Breyer v. Meissner

• Decision Date: 27 April 1999
• Docket Number: No. 98-1842,98-1842
• Citation: 214 F.3d 416
• Parties: (3rd Cir. 2000) JOHANN BREYER, APPELLANT V. DORIS MEISSNER, U.S. IMMIGRATION AND NATURALIZATION SERVICE Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 416

214 F.3d 416 (3rd Cir. 2000)

JOHANN BREYER, APPELLANT

V.

DORIS MEISSNER, U.S. IMMIGRATION AND NATURALIZATION SERVICE

No. 98-1842

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: April 27, 1999

Filed June 6, 2000

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 97-cv-06515) District Judge: Honorable William H. Yohn, Jr. [Copyrighted Material Omitted]

Willan F. Joseph, Esquire (Argued) 1831 Chestnut Street, Suite 1001 Philadelphia, PA 19103 Attorney for Appellant

David W. Ogden Acting Assistant Attorney General Civil Division Karen F. Torstenson Assistant Director Gretchen M. Wolfinger, Esquire (Argued) United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Attorneys for Appellee

Before: Scirica, Roth and MCKAY¹, Circuit Judges

OPINION OF THE COURT

Roth, Circuit Judge.

This case involves the interpretation of our immigration laws as they apply to Johann Breyer, a naturalized citizen who claimed, when faced with denaturalization, that he had been entitled to American citizenship by birth through his American-born mother. The statutes governing Breyer's claim to citizenship are S 1993 of the Revised Statutes of 1874 and a 1994 amendment to the Immigration and Naturalization Act ("INA"), S 101(c)(2) of the Immigration and Nationality Technical Corrections Act ("INTCA"). In our review, we consider whether these provisions discriminated against Breyer's mother on the basis of gender, in violation of the equal protection clause of the Fifth Amendment to the Constitution. Because we find that they did discriminate against the mother, we must then determine what effect Breyer's subsequent actions during World War II had on his claim to American citizenship.

I. Factual Background

Johann Breyer was born in Czechoslovakia on May 30, 1925, to an American mother and a foreign father. ² As a young man, Breyer joined the Waffen SS, a Nazi paramilitary group, and ultimately became a member of the SS Totenkopf Sturmbanne (Death's Head Battalion). As a member of the Death's Head Battalion, Breyer guarded concentration camps where inmates were enslaved, tortured, and executed because of race, religion, national origin, or political beliefs.

Breyer served at the Buchenwald concentration camp, in the Death's Head Battalion guard unit, from February 1943 to May 1944. At Buchenwald, Breyer accompanied prisoners to and from work sites and stood guard with a loaded rifle at the perimeter of the camp with orders to shoot any prisoner who tried to escape. In May of 1944, Breyer was transferred to the Auschwitz death camp, where he performed the same duties as he had at Buchenwald. In August of 1944, Breyer took a paid leave from his duties at Auschwitz and never returned to the camp.

While he denies that he personally tortured or murdered prisoners at Buchenwald and Auschwitz, Breyer does not now deny that he served in the Death's Head Battalion. In May of 1951, however, when Breyer applied for a visa to immigrate to the United States under the Displaced Persons Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009, as amended by Pub. L. No. 81-555, 64 Stat. 219 (1950) ("the Act"),³ he did not disclose that he had served in the Death's Head Battalion. Breyer did, however, admit to having been a member of the Waffen SS. His visa application initially was rejected because of this membership. Subsequently, however, the criteria changed so that membership in the Waffen SS was no longer a bar to qualifying as a displaced person. Thus, on March 28, 1952, the United States Displaced Persons' Commission certified Breyer eligible for a visa as a displaced person.

Breyer then applied to immigrate to the United States as an alien under the Act. He was granted an immigrant visa and entered the United States in May 1952. Breyer filed a petition for naturalization in August 1957. On November 7, 1957, Breyer was naturalized as a United States citizen.

II. Procedural History

On April 21, 1992, the United States filed a five-count complaint against Johann Breyer in the United States District Court for the Eastern District of Pennsylvania under S1451(a) of the INA, as amended, 8 U.S.C.SS 1101 et seq. The complaint was filed to revoke Breyer's naturalized United States citizenship on the grounds that it was illegally procured (Counts I, II, III, IV) or was procured by concealment or willful misrepresentation (Count V). ⁴ The government sought to denaturalize Breyer because of his service as an armed SS guard at Buchenwald and Auschwitz.

