The opinion of the court was delivered by: BECHTLE
The Government stands on two major theories, each with several minor subcomponents, upon which it bases its case seeking the denaturalization of Osidach. Both theories are founded upon § 1451(a) of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1451(a) ("INA"), which provides:
The two major theories advanced by the Government are: (1) Osidach illegally procured his citizenship; and/or, (2) Osidach willfully misrepresented and/or concealed certain material facts from the immigration authorities at the time he procured his grant of citizenship. The Government contends that it should prevail under either or both theories. It must be kept in mind that, despite the content of the allegations and counter-allegations, this case is not a criminal case but a civil case; accordingly, these theories are necessarily dependent upon common elements of fact which must be proven by the Government by what the United States Supreme Court has recently described as "clear, unequivocal and convincing evidence" which "does not leave the issue in doubt." Fedorenko v. United States, 449 U.S. 490, 101 S. Ct. 737, 747, 66 L. Ed. 2d 686 (1981), quoting Schneiderman v. United States, 320 U.S. 118, 125, 63 S. Ct. 1333, 1336, 87 L. Ed. 1796 (1943). See also Woodby v. Immigration Service, 385 U.S. 276, 285-286, 87 S. Ct. 483, 487-488, 17 L. Ed. 2d 362 (1966). As the Court in Fedorenko stated:
On the one hand, our decisions have recognized that the right to acquire American citizenship is a precious one, and that once citizenship has been acquired, its loss can have severe and unsettling consequences. See Costello v. United States, 365 U.S. 265, 269 (81 S. Ct. 534, 536, 5 L. Ed. 2d 551) (1961); Chaunt v. United States, supra, (364 U.S. 350) at 353 (81 S. Ct. 147, 149, 5 L. Ed. 2d 120); Baumgartner v. United States, 322 U.S. 665, 675-676 (64 S. Ct. 1240, 1245-1246, 88 L. Ed. 1525) (1944); Schneiderman v. United States, 320 U.S. 118, 122 (63 S. Ct. 1333, 1335, 87 L. Ed. 1796) (1943).
Any less exacting standard would be inconsistent with the importance of the right that is at stake in a denaturalization proceeding. And in reviewing denaturalization cases, we have carefully examined the record ourselves. See, e.g., Costello v. United States, supra; Chaunt v. United States, supra; Nowak v. United States, 356 U.S. 660 (78 S. Ct. 955, 2 L. Ed. 2d 1048) (1958); Baumgartner v. United States, supra.
-- - U.S. at -- , 101 S. Ct. at 747.
This case raises a myriad of complex and difficult factual and legal issues based upon a series of events spanning nearly 50 years. The following constitutes the procedural chronology around which this decision will flow. In May, 1949, the defendant filed a resettlement and registration form with the International Refugee Organization ("IRO") in order to be certified as a "displaced person of concern to the IRO" under the IRO Constitution (Ex. P-17). After being so certified, Osidach then applied to the United States Displaced Persons Commission ("DPC") in June of 1949 for classification as a displaced person, as defined under the Displaced Persons Act of 1948, P.L. No. 80-774, 62 Stat. 1009 ("DPA"). After Osidach's application, the DPC issued its report (Ex. P-20). The next step in the procedure was for Osidach to apply to the American Consulate which he did in Munich, Germany, on July 6, 1949 seeking an immigration visa to the United States as a displaced person. That entry visa was granted by a vice consul of the American Consulate (Ex. P-21). Finally, on the authority of that immigration visa, Osidach entered the United States with his family at New York City on July 29, 1949. After residing in this country for some 14 years, he submitted an application, on April 23, 1963, seeking permission to file a petition for naturalization as a United States citizen with the Immigration and Naturalization Service ("INS") at Philadelphia (Ex. P-23). This was followed on June 10, 1963, by the filing of the petition itself (Ex. P-24). Eventually, on August 7, 1963, the United States District Court for the Eastern District of Pennsylvania granted Osidach's petition for naturalization and upon issuance to him of a certificate of naturalization, Wolodymir Osidach became a citizen of the United States of America (Ex. P-25).
For over 16 years, Osidach enjoyed the full rights and fulfilled the obligations and responsibilities of a citizen of the United States. On November 20, 1979, the present action for denaturalization was filed against Osidach by the United States with an accompanying affidavit stating good cause as required by law, 8 U.S.C. § 1451(a). On September 15, 1980, after the resolution of a variety of expected and understandable disputes concerning pretrial matters, the non-jury trial
for denaturalization commenced. The trial lasted 13 days, with the Court hearing the testimony of 14 in-court witnesses (including the defendant), viewing the videotape depositions of 7 witnesses, reading the depositions of 5 additional witnesses and receiving into evidence over 50 exhibits from both parties. On November 14, 1980, proposed findings of fact and conclusions of law were filed by the parties and final argument was heard by the Court on November 17, 1980.
The factual allegations raised by the Government, upon which their legal theories are buttressed, concern Osidach's pre-World War II and war-time conduct including his organizational, political, criminal and employment activities between 1930 and 1944.
Therefore, from this juncture, the Court's Opinion will be divided into the following areas: (1) a discussion of the undisputed facts surrounding this litigation, including a general historical overview of international activities from 1917 until 1944 and, in particular, Osidach's activities between 1930 and 1944; and, (2) a discussion of the two major theories relied on by the Government to support its claim. This discussion will include findings of fact as to disputed factual issues and an application of those facts to the Government's theories, which will form the Court's conclusions of law.
I. FACTUAL BACKGROUND
During this period of divided Polish and Soviet control prior to 1930, when considerable efforts were being made by both countries to assimilate the Ukrainian people into the respective Polish and Soviet life-styles, an underground movement emerged that was composed of persons who advocated a return to an independent Ukraine free from either Polish or Soviet control. One of those nationalist groups was called the Organization of Ukrainian Nationalists ("OUN"), which was founded in 1929 (N.T. 10-19). This group was involved in numerous political activities advocating a return to a free Ukraine. Those activities took the form of new members and other protest functions. Because the OUN was regarded by both the Polish and Soviet governments as subversive and hostile, its members were often harassed, arrested, imprisoned and generally and routinely persecuted for their membership in that group (N.T. 10-24; 2-127 to 130, 152; see also Ex. P-15). During the 1930's, the entire area comprising the Ukraine was subject to a severe famine. There was also great political and economic turmoil which resulted in numerous political arrests (N.T. 10-19 to 21).
From 1930 to 1939, Osidach freely admits that, while living in the town of Rawa Ruska in the Polish Ukraine, he was a member of the OUN and was on at least five occasions arrested and imprisoned for varying periods for advocating a free Ukraine (N.T. 2-150 to 156). The political activities which led to his arrests during this period included distributing and posting handbills, possessing written materials and recruiting members for the OUN. In some of these arrests by the Polish government, he was released after a few days of detention; while on other occasions he was eventually tried by a Polish court of law and sentenced to varying brief prison terms. Overall, Osidach served a total of six years in "political prisons" for his beliefs (N.T. 2-154; 10-24). The longest continuous period he spent in prison was eighteen months (N.T. 2-154). These arrests and convictions were well-documented by the Government at trial and were authenticated by an expert in Polish law (Ex. P-10 to 16; N.T. 2-80 to 123).
