597 F.2d 946 (5th Cir. 1979), 78-2879, United States v. Fedorenko

Docket Nº:78-2879.
Citation:597 F.2d 946
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Feodor FEDORENKO, etc., Defendant-Appellee.
Case Date:June 28, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 946

597 F.2d 946 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellant,

v.

Feodor FEDORENKO, etc., Defendant-Appellee.

No. 78-2879.

United States Court of Appeals, Fifth Circuit

June 28, 1979

Page 947

J. V. Eskenazi, U. S. Atty., Miami, Fla., Allan A. Ryan, Jr., Asst. Sol. Gen., Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Phil Baum, Assoc. Exec. Dir., American Jewish Congress, New York City, for Amer. Jewish Congress, et al.

Celentano & Gildea, Brian M. Gildea, New Haven, Conn., Gregg J. Pomeroy, Fort Lauderdale, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM, CLARK, and FAY, Circuit Judges.

WISDOM, Circuit Judge:

This appeal raises an important question concerning the standard to be applied to the materiality of a misrepresentation by nondisclosure in an action for revocation of citizenship. The government brought this action to revoke the citizenship of Feodor Fedorenko, the defendant-appellee, a naturalized citizen. We agree with the government that the district court erred as a matter of law when it held that the defendant had not procured his citizenship by concealment of a material fact. We hold that it is not necessary that the government prove the existence of facts which, in and of themselves, would have justified denial of citizenship. It is necessary to prove only that the facts which the defendant admittedly misrepresented might, if disclosed, have led to the discovery of other facts which would have justified denial of citizenship. Accordingly, we reverse and remand to the district court with instructions to revoke the defendant's certificate of naturalization.

I.

Fedorenko was born in the Ukraine in 1907. In 1941, while serving in the Russian Army, he was captured by German forces. According to his own admissions, the Germans trained him to serve as an armed concentration camp guard and sent him to Treblinka, Poland, a notorious extermination camp.

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Following World War II, he worked as a laborer in Germany for four years. In 1949, he applied for admission to the United States under the Displaced Persons Act of 1948, 62 Stat. 1009. Before the district court, the defendant admitted that he had falsified his application for a visa for the United States by misstating his whereabouts during the war years and by failing to note his service as a concentration camp guard. He admitted that he deliberately stated on the visa application that he had been a farmer in Sarny, Poland from 1937 to March 1942, and that the Germans had forced him to work as a laborer from that date until the end of the war. Based on this visa application, an American vice-consul classified the defendant as a displaced person and issued him a visa.

The defendant came to America in November 1949. He has resided in this country since that time and, as the government admits, has led an uneventful and law-abiding life. In 1969 he applied for naturalization. In response to a question on the naturalization application about any foreign military service, he noted his service in the Russian army in 1941. He did not reveal, however, that he had served in the German army as a guard at Treblinka. The Immigration and Naturalization Service (INS) examiner scrutinized the defendant's visa papers, including a report by the Displaced Persons Committee that the defendant had been a farmer and factory worker from 1941-1945. The examiner took these visa papers at face value and recommended that the defendant's application be granted. The defendant was naturalized in 1970.

The government filed this action under 8 U.S.C. § 1451(a) to denaturalize the defendant on the theory that he had procured his citizenship by concealment and misstatement of material facts. The district court refused to strip the defendant of his citizenship. United States v. Fedorenko, 1978, S.D.Fla., 455 F.Supp. 893. The court found that the defendant had made false statements in his visa application about his whereabouts during the war years and had failed to disclose his service as a concentration camp guard. The district court held, however, that the defendant's deception did not constitute material misrepresentation and concealment within the meaning of 8 U.S.C. § 1451(a). The court also rejected evidence that the government presented to support its allegation that the defendant had committed war crimes. Finally, the court held that, even if the defendant was guilty of making material misstatements and omissions, equitable considerations required the court to enter judgment for the defendant.

In this appeal, the government raises three challenges to the judgment of the district court. First, it asserts that the defendant's own admissions indicate that his naturalization resulted from material misrepresentation and concealment. Second, it argues that the district court erred in refusing to consider testimony by several survivors of Treblinka, who identified the defendant as a camp guard whom they had observed committing war crimes. Third, it argues that the district court erred in holding that equitable considerations may serve as an alternative ground for its judgment in favor of the defendant.

II.

8 U.S.C. § 1451(a) provides:

It shall be the duty of the United States attorneys . . . to institute proceedings . . . for the purpose of revoking and setting aside the order admitting (a naturalized citizen) to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation . . . .

To assess the government's argument that the defendant's misrepresentation and concealment were "material" under this provision, this Court must first examine the Displaced Persons Act, 62 Stat. 1009, the statute under which the defendant obtained his visa. In that Act, Congress allowed European refugees driven from their homelands by the war to emigrate to the United

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States without regard for the usual immigration quotas. Section 2(b)-(c) of the Act defined "eligible displaced person" largely by reference to the definition of "refugee or displaced person" found in Annex I of the Constitution of the International Refugee Organization of the United Nations, 62 Stat. 3037. That constitution provided that the following persons did not qualify for displaced person status:

  1. War criminals, quislings and traitors.

  2. Any other persons who can be shown:

(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or

(b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.

62 Stat. 3051-52. In addition, § 13 of the Displaced Persons Act itself provided that

(n)o visas shall be issued under the provisions of this Act to 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.

62 Stat. 1014.

The government argues that, because the defendant's service as a concentration camp guard indicates that he voluntarily assisted the enemy in persecuting civil populations, he was not qualified for admission into the United States under the Displaced Persons Act. By failing in his visa application to reveal his whereabouts during the war years and his concentration camp guard...

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