US v. Breyer, Civ. No. 92-2319.

• Decision Date: 19 January 1994
• Docket Number: Civ. No. 92-2319.
• Citation: 841 F. Supp. 679
• Parties: UNITED STATES of America v. Johann BREYER.
• Court: U.S. District Court — Eastern District of Pennsylvania

841 F. Supp. 679

UNITED STATES of America v. Johann BREYER.

Civ. No. 92-2319.

United States District Court, E.D. Pennsylvania.

December 20, 1993.

As Amended January 19, 1994.

COPYRIGHT MATERIAL OMITTED

Debra Leanne Wrobel Cohn, U.S. Attys. Office, Philadelphia, PA, Denise Noonan Slavin, U.S. Dept. of Justice, Crim. Div., Office of Special Investigations, Michael D. Bergman, U.S. Dept. of Justice-Office of Special Investigations, Washington, DC, for plaintiff.

John Rogers Carroll, Carroll & Carroll, Joseph V. Restifo, Philadelphia, PA, for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

YOHN, District Judge.

I. INTRODUCTION

This is a denaturalization action filed by the United States government pursuant to Section 340(a) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1451(a). The court has jurisdiction under 28 U.S.C. § 1345 and 8 U.S.C. §§ 1421(a) and 1451(a).

On July 7, 1993, the court granted the government's motion for summary judgment with respect to counts I and II of its complaint. United States v. Breyer, 829 F.Supp. 773 (E.D.Pa.1993). The court found that the defendant, Johann Breyer, advocated or assisted in the persecution of people because of race, religion or national origin as an armed guard at the Buchenwald concentration camp and the Auschwitz death camp. Because of the defendant's assistance in persecution, Section 13 of the Displaced Persons Act of 1948 ("DPA"), as amended, made the defendant's entry visa into the United States invalid. The court also found that the defendant's service as a member of the SS Totenkopf of the Waffen-SS constituted participation in a movement hostile to the United States and thus rendered him ineligible to receive an entry visa under Section 13 of the DPA. The court concluded that because the defendant was ineligible for the entry visa he obtained in order to enter the United States, the defendant failed to satisfy all the statutory requirements for naturalization. Therefore, the court held that the defendant's citizenship by naturalization was illegally procured. The government withdrew the other counts of the complaint at trial.

The defendant responded to the government's motion for summary judgment that he was a citizen by birth because his mother was born in the United States. The court examined this affirmative defense separately because it found it to be a distinct issue from that of naturalization. The court found that Section 1993 of the Revised Statute of 1874 as applied to the defendant was unconstitutional since it conferred United States citizenship to foreign-born offspring of United States citizen fathers but not to United States citizen mothers. The court concluded that this statute was unconstitutional because there was no legitimate good faith basis for the gender discrimination and it therefore violated the equal protection component of the Fifth Amendment due process clause. The court expressly reserved the factual issue of the birthplace of the defendant's mother for trial.

The court conducted the bench trial on the remaining issues during four days in September, 1993, and October, 1993. The focus of the trial was the birthplace of the defendant's mother. After carefully reviewing the testimony and the exhibits, and the suggested findings of fact and conclusions of law submitted by the parties, the court sets forth the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

A. Defendant's Background

1. The defendant's father was Johann (Jan) Breyer. He was born on March 13, 1891, in Neuwalddorf (Nova Lesna), Czechoslovakia.

2. The defendant's mother was Katharina Susanna Breyer.

3. The defendant's parents were married on November 17, 1913, in Neuwalddorf, Czechoslovakia. Neither of the defendant's parents ever resided in the United States after their marriage.

4. The defendant was born on May 30, 1925, in Neuwalddorf, Czechoslovakia.

5. The defendant resided with his parents in Neuwalddorf, Czechoslovakia from 1925 to 1943.

B. Defendant's Mother's Birthplace

6. No birth certificate for the defendant's mother has been located in Philadelphia, Pennsylvania.

7. No birth certificate for the defendant's mother has been located in Slovakia by the District Office Poprad Record Office of Velky Slavkov, the Embassy of the Slovak Republic or the District Office Poprad to the Consulate General of the Slovak Republic in Munich.

8. No United States passport was ever issued for the defendant's mother.

9. No person is alive today that was present at the birth of the defendant's mother.

10. Because of the absence of a contemporaneous official record of the birthplace of the defendant's mother, the parties presented secondary evidence as to the place of her birth.

