U.S. v. Szehinskyj, 00-2467

• Decision Date: 07 September 2001
• Docket Number: No. 00-2467,00-2467
• Citation: 277 F.3d 331
• Parties: (3rd Cir. 2002) UNITED STATES OF AMERICA, v. THEODOR SZEHINSKYJ A/K/A FEDOR SZEHINSKI A/K/A THEODOR SZEHNISKIJ A/K/A THEODOR SZEHINSKY A/K/A THEODOR SZEHINSKI A/K/A THEODOR SZEHNKYJ, APPELLANT Argued:
• Court: U.S. Court of Appeals — Third Circuit

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277 F.3d 331 (3rd Cir. 2002) UNITED STATES OF AMERICA,
v.
THEODOR SZEHINSKYJ A/K/A FEDOR SZEHINSKI A/K/A THEODOR SZEHNISKIJ A/K/A THEODOR SZEHINSKY A/K/A THEODOR SZEHINSKI A/K/A THEODOR SZEHNKYJ, APPELLANT No. 00-2467 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Argued: September 7, 2001
Opinion Filed: January 7, 2002

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 99-cv-05348 District Judge: The Honorable Stewart Dalzell

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Andre Michniak, Esq. (Argued), Suite 1000 1420 Walnut Street Philadelphia, PA 19102, for Appellant.

William H. Kenety, V., Esq. (Argued), United States Department of Justice, Office of Special Investigations, 1001 G Street, N.W. Washington, D.C. 20530, and David W. Folts, Esq., Robert J. Groner, Esq., Suite 200 United States Department of Justice, Office of Special Investigations, 1301 New York Avenue, N.W. Washington, D.C. 20530, for Appellee.

Before: Becker, Chief Judge, Alito and Barry, Circuit Judges

OPINION OF THE COURT

Barry, Circuit Judge

Appellant Theodor Szehinskyj participated in what has accurately been described as the Third Reich's "closed culture of murder" which saw millions of victims die in the Holocaust, the "greatest moral catastrophe of our civilization." United States v. Szehinskyj, 104 F. Supp. 2d 480, 500-01 (E.D. Pa. 2000). The revocation of his United States citizenship is now before us, with Szehinskyj arguing that he was not what the evidence resoundingly showed him to be -- an armed concentration camp guard who "assisted in persecution... because of race, religion or national origin"; indeed, he argues that he never set foot in the camps in which it was shown that he served. He argues, as well, that even if the government proved that he was an armed guard, it did not prove that he made a material misrepresentation on his visa application and, thus, his citizenship should not have been revoked. He is, in a word, wrong.

I.

In 1950, Theodor Szehinskyj, who was born in Poland but claims to be a Ukranian national, entered the United States, together with his wife and daughter, on an immigrant visa issued to him under the Displaced Persons Act of 1948 ("DPA"), Pub. L. No. 80-774, 62 Stat. 1009, as amended, June 16, 1950, Pub. L. No. 81-555, 64 Stat. 219. Eight years later, the Delaware County Court of Common Pleas granted his petition for naturalization, and he became a United States citizen on March 13, 1958.

In 1999, the government filed an action under section 340(a) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. S 1451(a), seeking revocation of Szehinskyj's citizenship on the ground that he assisted the Nazi government of Germany in persecuting individuals because of their race, religion and national origin when he served as an armed Nazi concentration

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camp guard during World War II. The District Court, after a five-day bench trial, concluded in extensive findings of fact and conclusions of law that Szehinskyj served as a Waffen SS Totenkopf (or "Death's Head") Division concentration camp guard who "assisted in persecution." He was not, therefore, entitled to the immigrant visa he received under the DPA and consequently was not lawfully admitted and eligible for naturalization under 8 U.S.C. S 1427(a)(1).¹ His citizenship was revoked. The District Court had jurisdiction under 28 U.S.C. SS 1331 & 1345. We have jurisdiction under 28 U.S.C. S 1291. We will affirm.

