Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 81-2305).
Before: Adams, Sloviter and Mansmann, Circuit Judges.
In this appeal from a judgment in favor of the defendant, Juozas Kungys, in a denaturalization proceeding, we are asked to determine whether certain undisputed misrepresentations or concealments which were made by the defendant on his visa application and which were repeated in connection with his naturalization petition are material within the meaning of 8 U.S.C. § 1451(a) and Chaunt v. United States, 364 U.S. 350, 5 L. Ed. 2d 120, 81 S. Ct. 147 (1960). Our review requires us to examine the second prong of the Chaunt test which has not been construed previously by this court nor explained by the Supreme Court. Because we find the defendant's willful misrepresentations and concealments concerning his identity to be material under our interpretation of the controlling standards, we reverse the judgment of the district court and remand for denaturalization proceedings.
The jurisdiction of the district court was predicated upon 8 U.S.C. § 1451(a) and 28 U.S.C. § 1345. This court has jurisdiction by virtue of 28 U.S.C. § 1291 since this is an appeal from a final decision of the district court.
Insofar as our review involves findings of fact made by the district court after a non-jury trial, our review is limited to the clearly erroneous standard. See, e.g., Leeper v. United States, 756 F.2d 300, 308 (3d Cir. 1985). As to questions of law, however, we utilize the "fullest scope of review," i.e., plenary review. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir. 1981).
The government, through the Office of Special Investigations of the Department of Justice, commenced this action pursuant to 8 U.S.C. § 1451(a) to revoke the citizenship of Juozas Kungys, who had procured a nonpreference quota immigration visa in Stuttgart, Germany in 1947, had emigrated to this country in 1948, and was naturalized in Newark, New Jersey in 1954.
In these proceedings before the district court, the government sought to denaturalize the defendant on the ground that his citizenship was illegally procured or was procured by concealment of a material fact because: (i) he allegedly participated with the armed forces of Nazi Germany in executing over 2,000 unarmed Lithuanian civilians, most of them Jewish, during July and August of 1941; (ii) he allegedly willfully concealed and misrepresented certain material facts in his visa application and in his naturalization petition; and (iii) he allegedly lacked the requisite "good moral character" as defined in 8 U.S.C. § 1101(f)(6), purportedly because he committed the aforementioned atrocities or alternately because he gave false testimony to obtain benefits under the Immigration and Nationality Act.
After trial non-jury the district court made numerous findings of fact and conclusions of law and entered judgment for the defendant on all counts. See United States v. Kungys, 571 F. Supp. 1104 (D. N.J. 1983). The facts and background are detailed by the district court and will not be reiterated fully here, particularly since the issues upon which we resolve this matter require us to apply and interpret legal precepts rather than examine the factual findings. Given the nature of the right at stake in a denaturalization proceeding, however, it is important for the appellate court to review carefully the record in the district court, and we have done so here. See, e.g., Fedorenko v. United States, 449 U.S. 490, 505-06, 66 L. Ed. 2d 686, 101 S. Ct. 737 (1981) and cases cited therein.
It was the government's principal contention that the defendant participated with occupying Nazi forces in the extermination of segments of the Lithuanian Jewish population. More specifically, in Kedainiai, Lithuania on July 23, 1941 and August 28, 1941 over 2,000 unarmed Jewish men, women and children were divided into groups, forced into a ditch, directed to undress and shot to death. Their bodies were then covered with earth and lime before the next doomed procession was forced to follow.
During the trial, in order to demonstrate the defendant's role in the Kedainiai killings, the government offered into evidence several videotaped depositions which were taken in the Soviet Union specifically for use in this case.*fn1 Although the district court candidly noted that, if unqualifiedly admitted, the depositions would have been sufficient to prove that the defendant was a participant in the Kedainiai murders, the district court did not admit the depositions for all purposes. These depositions were received into evidence only for the limited purpose of establishing that these atrocities actually transpired. Without the unrestricted admission of this evidence, the district court concluded that the government had not met its burden or proof with respect to establishing the defendant's participation in these war crimes.
In refusing to admit the Soviet depositions other than for the limited purpose of demonstrating that the Kedainiai killings took place, the district court reasoned that the depositions were unreliable. The court held that their admission "would violate fundamental considerations of fairness," given the totality of the circumstances. 571 F. Supp. at 1123. We do not reach this evidentiary issue and therefore do not determine whether the defendant was a participant in the killings. Even with the exclusion of the Soviet depositions insofar as they implicate the defendant, we find the presence of sufficient evidence in the trial record to resolve the denaturalization issue.*fn2
At trial, the government also contended that Kungys' citizenship should be revoked because he made false statements in the course of applying for entry into the United States and for citizenship. The government produced evidence that the defendant was born in Reistru on September 21, 1915, that he entered military service in 1938, which he left with the rank of junior lieutenant in late 1939, that he worked with the Bank of Lithuania in Kedainai from December 1, 1939 until mid-October 1941, that he moved to Kaunas thereafter, that in October 1944 he and his wife left Lithuania as the Soviet Army advanced thereon and moved to the Tuebingen region in Germany, which was then still under control of the Nazis, that Kungys applied for and received permission from the German authorities to reside in Tuebingen without special restrictions, and that his wife applied for permission to practice dentistry. Although records in Tuebingen accurately stated Kungys' true date and place of birth, when he applied for a visa application at the United States Consulate, his submissions included a forged Lithuanian Identity Card and a false birth record obtained from the Vatican representative in Germany.
The district court found, contrary to the defendant's claims, that he was a member of the Sauliai, a local Riflemen's association. This was an organization which gave military training to its members and which served as an auxiliary police force, assisting the German occupation.
