Breyer v. Meissner

• Decision Date: 27 August 1998
• Docket Number: Civil Action No. 97-6515.
• Citation: 23 F.Supp.2d 521
• Parties: Johann BREYER v. Doris MEISSNER, U.S. Immigration and Naturalization Service.
• Court: U.S. District Court — Eastern District of Pennsylvania

23 F.Supp.2d 521

Johann BREYER v. Doris MEISSNER, U.S. Immigration and Naturalization Service.

Civil Action No. 97-6515.

United States District Court, E.D. Pennsylvania.

August 27, 1998.

COPYRIGHT MATERIAL OMITTED

Willan Franklyn Joseph, Philadelphia, PA, for Plaintiff.

David F. Legge, U.S. Dept. of Justice, Civil Div., Torts Branch, Washington, DC, Gretchen M. Wolfinger, U.S. Dept. of Justice, Civil Div., Washington, DC, for Defendant.

MEMORANDUM AND ORDER

YOHN, District Judge.

Plaintiff Johann Breyer was denaturalized by order of this court in 1993, as a consequence of his service during World War II in the SS Totenkopf (Death's Head) Battalion as an armed guard at the Buchenwald and Auschwitz concentration camps. Breyer now seeks a declaratory judgment that he is entitled to derivative United States citizenship because his mother was born in the United States. Defendant has moved to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, I will grant defendant's motion to dismiss.

STANDARD OF REVIEW

When considering a defendant's motion under Rule 12(b)(6) to dismiss a complaint for failure to state a claim upon which relief can be granted, the court "must consider only those facts alleged in the complaint and accept all of the allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir.1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)). The plaintiff is entitled to the benefit of "every favorable inference that can be drawn from those allegations." Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir.1991). The court, however, is "not required to accept legal conclusions either alleged or inferred from the pleaded facts." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993).

Along with the allegations contained in the complaint, the court may consider exhibits attached to the complaint, and matters of public record. Pension Benefit Guaranty Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir.1993). The allegations may be supplemented by any relevant matter that can be judicially noticed. Wishnefsky v. Addy, 969 F.Supp. 953, 954 (E.D.Pa.1997) (citing Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416 n. 3 (3d Cir.1988); 5A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1363 (2d ed.1990)).

The motion to dismiss should be granted "only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.1998) (citing ALA, 29 F.3d at 859).

BACKGROUND

I. Factual Background

The following account is drawn in part from plaintiff's allegations in his amended petition. Plaintiff's allegations are supplemented, where noted, by relevant adjudicative facts drawn from related proceedings in this court and the United States Court of Appeals for the Third Circuit.

Plaintiff Johann Breyer alleges that he was born in Neuwalddorf, Czechoslovakia, on May 30, 1925. His mother was a citizen of the United States.¹

Breyer lived in Europe until May 1952, when he entered the United States on an immigrant visa as a permanent resident. In August 1957, Breyer applied to become a naturalized citizen of the United States, and was issued a Certificate of Naturalization. He has been a resident of Philadelphia, Pennsylvania, for approximately 45 years.

In April 1992, the United States filed a denaturalization action against Breyer, seeking the revocation of Breyer's admission to citizenship. On July 6, 1993, this court found that Breyer's entry visa into the United States was invalid, and his citizenship illegally procured, because he assisted in Nazi persecution and because he was a member of a movement hostile to the United States. United States v. Breyer, 829 F.Supp. 773, 778-79 (E.D.Pa.1993) (hereinafter "Breyer I"), aff'd in part and vacated in part, 41 F.3d 884 (3d Cir.1994). On December 20, 1993, this court ordered the revocation of plaintiff's naturalization, and the cancellation and surrender of his Certificate of Naturalization. United States v. Breyer, 841 F.Supp. 679, 686-87 (E.D.Pa.1993) (hereinafter "Breyer II"), aff'd in part and vacated in part, 41 F.3d 884 (3d Cir.1994). The Third Circuit affirmed this court's judgment and orders relating to the revocation of plaintiff's naturalization. United States v. Breyer, 41 F.3d 884, 888-91 (3d Cir.1994) (hereinafter "Breyer III").

