United States v. Dercacz, 80 CV 1854.

• Decision Date: 02 February 1982
• Docket Number: No. 80 CV 1854.,80 CV 1854.
• Citation: 530 F. Supp. 1348
• Parties: UNITED STATES of America, Plaintiff, v. Michael DERCACZ, a/k/a Michael Derkacz, Defendant.
• Court: U.S. District Court — Eastern District of New York

530 F. Supp. 1348

UNITED STATES of America, Plaintiff, v. Michael DERCACZ, a/k/a Michael Derkacz, Defendant.

No. 80 CV 1854.

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

February 2, 1982.

Edward R. Korman, U. S. Atty., E. D. N. Y., Brooklyn, N. Y. by Allan A. Ryan, Jr., Director, Neal M. Sher, Deputy Director, Rodney G. Smith, Clarice R. Feldman, and Janet K. DeCosta, Trial Attys., Criminal Division, U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Schiano & Wallenstein by Stanley H. Wallenstein, and Michael Piznak, New York City, for defendant.

MEMORANDUM AND ORDER

NEAHER, District Judge.

The Government brings this action pursuant to section 340(a) of the Immigration and Nationality Act of 1952 (INA), 8 U.S.C. § 1451(a), to revoke the United States citizenship of defendant Michael Dercacz, to set aside the November 11, 1954 district court order admitting defendant to citizenship, and to cancel the certificate of naturalization, No. 7381357, issued pursuant to that order. Jurisdiction is conferred upon this Court by 28 U.S.C. § 1345, and 8 U.S.C. §§ 1421(a) and 1451(a).

The basis of the complaint is that defendant served as a member of the Ukrainian police force during World War II, that the Ukrainian police assisted the Germans in persecuting civilians in Nazi-occupied Ukraine territory, and that defendant concealed his Ukrainian police service both when he applied for immigration to the United States and when he applied for naturalization. Contending that defendant procured his citizenship illegally or by material misrepresentation, and that no genuine material fact issues exist, the Government seeks summary judgment under Rule 56, F.R.Civ.P.¹

The significant facts adduced from extensive pretrial depositions and interrogatories and from United States immigration records follow. Defendant, who presently resides within the jurisdiction of this Court, was born in Zheldec, Ukraine, U.S.S.R., on February 22, 1909. In 1941, subsequent to Nazi German occupation of the Ukraine, defendant — then about 32 years old — voluntarily joined a Ukrainian police force in the town of Novy Yarychev, located in the region of L'vov within the Galicia district of the Ukraine. He was issued a uniform and a rifle and served as a salaried full-time policeman until July 1944.

In 1942, some 2,000 Jews of Novy Yarychev and other Jews from surrounding villages were forcibly concentrated in a ghetto near the town marketplace. The Jews were required to wear identifying armbands, were restricted in movement, trade, food and water, and some were used as forced laborers. In January 1943, the Jews were rounded up and killed by German forces.

After the war, on April 27, 1949, in order to enter the United States, defendant filed and signed a visa application in Germany, claiming eligibility under the Displaced Persons Act of 1948 (DPA), ch. 647, 62 Stat. 1009-14 (1948). On the visa application, defendant's occupation was listed as "dairy farmer." On May 26, 1954, approximately five years after he entered the country, defendant submitted a preliminary application to the Immigration and Naturalization Service for naturalization. In his application, defendant responded negatively to the question whether he had ever committed a crime of moral turpitude. On September 22, 1954, defendant submitted a petition for naturalization, swearing to the truth of statements made in the preliminary application. Finally, on November 11, 1954, defendant's petition for naturalization was granted.

The pivotal statutory provision is INA § 340(a), which requires revocation of citizenship that was "illegally procured or ... procured by concealment of a material fact or by willful misrepresentation ...." 8 U.S.C. § 1451(a). The Government's case turns on the two independent prongs of INA § 340(a): illegal procurement and fraudulent procurement. Affirmative resolution of either is sufficient to revoke defendant's citizenship. For the reasons which follow, the Court finds that both prongs have been satisfied, and that no genuine triable issue exists which requires further development of the record.

Under the first prong of INA § 340(a), the Government argues that defendant was ineligible for the visa he obtained as a displaced person under the DPA; consequently, he would not have been lawfully admitted into this country, and his subsequent citizenship would therefore have been illegally procured. The question, then, is whether defendant legitimately entered the United States under the DPA.

