U.S. v. Wasylyk

• Decision Date: 13 July 2001
• Docket Number: No. 1:99-CV-1991.,1:99-CV-1991.
• Citation: 162 F.Supp.2d 86
• Parties: UNITED STATES of America, Plaintiff, v. Mykola WASYLYK, Defendant.
• Court: U.S. District Court — Northern District of New York

162 F.Supp.2d 86

UNITED STATES of America, Plaintiff, v. Mykola WASYLYK, Defendant.

No. 1:99-CV-1991.

United States District Court, N.D. New York.

July 13, 2001.

Joseph A. Pavone, Esq., United States Attorney, James C. Woods, Esq., Assistant United States Attorney, Albany, Eli M. Rosenbaum, Esq., Director, Susan L. Siegal, Esq., Principal Deputy Director, Ellen L. Chubin, Esq. and Jeffrey L. Menkin, Esq., Senior Trial Attorneys, Office of Special Investigations, United States Department of Justice, Washington, D.C., Counsel for Plaintiff.

Brian M. Gildea, Esq., The Hotchkiss House, New Haven, CT, Counsel for Defendant.

MEMORANDUM-DECISION AND ORDER

MORDUE, District Judge.

INTRODUCTION

The United States moves for summary judgment, Fed.R.Civ.P. 56, on Count I of its complaint in this action to revoke defendant's United States citizenship on the ground that it is based on an invalid visa.

BACKGROUND

On November 18, 1999, the United States filed a four-count complaint to revoke defendant's citizenship based on the assertion that it was illegally procured and is therefore revocable under 8 U.S.C. § 1451(a)¹, because it was not procured while defendant was "lawfully admitted for permanent residence" to the United States, as required by 8 U.S.C. § 1427(a).² The United States moves for summary judgment on Count I, which charges that defendant's admission to the United States was not lawful because it was based on a visa for which he was ineligible under the Displaced Persons Act of 1948 ("DPA")³ due to his service during World War II as a guard at Nazi-operated forced-labor camps at Trawniki and Budzyn, which service constituted assistance to the enemy in the persecution of civil populations.

In order to be naturalized as a United States citizen, one must be lawfully admitted for permanent residence, be of good moral character, be attached to the principles of the Constitution of the United States, and be well disposed towards the good order and happiness of the United States. 8 U.S.C. § 1427(a)⁴; see United States v. Sokolov, 814 F.2d 864, 869 (2d Cir.1987). During the years after the Second World War, the DPA, which permitted refugees and displaced persons to emigrate to the United States without regard to previous immigration quotas, provided one avenue of lawful admission for permanent residence. Section 2(b) of the DPA incorporated by reference the definition of "refugees or displaced persons" in the Constitution of the International Refugees Organization ("IRO")⁵, which provided that persons who could be shown "to have assisted the enemy in persecuting civil populations" were ineligible for refugee or displaced person status. IRO CONST., Annex I, Part II, 62 Stat. at 3051-52; see Fedorenko v. United States, 449 U.S. 490, 495 nn. 3, 4, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). Entry into the United States pursuant to a DPA visa by a person who was ineligible for refugee or displaced person status did not constitute lawful admission for permanent residence; thus, he or she could not legally procure citizenship under 8 U.S.C. § 1427(a). "It would defeat the paramount purpose of the DPA — to assist those whose lives had been disrupted by persecution — to extend the statute's benefits to the persecutors themselves." United States v. Schmidt, 923 F.2d 1253, 1259 (7th Cir.1991).

The Supreme Court has held that the Government "carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship." Costello v. United States, 365 U.S. 265, 269, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). Evidence justifying revocation of citizenship must be "`clear, unequivocal, and convincing'" and not leave "the issue in doubt." Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943). "[T]here must[, however,] be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship `illegally procured,' and naturalization that is unlawfully procured can be set aside." Fedorenko, 449 U.S. at 506, 101 S.Ct. 737. As the Supreme Court observed, "[n]o alien has the slightest right to naturalization unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it ... and demand its cancellation unless issued in accordance with such requirements." United States v. Ginsberg, 243 U.S. 472, 475, 37 S.Ct. 422, 61 L.Ed. 853 (1917).

