# United States v. Osidach

> District Court, E.D. Pennsylvania · March 30, 1981 · 513 F. Supp. 51

URL: https://www.frixlaw.com/law-library/cases/1613117

## Case

- **Full name:** UNITED STATES of America v. Wolodymir OSIDACH A/K/A Wolodymir Osidacz
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 30, 1981
- **Citations:** 513 F. Supp. 51
- **Precedential status:** Published
- **Opinion:** Opinion by Bechtle
- **Judges:** Bechtle
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1613117

## How later opinions describe it (automated extraction)

- finding that the claim by a Ukrainian policeman that he had been a dairy technician was a material misrepresentation under the DPA

## Opinion text

OPINION AND ORDER
BECHTLE, District Judge.
TABLE OF CONTENTS
GENERAL — statement of the case ................................... pp.
I. FACTUAL BACKGROUND ................................... pp.
(A) Events Prior to 1939 ................................... pp.
(B) Events From 1939 to 1941...............................pp.
(C) Events From 1941 to 1944 ............................... pp.
(D) The Rawa Ruska Ghetto................................ pp.
(E) Defendant Osidach’s Undisputed Activities From 1941 to 1944 .. pp.
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TABLE OF CONTENTS
II. ILLEGAL PROCUREMENT................................pp.--
(A) Unlawful Admission into the United States.................pp.--
(1) Ineligibility as a Displaced Person......................pp.--
(a) Historical Overview.............................. pp.---
(b) Application of the Fedorenko Decision to § 13 of the DPA.....................................pp.---
(c) Membership Under § 13 of the DPA.................pp.--
(d) Constitutional Limitation.......................... pp.--
(2) Osidach’s Ineligibility as a Displaced Person..............pp.--
(a) Role of the Ukrainian Police Throughout Galacia from 1941 to 1945 ....................................pp.--
(b) Role of the Ukrainian Police in the Town of Rawa Ruska from 1942 to 1944 .......................... pp.--
(i) Documentary Proof........................... pp.---
(ii) Eyewitness Testimony......................... pp.---
(ii-a) Enforcement of Ghettoization of Jews and Enforcement of Other Degrading Laws Enacted for the Jewish Population by the Occupying Germans......................pp.---
(ii-b) Guarding and Abuse of Jewish Laborers.....pp.---
(ii-c) Ukrainian Police Used in the Deportation of Jews from the Ghetto..................pp.---
(ii — d) Activities of the Ukrainian Police in the Final Action Involving the Liquidation of the Rawa Ruska Ghetto................pp.---
(c) Osidach’s Version of the Role of the Ukrainian Police in
the Town of Rawa Ruska from 1942 to 1944 ..........pp.---
(i) Administrative Necessity......................pp.---
(ii) The Jewish Order Police.......................pp.---
(iii) Defendant Osidach’s Role as a Willing Member of the Ukrainian Police in the Town of Rawa Ruska from 1942 to 1944 ............................ pp.---
(iv) Osidach as a Participant Under § 13.............pp.---
(B) Misrepresentation of a Material Fact Under § 10 of the DPA ... pp.---
III. CONCEALMENT OR MISREPRESENTATION OF A MATERIAL
FACT IN SECURING CITIZENSHIP ........................ pp.---
IV. CONCLUSION...........................................pp.---
APPENDIX..................................................pp.---
ORDER
Presently before the Court is a denaturalization action filed by the United States as plaintiff, pursuant to section 340(a) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1451 (a): to revoke and set aside the district court’s order admitting defendant Wolodymir Osidach (“Osidach”) as a United States citizen; and, to cancel his certificate of naturalization (number 8633492) which was issued pursuant to that order. Jurisdiction is conferred upon this Court under 28 U.S.C. § 1345 , and 8 U.S.C. §§ 1421 (a), 1451(a).
The Government stands on two major theories, each with several minor subcomponents, upon which it bases its case seeking the denaturalization of Osidach. Both theories are founded upon § 1451(a) of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1451 (a) (“INA”), which provides:
(a) It shall be the duty of the United States attorneys for the respective dis
*57
tricts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 1421 of this title 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:
Provided,
That refusal on the part of a naturalized citizen within a period of ten years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning his subversive activities, in a case where such person has been convicted of contempt for such refusal, shall be held to constitute a ground for revocation of such person’s naturalization under this subsection as having been procured by concealment of a material fact or by willful misrepresentation. If the naturalized citizen does not reside in any judicial district in the United States at the time of bringing such suit, the proceedings may be instituted in the United States District Court for the District of Columbia or in the United States district court in the judicial district in which such person last had his residence.
The two major theories advanced by the Government are: (1) Osidach illegally procured his citizenship; and/or, (2) Osidach willfully misrepresented and/or concealed certain material facts from the immigration authorities at the time he procured his grant of citizenship. The Government contends that it should prevail under either or both theories. It must be kept in mind that, despite the content of the allegations and counter-allegations, this case is not a criminal case but a civil case; accordingly, these theories are necessarily dependent upon common elements of fact which must be proven by the Government by what the United States Supreme Court has recently described as “clear, unequivocal and convincing evidence” which “does not leave the issue in doubt.”
Fedorenko v. United States,
- U.S.--, -, 101 S.Ct. 737, 747 , 66 L.Ed.2d 686 (1981),
quoting Schneiderman v. United States,
320 U.S. 118, 125 , 63 S.Ct. 1333, 1336 , 87 L.Ed. 1796 (1943).
