United States v. Walus

• Decision Date: 30 May 1978
• Docket Number: No. 77 C 279.,77 C 279.
• Citation: 453 F. Supp. 699
• Parties: UNITED STATES of America, Plaintiff, v. Frank WALUS, a/k/a Franciszek Walus, Defendant.
• Court: U.S. District Court — Northern District of Illinois

453 F. Supp. 699

UNITED STATES of America, Plaintiff, v. Frank WALUS, a/k/a Franciszek Walus, Defendant.

No. 77 C 279.

United States District Court, N. D. Illinois, E. D.

May 30, 1978.

Thomas P. Sullivan, U. S. Atty., John L. Gubbins and William F. Conlon, Asst. U. S. Attys., Chicago, Ill., for plaintiff.

Robert A. Korenkiewicz, Chicago, Ill., for defendant.

MEMORANDUM OF DECISION

JULIUS J. HOFFMAN, Senior District Judge.

This is an action under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101, et seq., to cancel the Certificate of Naturalization of the defendant, Frank Walus, also known as Franciszek Walus, and to revoke the order admitting him to United States citizenship. That order was entered by the United States District Court for the Northern District of Illinois on August 18, 1970. The court's jurisdiction in this matter derives from 8 U.S.C. § 1421(a).

The activities of the German Gestapo during World War II constitute one of the darkest chapters in world history. Walus' role therein is at the heart of this litigation. In September of 1939, the German military forces invaded the Polish towns of Kielce and Czestochowa (or Tschenstochau).¹ In Czestochowa, in early 1940, a large ghetto was established wherein members of the Jewish population were required to live. The large ghetto in Czestochowa was liquidated in September, 1942, and a smaller ghetto was established for those Jews who remained. That smaller ghetto was subsequently liquidated in 1943. Similarly, in Kielce, a large ghetto was established in the spring of 1941 for the Jewish population of that city. This ghetto was liquidated in August of 1942. Remaining Jews were thereafter contained in a smaller ghetto until its liquidation in 1943.²

In its four-count complaint, the plaintiff, United States of America, asserts that during World War II the defendant was a member of the German Gestapo, the Schutzstaffeln (or "SS"), or other similar organization (hereinafter collectively referred to by the term "Gestapo"). Acting in that capacity, he is alleged to have committed a number of "war crimes" or war atrocities against civilians in Czestochowa and Kielce, Poland between 1939 and 1943. The plaintiff also asserts that the defendant concealed both his membership in the Gestapo and the commission of those atrocities from the immigration authorities when he obtained his United States citizenship. It is on the basis of these allegations that the plaintiff seeks the cancellation of Walus' Certificate of Naturalization and the revocation of his United States citizenship.

Section 316(a) of the Immigration and Nationality Act, as codified in 8 U.S.C. § 1427(a), provides that:

No person . . . shall be naturalized unless such petitioner, (1) immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State in which the petitioner filed the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

In Counts I and II, the plaintiff asserts that the fact of the defendant's commission of war atrocities and/or his membership in the Gestapo was material to the good moral character requirement of § 316(a). By failing to report this information, Walus is alleged to have procured his naturalization by concealment of a material fact or by willful misrepresentation. Such concealment or misrepresentation assertedly constitutes a violation of § 340(a) of the Act, 8 U.S.C. § 1451(a), for which revocation and setting aside are prescribed. Section 340(a) is in relevant part as follows:

It shall be the duty of the United States Attorneys . . . upon affidavit showing good cause therefor, to institute proceedings . . . 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 . . ..

