United States v. Kowalchuk, Civ. A. No. 77-118.

• Citation: 571 F. Supp. 72
• Decision Date: 01 July 1983
• Docket Number: Civ. A. No. 77-118.
• Parties: UNITED STATES of America, Plaintiff, v. Serge KOWALCHUK, a/k/a Serhij Kowalczuk, Defendant.
• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

571 F. Supp. 72

UNITED STATES of America, Plaintiff, v. Serge KOWALCHUK, a/k/a Serhij Kowalczuk, Defendant.

Civ. A. No. 77-118.

United States District Court, E.D. Pennsylvania.

July 1, 1983.

John E. Riley, Asst. U.S. Atty., Philadelphia, Pa., Kathleen N. Coleman, Trial Atty., Dept. of Justice, Washington, D.C., Jeffrey N. Mausner, Trial Atty. Dept. of Justice, Washington, D.C., for plaintiff, U.S.

John Rogers Carroll, Philadelphia, Pa., for defendant, Serge Kowalchuk.

OPINION AND ORDER

FULLAM, District Judge.

Invoking § 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 8 U.S.C. § 1451(a), the Government in this action seeks an order revoking the citizenship of the defendant, Serhij Kowalczuk, on the ground that his naturalization was "illegally procured or ... procured by concealment of a material fact or by willful misrepresentation."

In any such case, the Government bears a heavy burden of proof. Costello v. U.S., 365 U.S. 265, 269, 81 S.Ct. 534, 536, 5 L.Ed.2d 551 (1961). In order to justify revocation of citizenship, the evidence must be "clear, unequivocal, and convincing," such as not to leave "the issue in doubt". Schneiderman v. U.S., 320 U.S. 118, 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1796. "Any less exacting standard would be inconsistent with the importance of the right that is at stake in a denaturalization proceeding." Fedorenko v. U.S., 449 U.S. 490, 505, 101 S.Ct. 737, 746, 66 L.Ed.2d 686 (1980). As stated by the Third Circuit Court of Appeals in U.S. v. Riela, 337 F.2d 986, 988 (3d Cir.1964):

"This burden is substantially identical with that required in criminal cases — proof beyond a reasonable doubt citing Klapprott v. U.S., 335 U.S. 601, 612 69 S.Ct. 384, 389, 93 L.Ed. 266 (1949)."

An essential prerequisite to a lawful grant of citizenship is that the applicant's admission to this country to establish residence was itself lawful. The defendant was admitted to this country pursuant to the Displaced Persons Act of 1948, 62 Stat. 1009 (hereinafter "DPA"), enacted by Congress in 1948 to enable European refugees uprooted by World War II to emigrate to the United States without regard to established immigration quotas. Section 10 of the DPA, 62 Stat. 1003, placed the burden of proving eligibility under the Act on the person seeking admission and provided that "any 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." Moreover, the DPA's definition of "displaced persons" eligible for immigration incorporated the definition of "refugees or displaced persons" contained in Annex I to the Constitution of the International Refugee Organization of the United Nations (IRO), which became effective on August 20, 1948, and thus excluded from eligibility all persons who had "assisted the enemy in persecuting civil populations ..." or had "voluntarily assisted the enemy forces ... in their operations against the United Nations." In addition, § 13 of the DPA made ineligible for visas thereunder "any person who is or has been a member of, or participated in, any movement which is or has been hostile to the United States or the form of government of the United States."

The defendant, Serhij Kowalczuk, together with his younger brother Mikola Kowalczuk, spent four years (1945 through 1949) at a displaced persons camp at Lexenfeld, Austria, near Salzburg. In November 1947, the defendant obtained the necessary clearance from the IRO certifying that he was indeed a refugee "of concern" to IRO. This rendered him eligible for consideration for resettlement. In order to obtain this certification, the defendant executed a detailed personal-history form (the CM/1 form).

In due course, after sponsorship in this country had been arranged, the defendant presented his IRO documentation, together with an additional personal-history questionnaire ("fragebogen") to representatives of the Displaced Persons Commission. After the required further investigation, the defendant was duly certified in 1949 as meeting the eligibility requirements of the DPA. He then applied to the Consular Service for a visa, which was granted, and he was duly admitted to the United States for permanent residence in late 1949. Thereafter, his petition for naturalization was granted on November 30, 1960, and he was thereupon admitted to citizenship.

