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UNITED STATES v. BREYER

July 2, 1993

UNITED STATES OF AMERICA
v.
JOHANN BREYER



The opinion of the court was delivered by: WILLIAM H. YOHN, JR.

 Yohn, J.

 Presently before the court is a denaturalization action filed by the United States government pursuant to Section 340(a) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1451(a). The government seeks to revoke and set aside a 1957 order issued in this district admitting the defendant, Johann Breyer, as a United States citizen. The government also seeks to cancel defendant's certificate of naturalization (number 7992538) which was issued pursuant to that order. This court has jurisdiction pursuant to 28 U.S.C. § 1345 and 8 U.S.C. §§ 1421(a), 1451(a).

 In its five count complaint, the government alleges that defendant was a member of a SS Totenkopf (Death's Head) Battalion as an armed guard of prisoners during World War II. Defendant occupied this position at the Buchenwald concentration camp in Germany and later at Auschwitz death camp in Nazi-occupied Poland. The government asserts that defendant misrepresented and concealed his Nazi guard service when applying for a visa to enter the United States under the Displaced Persons Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009, amended by, Pub. L. No. 81-555, 64 Stat. 219 (1950) ("DPA") and when applying for naturalization.

 Summary Judgment Standard

 The United States Supreme Court recognizes United States citizenship as a precious right once it is acquired. The loss of United States citizenship can have severe and unsettling consequences. Costello v. United States, 365 U.S. 265, 269, 81 S. Ct. 534, 5 L. Ed. 2d 551 (1961). In a denaturalization action, the government bears a heavy burden of proof. "The evidence justifying revocation of citizenship must be "clear, unequivocal and convincing and not leave the issue in doubt." Fedorenko v. United States, 449 U.S. 490, 505-06, 101 S. Ct. 737, 66 L. Ed. 2d 686 (1981). However, there must also be strict compliance with any congressionally imposed prerequisites to the acquisition of citizenship. Id. at 506. Failure to comply with any of the conditions set by Congress can result in citizenship being set aside. Id.

 Even with the heavy burden of proof placed upon the government in naturalization cases, summary judgment remains applicable in such actions. United States v. Dercacz, 530 F. Supp. 1348, 1349 n.1 (E.D.N.Y. 1982); 6-Part 2 Moore's Federal Practice P 56.17[76] at 56-668 (2d ed. 1993). Summary judgment is appropriate if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). The moving party need not produce evidence to disprove the opponent's claim but does carry the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In turn, the non-moving party must offer specific facts contradicting the facts averred by the movant which indicate there is no genuine issue for trial. Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177, 3186, 111 L. Ed. 2d 695 (1990). If there are no genuine issues as to material facts, the court must determine whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c).

 FACTUAL BACKGROUND NOT IN DISPUTE

 Defendant's parents were married on November 17, 1913. Government Exhibit 1.18 at 2. Defendant's father was born in Nova Lesna at the time it was part of Austria-Hungary. *fn1" Id. Defendant was born on May 30, 1925 in Neuwalddorf, now known as Nova Lesna, in the Federal Republic of Czech and Slovak. Between 1925 and 1943, defendant resided in Neuwalddorf with his parents. Amended Ans. P 8.

