grounds that she had committed the crime of adultery. Judge Wyzanski observed that with respect to the requirement of showing good moral character: "Congress seems to have invited the judges to concern themselves not only with the technicalities of the criminal law, but also with the norms of society and the way average men of good will act. Id. at 971. The court went on to hold that under the circumstances the certificate of citizenship should be granted.

Similarly, in In Re Bespatow, 100 F. Supp. 44 (W.D. Pa. 1951) the court considered whether a conviction of manslaughter barred petitioner from citizenship. After examining the circumstances of the killing and considering petitioner's good behavior for 37 years, the court held that citizenship should be granted. Some courts have subsequently interpreted Section 101(f) of the Immigration and Nationality Act of 1952, 8 U.S.C. $ 1101(f) as a limitation on the court's discretion in determining good moral character.35

It is clear that in defining the statutory criteria, the courts continue to exercise discretion in order “to ameliorate hardship and injustice which otherwise would result from a strict and technical interpretation of the law." Wadman v. Immigration and Naturalization Service, 329 F.2d 812, 817 (9th Cir. 1964). See e.g. In re Briedis, 238 F. Supp. 149 (N.D. III. 1965); In Re Edgar, 253 F. Supp. 951 (E.Ď. Mich. 1966); Flumerfelt v. United States, 230 F.2d 870 (9th Cir. 1956).

Additionally, in In Iwanenko's Petition, 145 F. Supp. 838 (N.D. Ill. 1958), a case similar in many respects to the instant one and containing extensive facts outlining the fear of many Ukrainians about repatriation to the Soviet Union, the court did not stop with a technical analysis of whether petitioner's entry had been lawful under the Displaced Persons Act. Instead, the court went beyond technicalities to consider the humanitarian purposes of the law and concluded petitioner should not be excluded from citizenship.

Perhaps the best example of a court's applying an equitable and non-technical interpretation of the law is United States v. Rossi, 299 F.2d 650 (9th Cir. 1962). In that case the defendant had assumed the identity of his brother, a Chilean, so that he could circumvent the quota restrictions placed on Italian immigrants. As in this case, the government there argued that “the facts misrepresented were material to lawful entry and that Rossi was quilty of fraudulently misrepresenting them.Id. at 652. The court conceded that, “[m]anifestly, [Rossi's] intention was fraudulent.Id. However, the court looked for more than a technical violation of the law. It considered the heavy burden of proof placed upon the government by the Supreme Court in Schneiderman and Chaunt, and held that there had been an insufficient showing that permission to enter the country would have been withheld had the true facts been known.

If discretion may be exercised in a petitioner's favor in naturalization cases where the burden rests on petitioner, then surely the court can consider equitable and mitigating circumstances in a denaturalization case where doubts are to be resolved reasonably in favor of the citizen.

From the evidence and observing defendant for nearly three weeks in trial, the court concludes defendant is an unsophisticated man with very little education who is not only willing but anxious to work. He also is a man who is not interested in “making waves" or causing trouble. Unquestionably the Germans spotted these qualities in him and selected him for training as a guard.36

35 Gutierrez-Sosa v. Del Guercio, 247 F.2d 266 (9th Cir. 1957); Petition for Naturalization of 0

233 F. Supp. 504 (S.D.N.Y. 1964); In re C---C--- J--- P---, 299 F. Supp. ??? (N.D. II. 1969).

36 The court agrees with the assertion of defendant's counsel that Mr. Fedorenko wants to please and on cross-examination would finally give the answers he thought would please the questioner if the questions were slightly changed and the subject matter approached from a different angle. Consequently, the court tended to discount the later answer(s) given on a series of questions on the same subject on cross-examination. Despite the waiver of rights and the presence of an interpreter the court discounted the statement given the Immigration and Naturalization Service two years ago. With defendant's difficulty in communicating and his tendency to volunteer information that is harmful to his interest there was a pressing need for assistance of counsel.

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If the court were convinced that the allegations charging defendant with atrocities at Treblinka were true, there is no doubt that defendant would not be entitled to citizenship in a country which prides itself on its adherence to principles of equality and human dignity, and whose citizenry largely comprises descendants of immigrants who sought refuge from political oppression. However, this court must decide this case on the record before it and the strict burden of proof has not been met.37

The Court recognizes that “[a]n alien has no moral nor constitutional right to retain the privilege of citizenship if, by false evidence or the like, an imposition has been practiced upon the court, without which the certificate of citizenship could not and would not have been issued" Johannessen v. United States, 225 U.S. 227, 241 (1911). Nevertheless, where defendant has been a responsible citizen and resident for twenty-nine years, and the record as to his conduct thirty-five years ago is inconclusive, the court finds that the equities should be weighed in favor of defendant. Neither is the equitable balance tipped against defendant by his answers in 1945 and 1949. He was a victim of Nazi aggression, fearful of repatriation, many years and many miles from a home he thought to be empty of his wife and children, and was longing for a chance in America.

