Fedorenko decision

Fedorenko v. United States
No. 79-5602
Argued October 15, 1980
Decided January 21, 1981
449 U.S. 490

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

The Displaced Persons Act of 1948 (DPA) enabled European refugees
driven from their homelands by World War II to emigrate to the United
States without regard to traditional immigration quotas. It provided that
any person

who shall willfully make a misrepresentation for the purpose of
gaining admission into the United States as an eligible displaced
person shall thereafter not be admissible into the United States,

and the applicable definition of "displaced persons" specifically excluded
individuals who had "assisted the enemy in persecuting civil[ians]" or had
"voluntarily assisted the enemy forces" in their operations. Petitioner was
admitted to the United States under a DPA visa that had been issued on the
basis of his 1949 application, which misrepresented his wartime activities
and concealed the fact that, after being captured by the Germans while
serving in the Russian Army, he had served as an armed guard at the Nazi
concentration camp at Treblinka in Poland. Subsequently, he became an
American citizen in 1970 on the basis of his visa papers and his
naturalization application, which also did not disclose his wartime service
as a concentration camp guard. The Government thereafter brought this
denaturalization action under º 340(a) of the Immigration and Nationality
Act of 1952, which requires revocation of United States citizenship that
was "illegally procured" or "procured by concealment of a material fact or
by willful misrepresentation." The Government charged that petitioner, in
applying for his DPA visa and for citizenship, had willfully concealed that
he had served as an armed guard at Treblinka and had committed crimes
against inmates of the camp because they were Jewish, and that therefore he
had procured his naturalization illegally or by willfully misrepresenting
material facts. The Government presented witnesses who testified that they
had seen petitioner commit acts of violence against camp inmates, and an
expert witness in the interpretation and application of the DPA, who
testified that petitioner would have been found ineligible for a visa as a
matter of law if it had been determined that he had been an armed guard at
the camp, regardless of whether or not he had volunteered for service or
had committed atrocities against inmates. In his testimony, petitioner
admitted that he deliberately gave false information in connection with
[449 U.S. 491] his application for the DPA visa but claimed that he had
been forced to serve as a guard and denied any personal involvement in the
atrocities committed at the camp. The District Court entered judgment for
petitioner, finding, inter alia, that, although petitioner had lied about
his wartime activities when he applied for a visa in 1949, he had been
forced to serve as a guard, and the Government had not met its burden of
proving that he had committed war crimes or atrocities at Treblinka. The
court held that, because disclosure of petitioner's involuntary service as
a concentration camp guard would not have been grounds for denial of
citizenship, his false statements about his wartime activities were not
misrepresentations of "material facts" within the meaning of the
denaturalization statute under the materiality standard announced in
[Image]Chaunt v. United States, 364 U.S. 350. As an alternative basis for
its decision, the court held that, even assuming misrepresentation of
material facts, equitable and mitigating circumstances -- the
inconclusiveness of the evidence that petitioner had committed war crimes
or atrocities and the uncontroverted evidence that he had been responsible
and law-abiding since coming to the United States -- required that he be
permitted to retain his citizenship. The Court of Appeals reversed, holding
that the District Court had misinterpreted the Chaunt test and that it had
no discretion to enter judgment for petitioner in the face of a finding
that he had procured his naturalization by willfully concealing material
facts.

Held: Petitioner's citizenship must be revoked under º 340(a) of the
Immigration and Nationality Act because it was "illegally procured." Pp.
[Image]505-518.

(a) The Government carries a heavy burden of proof in a
denaturalization proceeding, and evidence justifying revocation of
citizenship must be clear, unequivocal, and convincing, and not leave the
issue in doubt. However, there must be strict compliance with all the
congressionally imposed prerequisites to the acquisition of citizenship.
Failure to comply with any of these conditions renders the certificate of
citizenship "illegally procured," and naturalization that is unlawfully
procured can be set aside. Pp. [Image]505-507.

(b) The DPA's prohibition against admission of any person "who shall
willfully make a misrepresentation" to gain admission into the United
States as an "eligible displaced person," only applies to willful
misrepresentations about "material facts." Under the analysis of the courts
below, the misrepresentation that raised the materiality issue in this case
was contained in petitioner's application for a visa. The plain language of
the definition of "displaced persons" for purposes of the DPA as excluding
individuals who "assisted the enemy in persecuting [449 U.S. 492]
civil[ians]" mandates the literal interpretation, rejected by the District
Court, that an individual's service as a concentration camp armed guard --
whether voluntary or involuntary -- made him ineligible for a visa. Since a
misrepresentation must be considered material if disclosure of the true
facts would have made the applicant ineligible for a visa, and since
disclosure of the true facts here would, as a matter of law, have made
petitioner ineligible for a visa, it is unnecessary to determine whether
the materiality test of Chaunt as to applications for citizenship also
applies to false statements in visa applications. Pp. [Image]507-514.

(c) In 1970, when petitioner filed his petition for and was admitted
to citizenship, the Immigration and Nationality Act required an applicant
for citizenship to be lawfully admitted to the United States for permanent
residence, which admission, in turn, required that the individual possess a
valid unexpired immigrant visa. And, under the law applicable at the time
of petitioner's initial entry into the United States, a visa obtained
through a material misrepresentation was not valid. Since petitioner thus
failed to satisfy a statutory requirement which Congress had imposed as a
prerequisite to the acquisition of citizenship by naturalization, his
citizenship must be revoked because it was "illegally procured." Pp.
[Image]514-516.

(d) Although a denaturalization action is a suit in equity, a
district court lacks equitable discretion to refrain from entering a
judgment of denaturalization against a naturalized citizen whose
citizenship was procured illegally or by willful misrepresentation of
material facts. Once a district court determines that the Government has
met its burden of proving that a naturalized citizen obtained his
citizenship illegally or by willful misrepresentation, it has no discretion
to excuse the conduct. Pp. [Image]516-518.

597 F.2d 946, affirmed.

MARSHALL, J., delivered the opinion of the Court, in which BRENNAN,
STEWART, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., concurred in the
judgment. BLACKMUN, J., filed an opinion concurring in the judgment, post,
p. [Image]518. WHITE, J., post, p. [Image]526, and STEVENS, J., post, p.
[Image]530, filed dissenting opinions [449 U.S. 493]

MARSHALL, J., lead opinion

JUSTICE MARSHALL delivered the opinion of the Court.

Section 340(a) of the Immigration and Nationality Act of 1952, 66
Stat. 260, as amended, 8 U.S.C. º 1451(a), requires revocation of United
States citizenship that was "illegally procured or . . . procured by
concealment of a material fact or by willful misrepresentation."{[Image]1}
The Government brought this denaturalization action, alleging that
petitioner procured his citizenship illegally or by willfully
misrepresenting a material fact. The District Court entered judgment for
petitioner, but the Court of Appeals reversed and ordered entry of a
judgment of denaturalization. We granted certiorari, 444 U.S. 1070, to
resolve two questions: whether petitioner's failure to disclose, in his
application for a visa to come to this country, that he had served during
the Second World War as an armed guard at the Nazi concentration camp at
Treblinka, Poland, rendered his citizenship revocable as "illegally
procured" or procured by willful misrepresentation of a material fact, and
if so, whether the District Court nonetheless possessed equitable
discretion to refrain from entering judgment in favor of the Government
under these circumstances. [449 U.S. 494]

A

Petitioner was born in the Ukraine in 1907. He was drafted into the
Russian Army in June, 1941, but was captured by the Germans shortly
thereafter. After being held in a series of prisoner-of-war camps,
petitioner was selected to go to the German camp at Travnicki in Poland,
where he received training as a concentration camp guard. In September,
1942, he was assigned to the Nazi concentration camp at Treblinka in
Poland, where he was issued a uniform and rifle and where he served as a
guard during 1942 and 1943. The infamous Treblinka concentration camp was
described by the District Court as a "human abattoir" at which several
hundred thousand Jewish civilians were murdered.{[Image]2} After an armed
uprising by the inmates at Treblinka led to the closure of the camp in
August, 1943, petitioner was transferred to a German labor camp at Danzig
and then to the German prisoner of war camp at Poelitz, where he continued
to serve as an armed guard. Petitioner was eventually transferred to
Hamburg where he served as a warehouse guard. Shortly before the British
forces entered that city in 1945, petitioner discarded his uniform and was
able to pass as a civilian. For the next four years, he worked in Germany
as a laborer. [449 U.S. 495]

B

In 1948, Congress enacted the Displaced Persons Act (DPA or Act), 62
Stat. 1009, to enable European refugees driven from their homelands by the
war to emigrate to the United States without regard to traditional
immigration quotas. The Act's definition of "displaced persons"{[Image]3}
eligible for immigration to this country specifically excluded individuals
who had "assisted the enemy in persecuting civil[ians]" or had "voluntarily
assisted the enemy forces . . . in their operations. . . ."{[Image]4}
Section 10 of the DPA, 62 Stat. 1013, placed the burden of proving
eligibility under the Act on the person seeking admission, and provided
that

[a]ny person who shall willfully make a misrepresentation for the
purpose of gaining admission into the United States as an eligible
displaced person shall thereafter not be admissible into the United
States.

The Act established an elaborate system for determining eligibility for
displaced person status. Each applicant was first interviewed by
representatives of the International Refugee Organization of the United
Nations (IRO) who ascertained that the person was a refugee or displaced
person.{[Image]5} The applicant [449 U.S. 496] was then interviewed by an
official of the Displaced Persons Commission,{[Image]6} who made a
preliminary determination about his eligibility under the DPA. The final
decision was made by one of several State Department vice consuls who were
specially trained for the task and sent to Europe to administer the Act.{
[Image]7} Thereafter, the application was reviewed by officials of the
Immigration and Naturalization Service (INS) to make sure that the
applicant was admissible into the United States under the standard
immigration laws.

In October, 1949, petitioner applied for admission to the United
States as a displaced person. Petitioner falsified his visa application by
lying about his wartime activities. He told the investigators from the
Displaced Persons Commission that he had been a farmer in Sarny, Poland,
from 1937 until March, 1942, and that he had then been deported to Germany
and forced to work in a factory in Poelitz until the end of the war, when
he fled to Hamburg.{[Image]8} Petitioner told the same [449 U.S. 497] story
to the vice consul who reviewed his case, and he signed a sworn statement
containing these false representations as part of his application for a DPA
visa. Petitioner's false statements were not discovered at the time, and he
was issued a DPA visa and sailed to the United States, where he was
admitted for permanent residence. He took up residence in Connecticut and,
for three decades, led an uneventful and law-abiding life as a factory
worker.

In 1969, petitioner applied for naturalization at the INS office in
Hartford, Conn. Petitioner did not disclose his wartime service as a
concentration camp armed guard in his application,{[Image]9} and he did not
mention it in his sworn testimony to INS naturalization examiners. The INS
examiners took petitioner's visa papers at face value, and recommended that
his citizenship application be granted. On this recommendation, the
Superior Court of New Haven County granted his petition for naturalization,
and he became an American citizen on April 23, 1970.

