Opinion
Case No. 1:99 CV 2736
November 16, 2000
Memorandum of Opinion and Order
INTRODUCTION
This matter is before the Court upon defendant's Motion to Dismiss (Doc. 17). This case arises out of the immigration of defendant to the United States in 1951 and his naturalization as a United States citizen in 1958. Plaintiff, the United States of America (hereafter "United States" or "government"), alleges that defendant served as an armed guard at a Nazi forced-labor camp and concentration camp and as a member of the 55 Death's Head Battahon during World War II. The government further alleges that defendant made false statements concerning these activities to United States authorities in order to obtain an immigration visa under the Displaced Persons Act of 1948 (hereafter "DPA"). For the following reasons, the Motion is DENIED.
FACTS
The Complaint alleges the following facts.
Defendant Wasyl Krysa is a natural person whose last known address was in Brooklyn, Ohio. (Compl. ¶ 3). Defendant was born on October 14, 1925, in Dyniska, Poland. (Compl. ¶ 7). In 1939, Nazi Germany occupied the district in which Dyniska was located and incorporated it into the Government General, a part of Poland which was not annexed. (Compl. ¶ 8).
In late June or early July 1943, defendant became a member of the guard forces ( Wachmannschaften) of the SS ( Schutzstaffel), the elite guard of the German Nazi party, and a Police Leader. (Compl. ¶ 11). At that time, the Trawniki Training Camp was a facility operated by the German Police and the SS. (Compl. ¶ 9). Its primary purpose was to train men to serve as guards and auxiliary police under the command of 55 and German Police personnel. ( Id.). The Trawniki Training Camp provided the guard force for SS Labor Camp Poniatowa, one of the SS and German Police operated forced-labor camps for Jewish prisoners. (Compl. ¶ 12). Defendant was assigned Trawniki identification number 4299. (Compl. ¶ 11). Also in late June or early July 1943, defendant was sent to SS Labor Camp Poniatowa where he served as an armed guard and was trained in military drill, the use of weapons and guard duties. (Compl. ¶ 13). Defendant received the rank of guard private ( Wachmann). ( Id.). While serving as an armed guard at SS Labor Camp Poniatowa, defendant guarded prisoners and prevented them from escaping. (Compl. ¶ 15).
In November 1943, the Germans murdered most of the remaining Jewish prisoners in the district in which SS Labor Camp Poniatowa was located as part of a plan code-named "Operation Harvest Festival" ( Aktion Erntefest). (Compl. ¶ 16). Part of Operation Harvest Festival included the murder of approximately 14,000 Jewish prisoners at 55 Labor Camp Poniatowa on November 4, 1943. ( Id.).
On or about November 17, 1943, defendant was transferred to the Trawniki Training Camp. (Compl. ¶ 17). A few days later, defendant was transferred to Germany to serve as an armed guard in the Nazi system of permanent concentration camps. (Compl. ¶ 18). By April 18, 1944, defendant was serving as an armed guard in the 8th Company of the SS Death's Head Battahon ( SS-Totenkopfsturmbann) which guarded the Gusen subcamp of the Mauthausen Concentration Camp in German-annexed Austria. (Compl. ¶ 19). Defendant held the rank of private ( SS-Schutze), guarded prisoners and prevented them from escaping. (Compl. ¶ 19, 22).
In August 1951 while in Germany, defendant sought a determination from the United States Displaced Persons Commission ("hereafter DPC") that he was a Displaced Person (hereafter "DP") under the DPA and, therefore, eligible to immigrate to the United States. (Compl. ¶ 23). Defendant was interviewed by the U.S. Army Counter Intelligence Corps in connection with his application for DP status. (Compl. ¶ 24). Defendant falsely stated that he worked on a farm in Dyniska, Poland from 1939 to July 1944, thereby misrepresenting and concealing his activities as an armed guard at SS Labor Camp Poniatowa and the Gusen subcamp. (Compl. ¶ 25). Defendant thereafter received DP status. (Compl. ¶ 26).
On or about November 8, 1951, defendant filed an Application for Immigrant Visa and Alien Registration with the American Consulate in Munich, Germany. (Compl. ¶ 27). Defendant's visa application falsely states that he resided in Danyska, Poland from 1939 to July 1944. (Compl. ¶ 28). Defendant orally swore to the truth of the information in his visa application before an official of the United States government, thereby misrepresenting and concealing his activities as an armed guard at SS Labor Camp Poniatowa and the Gusen subcamp. ( Id.). Defendant was issued an immigration visa under the DPA. Defendant entered the United States on or about December 15, 1951. (Compl. ¶ 30).
On April 2, 1958, defendant signed and filed a Petition for Naturalization with the United States Immigration and Naturalization Service (hereafter "INS") and orally swore to the truth of the information contained in the application. (Compl. ¶ 31). On May 9, 1958, the United States District Court for the Northern District of Ohio issued to defendant Certificate of Naturalization No. 7996597. (Compl. ¶ 32).
The United States filed suit in this matter on November 10, 1999. The Complaint sets forth five causes of action. Count One alleges that defendant was not eligible for a visa under the DPA because, as an armed guard at SS Labor Camp Poniatowa and the Gusen subcamp, he was not "of concern" to the International Refugee Organization and was not an eligible DP. Count Two alleges that defendant was not eligible for a visa under the DPA because he "assisted in the persecution" of others because of their race, religion or national origin as an armed guard at SS Labor Camp Poniatowa and the Gusen subcamp. Count III alleges that defendant was not eligible for a visa under the DPA because, as a member of the SS Death's Head Battahon, he was a member of or a participant in "a movement which is or has been hostile to the United States or the form of government of the United States." Count Four alleges that defendant was not eligible for a visa under the DPA because he willfully misrepresented material facts for the purpose of gaining admission to the United States as an eligible DP. Count Five alleges that defendant, as an armed guard at SS Labor Camp Poniatowa and the Gusen subcamp, was not eligible for a visa under State Department regulations which forbade the issuance of a visa to persons who "acquiesced in activities or conduct contrary to civilization and human decency on behalf of the Axis countries" during World War II
The United States seeks a declaration that defendant procured his citizenship and Certificate of Naturalization illegally; the revocation of defendant's United States citizenship by setting aside the order of the United States District Court for the Northern District of Ohio dated May 9, 1958, and cancelling defendant's Certification of Naturalization; a judgment forever restraining and enjoining defendant from claiming any rights, privileges, benefits or advantages under any document evidencing United States citizenship; and a judgment requiring defendant to surrender immediately to the Attorney General his Certificate of Naturalization, his passport and any other indicia of citizenship.