(a) Facts Supporting Birth in the United States

11. The parish register for the Bethany Lutheran Church of Manayunk, which is located in the Roxborough section of Philadelphia, Pennsylvania, contains an entry in volume 2, pages 96 and 97, line 17 that defendant's mother, Katharina Susanna Breyer, was baptized at the church on March 27, 1898. This entry also states that the defendant's mother was born on December 23, 1897, to Johann Breyer and Katharina Schmegner.

12. Other entries in volume 2 of the parish register for the Bethany Lutheran Church of Manayunk contain a notation when a child baptized in the church was born in another country or born in a county outside of Philadelphia. The entries of place of birth were written by the same pastor who wrote the entry for the defendant's mother. The baptismal entry for the defendant's mother contains no such notation that her place of birth was outside the country or outside of Philadelphia County.

13. The parish register for the Bethany Lutheran Church of Manayunk also contains an entry in volume 2, pages 82 and 83, line 30 that Maria Breyer, the defendant's mother's sister (the defendant's aunt), was baptized at the church on September 1, 1895. This entry notes that Maria Breyer was born on August 10, 1895, to Johann Breyer and Katharina Schmegner. The baptismal entry for Maria Breyer also does not contain a notation that her place of birth was outside the country or outside of Philadelphia County.

14. A 1930 Czechoslovak census for the defendant's childhood household in Neuwalddorf, which was taken before the outbreak of World War II, states that the defendant's mother was born on December 23, 1897, in Philadelphia, Pennsylvania.

15. The government concedes that since 1952, the defendant has consistently stated that his mother was born in the United States.

16. The defendant's mother's application for expulsion damages that was signed by her on March 17, 1953, states that she was born on December 23, 1897 in Manayunk, Pennsylvania in the United States.

17. The September 28, 1953, Federal Republic of Germany Personal Identification card for the defendant's mother, which contains her photograph and her signature, states that she was born on December 23, 1897, in Manayunk in the United States.

18. The defendant's mother's application for the issuance of an identity card for displaced persons and refugees that was signed by her on October 11, 1953, states that she was born on December 23, 1897, in Manayunk in the United States.

19. The Federal Republic of Germany Identification Card for Displaced Persons and Refugees that was issued on March 18, 1955, to the defendant's mother and which was signed by her states that she was born on December 23, 1897, in Manayunk in the United States.

20. The defendant's application to file a petition for naturalization that was filed on August 19, 1957, states that his mother was a citizen of the United States since she was born in Philadelphia, Pennsylvania in 1897.

21. The death certificate for the defendant's mother, which was issued on July 14, 1964, states that she was born on December 23, 1897, in Manayunk, Pennsylvania in the United States.

22. By stipulation of the parties, if the defendant's brother-in-law, Adalbert Breyer, was called as a witness, he would testify that the defenadnt's mother told him when he was a young child that she was born in the Manayunk section of Philadelphia, Pennsylvania in the United States. Adalbert Breyer would also testify that when he resided in Neuwalddorf, Czechoslovakia, he heard family members and members of the community state that the defendant's mother was born in the United States.

23. The defendant's mother had a reputation among the community of Neuwalddorf, Czechoslovakia that she was born in the United States. (September 7, 1993 testimony of Margaret Badke; Deposition testimony of Mary Muhlenbacher and Elvira Zaborsky).

24. The defendant's son, Henry Breyer, visited the defendant's mother (his grandmother) in Germany during a family visit in 1958 and 1959. When Henry Breyer was in Germany, he primarily spoke German. The defendant's mother told him in German that she was born in Philadelphia. During Henry Breyer's visit, the defendant's mother would sometimes speak to him in English.

25. Christa Henolova Breyer, the divorced wife of the defendant, first met the defendant's mother in 1950. Christa Breyer saw the defendant's mother frequently from 1950 until the time she emigrated to the United States in 1953. After Christa Breyer and the defendant decided to emigrate to the United States, the defendant's mother told her on numerous occasions that she was born in the United States and referred to Philadelphia as the City of Brotherly Love.

26. The defendant's mother's two brothers, Jacob and John Breyer, lived in the United States. They told both Christa Breyer and the defendant that the defendant's mother was born in Philadelphia.

27. Christa Breyer testified that other family members and relatives in Pirk, Germany told her that the defendant's mother was born in the United States.

28. The defendant testified that his mother told him that she was born in the Manayunk sectio...