US v. Leprich, 86-CV-72531-DT.

• Decision Date: 13 July 1987
• Docket Number: No. 86-CV-72531-DT.,86-CV-72531-DT.
• Parties: UNITED STATES of America, Plaintiff, v. Johann LEPRICH, a/k/a Johann Lepprich, Defendant.
• Court: U.S. District Court — Western District of Michigan

666 F. Supp. 967

UNITED STATES of America, Plaintiff, v. Johann LEPRICH, a/k/a Johann Lepprich, Defendant.

No. 86-CV-72531-DT.

United States District Court, E.D. Michigan, S.D.

July 13, 1987.

Michael Bernstein, Joseph Lynch, U.S. Justice Dept., Office of Special Investigations, Wash., D.C., Gary M. Maveal, Asst. U.S. Atty., Detroit, Mich., for plaintiff.

William W. Swor, Detroit, Mich., for defendant.

OPINION

HACKETT, District Judge.

Plaintiff United States of America has filed a motion for summary judgment. The material facts are not in dispute. Based upon a careful review of the records and having heard the argument of counsel, the court finds as follows:

Facts

1. Johann Leprich was born on July 7, 1925, in Petelea, Romania. Petelea has also been known by the name of Birk in German and Petele in Hungarian.

2. Leprich became a member of the Waffen SS in November, 1943.

3. Leprich commenced service as a uniformed SS guard at the Mauthausen concentration camp in November or December, 1943.

4. At Mauthausen, Leprich was a member of the SS Totenkopf-Sturmbann (Death's Head Battalion), and wore the skull-and-crossbones symbol on his collar.

(The International Military Tribunal at Nuremberg in 1946 found that the SS, including the Death's Head Battalion, was a criminal organization involved in "the persecution and extermination of Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, administration of the slave labor program and the mistreatment and murder of prisoners of war." (See: Nurnberg Trial, 6 F.R.D. page 69, 143.)

5. Leprich continued to serve at the Mauthausen concentration camp until April or May, 1944.

6. Mauthausen was intended as a camp for severe punitive action against enemies of the Reich.

7. Inmates were starved, beaten, tortured, and killed by a variety of methods, including gassing, hanging, strangling, heart injection, electrocution, beating, drowning, torturing, burning, starving, and shooting.

8. Inmates were forced to work at the camp. Many worked at the quarry where they died of overwork, were beaten to death, or were shot by the guards.

9. Prisoners were forced to cross through the chain of guards so that they would be shot by guards.

10. Incarcerated at Mauthausen were groups including Jews, Gypsies, Jehovah's

Witnesses, and Poles, as well as members of almost every nationality in Europe.

11. Jews were identified as Jews in the camp and were treated especially harshly because they were Jews.

12. Leprich's duty at Mauthausen was to guard the camp inside which the prisoners lived.

13. While performing guard duty at Mauthausen, Leprich carried a rifle on his shoulder and ammunition.

14. At Mauthausen, Leprich was assigned to numerous guard posts around the camp. He stood guard on the ground and in watchtowers.

15. Leprich received pay for his service as a guard at Mauthausen.

16. Leprich was given days off during his service as a guard at Mauthausen.

17. Leprich remained a member of the Waffen SS until his capture by the United States Army in June, 1945.

18. Leprich has never been in Sopron, Hungary.

19. At no time in 1944 or 1945 was Leprich a member of the Hungarian army.

20. Leprich was held as a prisoner-of-war by the United States army until June, 1946.

21. Leprich was issued a visa to immigrate to the United States on February 12, 1952, pursuant to the Displaced Persons Act of 1948, as amended.

22. In his signed and sworn visa application, Leprich listed his residences through 1946 as follows: "1939-1943 Birk, Rumania; May, 1945, soldier in Hungarian army; 1946, Sopron, Hungary."

23. The report of Displaced Persons Commission ("DPC") analyst Edward Kelly refers to Leprich's DPC Fragebogen (application), which gave his history as "Service in the Hungarian Army" from 1943 to 1945 and "Farm help in Hungary and Huettenheim, Germany" from 1945 to 1949.

24. It is untrue that Leprich was a soldier in the Hungarian army from 1943 through May 1945 and that he resided in Sopron, Hungary from May, 1945 through 1946.

25. Upon arriving in the United States, Leprich signed and swore in an affidavit that he had "never advocated or assisted in the persecution of any person because of race, religion, or national origin."

26. In seeking to immigrate to the United States, Leprich never informed any United States official that he had been a member of the Waffen SS or a guard at Mauthausen.

27. If it had been known that Leprich had been a member of the Waffen SS, immigration officials would have commenced an investigation into the nature of that service.

