U.S. v. Schmidt, 90-1070

• Citation: 923 F.2d 1253
• Decision Date: 04 June 1991
• Docket Number: No. 90-1070,90-1070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael SCHMIDT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1253

923 F.2d 1253

UNITED STATES of America, Plaintiff-Appellee, v. Michael SCHMIDT, Defendant-Appellant.

No. 90-1070.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 5, 1990.

Decided Jan. 30, 1991.

Rehearing and Rehearing En Banc Denied June 4, 1991.

Linda A. Wawzenski, Asst. U.S. Atty., Chicago, Ill., Lorraine N. Mackler, Office of the Special Investigations, Susan L. Siegal, Ronnie L. Edelman, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

George B. Collins, Jody B. Rosenbaum, Collins & Bargione, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, WOOD, Jr., Circuit Judge, and PELL, Senior Circuit Judge.

BAUER, Chief Judge.

The constitution empowers Congress "[t]o establish an uniform Rule of Naturalization." Article I, sec. 8, cl. 4. Any alien who seeks to acquire the "precious right" of American citizenship must meet all the requirements fixed by Congress. Schneiderman v. United States, 320 U.S. 118, 122 & 131, 63 S.Ct. 1333, 1335 & 1339, 87 L.Ed. 1796 (1943). One of the requirements Congress established for citizenship is entry into the United States by means of a legally procured immigration visa. Section 13 of the Displaced Persons Act of 1948, Pub.L. No. 80-774, ch. 647, 62 Stat. 1009, as amended by Pub.L. No. 81-555, ch. 262, 64 Stat. 219 (1950), provides that any individual who advocated or assisted in the persecution of persons because of race, religion or national origin is ineligible to obtain a visa. In the judgment appealed from here, the district court revoked Michael Schmidt's citizenship and canceled his certificate of naturalization pursuant to 8 U.S.C. Sec. 1451(a) of the Immigration and Nationality Act. ¹ The district court found that because Schmidt served as an armed guard with the Nazi "Death's Head Battalion" at the Sachsenhausen concentration camp during World War II, he was ineligible to receive a visa. The court concluded that, because Schmidt's visa was invalid, he did not have lawful permission to enter the United States, and thus his subsequent naturalization was procured unlawfully under section 316(a)(1) of the Immigration and Nationality Act. 8 U.S.C. Sec. 1427(a)(1) (1982). ² For the following reasons, we affirm.

I.

Michael Schmidt was born in Scharosch, Romania, of German parentage. In June, 1943, he was inducted into the German Army as a private and assigned to serve at the Sachsenhausen concentration camp near Oraneinburg, Germany. In the district court, the Government presented extensive evidence concerning the history of the Nazi regime and its plan to exterminate systematically individuals who disagreed with its policies, as well as groups it considered to be racially and socially inferior. The Nazis used concentration camps to carry out the Third Reich's plan to exterminate enemies or to exploit them through forced labor. The Gestapo, the Nazi secret police force, arrested and detained all persons thought to be enemies of the state. Those held in this manner could be incarcerated without trial for indefinite periods of time.

During Schmidt's service at Sachsenhausen, the camp was the second largest Nazi concentration camp after Auschwitz. Among those incarcerated there were Jews, Gypsies, Jehovah's Witnesses, certain Eastern European ethnics, political dissidents, homosexuals, and various individuals considered social "misfits," including beggars, vagrants, and the mentally ill. Each category of prisoner was forced to wear a colored triangle on the outside of its uniform: Jews, yellow; political prisoners, red; social misfits, black/brown; Jehovah's Witnesses, violet; homosexuals, pink. At the height of its operation, Sachsenhausen contained approximately 50,000 prisoners.

The "Death Head's Battalion"--the SS-Totenkopf Sturmbann--was organized as part of the armed SS ³ for the purpose of guarding Nazi concentration camps. The military command assigned Schmidt to guard prisoners on forced labor crews outside Sachsenhausen. His duties included escorting prisoners to and from work sites, counting prisoners before returning them to the concentration camp, and keeping prisoners in formation. Schmidt wore on his SS uniform the skull and crossbones insignia of the Death Head's Battalion. He carried a rifle and ammunition and had orders to shoot at prisoners who attempted to escape. Because concentration camp guards were not permitted to enter the camps themselves, Schmidt was confined to patrol outside the camp wall. Although there is no evidence that Schmidt personally killed prisoners, it has been documented that during the period he served at Sachsenhausen, two Jews were intentionally murdered and at least thirteen prisoners were executed by being shot through the nape of the neck.