C

Seven years later, after petitioner had moved to Miami Beach and
become a resident of Florida,{[Image]10} the Government filed this action
in the United States District Court for the Southern District of Florida to
revoke petitioner's citizenship. The complaint alleged that petitioner
should have been deemed ineligible for a DPA visa because he had served as
an armed guard at Treblinka and had committed crimes or atrocities [449
U.S. 498] against inmates of the camp because they were Jewish. The
Government charged that petitioner had willfully concealed this information
both in applying for a DPA visa and in applying for citizenship, and that,
therefore, petitioner had procured his naturalization illegally or by
willfully misrepresenting material facts.{[Image]11}
The Government's witnesses at trial included six survivors of
Treblinka who claimed that they had seen petitioner commit specific acts of
violence against inmates of the camp.{[Image]12} Each witness made a
pretrial identification of petitioner from a. photo array that included his
1949 visa photograph, and three of the witnesses made courtroom
identifications. The Government also called as a witness Kempton Jenkins, a
career foreign service officer who served in Germany after the war as one
of the vice consuls who administered the DPA. Jenkins had been trained to
administer the Act and had reviewed [449 U.S. 499] some 5,000 visa
applications during his tour of duty. Record 711-714, 72722. Without
objection from petitioner, Jenkins was proffered by the Government and
accepted by the court, as an expert witness on the interpretation and
application of the DPA. Id. at 719-721, 726-727, 734.

Jenkins testified that the vice consuls made the final decision about
an applicant's eligibility for displaced person status.{[Image]13} He
indicated that, if there had been any suggestion that an applicant "had
served or been involved in" a concentration camp, processing of his
application would have been suspended to permit a thorough investigation.
Id. at 766. If it were then determined that the applicant had been an armed
guard at the camp, he would have been found ineligible for a visa as a
matter of law. Id. at 767-768, 822. Jenkins explained that service as an
armed guard at a concentration camp brought the applicant under the
statutory exclusion of persons who "assisted the enemy in persecuting
civil[ians]," regardless of whether the applicant had not volunteered for
service{[Image]14} or had not committed atrocities against inmates. Id. at
768, 797-798. Jenkins emphasized that this interpretation of the Act was
"uniformly" accepted by the vice consuls, and that, furthermore, he knew of
no case in which a known concentration camp guard was found eligible for a
DPA visa.{[Image]15} Id. at 767. Jenkins also described the elaborate [449
U.S. 500] system that was used to screen visa applicants, and he testified
that, in interviewing applicants, the vice consuls bent over backwards in
interrogating each person to make sure the applicant understood what he was
doing. Id.; at 746.

Petitioner took the stand in his own behalf. He admitted his service
as an armed guard at Treblinka and that he had known that thousands of
Jewish inmates were being murdered there. Id. at 1442, 1451-1452, 1465.
Petitioner claimed that he was forced to serve as a guard, and denied any
personal involvement in the atrocities committed at the camp, id. at 1276,
1297-1298, 1539-1540; he insisted that he had merely been a perimeter
guard. Petitioner admitted, however, that he had followed orders and shot
in the general direction of escaping inmates during the August, 1943,
uprising that led to closure of the camp. Id. at 1507-1509, 1546, 1564.
Petitioner maintained that he was a prisoner of war at Treblinka, id. at
1495, although he admitted that the Russian armed guards significantly
outnumbered the German soldiers at the camp,{[Image]16} that he was paid a
stipend and received a good service stripe from the Germans, and that he
was allowed to leave the camp regularly, but never tried to escape. Id. at
1467-1471, 1489-1494, 1497, 1508.{[Image]17} Finally, petitioner conceded
that he deliberately gave false statements about his wartime activities to
the investigators from the Displaced Persons Commission and to the vice
consul who reviewed his visa application. Id. at 1518-1524.

The District Court entered judgment in favor of petitioner. [449 U.S.
501] 455 F.Supp. 893 (1978). The court found that petitioner had served as
an armed guard at Treblinka, and that he lied about his wartime activities
when he applied for a PA visa in 1949.{[Image]18} The court found, however,
that petitioner was forced to serve as a guard. The court concluded that it
could credit neither the Treblinka survivors' identification of petitioner
nor their testimony,{[Image]19} and it held that the Government had not met
its burden of proving that petitioner committed war crimes or atrocities at
Treblinka.

Turning to the question whether petitioner's false statements about
his activities during the war were misrepresentations of "material" facts,
the District Court, relying on our decision in [Image]Chaunt v. United
States, 364 U.S. 350 (1960), held that the Government had to prove

that either (1) facts were suppressed "which, if known, would have
warranted denial of citizenship" or (2) that their disclosure
"might have been useful in an investigation [449 U.S. 502] possibly
leading to the discovery of other facts warranting denial of
citizenship."

455 F.Supp. at 915 (quoting 364 U.S. at [Image]355). The District Court
rejected the Government's claim that disclosure of petitioner's service as
a concentration camp armed guard would have been grounds for denial of
citizenship. The court therefore ruled that the withheld facts were not
material under the first Chaunt test. The Government argued, however, that
the second Chaunt test did not require proof that the concealed facts
prevented an investigation that would have revealed facts warranting denial
of citizenship. The Government contended, instead, that the second test
merely required proof that an investigation might have uncovered such
facts, and it argued that petitioner's concealment of his service at
Treblinka fell within this test. The District Court conceded that the
language of Chaunt was ambiguous enough to support the Government's
interpretation of the second test. But relying on decisions by the United
States Courts of Appeals for the Third and Ninth Circuits,{[Image]20} the
District Court rejected the Government's position and interpreted both
Chaunt tests as requiring proof that "the true facts would have warranted
denial of citizenship." 455 F.Supp. at 916. Applying this test, the court
ruled that petitioner's false statements were not "material" within the
meaning of the denaturalization statute. In doing so, the court first
rejected Jenkins' testimony and held that petitioner was not ineligible for
a DPA visa. The court concluded that petitioner did not come under the
DPA's exclusion of persons who had assisted in the persecution of civilians
because he had served involuntarily. Second, the court found that, although
disclosure of petitioner's service as a Treblinka guard "certainly would"
have prompted an investigation into [449 U.S. 503] his activities, the
Government had failed to prove that such an inquiry would have uncovered
any additional facts warranting denial of petitioner's application for a
visa. Id. at 916.{[Image]21}

As an alternative basis for its decision, the District Court held
that, even assuming that petitioner had misrepresented "material" facts,
equitable and mitigating circumstances required that petitioner be
permitted to retain his citizenship. Specifically, the court relied on its
finding that the evidence that petitioner had committed any war crimes or
atrocities at Treblinka was inconclusive, as well as the uncontroverted
evidence that he had been responsible and law-abiding since coming to the
United States. The District Court suggested that this Court had not
previously considered the question whether a district court has discretion
to consider the equities in a denaturalization case. The court reasoned
that, since naturalization courts have considered the equities in
determining whether citizenship should be granted, similar discretion
should also be available in denaturalization proceedings.

The Court of Appeals for the Fifth Circuit reversed and remanded the
case with instructions to enter judgment for the Government and to cancel
petitioner's certificate of citizenship. 597 F.2d 946 (1979). Although the
Court of Appeals agreed with the District Court that Chaunt was controlling
on the question of the materiality of petitioner's false statements, it
disagreed with the District Court's interpretation [449 U.S. 504] of the
second Chaunt test as requiring proof of ultimate facts warranting denial
of citizenship. Instead, the Court of Appeals agreed with the Government
that the second 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 denial of
citizenship.{[Image]22}

In applying its formulation of the second Chaunt test to the facts of
the case, the Court of Appeals concluded that one part of the test was
satisfied by the District Court's finding that the American authorities
would have conducted an investigation if petitioner had disclosed that he
had served as an armed guard at Treblinka. The Court of Appeals then found
that Jenkins' testimony and other evidence before the District Court
clearly and convincingly proved that the investigation might have resulted
in denial of petitioner's application for a visa,{[Image]23} and the Court
of Appeals held that petitioner procured his naturalization "by
misrepresentation and concealment of his whereabouts during the war years
and his service as a concentration camp guard." 597 F.2d at 953. The Court
of Appeals further held that the District Court had erred in supposing that
it had discretion to enter judgment in favor of petitioner notwithstanding
a finding that [449 U.S. 505] petitioner had procured his naturalization by
willfully concealing material facts. The Court of Appeals concluded that
"[t]he denaturalization statute . . . does not accord the district courts
any authority to excuse the fraudulent procurement of citizenship." Id. at
954. Accordingly, the Court of Appeals held that petitioner's citizenship
must be revoked.{[Image]24} We affirm, but for reasons which differ from
those stated by the Court of Appeals.

II

Our examination of the questions presented by this case must proceed
within the framework established by two lines of prior decisions of this
Court that may, at first blush, appear to point in different directions.

On the one hand, our decisions have recognized that the right to
acquire American citizenship is a precious one, and that, once citizenship
has been acquired, its loss can have severe and unsettling consequences.
See [Image]Costello v. United States, 365 U.S. 265, [Image]269 (1961);
Chaunt v. United States, 364 U.S. at [Image]353; [Image]Baumgartner v.
United States, 322 U.S. 665, [Image]675-676 (1944); [Image]Schneiderman v.
United States, 320 U.S. 118, [Image]122 (1943). For these reasons, we have
held that the Government "carries a heavy burden of proof in a proceeding
to divest a naturalized citizen of his citizenship." Costello v. United
States, supra at [Image]269. The evidence justifying revocation of
citizenship must be "`clear, unequivocal, and convincing'" and not leave
"`the issue in doubt.'" Schneiderman v. United States, supra at [Image]125
(quoting Maxwell Land-Grant Case, 121 U.S. 325, 381 (1887)). Any less
exacting standard would be inconsistent with the importance of the right
that [449 U.S. 506] is at stake.in a denaturalization proceeding. And in
reviewing denaturalization cases, we have carefully examined the record
ourselves. See, e.g., Costello v. United States, supra; Chaunt v. United
States, supra; [Image]Nowak v. United States, 356 U.S. 660 (1958);
Baumgartner v. United States, supra.

At the same time, our cases have also recognized that there must be
strict compliance with all the congressionally imposed prerequisites to the
acquisition of citizenship. Failure to comply with any of these conditions
renders the certificate of citizenship "illegally procured," and
naturalization that is unlawfully procured can be set aside. 8 U.S.C. º
1451(a); [Image]Afroyim v. Rusk, 387 U.S. 253, [Image]267, n. 23 (1967).
See [Image]Maney v. United States, 278 U.S. 17 (1928); [Image]United States
v. Ness, 245 U.S. 319 (1917); [Image]United States v. Ginsberg, 243 U.S.
472 (1917). As we explained in one of these prior decisions:

An alien who seeks political rights as a member of this
Nation can rightfully obtain them only upon terms and conditions
specified by Congress. . . .
* * * *
No alien has the slightest right to naturalization unless all
statutory requirements are complied with; and every certificate of
citizenship must be treated as granted upon condition that the
government may challenge it . . . and demand its cancellation
unless issued in accordance with such requirements.

United States v. Ginsberg, supra at [Image]474-475. This judicial
insistence on strict compliance with the statutory conditions precedent to
naturalization is simply an acknowledgment of the fact that Congress alone
has the constitutional authority to prescribe rules for naturalization,{
[Image]25} and the courts' task is to assure compliance with the particular
prerequisites to the acquisition of United States citizenship [449 U.S.
507] by naturalization legislated to safeguard the integrity of this
"priceless treasure." [Image]Johnson v. Eisentrager, 339 U.S. 763,
[Image]791 (1950) (Black, J., dissenting).

Thus, what may at first glance appear to be two inconsistent lines of
cases actually reflect our consistent recognition of the importance of the
issues that are at stake -- for the citizen as well as the Government -- in
a denaturalization proceeding. With this in mind, we turn to petitioner's
contention that the Court of Appeals erred in reversing the judgment of the
District Court.