Breyer conceded that he was ineligible for displaced person's status as a result of his war time activities. Nevertheless, he contended that he could not be denaturalized because, when he entered this country in 1952, he did so lawfully, as a United States citizen. Breyer asserted that he derived citizenship at birth through his mother who, he claimed, was born in Philadelphia, Pennsylvania.

On October 30, 1992, Breyer filed an Application for Certificate of Citizenship with the Immigration and Naturalization Service (INS). In his application, Breyer claimed citizenship through his mother, pursuant to S 1452(a) of the INA. Soon thereafter, in the District Court action, the government filed a motion for summary judgment, seeking Breyer's denaturalization.

On July 7, 1993, the District Court granted partial summary judgment in the government's favor, denaturalizing Breyer. At the same time, the District Court considered Breyer's claim of citizenship through his mother under the equal protection clause and found that S 1993 was unconstitutional as applied to Breyer because, at the time of Breyer's birth, it conferred citizenship to foreign born offspring of American fathers but not to those of American mothers. The District Court abstained from declaring Breyer a United States citizen, however, until after the trial on the issue of Breyer's citizenship through his mother. United States v. Breyer, 829 F. Supp. 773 (E.D. Pa. 1993) (Breyer I ).

The District Court held a four day bench trial to determine the birth place of Breyer's mother and found that she had, indeed, been born in the United States. The court held that the remedy for the unconstitutionality of S 1993, as applied to Breyer, was to include mothers under the statute retroactively. Nevertheless, the District Court abstained from declaring Breyer a citizen because he had not exhausted his administrative remedies. His Application for Certificate of Citizenship was pending before the INS. The District Court then canceled Breyer's certificate of naturalization. The court concluded, however, that if Breyer were ultimately declared a citizen by birth, his certificate of naturalization would be an extraneous document and its revocation would have no effect on his standing as a United States citizen. United States v. Breyer, 841 F. Supp. 679, 686 (E.D. Pa. 1993) (Breyer II ).

On December 29, 1993, Breyer filed a motion with the District Court for relief from the judgment and a motion to alter or amend the judgment, both of which were denied. Breyer appealed the denial. On appeal, we affirmed, inter alia, the District Court's cancellation of Breyer's certificate of naturalization, based on our finding that his war time activities disqualified him from being considered a "displaced person." United States v. Breyer, 41 F.3d 884, 890-91 (3d Cir. 1994) (Breyer III). We also concluded that the District Court had exceeded its jurisdiction by considering Breyer's derivative citizenship claim. We found that the court should have limited its review to the question of whether Breyer's naturalization certificate had been improperly obtained. Id. at 892.

Subsequently, the INS denied Breyer's Application for Certificate of Citizenship. He appealed the denial to the Administrative Appeals Unit ("AAU") of the INS, which upheld the INS's initial decision. Breyer appealed the AAU's decision, and on December 30, 1996, the AAU issued a final denial of Breyer's request for citizenship.

On January 22, 1997, the INS and the Office of Special Investigations ("OSI") of the United States Department of Justice instituted deportation proceedings against Breyer. Breyer was found deportable by an immigration judge on December 15, 1997.

On October 21, 1997, Breyer filed a Petition for Declaratory Judgment in the District Court for the Eastern District of Pennsylvania, requesting review of the AAU's denial of his application for citizenship. In the petition, Breyer claimed that he was entitled to citizenship, based on his mother's status as a citizen of the United States. The petition was amended on December 15, 1997, to include claims, inter alia, that the OSI had intentionally misled the District Court during prior proceedings regarding alleged material misrepresentations made by Breyer in his naturalization application and that the decision of Breyer's former counsel not to contest the OSI's summary judgment motion was not authorized by Breyer. In a second motion to amend, filed on April 14, 1998, Breyer requested leave to add other defendants and claims pursuant to 42 U.S.C. SS 1983 and 1985. These claims alleged, inter alia, that there had been improper lobbying and delay and that S 101(c)(2) was a bill of attainder. The Commissioner of the INS moved to dismiss Breyer's petition for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). The Commissioner also opposed Breyer's motion to amend his petition a second time.

On August 27, 1998, the District Court granted the Commissioner's motion to dismiss Breyer's petition. Breyer v. Meissner, 23 F. Supp. 2d 521 (E.D. Pa. 1998) (Breyer IV). On August 28, the District Court denied Breyer's second motion to amend his petition. Breyer v. Meissner , 23 F. Supp. 2d 540 (E.D. Pa. 1998) (Breyer V). We will consider both orders on this appeal.

III. Jurisdiction and Standard of Review

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