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UNITED STATES v. KOWALCHUK

July 1, 1983

UNITED STATES OF AMERICA, Plaintiff
v.
SERGE KOWALCHUK, a/k/a SERHIJ KOWALCZUK, Defendant



The opinion of the court was delivered by: FULLAM

 FULLAM, J.

 Invoking § 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 8 U.S.C. § 1451(a), the Government in this action seeks an order revoking the citizenship of the defendant, Serhij Kowalczuk, on the ground that his naturalization was "illegally procured or . . . procured by concealment of a material fact or by willful misrepresentation."

 In any such case, the Government bears a heavy burden of proof. Costello v. U.S., 365 U.S. 265, 269, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961). In order to justify revocation of citizenship, the evidence must be "clear, unequivocal, and convincing," such as not to leave "the issue in doubt". Schneiderman v. U.S., 320 U.S. 118, 125, 87 L. Ed. 1796, 63 S. Ct. 1333. "Any less exacting standard would be inconsistent with the importance of the right that is at stake in a denaturalization proceeding." Fedorenko v. U.S., 449 U.S. 490, 505, 66 L. Ed. 2d 686, 101 S. Ct. 737 (1980). As stated by the Third Circuit Court of Appeals in U.S. v. Riela, 337 F.2d 986, 988 (3d Cir. 1964):

 
"This burden is substantially identical with that required in criminal cases -- proof beyond a reasonable doubt [citing Klapprott v. U.S., 335 U.S. 601, 612, 93 L. Ed. 266, 69 S. Ct. 384 (1949)."

  An essential prerequisite to a lawful grant of citizenship is that the applicant's admission to this country to establish residence was itself lawful. The defendant was admitted to this country pursuant to the Displaced Persons Act of 1948, 62 Stat. 1009 (hereinafter "DPA"), enacted by Congress in 1948 to enable European refugees uprooted by World War II to emigrate to the United States without regard to established immigration quotas. Section 10 of the DPA, 62 Stat. 1003, placed the burden of proving eligibility under the Act on the person seeking admission and provided that "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." Moreover, the DPA's definition of "displaced persons" eligible for immigration incorporated the definition of "refugees or displaced persons" contained in Annex I to the Constitution of the International Refugee Organization of the United Nations (IRO), which became effective on August 20, 1948, and thus excluded from eligibility all persons who had "assisted the enemy in persecuting civil populations . . ." or had "voluntarily assisted the enemy forces . . . in their operations against the United Nations." In addition, § 13 of the DPA made ineligible for visas thereunder "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."

 The defendant, Serhij Kowalczuk, together with his younger brother Mikola Kowalczuk, spent four years (1945 through 1949) at a displaced persons camp at Lexenfeld, Austria, near Salzburg. In November 1947, the defendant obtained the necessary clearance from the IRO certifying that he was indeed a refugee "of concern" to IRO. This rendered him eligible for consideration for re-settlement. In order to obtain this certification, the defendant executed a detailed personal-history form (the CM/1 form).

 In due course, after sponsorship in this country had been arranged, the defendant presented his IRO documents, together with an additional personal-history questionnaire ("fragebogen") to representatives of the Displaced Persons Commission. After the required further investigation, the defendant was duly certified in 1949 as meeting the eligibility requirements of the DPA. He then applied to the Consular Service for a visa, which was granted, and he was duly admitted to the United States for permanent residence in late 1949. Thereafter, his petition for naturalization was granted on November 30, 1960, and he was thereupon admitted to citizenship.

 The essential thrust of the Government's contentions in the present case is that the defendant served as deputy commandant of a unit of the Ukrainian militia in Lubomyl, Ukraine, from 1941 to 1944; that during this period, the Lubomyl unit of the Ukrainian militia, and the defendant personally, committed acts of atrocity and repression against Jewish inhabitants of Lubomyl, and in general assisted the German cause in the war; and that, throughout the entire process leading to his naturalization, the defendant willfully concealed and intentionally failed to disclose these facts.

 The Government's evidence includes the testimony of three Jewish survivors of Lubomyl, to the effect that a local Ukranian militia, or schutzmannschaft, was established by the Germans shortly after they occupied the town in June 1941; that the defendant was a high-ranking officer of the Lubomyl schutzmannschaft; that members of this police force actively assisted the Germans in their acts of repression and atrocity against the Jewish residents of the town; and that the defendant personally committed various specified atrocities. In addition, several persons now residing in the Ukraine testified, by deposition, that they had served in the Lubomyl militia under the defendant's leadership; that they either assisted in or witnessed various acts of atrocity and repression, etc.

 If the defendant personally committed the serious atrocities against the Jews of Lubomyl charged by the Government, cancellation of his citizenship in this proceeding would be inevitable, for a variety of reasons. A person guilty of assisting the Nazis in such persecutions would not have been "of concern" to the IRO, and thus would not have met the definition of a displaced person under the DPA. Concealment of that history would, at some stage of the proceeding, constitute a willful misrepresentation or concealment of material facts for purposes of gaining entry to the United States, rendering such entry illegal and hence disqualifying. And, arguably at least, failure to disclose such a history in connection with the naturalization petition would amount to willful concealment of criminal activity; and such lack of candor might demonstrate lack of good moral character at the time of the naturalization petition.