III

Petitioner does not, and indeed cannot, challenge the Government's
contention that he willfully misrepresented facts about his wartime
activities when he applied for a DPA visa in 1949. Petitioner admitted at
trial that he "willingly" gave false information in connection with his
application for a DPA visa so as to avoid the possibility of repatriation
to the Soviet Union.{[Image]26} Record 1520. The District Court
specifically noted that there was no dispute that petitioner "lied" in his
application. 455 F.Supp. at 914. Thus, petitioner falls within the plain
language of the DPA's admonition that

[a]ny person who shall willfully make a misrepresentation for the
purposes of gaining admission into the United States as an eligible
displaced person shall thereafter not be admissible into the United
States.

62 Stat. 1013. This does not, however, end our inquiry, because we agree
with the Government{[Image]27} that this provision only applies to willful
misrepresentations about "material" facts.{[Image]28} The first issue we
must [449 U.S. 508] examine then, is whether petitioner's false statements
about his activities during the war, particularly the concealment of his
Treblinka service, were "material."

A

At the outset, we must determine the proper standard to be applied in
judging whether petitioner's false statements were material. Both
petitioner and the Government have assumed, as did the District Court and
the Court of Appeals, that materiality under the above-quoted provision of
the DPA is governed by the standard announced in [Image]Chaunt v. United
States, 364 U.S. 350 (1960). But we do not find it so obvious that the
Chaunt test is applicable here. In that case, the Government charged that
Chaunt had procured his citizenship by concealing and misrepresenting his
record of arrests in the United States in his application for citizenship,
and that the arrest record was a "material" fact within the meaning of the
denaturalization statute.{[Image]29} Thus, the materiality standard
announced in that case pertained to false statements in applications for
citizenship, and the arrests that Chaunt failed to disclose all took place
after he came to this country. The case presented no question concerning
the lawfulness of his initial entry into the United States.

In the instant case, however, the events on which the Government
relies in seeking to revoke petitioner's citizenship took place before he
came to this country, and the Government [449 U.S. 509] is seeking to
revoke petitioner's citizenship because of the alleged unlawfulness of his
initial entry into the United States. Although the complaint charged that
petitioner misrepresented facts about his wartime activities in both his
application for a visa and his application for naturalization, both the
District Court and the Court of Appeals focused on the false statements in
petitioner's application for a visa. Thus, under the analysis of both the
District Court and the Court of Appeals, the misrepresentation that raises
the materiality issue in this case was contained in petitioner's
application for a visa.{[Image]30} These distinctions plainly raise the
important question whether the Chaunt test for materiality of
misrepresentations in applications for citizenship also applies to false
statements in visa applications.

It is, of course, clear that the materiality of a false statement in
a visa application must be measured in terms of its effect on the
applicant's admissibility into this country. See United States v. Rossi,
299 F.2d 650, 652 (CA9 1962). At the very least, a misrepresentation must
be considered material if disclosure of the true facts would have made the
applicant ineligible for a visa. Because we conclude that disclosure of the
true facts about petitioner's service as an armed guard at Treblinka would,
as a matter of law, have made him ineligible for a visa under the DPA, we
find it unnecessary to resolve the question whether Chaunt's materiality
test also governs false statements in visa applications.

Section 2(b) of the DPA, 62 Stat. 1009, by incorporating the
definition of "[p]ersons who will not be [considered displaced [449 U.S.
510] persons]" contained in the Constitution of the IRO, see n. 3, supra,
specifically provided that individuals who "assisted the enemy in
persecuting civil[ians]" were ineligible for visas under the
Act.{[Image]31} Jenkins testified that petitioner's service as an armed
guard at a concentration camp -- whether voluntary or not -- made him
ineligible for a visa under this provision.{[Image]32} Jenkins' testimony
was based on his firsthand [449 U.S. 511] experience as a vice consul in
Germany after the war reviewing DPA visa applications. Jenkins also
testified that the practice of the vice consuls was to circulate among the
other vice consuls the case files of any visa applicant who was shown to
have been a concentration camp armed guard. Record 826. Thus, Jenkins and
the other vice consuls were particularly well informed about the practice
concerning the eligibility of former camp guards for DPA visas. The
District Court evidently agreed that a literal interpretation of the
statute would confirm the accuracy of Jenkins' testimony. 455 F.Supp. at
913. But by construing º 2(a) as only excluding individuals who voluntarily
assisted in the persecution of civilians, the District Court was able to
ignore Jenkins' uncontroverted testimony about how the Act was interpreted
by the officials who administered it.{[Image]33} [449 U.S. 512]
The Court of Appeals evidently accepted the District Court's
construction of the Act, since it agreed that the Government had failed to
show that petitioner was ineligible for a DPA visa. 597 F.2d at 953.
Because we are unable to find any basis for an "involuntary assistance"
exception in the language of º 2(a), we conclude that the District Court's
construction of the Act was incorrect. The plain language of the Act
mandates precisely the literal interpretation that the District Court
rejected: an individual's service as a concentration camp armed guard --
whether voluntary or involuntary -- made him ineligible for a visa. That
Congress was perfectly capable of adopting a "voluntariness" limitation
where it felt that one was necessary is plain from comparing º 2(a) with º
2(b), which excludes only those individuals who "voluntarily assisted the
enemy forces . . . in their operations. . . ." Under traditional principles
of statutory construction, the deliberate omission of the word "voluntary"
from º 2(a) compels the conclusion that the statute made all those who
assisted in the persecution of civilians ineligible for visas.{[Image]34}
See [Image]National Railroad Passenger Corp. [449 U.S. 513] v. National
Assoc. of Railroad Passengers, 414 U.S. 453, [Image]458 (1974);
[Image]Botany Worsted Mills v. United States, 278 U.S. 282, [Image]289
(1929). As this Court has previously stated:

We are not at liberty to imply a condition which is opposed to the
explicit terms of the statute. . . . To [so] hold . . . is not to
construe the Act, but to amend it.

[Image]Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, [Image]38
(1934). See [Image]FTC v. Sun Oil Co., 371 U.S. 505, [Image]514-515 (1963).
Thus, the plain language of the statute and Jenkins' uncontradicted and
unequivocal testimony leave no room for doubt that, if petitioner had
disclosed the fact that he had been an armed guard at Treblinka, he would
have been found ineligible for a visa under the DPA.{[Image]35} This being
so, we must conclude that petitioner's [449 U.S. 514] false statements
about his wartime activities were "willfu[l] [and material]
misrepresentation[s] [made] for the purpose of gaining admission into the
United States as an eligible displaced person." 62 Stat. 1013. Under the
express terms of the statute, petitioner was "thereafter not . . .
admissible into the United States." Ibid.

Our conclusion that petitioner was, as a matter of law, ineligible
for a visa under the DPA makes the resolution of this case fairly
straightforward. As noted, supra at [Image]506-507, our cases have
established that a naturalized citizen's failure to comply with the
statutory prerequisites for naturalization renders his certificate of
citizenship revocable as "illegally procured" under 8 U.S.C. º 1451(a). In
1970, when petitioner filed his application for, and was admitted to,
citizenship, ºº 316(a) and 318 of the Immigration and Nationality Act of
1952, 8 U.S.C. ºº 1427(a) and 1429, required an applicant for citizenship
to be lawfully admitted to the United States for permanent residence.{
[Image]36} Lawful admission for permanent [449 U.S. 515] residence, in
turn, required that the individual possess a valid unexpired immigrant
visa. At the time of petitioner's initial entry into this country, º 13(a)
of the Immigration and Nationality Act of 1924, ch.190, 43 Stat. 153, 161
(repealed in 1952), provided that "[n]o immigrant shall be admitted to the
United States unless he (1) has an unexpired immigration visa. . . ."{
[Image]37} The courts at that time consistently held that º 13(a) required
a valid visa, and that a visa obtained through a material misrepresentation
was not valid. See, e.g., Ablett v. Brownell, 99 U.S.App.D.C. 387, 391, 240
F.2d 625, 629 (1957); United States ex rel. Jankowski v. Shaughnessy, 186
F.2d 580, 582 (CA2 1951). Section 10 of the DPA, 62 Stat. 1013, provided
that

all immigration laws, . . . shall be applicable to . . . eligible
displaced . . . persons who apply to be or who are admitted into
the United States pursuant to this Act.

And as previously noted, petitioner was inadmissible into this country
under the express terms of the DPA. Accordingly, inasmuch as petitioner
failed to satisfy a statutory requirement which Congress has imposed as a
prerequisite to the acquisition of citizenship by naturalization, we must
agree with the Government that petitioner's citizenship must be revoked
because it was "illegally procured." See [Image]Polites v. United States,
364 U.S. 426, [Image]436-437 (1960); Schwinn v. United States, 311 U.S. 616
(1940); Maney v. United States, 278 U.S. at [Image]22-23; United States v.
Ginsberg, 243 U.S. at 475; [Image]Luria v. United States, 231 U.S. 9,
[Image]17 (1913); [Image]Johannessen v. United States, 225 U.S. 227,
[Image]240 (1912). Cf. Schneiderman v. United States, 320 U.S. at
[Image]163 (Douglas, J., concurring).{[Image]38} In the lexicon [449 U.S.
516] of our cases, one of the "jurisdictional facts upon which the grant
[of citizenship] is predicated," Johannessen v. United States, supra at
[Image]240, was missing at the time petitioner became a citizen.

B

This conclusion would lead us to affirm on statutory grounds (and not
on the basis of our decision in Chaunt), the judgment of the Court of
Appeals. Petitioner argues, however, that, in a denaturalization
proceeding, a district court has discretion to consider the equities in
determining whether citizenship should be revoked. This is the view adopted
by the District Court but rejected by the Court of Appeals. It is true, as
petitioner notes, that this Court has held that a denaturalization action
is a suit in equity. [Image]Knauer v. United States, 328 U.S. 654,
[Image]671 (1946); Luria v. United States, supra at [Image]27-28.
Petitioner further points to numerous cases in which the courts have
exercised discretion in determining whether citizenship should be granted.
See, e.g., In re Iwanenko's Petition, 145 F.Supp. 838 (ND Ill.1956);
Petition of R., 56 F.Supp. 969 (Mass.1944). Petitioner would therefore have
us conclude that similar discretion should be available to a
denaturalization court to weigh the equities in light of all the
circumstances in order to arrive at a solution that is just and fair. He
then argues that, if such power exists, the facts of this case,
particularly his record of good conduct over the past 29 years and the
reasonable doubts about some of the allegations in the Government's
complaint, all weigh in favor of permitting him to retain his citizenship.
Although petitioner presents this argument with respect to revocation of
citizenship procured through willful misrepresentation of material facts,
we assume that petitioner believes that courts should also be allowed to
weigh the equities in [449 U.S. 517] deciding whether to revoke citizenship
that was "illegally procured," which is our holding in this case.

We agree with the Court of Appeals that district courts lack
equitable discretion to refrain from entering a judgment of
denaturalization against a naturalized citizen whose citizenship was
procured illegally or by willful misrepresentation of material facts.
Petitioner is correct in noting that courts necessarily and properly
exercise discretion in characterizing certain facts while determining
whether an applicant for citizenship meets some of the requirements for
naturalization.{[Image]39} But that limited discretion does not include the
authority to excuse illegal or fraudulent procurement of citizenship. As
the Court of Appeals stated:

Once it has been determined that a person does not qualify for
citizenship, . . . the district court has no discretion to ignore
the defect and grant citizenship.

