United Nations;

*" 13 We were unable to locate any discussion of the reasons for the inclusion of similar language in section 13 of the Displaced Persons Act as amended to exclude persons who advocated or assisted in the persecution of any person because of race, religion, or national origin. However, it seems likely that the inclusion of such language was part of the general effort by Congress to amend the Act to set forth definitions of displaced persons within the meaning of United States law without reference to the Constitution of the International Refugee Organization.14

Section 13 of the Displaced Persons Act was also amended to require every person eighteen years of age or older admitted under the Displaced Persons Act as amended to take an oath that he is not and has never been a member of any organization or movement named in this section. This section as amended provides that:

If any person not entitled to a visa under this section shall nevertheless gain admission to this country, such person shall, irrespective of the date of his entry, be deported in the manner provided by sections 19 and 20 of the Immigration Act of February 5, 1917, as amended. 15

Another 1950 enactment, the Internal Security Act of 1950,16 did not amend the Displaced Persons Act as such, but the Displaced Persons Commission followed its provisions for the exclusion of aliens who are members of or affiliated with Communist or other totalitarian parties. More than 100,000 displaced persons were estimated to have been adversely affected by this legislation."

The effect of such law was * to establish a virtual block on all persons who had lived behind the Iron Curtain or in Hitler's Germany or Mussolini's Italy. This was due to the fact that membership in organizations—of a character proscribed by the Internal Security Act-was often involuntary or compulsory

Pending the amendment which clarified the intent of the Congress as to the exact limits of the exclusionary provisions, displaced persons and expellees who arrived in the United States were granted temporary admission to the United States through the machinery of the ninth proviso of the Immigration Act of

1917.

This situation was not rectified until March 28, 1951, when Public Law 14 clarified the terms "membership of" and "affiliated with," and directed that they be construed to mean only voluntary membership or affiliation with the outlawed organizations.18

With respect to the exclusion of Nazis, it is important to note that the Immigration and Nationality Act of 1952,19 unlike previous immigration legislation providing for the exclusion of aliens who are members of or affiliated with totalitarian parties,

defines "totalitarian party" as one which advocates totalitarianism in the United States. Thus it does not exclude adherents of Hitler's Nazi Party or of any other non-Communist totalitarian regimes of Latin America, Europe, the Middle East, or Asia. It seems evident, consequently that this statutory provision is concerned almost exclusively with membership or affiliation with various Communist Parties and their satellites.20

Congress received testimony in opposition to the inclusion of language distinguishing between Nazis and Communists with respect to exclusion from the United States. However, the exclusion of Communists appeared to be of greater concern to Congress at this time, as it appeared to be, during the consideration of emergency refugee legislation in 1953. Although the Refugee Relief Act of 1953 22 bars any person who personally advocated or assisted in the persecution of any person or group of persons because of race, religion, or national origin from being issued a visa

13 U.S. Congress. House. Committee on the Judiciary. Amending the Displaced Persons Act of 1948; report to accompany H.R. 4567, 81st Congress, 1st session. p. 44. (Report no. 581)

U.S. Congress. Senate. Committee on the Judiciary. Amending the Displaced Persons Act of 1948; report to accompany H.R. 4567, 81st Congress, 2nd session. p. 6. (Report no. 1237)

15 Act of June 16, 1950, ch. 262, 64 Stat. 219.

16 Act of Sept. 23, 1950, ch. 1024, 64 Stat. 987.

"U.S. Displaced Persons Commission, The DP Story, The Final Report of The United States Displaced Persons Commission, p. 70.

20 Gordon Charles, and Harry N. Rosenfield. Immigration Law and Procedure. Rev. ed. Vol. 1. New York, Matthew Bender, 1975. Sec. 2.47b.

21 U.S. Congress. Committee on the Judiciary. Revision of Immigration, Naturalization, and Nationality Laws. Joint Hearings, 82d Congress, 1st sess., on S. 716, H.R. 2379, and H.R. 2816. Washington, U.S. Govt. Print. Off., 1951, 787 p.

See statement of Stanley H. Lowell, Americans for Democratic Action, Washington, D.C., pp. 413-417.

22 Act of August 7, 1953, ch. 336, 67 Stat. 400.

under this Act, we were unable to locate any discussion of the reasons for the inclusion of this language.

I hope this information is helpful. Please let me know if I can be of further

assistance.

CATHERINE MCHUGH.

33-762 O 79 - 12

APPENDIX 3

STEP-BY-STEP PROCEDURE FOR REVOCATION OF CITIZENSHIP AND DEPORTATION OF NATURALIZED CITIZENS

(1) District Director having jurisdiction over the area where the naturalized citizen resides reviews the evidence and reports to Regional Commissioner.

(2) Regional Commissioner prepares "affidavit of good cause" stating why action should be taken to denaturalize (remove the citizenship) of the naturalized citizen. (3) Affidavit of good cause is forwarded to the General Counsel of the Immigration Service and INS headquarters in Washington.

(4) INS General Counsel recommends to Justice Department Criminal Division that proceedings be initiated to revoke citizenship.