Defendant has moved to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the doctrine of res judicata and the Equal Protection Clause.
STANDARD OF REVIEW
Rule 12(b)(1)When the Court's subject matter jurisdiction is challenged under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the party seeking to invoke jurisdiction bears the burden of proof. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Rogers v. Stratton Industries, Inc., 798 F.2d 913, 915 (6th Cir. 1986). This burden is not onerous. Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996). The party need only show that the complaint alleges a substantial claim under federal law. Id.
A 12(b)(1) motion to dismiss may constitute either a facial attack or a factual attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Facial attacks question the sufficiency of the jurisdictional allegations in the complaint. Id. Thus, those allegations must be taken as true and construed in the light most favorable to the nonmoving party. Id. Factual attacks, however, challenge the actual fact of the Court's jurisdiction. Id. In such cases, the truthfulness of the complaint is not presumed. McGee v. East Ohio Gas Co., 111 F. Supp.2d 979, 982 (S.D. Ohio 2000) (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). Instead, the Court may weigh any evidence properly before it. Morrison v. Circuit City Stores, Inc., 70 F. Supp.2d 815, 819 (S.D. Ohio 1999) (citing Ohio Nat'l, 922 F.2d at 325; Rogers, 798 F.2d at 918).
When presented with a facial attack, the non-moving party "can survive the motion by showing any arguable basis in law for the claim made." Musson Theatrical, 89 F.3d at 1248. Thus, such a motion will be granted only if, taking as true all facts alleged in the complaint, the Court is without subject matter jurisdiction to hear the claim. Matteson v. Ohio State University, 2000 WL 1456988 *3 (S.D. Ohio Sept. 27, 2000). Rule 12 (b)(6)
When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the allegations in the complaint must be taken as true and construed liberally in favor of the plaintiff. Lawrence v. Chancery Court of Tennessee, 188 F.3d 687 (6th Cir. 1999). The complaint is only to be dismissed if the plaintiff can prove no set of facts in support of its claim which would entitle it to relief Conley v. Gibson, 355 U.S. 41 (1957); Hammond v. Baldwin, 866 F.2d 172 (6th Cir. 1989). However, the complaint must set forth "more than the bare assertion of legal conclusions." In Re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993); Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988).
"In practice, a . . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id Legal conclusions are not accepted as true nor are mere conclusions afforded liberal Rule 12(b)(6) review. Fingers v. Jackson-Madison Cty. General Hospital District, No. 95-5903 (6th Cir. November 21, 1996). Dismissal is proper if the complaint lacks an allegation regarding an element necessary to obtain relief. Craighead v. E.F. Hutton Co., 899 F.2d 485 (6th Cir. 1990).
DISCUSSION
The government seeks the revocation of defendant's citizenship based on the allegation that he was not lawfully admitted into the United States. In other words, the government does not attack the validity of the naturalization proceedings which occurred in 1958 and pursuant to which defendant received a certificate of naturalization and became a United States citizen. Rather, the government claims that, due to his activities as an armed guard at SS Labor Camp Poniatowa and the Gusen subcamp, defendant was ineligible for a visa under the DPA and his admission into the United States pursuant to the DPA was unlawful. Because of this, the government alleges that defendant's citizenship was illegally procured and must be revoked.
Subject Matter Jurisdiction
As part of his Motion to Dismiss, defendant makes a facial attack on this Court's subject matter jurisdiction, i.e., he challenges this Court's jurisdiction as a matter of law. Thus, the facts alleged in the Complaint must be taken as true and construed in the light most favorable to the United States. Defendant sets forth several arguments regarding subject matter jurisdiction based on the doctrine of separation of powers and the unenforcability of expired and repealed law.
Defense counsel made virtually identical arguments in very similar cases before at least two other district courts and the Eighth Circuit, all of which were summarily rejected. See United States v. Negele, No. 4:97CV1810 (E.D. Mo. Feb. 26, 1999), aff'd, 222 F.3d 443 (8th Cir. 2000); United States v. Milius, No. 96CV2534 (M.D.Fla. Aug. 17, 1998), appeal dismissed on defendant's death, No. 98-3474 (11th Cir. Dec. 2, 1999).
Separation of Powers
Defendant's separation of powers arguments rest generally on his claim that denaturalization law permits this Court to review the order of citizenship, but not the underlying immigration procedures, including the granting of DP status and the issuance of a DPA visa. Defendant argues that the executive branch, and specifically the Attorney General, is exclusively responsible for the administration and enforcement of immigration and naturalization laws. Thus, if an Article III court were to reexamine and redetermine defendant's visa eligibility, it would engage in an unconstitutional judicial encroachment into an exclusive executive function. Defendant relies on 8 U.S.C. § 1103 (a) and 1104 (a), miscellaneous case law and the United States's alleged failure to cite statutory authority for this Court's jurisdiction.
The Immigration and Nationality Act of 1952, as amended, has been codified at 8 U.S.C. § 1101, et seq. All references to sections currently in effect will be to the United States Code. All references to sections previously in effect will be to the 1952 Act.
8 U.S.C. § 1103 (a)(1) states that the "Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens" and that "determination[s] and ruling[s] by the Attorney General with respect to all questions of law shall be controlling." 8 U.S.C. § 1104 (a) states, in part,
The Secretary of State shall be charged with the administration and the enforcement of the provisions of this chapter and all other immigration and nationality laws relating to (1) the powers, duties, and functions of diplomatic and consular officers of the United States, except those powers, duties, and functions conferred upon the consular officers relating to the granting or refusal of visas . . .