The definitional section of the DPA, section 2, incorporated the definition of "refugees or displaced persons" contained in the International Refugee Organization (IRO) Constitution. See § 2, 62 Stat. 1009; 62 Stat. 3037-55 (1946). The IRO Constitution excluded from eligibility any person who "assisted the enemy in persecuting civil populations." Annex I, Part II, 62 Stat. 3051-52. Therefore, individuals who so assisted the enemy would be ineligible for admission into the United States:

"The Act's definition of `displaced persons' eligible for immigration to this country specifically excluded individuals who had `assisted the enemy in persecuting civilians' or had `voluntarily assisted the enemy forces ... in their operations ....'" Federenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 741, 66 L.Ed.2d 686 (1981) (footnotes omitted).

Defendant admits that upon his own initiative he served as a uniformed, armed member of the Ukrainian police in Novy Yarychev during the time of the virtual incarceration and subsequent extermination of the 2,000 Jews. Dercacz Dep. at 80-84. Hence, the question becomes whether such service constituted assistance to the Nazis in persecuting the Novy Yarychev Jews. More specifically, the question for the purposes of the instant motion is whether defendant has "set forth specific facts" raising "a genuine issue for trial" as to whether his service constituted such assistance. Rule 56, F.R.Civ.P.

Defendant's sole opposition to summary judgment on this issue is found in his opposing affidavit:

"We the Ukrainian police never had jurisdiction and neither I or sic my fellow Ukrainian police members had any contact or anything to do with the Jewish Ghetto or persons generally in the Novy Yarichiw Police District." Defendant's Opp.Aff. ¶ 8.

Yet this conclusory statement clearly fails to meet the obligation imposed by Rule 56. The cases uniformly hold that the opposing party must supply "supporting arguments or facts," S.E.C. v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978), and "concrete particulars," Dressler v. MV Sandpiper, 331 F.2d 130, 133 (2d Cir. 1964), in order to present a genuine issue for trial. Defendant's unsupported denial makes the instant claim particularly appropriate for disposition without trial.

"Summary judgment, we have often remarked, is a valuable tool for piercing conclusory allegations and disposing of unsupportable claims prior to trial." Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970).

Nevertheless, the Court is aware of the preciousness of the right to citizenship and the severe consequences of its loss. See Federenko, supra, 101 S.Ct. at 747. In fact the Supreme Court has required that revocation of citizenship must be based on "clear, unequivocal, and convincing" evidence; "it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt." Maxwell Land-Grant Case, 121 U.S. 325, 381, 7 S.Ct. 1015, 1028, 30 L.Ed. 949 (1887), quoted in Federenko, supra 101 S.Ct. at 747. In this light, defendant's mere failure to present factual support for his naked denial may be insufficient grounds for granting the Government's motion. Yet there is more. Defendant's own deposition testimony clearly and unequivocally controverts his present position.

Defendant testified that one of his duties on the Ukrainian police force was to bring Jews not wearing the identifying armband to the police station and to report to the commandant and the Gestapo. Dercacz Dep. at 98. He further testified that his duty was to report civilians known to have sold food to the the ghettoized Jews. Id. at 100. This testimony leaves no doubt that defendant, by virtue of his admitted duties, assisted the Nazis in persecuting civilian Jews. However, the question remains whether defendant's subsequent affidavit raises triable issues.

In summary judgment proceedings, where an affidavit conflicts with former testimonial evidence, the question is whether the affidavit raises genuine issues of fact. Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). Triable issues of fact cannot be created merely by sworn statements, conflicting with previous testimony, submitted for the purpose of opposing summary judgment.

"If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id.

Here the Court is convinced that defendant's affidavit fails to raise a genuine triable issue. Rather, it raises "sham issues which should not subject the Government to the burden of a trial." Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (9th Cir. 1975). Defendant failed to submit any supporting facts which suggest that the former testimony should be discredited; therefore, the Court credits defendant's prior unambiguous admissions. These admissions provide clear and convincing evidence of defendant's invidious duties as a member of the Ukrainian police in Novy Yarychev and leave no doubt that defendant's service in such police force assisted the Nazis in persecuting civilian Jews.

With the foregoing in mind, the Court is of opinion that no genuine triable issue exists with respect to defendant's ineligibility for a visa as a displaced person, due to his exclusion under DPA § 2.² As a...