597 F.2d at 954. By the same token, once a district court determines that
the Government has met its burden of proving that a naturalized citizen
obtained his citizenship illegally or by willful misrepresentation, it has
no discretion to excuse the conduct. Indeed, contrary to the District
Court's suggestion, see supra at [Image]503, this issue had been settled by
prior decisions of this Court. In case after case, we have rejected lower
court efforts to moderate or otherwise avoid the statutory mandate of
Congress in denaturalization proceedings. For example, in [Image]United
States v. Ness, 245 U.S. 319 (1917), we ordered the denaturalization of an
individual who "possessed the personal qualifications which entitle aliens
to admission and to citizenship," id. at [Image]321, but who had failed to
file a certificate of arrival as required by statute. We explained that
there was "no power . . . vested in the naturalization court to dispense
with" this requirement. [449 U.S. 518] Id. at [Image]324. We repeat here
what we said in one of these earlier cases:

An alien who seeks political rights as a member of this
Nation can rightfully obtain them only upon the terms and
conditions specified by Congress. Courts are without authority to
sanction changes or modifications; their duty is rigidly to enforce
the legislative will in respect of a matter so vital to the public
welfare. United States v. Ginsberg, 243 U.S. at [Image]474-75.

See Maney v. United States, 278 U.S. at [Image]22-23; Johannessen v. United
States, 225 U.S. at 241-242.

In sum, we hold that petitioner's citizenship must be revoked under 8
U.S.C. º 1451(a) because it was illegally procured. Accordingly, the
judgment of the Court of Appeals is affirmed.{[Image]40}

So ordered.

THE CHIEF JUSTICE concurs in the judgment.

BLACKMUN, J., concurring

JUSTICE BLACKMUN, concurring in the judgment.

I agree with much of the Court's reasoning, as well as with the
result it reaches. I am perplexed, however, by the Court's reluctance, ante
at [Image]508-509, to apply the materiality standard of [Image]Chaunt v.
United States, 364 U.S. 350 (1960), to petitioner's circumstances. I write
separately to express my understanding that application of Chaunt would
yield no different result here, and to state my belief that a standard as
rigorous as Chaunt's is necessary to protect the rights of our naturalized
citizens.

In Chaunt, the issue presented was whether failure to reveal certain
prior arrests in response to a question on a citizenship application form
constituted misrepresentation or concealment [449 U.S. 519] of a material
fact for purposes of the denaturalization statute.{[Image]1} Id. at
[Image]351-352. As construed by Chaunt, the statute authorizes
denaturalization on the basis of an applicant's failure to disclose
suppressed facts which (1) "if known, would have warranted denial of
citizenship," or (2) "might have been useful in an investigation possibly
leading to the discovery of other facts warranting denial of citizenship."
Id. at [Image]355.

The Court says that Chaunt need not be invoked when denaturalization
is premised on deliberate misstatements at the visa application stage, but
does not explain why this is so. I fail to see any relevant limitation in
the Chaunt decision or the governing statute that bars Chaunt's application
to this case. By its terms, the denaturalization statute at the time of
Chaunt, as now, was not restricted to any single stage of the citizenship
process.{[Image]2} Although, in Chaunt, the nondisclosures arose in
response to a question on a citizenship application form filed some years
after the applicant first arrived in this country, nothing in the language
or import of the opinion suggests that omissions or false statements should
be assessed differently when they are tendered upon initial entry into this
country. If such a distinction was intended, it has eluded the several
courts that unquestioningly have applied Chaunt's materiality standard when
reviewing alleged distortions in the visa request process. See, e.g.,
Kassab v. Immigration & [449 U.S. 520] Naturalization Service, 364 F.2d 806
(CA6 1966); United States v. Ross, 299 F.2d 650 (CA9 1962); Langhammer v.
Hamilton, 295 F.2d 62 (CA1 1961).

I doubt that the failure of these courts to raise any question about
the relevance of Chaunt was an oversight. It is far from clear to me that
the materiality of facts should vary because of the time at which they are
concealed or misrepresented. Nor do I see why the events or activities
underlying these facts become more or less material depending upon the
country in which they transpired.{[Image]3} In each context, the inquiry
concerning nondisclosure addresses the same fundamental issue: did the
applicant shield from review facts material to his eligibility for
citizenship?

In Chaunt, the Court articulated two approaches to provide guidance
and uniformity in such inquiries. The Court today adopts what it considers
a new and minimal definition of materiality: it announces that a
misrepresentation is material "if disclosure of the true facts would have
made the applicant ineligible for a visa." Ante at [Image]509. This
standard bears no small resemblance to the "first test" of Chaunt, for it
too deems material those facts "which, if known, would have warranted
denial of" eligibility. 364 U.S. at [Image]355. Because I see no effective
difference between the standards, nor any persuasive grounds for contriving
a difference, I would rely explicitly upon the Chaunt test here and avoid
risking [449 U.S. 521] the confusion that is likely to be engendered by
multiple standards.{[Image]4}

Application of Chaunt to the instant record would not result in any
significant departure from the Court's basic analysis. As the Court notes,
ante at [Image]500, petitioner admitted at trial that he deliberately
misrepresented his wartime activities and whereabouts when communicating
with representatives of the Displaced Persons Commission during the visa
application process. Record 1518-1522.{[Image]5} The expert testimony of
former Vice Consul Jenkins demonstrates convincingly that an applicant who
had served as a concentration camp guard would not have qualified for a
displaced person's visa.{[Image]6} The determination to exclude persons who
had assisted in persecuting civilians was grounded in a clear statutory
mandate,{[Image]7} and uncontroverted testimony established that [449 U.S.
522] the statute was consistently applied in just this fashion against
individuals in petitioner's position.{[Image]8} Under these circumstances,
I agree with the Court that petitioner's true activities, if known, would
certainly have warranted denial of his visa application. Without a valid
visa, petitioner could not have been considered for status as a United
States citizen. Having proved this much by clear and convincing evidence,
the Government has satisfied the first test of Chaunt.

This test strikes a careful and necessary balance between the
Government's commitment to supervising the citizenship process and the
naturalized citizen's interest in preserving his status. The individual
seeks to retain his citizenship right to full and equal status in our
national community, a right conferring benefits of inestimable value upon
those who possess it. The freedoms and opportunities secured by United
States citizenship long have been treasured by persons fortunate enough to
be born with them, and are yearned for by countless less fortunate. Indeed,
citizenship has been described as "man's basic right, for it is nothing
less than the right to have rights."{[Image]9} and the effects of its loss
justly have been called "more serious than a taking of one's property, or
[449 U.S. 523] the imposition of a fine or other penalty."{[Image]10}
Where, as here, the Government seeks to revoke this right, the Court
consistently and forcefully has held that it may do so only on scrupulously
clear justification and proof. [Image]Costello v. United States, 365 U.S.
265 (1961); [Image]Nowak v. United States, 356 U.S. 660 (1958);
[Image]Knauer v. United States, 328 U.S. 654 (1946); [Image]Baumgartner v.
United States, 322 U.S. 665 (1944); [Image]Schneiderman v. United States,
320 U.S. 118 (1943). Before sustaining any decision to impose the grave
consequences of denaturalization, the Court has regarded it as its duty "to
scrutinize the record with the utmost care,"{[Image]11} construing "the
facts and the law . . . as far as is reasonably possible in favor of the
citizen."{[Image]12}

The Chaunt decision is properly attentive to this long-recognized
unique interest in citizenship, and I must join the Court in not accepting
the reasoning of the Court of Appeals, which would have diluted the
materiality standard. The Court of Appeals reasoned that materiality was
established if the nondisclosed facts would have triggered an inquiry that
might have uncovered other unproved and disqualifying facts. See 597 F.2d
946, 950-951 (CA5 1979). By concluding that the Government has demonstrated
the actual existence of disqualifying facts -- facts that themselves would
have warranted denial of petitioner's citizenship this Court adheres to a
more rigorous standard of proof. I believe that Chaunt indeed contemplated
only this rigorous standard, and I suspect the Court's reluctance
explicitly to apply it stems from a desire to sidestep the confusion over
whether Chaunt created more than one standard.

Chaunt, to be sure, did announce a disjunctive approach to the
inquiry into materiality, but several factors support the conclusion that,
under either "test," the Government's [449 U.S. 524] task is the same: it
must prove the existence of disqualifying facts, not simply facts that
might lead to hypothesized disqualifying facts. First, this Court's
reasoning before Chaunt contains no suggestion that a naturalized citizen
would be reduced to alien status merely because a thwarted Government
inquiry might have shown him to be unqualified. Instead, the Court has been
willing to approve denaturalization only upon a clear and convincing
showing that the prescribed statutory conditions of citizenship had never
been met. This, it seems to me, is the clear import of the Court's
exhaustive reviews in Nowak v. United States, 356 U.S. at [Image]663-668;
Knauer v. United States, 328 U.S. at [Image]656-669; Baumgartner v. United
States, 322 U.S. at [Image]666-678; and Schneiderman v. United States, 320
U.S. at [Image]131-159. Of course, the Government's ability to investigate
with vigor may be affected adversely by its inability to discover that
certain facts have been suppressed. The standard announced by the Court of
Appeals, however, seems to me to transform this interest in unhampered
investigation into an end in itself. Application of that court's standard
suggests that a deliberately false answer to any question the Government
deems worth asking may be considered material. I do not believe that such a
weak standard of proof was ever contemplated by this Court's decisions
prior to Chaunt.

Instead, I conclude that the Court in Chaunt intended to follow its
earlier cases, and that its "two tests" are simply two methods by which the
existence of ultimate disqualifying facts might be proved. This reading of
Chaunt is consistent with the actual language of the so-called second
test;{[Image]13} it [449 U.S. 525] also appears to be the meaning that the
dissent in Chaunt believed the Court to have intended.{[Image]14}

Significantly, this view accords with the policy considerations
informing the Court's decisions in the area of denaturalization. If
naturalization can be revoked years or decades after it is conferred, on
the mere suspicion that certain [449 U.S. 526] undisclosed facts might have
warranted exclusion, I fear that the valued rights of citizenship are in
danger of erosion. If the weaker standard were employed, I doubt that the
denaturalization process would remain as careful as it has been in the past
in situations where a citizen's allegedly material misstatements were
closely tied to his expression of political beliefs or activities
implicating the First Amendment.{[Image]15} Citizenship determinations
continue to involve judgments about a person's "good moral character" or
his attachment "to the principles of the Constitution," see 8 U.S.C. º
1427(a), and the judiciary's task remains the difficult one of balancing a
need to safeguard admission to United States citizenship, in accord with
the will of Congress, against a citizen's right to feel secure in the
exercise of his constitutional freedoms. By concluding that an impaired
investigation may justify the loss of these freedoms, the Court of Appeals
threatens to leave the naturalized citizen with "nothing more than
citizenship in attenuated, if not suspended, animation."{[Image]16} The
Court seems to reject this approach, and follows the essential teaching of
Chaunt. I regret only its unwillingness to say so.

WHITE, J., dissenting

JUSTICE WHITE, dissenting.