It is familiar law that a party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the Court, viewing the evidence in the light most favorable to the nonmovant, determines that the movant has satisfied its burden, the burden then shifts to the nonmovant to adduce evidence establishing the existence of a disputed issue of material fact requiring a trial. See id. If the nonmovant fails to carry this burden, summary judgment is appropriate. See id. Even in denaturalization cases, the facts of a case may be such that revocation of citizenship at the summary judgment stage is appropriate. See, e.g., United States v. Dailide, 227 F.3d 385, 389 (6th Cir.2000).

THE MOTION

The United States, in moving for summary judgment on Count I, argues that defendant's admitted service as an armed guard at the Trawniki and Budzyn forcedlabor camps constitutes assistance in the persecution of civilians as a matter of law and that therefore defendant was ineligible for a visa under the DPA.

Affidavit of Dr. Peter R. Black

Dr. Peter R. Black, Senior Historian and Director of the Division of the Senior Historian at the Center for Advanced Holocaust Studies at the United States Holocaust Memorial Museum in Washington, D.C., and former Historian at the Office of Special Investigations in the United States Department of Justice, submits a detailed affidavit reviewing the evidence in the file including defendant's deposition testimony and the extensive documentary evidence. He concludes:

The evidence demonstrates that the defendant, Mykola WASYLIK, was born October 4, 1923, in what is today Tyshkivtsi, Ukraine. He came to the Trawniki Training Camp on or about April 7, 1943. There, armed with a rifle, he guarded the Jewish prisoners in the adjacent labor camp while training at Trawniki for approximately two and one-half months. The evidence shows that WASYLYK then transferred to the SS Labor Camp Budzyn on June 24, 1943, where he served in the Trawniki-trained guard detachment from June 24, 1943 until approximately late November 1943. There, too, he was armed and guarded Jewish prisoners. I have reviewed wartime records and postwar statements and testimonies that document Mykola WASYLYK's membership in a unit known as the SS Guard Forces of the SS and Police Leader in the Lublin District, his training at Trawniki Training Camp and his subsequent service in the Trawniki-trained guard detachment assigned to the SS Labor Camp Budzyn. Based on this documentation and upon my knowledge of the duties of the guards trained in and assigned to such units, I conclude that Mykola WASYLYK, the defendant, served as an armed guard of civilian prisoners at a forced labor camp for Jews at Trawniki in the period between April 7, 1943 and June 24, 1943. I conclude further that he served as an armed guard at a forced labor camp for Jews at Budzyn in the period between June 24, 1943 and approximately November 1943. I also conclude that at both camps he assisted in preventing prisoner escapes and in enforcing the conditions of the prisoners' unjust imprisonment.

Extensive and undisputed documentary evidence supports Dr. Black's affidavit.

Visa application

Defendant's application for a DPA visa describes his location during the war as "Apr. 43-Apr. 45 at Dresden, Germany." The supporting report of the Displaced Person's Commission, dated April 28, 1949, states that defendant "farmed near Tyszkiwci, Galicia, Poland [from 1940 to 1943]; that in April 1943 he entered Germany and was employed as a laborer by a paper firm in Dresden, Germany; [and] that from 1945 to 1946 he was employed as a policemen in the [displaced persons'] camp police of Augsburg, Germany[.]" The visa was granted on May 18, 1949.

Defendant's deposition testimony

In his June 5, 2000, deposition in this action, defendant testified as follows. He was born in 1923 in the village of Tyshkivtsi (Tyszkowce), which was formerly part of Poland and is now part of Ukraine. In April 1943, a German official came to his village and ordered about 20 young men, including defendant, to work for the Germans. Under guard of German soldiers, they were taken by train to a camp in Trawniki, Poland. They were assigned to barracks, given uniforms and trained to use rifles. Once, in late May, defendant was assigned to patrol the perimeter of the camp to prevent people from entering or leaving. At some point he learned that about 500 or 600 Jews were in the camp.

In July 1943, defendant's unit, still under German control, was sent to Budzyn, Poland. Defendant knew that Budzyn was a labor camp for Jews. He estimated that there were about 1,000 Jews there, both men and women. Neither he nor anyone else killed any prisoners during the three months he was there. He was occasionally assigned to watch from a watchtower. On those occasions he carried a loaded rifle he carried extra ammunition in a case. Although defendant's deposition testimony occasionally appears contradictory and evasive, it is clear without question that he admits having assumed guard duty in a watchtower at Budzyn numerous times. The Court attaches as an Appendix the portions of defendant's testimony which pertain to his duties at Budzyn.

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