(B) Events From 1939 to 1941
In 1939, Nazi Germany
and the Soviet Union in an unusual exercise of international friendship agreed that, as a seal of their friendship, they would partition what was then Poland, with the Soviet Union occupying the western portion. This partition resulted in the Ukraine also being split between German and Soviet control. The town and region of Rawa Ruska, located in the western Ukraine, became subject to Soviet control. The friendship between these two powers was predictably short-lived and on June 21, 1941, the Germans manifested their change-of-heart by undertaking a full-scale military invasion of the Soviet portion of Poland, as well as the Soviet Union itself, thus engulfing the Ukraine as well as all of Poland.
(C) Events From 1941 to 1944
As the Germans assumed control over Poland, they organized it into five major regions, each presided over by a German-controlled civil government. One of those regions was known as "Galicia," which included within it the lesser region of Rawa Ruska, which, in turn, included the town of Rawa Ruska. In 1941, the population of the town of Rawa Ruska was approximately 10,000 to 11,000 persons. Approximately one-half of the people were Jews, while the remaining inhabitants were divided fairly equally between Ukrainians and Poles (N.T. 1-98; 3-50).
Soon after the military conquest of eastern Europe, the German high-command began to implement its uniform policy providing for the systematic, calculated extermination of the Jewish population in the occupied areas. As the German Wehrmacht military forces swept through the conquered areas, they were followed by mobile killing units composed of "S.S." (Shutzstaffel) and other security personnel (called Einsatzgruppen), who proceeded to butcher innocent members of the Jewish civil population, including women and children, of all ages, through sundry methods of mass killing. Those Jews who survived, by whatever circumstance, were scheduled by the German high-command to nevertheless become victims of a somewhat different but more systematic and, for that reason, more efficient method of mass annihilation (N.T. 1-89 to 93; Ex. P-1 at 177 et al.). This was by means of "killing centers" scattered throughout eastern Europe, including the Ukraine. It was at these centers, equipped with gas chambers for large-scale destruction, that millions of Jews, as well as members of other groups which the Germans deemed undesirable or hostile toward the war effort, were murdered (N.T. 1-101).
The gas chambers were the final step of a diabolical scenario called by the Germans the "final solution" of the "Jewish problem" or "PLAGUE" so that specified areas would be "free from Jews" (Ex. P-2). Throughout eastern Poland and the Ukraine, the Germans implemented this policy by the forcible uprooting and removal of Jews from the outlying towns and villages and transporting them into the larger towns within the regions (N.T. 1-89 to 92; Ex. P-1 at Chapter VI). Within these towns, central concentration locations or "ghettos" were established where these persecuted people, from the towns and the surrounding areas, were collected and forced to live to await further disposition. The ghettos were established in towns near main railroad lines and centers, so that the Germans could easily and conveniently beginning in 1942, after the collecting process had been completed transport the residents of the ghettos by train to the killing centers located throughout the regions. The German scheme also included the confiscation of Jewish-owned property (N.T. 1-101 to 102) and, in the interim between subjugation and extermination, the utilization of Jews as forced laborers at various German-created worksites (N.T. 1-89 to 92, 101 to 102).
(D) The Rawa Ruska Ghetto
The town of Rawa Ruska was located in the minor region of Rawa Ruska, which was itself included within the major region of Galacia in the western Ukraine. It was located at the intersection of major railroad lines (N.T. 1-102; M.M. Bankh dep. at 42). Because of its location along railroad lines and its close proximity to the killing center at Belzec, approximately 20 miles northwest of the town, a Jewish ghetto was established by the Germans soon after their occupation of the town in 1941 (N.T. 4-110). The ghetto was located in the center of the town a few blocks from the town square and the Jewish house of worship (synagogue). This ghetto area was sealed off from the remainder of the town (N.T. 4-110). The Jewish population in the areas on the outskirts of Rawa Ruska were forcibly delivered into the ghetto (N.T. 1-102; 6-15, 120 to 126). Those Jews living in the town, which in 1941 numbered around 3,000 to 6,000 (N.T. 1-98; 3-50), were also forced into the ghetto (N.T. 3-111; 6-13, 88 to 89). One of these persons testified at the trial that, at the time of the German occupation of the town, she was visited at her home by Germans and in the process of forcing her to leave her home she was brutally beaten, resulting in her nose and spine being broken (N.T. 6-77).
Life within the Rawa Ruska ghetto was not a matter of living but merely surviving. Beatings, strikings and other injurious acts of brutality toward members of the Jewish population were an everyday way of life. Soon after its formation, the ghetto was ravaged by an epidemic of typhus. Medicine and food were scarce (N.T. 3-11 to 113; 6-18). Overcrowding was typical, with as many as 18 people crowded into one room (N.T. 6-18).
In Rawa Ruska, as elsewhere, the German occupying forces enacted a series of "special laws" applicable only to the Jewish population, which included a variety of degrading and dehumanizing practices, procedures and policies. For example, Jews over the age of 12 were required to make and wear on their upper-left arms an armband with the Star of David in conspicuous dimension. They were forbidden to leave the ghetto during the day without authorization and were absolutely forbidden to leave at night. If they were caught outside the ghetto without permission or without the identifying armband, they could be shot on sight. One further degrading practice was the forbidding of Jews to walk on the sidewalks of the town (N.T. 3-23; 4-104 to 105; 6-13).
The Germans also coerced members of the Jewish population who were able to work to engage in forced labor (N.T. 4-105 to 106) of the most dehumanizing sort. One detail involved Jewish laborers uprooting and smashing gravestones in an old Jewish cemetery in order to provide crushed stone for roads (N.T. 4-105 to 106). These methods of persecution were only temporary because, as later events tragically prove, the ghetto at Rawa Ruska was merely a detention center for its inhabitants who were awaiting unbeknownst to them transportation to the killing center at nearby Belzec. The actual act of delivery to Belzec was done in three operations. These episodes referred to as "actions" by the Germans and the victims as well were conducted pursuant to direct orders from Heinrich Himmler, who was the highest ranking command figure in the Nazi S.S. Himmler decreed that the Jews in Galacia be deported to death camps by the end of 1942 (N.T. 1-104; 4-111 to 112, 116 to 117). His orders were tragically carried out in the town of Rawa Ruska in these three "actions." The "actions" occurred without warning in approximately March, July and December of 1942. Each action differed in method, but not in purpose or result. The first two actions in March and July of 1942 resulted in Jewish men, women and children being literally grabbed off the streets and from their dwellings in the ghetto, then thrown into trucks or forced to walk to the railway station in the town. There they were jammed into boxcars, with the assistance of rifle butts and bayonets, and then sent off to Belzec (N.T. 3-114 to 116; 4-88 to 91, 111 to 112, 114, 118 to 120; M.M. Banakh dep. at 34-36; S.D. Bakai dep. at 28-29; Kulikovska dep. at 29-34). Those who attempted to escape were murdered (N.T. 6-27 to 29). Each of these "actions" lasted from one to three days.