The primary issue presented in the petition for certiorari was
whether the Court of Appeals had properly interpreted the test articulated
in [Image]Chaunt v. United States, 364 U.S. 350 (1960), for determining
whether an individual procured his citizenship by concealment or
misrepresentation of a "material" fact. In Chaunt, the Government sought to
revoke an [449 U.S. 527] individual's citizenship because he had not
disclosed certain facts in his application for citizenship.{[Image]1}
Although Chaunt did not address the standard of materiality with respect to
visa applications, the parties before this Court have assumed that the
Chaunt test should be used to determine whether petitioner concealed
material facts when he applied for a visa.{[Image]2}

Recognizing that the relevance of Chaunt to visa applications may be
problematic, the majority turns to a wholly separate ground to decide this
case, resting its decision on its interpretation of "adopted" º 2(a) of the
Displaced Persons Act (see ante at [Image]510, n. 31). I am reluctant to
resolve the issue of whether Chaunt extends to visa applications, since the
parties have neither briefed nor argued the point. However, I am equally
reluctant to adopt the course chosen by the majority, for the language of º
2(a) is not entirely unambiguous,{[Image]3} and the parties have not
addressed the proper interpretation of the statute.{[Image]4} Under these
circumstances, I would [449 U.S. 528] simply clarify the Chaunt materiality
test and then remand to the Court of Appeals to review the District Court's
findings on petitioner's concealment at the time he applied for
citizenship.

In Chaunt, the Court stated that, to prove misrepresentation or
concealment of a material fact, the Government must prove by clear and
convincing evidence
either (1) that facts were suppressed which, if known, would have
warranted 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.

364 U.S. at [Image]355.{[Image]5} Under the District Court's interpretation
of the second Chaunt test and that urged by petitioner, the Government
would be required to prove that an investigation prompted by a complete,
truthful response would have revealed facts justifying denial of
citizenship.{[Image]6} The Court of Appeals and the Government contend
that, under the second Chaunt test, the Government must prove only that
such an investigation might have led to the discovery of facts justifying
denial of citizenship.{[Image]7} In my opinion, the latter interpretation
is correct.{[Image]8} [449 U.S. 529] If the District Court's interpretation
were adopted, the Government would bear the heavy, and in many cases
impossible, burden of proving the true facts that existed many years prior
to the time the defendant applied for citizenship, whether it proceeded
under the first or the second Chaunt test. This definition of
"materiality," by greatly improving the odds that concealment would be
successful, would encourage applicants to withhold information, since the
Government would often be unable to meet its burden by the time the
concealment was discovered.

In this case, the Government alleged that, when petitioner filled out
his application for citizenship, he willfully concealed that he had served
as an armed guard for the Germans during the war. Petitioner failed to
disclose this information, although the application form required him to
list his past or present membership in any organization in the United
States or elsewhere, including foreign military service. Although the
Government produced evidence to support a finding of materiality under its
interpretation of the second Chaunt test,{[Image]9} the District Court
concluded that petitioner's service as an armed guard for the Germans was
immaterial under the District Court's interpretation of Chaunt. It also
found that the nondisclosure was not willful.{[Image]10} [449 U.S. 530]

The Court of Appeals failed to review this portion of the District
Court's opinion. Instead, it focused solely on whether petitioner had
willfully concealed or misrepresented material facts when he applied for a
visa. Therefore, I would vacate the judgment of the Court of Appeals and
remand the case to that court to review the District Court's application of
the Chaunt test to petitioner's concealment at the time he applied for
citizenship.{[Image]11}

STEVENS, J., dissenting

JUSTICE STEVENS, dissenting.

The story of this litigation is depressing. The Government failed to
prove its right to relief on any of several theories advanced in the
District Court. The Court of Appeals reversed on an untenable ground.
Today, this Court affirms on a theory that no litigant argued, that the
Government expressly disavowed, and that may jeopardize the citizenship of
countless survivors of Nazi concentration camps.

The seven-count complaint filed by the Government in the District
Court prayed for a revocation of petitioner's citizenship on four different
theories: (1) that his entry visa was invalid because he had misstated his
birthplace and place of residence, and therefore he had never been lawfully
admitted to the United States; (2) that he committed war crimes or
atrocities, and therefore was not eligible for admission as a displaced
person; (3) that he made material misstatements on his application for
citizenship in 1970; and (4) that he was not a person of good moral
character when he received his American citizenship. After a long trial,
the District Court concluded that the Government had failed to prove its
case.

The trial judge was apparently convinced that the suggestive
identification procedures endorsed by the prosecution [449 U.S. 531] had
resulted in a misidentification of petitioner; that petitioner had not
performed the atrocious acts witnessed by the survivors of Treblinka who
testified;{[Image]1} 1 that Vice Consul Jenkins' testimony was not entirely
reliable;{[Image]2} and that, for the most part, petitioner was a truthful
witness. 455 F.Supp. 893, 906-909. The District Judge specifically found
that petitioner's visa was valid, and that petitioner therefore lawfully
entered the United States, id. at 916; that his service at Treblinka was
involuntary, id. at 914; that he made no misstatements in his application
for citizenship, id. at 917; and that he was a person of good moral
character. Ibid. [449 U.S. 532] As an alternative basis for decision, the
District Court concluded that, because the Government had failed to prove
that petitioner committed any atrocities at Treblinka, his record as a
responsible and law-abiding resident of the United States for 29 years
provided an equitable ground for refusing to revoke his citizenship. Id. at
918-920.

The Court of Appeals reversed, holding that the District Court
committed two errors of law. 597 F.2d 946. First, the Court of Appeals held
that the District Court, in assessing the materiality of the misstatement
in petitioner's 1949 visa application, had misapplied this Court's decision
in [Image]Chaunt v. United States, 364 U.S. 350; second, the Court of
Appeals rejected the equitable basis for the District Court's judgment. The
Court of Appeals did not, however, disturb any of the District Court's
findings of fact.

Today the Court declines to endorse the Court of Appeals' first
rationale. Because the Chaunt test was formulated in the context of
applications for citizenship, and because the only misstatements here were
made on petitioner's visa application,{[Image]3} the Court acknowledges
that the Chaunt test is not [449 U.S. 533] automatically applicable. The
Court does not reach the question of the applicability of Chaunt in the
visa context, however, because it concludes that, at the very least, a
misrepresentation is material if disclosure of the true facts would have
rendered the applicant ineligible for a visa. Because the Court holds as a
matter of law that petitioner's service as a guard at Treblinka, whether or
not voluntary, made him ineligible for a visa, petitioner was not legally
admitted to the country, and hence was not entitled to citizenship.

I cannot accept the view that any citizen's past involuntary conduct
can provide the basis for stripping him of his American citizenship. The
Court's contrary holding today rests entirely on its construction of the
Displaced Persons Act of 1948 (DPA). Although the Court purports to
consider the materiality of petitioner's misstatements, the Court's
construction of the DPA renders those misstatements entirely irrelevant to
the decision of this case. Every person who entered the United States
pursuant to the authority granted by that statute, who subsequently
acquired American citizenship, and who can be shown "to have assisted the
enemy in persecuting civil populations" -- even under the most severe
duress -- has no right to retain his or her citizenship. I believe that the
Court's construction of the DPA is erroneous, and that the Court of Appeals
misapplied the Chaunt test.

I

Section 2(a) of the DPA was "adopted" from the Constitution of the
International Refugee Organization (see ante at [Image]510, n. 31), which
described in Part II of Annex I "Persons who will not be [considered as
displaced persons]." The second listing had two classifications:

2. Any other persons who can be shown:
(a) to have assisted the enemy in persecuting civil
populations of countries, Members of the United Nations; or [449
U.S. 534]
(b) to have voluntarily assisted the enemy forces since the
outbreak of the second world war in their operations against the
United Nations.

The District Court recognized that the section dealing with assisting
enemy forces contained the word "voluntarily," while the section dealing
with persecuting enemy populations did not. The District Court refused to
construe the statute to bar relief to any person who assisted the enemy,
whether voluntarily or not, however, because such a construction would have
excluded the Jewish prisoners who assisted the SS in the operation of the
concentration camp. 455 F.Supp. at 913. These prisoners performed such
tasks as cutting the hair of female prisoners prior to their execution and
performing in a camp orchestra as a ruse to conceal the true nature of the
camp. I agree without hesitation with the District Court's conclusion that
such prisoners did not perform their duties voluntarily and that such
prisoners should not be considered excludable under the DPA.{[Image]4} The
Court resolves the dilemma perceived by the District Court by concluding
that prisoners who did no more than cut the hair of female inmates before
they were executed could not be considered to be assisting the enemy in
persecuting civilian populations. See ante at [Image]512-513, n. 34. Thus
the Court would give the word "persecution" some not yet defined specially
limited reading. In my opinion, the term "persecution" clearly applies to
such conduct; indeed, it probably encompasses almost every aspect of life
or death in a concentration camp.

The Court's resolution of this issue is particularly unpersuasive
[449 U.S. 535] when applied to the "kapos," the Jewish prisoners who
supervised the Jewish workers at the camp. According to witnesses who
survived Treblinka, the kapos were commanded by the SS to administer
beatings to the prisoners, and they did so with just enough force to make
the beating appear realistic, yet avoid injury to the prisoner. Record
293-295, 300-302 (Kohn), 237 (Turowski).{[Image]5} Even if we assume that
the kapos were completely successful in deceiving the SS guards and that
the beatings caused no injury to other inmates, I believe their conduct
would have to be characterized as assisting in the persecution of other
prisoners.{[Image]6} In my view, the reason that such conduct should not
make the kapos ineligible for citizenship is that it surely was not
voluntary. The fact that the Court's interpretation of the DPA would
exclude a group whose actions were uniformly defended by survivors of
Treblinka, id. at 23239 (Turowski), 300 (Kohn), 1157-1159 (Epstein), merely
underscores the strained reading the Court has given the statute.{[Image]7}

The Government was apparently persuaded by the force of the District
Court's reasoning. In the Court of Appeals, the Government unequivocally
accepted the District Court's [449 U.S. 536] view that º 2(a) should be
construed to read "persons who can be shown to have voluntarily assisted
the enemy."{[Image]8} The Government did not retreat from that concession
before this Court.{[Image]9} The reasons for agreeing with the Government's
interpretation of the statute are compelling.

II

If the DPA is correctly construed, petitioner is entitled to retain
his citizenship unless the Government proved that he made a material
misstatement in his application for citizenship in 1970 or that he was
ineligible for citizenship in 1970. Given the District Court's findings
that he made no willful misstatement in 1970 and that he had not committed
any crimes because his service at Treblinka was involuntary, the challenge
to his citizenship rests entirely on the claim that he was not lawfully
admitted to the United States in 1949 because he made material
misstatements in his visa application. Even if the Chaunt test applies
equally to visa applications and citizenship applications, I would hold
that the Government failed to satisfy its burden under what I believe to be
the proper interpretation of that test.

The Court and the parties seem to assume that the Chaunt test
contains only two components: (1) whether a truthful answer might have or
would have triggered an investigation, and (2) whether such an
investigation might have or would [449 U.S. 537] have revealed a
disqualifying circumstance. Under this characterization of the Chaunt test,
the only dispute is what probability is required with respect to each of
the two components. There are really three inquiries, however: (1) whether
a truthful answer would have led to an investigation, (2) whether a
disqualifying circumstance actually existed, and (3) whether it would have
been discovered by the investigation. Regardless of whether the
misstatement was made on an application for a visa or for citizenship, in
my opinion, the proper analysis should focus on the first and second
components, and attach little or no weight to the third. Unless the
Government can prove the existence of a circumstance that would have
disqualified the applicant, I do not believe that citizenship should be
revoked on the basis of speculation about what might have been discovered
if an investigation had been initiated. But if the Government can establish
the existence of a disqualifying fact, I would consider a willful
misstatement material if it were more probable than not that a truthful
answer would have prompted more inquiry. Thus, I would presume that an
investigation, if begun at the time that the misstatement was made, would
have been successful in finding whatever the Government is now able to
prove. But if the Government is not able to prove the existence of facts
that would have made the resident alien ineligible for citizenship at the
time he executed his application, I would not denaturalize him on the basis
of speculation about what might have been true years ago.