According to defendant, these two statutes prohibit this Court from examining the validity of defendant's DP status and visa. In addition, defendant cites several cases which he claims stand for the same proposition. However, all of the cases cited by defendant are either inapplicable or irrelevant.
Most of the cases cited by defendant refer to judicial review of admission decisions. See, e.g., Doan v. I.N.S., 160 F.3d 508, 509 (8th Cir. 1998) ("Administrative decisions excluding aliens are not subject to judicial review unless there is a clear grant of authority by statute."); Li Hing of Hong Kong Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986) (recognizing judicial nonreviewability of a consul's initial decision to grant or deny a visa and specifically distinguishing cases involving the revocation of visas); Centeno v. Shultz, 817 F.2d 1212, 1213 (5th Cir. 1987) ("denial of visas to aliens is not subject to review by the federal courts"); Kleindienst v. Mandel, 408 U.S. 753, 770 (1972) (holding that when an executive officer exercises his statutory power to deny a visa "on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment"). The others merely note the narrow scope of judicial review applicable to administrative decisions. See, e.g., Almario v. Attorney General, 872 F.2d 147, 151 (6th Cir. 1989) (holding court has a very narrow standard of review over restrictions on marriage-based visas); Jean v. Nelson, 727 F.2d 957, 976 (11th Cir. 1984) ("The discretionary decisions of executive officials in the immigration area are therefore subject to judicial review, but the scope of that review is extremely limited.").
The United States argues that 8 U.S.C. § 1103 (a)(1) and 1104(a) do not confer exclusive power on the executive branch. Rather, these sections deal solely with relationships among executive branch officials and are inapplicable to the facts of this case.
Despite defendant's arguments, it is clear that this Court has express statutory jurisdiction over denaturalization cases in general and over the specific claims presented in this case. The United States brings this case pursuant to 8 U.S.C. § 1451 (a), which states, in part,
It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States 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, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively.
As pointed out by the government, § 1451(a) grants authority to the district courts to revoke a defendant's citizenship on the grounds that it was illegally procured. Implicit in this grant is the authority to examine the facts upon which that procurement was based.
In applying § 1451(a), a multitude of federal courts have reviewed a defendant's visa eligibility and held that entry into the United States pursuant to an unlawfully obtained visa renders his or her citizenship "illegally procured" and, thus, revocable. See, e.g., United States v. Dailide, 227 F.3d 385 (6th Cir. 2000) (affirming denaturalization of defendant based on ineligibility for DP status and DPA visa); See United States v. Ciurinskas, 148 F.3d 729 (7th Cir. 1998) (same); United States v. Stelmokas, 100 F.3d 302 (3rd Cir. 1996) (same); United States v. Palciauskas, 734 F.2d 625 (11th Cir. 1984) (same); United States v. Lileikis, 929 F. Supp. 31 (D.Mass. 1996) (revoking citizenship of defendant based on ineligibility for visa under the Refugee Relief Act of 1953); United States v. Deracacz, 530 F. Supp. 1348 (E.D.N.Y. 1982) (revoking citizenship of defendant based on ineligibility for DP status and DPA visa).
Defendant's counsel also represented Mr. Dailide before Judge Matia and the Sixth Circuit.
In addition, the Supreme Court engaged in the same analysis in Fedorenko v. United States, 449 U.S. 490 (1981), a case strikingly similar to the one currently before the Court. Fedorenko was drafted into the Russian Army in 1941 and, shortly thereafter, captured by the Germans. Id. at 494. He was sent to Travnicki, Poland, where he received training as a concentration camp guard. Id. He was then assigned to the Nazi concentration camp in Treblinka, Poland, and issued a uniform and rifle. Id. Fedorenko served as an armed guard at Treblinka during 1942 and 1943. Id. He then served as an armed guard at a German labor camp and prisoner-of-war camp. Id. In 1945, shortly before British forces entered Hamburg, Fedorenko discarded his uniform and passed as a civilian. Id. In 1949 Fedorenko applied for admission to the United States as a DP. Id. at 496. He falsified his visa application and told investigators from the DPC that he had been a farmer in Poland from 1937 until 1942, when he was deported to Germany and forced to work in a factory. Id. Fedorenko signed a sworn statement containing these misrepresentations as part of his application for a DPA visa. Id. at 497. The falsity of his statements was not discovered when he was issued a DPA visa, sailed to the United States or was admitted for permanent residence. Id. Fedorenko applied for naturalization in 1969 without disclosing his service as a concentration camp guard. Id. The INS naturalization examiners accepted Fedorenko's visa papers at face value, and he was granted citizenship in 1970. Id.
The government filed a complaint against Fedorenko in 1977, seeking the revocation of his citizenship based on the fact that he should have been deemed visa-ineligible at the time of his application. Id. The district court determined that Fedorenko's false statements were not material within the meaning of § 1451(a) and found in his favor. Id. at 501. The Fifth Circuit reversed, and the Supreme Court affirmed the reversal, concluding that Fedorenko's "citizenship must be revoked under 8 U.S.C. § 1451 (a) because it was illegally procured." Id. at 503, 518.
