US v. Schiffer, Civ. A. No. 91-5644.

• Decision Date: 25 February 1992
• Docket Number: Civ. A. No. 91-5644.
• Citation: 798 F. Supp. 1128
• Parties: UNITED STATES of America, Plaintiff, v. Nikolaus SCHIFFER, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

798 F. Supp. 1128

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

Civ. A. No. 91-5644.

United States District Court, E.D. Pennsylvania.

February 25, 1992.

Catherine Votaw, Philadelphia, Pa., Elliot M. Rockler, Robin Kofsky Gold, Washington, D.C., for plaintiff.

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

OPINION AND ORDER

VAN ANTWERPEN, District Judge.

This is a civil action under section 340(a) the Immigration and Nationality Act of 1952 to revoke the citizenship of Defendant Nikolaus Schiffer. 8 U.S.C. § 1451(a). Schiffer has filed a Motion to Dismiss the Complaint under Fed.R.Civ.P. 12(b)(6) stating several grounds, including mootness, failure to state a claim and laches. Having carefully considered the defendant's motion, as well as the Government's response and supplemental brief, and having heard oral argument on the motion in Easton, Pennsylvania on January 15, 1992, we now deny Defendant's Motion to Dismiss, and allow this case to proceed, for the following reasons.

I. STANDARD FOR MOTION TO DISMISS

Fed.R.Civ.P. 12(b)(6) allows a court to dismiss "for failure to state a claim upon which relief can be granted." The criteria which a court must use in deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6) are clear. "In reviewing a motion to dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir.1985); Rogin v. Bensalem Twp., 616 F.2d 680, 685 (3d Cir. 1980), cert. denied 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981). Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). Also, "in deciding a Rule 12(b)(6) motion, factual allegations of the complaint are to be accepted as true and the complaint should be dismissed only if it appears to a certainty that no relief could be granted under any set of facts which could be proved. Reasonable factual inferences will be drawn to aid the pleader. Amalgamated Transit Union v. Byrne, 568 F.2d 1025, 1031 (3d Cir.1977) (in banc) (Aldisert, J., dissenting); Knuth v. Erie-Crawford Dairy Cooperative Ass'n, 395 F.2d 420 (3d Cir.1968)." D.P. Enterprises v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984); see also H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2905-06, 106 L.Ed.2d 195 (1989).

II. FACTUAL BACKGROUND

The Government alleges the following facts in its Complaint. Defendant Nikolaus Schiffer was born in Philadelphia, Pennsylvania on April 9, 1919. Approximately one year later, Schiffer's parents took him to Rumania, where they established a permanent residence. In 1941, Schiffer entered the Rumanian Army and swore allegiance to the King of Rumania. In July, 1943, Schiffer joined the "Nazi Waffen-SS Totenkopfsturmbann (Death's Head Battalion)" and swore allegiance to Adolf Hitler, and while in that organization served as an armed guard at three different concentration camps in Germany and German-occupied Poland. He allegedly participated in and assisted the Nazis in persecuting various civilian groups, such as Jews, Gypsies and Poles, through confinement, corporal punishment, torture, forced labor and outright murder.

On October 17, 1952, the Department of State of the United States government issued a Certificate of Loss of Nationality of the United States to Schiffer, and on November 11, 1952, The Department denied Schiffer's application for an American passport. In April, 1953, Schiffer applied for a visa to enter the United States, the visa was issued and in May, 1953 Schiffer entered the United States. In June 1958 Schiffer filed a Petition for Naturalization and Statement of Facts with the United States District Court for the Eastern District of Pennsylvania. In those papers, Schiffer was required to list all organizations in which he had been a member, but he did not list the Waffen-SS Totenkopfsturmbann (Death's Head Battalion). He also swore that he was a person of good moral character and was attached to the principles of the Constitution.¹ On August 13, 1958, the District Court granted Defendant's petition and issued him Certificate of Naturalization No. 7993986.

Now, thirty-three years later, the Government has filed an action in this Court seeking to revoke Nikolaus Schiffer's citizenship. Schiffer has moved to dismiss the Complaint.