 Beginning in or about February, 1943, defendant became a member of the Waffen SS and was part of the SS Totenkopf guard unit. Amended Ans. P 16. Defendant was assigned to the Buchenwald concentration camp from February, 1943 to May, 1944, as an armed guard of prisoners. Amended Ans. P 18, Government Exhibit 1.21.2 PP 3-4. As a member of the Buchenwald Totenkopf, defendant wore a dark green uniform with a skull and crossbones on the lapel. Exhibit 1.13 at 87-88; Exhibit 1.21.2 at P 4. When defendant arrived at Buchenwald, he received training on how to handle a rifle and deal with prisoners. Exhibit 1.13 at 97-99; Exhibit 1.21.2 at P 4. One of defendant's duties at Buchenwald involved standing guard outside the perimeter of the camp with a loaded rifle. While on guard duty, defendant had instructions to shoot any prisoner trying to escape that failed to heed a warning to stop. Exhibit 1.13 at 108-110, 116-17, 127-28. Defendant also escorted work prisoners to and from their respective work sites. Amended Ans. P 24. Defendant was paid for his service at Buchenwald and he also received one two-week paid leave per year. Exhibit 1.13 at 111-13; Exhibit 1.21.2 at P 4. Defendant admits that he observed that prisoners wore badges on their uniforms as a means of identifying the basis for their imprisonment. Amended Ans. P 21. Defendant now believes that prisoners at the Buchenwald camp were subjected to abuse, torture and killing. Amended Ans. P 23. However, defendant denies ever participating in any of this conduct while a guard at Buchenwald.

 Defendant was transferred to the Auschwitz death camp in May, 1944. *fn2" He remained on duty there as a part of the Totenkopf guard battalion until August, 1944. Amended Ans. P 25; Exhibit 1.21.2 at P 4. At Auschwitz, defendant continued wearing the Totenkopf uniform. He also continued carrying a rifle while he guarded the camp's perimeter and escorted prisoners to their work sites. Amended Ans. 25-30. While at Auschwitz, defendant received a promotion to private first class, with an increase in pay. Exhibit 1.21.2 at P 4. Defendant admits that he observed that prisoners who were not killed at Auschwitz wore badges indicating the reason for their imprisonment. Amended Ans. P 29. During his service at Auschwitz, defendant admits that prisoners were killed, tortured or experimented on because of their religion, national origin or political beliefs. Amended Ans. PP 27-28. Defendant believed that Auschwitz was worse than the Buchenwald camp. He admitted that he saw smoke rising from the crematoria that he knew was from burning bodies. Exhibit 1.13 at 123, 129, 164, 168-69, 234. Defendant denies taking part personally in any of this conduct. Defendant took one of his paid two-week leaves in August, 1944. During this leave he returned home. Defendant never returned to guard duty from this leave. Exhibit 1.21.2 at PP 4-5; Exhibit 1.13 at 50-53, 151, 177-81.

 In May, 1951, defendant made an application to the United States Displaced Person Commission ("DPC") to determine whether he was a Displaced Person as defined in the DPA, and thus eligible to immigrate to the United States. Amended Ans. P 31; Exhibit 1.13 at 70-71. Defendant's application was initially rejected because of his military service in the Waffen-SS. In or about September, 1951, the criteria for eligibility changed so that being a member of the Waffen-SS no longer made a person ineligible for Displaced Person status. Exhibit 1.19 and 1.20. However, being a Totenkopf guard was still a bar to achieving the status of Displaced Person. Id. Subsequently, the DPC interviewed the defendant. Defendant admitted that he was a member of the Waffen-SS. Amended Ans. P 36. Defendant now admits that he never informed the DPC of his membership in the Totenkopf. *fn3" Amended Ans. P 38. The DPC certified defendant as a Displaced Person on March 28, 1952.

 On or about March 24, 1952, defendant filed an "Application for Immigrant Visa and Alien Registration" with the American Vice Consul in Munich, Germany. This application claimed eligibility under the DPA. Amended Ans. PP 40-41; Exhibit 1.13 at 191-93. Defendant's application for a immigrant visa was approved on April 2, 1952. On May 13, 1952, defendant, using his immigrant visa, entered the United States. Amended Ans. P 44.

 On or about July, 17, 1957, defendant filed an "Application to File Petition for Naturalization" and a "Statement of Facts for Preparation of Petition" with the Immigration and Nationalization Service ("INS"). Amended Ans. P 46. Defendant filed his petition for naturalization (Form N-405) on or about August 19, 1957. Amended Ans. P 49. The United States District Court for the Eastern District of ...


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