It is true that the Court in Fedorenko did not expressly address the issue of the subject matter jurisdiction of the federal courts to review a defendant's visa eligibility. However, it engaged in and affirmed precisely that type of review. After noting that Fedorenko admitted lying in his application for a DPA visa, the Court held that he was covered by the plain language of the DPA that prohibited the admission into the United States of any person who willfully made "a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person." Id. at 507. The Court then stated that the remaining issue in the case was whether Fedorenko's misrepresentations were material. Id. at 508. The Court made it very clear that it was examining Fedorenko's visa eligibility, not merely his naturalization eligibility, by stating that
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 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.Id. at 508-509. The Court held that because Fedorenko's disclosure of his service as an armed guard at Treblinka would have, as a matter of law, made him ineligible for a DPA visa, his misrepresentations were material. Id. at 509. The Court continued its analysis, stating,
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 . . . 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. § 1451 (a). In 1970, when petitioner filed his application for and was admitted to citizenship, § § 316(a) and 318 of the Immigration and Nationality Act of 1952, required an applicant for citizenship to be lawfully admitted to the United States for permanent residence. Lawful admission for permanent residence in turn required that the individual possess a valid unexpired immigrant visa. At the time of petitioner's initial entry into this country, § 13(a) of the Immigration and Nationality Act of 1924, provided that "Enlo immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa. . . ." The courts at that time consistently held that § 13(a) required a valid visa and that a visa obtained through a material misrepresentation was not valid. Section 10 of the DPA, 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." In the lexicon of our cases, one of the "jurisdictional facts upon which the grant [of citizenship] is predicated," was missing at the time petitioner became a citizen.Id. at 514-515 (citations omitted). Thus, the Court followed the same process of analysis in Fedorenko which the government will attempt to establish in this case: that defendant was ineligible for DP status and a DPA visa, that his admission was therefore unlawful, that his unlawful admission constituted a failure to comply with the statutory prerequisites for naturalization and, thus, his citizenship was illegally procured and is revocable.
Even if neither party questions the jurisdiction of the Court, it is obligated to do so sua sponte if a question as to jurisdiction exists. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976) (citing Mansfield Coldwater Lake Michigan R. Co. v. Swan, 111 U.S. 379 (1884)). Thus, despite the fact that the Court did not specifically state in Fedorenko that a district court has jurisdiction to examine a defendant's visa eligibility, the fact that it did so at the very least implies that such jurisdiction exists.
The Supreme Court addressed a similar issue in Kungys v. United States, 485 U.S. 759 (1988). In Kungys, the government was seeking the defendant's denaturalization based on the "concealment or misrepresentation" clause of § 1451(a) rather than the "illegally procured" provision. Id. at 774. The Court held that, under the first prong, it was improper to examine any alleged misrepresentations made by defendant during his visa proceedings. Id. However, it went on to state that a different question was presented under the second prong. Id. at 774 n. 18 (citing Fedorenko, 449 U.S. at 509). When the issue is illegal procurement, the courts are not prohibited from reviewing the circumstances under which the defendant obtained his visa.
The Eighth Circuit in United States v. Negele, 222 F.3d 443 (8th Cir. 2000), reached the same conclusion. Again, the facts in that case are quite similar to the facts currently before the Court. Negele was drafted into the Romanian Army in 1942. Id. at 445. Thereafter, he became a member of the Death's Head Battahon unit of the SS. Id. Negele was later transferred to a Jewish ghetto in the former Czechoslovakia where he policed the exterior of the ghetto and attempted to prevent prisoner escapes. Id. When the Russian army arrived on the scene, Negele discarded all his SS indicia. Id. He was held as a prisoner of war until August 1945. Id. In 1948 Negele applied for an immigration visa without disclosing his service in the SS. Id. A visa was granted in 1950, Negele arrived in the United States later that year, and he was granted citizenship in 1955. Id. at 446.
After a bench trial, the district court determined that Negele was ineligible for an immigration visa and revoked his citizenship. Id. On appeal Negele challenged the court's subject matter jurisdiction. Id. The appellate court rejected the argument, stating,
Section 1451(a) confers authority on the federal courts to hear revocation of citizenship actions brought by the government. Negele objects, apparently on the ground that he did not illegally procure the naturalization order. Insofar as Negele's objection is jurisdictional in character, the objection is unfounded. The government bears the burden of proving at trial that Negele illegally procured his citizenship. That is an "element of the offense," so to speak. If the government failed to prove illegal procurement, the district court would not be divested of jurisdiction. Rather, the district court would enter judgment for Negele because the government failed to prove a critical portion of its case.
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Negele also contends that an Article III court may not examine his visa eligibility. Such review would, he contends, amount to an "unconstitutional judicial encroachment into an exclusive Executive function . . . violat[ing] the constitutional doctrine of Separation of Powers." Negele's argument is specious. The Constitution endows Congress with the power to prescribe rules for securing naturalization. See U.S. Constitution. art. I, § 8, cl. 4. When Congress lawfully delegates responsibility to the executive branch, the executive's activities may be scrutinized by the judiciary to ensure that the executive acts within the scope of its proper authority. Cf I.N.S. v. Chadha, 462 U.S. 919, 953 n. 16 (1983) ("[executive action under legislatively delegated authority] is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review").Id. at 446-447.
The same analysis used by the Supreme Court in Fedorenko and by the Eight Circuit in Negele is applicable to this case. Any person seeking naturalization must strictly comply with all the prerequisites to the acquisition of citizenship imposed by Congress. Fedorenko, 449 U.S. at 506. "Failure to comply with any of these conditions renders the certificate of citizenship 'illegally procured'" and revocable under § 1451(a). Id. In determining whether defendant's citizenship was "illegally procured" this Court has subject matter jurisdiction to determine whether he complied with all the applicable conditions in effect when he was naturalized in 1958.
In 1958, when defendant was granted citizenship, lawful admission for permanent residence was a statutory prerequisite to naturalization. At that time, § 316(a) of the Immigration and Nationality Act of 1952 (hereafter "1952 Act") stated that no person could be naturalized unless, among other things, he "resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years." In addition, § 318 of the 1952 Act stated that no person could be naturalized unless he had been "lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this Act."
See footnote 2, supra.
In 1951, when defendant applied for and received DP status and a DPA visa, § 10 of the DPA stated, in part,
[A]ll immigration laws, including deportation laws, shall be applicable to displaced orphans and eligible displaced persons who apply to be or who are admitted into the United States pursuant to this Act.
