Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civ No. 92-cv-02319).
Before: Sloviter, Chief Judge, Mansmann and Alarcon,*fn* Circuit Judges.
The United States commenced an action under the Immigration and Nationality Act of 1952, as amended, U.S.C. §§ 1101 et seq., against Johann Breyer, seeking his denaturalization based on his service as an armed guard in Nazi concentration camps during World War II. Breyer's naturalization was premised on his 1952 entry into the United States as a displaced person 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). Although Breyer essentially conceded that he was ineligible for displaced persons status as a result of his wartime activities, he challenged the government's right to denaturalize him, asserting that in retrospect, he should be deemed to have entered this country in 1952 lawfully as a United States citizen, having derived citizenship through his mother. The district court granted summary judgment in the government's favor, which served to denaturalize Breyer. Nonetheless, the court determined that the derivative citizenship statute in effect at the time of Breyer's birth, which awarded citizenship only to persons born to United States citizen fathers, was unconstitutional, but abstained from declaring Breyer a United States citizen because of a pending administrative proceeding he had initiated for this purpose. The issues we address are whether Breyer was properly denaturalized and whether the district court should have reached Breyer's derivative citizenship claim.
The material facts surrounding Breyer's entry into the United States and subsequent naturalization are not in dispute. Breyer was born on May 30, 1925, in Neuwalddorf, now known as Nova Lesna in the Republic of Slovakia. As a young man, he joined the Waffen SS, a Nazi paramilitary group, and ultimately became a member of the SS Totenkopfsturmbanne (Death's Head) Battalion. The SS Totenkopfsturmbanne was responsible for guarding Nazi concentration camps, where people were forcibly confined in inhumane conditions, subjected to unspeakable atrocities and executed because of their race, religion, national origin or political beliefs.
Breyer was initially assigned to the Buchenwald concentration camp where he served in the SS Totenkopf guard unit from February, 1943 to May, 1944. At Buchenwald, Breyer was trained to use a rifle and guard prisoners. In uniform, Breyer accompanied prisoners to and from work sites, and stood guard with a loaded rifle at the perimeter of the camp, under orders to shoot any prisoner trying to escape who failed to heed a warning to stop. In May, 1944, Breyer was transferred to Auschwitz, a death camp complex established in Nazi-occupied Poland. Again uniformed as an SS Totenkopf guard and armed with a rifle, Breyer patrolled the camp's perimeters and escorted prisoners to and from work. In August, 1944, Breyer took a paid leave, never to return to guard duty. While Breyer denied that he personally engaged in any abuse of prisoners, he was aware that prisoners were tortured and killed at Buchenwald and Auschwitz.
In May, 1951, Breyer applied to the United States Displaced Persons Commission to be qualified as a displaced person under the Displaced Persons Act for purposes of obtaining a visa to immigrate to the United States. His application was initially rejected because he had served in the Waffen SS. Several months later, the criteria for eligibility under the Act changed, so that membership in the Waffen SS was no longer a bar to displaced person status. In an interview with the Commission, Breyer disclosed that he was a member of the Waffen SS, but did not disclose his membership in the SS Totenkopf. On March 28, 1952, the Commission certified Breyer as a displaced person eligible for a visa.
Breyer then applied to immigrate to the United States as an alien under the Act. He was granted an immigrant visa and entered the United States in May, 1952. Thereafter, Breyer filed a petition for naturalization and on November 7, 1957, the United States District Court for the Eastern District of Pennsylvania granted his petition and issued a certificate of naturalization.
On April 21, 1992, the government filed a five-count complaint under section 1451(a) of the Immigration and Nationality Act to revoke and set aside Breyer's naturalized United States citizenship on the grounds that it was illegally procured (Counts I, II, III, IV) or was procured by concealment or willful misrepresentation (Count V).*fn1 In an amendment to his answer, Breyer set forth as an "affirmative defense" the allegation that he was a derivative citizen of the United States. Breyer asserted that his citizenship was derived from his mother, who he alleged was born in Philadelphia, Pennsylvania.*fn2
On October 30, 1992, pursuant to section 1452(a), Breyer filed an Application for Certificate of Citizenship with the Immigration and Naturalization Service, claiming derivative citizenship through his mother,*fn3 which is pending at the time of this appeal.
In December, 1992, the government filed a motion for summary judgment on Count I (Illegal Procurement of U.S. Citizenship: Unlawful Admission under the Displaced Persons Act, Assistance in Persecution) and Count II (Illegal Procurement of U.S. Citizenship: Unlawful Admission under the Displaced Persons Act, Membership In Hostile Movement). Attacking the lawfulness of Breyer's 1952 entry, the government contended that Breyer was excluded under the Displaced Persons Act from obtaining a visa because of his SS Totenkopf guard service at Buchenwald and Auschwitz. Since he was ineligible under the Act, the visa with which he entered this country was invalid. Without a valid visa, his entry was unlawful, and his naturalization, in turn, was illegally procured.
Breyer's primary response to the government's motion was his claim of derivative citizenship. According to Breyer, since he was a United States citizen through his mother at the time of his 1952 entry, he entered the United States lawfully, and thus, his naturalization was ...