28. If it had been known that Leprich had been a guard at Mauthausen, he would not have been granted a visa.

29. Leprich entered this country on March 29, 1952.

30. Leprich became a United States citizen on December 30, 1958.

Evidence and Law

A certificate of naturalization must be revoked if it was illegally procured. 8 U.S.C. § 1451(a); Fedorenko v. United States, 449 U.S. 490, 516-18, 101 S.Ct. 737, 752-53, 66 L.Ed.2d 686 (1981). Naturalization is illegally procured "if some statutory requirement which is a condition precedent to naturalization is absent at the time the petition for naturalization is granted." United States v. Demjanjuk, 518 F.Supp. 1362, 1380 (N.D.Ohio 1981), aff'd, 680 F.2d 32 (6th Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982); see H.R.Rep. 1086, 87th Cong., 3rd Sess. 39, reprinted in 1961 U.S.Code Cong. & Ad. News, 2950, 2983. Lawful admission into this country, with a valid immigrant visa, is a statutory requirement for naturalization. See 8 U.S.C. § 1427(a)(1).

The evidence establishes that defendant was not eligible for the visa he received under the Displaced Persons Act ("DPA") of 1948, Pub. L. No. 774, 62 Stat. 1009, as amended June 16, 1950, Pub. L. No. 555, 64 Stat. 219. He was ineligible because he was a guard at the Mauthausen concentration camp and because he misrepresented his wartime service by failing to disclose his guard duty in his visa application. Because he was not eligible for the visa he received, he did not have a valid visa and he was not lawfully admitted to this country. He therefore failed to satisfy all the jurisdictional requirements for naturalization. As a consequence, his naturalization was illegally procured and must be revoked. See Fedorenko, 449 U.S. at 515-16, 101 S.Ct. at 751-52.

Defendant's service as an armed guard at a concentration camp rendered his visa illegally procured, even if defendant could prove his service to have been involuntary. The court in Fedorenko explicitly found that voluntariness was not a factor in determining whether a guard "assisted in persecution," 449 U.S. at 512-13, 101 S.Ct. at 750. The court's reasoning relied on the inclusion of a voluntariness requirement in the language of certain exclusionary provisions, but its exclusion from the persecution provisions. In Section 13 of the amended DPA, Congress included a voluntariness requirement in a provision regarding the bearing of arms against the United States, but excluded the requirement from the persecution provision. This court therefore must refuse, as did the court in Fedorenko, to "`imply a condition which is opposed to the explicit terms of the statute.'" Id. at 513, 101 S.Ct. at 750, quoting Detroit Trust Co. v. Barlum S.S. Co., 293 U.S. 21, 55 S.Ct. 31, 79 L.Ed. 176 (1934).

Defendant's visa would have been illegally procured under Section 13 even if he had secured it without making misrepresentations. In Fedorenko the Court found that: (1) concentration camp guards were ineligible for visas under the DPA, 449 U.S. at 513, 101 S.Ct. at 750; and (2) failure to disclose such service was a misrepresentation making an applicant ineligible for a visa under the DPA, 449 U.S. at 513-14, 101 S.Ct. at 750-51. The first finding alone, without proof of misrepresentation, is sufficient to establish that an alien's visa was illegally procured. United States v. Kairys, 600 F.Supp. 1254, 1269-70 (N.D.Ill. 1984), aff'd 782 F.2d 1374 (7th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986), and Demjanjuk, 518 F.Supp. at 1382, n. 43.

These cases apply the more general principle that illegal procurement can be established without proof of a misrepresentation. This principle also has been applied in DPA cases which have found grounds for denaturalization separate and distinct from grounds based on misrepresentation. See United States v. Koziy, 540 F.Supp. 25 (S.D.Fla.1982), aff'd, 728 F.2d 1314 (11th Cir.), cert. denied, 469 U.S. 835, 105 S.Ct. 130, 83 L.Ed.2d 70 (1984).

In summary, because Leprich was a concentration camp guard, he was ineligible for the visa he received and his citizenship was illegally procured. There is no genuine issue concerning the dispositive fact of Leprich's guard service.

Further, Section 10 of the DPA made inadmissable into the United States "any person who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person." 62 Stat. 1013. The regulations of the DPC further defined this exclusionary provision to encompass "a willful misrepresentation, oral or written, to any person while he is charged with the enforcement or administration of any part of the Displaced Persons Act, as originally enacted or as amended, of any matter material to an alien's eligibility for any of the benefits of the said act, as originally enacted, or as amended." 8 C.F.R. § 700.11 (1951 Supp.). Under Fedorenko, an applicant became ineligible under the DPA because of a misrepresentation only if the misrepresentation was material. 449 U.S. at 507 n. 28, 101 S.Ct. at 748 n. 28.

The essence of defendant's misrepresentations is contained in the following response on his sworn application for immigration visa:

"That since reaching the age of 14 years I have resided at the following places, during the

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