(5) Criminal Division, if it concurs in the recommendation, advises U.S. Attorney having jurisdiction over the area where the naturalized citizen resides to file a suit in U.S. District Court seeking to have the naturalization revoked.

(6) Naturalized citizen has full rights of appeal through judicial system. (If successful in having citizenship revoked, INS then must initiate separate proceedings to deport the alien).

STEP-BY-STEP PROCEDURE FOR DEPORTATION PROCEEDINGS AGAINST ALIENS

(1) An "Order to show cause" is issued by the Immigration Service District having jurisdiction over the area where the alien resides. The document describes the charges against the alien and sets forth the legal basis as to why the individual is deportable. The alien is instructed to report to the Immigration Service office on a specified date for a hearing on the charges before an administrative hearing officer, (immigration judge).

(2) Hearing is held, with the burden of proof on the Government to show that the alien is deportable. Deportability must be shown by clear, covincing and unequivocal evidence (as set forth by the Supreme Court).

(3) The hearing officer renders a decision.

(4) The decision can be appealed by either the alien or the Government to the Board of Immigration Appeals. The Board is composed of a five-man panel within the Justice Department. It is not under the jurisdiction of the Commissioner of Immigration.

(5) If the Board rules against the alien, he can obtain judicial review before the U.S. Circuit Court of Appeals. The petition for judicial review results in an automatic stay of execution of the deportation order. The Government cannot appeal an adverse ruling by the Board.

(6) If the Court of Appeals rules against the alien, he may petition the Supreme Court to review the decision.

(7) When appeals through the court system have been exhausted, the Immigration Service approaches the country to which the alien is to be deported requesting that his return be accepted. (Inquiries may have been initiated earlier on this matter.) (8) When a country agrees to accept return of the alien, he is removed to that nation at U.S. Government expense.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA, Plaintiff,

VS.

FEODOR FEDORENKO, Defendant.

Case No. 77-2668-Civ-NCR

The Government seeks to strip defendant of his American citizenship granted in 1970. Basically the Government charges that defendant lied on his application for a visa in 1949, particularly in not disclosing he served as a guard at the death camp at Treblinka during World War II. Further, the Government charges he participated in atrocities at Treblinka, precluding him from having the good moral character necessary to become an American citizen. Defendant, originally a Ukrainian, contends that he was not a guard voluntarily but he was forced to be one as a prisoner

of war of Nazi Germany and denies committing any atrocities at Treblinka or elsewhere.1

DEFENDANT'S CONDUCT IN AMERICA

Defendant Fedorenko came to America in 1949 and has been a respectable resident ever since. Following his arrival he worked on a farm in Connecticut. After a year he worked in a factory in Waterbury and then went to work for Scovill, a manufacturer of brass and copper products; he worked there, usually as a foundry worker, for 20 years until his retirement. He was emphatically described by fellowworkers at Scovill as an "excellent" worker who did not speak unkindly of anyone; that he was so good a worker he had no problems and was a "real gentleman" with no apparent prejudices of any type. The union representative at Scovill testified strongly as to his reliability and performance-a man who never put in a grievance and never had one filed against him. His foreman described defendant as a man who did his job well and cheerfully-a very conscientious and a very good worker. The court accepts these appraisals as accurately reflecting defendant's work-life and personal life for 29 years.

The defendant married while in America but his American wife has died. For background: until the early 1960's defendant believed his wife and two children in Russia had been killed during World War II. He had been so advised at a prisoner of war camp by two brothers from his town. He has since discovered his wife and sons are alive and living in Crimea; he has visited them in the 1970's. His only schooling was in his native Ukraine for three years from the years 1915 to 1918, during the defeat and collapse of czarist Russia.

Defendant has retired on a social security pension and a pension from his 20 years labor at Scovill. He doesn't own a car; he doesn't own a house; he owns no real estate except a cemetery lot, and he has burial insurance policy. He has accumulated a life savings of $5,000 but owes his attorney an unknown fee for a trial which lasted 14 days. He has never been arrested in 29 years-not even for a traffic offense. His one failure as a resident and citizen in 29 years: he received one parking ticket. Feodor Fedorenko has been a hard-working and responsible American citizen.

VENUE AND PRELIMINARY MATTERS

This suit was instituted in August, 1977 while defendant was a resident in Miami Beach, pursuant to the requirement of 8 U.S.C. § 1451(a) that suit be filed. "in the district in which defendant resides." Defendant challenged venue on the grounds that his presence in Miami Beach, where he was then living, was only temporary and that his permanent residence was in Waterbury, Connecticut. The court denied defendant's motion to transfer, holding that venue properly lay in the Southern District of Florida.3

However, in an effort to alleviate defendant's claim of financial hardship in producing witnesses in Florida the court-through the gracious hospitality of the United States District Court for the District of Connecticut-held a portion of the trial in Waterbury. Although the hearing in Connecticut was originally scheduled to follow presentation of the Government's case in Fort Lauderdale in April, the Government's case was postponed until late May and June because of a recent appearance by Florida defense counsel."

