Seventh Circuit rules that alien's failure to mention involuntary conscription to serve as SS guard at Nazi concentration and labor camps in 1956 visa application made his U.S. presence unlawful and thus invalidated his later naturalization
Josias Kumpf, an ethnic German (defendant), was born in Nova Pasova, Yugoslavia in April 1925. He had less than three years of schooling and passed most of his youth working on his father's farm. Germany invaded Yugoslavia on April 6, 1941. After the invasion, Germany started to conscript local ethnic Germans into its forces. For example, a drummer marched through defendant's town in October 1942, calling all young men to report for a health exam. After defendant's examination, German officials instructed him to report to the train station later that month.
Defendant obeyed and was taken to Oranienburg, Germany where he completed basic military training. There the Waffen Schutzstaffel, or armed protection guard, issued him a uniform, a rifle, a blood type tattoo, and both the distinctive skull and the SS insignia to wear on his uniform. The Waffen SS was the paramilitary component of the Nazi Party and was separate from the German Army, the Wehrmacht. Although originally intended to serve as Hitler's bodyguards, by the outbreak of World War II, the SS had assumed responsibility for German state security and for the operation of the Nazi concentration camps.
After his training, defendant was assigned to what later became the SS Death's Head Guard Battalion Sachsenhausen. Defendant's duty was to stand armed guard over prisoners at Sachsenhausen Concentration Camp (SSC). As recounted in detail in United States v. Wittje, 422 F.3d 479, 482 83 (7th Cir. 2005), the SS kept prisoners in hellish conditions, forced them to perform grueling labor, subjected them to medical experimentation, and sent many to execution.
Defendant's duty was to watch over the prisoners from perimeter guard towers. If anyone tried to escape, defendant was to fire warning shots and, if necessary, to shoot the escaping prisoner. Defendant testified, however, that he had never faced such a situation. During his tenure at the SSC, defendant was paid, got leave to return to his home, and received one promotion.
In October 1943, defendant was one of 150 guards transferred from the SSC to the Trawniki Labor Camp (TLC) in German occupied Poland. About 8,000 prisoners at TLC were executed in "Operation Harvest Festival" on November 3, 1943. The parties disagree as to whether defendant arrived at TLC before the massacre, but he admitted having guarded the pits after the executions to prevent any survivors from escaping.
Soon after the slaughter, the SS brought a group of Jews to TLC to sort the victims' clothing, to recover the dental gold from the bodies, and to burn the corpses. Defendant never forgot the stench of the burning bodies. Although ordered to shoot any escaping victim, he claims that no attempts were made on his shifts.
After getting back from home leave, defendant left TLC in early 1944 for Occupied France. There, inter alia, he guarded a detachment of prisoners from various camps who had to build platforms for launching missiles against Great Britain. After D-Day, defendant's unit retreated into Germany. Defendant claims that they sent him to the eastern front, where the Soviet Army captured him, and held him as a POW for the rest of the war.
When the war ended, defendant rejoined his family in Austria and later married Elisabeth Eremity. In 1956, defendant applied for a visa to enter the U.S. with his wife and three children. On his application, defendant falsely stated that he had served in the "German Army" and failed to mention his SS service. Defendant received a visa on March 23, 1956. About two months later, he arrived in the U.S. via the port of New York and settled in Chicago.
In February of 1964, defendant applied for naturalization. In response to a question regarding his memberships in military or other organizations, defendant merely asserted that he had been in the "German Army," again omitting any mention of his SS service. The U.S. granted defendant his citizenship on May 9, 1964.
After coming upon some wartime documents showing that defendant had served in the SS, the government filed a four count complaint in a Wisconsin federal court which asked the court to denaturalize defendant. The district court gave summary judgment to the government. It ruled that defendant had unlawfully obtained his U.S. citizenship because he had personally assisted in persecution and had not been eligible, therefore, for a visa under the Refugee Relief Act (the RRA).
Defendant took an appeal. He maintained principally that he had not illegally secured his citizenship, and that the federal courts lacked subject matter jurisdiction over this determination. The U.S. Court of Appeals for the Seventh Circuit, however, affirms in an opinion handed down on February 23, 2006.
The Court explains its reasoning. Where an individual has "illegally procured" citizenship, Congress provided for the revocation of the individual's naturalization. See 8 U.S.C. Section 1451(a). "To procure citizenship lawfully, an individual must be "lawfully admitted for permanent residence' into the United States, among other requirements. 8 U.S.C. Section 1427(a). Kumpf was admitted for permanent residence based on a visa issued under the RRA. To ascertain whether Kumpf illegally procured citizenship, we must therefore evaluate the validity of his visa."