On December 9, 1942, the third and "final action," resulting in the literal liquidation of the ghetto at Rawa Ruska, took place in an effort by the Germans to make Rawa Ruska "free from Jews" (Ex. P-2 at 9). The ghetto was totally destroyed. During this "final action," the entire remaining Jewish population was either shot or removed from the streets, dwellings or hiding places. Persons seized were taken outside of town to a cemetery and the few able-bodied males were retained for forced labor and the remainder taken away in trucks and never seen again. The acts of brutality during this final action, which lasted for weeks, were unspeakable. One witness testified that she saw small Jewish children seized by the intruders and swung by their feet and their heads smashed against a wall (N.T. 6-94 to 95). When all of the inhabitants of the ghetto had been removed, the ghetto was burned, dynamited and covered over until nothing remained but the smoking rubble and the charred bones of its prior inhabitants. All traces of Jewry had vanished (N.T. 3-42; 4-123 to 124; 6-127 to 131; Kulikovska dep. at 37-41; Straznik dep. at 23-28; Ex. P-2 at 11).
In January and February of 1944, the German occupying forces began to evacuate Rawa Ruska and, by the summer of that year, the Germans along with others had retreated from Rawa Ruska in the wake of the advancing Soviet forces (N.T. 3-52).
(E) Defendant Osidach's Undisputed Activities From 1941 to 1944
In the 1941 to 1944 period, certain facts surrounding the activities of Osidach are not in dispute and were admitted by the defendant either at trial or in his pretrial deposition.
In June of 1941, Osidach returned to Rawa Ruska after the German forces had seized control of that town from the occupying Soviets (N.T. 2-160 to 161). When he first arrived, Osidach lived with the Terpeluk family and worked for a short time from June to July of 1941 in a local dairy (N.T. 2-161 to 162). In approximately August of 1941, he was asked by the commandant of the Ukrainian militia in Rawa Ruska to become the new commandant (N.T. 2-164). At a public meeting, the Ukrainian people of Rawa Ruska asked Osidach to occupy that position (N.T. 2-162 to 163; Osidach dep. of September 9, 1980 (dep. 2) at 9-10). The Ukrainian people of Rawa Ruska trusted Osidach because he knew the German language and was a Ukrainian nationalist and "would take in protection the Ukrainian people" (N.T. 2-163, 165; Osidach dep. 2 at 9-10). The Ukrainian militia's function was to keep "order" in the streets of Rawa Ruska (N.T. 2-169; Osidach dep. 2 at 7). There were approximately 15 to 25 men in the militia, all of them volunteers, and all under Osidach's command when he became the new commandant of the militia (N.T. 2-170; Osidach dep. 2 at 14). At that time, there were no other police within the town of Rawa Ruska except the militia (Osidach dep. 2 at 12-13). Furthermore, at that point in time, only the German army was present in the town. At a later time, the German civil administration resumed control (Osidach dep. 2 at 9, 13).
Osidach was the commandant of the Ukrainian militia for approximately three to four months, at which time the militia was disbanded by the Germans and was reorganized as the Ukrainian police. All of the militia members became members of the Ukrainian police (N.T. 2-17; Osidach dep. 2 at 8, 18). This reorganization was supervised by Gregor Stockmahl, who was the commander of the Ukrainian police throughout the Rawa Ruska region (N.T. 2-171; 3-10; Osidach dep. 2 at 14). The Ukrainian police were so named because they were composed exclusively of members of the Ukrainian population (N.T. 2-171).
In November of 1941, Osidach voluntarily went to the city of Lvov in Poland where for three months he was trained by Ukrainians, Poles and Germans to be a Ukrainian policeman (N.T. 2-173; Osidach dep. 2 at 19; Ex. P-7). Part of that training included instruction in the use of rifles, which was conducted under the supervision of German instructors (N.T. 2-174). The students at this school were recruited from throughout the entire Rawa Ruska region (N.T. 2-174 to 175). Osidach was taught to "enforce the laws of Rawa Ruska" and "to apply (them) to the people" (N.T. 2-175) in order to keep "order" in the streets (N.T. 2-175). Through his "military training," which Osidach says was "not enough" (Osidach dep. 2 at 36), he was trained to be a Ukrainian policeman (Osidach dep. 2 at 20, 36, 37).
When his training was completed in January of 1942, Osidach returned to Rawa Ruska equipped with the blue uniform of the Ukrainian police and bearing a pistol and holster, all of which he was to wear and did wear during the performance of his duties as a Ukrainian policeman (N.T. 2-176 to 178). Osidach's sole employment upon his return to Rawa Ruska and until the summer of 1944 was that of a full-time member of the Ukrainian police in the town of Rawa Ruska (N.T. 2-182). Osidach admits that his work assignment included two separate general duties. One was as an interpreter/clerk for the Ukrainian police, which work was performed at the Ukrainian police station in Rawa Ruska (Osidach dep. 2 at 47, 54 to 55). Second, his general duties also included working on the streets of the town, whereby on an almost daily basis he was assigned to keep "order." In the performance of both duties, he acted in the capacity of a hauptwachman, a rank he attained sometime after his return to Rawa Ruska in January of 1942 (N.T. 2-182 to 183; 3-11 to 15, 16, 45; Osidach dep. 2 at 43 to 46; Ex. P-7, P-9).
The rank of hauptwachman was one grade higher than a "simple policeman" or wachman (N.T. 2-183; dep. 2 at 24, 28). As a hauptwachman, Osidach carried a pistol, as opposed to the rifles that the other wachman carried (N.T. 3-4; Osidach dep. 2 at 42-43). Osidach and the other wachman wore a blue uniform with a badge of the Ukrainian police. However, as the hauptwachman, Osidach gave the orders to the lower-rank wachman (N.T. 3-20 to 21), as he stated, "Naturally, because I was higher rank, and I have to give orders" (N.T. 3-44; Osidach dep. 2 at 47). At any one time, Osidach states there were only about eight Ukrainian policemen in the town of Rawa Ruska (Osidach dep. 2 at 63). At times, Osidach was called upon when additional police were needed on the streets (Osidach dep. 2 at 45). All members of the Ukrainian police were paid not by the Ukrainian police but through a section of the civil administration, which was at that time German controlled (Osidach dep. 2 at 24).
Finally, in the summer of 1944, while still a hauptwachman in the Ukrainian police, Osidach left Rawa Ruska with the retreating German army (N.T. 3-51).