Consequently, part of defendant's case was heard out of turn prior to the presentation of the Government's case in Fort Lauderdale without objection by either side. Two government witnesses also testifed in Waterbury without objection, as a convenience to the witnesses.

This memorandum opinion contains the court's findings of fact and conclusions of law in compliance with Rule 52, F.R.C.P. In addition, the court has included considerable detail about the evidence because of the extensive review of evidence afforded to the Supreme Court and Court of Appeals in denaturalization cases. U.S. v. Nowak, 356 U.S. 660, 78 S. Ct. 955 (1958) and others. Further, the court has added observations to give the flavor of the trial as well. The only reference to World War II by defendant any fellow worker remembers was when he cried about the loss of his wife and sons.

Although the Government produced only minimal proof to justify denial of the motion, defendant admitted at trial that he was a resident of Miami Beach from August 1976 to September 1977 after suit was filed.

The court appointed itself a special master under Rule 53 F.R.C.P. for the purpose of holding a hearing and receiving evidence in Waterbury. The parties stipulated that the evidence be received without the necessity of filing the report and further that it could be considered as if it had been presented at trial.

' Defendant's initial counsel, Brian Gildea of New Haven, was permitted to withdraw after Gregg Pomeroy of Fort Lauderdale filed his appearance. However, Mr. Gildea assisted at the hearing in Connecticut.

A second problem developed prior to trial with regard to the Government's obtaining testimony of foreign witnesses. Early in November 1977, the court learned of the Government's intention to take depositions out of the country. Because it was concerned that the Government might intend to produce only deposition testimony of foreign witnesses, the court sua sponte entered an order prohibiting the use of deposition testimony at trial in order to enable the court to observe the witnesses' faces, body language and reactions in the courtroom, particularly in the presence of defendant and also his reactions to their testimony. The court felt that in-court testimony would be particularly critical in view of possible identification problems and the passage of 35 years since the events complained of at Treblinka. In addition, depositions taken by the Government in Israel almost surely would not have provided cross-examination. In compliance with the court's order the Government was compelled to bring its witnesses from Israel to Fort Lauderdale."

CHARGES AND DEFENSES

Title 8 U.S.C. § 1451(a) provides that for good cause shown the United States Attorney shall institute proceedings to set aside an order admitting a person to citizenship and cancel the certificate of naturalization on the grounds that such order and certificate were "illegally procured or were procured by concealment of a material fact or by willful misrepresentation" and concealment as grounds for denaturalization.

In Count 1 the Government charges that defendant gave false information in his application for Immigration Visa and Alien Registration, and that his citizenship was therefore "illegally procured" because he was never lawfully admitted to the United States.

Counts 2 and 3 allege that defendant was not admissible to the United States under the Displaced Persons Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009, nor was he otherwise admissible under the Immigrations Laws and Orders and Regulations issued thereunder because he participated in the commission of crimes and atrocities against civilians in the Treblinka concentration camp during 1942-43.

Count 4 alleges that defendant wilfully failed to disclose the commission of crimes at Treblinka in response to question No. 6 on his Application to File Petition for Naturalization (Form N-400).

In Count 5 the Government charges that defendant wilfully failed to disclose his service as an armed guard for the Germans in response to question No. 7 on the N-400 form.

Finally, Counts 6 and 7 allege that defendant lacked the good moral character required to become a citizen by virtue of his commission of atrocities at Treblinka and the giving of false statements with request to questions No. 6 and No. 7 as alleged in Counts 4 and 5.

DEFENSES

Defendant Fedorenko in his answer raised the special defenses of waiver and estoppel, improper venue, and the statute of limitations. Primarily defendant contended that the long passage of time between the incidents at issue and the institution of this law suit served to bar the Government from proceeding. The defense of improper venue was based on the allegation that defendant did not reside in Florida at the commencement of this law suit.

At trial, defendant virtually abandoned these special defenses; instead he denied generally having committed atrocities or crimes against humanity while a prison guard at Treblinka. Also, defendant sought to establish that his service as a guard at Treblinka and elsewhere was performed involuntarily while he was himself a prisoner of war.

The court in its order suggested that if the Justice Department wished to bear the expense of defendant and his counsel, and the court's as well, to hear testimony of the Israeli witnesses at some neutral site such as Athens or Istanbul, the court would be willing to do so as a Special Master. The Justice Department declined but the court has since been informed by Government counsel at the pretrial conference that it would have been more economical for them to have done so inasmuch as they brought ten witnesses from Israel for the purposes of trial and most insisted on bringing their spouses as a condition of testifying.

Subsequent to the court's order regarding witnesses' testimony, the Judicial Conference of the United States passed a resolution at the March 1978 meeting prohibiting United States Courts from holding court outside the United States. In view of the expense problem of the Israeli witnesses, as well as the much more critical problem of obtaining testimony of the Russian witnesses discussed subsequently in this opinion, this court must respectfully suggest that special circumstances might justify authorization for a United States District Court to hold evidentiary hearings outside the United States for trial purposes.