At that time, the Immigration Act of 1924 (hereafter "1924 Act") was still in effect. Section 13(a) of the 1924 Act stated, "No immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa . . ." As the Supreme Court noted, courts interpreted § 13(a) to require a valid visa and held that a visa obtained through a material misrepresentation was not valid. See also Dailide, 227 F.3d at 390 ("[E]ntry into the United States under an invalid visa is a failure to comply with congressionally imposed statutory prerequisites to citizenship which renders any certificate revocable as illegally procured under § 1451(a).").
Thus, this Court has the power — and the obligation — to determine whether defendant possessed a valid unexpired visa at the time he was admitted into the United States in order to determine whether he was lawfully admitted for permanent residence or whether his citizenship should be revoked on the grounds that it was illegally procured.
Defendant also argues that the court order of naturalization which was issued in 1958 made a finding of compliance with then-current naturalization law only. It did not make a finding of compliance with immigration law. Defendant claims that at the time INS granted him entry into the United States, he achieved the status of lawfully admitted. Because his status did not change, i.e., he was not deported, before he received his citizenship, defendant argues that his status as lawfully admitted is not reviewable. Defendant cites Matter of Ayala-Arevalo, No. A42989249, 1998 WL 833810 (BIA) (Nov. 30, 1998), for the proposition that once an immigrant's status as lawfully admitted for permanent residence has been established, it becomes a matter of historical fact that cannot be subsequently reviewed or changed.
In Ayala-Arevalo, the Board of Immigration Appeals (hereafter "BIA") addressed the respondent's eligibility for a deportation waiver under 8 U.S.C. § 1182 (h), which states, in part,
No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the dates of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years.Ayala-Arevalo had not lived in the United States for at least seven years, and he had been convicted of an aggravated felony. Id. The conviction was based on a continuing course of conduct which occurred both before and after he was admitted into the United States. Id. Thus, Ayala-Arevalo attempted to argue that he had not been admitted as an "alien lawfully admitted for permanent residence" since his admission was actually unlawful. As the BIA stated,
It is the respondent's position that the relevant statutory provision differentiates between two classes of individuals: those who have been admitted for lawful permanent residence while concealing the presence of grounds of inadmissibility (in this case, ongoing criminal activity), and those who have been admitted for lawful permanent residence without having any grounds of inadmissibility to conceal.Id. The BIA held that
the statute does not, either expressly or by implication, distinguish between those whose admission was lawful and those who were previously admitted for lawful permanent residence but are subsequently determined to have been admitted in violation of the law. To read such a distinction into the statute would be arbitrary and capricious.
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Nothing in the language of the statute supports the proposition that the respondent's conviction for a crime involving moral turpitude can or should change the historical fact that, when he entered, it was in the status of a lawful permanent resident.Id.
Thus, defendant argues that an alien is lawfully admitted after he is inspected and permitted entry by the INS and nothing can change this historical fact. Defendant claims that even if he was not eligible for a visa when he obtained one and even if he misrepresented himself to United States immigration authorities, he was nonetheless lawfully admitted at the time he entered this country in 1951 and his status did not change until he became a citizen in 1958. According to defendant, the finding of lawful admission by INS is not reviewable by this Court because only a final administrative order of exclusion or deportation can remove his lawfully admitted status: "An Article III Court has no original jurisdiction to review, redetermine, or change anyone's immigration status, whether as an immigrant or as a naturalized citizen." (Mot. to Dismiss 13).
Ayala-Arevalo is not controlling on this Court, nor is it even relevant to this case. For one thing, the BIA was interpreting a different statute from the one at issue in this case. In addition, as stated above, this Court has clear statutory authority to determine whether defendant possessed a valid, unexpired visa at the time he was admitted into the United States. It is clear from other BIA decisions and a multitude of case law that an alien admitted by the INS is subject to a revocation of citizenship and/or deportation if a court or the BIA determines that he was not lawfully admitted into the United States.
See, e.g, Matter of F-, 8 I. N. Dec. 469, 1959 WL 11601 (BIA) (Nov. 10, 1959) (affirming deportation of alien found excludable by the law existing at the time of his entry); Matter of C —, ¶ I. N. Dec. 219, 1954 WL 7849 (BIA) (July 23, 1954) (same). See also cases cited page 11, supra. As the United States points out, if defendant's citizenship is revoked, he will regain the status he had prior to becoming a citizen, i.e., permanent resident. A final administrative order would be required to terminate that status and effect his deportation. See Matter of Fedorenko, 19 I. N. Dec. 57, 1984 WL 48585 (BIA) (April 17, 1984).
In addition, the Fifth Circuit addressed the issue of lawful admission in Matter of Longstaff 716 F.2d 1439, 1441 (5th Cir. 1983). In that case, the district court denied Longstaff s petition for naturalization based on the fact that he had been excludable at the time of his entry. Id. at 1441. Longstaff argued that even if he should have been excluded for any reason, he should still be naturalized because he was granted a visa and admitted in a procedurally regular fashion. Id. The court rejected this argument, stating,
That narrow reading of the term "lawfully admitted" distorts its meaning. Admission is not lawful if it is regular only in form. The term "lawfully" denotes compliance with substantive legal requirements, not mere procedural regularity, as the definition provided by Congress plainly establishes: "the term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.
* * *
It would be paradoxical if a person who was ineligible to receive a visa and should have been excluded from admission became lawfully admitted simply because, by error, he was not excluded. We decline to read a congressional enactment so absurdly.Id. at 1441-1442.
Expired/Repealed Law
Defendant also argues that, pursuant to the rule set forth in Ex Parte McCardle, 74 U.S. 506 (1868), this Court cannot determine defendant's visa eligibility or inadmissibility under the DPA and State Department regulations that are no longer in effect. Defendant claims that this Court has no jurisdiction to proceed under, apply or enforce non-existent law. In addition, defendant argues that proceeding to trial and judgment where no law exists will deny him due process.
In McCardle, the petitioner filed a habeas corpus petition under the Act of 1867 which conferred upon the Supreme Court appellate jurisdiction in habeas cases. Subsequently, Congress repealed that jurisdictional grant by enacting the Act of 1868. The Supreme Court stated,
The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.