The Government in this case failed to prove that petitioner
materially misrepresented facts on his citizenship application. Because I
do not believe that "adopted" º 2(a) of the DPA applies to persons whose
assistance in the persecution of civilian populations was involuntary, and
because the District Court found that petitioner's service was not
voluntary, it necessarily follows that the Government failed to prove the
existence of a disqualifying circumstance with respect to petitioner's [449
U.S. 538] visa application.{[Image]10} The misstatements in that
application were therefore not material under a proper application of
Chaunt.

The gruesome facts recited in this record create what Justice Holmes
described as a sort of "hydraulic pressure" that tends to distort our
judgment. Perhaps my refusal to acquiesce in the conclusion reached by
highly respected colleagues is attributable in part to an overreaction to
that pressure. Even after recognizing and discounting that factor, however,
I remain firmly convinced that the Court has committed the profoundest sort
of error by venturing into the unknown to find a basis for affirming the
judgment of the Court of Appeals. That human suffering will be a
consequence of today's venture is certainly predictable; that any suffering
will be allayed or avoided is, at best, doubtful.
I respectfully dissent.

Footnotes

MARSHALL, J., lead opinion (Footnotes)

[Image] 1. Title 8 U.S.C. º 1451(a) provides in pertinent part:

It shall be the duty of the United States attorneys . . . to
institute proceedings . . . in the judicial district in which the
naturalized citizen may reside at the time of bringing suit, for
the purpose of revoking and setting aside the order admitting such
person to citizenship and canceling the certificate of
naturalization on the ground that such order and certificate of
naturalization were illegally procured or were procured by
concealment of a material fact or by willful misrepresentation. . .
.

[Image] 2. Historians estimate that some 800,000 people were murdered
at Treblinka. See L. Dawidowicz, The War Against the Jews, 1933-1945, p.
149 (1975); R. Hilberg, The Destruction of the European Jews 572 (1978) .

The District Court described Treblinka in this manner:

It contained only living facilities for the SS and the persons
working there. The thousands who arrived daily on the trains had no
need for barracks or mess halls: they would be dead before
nightfall. It was operated with a barbarous methodology -- brutally
efficient -- and such camps surely fill one of the darkest chapters
in the annals of human existence, certainly the darkest in that
which we call Western civilization.

455 F.Supp. 893, 901, n. 12 (SD Fla.1978).

[Image] 3. The DPA incorporated the definition of "refugees or
displaced persons" contained in Annex I to the Constitution of the
International Refugee Organization of the United Nations (IRO). See º 2(b),
62 Stat. 1009. The IRO Constitution, 62 Stat. 3037-3055, was ratified by
the United States on December 16, 1946 (T.I.A.S. No. 1846), and became
effective on August 20, 1948. See 62 Stat. 3037.

[Image] 4. The IRO Constitution provided that the following persons
would not be eligible for refugee or displaced person status:

1. War criminals, quislings and traitors.
2. Any other persons who can be shown:
(a) to have assisted the enemy in persecuting civil
populations of countries, Members of the United Nations; or
(b) to have voluntarily assisted the enemy forces since the
outbreak of the second world war in their operations against the
United Nations.

Annex I, Part II, 62 Stat. 3051-3052.

[Image] 5. The IRO was established in 1946 as a temporary specialized
agency of the United Nations to deal with all aspects of the refugee
problem in postwar Europe. The IRO established and administered a network
of camps and resettlement centers where the refugees were registered,
housed, fed, and provided with medical care. Where possible, the IRO
provided for the refugees' rehabilitation and training, arranged legal
protection for as long as they were stateless, and negotiated agreements
for resettlement. See generally L. Holborn, The International Refugee
Organization: A Specialized Agency of The United Nations: Its History and
Work 1946-1952 (1956).

[Image] 6. The DPA established a Displaced Persons Commission to
oversee and administer the resettlement program envisaged by the Act. 62
Stat. 1012-1013.

[Image] 7. According to testimony presented at trial by one of the
Government's witnesses who served as a vice consul, between 35 and 40 vice
consuls were involved in administering the Act. Record 715. Each vice
consul spent three months in training in Washington and was then sent to
Europe, where he received further training before he was put to work
reviewing applications. Id. at 711-712, 719-721, 723, 726-727

[Image] 8. Petitioner also lied about his birthplace and nationality,
claiming that he was born in Sarny, in Poland, when in fact he was born in
Sivasch, in the Ukraine. App. 26. However, on November 21, 1950, after he
arrived in this country, petitioner filed an Application for a Certificate
of Arrival and Preliminary Form for a Declaration of Intention in which he
correctly listed his birthplace as Sivasch in the Ukraine. Petitioner again
provided the correct information when he filed a similar form on April 7,
1951. 455 F.Supp. at 911.

[Image] 9. It should be noted that none of the questions in the
application for citizenship explicitly required petitioner to disclose this
information. Perhaps the most closely related question on the application
form was one that required him to list his foreign military service.
Petitioner indicated only that he had served in the Russian Army. App. 33.

[Image] 10. See 455 F.Supp. at 896, n. 3.

[Image] 11. The complaint also charged that petitioner had
deliberately made false statements for the purpose of securing his
naturalization, and had thereby failed to satisfy the statutory requirement
of good moral character during the 5-year period immediately preceding the
filing of his application for naturalization. See 8 U.S.C. º 1427(a).

[Image] 12. One witness, Eugeun Turowski, testified that he saw
petitioner shoot and whip Jewish prisoners at the camp. Record 134 136.
Another, Schalom Kohn, testified that he saw petitioner almost every day
for the first few months Kohn was at Treblinka, id. at 262-263, that
petitioner beat him with an iron-tipped whip, and that he saw petitioner
whip and shoot other prisoners. Id. at 268, 271, 322-323. The third
witness, Josef Czarny, claimed that he saw petitioner beat arriving
prisoners, id. at 434, and that he once saw him shoot a prisoner. Id. at
435-442. Gustaw Boraks testified that he saw petitioner repeatedly chase
prisoners to the gas chambers, beating them as they went. Id. at 886-888.
Boraks also claimed that, on one occasion, he heard a shot and ran outside
to see petitioner, with a gun drawn, standing close to a wounded woman who
later told him that petitioner was responsible for the shooting. Id. at
630-634. Sonia Lewkowicz testified that she saw petitioner shoot a Jewish
prisoner. Id. at 973, 1013-1015, 1039-1040. Finally, Pinchas Epstein
testified that petitioner shot and killed a friend of his after making him
crawl naked on all fours. Id. at 1056-1070.

[Image] 13. The vice consul's decision could be overridden by the
consul general, but Jenkins testified that he knew of no situation in which
this happened. Id. at 721-722.

[Image] 14. On the basis of the vice consuls' experiences, Jenkins
discounted the possibility that any concentration camp guards had served
involuntarily. Id. at 756, 772, 795-796. Jenkins reported that all the
guards who were questioned by the consular officials about their reasons
for serving as guards invariably admitted that their service was voluntary.
Id. at 807-808. In addition, Jenkins testified that, even if an applicant
refused to acknowledge that his service as an armed guard was voluntary, he
would still have been denied a visa. Id. at 822-826.

[Image] 15. Jenkins testified that, at times, concentration camp
survivors who recognized a visa applicant as a guard would notify consular
officials, who, in turn, investigated the matter. If the accusation proved
true, the applicant was confronted with it and invariably found ineligible
for a visa. Id. at 804, 807, 82827.

[Image] 16. Petitioner testified that there were between 120 and 150
armed Russian guards and some 20 to 30 Germans. Id. at 1111-1445.

[Image] 17. Petitioner testified that between 15 and 20 Russian guards
escaped from the camp. Four were caught and apparently executed, but
petitioner testified that he did not know what happened to the others. Id.
at 1535-1536, 1555.

[Image] 18. The court also noted that there was no dispute about the
fact that petitioner lied when he listed his birthplace as Sarny, Poland.
455 F.Supp. at 914.

[Image] 19. The court rejected the witnesses' pretrial identifications
because it found the photo spreads from which the identifications were made
impermissibly suggestive. The court also rejected the in-court
identifications by three of the witnesses. The court noted that the first
witness initially picked out a spectator in the courtroom, and only
identified petitioner when it became obvious from the crowd reaction that
he had made a mistake. The other two witnesses identified petitioner, who
was seated at counsel table surrounded by much younger men. The court
concluded that the courtroom identifications were tainted by the photo
identification and by discussion of the case among the witnesses.

The court also found credibility problems with the testimony of the
Treblinka survivors, and it concluded that,

[e]ven without defendant's testimony, the Government's evidence on
the claimed commission of atrocities . . . fell short of meeting
the "clear, convincing and unequivocal" burden of proof. . . . With
defendant's testimony, the Government's evidence . . . left the
court with suspicions about whether defendant participated in
atrocities at Treblinka, but they were only suspicions.

Id. at 909.

[Image] 20. United States v. Riela, 337 F.2d 986 (CA3 1964); United
States v. Rossi, 299 F.2d 650 (CA9 1962); La Madrid-Peraza v. Immigration
and Naturalization Service, 492 F.2d 1297 (CA9 1974).

[Image] 21. The court also found that petitioner's false statements
about his birthplace and nationality were not "material"
misrepresentations. The court explained that the true facts would not, of
themselves, have justified denial of citizenship, since Ukrainians per se
were not excluded under the DPA. The court also noted that petitioner
disclosed the truth about his place of birth and nationality when he filed
Declarations of Intention in 1950 and 1951, and that the INS examiner who
interviewed petitioner in connection with his application for citizenship
testified that his previous false statements about these questions were not
a cause for concern. 455 F.Supp. at 915.

[Image] 22. The Court of Appeals explained that the District Court's
interpretation

destroyed the utility of the second Chaunt test, since it would
require, as does the first Chaunt test, that the government prove
ultimate facts warranting denial of citizenship.

59 F.2d at 951. The court also pointed out that adopting the District
Court's view would provide a strong incentive to an applicant for a visa or
citizenship to lie about his background, and thereby prevent an inquiry
into his fitness at a time when he has the burden of proving eligibility.
If his deception were later uncovered, the Government would face the
difficult tasks of conducting an inquiry into his past, discovering facts
warranting disqualification, and proving those facts by clear and
convincing evidence. Ibid.

[Image] 23. The Court of Appeals noted that its formulation of the
second Chaunt test was adopted by the Second Circuit in United States v.
Oddo, 314 F.2d 115, cert. denied, 375 U.S. 833 (1963).

[Image] 24. Because it ruled in favor of the Government under the
second Chaunt test, the Court of Appeals had no reason to consider the
Government's claim that, contrary to the District Court's findings, the
evidence at trial clearly and convincingly proved that petitioner committed
crimes and atrocities against inmates while he was an armed guard at
Treblinka. We accept, for purposes of this case, the District Court's
findings on this issue.

[Image] 25. The Constitution empowers Congress to "establish an
uniform Rule of Naturalization." Art. I, º 8, cl. 4.

[Image] 26. That petitioner gave these false statements because he was
motivated by fear of repatriation to the Soviet Union indicates that he
understood that disclosing the truth would have affected his chances of
being admitted to the United States, and confirms that his
misrepresentation was willful.

[Image] 27. See Brief for United States 18, n. 13.