Because the Government has failed to meet its burden of proof judgment is entered for defendant. Under the circumstances of this case equitable considerations would also require the same result. DONE AND ORDERED this 25th day of July, 1978.

NORMAN C. ROETGEN Jr.
United States District Judge.

AUGUST 25, 1978. Hon. GRIFFIN B. BELL, Attorney General, Department of Justice, Washington, D.C.

DEAR MR. ATTORNEY GENERAL: Reports have reached me that deficiencies have become apparent in the preparation of the case of U.S. v. Demjanjuk, a denaturalization proceeding against an alleged Nazi war criminal now living in Cleveland, Ohio.

I wish to express my strong concern over the possible inadequate prosecution of this case. A repeat of the recent Fedorenko adverse decision to the government's case in Florida would nullify and gravely jeopardize the long and persistent efforts of this Subcommittee in ridding this country of these undesirable elements. Lack of preparation and a deep realization of the importance of these proceedings may have cost the government its decision in this case. We certainly would regret seeing this happen again.

The creation of a Special Litigation Unit within INS was established to bring expertise and organization to this project.

This Unit should be fully entrusted with these cases.

I would strongly urge you to place the direction of the proceedings of the DEMJANJUK case in the hands of the Special Litigation Unit. We cannot afford the risk of losing another decision. With best wishes. Sincerely,

JOSHUA EILBERG,

Chairman.

37 Because the court has not found defendant committed the atrocities the Government claims he committed at Treblinka, it is not necessary for the court to confront the issue of whether sufficient duress was shown (or could be shown, in the eyes of the law) by defendant to excuse such conduct. If the court had found that the Government met its burden of proof in establishing that defendant committed the alleged atrocities at Treblinka, when it would have been necessary for the court to have granted a continuance in order for defendant to present testimony of the Russian witnesses he claimed could exonerate him.

COMMITTEE ON THE JUDICIARY

U.S. HOUSE OF REPRESENTATIVES

Washington, D.C., September 21, 1978. Hon. GRIFFIN B. BELL, Attorney General, Department of Justice, Washington, D.C.

DEAR MR. ATTORNEY GENERAL: This is to express my deep and continuing concern over the Department of Justice's investigation and prosecution of alleged Nazi war criminals residing in the United States.

I have just reviewed the decision in the Fedorenko case and quite frankly, I am appalled by the government's handling of this particular case. As you know, we have received the invaluable assistance of the Israeli Government on all of our investigations; and I am extremely concerned that our government's treatment of the Israeli witnesses during the Fedorenko trial and the lack of proper witness preparation may jeopardize the future cooperation of that government.

I might add that Israeli officials and interested members of the Jewish community in this county have conveyed to me their strong sense of frustration and disap pointment concerning the recent course of events surrounding the litigation of other active cases.

There is a general feeling that the government attorneys assigned to prosecute the various denaturalization and deportation cases are incompetent and ill-prepared. Furthermore, I remain confused as to the function and responsibilities of the Special Litigation Unit, which was established to coordinate the investigation and prosecution of these cases. It was my understanding that this Unit would exercise total authority over the handling of these cases and that appropriate instructions were issued to the various U.S. Attorneys' Offices to clarify that arrangement.

Evidently, these instructions were never implemented and, as a result, the current relationship between the Special Litigation Unit and the various U.S. Attorneys' Offices is unclear at best.

Moreover, I remain deeply disturbed by the inordinate delays which were, and continue to be, encountered in: (1) bringing the pending cases to a just conclusion; (2) instituting new cases; (3) staffing the Special Litigation Unit; and (4) obtaining eyewitness testimony from persons residing in the Soviet Union.

For example, I have just learned that, despite my continuous urgings, no investigators are currently employed by the Special Litigation Unit. Secondly, it is regrettable that Justice Department lawyers have just recently returned from the Soviet Union, when you consider that I originally made such a request in April of 1977.

Such delays are totally unacceptable and are a clear indication that the Department of Justice and the Immigration and Naturalization Service do not appreciate the urgency and importance of the task confronting our government. Unless the Department gives its full support and cooperation to this serious matter, I am convinced that these cases will not be diligently investigated nor will they be properly and expeditiously prosecuted.

I would request you to personally review the entire situation and I am most anxious to receive your comments on how the concerns, which I have expressed herein, can be alleviated. With kind regards, Sincerely,

JOSHUA EILBERG,

Chairman.

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