438 F.3d 785 (7th Cir. 2006), 05-2972, United States v. Kumpf

Docket Nº:05-2972.
Citation:438 F.3d 785
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Josias KUMPF, Defendant-Appellant.
Case Date:February 23, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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438 F.3d 785 (7th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Josias KUMPF, Defendant-Appellant.

No. 05-2972.

United States Court of Appeals, Seventh Circuit.

February 23, 2006

Argued Dec. 7, 2005.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 03 C 944 –Lynn Adelman, Judge.

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Stephen Paskey (argued), Department of Justice, Office of Special Investigations, Washington, DC, for Plaintiff-Appellee.

Peter M. Rogers (argued), Rogers & Rogers, Pittsburgh, PA, for Defendant-Appellant.

Before EASTERBROOK, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge.

During World War II, Josias Kumpf was a member of the Waffen Schutzstaffel and a guard at Nazi concentration camps. In 1956, without disclosing this service, Kumpf obtained a visa to enter the United States, entered the country, and later obtained citizenship. The government, after discovering Kumpf's past, brought suit seeking his denaturalization, alleging that he improperly obtained a visa and illegally procured citizenship. The district court granted the government's motion for summary judgment and revoked Kumpf's citizenship. Kumpf appeals. We affirm.

I.

Josias Kumpf, an ethnic German, was born in Nova Pasova, Yugoslavia on April 7, 1925. Kumpf attended school for less than three years, spending the majority of his youth farming with his father. Germany invaded Yugoslavia on April 6, 1941. After the invasion, Germany mustered ethnic Germans in Yugoslavia for its forces. A drummer marched through Kumpf's town in October 1942, alerting all young men to report to the local school for a health exam. After examining Kumpf, German officials instructed him to report to the train station later that month.

Kumpf complied and was transported to Oranienburg, Germany where he completed

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basic training. There he was issued a uniform, a rifle, a blood-type tattoo, and both the distinctive skull and SS insignia to wear on his uniform. Thus, Kumpf began serving in the Waffen Schutzstaffel, or armed protection guard. The Waffen SS was the paramilitary component of the Nazi Party and was distinct from the German Army, the Wehrmacht. Although originally intended to serve as bodyguards for Hitler, by World War II the SS assumed responsibility for German state security and the operation of the infamous Nazi concentration camps.

After training, Kumpf was assigned to the SS Death's Head Battalion Sachsenhausen, which was later renamed the SS Death's Head Guard Battalion Sachsenhausen. He remained in Oranienburg, guarding prisoners at Sachsenhausen Concentration Camp. As this court recounted in detail in United States v. Wittje, 422 F.3d 479, 482-83 (7th Cir. 2005), prisoners at Sachsenhausen were detained in hellish conditions, forced to perform grueling labor, subjected to medical experimentation, and executed. Kumpf worked at the camp as an armed guard, assigned to watch over the prisoners from perimeter guard towers. If an escape attempt occurred, Kumpf was trained to fire warning shots and, if necessary, shoot the escaping prisoner. Kumpf testified that he never faced such a situation. During his tenure at Sachsenhausen, Kumpf was paid, granted leave to return to his home, and promoted once.

On October 29, 1943, Kumpf was one of 150 guards transferred from Sachsenhausen to Trawni Id. Labor Camp i n German-occupied Poland. A few days later, on November 3, 1943, approximately 8,000 prisoners at Trawniki Labor Camp were executed in Aktion Erntefest, or Operation Harvest Festival. The victims were instructed to strip off their clothing and then led to pits that the prisoners themselves previously dug, on the premise that they were airraid trenches. Members of the SS then fired on the naked prisoners with varying degrees of accuracy. The parties dispute whether Kumpf arrived before the massacre, but Kumpf admits that he guarded the pits after the executions to watch for escaping survivors. Although instructed to shoot any escaping victim, no attempts were made on his shifts. Soon after the massacre, a group of Jews were brought to Trawniki to sort the victims' clothing, recover the dental gold from the bodies, and burn the corpses. Kumpf recalled the stench of the burning bodies.

While stationed at Trawniki, Kumpf again obtained leave to visit his family. After returning from leave, Kumpf left Trawniki in early 1944 to assume duty in Occupied France. There, among other tasks, he guarded a mobile detachment of prisoners from concentration camps who were forced to construct platforms for launching missiles against Great Britain. Following the Allied invasion of Normandy, Kumpf's unit retreated into Germany. Kumpf claims that he was sent to the eastern front, captured, and held as a prisoner of war by the Soviet Army for the remainder of the war.

After the war, Kumpf reunited with his family in Austria. He married Elisabeth Eremity on May 8, 1948. In 1956, Kumpf applied for a visa to enter the United States with his wife and three children. His visa application states that he served in the "German Army" in Germany, Poland, and France, omitting any reference to the SS. Kumpf received a visa on March 23, 1956. About two months later, he was admitted to the United States in New York.

Kumpf then settled in Chicago. He filed an application for naturalization in February 1964. Again, the application

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omitted any reference to the SS; in response to a question regarding his memberships in military or other organizations, Kumpf asserted that he was in the "German Army." The United States conferred citizenship on Kumpf on May 9, 1964. Kumpf, now a widower, worked continuously for the Vienna Sausage Company until retirement, and fathered two more children with his wife in this country.

After discovering wartime documents relating to his service in the SS, the government filed a four-count complaint seeking Kumpf's denaturalization. The district court granted summary judgment to the government, addressing only the government's argument that Kumpf's citizenship was illegally procured because he personally assisted in persecution and was therefore ineligible for a visa under the Refugee Relief Act. Kumpf appeals, arguing that his citizen-ship was not illegally procured, that the federal courts lack subject matter jurisdiction over this determination, and that his denaturalization would be a violation of equal protection.

II.

If an individual "illegally procured" citizenship, Congress provides for the revocation of the individual's naturalization. 8 U.S.C. § 1451 (a). To procure citizenship lawfully, an individual must be "lawfully admitted for permanent residence" into the United States, among other requirements. 8 U.S.C. § 1427(a). Kumpf was admitted for permanent residence based on a visa issued under the Refugee Relief Act. To ascertain whether Kumpf illegally procured citizenship, we must therefore evaluate the validity of his visa.

Kumpf first argues that this court lacks subject matter jurisdiction to consider the validity of the visa. Kumpf submits that Congress empowered the consular officers of the United States with exclusive authority "relating to the granting or refusal of visas." 8 U.S.C. § 1104(a). Since the consular officer has such exclusive authority, he argues, the federal courts cannot displace the consular function by reviewing the decision to grant a visa. This court previously decided this issue, determining that the federal courts do have jurisdiction "to examine visa eligibility. "United States v. Tittjung, 235 F.3d 330, 338 (7th Cir. 2000). This holding was recently reaffirmed in United States v. Wittje, in which we explained:

The district court had all the jurisdiction necessary to consider whether Wittje was eligible for a visa. The district court had (and has) jurisdiction to hear all civil claims brought by the United States, 28 U.S.C. § 1345, and the district court had specific jurisdiction to consider a claim by the United States that Wittje's certificate of naturalization should be revoked, 8 U.S.C. § 1451 (a) .... [A] prerequisite to such a certificate [of naturalization] is lawful admission into this country. Lawful admission requires, in turn, a valid visa. The determination that a person's citizenship should be revoked necessitates, therefore, a review of the visa process.

Wittje, 422 F.3d at 485-86 (citation omitted). Kumpf attempts to distinguish this holding by noting that his visa was issued under the Refugee Relief Act and not the earlier Displaced Persons Act, which was at issue in Wittje. This...

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