"Kumpf first argues that this court lacks subject matter jurisdiction to consider the validity of the visa. Kumpf submits that Congress empowered the consular officers of the United States with exclusive authority "relating to the granting or refusal of visas.' 8 U.S.C. Section 1104(a). Since the consular officer has such exclusive authority, he argues, the federal courts cannot displace the consular function by reviewing the decision to grant a visa. This court previously decided this issue, determining that the federal courts do have jurisdiction "to examine visa eligibility.' United States v. Tittjung, 235 F.3d 330, 338 (7th Cir. 2000)."
"Kumpf [then points out] that his visa was issued under the Refugee Relief Act and not the earlier Displaced Persons Act ... This distinction, however, is immaterial to the jurisdictional argument. The federal courts have jurisdiction to review the visa process, regardless of the statute under which the visa was issued. Kumpf's jurisdictional argument is without merit." [788]
If defendant was not lawfully present in the U.S. by reason of his visa's fraudulent nature, the resulting naturalization process is void. "Because of the "precious' nature of United States citizenship, "the Government carries a heavy burden of proof' in denaturalization cases, and the evidence justifying revocation "must be clear, unequivocal, and convincing and not leave the issue in doubt.' Fedorenko v. United States, 449 U.S. 490, 505 (1981)."
"To evaluate the validity of the visa under this standard, we apply the governing statute at the time Kumpf's visa was issued, the RRA. Kumpf argues that, because this Act expired by the time of his naturalization, it cannot be used to revoke his citizenship. This argument is without merit: because Kumpf received a visa under the RRA, the court must look to that Act to evaluate whether the visa was issued properly."
The 1953 RRA provides that a person who "personally advocated or assisted' in persecution is ineligible for a visa. Pub.L. No. 83 203 Section 14(a), 67 Stat. 400 (1953). Defendant argued that his service in the Waffen SS did not constitute "personal" assistance in persecution, and therefore did not disqualify him from obtaining a visa.
"In this case, ... Kumpf was a guard who was issued a uniform, armed with a rifle, received wages, and took leave to visit home. He admits to standing guard over prisoners at Sachsenhausen, Trawniki, and in Occupied France. He also admits to receiving orders to shoot escaping prisoners, although he claims he never needed to do so." [789-90]
"Kumpf emphasizes in his brief that he "never personally harmed any individual' and never "aimed or discharged his weapon at anyone.' He argues that his limited conduct cannot constitute personal assistance in persecution. This lack of affirmative acts, however, does not undermine the fact that he fulfilled his role as a guard. The RRA's parameters are not limited to personally harming or personally shooting individuals; the language instead addresses personal assistance. Kumpf's personal presence functioned to discourage escape attempts and maintain order over the prisoners."
"His participation was not through monetary contributions, mere membership, or other indirect actions. Rather, he presided over and witnessed the torture and murder of helpless people. Because no one tried to escape during his watch, he claims he did not have to shoot anyone. Nevertheless, his personal presence as an armed guard clearly assisted in the persecution of the prisoners." [790]
Defendant's next point is that his Waffen SS service had been involuntary. "He submits that the involuntariness of his service should be considered in determining his eligibility for a visa under the RRA. Even assuming that Kumpf served involuntarily, the RRA does not require a person to assist voluntarily in persecution. In the context of the Displaced Persons Act, courts have held that the voluntariness of the service is irrelevant. See Fedorenko, 449 U.S. at 513 ("an individual's service as a concentration camp armed guard whether voluntary or involuntary made him ineligible for a visa.'); [Cite]. Similarly, the plain language of the RRA lacks a voluntariness requirement."
"In his sworn deposition taken for this case, Ambassador [Richard] Bloomfield [a former visa officer in 1956] clarified that a watch tower guard at a concentration camp who was compelled into service would not be eligible for a visa. Furthermore, Kumpf himself testified that he did not disclose to the visa officers anything about his service with the Waffen SS. Regardless, the plain language of the RRA does not provide for a consideration of voluntariness in assessing whether an individual personally assisted in persecution. The statute is not ambiguous, and therefore we do not need to address the agency's construction of the statute."
"Given Kumpf's candid recitation of his service, even if such service were compelled, we conclude that through his actions he personally assisted in persecution, and was therefore ineligible for a visa. Accordingly, his visa was invalid, making his admission to this country unlawful and his citizenship illegally procured. The district court therefore properly revoked Kumpf's citizenship." [790-91].
Citation: United States v. Kumpf, 438 F.3d 785 (7th Cir. 2006).
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