The Government's first major ground for denaturalization is based upon the first prong of § 1451(a) that being that the defendant's citizenship should be revoked if it was illegally procured. This major theory of the Government is bottomed upon two separate arguments: (1) that the defendant was never lawfully admitted to the United States in 1949, which is a prerequisite to securing a valid citizenship under § 1427(a)(1)
of the Immigration and Nationalization Act of 1952 ("INA"); and, (2) in the alternative, the Government alleges that, when he applied for citizenship status in 1963, Osidach lacked the good moral character required to obtain a valid grant of citizenship under § 1427(a)(3).
Each of the Government's underlying theories will be separately considered.
(A) Unlawful Admission into the United States
The Government's first theory based upon the contention of illegal procurement is further founded upon a two-point argument. First, it argues that Osidach was never lawfully admitted into the United States in 1949 because he was not an eligible displaced person under the Displaced Persons Act of 1948, Act of June 25, 1948, Pub.L.No. 80-774, 62 Stat. 1009, as amended by Act of June 16, 1950, Pub.L.No. 81-555, 64 Stat. 219 (attached as Ex. A to Plaintiff's Pretrial Memorandum) ("DPA"). Second, the Government alleges that Osidach was never lawfully admitted into the United States in 1949 because he made a willful misrepresentation of a material fact for purposes of securing immigration status as a displaced person, in violation of § 10 of the DPA. Therefore, his entry as a displaced person under the DPA was illegal. Here, too, each argument under the Government's illegal-admission theory will be addressed separately.
(1) Ineligibility as a Displaced Person
In 1949, Osidach entered this country pursuant to an entry visa issued under the DPA. That visa was issued by a vice-consul working in conjunction with the Displaced Persons Commission ("DPC"). Both worked under the applicable provisions of the DPA. The DPC was an organization created under the DPA to administer the provisions of the Act. The Government claims that Osidach was not eligible to be a displaced person as defined by the DPA.
The DPA was enacted as a special emergency form of immigration legislation by Congress in 1948. Its passage was directly attributed to a historical reality of World War II ("WW II") that being the propagation of approximately eight million persons from throughout eastern and western Europe who constituted the displaced human by-product of the war. Those displaced persons included not only civilian refugees from war-torn areas but also prisoners of war, forced laborers and those fortunate survivors of the German concentration and death camps. As a result of the repatriation and resettlement policies formulated at the 1945 Yalta Conference, many of these displaced persons were voluntarily resettled in various areas. However, over one million remained homeless for a variety of economic and political reasons, S.Rep. 950, 80th Cong., 2d Sess. 8, reprinted in (1948) U.S.Code Cong.Serv. 2028, 2035 ("S.Rep. 950"). Of these, many became residents of temporarily created camps located throughout Germany and other countries. Id. at 2036. These displaced persons camps were organized and operated by the Preparatory Commission for the International Refugee Organization ("IRO"), a United Nations-established post-war interim agency with its purpose being to assist with the problems posed by the refugees and displaced persons produced by WW II. The IRO functioned pursuant to the provisions of the then-proposed IRO Constitution, which became effective in 1948 after being accepted by 15 nations of the United Nations, including the United States which became a signatory in 1947, Act of July 1, 1947, Pub.L.No. 80-146, 61 Stat. 214. The IRO Constitution, 62 Stat. 3037-3055 (1946), provided for the screening and classification of persons through procedural mechanisms staffed by IRO personnel to certify persons of "concern" to the IRO under the IRO Constitution as eligible displaced persons for IRO purposes. This in turn facilitated their resettlement to those countries accepting the IRO constitutional goals. The United States received displaced persons under this temporary measure and contributed 79% of the total contributions received by the IRO for approximately one year until June 25, 1948, when the DPA was passed by Congress, S.Rep. 950 at 2037.
The DPA was specifically enacted by Congress as a unique form of humanitarian legislation providing for the granting of entrance visas to this country to certain defined eligible persons, with notable exceptions, after a thorough investigatory screening and certification of approval by personnel organized and supervised by the DPC, see §§ 8, 10 of DPA. The burden of proof was on the person seeking displaced persons status under the DPA, see § 10 of DPA. In form, the DPA served to greatly enlarge the prior immigration quotas under the then-existing United States immigration laws, see § 3(a) of DPA. Under the DPA, quota limitations were temporarily restructured with a limit of 202,000 immigration visas being issued to eligible displaced persons over a two-year period beginning in 1948, see § 3(a) of DPA. In 1950, this was amended to provide for 341,000 persons over a three-year period starting from 1948, Act of June 16, 1950, Pub.L.No. 81-555, § 4, 64 Stat. 219, 221. Congress provided that, in the event this enlarged quota resulted in an excess over the annual quota limitations imposed under the Immigration Act of May 26, 1924, Pub.L.No. 68-139, § 12, 43 Stat. 153, 160-161, the excess number would be subtracted up to 50% from those annual quotas in the next succeeding fiscal year in which a quota was accorded, see § 3(b) of DPA. Therefore, while the legislation served to alleviate a severe existing problem, it had the added effect of "mortgaging" the quota restrictions for other aliens from some countries for years in the future, see 1 C. Gordon & H. Rosenfield, Immigration Law & Procedure, § 1 at 1-13 (2d rev. ed. 1979). See generally Note, Misrepresentation and Materiality in Immigration Law Scouring the Melting Pot, 48 Fordham L.Rev. 471, 471-473 (1980).
It was under this specially created legislation that Osidach in 1949 benefited by securing status and entry into the United States as a displaced person.
It is his status as an eligible displaced person that the Government now contests. The Government argues that, when Osidach entered this country in 1949 under the DPA, he was not an eligible displaced person as defined by the DPA and, hence, he was never legally admitted into this country, thus lacking a requirement under § 1427(a)(1) of the INA.
The Government bases its assertion that Osidach was an ineligible displaced person by reference to § 2 of the DPA, 62 Stat. 1009-1010, which incorporated by reference the definition of "refugees or displaced persons" contained within Annex I of the IRO Constitution which, in turn, contained the following exclusionary provision:
Persons who will not be the concern of the Organization.
1. War criminals, quislings and traitors.
2. Any other persons who can be shown :
(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or
(b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations. 7
7 Mere continuance of normal and peaceful duties, not performed with the specific purpose of aiding the enemy against the Allies or against the civil population of territory in enemy occupation, shall not be considered to constitute "voluntary assistance." Nor shall acts of general humanity, such as care of wounded or dying, be so considered except in cases where help of this nature given to enemy nationals could equally well have been given to Allied nationals and was purposely withheld from them. (Footnote in original.)
3. Ordinary criminals who are extraditable by treaty.
4. Persons of German ethnic origin, whether German nationals or members of German minorities in other countries, who:
(a) have been or may be transferred to Germany from other countries;
(b) have been, during the second world war, evacuated from Germany to other countries;
(c) have fled from, or into, Germany, or from their places of residence into countries other than Germany in order to avoid falling into the hands of Allied armies.
5. Persons who are in receipt of financial support and protection from their country of nationality, unless their country of nationality requests international assistance for them.
