US v. Schiffer

• Decision Date: 08 September 1993
• Docket Number: Civ. A. No. 91-5644.
• Parties: UNITED STATES of America, Plaintiff, v. Nikolaus SCHIFFER, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

831 F. Supp. 1166

UNITED STATES of America, Plaintiff, v. Nikolaus SCHIFFER, Defendant.

Civ. A. No. 91-5644.

United States District Court, E.D. Pennsylvania.

August 25, 1993.

As Corrected September 8, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robin Kofsky Gold, Robert G. Seasonwein, Washington, DC, and Catherine L. Votaw, Asst. U.S. Attys., Philadelphia, PA, for government.

William E. Jones, Abington, PA, for defendant.

DECISION AND ORDER

VAN ANTWERPEN, District Judge.

I. INTRODUCTION

This is a non-jury civil action under section 340(a) the Immigration and Nationality Act of 1952 to revoke the citizenship of defendant Nikolaus Schiffer, who was a member of the Waffen-SS Death's Head Battalion during World War II. 8 U.S.C. § 1451(a). We have jurisdiction under 8 U.S.C. § 1451 and 28 U.S.C. § 1345. We previously discussed this matter in some detail in our opinion dated February 25, 1992. United States v. Schiffer, 798 F.Supp. 1128 (E.D.Pa.1992).

Beginning on March 16, 1993, this court heard 7 days of testimony regarding the plaintiff's claims and the defendant's defenses. After carefully reviewing the extensive record in this case, including the trial transcript, the exhibits and the parties' post-trial memoranda and briefs, we set forth the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

A. Defendant's Pre-War and Citizenship Background

1. Defendant was born on April 9, 1919 in Philadelphia, Pennsylvania to non-citizen parents. (Schiffer, March 30, 1993, p. 34.)¹

2. In late 1920, the defendant moved with his parents to Moravitza, Romania, an ethnic German community. (Schiffer, March 30, 1993, pp. 34, 36). In Romania, defendant attended school through the sixth grade. At age 13 he went to Timisora, Romania for three years to learn his trade as an apprentice pastry chef. (Schiffer March 30, 1993, p. 37) Starting at about age sixteen, Schiffer worked variously as a baker and a farmhand in Romania. (Id., p. 38).

3. Defendant had relatives who remained in the United States, including his maternal grandparents and uncles. Defendant's parents remained in contact with these relatives while defendant and his parents resided in Romania. (Schiffer, March 31, 1993, pp. 45-46.)

4. Defendant's parents were both born in an area of Romania known as the "Banat," which prior to 1918 belonged to Austria-Hungary. As a result of the treaty ending World War II, the Banat was ceded to Romania, and all residents of the Banat were accorded Romanian citizenship by Romanian law. (Stanoiu, pp. 92-93; P-102; P-9 at nos. 4 and 5.)²

5. Under Romanian law, the defendant automatically acquired Romanian citizenship derivatively from his father. (Stanoiu, p. 94.)

6. As a minor, defendant possessed dual United States and Romanian nationality. (Stanoiu, p. 94; P-102; P-9 at nos. 4 and 5.). As a Romanian national, defendant was subject to be called for military service, (Stanoiu, p. 96), but as a United States citizen, he could not be compelled to serve. (Stanoiu, pp. 95, 96).

7. Neither the United States nor Romania recognized the concept of "dual nationality" or dual citizenship for adults at the time defendant attained his majority. (Stanoiu, p. 94; P-102.). As a minor, however, defendant was able to maintain dual citizenship; upon reaching majority at twenty-one years of age, he had to choose citizenship in one or the other country. (Stanoiu, pp. 91, 94-95.)

8. At all times prior to his service in the Romanian Army, defendant knew he was an American citizen. (Schiffer, March 31, 1993, pp. 39-40; Defendant's Memorandum In Support of Motion to Dismiss, pp. 2-4;³ Defendant's Response to Government's First Set of Interrogatories, P-157 at No. 12; Defendant's Response to Government's Second Set of Interrogatories, P-158 at No. 2; Defendant's Response to Government's Request for Admissions, P-158 at Nos. 3, 6, 7, 12, 17; Defendant's Deposition, P-14, Vol. I, at pp. 11, 30, 32, 36, 55.)

9. Between 1921 and December 12, 1941, the United States continuously maintained diplomatic relations with Romania, and staffed a Legation in Bucharest. The Legation was closed after Romania declared war on the United States. (Callow, pp. 136, 137-139.)

10. At the times of his induction and entry into the Romanian Army, defendant was aware of an American diplomatic presence in Romania. (Schiffer, March 31, 1993, pp. 54-55; P-14, Vol. I., pp. 44-45.)

11. The Legation in Bucharest provided a full range of consular services, including the issuance of passports to United States citizens and providing assistance to citizens living or travelling abroad. (Callow, pp. 137-39, 140-41.)