The essential thrust of the Government's contentions in the present case is that the defendant served as deputy commandant of a unit of the Ukrainian militia in Lubomyl, Ukraine, from 1941 to 1944; that during this period, the Lubomyl unit of the Ukrainian militia, and the defendant personally, committed acts of atrocity and repression against Jewish inhabitants of Lubomyl, and in general assisted the German cause in the war; and that, throughout the entire process leading to his naturalization, the defendant willfully concealed and intentionally failed to disclose these facts.

The Government's evidence includes the testimony of three Jewish survivors of Lubomyl, to the effect that a local Ukrainian militia, or schutzmannschaft, was established by the Germans shortly after they occupied the town in June 1941; that the defendant was a high-ranking officer of the Lubomyl schutzmannschaft; that members of this police force actively assisted the Germans in their acts of repression and atrocity against the Jewish residents of the town; and that the defendant personally committed various specified atrocities. In addition, several persons now residing in the Ukraine testified, by deposition, that they had served in the Lubomyl militia under the defendant's leadership; that they had assisted in or witnessed various acts of atrocity and repression, etc.

On the other hand, the defendant, corroborated by his brother and various other witnesses, steadfastly and vehemently denies that he ever committed or had direct personal knowledge of any atrocities; that he occupied any position of authority in the Lubomyl police force; that he was issued a uniform or carried a weapon; and that his involvement with the Lubomyl militia (which was only on a part-time basis) actually constituted "membership" in that organization. The defendant's position is that he worked for the local government of the Town of Lubomyl in a clerical capacity. His principal job had to do with food-distribution and rationing, and was performed at a food warehouse; but he did do part-time work for the local police department, typing duty-rosters, requisitions, reports, etc. He never wore a uniform while on duty, and never did any street patrolling or other enforcement activity.

If the defendant personally committed the serious atrocities against the Jews of Lubomyl charged by the Government, cancellation of his citizenship in this proceeding would be inevitable, for a variety of reasons. A person guilty of assisting the Nazis in such persecutions would not have been "of concern" to the IRO, and thus would not have met the definition of a displaced person under the DPA. Concealment of that history would, at some stage of the proceeding, constitute a willful misrepresentation or concealment of material facts for purposes of gaining entry to the United States, rendering such entry illegal and hence disqualifying. And, arguably at least, failure to disclose such a history in connection with the naturalization petition would amount to willful concealment of criminal activity; and such lack of candor might demonstrate lack of good moral character at the time of the naturalization petition.

If the defendant was a member of the Ukrainian militia, but did not personally participate in or have direct knowledge of acts of atrocity and repression, the question would be whether the Ukrainian militia at Lubomyl constituted an organization which did assist the Nazis in persecuting civilians, and, if so, whether mere membership in such an organization would be disqualifying. The remaining question, under that scenario, would be whether willful misrepresentation or concealment of a material fact has been established.

And finally, if it is determined that the defendant was not actually a member of the Lubomyl militia but merely carried out civilian duties for the town government, the question would be whether failure to disclose such employment (and his residence at Lubomyl) on the various personal-history forms (the CM/1 form and the fragebogen) is a sufficient basis for revocation of citizenship in this proceeding.

Thus, the analysis leading to a correct disposition of this litigation has two components: the defendant's actual wartime activities, and whether the defendant was guilty of willful misrepresentation of concealment of material facts. For a variety of reasons, neither line of inquiry has been easy.

Determination of exactly what did or did not occur during the relevant 1941-1944 period is rendered particularly difficult in this case, not only because the pertinent events occurred nearly 40 years ago, but because, unlike virtually every other reported denaturalization case, there is in this case not one scrap of documentary evidence relating to the pertinent events. The factfinder is relegated entirely to the testimony of witnesses, uncorroborated by any documentary evidence, and unrefreshed by any contemporaneous or relatively early recordation of their recollections of the pertinent events. For example, none of the Government's witnesses against the defendant is on record with any charges against the defendant until 1975 or 1976. None of the important witnesses for either side is fluent in the English language. Many testified through interpreters, and all would have benefitted from such assistance. And many testified by way of videotape deposition. It is extremely difficult to reach a confident conclusion, on the basis of witness demeanor, concerning the accuracy...