The district court also found that the defendant misrepresented and concealed certain facts when applying for a visa and when petitioning for citizenship. It found, however, that these were not material. We note that the defendant initially denied making any such misrepresentations or concealing such information. The trial court, however, determined that that the defendant conceded that he did, and on appeal the defendant admits making the misrepresentations but argues that they are immaterial. These concern the defendant's date of birth, place of birth, wartime occupations and wartime residence. For the reasons which follow, we disagree with the district court's conclusion that these misrepresentations were not material and reverse on this ground.
Finally, the district court rejected the government's claim that irrespective of materiality, the proof that false testimony was given in connection with the naturalization process, in and of itself, is sufficient grounds to demonstrate a lack of good moral character under 8 U.S.C. § 1101(f)(6) and would support the revocation of the defendant's citizenship as illegally procured. We agree with the district court on this point.
There is no question that in a denaturalization proceeding the government "carries a heavy burden of proof," Costello v. United States, 365 U.S. 265, 269, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961), and that the evidence must be "clear, unequivocal, and convincing" so not to leave "the issue in doubt." Id., quoting Schneiderman v. United States, 320 U.S. 118, 125, 158, 87 L. Ed. 1796, 63 S. Ct. 1333 (1943). See also United States v. Kowalchuk, 773 F.2d 488, 493 (3d Cir. 1985) (in banc) cert. denied, 475 U.S. 1012, 106 S. Ct. 1188, 89 L. Ed. 2d 303 (1986). To require less "'would be inconsistent with the importance of the right that is at stake.'" Id., quoting Fedorenko, supra, 449 U.S. at 505-06. Although the government possesses a high standard of proof, "a certificate of citizenship is not immune from challenge." Kowalchuk, supra, 773 F.2d at 493.
In this case, the government seeks the revocation of the defendant's citizenship under section 340(a) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1451(a) (1982).*fn3 By the express terms of the statute, in order to succeed in a denaturalization proceeding, the government must prove that the order granting citizenship was "illegally procured or [was] procured by concealment of a material fact or by willful misrepresentation." Notwithstanding the precise language of section 1451(a), the government must demonstrate both willfulness and materiality with respect to any misrepresentation or concealment. Fedorenko, supra, 449 U.S. at 507-08 n.28. See also, Kowalchuk, supra, 773 F.2d at 495, n.8.
Here, as in Fedorenko, the willfulness of the misrepresentations or concealments is not at issue. As noted above, the defendant conceded before the trial court that he made these concealments. On appeal, the defendant again admits making misrepresentations or concealments, but claims they were not material.*fn4 The government argues that it has proven materiality under Chaunt and argues additionally that under 8 U.S.C. § 1101(f)(6) materiality is not required. We examine each argument in turn.
1. Materiality Requirements of Misrepresentations or Concealments under the Second Prong of Chaunt and 8 U.S.C. § 1451(a).
In Chaunt v. United States, 364 U.S. 350, 5 L. Ed. 2d 120, 81 S. Ct. 147 (1960), the Supreme Court had occasion to examine certain concealments made by the defendant in connection with his naturalization papers, i.e., the fact that he had been arrested for his speechmaking and handbill distributing activities more than the "critical" five years prior to the application. The Chaunt Court decided that the failure to disclose was not material, and in doing so, articulated a two-part materiality test, either prong of which, if demonstrated by the requisite burden of proof, could serve as the basis for revocation of citizenship:
(1) that facts were suppressed which, if known, would have warranted the denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.
Id. at 355. The Court also stated that the "totality of the circumstances" should be taken into consideration with assessing materiality. Id. at 354.
In Fedorenko v. United States, 449 U.S. 490, 66 L. Ed. 2d 686, 101 S. Ct. 737 (1981), some twenty years after Chaunt, the Supreme Court again considered the materiality of certain concealments, but this time in the context of a visa application as well as a naturalization petition. In Fedorenko, the defendant received a visa under the Displaced Persons Act, Pub. L. No. 80-774, 62 Stat. 1009, codified at 50 U.S.C. App. §§ 1951-1965 (1982) ("DPA"). The Supreme Court affirmed the order revoking the defendant's citizenship because his citizenship was illegally procured in that he failed to comply with the Congressionally-imposed prerequisites to citizenship. Specifically, the defendant lied about his wartime activities on his visa application, i.e., he claimed he was a farmer in Sarney, Poland during the war when in fact he was an armed guard at a concentration camp. Some thirty years later, after living in Connecticut as a "law-abiding" factory worker, the defendant applied for and obtained citizenship. His naturalization papers and sworn testimony likewise did not disclose his concentration camp service. At trial, the defendant admitted that he deliberately gave falsehoods in connection with his visa application, that he was an armed guard in a concentration camp, that he had an awareness of the atrocities, but claimed that he was forced to serve as a guard and denied that he was a participant.
The district court entered judgment for the defendant, finding that although he served as an armed guard and lied about his wartime activities, he served involuntarily. The Court of Appeals reversed, finding that the second prong of the Chaunt test "requires only clear and convincing proof that (a) disclosure of the true facts would have led to an investigation and (b) the investigation might have uncovered other facts warranting the denial of citizenship." Fedorenko, supra, 449 U.S. at 504 (emphasis in original; footnote omitted). The Supreme Court, in a plurality opinion, affirmed, and in doing so, construed the DPA and articulated a materiality test, but without referring to Chaunt:
At the very least, a misrepresentation must be considered material if disclosure of the true facts would have made the ...