In addition, tens of thousands died in Sachsenhausen as a result of starvation, exhaustion, beatings, exposure, disease, and medical experimentation. The grim history of Sachsenhausen has been well-documented by historians and tribunals that have tried Nazi war criminals. For example, the Government presented transcripts of German criminal proceedings against various individuals found guilty of committing atrocities at Sachsenhausen: camp leaders Hermann Sorge and August Hohn; barracks leader Wilhelm Karl Ferdinand; and medical doctors Heinz Baumkotter, Alois Gaberle, and Otto Adam. In addition, the Government presented the testimony of a historian, Charles W. Syndor, President of Emory and Henry College in Emory, Virginia, who has made a career of studying the Nazi regime and its concentration camps. Syndor's testimony catalogued the mass killings, subhuman living conditions, and bizarre medical experiments that occurred in Sachsenhausen and its environs. Finally, the Government submitted transcribed interrogations of Sachsenhausen guards and the testimony of camp survivors who witnessed beatings, killings, and indescribably cruel treatment of prisoners.

Schmidt continued to serve as an armed guard at Sachsenhausen until at least September, 1944. He then served in the Third Battalion of the 38th SS Armored Infantry Division, "Goetz von Berlichingen," and was wounded in combat in Lorraine, France on November 28, 1944. He remained in military hospitals until he became a British prisoner of war. He was released on July 8, 1946.

Schmidt made his way to the United States under the authority of the Displaced Persons Act of 1948 ("DPA"). ⁴ Congress enacted the DPA to accommodate the large number of European refugees wishing to emigrate to the United States after World War II. A person seeking to obtain an immigration visa under the DPA was required to obtain a designation of "displaced person" status as defined by the Constitution of the International Refugee Organization of the United Nations ("IRO"). 62 Stat. 3037-55 (1946). ⁵ Annex I, Part II of the IRO Constitution provided that war criminals and others who "assisted the enemy in persecuting ⁶ civil populations of countries" were not "the concern" of the IRO. Id. at 3051-52. These individuals thus were excluded from the definition of "displaced persons" under the DPA.

After checking the applicant's background, a case analyst from the Displaced Persons Commission ("DPC") issued a report certifying that the applicant was a person eligible for admission into the United States. The analyst then forwarded the applicant's file to the appropriate American consulate. A vice-consul reviewed the visa application and other documents in the applicant's file, including the preliminary IRO certification and the DPC report. The vice-consul also interviewed the applicant and, if the applicant met the criteria of the DPA and other immigration laws, the vice-consul issued a visa.

After living in Germany and Austria for several years following the war, Schmidt applied for a determination from the DPC that he was a displaced person eligible to emigrate to the United States. On his application, Schmidt indicated to the DPC that he was conscripted into the "German Army, Waffen-SS 'Goetz von Berlichingen,' " but he did not indicate his service as a guard at Sachsenhausen. Based on Schmidt's representations in his questionnaire, on February 28, 1952, DPC case analyst John F. Zipf, Jr. certified Schmidt as a displaced person eligible for a visa. Paul B. Lanius, Jr., the American Vice-Consul in Salzburg, Austria, issued Schmidt a visa in April, 1952. Schmidt entered the United States pursuant to this visa on May 24, 1952.

On March 1, 1968, Schmidt filed an application to become a United States citizen. Question 7 of the application form required him to list "present and past membership in every organization, association, fund, foundation, party, club, society, or similar group in the United States and in any other place, and your foreign military service." Schmidt entered his military service in the German army from 1943 to 1945, but did not indicate that he had served as an armed guard at Sachsenhausen from June, 1943 to September, 1944. On April 2, 1968, the United States District Court for the Northern District of Illinois issued a certificate of naturalization granting Schmidt United States citizenship.

Schmidt lived a quiet life in the Chicago area, where he worked as a janitor until his retirement. Following a determination by the Criminal Division of the Office of Special Investigations of the United States Department of Justice that there was good cause to revoke Schmidt's citizenship, the Government filed a complaint in federal district court on November 2, 1988. The court ordered Schmidt's citizenship revoked ⁷ and, in February, 1990, Schmidt surrendered his certificate of naturalization to the Attorney General of the United States. This appeal followed.

II.

At issue is whether, under section 13 of the Displaced Persons Act, Schmidt's service in the SS as a guard at Sachsenhausen concentration camp rendered him ineligible to obtain a visa, in that his activities constituted assistance in...