United States v. Osidach, Civ. A. No. 79-4212.
Decision Date | 30 March 1981 |
Docket Number | Civ. A. No. 79-4212. |
Parties | UNITED STATES of America v. Wolodymir OSIDACH a/k/a Wolodymir Osidacz. |
Court | U.S. District Court — Eastern District of Pennsylvania |
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Neal Sher, Deputy Director, Rodney G. Smith, Atty., Norman Moscowitz, Atty., Office of Special Investigations, U. S. Dept. of Justice, Washington, D. C., for plaintiff.
Louis S. Konowal, Philadelphia, Pa., for defendant.
Presently before the Court is a denaturalization action filed by the United States as plaintiff, pursuant to section 340(a) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1451(a): to revoke and set aside the district court's order admitting defendant Wolodymir Osidach ("Osidach") as a United States citizen; and, to cancel his certificate of naturalization (number 8633492) which was issued pursuant to that order. Jurisdiction is conferred upon this Court under 28 U.S.C. § 1345, and 8 U.S.C. §§ 1421(a), 1451(a).
The Government stands on two major theories, each with several minor subcomponents, upon which it bases its case seeking the denaturalization of Osidach. Both theories are founded upon § 1451(a) of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1451(a) ("INA"), which provides:
(a) It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 1421 of this title 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 of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively: Provided, That refusal on the part of a naturalized citizen within a period of ten years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning his subversive activities, in a case where such person has been convicted of contempt for such refusal, shall be held to constitute a ground for revocation of such person's naturalization under this subsection as having been procured by concealment of a material fact or by willful misrepresentation. If the naturalized citizen does not reside in any judicial district in the United States at the time of bringing such suit, the proceedings may be instituted in the United States District Court for the District of Columbia or in the United States district court in the judicial district in which such person last had his residence.
The two major theories advanced by the Government are: (1) Osidach illegally procured his citizenship; and/or, (2) Osidach willfully misrepresented and/or concealed certain material facts from the immigration authorities at the time he procured his grant of citizenship. The Government contends that it should prevail under either or both theories. It must be kept in mind that, despite the content of the allegations and counter-allegations, this case is not a criminal case but a civil case; accordingly, these theories are necessarily dependent upon common elements of fact which must be proven by the Government by what the United States Supreme Court has recently described as "clear, unequivocal and convincing evidence" which "does not leave the issue in doubt." Fedorenko v. United States, ___ U.S. ___, ___, 101 S.Ct. 737, 747, 66 L.Ed.2d 686 (1981), quoting Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1796 (1943). See also Woodby v. Immigration Service, 385 U.S. 276, 285-286, 87 S.Ct. 483, 487-488, 17 L.Ed.2d 362 (1966). As the Court in Fedorenko stated:
___ U.S. at ___, 101 S.Ct. at 747.
This case raises a myriad of complex and difficult factual and legal issues based upon a series of events spanning nearly 50 years. The following constitutes the procedural chronology around which this decision will flow. In May, 1949, the defendant filed a resettlement and registration form with the International Refugee Organization ("IRO") in order to be certified as a "displaced person of concern to the IRO" under the IRO Constitution Ex. P-17. After being so certified, Osidach then applied to the United States Displaced Persons Commission ("DPC") in June of 1949 for classification as a displaced person, as defined under the Displaced Persons Act of 1948, P.L. No. 80-774, 62 Stat. 1009 ("DPA"). After Osidach's application, the DPC issued its report Ex. P-20. The next step in the procedure was for Osidach to apply to the American Consulate — which he did in Munich, Germany, on July 6, 1949 — seeking an immigration visa to the United States as a displaced person. That entry visa was granted by a vice consul of the American Consulate Ex. P-21. Finally, on the authority of that immigration visa, Osidach entered the...
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