6. Persons who, since the end of hostilities in the second war:
(a) have participated in any organization having as one of its purposes the overthrow by armed force of the Government of their country of origin, being a Member of the United Nations; or the overthrow by armed force of the Government of any other Member of the United Nations, or have participated in any terrorist organization;
(c) at the time of application for assistance, are in the military or civil service of a foreign State.
62 Stat. 3051-3052 (emphasis supplied). See Ex. B attached to the Plaintiff's Pretrial Memorandum at Annex I, Part II.
The Government claims that Osidach's affiliation with the Ukrainian police in the town of Rawa Ruska from 1942 to 1944 places him within the second category of persons defined by the above IRO constitutional provision. See Part II at 2(a).
In regard to the Government's allegation of ineligibility as a displaced person under its theory of illegal admission, the Court finds the recently decided case of Fedorenko v. United States, 449 U.S. 490, 101 S. Ct. 737, 66 L. Ed. 2d 686 (1981) to be controlling as to many of the legal issues presented in this case. At the same time, the Court is quick to note that it believes that the instant case poses factual and legal issues that were either not before or not decided by the Fedorenko Court. The resolution of these other issues by this Court will not be inconsistent or contrary to the holding in Fedorenko and its statutory interpretation of the DPA but, rather, will hopefully serve to build upon that decision.
In Fedorenko, the Supreme Court affirmed the judgment for denaturalization by the United States Court of Appeals for the Fifth Circuit, 597 F.2d 946 (5th Cir. 1979), which had reversed the district court, 455 F. Supp. 893 (S.D.Fla.1978). In summary, the Supreme Court held that the defendant, Fedorenko, had illegally procured his citizenship under 8 U.S.C. § 1451(a) because he willfully misrepresented a material fact to the Displaced Persons Commission in 1949 when he applied for admission to the United States as a displaced person. The Court found his conduct violative of § 10 of the DPA. Section 10 provides:
No eligible displaced person shall be admitted into the United States unless there shall have first been a thorough investigation and written report made and prepared by such agency of the Government of the United States as the President shall designate, regarding such person's character, history, and eligibility under this Act. The burden of proof shall be upon the person who seeks to establish his eligibility under this Act. Any person who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States. No eligible displaced orphan or eligible displaced person shall be admitted into the United States under the provisions of this Act except in pursuance of the regulations of the Commission, but, except as otherwise expressly provided in this Act, the administration of this Act, under the provisions of this Act and the regulations of the Commission as herein provided, shall be by the officials who administer the other immigration laws of the United States. Except as otherwise authorized in this Act, all immigration laws, including deportation laws, shall be applicable to eligible displaced orphans and eligible displaced persons who apply to be or who are admitted into the United States pursuant to this Act.
62 Stat. 1013 (emphasis supplied).
The material fact which Fedorenko misrepresented was his service as a concentration camp armed guard during WW II, which the Supreme Court found, if disclosed to the DPC, would have resulted in his being declared ineligible for an entry visa under the DPA as a displaced person. Id. at -- , 101 S. Ct. at 750.
In determining the materiality of Fedorenko's factual misrepresentation, the Supreme Court did not apply the test of materiality that had been previously articulated in Chaunt v. United States, 364 U.S. 350, 355, 81 S. Ct. 147, 150, 5 L. Ed. 2d 120 (1960). Instead, the Fedorenko Court limited the holding of the Chaunt decision to situations involving misrepresentations in applications for citizenship and not to false statements provided in visa applications which concern initial entry into the United States.
Id. -- - U.S. at -- , 101 S. Ct. at 748. As to the latter category of cases, the Supreme Court found in determining materiality under § 10 of the DPA that the standard was: "At the very least, a misrepresentation must be considered material if disclosure of the true facts would have made the applicant ineligible for a visa." Id. at -- , 101 S. Ct. at 748. The Fedorenko Court found that, as a matter of law, Fedorenko was ineligible for a visa under the DPA based upon § 2(b) of the DPA, which incorporated by reference the exclusionary provision of the IRO Constitution cited supra. Id. at -- nn.3, 4, -- , -- n.33, 101 S. Ct. at 741 n.3, 4, 748, 750 n.3. In applying that standard of materiality, the Court accepted the district court's findings that Fedorenko had not been personally involved in the crimes and atrocities committed against the inmates in the concentration camp at Treblinka. Id., 101 S. Ct. at 744 n.19, 746 n.24. The Court did find, nevertheless, that the defendant had assisted the enemy in the persecution of civilians during WW II due to his service as an armed, uniformed and paid guard at that camp. Id. at -- & n.34, 101 S. Ct. at 750 n.34. The Court noted that the assessment under the DPA did not hinge on the voluntariness of the person's actions because the word "voluntary" was not contained within the specific IRO constitutional provision incorporated into the DPA. Id., 101 S. Ct. at 751 n.35. Rather, the Court found that the focus should be "on whether particular conduct can be considered assisting in the persecution of civilians." Id. at -- n.34, 101 S. Ct. at 750 n.34. But see -- - U.S. -- , 101 S. Ct. at 760-763 (Stevens, J., dissenting).
The Fedorenko Court's findings in that regard were based only upon "the plain language and Jenkins's (prior vice-consul administering the Displaced Persons Act) uncontradicted and unequivocal testimony" that:
Thus, an individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians. Other cases may present more difficult line-drawing problems but we need decide only this case. As for the District Court's concern about the different treatment given to visa applicants who had served in Axis combat units who were found eligible for visas if they could show that they had served involuntarily, this distinction was made by the Act itself.
101 S. Ct. at 750 n.34 (emphasis supplied).
This Court believes that the case at bar presents the anticipated situation of a "more difficult line-drawing problem" of which the Fedorenko Court spoke, but in a slightly different manner. This Court finds that the instant case presents different factual and legal issues from those raised in the Fedorenko case on appeal. The crux of the difference between this case and the Fedorenko decision is that Fedorenko was based solely upon a claim under § 10 of the DPA, while this case is founded not only upon § 10 but another statutory provision of the DPA as well. That particular statutory provision, which was not addressed by the Supreme Court in Fedorenko
in its interpretation of the standard of materiality under the DPA nor was it raised by the Government in this case, is § 13 of the DPA, which provides:
No visas shall be issued under the provisions of this Act to any person who is or has been a member of, or participated in, any movement which is or has been hostile to the United States or the form of the government of the United States.
62 Stat. 1014 (emphasis supplied). See Ex. A attached to Plaintiff's Pretrial Memorandum.
This Court is convinced that § 13 goes to the heart of this case and other cases based upon denaturalization claims under the DPA alleging ineligibility as a displaced person because of prior affiliation with "movements" assisting the enemy in the persecution of innocent civilians during WW II.
However, in order to understand the applicability of § 13 to this case and to additionally understand how that provision can be nevertheless consistently applied to the findings and holdings in the Fedorenko decision, it is imperative to examine briefly the legislative history of the section itself. See Appendix for a treatise regarding the legislative history of § 13.
