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July 24, 2000


The opinion of the court was delivered by: Dalzell, District Judge.


The Government has filed this action under Section 340(a) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1451, asking us to revoke the United States citizenship of defendant Theodor Szehinskyj because of his alleged service as a Waffen SS Death's Head Battalion concentration camp guard during World War II. After a nonjury trial, this Memorandum will constitute our findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

Given the gravity of the relief the Government seeks against this 76-year-old citizen, we must consider in extended detail the evidence developed during his five-day trial. Our canvass regrettably but necessarily must include exposition of grisly details of the horrific concentration camp system that was the soul of the Third Reich.

I. Background Facts and Claims

The Government alleges in its one-count complaint that Szehinskyj served as an armed Nazi concentration camp guard during World War II and therefore was not entitled to the immigrant visa he received under the Displaced Persons Act of 1948 ("DPA"), Pub.L. No. 80-774, ch. 647, 62 Stat. 1009, as amended, June 16, 1950, Pub.L. No. 81-555, 64 Stat. 219.*fn1 Szehinskyj vigorously disputes these allegations, claiming that he was a slave laborer on a farm belonging to Hildegard Lechner near Schiltern, Austria during the time of his alleged Nazi service. He maintains that he was never a member of the SS.

Szehinskyj was born in Malnow, in the Lvov District of Poland,*fn2 on February 14, 1924. He considered himself a Ukrainian national and was fluent in both Ukrainian and Polish. He completed about seven grades of school and later worked on his family's small farm. See Joint Pretrial Stip. at 22-24.

In December of 1941, Szehinskyj went to Lvov, where he had friends, to look for work because the Soviets had collectivized his family's farm after their 1939 invasion of Malnow. He found work in Lvov chopping wood. See id. at 25. In February of 1942, German soldiers captured Szehinskyj and a group of other young people in Lvov, loaded them onto trucks, and eventually transported them to Krems, Austria, near Vienna. In Krems, Szehinskyj was processed in a labor office (i.e., he gave his name and identifying information to labor officials) and then was placed behind a counter with other forced laborers-to-be, where prospective "employers" reviewed them and selected those they wanted. Frau Lechner chose Szehinskyj to work on her remote Austrian farm while her husband was serving in the Wehrmacht. See id. at 25-26. Before Szehinskyj left the labor office, the officials there explained the work rules to him, e.g., that he could not leave his employer. The arbeitskarte (work card) that the Krems labor office prepared for him contains an expiration date of January 31, 1943. See id. at 27; see also Ex. G-24 (Szehinskyj's arbeitskarte, bearing the January 31, 1943 expiration date).

Szehinskyj claims that he remained on the Lechner farm until November of 1944. He testified that at that time, he left the farm with a group of fleeing refugees and spent the next several months performing work on different farms, eventually ending up in a displaced persons camp in Vilseck, Germany.

The Government contends that Szehinskyj left the Lechner farm sometime prior to January of 1943, before his Nazi-issued arbeitskarte expired. It claims that from January 15, 1943 until the spring of 1945, Szehinskyj served as an armed Waffen SS Totenkopf Division guard at the Gross-Rosen; Sachsenhausen, and Warsaw concentration camps. It also claims that he was involved in a 1945 prisoner transport from Sachsenhausen to the concentration camp at Mauthausen, after which he likely went on to serve as a guard at the concentration camp at Flossenburg.

In 1950, Szehinskyj entered the United States with his wife and young daughter on an immigrant visa issued to him under the DPA. See Ex. G-133 (Szehinskyj's immigration file). After working on a farm in York County, Pennsylvania, Szehinskyj moved his family to the Philadelphia area in the mid 1950s and got a job as a machinist for the General Electric Company, from which he retired in 1984. The Delaware County Court of Common Pleas naturalized him as a citizen on March 13, 1958. See id.

II. Summary of the Evidence

A. The Government's Case

At the heart of the Government's case are six Nazi wartime documents that, according to the testimony of Dr. Charles W. Sydnor, the Government's expert historian,*fn3 specifically identify Szehinskyj as a Waffen SS Totenkopf (or "Death's Head") Division concentration camp guard. These documents are concentration camp Change of Strength Reports*fn4 for May 1943, September 1943, and May 1944, see Exs. G-45, G-61, and G-62; two Troop Muster Rolls,*fn5 see Exs. G-44 and G 63; and a February 13, 1945 Transfer Order, see Ex. G-64.*fn6