III. DISCUSSION

A. Failure to State a Cause of Action

Defendant Schiffer maintains that the Complaint fails to state a cause of action because it fails to plead or establish as a "condition precedent" that Defendant lost his birth citizenship, and because it fails to allege any specific acts of misrepresentation or concealment. In order to analyze this argument, we must first set out the elements of each count included in the Complaint.

The Complaint in this action contains four counts, each based on 8 U.S.C. § 1451(a), which provides that the United States Attorney may institute proceedings to set aside a citizen's naturalization on the grounds that naturalization was illegally procured or on the grounds that it was procured by concealment of a material fact or by willful misrepresentation. Counts I, II and III allege that Schiffer illegally procured his citizenship because he entered the country unlawfully, because he lacked good moral character and was not attached to the principles of the Constitution of the United States at the time of his naturalization. Count IV alleges that Schiffer procured his citizenship by concealment of a material fact or by willful misrepresentation.

The two grounds for revocation set forth in Section 1451(a) are distinct, and each requires pleading and proof of different facts. Defendant's citizenship may be revoked on grounds of illegal procurement if the Government pleads and proves that at the time of his naturalization Schiffer failed to meet any of the statutory requisites for naturalization. Fedorenko v. United States, 449 U.S. 490, 506, 101 S.Ct. 737, 747, 66 L.Ed.2d 686 (1981). The statutory requisites upon which the Government relies in this case are found in 8 U.S.C. § 1427. Subsection (a)(1) of that section requires that applicants for naturalization be "lawfully admitted for permanent residence." The Government contends that Defendant was not lawfully admitted because his visa was invalid, in that he was not eligible for citizenship because of his lack of good moral character. See 8 U.S.C. § 1182(a)(20) and 1182(a)(22). Section 1427 also requires that the applicant be "a person of good moral character, attached to the principles of the Constitution of the United States...." The Government claims that because of his alleged persecution of civilians under the direction of the Nazis, and because he lied under oath when he said he was of good moral character and Defendant was not attached to the principles of the Constitution. While these allegations at first blush seem to be tautological, upon careful consideration we believe that the Government's Complaint alleges sufficient facts to support a claim that Schiffer failed to meet one or more of the statutory prerequisites when he was naturalized.²

To revoke Defendant's citizenship on grounds of concealment or misrepresentation, the Government must plead and prove four independent requirements: (1) The naturalized citizen must have misrepresented or concealed some fact; (2) the misrepresentation or concealment must have been willful; (3) the fact must have been material; and (4) the naturalized citizen must have procured citizenship as a result of the misrepresentation or concealment. Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537, 1544-45, 99 L.Ed.2d 839 (1988).

Defendant argues that the Government "has failed to plead any specific act of material misrepresentation or concealment in the naturalization process that would allow inquiry into the validity of naturalization." The Government responds that the Defendant's failure to list the Waffen-SS Totenkopfsturmbann (Death's Head Battalion) in response to Question 13 on Form N-400 (Application to File Petition for Naturalization and Statement of Facts for Preparation of Petition) was a willful concealment of a material fact. In addition, ¶¶ 28 and 29 of the Complaint alleges that Schiffer misrepresented in his Petition for Naturalization, filed with the United States District Court for the Eastern District of Pennsylvania on June 17, 1958, that he was of good moral character and attached to the principles of the Constitution. The Government claims that Schiffer was not of good moral character and attached to the principles of the Constitution because he voluntarily served as a concentration camp guard under Hitler's regime.

Defendant contends that Question 13 was too broad to support an allegation that failure to list "Waffen-SS" as an answer was a concealment of a material fact. The question asked the applicant to list all organizations in which he had been a member at any time. Defendant argues that although the only organization he listed was "German Army," this is synonymous with "Waffen-SS", and so there was no concealment. Firstly, the Complaint in this case says nothing about a response of "German Army," it simply states that Schiffer did not reveal his membership in the Waffen-SS. Since we must take all allegations in the Complaint as true for the purpose of this Motion, and since there is no evidence properly in the record to support Defendant's argument about his "German Army" answer, we cannot properly consider the argument that there was no misrepresentation because "German Army" is synonymous with "Waffen-SS."³

Defendant is correct in citing Kungys v. United States for the proper definition of materiality under § 1451(a)—whether the concealed or misrepresented fact had a natural tendency to...