[Image] 28. Although the denaturalization statute speaks in terms of
"willful misrepresentation" or "concealment of a material fact," this Court
has indicated that the concealment, no less than the misrepresentation,
must be willful, and that the misrepresentation must also relate to a
material fact. See [Image]Costello v. United States, 365 U.S. 265,
[Image]271-272, n. 3 (1961). Logically, the same principle should govern
the interpretation of this provision of the DPA.

[Image] 29. One question on the form Chaunt submitted in connection
with his petition for citizenship asked if he had ever "been arrested or
charged with violation of any law of the United States or State or city
ordinance or traffic regulation," and, if so, give full particulars. To
this question, Chaunt answered "no."

[Image] 30. Neither the District Court nor the Court of Appeals
directly focused on the distinction between false statements in a visa
application and false statements in an application for citizenship. The
District Court's opinion suggests that it concluded that there were no
willful misrepresentations in petitioner's 1970 application for
citizenship. See 455 F.Supp. at 916-917. The Court of Appeals characterized
the case as involving "a misrepresentation by nondisclosure." 597 F.2d at
947.

[Image] 31. Hereafter, references to ºº 2(a) and 2(b), rather than
referring to ºº 2(a) and 2(b) of the DPA, follow the designation of the
definitional provisions in the IRO Constitution, see 62 Stat. 3051-3052,
incorporated in º 2(b) of the DPA.

[Image] 32. Jenkins testified as follows:

Q If through investigation or interview you had determined
that [a visa] applicant in fact did serve at a death camp . . . in
occupied Poland as a Ukrainian Guard would you have denied the visa
application?
A Yes, I would.
Q And in your expert opinion, would such a person have
qualified as an eligible displaced person?
A No, he would not have.
Q I may have asked this question, if I have, permit me to ask
it again, . . . are you aware of any case whatsoever in which an
axis auxiliary who served in a capacity as a camp guard was ever
legally qualified as a displaced person?
A No, I am not. I am reasonably certain that there was no
such case.
* * * *
Q Mr. Jenkins, referring to the last question and answer,
would it have made any difference whatsoever to you as a visa
officer if the person could have been proven to have been a guard,
but you could not prove that he committed an atrocity?
A No.
THE COURT: Why? Why?
THE WITNESS: Because, under the Displaced Persons Act and in
the International Refugee Organization constitution, by . . .
definition, such a person could not be a displaced person.

Record 767-768. On cross-examination, Jenkins was asked:

Q Despite the apparent assumption that a guard at a
concentration camp was there voluntarily, a non-German was there
voluntarily, if a non-German guard came to you and said to you that
his service there was involuntary would that guard have been
eligible under the Displaced Persons Act, and would he have been
granted a visa?
A I don't believe so. In the first place ,I can't imagine
this hypothetical situation. And secondly, I think the language of
the Act is so clear that participation or even acquiesce[nce] in
really doesn't leave the vice consul that kind of latitude.
THE COURT: . . . What is there about it that would make you
think it was so clear that you had no latitude, if he had,
according to the hypothetical, persuaded you that his service as a
guard was involuntary? How would that differ from involuntary
service in the Waffen SS [Axis combat unit]?
A Because the crime against humanity that is involved in the
concentration camp puts it into a different category. . . .

Id. at 822-823.

[Image] 33. The District Court felt compelled to impose a
voluntariness requirement because it was concerned that a literal
interpretation of º 2(a) would "bar every Jewish prisoner who survived
Treblinka because each one of them assisted the SS in the operation of the
camp." 455 F.Supp. at 913. The court noted that working prisoners led
arriving prisoners to the lazaret where they were murdered, cut the hair of
the women who were to be executed, or played in the orchestra at the gate
to the camp as part of the Germans' ruse to persuade new arrivals that the
camp was other than what it was. The court pointed out that such actions
could technically be deemed assistance, and concluded that it would be

absurd to deem their conduct "assistance or acquiescence," inasmuch
as it was involuntary -- even though the word "voluntarily" was
omitted from the definition.

Ibid. In addition, the court noted that Jenkins testified that visa
applicants who had served in Axis combat units and who could prove that
their service was involuntary were found eligible for visas. Id. at 912.
But see n. 34, infra.

[Image] 34. The solution to the problem perceived by the District
Court, see n. 33, supra, lies not in "interpreting" the Act to include a
voluntariness requirement that the statute itself does not impose, but in
focusing on whether particular conduct can be considered assisting in the
persecution of civilians. Thus, an individual who did no more than cut the
hair of female inmates before they were executed cannot be found to have
assisted in the persecution of civilians. On the other hand, there can be
no question that a guard who was issued a uniform and armed with a rifle
and a pistol, who was paid a stipend and was regularly allowed to leave the
concentration camp to visit a nearby village, and who admitted to shooting
at escaping inmates on orders from the commandant of the camp, fits within
the statutory language about persons who assisted in the persecution of
civilians. Other cases may present more difficult line-drawing problems,
but we need decide only this case. As for the District Court's concern
about the different treatment given to visa applicants who had served in
Axis combat units who were found eligible for visas if they could show that
they had served involuntarily, this distinction was made by the Act itself.

[Image] 35. The District Court refused to give conclusive weight to
Jenkins' testimony on this issue largely because it felt that Jenkins'
testimony did not recognize the "voluntariness" exception that the court
read into º 2(a). However, Jenkins' testimony was in accordance with the
plain language of the statute. Because the District Court mistakenly
applied the law to the facts of this case in concluding that petitioner was
lawfully admitted into this country, 455 F.Supp. at 915, we reject its
conclusion.

The dissenting opinion of JUSTICE STEVENS argues that the Government
"expressly disavowed" our interpretation of the DPA, post at [Image]530,
and that the Government "unequivocally accepted" the District Court's
construction of º 2(a), post at [Image]535. Elsewhere, the dissent suggests
that the District Court's construction is "the Government's interpretation
of the statute," post at [Image]536. The sole basis for these assertions is
a footnote in the Government's brief in the Court of Appeals which merely
stated: "The United States has no quarrel with [the District Court's]
construction [of º 2(a)] in this case" (emphasis added). In our judgment,
none of the dissent's claims is borne out by this statement. The suggestion
that the Government "unequivocally accepted" the District Court's
interpretation of the Act is, at best, an exaggeration, and we have found
no evidence in the record or briefs in this case of the Government's
"express disavowal" of our construction of º 2(a). Furthermore, being
neither endowed with psychic powers nor privy to the Government's
deliberations, we cannot join JUSTICE STEVENS, see post at [Image]535-536,
in speculating about the reasons that the Government chose not to "quarrel
with" the District Court's interpretation of º 2(a) "in this case."

As for JUSTICE STEVENS' belief that our interpretation of the statute
is "erroneous," see post at [Image]533, we simply note that he is unable to
point to anything in the language of the Act that justifies reading into º
2(a) the "voluntariness" limitation that Congress omitted. Thus, we must
conclude that JUSTICE STEVENS' real quarrel is with Congress, which drafted
the statute. It is not the function of the courts to amend statutes under
the guise of "statutory interpretation." See Potomac Electric Power Co. v.
Director, Office of Workers' Compensation Programs, ante at [Image]274.
Finally, since the term "persecution" does not apply to some of the tasks
performed by concentration camp inmates, see n. 34, supra, we reject the
speculation that our decision "may jeopardize the citizenship of countless
survivors of Nazi concentration camps," post at [Image]530 (STEVENS, J.,
dissenting).

[Image] 36. Title 8 U.S.C. º 1429 provides in pertinent part:

[N]o person shall be naturalized unless he has been lawfully
admitted to the United States for permanent residence in accordance
with all applicable provisions of this chapter.

See also 8 U.S.C. º 1427(a).

[Image] 37. The same requirement is now contained in 8 U.S.C. º
1181(a), which provides that

no immigrant shall be admitted into the United States unless at the
time of application for admission he (1) has a valid unexpired
immigrant visa. . . .

[Image] 38. See H.R.Rep. No. 1086, 87th Cong., 1st Sess., 39 (1961)
(Citizenship is illegally procured if "some statutory requirement which is
a condition precedent to naturalization is absent at the time the petition
[for naturalization is] granted").

[Image] 39. Courts must consider the facts and circumstances in
deciding whether an applicant satisfies such requirements for
naturalization as good moral character and an understanding of the English
language, American history, and civics. See 8 U.S.C. ºº 1423, 1427(d).

[Image] 40. Our decision makes it unnecessary to resolve the question
whether the Court of Appeals correctly interpreted the materiality test
enunciated in Chaunt.

BLACKMUN, J., concurring (Footnotes)

[Image] 1. The statute is º 340(a) of the Immigration and Nationality
Act of 1952, 66 Stat. 260, as amended, 8 U.S.C. º 1451(a). Its relevant
provisions are quoted ante at [Image]493, n. 1.

[Image] 2. Except for the prohibition against "illegally procured"
citizenship, added in 1961 by Pub.L. 87-301, º 18(a), 75 Stat. 656, the
statute today is unchanged from the version considered in Chaunt. Now, as
then, it authorizes the initiation of denaturalization proceedings should
the Government discover that the order admitting a person to citizenship
was "procured by concealment of a material fact or by willful
misrepresentation." In accord with the Court's prior construction of this
phrase, both the concealment and the misrepresentation must be willful, and
each must also relate to a material fact. Ante at [Image]507-508, n. 28,
citing [Image]Costello v. United States, 365 U.S. 265, [Image]271-272, n. 3
(1961).

[Image] 3. This discussion of materiality relates only to proceedings
brought by the Government to denaturalize a United States citizen. I do not
mean to suggest that, for purposes of attaining citizenship, a
misrepresentation must be analyzed in an identical fashion. The immigration
law historically has afforded greater protections to persons already
admitted to citizenship than to those seeking to obtain its privileges and
benefits. This choice, however, reflects a judgment that the weighty
interest in citizenship should be neither casually conferred nor lightly
revoked. See [Image]Berenyi v. District Director, 385 U.S. 630,
[Image]636-637 (1967). In view of petitioner's status as a United States
citizen, it is unnecessary to consider here the question of materiality at
the naturalization stage.

[Image] 4. Confusion to some extent is already present. We granted
certiorari in this case primarily to resolve conflicting interpretations of
the Chaunt materiality standard. Compare United States v. Riela, 337 F.2d
986 (CA3 1964), and United States v. Rossi, 299 F.2d 650 (CA9 1962), with
Kassab v. Immigration & Naturalization Service, 364 F.2d 806 (CA6 1966),
and Lanhammer v. Hamilton, 295 F.2d 642 (CA1 1961).

[Image] 5. JUSTICE WHITE's observation in dissent, post at [Image]529,
and n. 10, is not to the contrary. The District Court found a lack of
willfulness with respect to the nondisclosure on petitioner's citizenship
application form, completed in 1969. As the Court correctly observes, ante
at [Image]507, n. 26, petitioner's misrepresentations at the visa
application stage were plainly willful.

[Image] 6. Record 766-768, 822-823, substantially reproduced ante at
[Image]510-511, n. 31. Jenkins further testified at length that, based on
his knowledge and experience, "involuntary" guard service in Nazi
concentration camps was unknown and virtually inconceivable. Record
754-758, 807-808, 823-824. While I find much of this testimony persuasive,
I do not need to rely upon it here, since petitioner's ineligibility for a
visa is independently established. See nn. 7 and 8, infra.