* * *
What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.
* * *
[T]he general rule, supported by the best elementary writers, is, that "when an act of the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed."Id. at 514.
Contrary to defendant's assertions, McCardle does not stand for the proposition that this Court cannot apply an expired or repealed law to a case before it. McCardle merely holds that this Court can not rely on expired or repealed law as its basis for jurisdiction. It is 8 U.S.C. § 1451 (a)— a statute very much still in effect — and not expired law which provides the basis for subject matter jurisdiction in this case. See Fedorenko, 449 U.S. 490 (relying on expired DPA and repealed 1924 Act to revoke citizenship).
Therefore, this Court has subject matter jurisdiction over the claims set forth in the Complaint.
Failure to State a Claim
Applicable Law
Defendant also moves to dismiss the Complaint on the grounds that the United States has failed to state a claim upon which relief may be granted. Several of defendant's arguments on this point are nearly identical to his arguments regarding this Court's subject matter jurisdiction. However, defendant's main argument appears to be that the United States is seeking application of the wrong law to this case. Defendant points out that he was naturalized in 1958 under the 1952 Act which, he claims, did not require him to disclose his wartime service. According to defendant, the 1952 Act does not exclude members of the Nazi party or its affiliates. Thus, if defendant had applied for a visa (instead of for citizenship) in 1958, he could not have been denied one. Defendant argues that the 1952 Act standards should be applied to determine whether he was lawfully admitted rather than the law in effect at the time of his visa application and entry.
For example, defendant repeats his arguments that the INS found that he was lawfully admitted in 1951 and that this Court should not reexamine that determination, that his lawfully admitted status is conclusively established as a matter of law and that the determination of visa and entry eligibility is an exclusive executive function. Defendant also discusses at length two cases which are not applicable to the facts and issues presented in this case. In Schneiderman v. United States, 320 U.S. 118 (1943), the government sought the revocation of Schneiderman's citizenship based on the allegation that he was not, at the time of his naturalization, "attached to the principles of the Constitution, and well disposed to the good order and happiness of the same" — one of the requirements for citizenship set forth in the Naturalization Act of 1906. The Supreme Court held that the government had failed to carry its burden of proof and reversed Schneiderman's denaturalization. Defendant quotes extensively from the concurrence which is neither controlling nor relevant. Similarly, the issue in United States v. Menasche, 348 U.S. 528 (1955), was whether an alien who had otherwise complied with the naturalization laws in effect when he filed his Declaration of Intention to become a citizen should be held to the new standards created by the subsequent enactment of the 1952 Act. The heart of the United States' position in this case is that defendant did not "otherwise comply" with the naturalization laws in effect when he filed his Declaration of Intention — or at any other time — because he was not lawfully admitted. For this reason, Menasche is also irrelevant and unhelpful.
In addition, defendant argues that the district court applied the 1952 Act when it granted him citizenship and found that he had been lawfully admitted. Defendant contends that Congress could not have intended the term "lawfully admitted" in the 1952 Act to mean "in accordance with immigration law and regulations." Instead, defendant points out that § 318 of the 1952 Act stated that no person could be naturalized unless he had been "lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this Act" (emphasis added). Thus, defendant maintains that it is inappropriate for this Court to look to the DPA and the 1924 Act to determine whether he was lawfully admitted. Defendant also claims that Fedorenko does not address this issue, and it is one of first impression in this circuit. Defendant acknowledges the government's position that Fedorenko is controlling and that other courts have followed the Fedorenko method but contends that it cannot be the correct method to apply to this case.
Defendant's arguments are without merit. Both the Supreme Court and the Sixth Circuit have decided cases on facts nearly identical to the facts in this case, and both courts have applied the law in effect at the time of entry when determining whether a defendant was lawfully admitted.
As discussed above, the defendant in Fedorenko applied for a visa under the DPA in 1949. 449 U.S. at 496. Fedorenko was, therefore, admitted into the United States under the 1924 Act. Fedorenko applied for and was granted citizenship in 1969, after the 1952 Act had come into effect. Id. at 497. In analyzing the case, the Court first determined that Fedorenko was ineligible for a visa under the DPA. Id. at 514. The Court then noted that when Fedorenko was granted citizenship, the 1952 Act required an applicant for citizenship to be lawfully admitted for permanent residence. Id. In order to determine whether Fedorenko had been lawfully admitted, the Court looked to the law in effect at that time and found that the 1924 Act provided that no immigrant could be admitted to the United States unless he possessed a valid unexpired visa. Id. Contrary to defendant's assertion, the Court did address the issue of what "lawfully admitted" under the 1952 Act meant: "Lawful admission for permanent residence in turn required that the individual possess a valid unexpired immigration visa." Id. at 515. Without a visa that was valid at the time of entry, Fedorenko failed to satisfy the prerequisites to the acquisition of citizenship under the 1952 Act. Id. Thus, the Court held that Fedorenko's citizenship was illegally procured. Id.
The Sixth Circuit followed the exact same analysis in Dailide. Dailide also applied for a visa under the DPA in 1949. 227 F.3d at 388. He was admitted to the United Sates in 1950 under the 1924 Act and applied for and was granted citizenship in 1955 under the 1952 Act. Id. The court affirmed the revocation of Dailide's citizenship based on the finding that he was ineligible for a visa under the DPA and, thus, did not possess a valid visa at the time he was admitted into the United States. Id. at 398.
Neither the Supreme Court nor the Sixth Circuit applied the 1952 Act standards for admission despite the fact that both Fedorenko and Dailide were naturalized under that Act. Instead, both courts looked to the laws in effect at the time of entry to determine if that entry was lawful. Despite defendant's arguments, the question of what law applies to this case is not one of first impression. Controlling case law makes it clear that this Court must apply the requirements of the DPA and the 1924 Act to defendant's visa application and entry into the United States and the requirements of the 1952 Act to his naturalization. Using that method of analysis, it is clear that the United States has stated a claim upon which relief can be granted. If the United States is able to establish the truth of the allegations set forth in the Complaint, it will be entitled to the relief requested.