In Count III, the actual commission of war crimes in Czestochowa and/or Kielce, Poland between 1939 and 1943 is alleged as an additional basis for the relief sought. The Government argues that because of his commission of or participation in crimes or atrocities, Walus lacked the good moral character required for naturalization under § 316, 8 U.S.C. § 1427, and thus procured his naturalization illegally. Finally, in Count IV, Walus is alleged to have given false testimony during his naturalization proceeding when he knowingly concealed his membership in the Gestapo and his commission of war crimes; these acts of concealment constitute a sufficient failure to satisfy the good moral character requirement of § 316, 8 U.S.C. § 1427, to warrant the issuance of the prayed for order of cancellation and revocation. See § 101(f)(6) of the Act, 8 U.S.C. § 1101(f)(6), which provides that "(n)o person shall be regarded as, or found to be, a person of good moral character who, . . . has given false testimony for the purpose of obtaining any benefits under this (Act) . . .."

A showing that an applicant for citizenship lacked the requisite good moral character and that such lack of character was concealed from immigration authorities is sufficient to warrant the entry of an order of revocation and cancellation. United States v. Wisdom, 320 F.Supp. 286 (E.D. Tenn.1970), citing Berenyi v. District Director, Immigration and Naturalization Service, 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967); In re Haniatakis, 376 F.2d 728 (3rd Cir. 1967); Petition for Naturalization of K., 174 F.Supp. 343 (D.C.Md. 1959). Alternatively, in any case where a petitioner has obtained his order of admission to United States citizenship and Certificate of Naturalization by concealment of material facts and willful misrepresentation, revocation and cancellation are appropriate. Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961); United States v. Riela, 215 F.Supp. 914 (D.C.N.J.1963), aff'd., 337 F.2d 986 (3rd Cir. 1964); See also, Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500 (1946).

It cannot be doubted that Walus' conduct during World War II, as it has relevance to a determination of his moral character, could properly be considered in determining whether to grant his Petition for Naturalization. Section 316(e) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1427(e) provides in relevant part:

. . . in determining whether the petitioner has sustained the burden of establishing good moral character . . . The court shall not be limited to the petitioner's conduct during the five years preceding the filing of the petition, but may take into consideration as a basis for such determination the petitioner's conduct and acts at any time prior to that period.

Numerous courts have recognized that an applicant's complete past is subject to examination in the evaluation of his fitness for citizenship, and further that this same scope applies in a suit seeking cancellation and revocation thereof. Costello v. United States, supra; Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960); United States v. DeLucia, 256 F.2d 487 (7th Cir. 1958); Stevens v. United States, 190 F.2d 880 (7th Cir. 1951).

Nor can it be doubted that if the Government has established its allegations against Walus, it is entitled to the relief it seeks. Failure to disclose the commission of crimes or offenses during naturalization proceedings can constitute a sufficient concealment of a material fact to justify denaturalization. Costello v. United States, supra; United States v. DeLucia, supra; United States v. Montalbano, 236 F.2d 757 (3rd Cir. 1956); Corrado v. United States, 227 F.2d 780 (6th Cir. 1955); United States v. Accardo, 208 F.2d 632 (3rd Cir. 1953); cert. denied, 347 U.S. 952, 74 S.Ct. 677, 98 L.Ed. 1098 (1954). See also, United States v. Genovese, 236 F.2d 757 (3rd Cir. 1956), cert. denied, 352 U.S. 952, 77 S.Ct. 327, 1 L.Ed.2d 244 (1956); United States v. Oddo, 314 F.2d 115 (2nd Cir. 1963); Stacher v. United States, 258 F.2d 112 (9th Cir. 1958). Thus, by sustaining its burden as to the facts alleged in its complaint, the Government demonstrates that it is entitled to have the court enter an appropriate order granting the relief sought in its complaint.

The court appreciates that if the relief sought by the Government is ordered, the defendant will be divested of one of his most fundamental rights, that of American citizenship. For this reason, naturalization decrees are not to be revoked without the utmost consideration. To sustain its burden of proof in a denaturalization proceeding, the United States must therefore establish its allegations by evidence that is clear, convincing, unequivocal, and such as does not leave the issue in doubt. See Costello v. United States, 365 U.S. at 269, 81 S.Ct. 534, and Chaunt v. United States, 364 U.S. at 353, 81 S.Ct. 147, both citing Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943) and Baumgartner v. United States, 322...