 If the defendant was a member of the Ukrainian militia, but did not personally participate in or have direct knowledge of acts of atrocity and repression, the question would be whether the Ukranian militia at Lubomyl constituted an organization which did assist the Nazis in persecuting civilians, and, if so, whether mere membership in such an organization would be disqualifying. The remaining question, under that scenario, would be whether willful misrepresentation or concealment of a material fact has been established.

 And finally, if it is determined that the defendant was not actually a member of the Lubomyl militia but merely carried out civilian duties for the town government, the question would be whether failure to disclose such employment (and his residence at Lubomyl) on the various personal-history forms (the CM/1 form and the fragebogen) is a sufficient basis for revocation of citizenship in this proceeding.

 Thus, the analysis leading to a correct disposition of this litigation has two components: the defendant's actual wartime activities, and whether the defendant was guilty of willful misrepresentation of concealment of material facts. For a variety of reasons, neither line of inquiry has been easy.

 Determination of exactly what did or did not occur during the relevant 1941-1944 period is rendered particularly difficult in this case, not only because the pertinent events occurred nearly 40 years ago, but because, unlike virtually every other reported denaturalization case, there is in this case not one scrap of documentary evidence relating to the pertinent events. The fact-finding is relegated entirely to the testimony of witnesses, uncorroborated by any documentary evidence, and unrefreshed by any contemporaneous or relatively early recordation of their recollections of the pertinent events. For example, none of the Government's witnesses against the defendant is on record with any charges against the defendant until 1975 or 1976. None of the important witnesses for either side is fluent in the English language. Many testified through interpreters, and all would have benefitted from such assistance. And many testified by way of videotape deposition. It is extremely difficult to reach a confident conclusion, on the basis of witness demeanor, concerning the accuracy and reliability of testimony presented on videotape through an interpreter. Moreover, none of the witnesses can be deemed truly impartial, for reasons which will be elaborated below.

 It is obvious, of course, that if the Government's witnesses were correct, the defendant and his witnesses were lying; and if the defendant is correct, the government witnesses were either lying or simply mistaken, in identifying this defendant as a participant in atrocities. With relatively minor exceptions, there was nothing in the demeanor of any of the witnesses that would cause me to believe, with any degree of confidence, that any of the witnesses for either side was consciously lying. In the absence of persuasive clues derivable from witness demeanor, it is necessary to look to other factors which tend to corroborate or impeach the various accounts.

 FACTORS TENDING TO CAST DOUBT UPON THE DEFENDANT'S VERSION

 The defendant was approximately 21 years of age when the Germans occupied Lubomyl. His father had been at odds with, and dealt with harshly by, the Russian government earlier in his life, and it would be natural to suppose that the entire Kowalczuk family, all ardent anti-Communists, would be inclined to support the German cause. The defendant was able-bodied, in good health, and of suitable age for military service. It is unlikely that he would have been permitted to escape some form of military service or forced labor, except by performing local police duties approved by the Nazis, and under their direction. Assignment to the warehouse to supervise food distribution under the rationing plan would not be inconsistent with membership in, and even a high-ranking position in, the Lubomyl schutzmannschaft. If the Lubomyl schutzmannschaft generally were as active in repressive activities as the Government's evidence suggests, it would be most unlikely that the defendant would not have known about it. Yet the defendant, by his own testimony, worked daily at the police station, typing and distributing duty rosters, typing and filing police reports, etc. It is inconceivable that these reports would not have dealt with instances of repression of the Jewish population.

 By defendant's own account, he had been performing clerical duties at the police station for about a year when, in August 1942, he was sent away for additional training in local administration. The Government suggests that this testimony is a complete fabrication, designed to provide defendant with an alibi for the events leading up to and culminating in the October 1, 1942 liquidation of the Lubomyl ghetto. The evidence as a whole leads me to believe that the defendant probably was absent from Lubomyl attending training classes during the period in question. But it is significant that, as the defendant himself concedes, this additional schooling included classes in the German language, and that the additional training was arranged by the "town government" set up by the occupying Germans. It is impossible to avoid the inference that the defendant had found favor with the Nazi occupiers of Lubomyl, and was being trained for even greater service in the future.

 If the defendant's activities had been as innocuous as he claims, there would have been little reason for him to leave Lubomyl with the retreating Germans. It must be admitted, however, that this argument is considerably weakened by the fact that the defendant's parents, at least, had valid reasons for leaving at that time, and it would be quite understandable that the family would wish to remain together. Moreover, flight from the advancing Russian army was a widely prevalent mode of behavior.

 When the defendant filled out his CM/1 form, he omitted all mention of his residence and employment in Lubomyl. According to that form, plaintiff spent the entire 1939-1944 period working as a tailor in the town where he was born and grew up, Kremainec (stated to be in Poland, but actually in that part of the ...


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