Defendant does not make clear how this case is distinguishable from the facts in Fedorenko and Dailide. To the extent defendant encourages this Court to overrule or disregard Fedorenko, this Court declines to do either.
For example, in his Reply Brief, defendant states that he "directly assaults the method, holding, and constitutionality of Fedorenko" (15) and contends that the analysis of the Supreme Court "cannot be the correct method, for it does not follow the law" (17).
Affidavit
8 U.S.C. § 1451 (a) requires that the government file an affidavit showing good cause for the institution of the denaturalization proceedings.
Defendant argues that the affidavit of Elizabeth B. White submitted by the United States in this case relates only to defendant's visa ineligibility and not to the illegal procurement of his citizenship. In other words, defendant claims that the affidavit fails to show defendant's noncompliance with naturalization laws. Thus, according to defendant, the Complaint must be dismissed. In support of his argument, defendant cites United States v. Zucca, 351 U.S. 91 (1956).
Defense counsel made an identical argument in United States v. Negele, which the district court rejected in a footnote by stating, "Because the Court has determined that examining the validity of Negele's visa is wholly appropriate in a case such as this one, the Court finds Negele's assertions unpersuasive." No. 4:97CV1 810 at ¶ n. 2. ineligibility, his argument is without merit.
The United States argues that ample case law establishes that entry into the United States without a valid visa or with one unlawfully procured provides adequate grounds for denaturalization. Thus, since the affidavit presents facts establishing defendant's visa
In Zucca, the government completely failed to file an affidavit showing good cause along with its complaint seeking denaturalization. Id. at 93-94. The sole issue in the case was whether § 340(a) of the 1952 Act, today codified at 8 U.S.C. § 1451 (a), required the filing of an "affidavit showing good cause" as a prerequisite to the maintenance of a denaturalization proceeding. Id. at 91. The Court held that it did and stated that "the affidavit must set forth evidentiary matters showing good cause for cancellation of citizenship." Id. at 99.
Defendant does not argue that the United States failed to file an affidavit, but rather that the affidavit is insufficient. Ms. White is the Chief Historian at the Office of Special Investigations, Criminal Division, United States Department of Justice. (Aff. ¶ 1). Her affidavit contains a detailed statement of facts alleging that defendant became a member of the SS in 1943 (Aff. ¶ 6), that he served as an armed guard as SS Labor Camp Poniatowa (Aff. ¶ 8), that he served as an armed guard as a member of the SS Death's Head Battahon at the Gusen subcamp (Aff ¶ 14), that he sought DP status in 1951 by misrepresenting his wartime activities (Aff. ¶ 18-20), that he filed a false visa application (Aff. ¶ 22-23) and that during his naturalization process he never disclosed his true wartime activities, residences or service (Aff. ¶ 29).
In light of Fedorenko and its progeny and for the reasons stated above, this Court finds that the affidavit sets forth sufficient facts which, assuming their truth, show good cause for the revocation of defendant's citizenship.
Count V
In a separate section of his motion, defendant specifically moves to dismiss Count V of the Complaint. In Count V, the government alleges that at the time defendant applied for entry and was admitted into the United States, State Department regulations forbade the issuance of a visa to any alien who "acquiesced in activities or conduct contrary to civilization and human decency on behalf of the Axis countries during the present World War" or "in whose case circumstances of a similar character may be found to exist, which render the alien's admission prejudicial to the interests of the United States." (Compl. ¶ 61, citing 22 C.F.R. § 53.33 (1949)). Count V further alleges that defendant's actions as an armed guard at SS Labor Camp Poniatowa and the Gusen subcamp rendered him ineligible for a visa under these regulations. (Compl. ¶ 62).
Defendant contends that the State Department regulations were revoked on December 24, 1952, the effective date of the 1952 Act. Defendant also argues that Count V improperly cites only to regulations despite the fact that all of the leading case law requires this Court to examine the statutes governing the issuance of visas. Because illegal procurement requires a statutory violation and Count V alleges only regulatory violations, defendant moves for dismissal of Count V.
It appears that in moving for dismissal of Count V, defendant has forgotten or abandoned his earlier arguments that this Court has no jurisdiction to examine the issuance of his visa.
This same argument was also presented and rejected in Negele. See No. 4:97CVl8l0 at 11.
The United States argues that the governing law in this case includes both the statutes and the regulations in effect at the time the visa was issued.
Defendant's arguments regarding Count V are unpersuasive. It is clear from the Complaint that the United States seeks the revocation of defendant's citizenship based on 8 U.S.C. § 1451 (a). The regulations referred to simply provide another basis for the finding that defendant was ineligible for a visa and admission into the United States (in addition to being ineligible under the DPA).
Defendant's arguments are also undermined by the fact that other courts have found violation of State Department regulations to be a proper basis for denaturalization. For example, in Ciurinskas, the defendant appealed the revocation of his citizenship based on his service in the Lithuanian auxiliary force Schutzmannschaft which aided the German army during World War II in the extermination of thousands of civilians. 148 F.3d 729. The court of appeals noted that the district court had based the defendant's denaturalization on several different grounds, including the finding that
he was not eligible for a visa under State Department regulations (22 C.F.R. § 53.32-53.33) because he advocated or acquiesced in activities or conduct contrary to human decency and his entry was prejudicial to the interests of the United States.Id. at 732. The court held that any of the stated grounds, standing alone, would be a sufficient basis for denaturalization and affirmed. Id. at 733, 735. See also United States v. Stelmokas, 1995 WL 464264, *27 (E.D.Pa. 1995), aff'd, 100 F.3d 302 (3d Cir. 1996) (finding violation of State Department regulations one of four bases for revocation of citizenship).
Therefore, the United States has alleged sufficient facts to state a claim upon which relief may be granted.