[Image] 7. The Displaced Persons Act, 62 Stat. 1009, enabled refugees
driven from their homelands during and after World War II to emigrate to
the United States without regard to traditional immigration quotas.
Eligibility was extended consistent with requirements set forth in Annex I
to the Constitution of the International Refugee Organization of the United
Nations. This excluded the following displaced persons from its ambit of
concern:

1. War criminals, quislings and traitors.
2. Any other persons who can be shown:
(a) to have assisted the enemy in persecuting civil
populations of countries, Members of the United Nations; or
(b) to have voluntarily assisted the enemy forces since the
outbreak of the second world war in their operations against the
United Nations.

Annex I, Part II, 62 Stat. 3051-3052.

[Image] 8. Record 766-768. See also id. at 790 (concentration camp
guards themselves understood that admission of their former status, without
more, was enough to render them ineligible).

[Image] 9. [Image]Perez v. Brownell, 356 U.S. 44, [Image]64 (1958)
(Warren, C.J., dissenting).
[Image] 10. [Image]Schneiderman v. United States, 320 U.S. 118,
[Image]122 (1943).

[Image] 11. [Image]Nowak v. United States, 356 U.S. 660, [Image]663
(1958).

[Image] 12. Schneiderman v. United States, 320 U.S. at [Image]122.

[Image] 13. Under the "second test" in Chaunt, the Government is
required to prove with respect to suppressed facts

that their disclosure might have been useful in an investigation
possibly leading to the discovery of other facts warranting denial
of citizenship.

364 U.S. at [Image]355. The Court of Appeals in effect construes the word
"possibly" to modify the entire following phrase. I believe the sounder
construction is that adopted by the District Court, see 455 F.Supp. 893,
915-916 (SD Fla.1978), whereby the word "possibly" modifies only the first
part of the ensuing phrase. Because what would "possibly" be discovered is
not "facts which might warrant denial of citizenship" but "other facts
warranting denial of citizenship" (emphasis supplied), the "second test"
simply asks whether knowledge of the suppressed facts could have enabled
the Government to reach the ultimate disqualifying facts whose existence is
now known. See also 364 U.S. at [Image]353 (second test stated as whether
"disclosure of the true facts might have led to the discovery of other
facts which would justify denial of citizenship").

[Image] 14. The dissent in Chaunt proposed its own standard, which it
apparently believed was at odds with what the Court had adopted:

The test is not whether the truthful answer in itself, or the
facts discovered through an investigation prompted by that answer,
would have justified a denial of citizenship. It is whether the
falsification, by misleading the examining officer, forestalled an
investigation which might have resulted in the defeat of
petitioner's application for naturalization.

Id. at [Image]357. (Emphasis in original.)

The dissent also voiced concern that the Court, by imposing such a
heavy burden of proof on the Government in denaturalization proceedings, in
effect would invite dishonesty from future applicants for citizenship.
Ibid. JUSTICE WHITE, in dissent today, expresses the same concern. Post at
[Image]529. It, of course, is never easy to demonstrate the existence of
statements or events that occurred long ago. Records and witnesses
disappear, memories fade, and even the actor's personal knowledge becomes
less reliable. While recognizing the arduous nature of the task, the Court
nonetheless has insisted that the Government meet a very high standard of
proof in denaturalization proceedings. Chaunt's rigorous definition of
materiality, it is true, may occasionally benefit an applicant who conceals
disqualifying information. Yet, practically and constitutionally,
naturalized citizens, as a class, are not less trustworthy or reliable than
the native-born. The procedural protection of the high standard of proof is
necessary to assure the naturalized citizen his right, equally with the
native-born, to enjoy the benefits of citizenship in confidence and without
fear.

[Image] 15. Chaunt's prior activities involved distributing handbills
and speaking in a public park, activities that merit a high degree of First
Amendment protection. See also Schneiderman v. United States, supra,
(membership in Communist Party in the United States); Nowak v. United
States, supra (same) .

[Image] 16. Schneiderman v. United States, 320 U.S. at [Image]166
(Rutledge, J., concurring).

WHITE, J., dissenting (Footnotes)

[Image] 1. Section 340(a) of the Immigration and Nationality Act of
1952, 8 U.S.C. º 1451(a), quoted in pertinent part in the majority opinion,
ante at [Image]493, n. 1, directs the Government to seek revocation of
citizenship that was "procured by concealment of a material fact or by
willful misrepresentation."

[Image] 2. Similarly, both the District Court and the Court of Appeals
assumed that the Chaunt materiality test should be applied to the
Government's claim that petitioner concealed material information when he
applied for a visa.

[Image] 3. The majority asserts that the plain language of the statute
compels the conclusion that º 2(a) excluded all those who assisted the
enemy in persecuting civil populations, even those who involuntarily
assisted the enemy. The majority explains in a footnote that, under º 2(a),
one must focus on whether the individual assisted the enemy in persecuting
civil populations, ante at [Image]512-513, n. 34, rather than focusing on
voluntariness. Yet one could argue that the words "assist" and "persecute"
suggest that º 2(a) would not apply to an individual whose actions were
truly coerced.

[Image] 4. The Government did not contend that º 2(a) of the Displaced
Persons Act should be interpreted as excluding persons who involuntarily
assisted the enemy in persecuting civil populations. Rather, it argued that
the finding that petitioner had "involuntarily" served as a concentration
camp guard was clearly erroneous. It therefore urged us to affirm on the
ground that the first Chaunt test had been satisfied.

[Image] 5. In Chaunt, the Court also observed that complete, honest
replies to all relevant questions are essential not only because concealed
facts might, in and of themselves, justify denial of citizenship, but also
because "disclosure of the true facts might have led to the discovery of
other facts which would justify denial of citizenship." 364 U.S. at
[Image]352-353.

[Image] 6. 455 F.Supp. 893, 915-916 (SD Fla.1978).

[Image] 7. 597 F.2d 946, 951 (CA5 1979).

[Image] 8. The Government should be required to prove that an
investigation would have occurred if a truthful response had been given,
and that the investigation might have uncovered facts justifying denial of
citizenship. The defendant could rebut the Government's showing that the
investigation might have led to the discovery of facts justifying denial of
citizenship by establishing that the underlying facts would not have
justified denial of citizenship.

[Image] 9. The naturalization examiner who processed petitioner's
application testified at trial that, if petitioner had disclosed his
service as an armed guard with the Germans during the war, the examiner
would not have made any recommendation regarding petitioner's application
for citizenship until an investigation had been conducted. He also
testified that, if the investigation had disclosed that petitioner had
physically hurt Jewish prisoners while serving as a guard at Treblinka, the
examiner would have recommended that petitioner's application for
citizenship be denied, either on the ground that petitioner lacked good
moral character or on the ground that he had not been properly admitted
into the United States. Waterbury, Conn., Trial Transcript 147-148.

[Image] 10. The District Court decided that petitioner's failure to
disclose that he had served as an armed guard for the Germans was not
willful, since "there would be strong reason in [petitioner's] mind to view
himself as a prisoner of war." 455 F.Supp. at 917.

[Image] 11. I agree with the majority's view that a district court
does not have discretion to weigh equitable considerations in determining
whether citizenship should be revoked.

STEVENS, J., dissenting (Footnotes)

[Image] 1. The District Judge's opinion contains a suggestion that the
witnesses' identification of petitioner may have been a case of mistaken
identity, inasmuch as petitioner resembled another guard who had a position
of greater authority. See 455 F.Supp. 893, 908.

[Image] 2. In view of the extensive references to Jenkins in the
Court's opinion, some of the District Court's observations should be
quoted:

Unfortunately, and inexplicably, the Government did not find the
Vice-Consul who approved defendant's application.
* * * *
Jenkins' testimony about the structure of the death camp
organization was hardly expert, and conflicts consistently with
other evidence presented at the trial. For example, he testified
that the Ukrainian guards had the same uniforms as the SS, with
only slightly different insignia. However, the unanimous testimony
was the Germans wore their usual gray-green uniforms, but the
prisoner-guards didn't. He testified that the camp guards could get
leave and get away from the camp, and could transfer. The testimony
was clear that they could not take leave (and go to Berlin, as
Jenkins opined), but could only get a two-to-four-hour pass to
visit a small village a couple of miles away.
* * * *
Jenkins also would have considered the kapos as excludable
because they assisted the Germans. This is totally contrary to the
reaction of every witness who survived Treblinka; each of the
Israeli witnesses testified the kapos did only what they had to do,
and the witnesses were quite indignant when asked if they had ever
testified against the kapos. The witnesses replied that there was
no reason to do so. In addition, Jenkins speculated that the kapos
were probably shot in 1945 during a period of retaliation, but the
testimony was to the contrary.

Id. at 911-913.

[Image] 3. In Count 4 of its complaint, the Government alleged that
petitioner did not truthfully answer the question on his citizenship
application whether he had ever committed a crime. Having found that his
service in Treblinka was not voluntary, the District Court concluded that
petitioner's negative answer was truthful. In Count 5 of its complaint (as
amended at a pretrial conference), the Government alleged that petitioner
had a duty to disclose his guard service at Treblinka in answer to the
following question:
7. List your present and past membership in every
organization, association, fund, foundation, party, club, society,
or similar group in the United States and in any other place, and
your foreign military service.

The District Court concluded that, because petitioner regarded himself as a
prisoner of war, and because he had listed his Russian military service,
this omission could not be considered willful. See id. at 917. That
conclusion was certainly permissible; indeed it is arguable that the
Treblinka guard service was neither the sort of "membership" in a club or
organization nor the sort of "military service" that the question
contemplated.

[Image] 4. One particular squad of Jewish prisoners was responsible
for undressing the aged and infirm prisoners and leading them to the
lazaret, the eternally burning pit, where they were shot. Record 287
(Kohn). One of the prisoners who worked in the camp stated when asked
whether this squad "assist[ed] in bringing [prisoners] to their death": "We
automatically assisted, all of us, but . . . it was under the fear and
terror." Id. at 293 (Kohn).

[Image] 5. Two of the witnesses, Czarny and Boraks, testified that
they did not recall or hear of any kapos beating prisoners, id. at 551,
686, and one witness, Epstein, did not see or hear of beatings inflicted by
kapos. Id. at 1159.

[Image] 6. Moreover, the Court's distinction between the kapos and
other Jewish workers, on the one hand and the Ukranian guards, on the
other, is based in large part on such factors as the issuance of a uniform
and weapons, the receipt of a stipend, and the privilege of being allowed
to leave the camp and visit a nearby village. These supposedly
distinguishing factors are essentially unrelated to the persecution of the
victims of the concentration camp.

[Image] 7. We also note that Vice Consul Jenkins, upon whose testimony
the Court heavily relies, indicated that he would have considered kapos to
be ineligible under the DPA if they could be proved to be "internal camp
inmate collaborators." Id. at 828.

[Image] 8. Emphasis added. Footnote 11 on p. 17 of the Government's
brief in the Court of Appeals states:

The district court held that, in Section 2(a), "persons who
can be shown to have assisted the enemy" should be construed to
read "persons who can be shown to have voluntarily assisted the
enemy." 455 F.Supp. at 913. The United States has no quarrel with
such a construction in this case.

[Image] 9. Inasmuch as the Attorney General of the United States
argued this case himself, presumably the decision not to question the
District Court's construction of the statute was reached only after the
matter had been reviewed with the utmost care.

[Image] 10. Under my interpretation of the Chaunt test, the Government
should not prevail on the speculation that it might have been able to
uncover evidence that petitioner committed war crimes while at Treblinka.
Similarly, I would hold that the District Court's findings with respect to
willfulness of alleged misstatements on petitioner's citizenship
application were not clearly erroneous. See n. 2, supra. I surely would not
rest decision in this Court on a de novo evaluation of the testimony of the
witness Jenkins, rather than the findings of the District Court.