Plaintiff attempted to obtain a Certificate of Citizenship from the Immigration and Naturalization Service ("INS"), filing an application pursuant to § 341 of the Immigration and Nationality Act, 8 U.S.C. § 1452. The application was denied, and the Administrative Appeals Unit affirmed the denial in an opinion issued October 15, 1996. Upon plaintiff's timely motion for reconsideration, a final administrative denial issued on December 30, 1996. Plaintiff has now exhausted his administrative remedies.

On January 22, 1997, the INS and the United States Department of Justice, Office of Special Investigations ("OSI") instituted deportation proceedings against plaintiff. On December 15, 1997, an immigration judge found plaintiff to be deportable. Plaintiff now petitions this court pursuant to 8 U.S.C. § 1503(a) for a declaratory judgment of citizenship.

II. Statutory Background

At the time of plaintiff's birth on May 30, 1925, section 1993 of the Revised Statutes of 1874 governed the ability of United States citizens to transmit that citizenship to their children born outside the United States:

All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.

R.S. § 1993. Gender-based distinctions had existed in the law since 1790, allowing only a citizen father who had at one time resided in the United States to transmit his United States citizenship jure sanguinis (by right of blood) to a foreign-born child. See Montana v. Kennedy, 366 U.S. 308, 311, 81 S.Ct. 1336, 1339, 6 L.Ed.2d 313 (1961) (citing Act of Feb. 10, 1855, ch. 71, § 1, 10 Stat. 604); Wauchope v. United States Dep't of State, 985 F.2d 1407, 1409 n. 1 (9th Cir.1993) (citing Act of Apr. 14, 1802, ch. 28, § 4, 2 Stat. 155; Act of March 26, 1790, 1 Stat. 103).

In 1934, Congress amended R.S. § 1993 to provide that "[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States," subject to certain residency requirements. Act of May 24, 1934, ch. 344, § 1, 48 Stat. 797. Generally, "[t]he applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child's birth." United States v. Viramontes-Alvarado, 149 F.3d 912, 915-16 (9th Cir.1998) (quotation omitted). By its use of the phrase "hereafter born," Congress expressly chose not to apply the 1934 amendment retrospectively to persons who were born prior to its enactment. See Wauchope, 985 F.2d at 1410. For an individual born before May 24, 1934, the prior version of R.S. § 1993 remained "the sole source of inherited citizenship status for foreign-born children of American parents." Kennedy, 366 U.S. at 312, 81 S.Ct. at 1339.

However, in October 1994, after this court's decision in Breyer II and prior to the Third Circuit's decision in Breyer III, Congress passed the Immigration and Nationality Technical Corrections Act of 1994 ("INTCA"), Pub.L. No. 103-416, 108 Stat. 4305 (1994). In section 101 of INTCA, Congress added a new section 301(h) to the INA, which, in effect, made the 1934 amendment to R.S. § 1993 retroactive by conferring citizenship at birth upon

a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

8 U.S.C. § 1401(h). This amendment retroactively addressed the gender distinction in R.S. § 1993 that had recently been discussed by the Ninth Circuit in Wauchope and by this court in Breyer II. However, Congress elected to limit the retroactive grant of citizenship by enacting section 101(c)(2) of INTCA:

The retroactive application of the amendment ... shall not confer citizenship on, or affect the validity of any denaturalization, deportation, or exclusion action against, any person who is or was excludable from the United States under section 212(a)(3)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) (or predecessor provision) or who was excluded from, or who would not have been eligible for admission to, the United States under the Displaced Persons Act of 1948 or under section 14 of the Refugee Relief Act of 1953.

Pub.L. No. 103-416, § 101(c)(2), 108 Stat. at 4306. Section 13 of the Displaced Persons Act of 1948 ("DPA") provides, in relevant part:

No visas shall be issued under the provisions of this Act, as amended, 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, or to any person who advocated or assisted in the persecution of any person because of race, religion, or national origin. ...

Pub.L. No. 80-774, § 13, 62 Stat. 1009, 1014, amended by Pub.L. No. 81-555, 64 Stat. 219, 227 (1950). The provisions referenced in INTCA...