Res Judicata
Defendant argues in conclusory fashion that the 1958 court grant of citizenship acts as res judicata, requiring that the Complaint in this case be dismissed. The United States persuasively argues that if defendant's res judicata argument is correct, 8 U.S.C. § 1451 (a) would effectively be revoked. No denaturalization proceeding could ever be held on the basis of illegal procurement if the original court grant of citizenship acted as res judicata on the issue of lawful admission.
This argument was also unsuccessfully raised by defense counsel in Negele, No. 4:97CV1810 at 10, and Milius, No. 96CV2534 at 4. Both Courts held that the doctrine of res judicata does not bar a denaturalization proceeding where it is alleged that the defendant's citizenship was illegally procured.
The Supreme Court expressly rejected a res judicata argument raised in the context of denaturalization proceedings in Maney v. United States, 278 U.S. 17 (1928). In that case, the defendant failed to comply with a technical filing requirement. Id. at 21. The statute in effect at the time was very similar to 8 U.S.C. § 1451 (a) and imposed upon the district attorneys the duty to seek denaturalization on the grounds that the certificate of citizenship was illegally procured. Id. at 21-22. The defendant argued on appeal that the denaturalization proceedings should have been barred based on the doctrine of res judicata. Id. at 21. The Court rejected the argument, stating,
As the certificate of citizenship was illegally obtained, the express words of [the effective statute] authorize this proceeding to have it cancelled. The judgment attacked did not make the matter res judicata, as against the statutory provision for review.Id. at 23.
Similarly, the court in United States v. Costello, 171 F. Supp. 10, 22 (S.D.N.Y. 1959), aff'd, 275 F.2d 355 (2d Cir. 1960), aff'd, 365 U.S. 265 (1961), stated,
It is well established that the doctrine of res judicata cannot be asserted against the Government so as to bar or preclude it from instituting and maintaining a statutory proceeding to set aside and cancel a certificate of citizenship on the ground of fraud. Every certificate of citizenship must be treated as granted on condition that the Government may challenge it in a separate proceeding as required by statute and demand its cancellation, unless it was issued in accordance with statutory requirements.
(citations omitted).
In Schneiderman, the Court acknowledged that in adjudicating a case seeking revocation of a defendant's citizenship based on illegal procurement, "the hard fact remains that we are here re-examining a judgment, and the rights solemnly conferred under it." 320 U.S. at 123. Far from being required to abstain from such a reexamination, the federal courts are given the express power to review naturalization orders by 8 U.S.C. § 1451 (a) "on the ground that such order and certificate of naturalization were illegally procured." In this case, the government argues that defendant's certificate of naturalization was not issued in accordance with the applicable statutory requirements. Thus, this Court has express authority to hear the case pursuant to 8 U.S.C. § 1451 (a).
Therefore, the doctrine of res judicata does not require dismissal of the Complaint.
Equal Protection
Defendant argues that the government's "spurious legal method creates an impermissible constitutional violation and results in an infringement of defendant's Fifth Amendment right to equal protection under law." (Mot. to Dismiss 35). Defendant claims that any immigrant who served as a concentration camp guard and was admitted to the United States under the 1924 Act, the 1952 Act or the 1953 Refugee Relief Act would not have been denied citizenship because those Acts did not restrict the entry or naturalization of those who "persecuted or belonged to a hostile movement." Only guards admitted under the DPA must be denied citizenship. Defendant also claims that a DPA immigrant is judged differently for denaturalization purposes than other immigrants and that this discrepancy violates the Equal Protection Clause. According to defendant, the only way to avoid an equal protection violation is to hold that each immigrant's lawfully admitted status must be reviewed under the provisions of the 1952 Act rather than under the Act pursuant to which they were admitted. While defendant concedes that Congress can and does discriminate as to what classes of aliens it permits to enter the United States, he argues that Congress may not discriminate as to what class of aliens will or will not receive citizenship.
Congress has the power to distinguish between classes of aliens for admission into the United States and to impose conditions on alien admission. Newton v. Immigration and Naturalization Service, 736 F.2d 336, 339 (6th Cir. 1984) (finding no equal protection violation based on distinction between aliens who entered temporarily as exchange students and those who entered temporarily for other personal or business reasons). Congress also has unfettered discretion over the expulsion of aliens. Hamama v. Immigration and Naturalization Service, 78 F.3d 233, 237 (6th Cir. 1996) (finding no equal protection violation based on distinction between aliens convicted of a felony who received notice of deportation before a certain date and those who did not receive notice). Congress's power is subject to only limited judicial review. Newton, 736 F.2d at 339. In addition, the exercise of that power "if predicated on a rational basis may distinguish between classes of aliens, and confer benefits on one or more classes that are not available to others." Id. Rational basis review does not require the Court to identify Congress's actual rationale. Hamama, 78 F.3d at 237. A statute must be upheld if there are plausible reasons for the distinction. Id. (citing United States v. R.R. Retirement Bd v. Fritz, 449 U.S. 166 (1980)).
Thus, Congress has the power to distinguish between, impose different conditions upon or grant different benefits to separate classes of Nazi concentration camp guards seeking admission into the United States so long as it has a rational basis for doing so. In ruling on defendant's Motion to Dismiss, the Court must consider only the allegations contained in the Complaint and view them in the light most favorable to the government. Even assuming that defendant is correct in stating that former Nazi concentration camp guards were and are treated differently depending on which Act they were admitted under, the Court cannot determine from the face of the Complaint whether or not Congress has a rational basis, i.e., a plausible reason, for the alleged disparate treatment.
As discussed above, the issue in this case is defendant's lawful admission into the United States under the DPA. Thus, defendant's arguments regarding Congress s power to discriminate in the grant of citizenship (as opposed to the grant of admission) are irrelevant.
Therefore, consideration of defendant's equal protection claim is not appropriate at this stage in the proceedings.
CONCLUSION
For these reasons, defendant's Motion to Dismiss is denied.
IT IS SO ORDERED.