U.S. v. Dailide

• Decision Date: 29 January 1997
• Docket Number: No. 1:94CV2499.,1:94CV2499.
• Citation: 953 F.Supp. 192
• Parties: UNITED STATES of America, Plaintiff, v. Algimantas DAILIDE, Defendant.
• Court: U.S. District Court — Northern District of Ohio

953 F.Supp. 192

UNITED STATES of America, Plaintiff, v. Algimantas DAILIDE, Defendant.

No. 1:94CV2499.

United States District Court, N.D. Ohio, Eastern Division.

January 29, 1997.

As Amended February 28, 1997.

William H. Kenety, Susan Masling, U.S. Department of Justice, Office of Special Investigations, Washington, DC, for Plaintiff.

Joseph T. McGinness, Cleveland, OH, for Defendant.

MEMORANDUM OF OPINION AND ORDER

MATIA, District Judge.

This case is before the Court pursuant to the government's motion for partial summary judgment (Doc. 51).¹ On December 7, 1994, the plaintiff filed a six-count complaint seeking to revoke the citizenship of and cancel the Certificate of Naturalization issued to the defendant, Algimantis Dailide. The plaintiff seeks summary judgment on Count I, which contends that Dailide was guilty of the persecution of a civilian population in violation of section 2(b) of the Displaced Persons Act of 1948 ("DPA"), and on Count IV, claiming that the defendant made material misrepresentations during the immigration process which rendered him ineligible for admission to the United States under section 10 of the DPA. Having considered the memoranda submitted by the parties on these issues (Docs. 51-57, 65, 66, 72, 75, 88, 90, 95),² as well as the oral arguments presented by counsel at the December 20, 1996, hearing on the instant motion, the Court now GRANTS the government's motion for the following reasons.

I. BACKGROUND

A. Factual Background

The defendant, Algimantas Dailide, was born on March 12, 1921, in Kaunas, Lithuania. After Germany invaded Lithuania on June 22, 1941, the Nazis reestablished a police force in that country known as the Saugumas. That organization existed during the Soviet occupation of Lithuania, but had been disbanded prior to the German invasion. The defendant voluntarily joined the Saugumas in 1941 and served until 1944, when the force dissolved along with the Nazi regime.

After living in Germany until 1949, Dailide applied for emigration to the United States and eventually entered this country in 1950 as a non-quota immigrant. On February 3, 1955, the defendant applied for naturalization, and on September 6 of that year this Court granted the defendant's application. The defendant now resides in Brecksville, Ohio.

B. Legal Standard for Denaturalization

Although denaturalization is a civil proceeding, the United States must demonstrate "by clear, unequivocal and convincing evidence" that citizenship should be revoked. Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 746-47, 66 L.Ed.2d 686 (1981). "Any less exacting standard would be inconsistent with the importance of the right that is at stake in a denaturalization proceeding." Id. at 505-06, 101 S.Ct. at 747. However, "there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." Id. at 506, 101 S.Ct. at 747.

Section 316 of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1427(a), requires that a naturalized citizen must have been "lawfully admitted" into this country. Section 340 of that Act, 8 U.S.C. § 1451(a), authorizes the government to bring suit

in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate were illegally procured or were procured by concealment of a material fact or by willful misrepresentation. . . .

C. Legal Standard for Summary Judgment

Federal Rule of Civil Procedure 56(c) governs summary judgment motions and directs the Court to grant summary judgment

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.

A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Determination of whether it is "genuine" requires consideration of the applicable evidentiary standard. Id. at 252, 106 S.Ct. at 2512. The Court must decide whether a reasonable trier of fact could find that the non-moving party is entitled to a verdict. In reviewing the motion for summary judgment, a Court must view the evidence in the light most favorable to the non-moving party when deciding whether a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Assn., Inc., 909 F.2d 941, 943-44 (6th Cir.1990).