(b) Application of the Fedorenko Decision to § 13 of the DPA
It must be recalled that the Fedorenko decision was based upon an interpretation of § 10 of the DPA. The Supreme Court did not have reason to consider the implications of § 13 of the DPA in its interpretation of what constitutes a material fact warranting a finding of ineligibility under the DPA. In the context of the case before us, the plain language of the DPA indicates that §§ 10 and 13 are interrelated, in the sense that § 10 requires a misrepresentation of a material fact and § 13 serves to define in part what can constitute a material fact warranting a finding of ineligibility. Ineligibility under the DPA is not always determined only through the initiation of a § 10 claim, as in Fedorenko, but can also be asserted under § 13 with or without a companion § 10 claim.
Section 13's relationship to § 10 is clearly seen exemplified in the situation of a person appearing before the DPC for determination of eligibility status in 1949 but not being asked any questions concerning his war-time activities. In Fedorenko, the defendant had been asked on two separate occasions by the DPC and the vice-consul about his war-time activities. 101 S. Ct. at 743, 748. If a person was neither asked by interview nor by written application of his war-time activities, there would be no duty under § 10 to disclose that information. Although that fact would be material, there can be no duty to disclose where it was not asked. This is because § 10 only applied to "misrepresentations" and not to "concealments" of material facts. Compare 8 U.S.C. § 1451(a). A misrepresentation implies an active role by providing a false or misleading response to a direct or even an indirect question. See U. S. v. Accardo, 113 F. Supp. 783, 785-786 (D.N.J.1953), aff'd per curiam, 208 F.2d 632 (3d Cir.) (failure to disclose other arrests when asked constitutes concealment). See also 3 Gordon & Rosenfield, supra, § 20.4b at 20-14, 15. If the element of a passive concealment could be read into § 10, decisional authority correctly suggests that there could be no misrepresentation or concealment of a material fact when the interviewee or applicant has not been asked anything concerning that fact. See U. S. v. Minerich, 250 F.2d 721, 730-732 (7th Cir. 1957) (no duty to disclose information not questioned about); Cufari v. United States, 217 F.2d 404, 409 (1st Cir. 1954) (no evidence question orally asked by INS and, therefore, no duty to disclose information not requested). See also Maisenberg v. United States, 356 U.S. 670, 672-673, 78 S. Ct. 960, 962, 2 L. Ed. 2d 1056 (1958) (no concealment or misrepresentation where the question asked was ambiguous). But see United States v. Palmeri, 52 F. Supp. 226, 227 (E.D.N.Y.1943).
It would be fundamentally unfair to place upon a person the duty to disclose information not asked for. Otherwise, the reach of the duty would be as far and as varied as the undisclosed imagination of the interviewer concerning his belief in his mission. The concept of "fraud" cannot settle securely in that setting.
By contrast, under § 13, a person may be ineligible under the DPA simply because he falls within a predetermined excludable category of persons, even though no misrepresentation of a material fact has been made by that person that is, even when that status rests on the undisclosed truth.
Congressional history shows that there was concern about persons who were members or participants of certain types of movements, as well as persons securing displaced persons status by advancing false information or documents, which practice had prevailed under the pre-1948 IRO screening process. See infra at A-2, 4a n.35. Therefore, § 10 and § 13 were aimed at different problems but naturally were interrelated to a limited degree. Section 10 was designed to cover a misrepresentation of material facts even beyond those material facts defined by § 13. For example, a person could misrepresent (a § 10 violation) their past history of prostitution. See 1 Gordon & Rosenfield, supra, §§ 1.2(b) at 2.44b. Congress was additionally concerned about this category of persons (prostitutes) gaining entry into the United States as displaced persons. See infra at A-3, 4b n.37. However, such person's ineligibility under the DPA was not merely dependent upon their misrepresenting the material fact of their history of prostitution before the DPC but their ineligibility could rest on their categorical status as a prostitute alone, without the need for a § 10 misrepresentation. Section 13 set forth other examples of such categorical ineligible status under the DPA.
In Fedorenko, the Supreme Court defined materiality under § 10 by examining the IRO constitutional exclusionary provision incorporated by reference under § 2(b) of the DPA. Had the Court felt the need to have § 13 and its legislative history before it, as we do now, it surely would have seen that § 13 incorporates the same IRO constitutional exclusionary provision as § 10 and plainly attempted to further define what constituted a person "assisting in the persecution" of civilians. This legislative purpose is made clear from the following excerpt from the legislative debates:
The point I make first of all is that we have joined the International Refugee Organization, which was set up by the United Nations, and through the other body, we have become a party in the support of that Organization. That Organization has defined who are displaced persons and who are not. We will now take up their definition of who are not displaced persons. You will understand that all through this measure, we are dealing with displaced persons.
In annex I, part 2, they say:
Persons who will not be the concern of this Organization.
Persons of German ethnic origin, whether German nationals of members of German minorities in other countries who (a) have been or may be transferred to Germany from other countries; (b) have been during the second World War evacuated from Germany to other countries; or (c) have fled from or into Germany or from their places of residence into other countries other than Germany in order to avoid falling into the hands of the Allied Armies.
There are your three definitions of these groups which the International Refugee Organization will not consider as displaced persons.
I refer again to the bill. Under subsection (c) of section 2, I read:
The term "displaced person" shall not include any person who is or has been a member of, or participated in, any movement which is or has been hostile to the United States or the form of government of the United States.
94 Cong.Rec. 7878 (1948) (emphasis supplied) (remarks of Rep. Graham, member of House Committee on the Judiciary and Joint Conference Committee). See also 94 Cong.Rec. 7872-7873 (1948).
Under § 13, Congress further defined the act of assisting in the persecution of civilians as being a "member of, or participant in, a movement" that persecuted civilians. Section 13, therefore, expanded upon the somewhat vague IRO provision. See Fedorenko, supra, 101 S. Ct. at 761 (Stevens, J., dissenting).
While incorporating the IRO provision, § 13 added a limitation that was not contained within the IRO section. As indicated by the plain words of § 13, the assistance shown by participation or membership must be coupled with a movement which itself persecuted civilians. Assistance without movement affiliation was not proscribed by the 1948 version of § 13. However, when speaking of assistance by way of participation in a movement, that act of participation must, as set forth by the Fedorenko Court, in and of itself involve some personal activity involving persecution.
It was not until the 1950 amendments to the DPA that Congress included within the § 13 exclusion persons committing acts of persecution without regard to movement affiliation. The 1950 amendment to § 13 of the DPA provided as follows:
Sec. 11. Section 13 of the Displaced Persons Act of 1948 is amended to read:
"Sec. 13. No visas shall be issued under the provisions of this Act, as amended, to any person who is or has been a member of the Communist Party, or to any person who adheres to, advocates, or follows, or who has adhered to, advocated, or followed, the principles of any political or economic system or philosophy directed toward the destruction of free competitive enterprise and the revolutionary overthrow of representative governments, or to any person who is or has been a member of any organization which has been designated by the Attorney General of the United States as a Communist organization, or to any person who is or has been a member of or participated in any movement which is or has been hostile to the United States or the form of government of the United States, or to any person who advocated or assisted in the persecution of any person because of race, religion, or national origin, or to any person who has voluntarily borne arms against the United States during World War II. Upon arrival at the port of entry in the United States, every person eighteen years of age or older authorized to be admitted under this Act, shall take and subscribe an oath or affirmation that he is not and has never been a member of any organization or movement named in this section, and shall be liable to prosecution for perjury if such oath or affirmation is willfully false. If any person not entitled to a visa under this section shall nevertheless gain admission to this country, in addition to the penalty above-mentioned, such person shall, irrespective of the date of his entry, be deported in the manner provided by sections 19 and 20 of the Immigration Act of February 5, 1917, as amended."