A. Material Misrepresentation Not Required

As suggested at the outset, Szehinskyj raises two issues on appeal: insufficiency of the evidence, albeit with various permutations and combinations, and the failure of the government to prove that he made a material misrepresentation on his visa application. We will deal with these issues in reverse order because the latter issue can be swiftly put to rest. Our review of what is a pure issue of law is plenary.

It is beyond dispute that "there must be `strict compliance' with all the congressionally imposed prerequisites to naturalization, and failure to comply with any of these terms renders the naturalization illegally procured and subject to revocation under section 1451(a) of the Immigration and Nationality Act." United States v. Breyer, 41 F.3d 884, 889 (3d Cir. 1994) (quoting Fedorenko v. United States, 449 U.S. 490, 506 (1981)). Because Szehinskyj entered this country under a visa issued to him pursuant to the DPA, the legality of his naturalization ultimately turns on his eligibility under that Act. Id.

Section 3(a) of the DPA made immigration visas available to "eligible displaced persons." 62 Stat. 1010. Any person who "assisted the enemy in persecuting civil populations" was excluded from the definition of an eligible displaced person. DPA S 2(b), 62 Stat. 1009 (incorporating the definition of displaced person in Annex I to the Constitution of the International Refugee Organization); see also Fedorenko, 449 U.S. at 495 & n.3. Section 13 of the Act, the section at issue here, states in pertinent part:

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

DPA, as amended, 64 Stat. 219, 227. Thus, Szehinskyj was not eligible for his visa if, prior to obtaining the visa, he had advocated or assisted in persecution based on race, religion, or national origin. Assistance in persecution constitutes illegal procurement. Breyer, 41 F.3d at 889; United States v. Koreh, 59 F.3d 431, 438-42 (3d Cir. 1995).

But, says Szehinskyj, the government failed to prove that he obtained his visa because of a material misrepresentation and that this, too, is required. It is not. Whether or not Szehinskyj made, and the government proved, a material misrepresentation is irrelevant, for no such proof is required by the plain language of section 13 of the DPA.

We now make explicit that which has heretofore been implicit in our cases. The

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assistance in persecution ground for visa ineligibility is an independent ground that does not include a fraud element; once a determination of ineligibility is made on this ground, there is no need to look for and find a material misrepresentation. United States v. Tittjung, 235 F.3d 330, 341 (7th Cir. 2000); cf. Breyer, 41 F.3d at 889-91 (finding ineligibility without examining whether any misrepresentation occurred); Koreh, 59 F.3d at 438-42 (same).

As the Tittjung Court explained:

To adopt Tittjung's reasoning, we would be forced to ignore the plain language of S 13(a) of the DPA as amended in 1950, something we cannot do. That Section states that `No visas shall be issued under the provision of this Act, as amended... to any person who advocated or assisted in the persecution of any person because of race, religion, or national origin.' Section 13(a) does not contain a fraud element, but rather provides wholly independent grounds for denaturalization.

The Court concluded:

Once [the] determination was made [that Tittjung's service as an armed concentration camp guard meant that he had assisted in persecution], the [district] court did not and was under no obligation to assess whether Tittjung had made misrepresentations in order to procure his visa.

Requiring a finding of misrepresentation in order to determine illegal procurement would not only be inconsistent with the plain meaning of [section 13 of] the DPA, but would be in direct conflict with previous federal case law on the matter.

Tittjung, 235 F.3d at 341.

Szehinskyj, ignoring the plain language of the DPA and ignoring Tittjung, argues that a material misrepresentation is the jurisdictional fact under which, in Fedorenko, the Court predicated the invalidity of the visa before it. But, aside from other distinctions between that case and this, the Fedorenko Court was not considering an assistance in persecution charge. Rather, the Court was considering a charge against petitioner under section 340(a) of the INA, 66 Stat. 260, as amended, 8 U.S.C. S 1451(a), which requires revocation of citizenship that was "illegally procured" or "procured by concealment of a material fact or by willful misrepresentation," and section 10 of the DPA, 62 Stat. 1013, which provided that "[a]ny 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."

Specifically, as relevant to the issue before the Court,...