According to Dr. Sydnor, these documents demonstrate that Szehinskyj joined the Waffen SS on January 15, 1943 and was first assigned to the Totenkopf Battalion at the Gross-Rosen concentration camp, located in lower Silesia. On May 19, 1943, he was transferred to Sachsenhausen, in Oranienburg, fifteen miles north of Berlin. See Ex. G-45 (the May, 1943 Change of Strength report listing Szehinskyj at line 21). On September 29 of that year, he was transferred to the new Warsaw camp constructed adjacent to the levelled Warsaw Ghetto, see Ex. G-61 (Change of Strength report for September of 1943 listing Szehinskyj at line 118). The following May, in preparation for the closing of the Warsaw camp because of the Red Army's advance, he was sent back to Sachsenhausen, see Ex. G-62 (a Change of Strength report for May, 1944 listing Szehinskyj in line 116); Ex. G-63 (a Troop Muster Roll prepared in the administrative office at Sachsenhausen showing that Szehinskyj arrived from Warsaw on May 4, 1944). He and many other guards left Sachsenhausen on February 13, 1945 to assist on a prisoner transport to Mauthausen concentration camp, about 300 miles south in Austria, see Ex. G-64 (a Transfer Order dated February 13, 1945). Dr. Sydnor also testified that Szehinskyj most likely went on to the Flossenburg concentration camp, though the Government is not seeking to prove this as part of its case. The Transfer Order states that Szehinskyj and the other Totenkopf guards were "to be transferred to the SS Death's Head Battalion of Flossenburg" after guarding the prisoner transport to Mauthausen. See Ex. G-64 (English translation).

The Government's case is also based on the testimony of Hildegard Lechner. Frau Lechner, whose de bene esse deposition in connection with this case was taken on February 10, 2000 in Salzburg, Austria, testified that Szehinskyj did work on her farm, but left in the fall of 1942.*fn7 She remembers selecting Szehinskyj at the labor office in Krems to work on her farm while her husband was fighting with the German army. She stated that she treated him as a member of her family, turned over to him the forty Deutschmarks she received from the German government every month, gave him his own little room next to her in-laws, and ate her meals with him.*fn8 She testified that her two-year-old daughter, Isolde, was very fond of Szehinskyj. See Ex. G-25 at 55.

Frau Lechner testified in detail about the day in 1942 when Szehinskyj left her farm:

[H]e just said that he was leaving. He just put his shoes over his shoulder and walked away barefoot. And I watched him leave for a long time. My daughter even waved to him until he was gone.

Id. at 56-57. After Szehinskyj left, she received another full-time laborer, named "Rudolf" or "Rudek". See id. at 45-46. Frau Lechner stated that she never heard from Szehinskyj after he left in 1942.

Frau Lechner also spoke tearfully about her husband, who was missing in action in Stalingrad as of January, 1943. She stated that she received her last letter from her husband in January of 1943, after Szehinskyj had left her farm, and heard over the radio that same month that the Wehrmacht had fallen at Stalingrad.

B. Szelzinskyj's Case

Szehinskyj testified at trial that he is not the man named in the documents. He said that he remained on Frau Lechner's farm until November of 1944, through several growing seasons, and that Frau Lechner did not treat him well, did not pay him, did not feed him enough, and made him sleep in a storage room. He remembers Herr Lechner, a German soldier on the Russian front, returning for three weeks in May of 1942. He also claims to remember Herr Lechner sending home a package from the front lines containing a captured Soviet flag in January of 1943, but stated that he did not recall Frau Lechner ever mentioning Stalingrad.

Szehinskyj testified that in November of 1944, he left the Lechner farm with a large band of refugees who passed through and warned him that, if the Russians found him, they would hurt him. He claims that Frau Lechner gave him a blanket, some bread, and his expired arbeitskarte as he was leaving. He claims that he had never seen the arbeitskarte before that moment.

According to Szehinskyj, he boarded a westbound train in Langenlois, near Schiltern, with the other refugees. When the train could go no further because of bombed-out tracks, he found a bicycle and travelled with two other men from farm to farm looking for food and shelter. He eventually went to the "Duerr" farm in the Straubing area of Germany, where he remained until the end of February, 1945. In April or May of 1945, he met a group of Americans, who transported him to a refugee camp in Vilseck, Germany. In mid-July, he left for Amberg, Germany to work in a sanitarium for people with tuberculosis. In December of 1946 or early 1947, he went to Neumarkt, where he met and married his wife. He returned to Amberg in 1947 to work as a mechanic in the United States Army's motor pool. His daughter, Anna, was born in a displaced persons camp in Amberg in 1948.

Szehinskyj also claims that an injury to his right hand would have prevented him from holding or firing a gun. According to his testimony, the Soviets who invaded Malnow in 1939 put him to work building a railroad, and he pierced his hand when he dropped a scythe on it during the construction. The injury caused him to lose feeling in his right hand and index finger and this prevented him from clenching his hand all the way.

He also stated that he has never had a tattoo.