12. Despite the presence of an American Legation in Romanian and defendant's knowledge that he was an American citizen, defendant never sought the assistance of the Legation or inquired as to his rights as an American citizen. (Schiffer, March 31, 1993, pp. 54-55; P-14, Vol. I, pp. 44-45.)

B. Defendant's Romanian Army Service

13. On March 25, 1940, defendant presented himself for registration for the Romanian Army. Defendant's Personnel Record and Personnel Military Record indicate that upon entering the Romanian Army, defendant's only objection to service was as the only son of a widow. (P-17, P-18.) These records do not indicate any objection on the grounds of, or claim by defendant of, American citizenship when he registered for or entered Romanian Army service. (P-17, P-18.)

14. All Romanians were obligated to serve in the Romanian Army. (Stanoiu, p. 96; P-23.) Subjects of foreign countries were prohibited from serving. (Stanoiu, p. 96; P-23.) United States citizens were exempt from service in the Romanian Army. (Stanoiu, p. 96; P-23.) There is no documentary evidence that defendant asserted to anyone in the Romanian military or American Legation that he was a United States citizen and, therefore, exempt from service. Had defendant asserted his United States citizenship, he would not have been permitted to serve in the Romanian Army, (Stanoiu, p. 96; P-23.), and his induction into service would have been deferred for one year so that he could obtain documentation of his claim, such as a birth certificate. (Stanoiu, pp. 107-108; P-23.)

15. In 1941, defendant was notified to report for basic training for Romanian Army service. At that time, defendant did not protest service on the grounds that he was an American citizen. Like his fellow soldiers, defendant swore an oath of allegiance to the Romanian monarch, King Carol II.⁴ (Schiffer, March 30, 1993, pp. 38-39; March 31, 1993, p. 58; P-9 at nos. 3, 4, 5 and 7; P-14, Vol. I, pp. 37-38; P-17.)

16. On May 24, 1941, upon completion of basic training in the Romanian Army, defendant was released in accordance with Romanian law, since he was the sole son of a widow. (Schiffer, March 30, 1993, p. 39; P-14, Vol. I, p. 37; P-17.)

17. Upon release from basic training, defendant made no effort to contact the American Legation in Bucharest to seek help in avoiding military service or returning to the United States, or to determine his rights as an American citizen. Defendant made no effort to contact his relatives in the United States to inquire about returning to the United States. (Schiffer, March 31, 1993, pp. 59-60; P-14, Vol. I, pp. 45-47.)

18. Romania entered World War II on June 22, 1941 as an ally of Nazi Germany. Romania remained an independent sovereign state and an ally of Germany throughout World War II. (Sydnor, March 16, 1993, p. 66, 74.)

19. Romania declared war on the United States on December 12, 1941, following Hitler's declaration of war on the United States. The next day, the United States declared war on Romania. (Sydnor, March 16, 1993, pp. 88-89.)

20. Defendant was recalled into the Romanian Army after Romania had declared war on the United States and served therein until July 17, 1943. At the time he was recalled, although he knew that he was an American citizen and that Romania had declared war on the United States, defendant did not protest serving in the Romanian Army. (P-14, Vol. I, p. 63.)

21. Defendant's induction into the service in the Romanian Army was willful and voluntary. (P-9, at nos. 4 and 5; P-13; P-17; P-18.)

22. By voluntarily joining and serving in the Romanian Army, defendant chose to retain his Romanian citizenship and to relinquish his United States citizenship. (Stanoiu, pp. 96-97.)

23. The Nationality Act of 1940, 54 stat. 1171, specified certain acts which constituted expatriating acts, including taking an oath of allegiance to a foreign sovereign. (Callow, pp. 140-41.)

24. By willingly serving in the Romanian Army, defendant committed an expatriating act. Defendant's service in the Romanian Army at a time when Romania was an ally of Nazi Germany and at war with the United States constitutes objective evidence of his intent to relinquish his United States birth citizenship. (Callow, pp. 136, 151, 154, 164, 165, 170; P-21.)

25. Defendant's service in the Romanian army at a time when Romania was at war with the United States also constituted an expatriating act pursuant to the Immigration and Nationality Act of 1952. (Callow, p. 143, 151.)

26. Contemporary standards of review under Vance v. Terrazas, 444 U.S. 252, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980), establish an administrative presumption of intent to retain United States citizenship unless there is objective evidence of conduct inconsistent with retention of citizenship. Romanian military service and oath of allegiance to King Carol II constitute expatriating acts inconsistent with the retention of citizenship. (Callow, pp. 151, 164.)

C. Historical Background

27. On February 29, 1933, following the rise to power of Adolf Hitler and the Nazi Party in Germany, a state of emergency was declared in Germany and all constitutional guarantees of individual liberty and civil rights were suspended. Pursuant to decree, the SS (Schutzstaffel or protection squads) was authorized to...