When this form was filled out, it is possible that defendant's principal motivation was to avoid the risk of repatriation to Soviet-controlled territory; and it is entirely possible that he informed the interviewer of the true situation, as he testified. It is unnecessary to resolve this issue, however, since the statements in the CM/1 form were not made to an official administering the DPA, nor were they made for the purpose of gaining admission to the United States.
In applying for a visa and submitting the fragebogen, however, the defendant plainly was making representations for the purpose of gaining entry to the United States. It is probably true that the background information in the fragebogen was largely the result of merely copying the information set forth in the CM/1 form, but the defendant cannot avoid responsibility for the inaccuracies and omissions in that submission.
It is not at all clear that, in 1949, membership in or employment by the schutzmannschaft at Lubomyl would have precluded the issuance of a visa. Until the 1950 amendment to the DPA, IRO certification of eligibility was being accepted as virtually conclusive. It is significant that the Government is able to cite several instances of rejection of applicants for their association with the Ukrainian militia, but all of these instances occurred after the 1950 amendment of the statute. On the other hand, the testimony of Mr. Thomas makes it clear that, even in 1949, disclosure of membership in the Ukrainian militia would at least have prompted further inquiry. And it seems quite probable that consular officials would not knowingly have issued a visa to a person who actively assisted the Nazis in persecuting civilians, regardless of the extent of his direct personal involvement in atrocities.
The statute requires revocation of citizenship if it was either illegally procured, or procured by willful concealment or misrepresentation of material facts. 8 U.S.C. § 1451(a). In Chaunt v. U.S., 364 U.S. 350, 5 L. Ed. 2d 120, 81 S. Ct. 147 (1960), was established that, in this context, "material facts" are those facts which, if disclosed, "(1) . . . would have warranted denial of citizenship or (2) . . . might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." 364 U.S., at p. 355.
In my view, the record does not justify a conclusion that, in his application for citizenship, the defendant knowingly provided false information. And, unless he had personally committed serious atrocities (a fact not proven, as discussed above), it is doubtful that his failures to disclose amounted, at that point, to "willful concealment".
In Fedorenko v. U.S., supra, the Supreme Court left open the question of the applicability of the Chaunt text to antecedent visa applications. The Court found it unnecessary to address that issue because of its conclusion that Fedorenko's visa had been illegally procured, thus rendering his entry to the United States illegal, and the grant of citizenship similarly flawed as a result. While Fedorenko was a much clearer case than is Kowalczuk's (service as a concentration camp guard is more obviously persecution than is service on a local police force), that decision controls disposition of the present case. The same ultimate conclusion inevitably follows.
1. The defendant Serhij Kowalczuk was not a genuine refugee "of concern" to the IRO, and therefore was not entitled to the benefits of the Displaced Persons Act, because:
a. He assisted the Nazis in persecuting civilian populations, through his role as a member of the Lubomyl schutzmannschaft.
b. The Lubomyl schutzmannschaft, of which the defendant was voluntarily a member, voluntarily assisted the enemy forces in their operations against the United Nations.
2. Defendant Serhij Kowalczuk illegally obtained his visa, because he made a willful misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person, within the meaning of § 10 of the DPA.
3. Because his entry into the United States for permanent residence was illegal, the defendant Serhij Kowalczuk illegally obtained his naturalization certificate.
4. The petition of the Government must be granted.
AND NOW, this 1st day of July, 1983, it is ORDERED:
1. The Government's Amended Petition for revocation of citizenship of the defendant Serhij Kowalczuk is GRANTED.
2. The Order of this Court, entered November 30, 1960, admitting Serhij (Serge) Kowalczuk, to United States citizenship, is REVOKED AND SET ASIDE.
3. Certificate of Naturalization No. 8250996 issued to the defendant is CANCELLED.
4. The defendant is ordered forthwith to surrender said Certificate of Naturalization to the United States Attorney of this District.
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