III. The Concentration Camp System*fn9

Dr. Sydnor testified that concentration camps first came into existence in 1933, when Adolph Hitler and the Nazi Party came to power. As the Nazis tightened control of their growing empire, the use of Schutzhaft — "protective detention" — became more and more common. Early in Hitler's reign, the camps were filled in large part with members of political parties thought to be immical to the Nazi ideology. In the years that followed, the inmate population shifted to those groups thought to be racially undesirable, with the primary focus rapidly turning on the Jews.

The Nazis, under the direction of Hitler, SS Head Heinrich Himmler, and Himmler's protege, Theodor Eicke, created three basic types of concentration camps under the exclusive control of the SS: confinement and slave labor camps,*fn10 extermination camps,*fn11 and, as the war progressed, combined slave labor and death camps.*fn12 Conditions in the camps were inhuman: disease was rampant, sanitation, medical care, and heat were nonexistent, and inmates received little food, less than 1,000 calories per day. At labor camps, inmates were made to work eleven- or twelve-hour days in brutal conditions, even at night in the bitter winter. Prisoners died every day from malnutrition, exhaustion, disease, beatings, suicide,*fn13 or murder. Many were subjected to cruel and deadly medical experiments. One such experiment involved inflicting a flesh wound with a poison-tipped bullet and documenting how long it took the prisoner to die from the poison.

In short, the horror of the camps cannot be overstated: they were places of utter, devastating persecution.

As noted above, as the war progressed most inmates were placed in the camps because of their ethnicity or religion, though other groups of inmates included Gypsies, homosexuals, the mentally ill, the homeless, and the unemployed — people the Third Reich regarded as Unterinenschen, sub-humans.*fn14 Jews were considered the least desirable and most dangerous of the ethnic groups, followed by Gypsies and Slays.

As is made clear from the survivor accounts that follow, the Waffen SS Death's Head Battalion guards were vital to maintaining the terror of the camps. Dr. Sydnor testified that the camps simply could not have functioned without them. The guards, who were uniformed, armed, paid, and given leave, were instructed to shoot any prisoner who attempted to escape.*fn15

They subjected inmates to both official and unofficial physical punishments*fn16 as well as verbal abuse and persecution.

Leaders prescribed specific regulations for executions, such as:

When executing Polish civilian workers and workers from the formerly Soviet area, . . . workers of the same ethnic group in the area are to be led past the gallows after the execution and reminded of the consequences of violating regulations.

Ex. G-22, at 5 (English translation of January 6, 1943 Implementation Regulations for Executions, issued and signed by SS Reichsfluhrer Heinrich Himmler). The regulations specified that "[t]he offender is to be asked whether he wishes to stand facing the wall or the firing squad", id. at 2, or, if the inmate is hanged, "[t]he protective detention prisoner is to receive three cigarettes for the execution." Id. at 3. The regulations also provided that Shortly before the execution, the offender is advised in the presence of the participating SS men by the Camp Commandant or his authorized SS officer that he is to be executed. The notification shall be in approximately the following form:

"The offender has done such and such and thus forfeited his life because of his crime. For the protection of Volk and Reich, he is to be dispatched from life to death. Let the judgment be carried out."


All of the guards were armed at all times. An "Instruction on Tasks and Duties of the Guard" circular quotes the General Guard Directive, to wit: "It is forbidden to the guard, unless explicitly determined otherwise, to lay his weapon down." Ex. G-35, at 4. Also, an illustrated instruction book for guards who did not speak German depicts every guard, without exception, holding a gun. See Ex. G-34 ("Wrong/Right" picture book).*fn17

Dr. Sydnor emphasized that Totenkopf guards were not assigned to the same jobs every day at the camps. They had to be able to perform each type of duty-night patrol, escorting inmates, to and from work details, guarding them at work, service in the watchtower, patrolling the perimeter of the camp, etc. They also had to be ready at any moment to search for escapees.

The Totenkopf Battalion guards also were used in prisoner transports from one camp to another. On these hellish transports, during which prisoners routinely died, the duty of the guards was the same as at the camps: to make sure no prisoners escaped. Guards surrounded the train cars with guns drawn at every stop. See, e.g., id. ("Wrong/Right" illustration book depicting guards with guns pointed at prisoners as they board and exit a boxcar). Conditions for prisoners were abysmal, with no heat, food, or sanitation.

While the Nazi documents and Dr. Sydnor's testimony paint a horrifyingly clear picture of life in the concentration camps, the stories contained in the affidavits of four camp survivors, Exs. G-129 — G-132, offer vivid living testimony of what a nightmare a prisoner's daily life was in the camps involved in this case.*fn18

Sidney Glucksman, who was twelve years old when the Nazis took him into custody, spent time at three labor camps and was sent to Gross Rosen sometime in 1943. He spent about a year and a half there, performing various back-breaking jobs, until, after a bombing raid, he was forced to march for several days and nights to the camp at Dachau, where he remained for more than a year, until his liberation on April 29, 1945. Mr. Glucksman recounts horrors such as guards who put small children and babies into bags and smashed ...

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