Act of June 16, 1950, Pub.L.No. 81-555, § 11, 64 Stat. 219, 227 (emphasis supplied).
Mr. Carusi. As a practical matter, it causes us no great difficulty, but if I went in and told you why it ought to be eliminated, we would get into a discussion which you would say I should not enter into, it is policy. I am not entering into that.
Now, I think I have said all I need to say on the inland transportation. That explains itself.
There is a provision which merely adds a few lines to section 13. That is the line that says the people who are participants in movements hostile to the United States should be excluded. We all know what that means, but there is some question as to whether or not a person might be active and still not be a member of a movement that is hostile, so just to button that up a little more tightly we add the words that if he participated in the persecution of anyone for race, religion, or nationality reasons, that he shall be excluded, and then we will not have to prove he is a member of any outfit, we can show what his conduct was and bar him by that.
I think that explains itself.
Then there is the provision which relates to section 12, which relates to ethnic Germans and you remember making the German quota available to that group. Our only point on that is simply this and it was heightened by a colloquy in the Senate the other day in which one Senator was insisting the Displaced Persons Commission, particularly Mr. Carusi, was flouting the will of Congress by not processing these ethnic German cases. The fact is, it is none of our business. The law does not authorize us to. There is that misunderstanding because it happens to be in the Displaced Persons Act. The amendment as proposed says move it over into its right place so that misunderstanding won't exist. We get a lot of correspondence on cases like that. It slows us down. As I say, in Congress, there was the suggestion that we were violating the law by not processing them. You gentlemen can tell me whether we should.
We do not go into the merits of that at all. We just say put it where it belongs in the code book.
Hearings at 75. See also Hearings at 3 (containing amendment). See also S.Rep.No. 1237, 81st Cong., 2d Sess. 6 (1950), reprinted in (1950) U.S.Code Cong.Serv. 2513, 2519; Conf.Rep.No. 2187, 81st Cong., 2d Sess. (1950), reprinted in (1950) U.S.Code Cong.Serv. 2520, 2524; H.Rep.No. 581, 81st Cong., 2d Sess. 27 (1949). See generally 2A Sutherland, Statutes and Statutory Construction, § 48.10 at 209, § 48.16 at 222 (4th ed. 1972).
The Supreme Court's Fedorenko interpretation of materiality under the DPA is totally consistent with § 13 because it falls, albeit unintentionally, squarely on the "participant" prong of § 13. In that regard, the Supreme Court stated that:
But in focusing on whether particular conduct can be considered assisting in the persecution of civilians. Thus, an individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians. Other cases may present more difficult line-drawing problems but we need decide only this case.
101 S. Ct. at 750 n.34 (emphasis in original).
In applying § 13 to the Fedorenko conduct, it is clear defendant Fedorenko clearly exemplified a person who assisted in the persecution of civilians by being a participant in a movement. His participation constituted his service as an armed, uniformed and paid guard at a concentration camp where he shot at fleeing inmates. His actions, which the Supreme Court found to be acts of persecution, were as a participant in a movement which itself persecuted civilians. That movement was the agency that conceived, constructed, managed and controlled the concentration camp enterprise at Treblinka that had as its policy by the most brutal means imaginable the persecution of civilians, and to which agency Fedorenko willingly accepted the status of a loyal, obedient subordinate for pay.
This case sub judice presents somewhat of a prologue to the Fedorenko decision, because it concerns a person who was both a personal participant under § 13 (like Fedorenko) and a willing member of a movement which assisted the Germans in the persecution of civilians during WW II in the town of Rawa Ruska. The latter constituting an issue which the Fedorenko Court did not decide. This Court's decision, therefore, is that defendant Osidach was ineligible under both prongs of § 13 as a displaced person making his 1949 entry into this country invalid and illegal.
(c) Membership Under § 13 of the DPA
The Court holds that, under § 13 of the DPA, mere willing membership without proof of personal participation in acts of persecution in a movement that persecuted civilians is sufficient to warrant a finding of ineligibility as a displaced person. The Court bases that holding upon three separate grounds: (1) the plain language of the statute; (2) the legislative history underlying the statute; and, (3) the administrative interpretation of the IRO Constitution incorporated by reference into the DPA, as found in the Fedorenko decision.
The Court also finds that § 13, as so construed, is not violative of any constitutional provision.
Under traditional principles of statutory construction, the deliberate omission of the word "voluntary" from § 2(a) compels the conclusion that the statute made all those who assisted in the persecution of civilians ineligible for visas. See National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458 (94 S. Ct. 690, 693, 38 L. Ed. 2d 646) (1974); Botany Worsted Mills v. United States, 278 U.S. 282, 289 (49 S. Ct. 129, 131, 73 L. Ed. 379) (1929). As this Court has previously stated: "We are not at liberty to imply a condition which is opposed to the explicit terms of the statute.... To (so) hold ... is not to construe the Act but to amend it." Detroit Trust Co. v. The Barlum, 293 U.S. 21, 38 (55 S. Ct. 31, 35, 79 L. Ed. 176) (1934). See Federal Trade Comm'n v. Sun Oil Co., 371 U.S. 505, 514-515 (83 S. Ct. 358, 364, 9 L. Ed. 2d 466) (1963).
101 S. Ct. at 750. See also 101 S. Ct. at 751 n.35.
Second, the statute is phrased in the disjunctive such that a person who is or has been "a member of, or participant in, any movement..." (emphasis supplied) is ineligible under the DPA. The use of the conjunctive "or" indicates that two separate categories of persons were intended to be covered. Those categories are: those who were members in a movement and those who were participants in a movement but who lacked membership status. As stated previously, it is the second (participant) prong of § 13 that speaks to the degree of personal activity, and not the first (membership) prong. Any other construction would render the phrase "member" meaningless, because persons personally "participating" in a movement would include by definition both active members and non-member participants. By phrasing the statute in the manner it did, Congress was in effect making the initial presumption that mere willing members in movements were responsible for the persecutive actions of a movement to which they belonged, without additional proof of personal participation in those acts. The addition of the participant-prong of § 13 broadened the scope of the provision to include persons who were not members and, hence, held automatically responsible but had committed personal acts in affiliation with the movement which itself also committed similar actions.
