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UNITED STATES v. BREYER

December 20, 1993

UNITED STATES OF AMERICA
v.
JOHANN BREYER



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

 Yohn, J.

 I. INTRODUCTION

 This 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 court has jurisdiction under 28 U.S.C. § 1345 and 8 U.S.C. §§ 1421(a) and 1451(a).

 On July 7, 1993, the court granted the government's motion for summary judgment with respect to counts I and II of its complaint. United States v. Breyer, 829 F. Supp. 773 (E.D.Pa. 1993). The court found that the defendant, Johann Breyer, advocated or assisted in the persecution of people because of race, religion or national origin as an armed guard at the Buchenwald concentration camp and the Auschwitz death camp. Because of the defendant's assistance in persecution, Section 13 of the Displaced Persons Act of 1948 ("DPA"), as amended, made the defendant's entry visa into the United States invalid. The court also found that the defendant's service as a member of the SS Totenkopf of the Waffen-SS constituted participation in a movement hostile to the United States and thus rendered him ineligible to receive an entry visa under Section 13 of the DPA. The court concluded that because the defendant was ineligible for the entry visa he obtained in order to enter the United States, the defendant failed to satisfy all the statutory requirements for naturalization. Therefore, the court held that the defendant's citizenship by naturalization was illegally procured. The government withdrew the other counts of the complaint at trial.

 The defendant responded to the government's motion for summary judgment that he was a citizen by birth because his mother was born in the United States. The court examined this affirmative defense separately because it found it to be a distinct issue from that of naturalization. The court found that Section 1993 of the Revised Statute of 1874 as applied to the defendant was unconstitutional since it conferred United States citizenship to foreign-born offspring of United States citizen fathers but not to United States citizen mothers. The court concluded that this statute was unconstitutional because there was no legitimate good faith basis for the gender discrimination and it therefore violated the equal protection component of the Fifth Amendment due process clause. The court expressly reserved the factual issue of the birthplace of the defendant's mother for trial.

 The court conducted the bench trial on the remaining issues during four days in September, 1993, and October, 1993. The focus of the trial was the birthplace of the defendant's mother. After carefully reviewing the testimony and the exhibits, and the suggested findings of fact and conclusions of law submitted by the parties, the court sets forth the following findings of fact and conclusions of law.

 II. FINDINGS OF FACT

 A. Defendant's Background

 1. The defendant's father was Johann (Jan) Breyer. He was born on March 13, 1891, in Neuwalddorf (Nova Lesna), Czechoslovakia.

 2. The defendant's mother was Katharina Susanna Breyer.

 3. The defendant's parents were married on November 17, 1913, in Neuwalddorf, Czechoslovakia. Neither of the defendant's parents ever resided in the United States after their marriage.

 4. The defendant was born on May 30, 1925, in Neuwalddorf, Czechoslovakia.

 5. The defendant resided with his parents in Neuwalddorf, Czechoslovakia from 1925 to 1943.

 B. Defendant's Mother's Birthplace

 6. No birth certificate for the defendant's mother has been located in Philadelphia, Pennsylvania.

 7. No birth certificate for the defendant's mother has been located in Slovakia by the District Office Poprad Record Office of Velky Slavkov, the Embassy of the Slovak Republic or the District Office Poprad to the Consulate General of the Slovak Republic in Munich.

 8. No United States passport was ever issued for the defendant's mother.

 9. No person is alive today that was present at the birth of the defendant's mother.

 10. Because of the absence of a contemporaneous official record of the birthplace of the defendant's mother, the parties presented secondary evidence as to the place of her birth.

 (a) Facts Supporting Birth in the United States

 11. The parish register for the Bethany Lutheran Church of Manayunk, which is located in the Roxborough section of Philadelphia, Pennsylvania, contains an entry in volume 2, pages 96 and 97, line 17 that defendant's mother, Katharina Susanna Breyer, was baptized at the church on March 27, 1898. This entry also states that the defendant's mother was born on December 23, 1897, to Johann Breyer and Katharina Schmegner.

 12. Other entries in volume 2 of the parish register for the Bethany Lutheran Church of Manayunk contain a notation when a child baptized in the church was born in another country or born in a county outside of Philadelphia. The entries of place of birth were written by the same pastor who wrote the entry for the defendant's mother. The baptismal entry for the defendant's mother contains no such notation that her place of birth was outside the country or outside of Philadelphia County.

 13. The parish register for the Bethany Lutheran Church of Manayunk also contains an entry in volume 2, pages 82 and 83, line 30 that Maria Breyer, the defendant's mother's sister (the defendant's aunt), was baptized at the church on September 1, 1895. This entry notes that Maria Breyer was born on August 10, 1895, to Johann Breyer and Katharina Schmegner. The baptismal entry for Maria Breyer also does not contain a notation that her place of birth was outside the country or outside of Philadelphia County.

 14. A 1930 Czechoslovak census for the defendant's childhood household in Neuwalddorf, which was taken before the outbreak of World War II, states that the defendant's mother was born on December 23, 1897, in Philadelphia, Pennsylvania.

 15. The government concedes that since 1952, the defendant has consistently stated that his mother was born in the United States.

 16. The defendant's mother's application for expulsion damages that was signed by her on March 17, 1953, states that she was born on December 23, 1897 in Manayunk, Pennsylvania in the United States.

 17. The September 28, 1953, Federal Republic of Germany Personal Identification card for the defendant's mother, which contains her photograph and her signature, states that she was born on ...


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