"To withstand a motion for summary judgment the opposing party `may not rest upon the mere allegations or denials' in its pleadings, but must respond `by affidavits or as otherwise provided ... [setting] forth specific facts showing that there is a genuine issue for trial.' Fed.R.Civ.P. 56(e). [M]ere conclusory allegations are insufficient to withstand a motion for summary judgment." Cincinnati Bell Telephone Co. v. Allnet Communication Services, Inc., 17 F.3d 921, 923 (6th Cir.1994), citing, McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990).

D. Summary Judgment in Denaturalization Cases

Notwithstanding the Fedorenko Court's recognition of "the importance of the right that is at stake in a denaturalization proceeding," 449 U.S. at 505-06, 101 S.Ct. at 747, ample precedent exists for the revocation of citizenship at the summary judgment stage. See, e.g., United States v. Lileikis, 929 F.Supp. 31 (D.Mass.1996); United States v. Koreh, 59 F.3d 431 (3d Cir.1995); United States v. Leprich, 666 F.Supp. 967 (E.D.Mich.1987).

II. COUNT I (PERSECUTION OF CIVILIAN POPULATIONS)

A. Statutory Background

In order to qualify as an "eligible displaced person" (for purposes of emigration to the United States) under section 2(c) of the DPA, an applicant must be, among other things, "a displaced person as defined in subsection (b) above...." Subsection (b) includes "any displaced person or refugee as defined in Annex I of the Constitution of the International Refugee Organization and who is the concern of the International Refugee Organization."

The Constitution of the International Refugee Organization ("IRO"), in turn, sets forth a number of groups that are by definition not "of concern" to that body. These include, at Part II, section 2, "[a]ny other persons who can be shown: (a) to have assisted the enemy in persecuting civilian populations of countries ...."

Since the defendant entered this country pursuant to the DPA, the continuing validity of his citizenship and naturalized status must be judged by reference to the standards set forth at Part II, Section 2(a), of the IRO constitution. If he is found not to be the concern of the IRO by its terms, then he is not (and never was) an "eligible displaced person" who was "lawfully admitted" to this country, and his citizenship must be revoked under 8 U.S.C. § 1451(a) because it was "illegally procured."

B. Persecution of Civilian Populations

The government advances two alternate theories in support of summary judgment on Count I of its complaint: The first asserts that by reason of the defendant's membership in the Saugumas and the documented role in the persecution of the Jewish people played by that organization, Dailide is "guilty by association" of persecution. The second contends that independent of the fact of membership in the Saugumas, the defendant himself committed documented acts amounting to persecution that independently disqualify him according to the terms of the IRO Constitution. The Court will address each argument separately.

1. Role of the Saugumas

The Supreme Court's decision in Fedorenko explained that persecution under section 2(b) may under certain circumstances be demonstrated without a showing of individual participation in persecution. Although Fedorenko and many of its progeny deal with armed concentration camp guards, it seems clear that the Supreme Court did not intend to limit the above rule only to camp guards. Instead, the Court indicates that the assistance question must be answered according to the facts of each case, while making clear that individual participation is not a necessary prerequisite to liability. Fedorenko, 449 U.S. at 512 n. 34, 101 S.Ct. at 750 n. 34. See Koreh, 59 F.3d at 439 ("We have read Fedorenko as describing a `continuum of conduct to guide the courts in deciding' how to apply the term `assistance in persecution.' [United States v.] Breyer, 41 F.3d [884] at 890 [(3d Cir.1994)]. Thus, the term is to be applied on a case-by-case basis with reference to the relevant facts presented in each case.")

At least two cases decided after Fedorenko support this conclusion. In 1981, the Eastern District of Pennsylvania held that a Ukrainian policeman, against whom no specific acts of violence had been proven, nonetheless assisted in the persecution of civilians.

Osidach's personal assignment as an armed, uniformed Ukrainian street policeman constitutes on the present record the form of mental persecution that quite naturally follows from the conspicuous public display of armed force and uniformed authority, regularly, over a long period of time in a repressive ghetto-type atmosphere. The mere presence of the watchful eye of the conqueror or his deputies, coupled with the often demonstrated presence of both the means and the inclination to persistently inflict various indignities, physical abuse, injuries or even death, without notice or reason, is the personification of mental persecution, to anyone, let alone innocent civilian...