This statutory construction is further supported by the legislative history of the DPA of 1948. H.R.Rep.No. 1854, as previously noted, when discussing § 2(c) of the House bill, the predecessor to § 13, clearly stated that:
H.R.Rep.No. 1854, 80th Cong., 2d Sess. 15 (1948) (emphasis supplied). See also 94 Cong.Rec. 7740 (1948) (remarks of Rep. Fellows).
During the legislative debates, several references were made that serve to define the terms "participant" and "member" in § 13. In regard to the meaning of the term "participant," references were used that explain its meaning as including "people who...assist," 94 Cong.Rec. 7872 (1948); "Nazi fifth columnists," 94 Cong.Rec. 9019-9020 (1948); "follows of Hitler" and "Nazi follows," 94 Cong.Rec. 7873-7874 (1948); "gauleiters" and "quislings," 94 Cong.Rec. 7873, 9019-9020 (1948); "adherents of nazism," "agents of Hitler" and "facilitated the Reichswehr blitz," 94 Cong.Rec. 7873 (1948); and, "persons who supported Hitler," 94 Cong.Rec. 9022 (1948). Without more, these references might be construed to mean that only participants, which would include only active members, were intended to be included under § 13. However, the repeated references to membership alone, without qualifying phraseology, convinces the Court that willing membership status alone was intended to be enough. Those references include: "members of the celebrated fifth column," 94 Cong.Rec. 7876 (1948); "members of movements which during the war rendered aid and comfort to our enemies," 94 Cong.Rec. 7740 (1948); "agents and others belonging to subversive organizations," 94 Cong.Rec. 6865 (1948); "members of subversive organizations," 94 Cong.Rec. 6865 (1948); "persons... affiliated with subversive groups," 94 Cong.Rec. 6190 (1948).
The only qualifying restriction as to willing membership does not go to the type or personal degree of membership but, rather, to the type of movement in which a person is a member. As noted, Congress did not want to classify all members of the ethnic Volksdeutsche group excludable merely because some Volksdeutsche, as members of smaller Volksdeutsche-composed groups, had rendered aid and comfort to the enemy. See infra at 110 to 112. That type of reasoning would imply that Congress intended narrower lines to be drawn as to movement composition in general. For example, being a Ukrainian, without more, would not be enough to be excluded under § 13, even though it might be proven that some Ukrainians in Ukrainian-composed groups had rendered aid and comfort to the enemy. The Court believes that it is also within the spirit of § 13 that Congress did not intend that mere willing membership in the Ukrainian police would entail individual responsibility and, hence, exclusion under § 13 for the actions of all Ukrainian police throughout Galacia during WW II. The Court believes movement classification was intended to be drawn in narrower circles but not so narrow as to require personal participation in acts of persecution under the membership-prong of § 13.
The statutory construction of mere membership is further supported by the notion that § 13 was not merely designed to cover collaborating war movements but communist organizations as well. The grave concern many legislators exhibited in 1948 over the threat of communist infiltration into displaced persons camps and entry into the United States as displaced persons is clearly shown throughout the legislative reports and debates. See infra at 107 to 108, 109 n.36. Therefore, Congress' intent to wield a broad brush in dealing with the communist problem under § 13 had the effect of making mere membership in a communist organization sufficient, without more, to constitute exclusion as an eligible displaced person.
The membership-prong of § 13 did not differentiate between membership in a communist organization and membership in a movement rendering aid and comfort to the enemy during WW II. Therefore, the requirement of mere membership, without more, under § 13, thought necessary by Congress in 1948 to stop the threat of communism, is equally applicable as a matter of statutory construction to membership in other movements additionally covered under § 13.
Finally, the DPA was enacted by Congress to assist many different types of displaced persons. In particular, its passage was aimed at helping those persons who had been persecuted by the enemy for their religious, nationalistic and ethnic beliefs during WW II. Section 2(c)(1) of the DPA provides that eligible displaced persons means anyone who "was a victim of persecution by the Nazi government and was detained in, or was obliged to flee from such persecution...." This legislative concern was repeatedly and forcefully asserted throughout the committee reports and legislative debates.
See S.Rep.No. 950, 80th Cong., 2d Sess. 8-9 (1948).
Therefore, the Court finds that it would be totally contradictory for Congress, on the one hand, to assist those who were truly victims of acts of persecution and then, on the other hand, afford those same benefits under the DPA to those persons who were willing members of movements who assisted the enemy in persecuting those same victims. See 94 Cong.Rec. 9019-9020 (remarks of Senator Pepper).
In conclusion, the Court is convinced that in 1948 Congress very much intended for persons who were mere willing members in movements which had persecuted civilians to be excludable under § 13 of the DPA.
Third, in Fedorenko, the Supreme Court, as previously discussed, held that the IRO exclusionary provision had been incorporated into the DPA by § 2(b). This Court has additionally found that provision was also incorporated into the DPA by § 13 and further defined in the process.
At trial, the Government introduced into evidence the deposition testimony of Daniel Segat ("Segat"), who from 1948 to 1952 was employed by the IRO first as an eligibility officer determining the eligibility status of displaced persons under the IRO Constitution (dep. at 5-7) and later as a member of the four to five member eligibility review board of the IRO reviewing, lower-level eligibility decisions numbering in the hundreds. Finally, Segat became the chief eligibility officer for the entire IRO (dep. at 14-15).
Segat was qualified as an expert in the administrative interpretation of the IRO Constitution (N.T. 9-5).
The Court finds his testimony to be credible, consistent and unequivocal and will, therefore, be afforded significant weight.
The Court found Segat's employment experience with the IRO to have resulted in his being personally exposed to those persons and movements upon which he based his expert testimony (dep. at 8-9, 13, 30, 76). He testified that the provisions of the IRO Constitution were uniformly applied by the IRO (dep. 15-18).
Segat unequivocally testified under direct and cross-examination to the following:
A. In general terms, the examination was to see whether the refugee was what we call a bonafide (sic) refugee. In other words, anybody who collaborated with or helped in any way or in any fashion the Germans was automatically excluded.
A. The focus and concern of these interviews was to see whether the refugee was in any way, in any shape or form connected with organizations that helped Germans, either militarily or to persecute civilian populations. That was the focus.
A. The majority were cases who were denied eligibility (on appeal) because of the fact that they belonged to various organizations that helped Germans.
Q. Do you recall what part of the IRO constitution these principles were stated in?
A. If I recall exactly, in Part II of the annex to the constitution.
Q. In general, what was that standard stated in the annex?
A. The standard stated in the annex was that anyone who gave assistance to the enemy, either by serving in the enemy forces or by serving in auxiliary forces or in military or civilian forces supervised by the Germans were prima facie ineligible.
Q. In practice, in terms of dealing with particular organizations or memberships, how did you interpret that principle?
A. This principle was interpreted strictly. Anybody who belonged to any of those organizations was deemed ineligible and the burden of proof was on him to prove with witnesses or some other way that he was indeed not involved.
Q. What kinds of organizations are you referring to?
A. I am referring to organizations that were created or sponsored by the Germans.
Q. What would be examples of some of these organizations?