See also Woodby v. Immigration Service,
385 U.S. 276, 285-286 , 87 S.Ct. 483, 487-488 , 17 L.Ed.2d 362 (1966). As the Court in
Fedorenko
stated:
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
Costello v. United States,
365 U.S. 265, 269 [ 81 S.Ct. 534, 536 , 5 L.Ed.2d 551 ] (1961);
Chaunt v. United States, supra,
[ 364 U.S. 350 ] . at 353 [ 81 S.Ct. 147, 149 , 5 L.Ed.2d 120 ];
Baumgartner v. United States,
322 U.S. 665, 675-676 [ 64 S.Ct. 1240, 1245-1246 , 88 L.Ed. 1525 ] (1944);
Schneiderman v. United States,
320 U.S. 118, 122 [ 63 S.Ct. 1333, 1335 , 87 L.Ed. 1796 ] (1943).
Any less exacting standard would be inconsistent with the importance of the right that 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; Nowak v. United States,
356 U.S. 660 [ 78 S.Ct. 955 , 2 L.Ed.2d 1048 ] (1958);
Baumgartner v. United States, supra.
-U.S. at --, 101 S.Ct. at 747 .
This case raises a myriad of complex and difficult factual and legal issues based upon a series of events spanning nearly 50 years. The following constitutes the procedural chronology around which this decision will flow. In May, 1949, the defendant filed a resettlement and registration form with the
*58
International Refugee Organization (“IRO”) in order to be certified as a “displaced person of concern to the IRO” under the IRO Constitution [Ex. P-17]. After being so certified, Osidach then applied to the United States Displaced Persons Commission (“DPC”) in June of 1949 for classification as a displaced person, as defined under the Displaced Persons Act of 1948, P.L. No. 80-774, 62 Stat. 1009 (“DPA”). After Osidach’s application, the DPC issued its report [Ex. P-20]. The next step in the procedure was for Osidach to apply to the American Consulate — which he did in Munich, Germany, on July 6, 1949 — seeking an immigration visa to the United States as a displaced person. That entry visa was granted by a vice consul of the American Consulate [Ex. P-21]. Finally, on the authority of that immigration visa, Osidach entered the United States with his family at New York City on July 29, 1949. After residing in this country for some 14 years, he submitted an application, on April 23, 1963, seeking permission to file a petition for naturalization as a United States citizen with the Immigration and Naturalization Service (“INS”) at Philadelphia [Ex. P-23]. This was followed on June 10, 1963, by the filing of the petition itself [Ex. P-24]. Eventually, on August 7, 1963, the United States District Court for the Eastern District of Pennsylvania granted Osidach’s petition for naturalization and upon issuance to him of a certificate of naturalization, Wolodymir Osidach became a citizen of the United States of America [Ex. P-25].
For over 16 years, Osidach enjoyed the full rights and fulfilled the obligations and responsibilities of a citizen of the United States. On November 20, 1979, the present action for denaturalization was filed against Osidach by the United States with an accompanying affidavit stating good cause as required by law, 8 U.S.C. § 1451 (a). On September 15,1980, after the resolution of a variety of expected and understandable disputes concerning pretrial matters, the non-jury trial
1
for denaturalization commenced. The trial lasted 13 days, with the Court hearing the testimony of 14 in-court witnesses (including the defendant), viewing the videotape depositions of 7 witnesses, reading the depositions of 5 additional witnesses and receiving into evidence over 50 exhibits from both parties. On November 14,1980, proposed findings of fact and conclusions of law were filed by the parties and final argument was heard by the Court on November 17, 1980.
The factual allegations raised by the Government, upon which their legal theories are buttressed, concern Osidach’s preWorld War II and war-time conduct — including his organizational, political, criminal and employment activities between 1930 and 1944.
Therefore, from this juncture, the Court’s Opinion will be divided into the following areas: (1) a discussion of the undisputed facts surrounding this litigation, including a general historical overview of international activities from 1917 until 1944 and, in particular, Osidach’s activities between 1930 and 1944; and, (2) a discussion of the two major theories relied on by the Government to support its claim. This discussion will include findings of fact as to disputed factual issues and an application of those facts to the Government’s theories, which will form the Court’s conclusions of law.
I. FACTUAL BACKGROUND
2
(A)
Events Prior to 1939
In 1917, a portion of eastern Europe— known then as the Ukraine — declared its
*59
independence [N.T. 10-18]. That independence was short-lived for, after three years of struggle, the Ukrainians were defeated by the Russians and the Poles. At that time, the Ukraine was divided — with the western portion of the Ukraine becoming Polish controlled and the eastern and central areas coming under Soviet domination [N.T. 10-18 to 19]. This latter area is now known as the Ukrainian Socialist Party Republic.
During this period of divided Polish and Soviet control prior to 1930, when considerable efforts were being made by both countries to assimilate the Ukrainian people into the respective Polish and Soviet lifestyles, an underground movement emerged that was composed of persons who advocated a return to an independent Ukraine free from either Polish or Soviet control. One of those nationalist groups was called the Organization of Ukrainian Nationalists (“OUN”), which was founded in 1929 [N.T. 10-19]. This group was involved in numerous political activities advocating a return to a free Ukraine. Those activities took the form of new members and other protest functions. Because the OUN was regarded by both the Polish and Soviet governments as subversive and hostile, its members were often harassed, arrested, imprisoned and generally and routinely persecuted for their membership in that group [N.T. 10-24; 2-127 to 130,152;
see also
Ex. P-15]. During the 1930’s, the entire area comprising the Ukraine was subject to a severe famine. There was also great political and economic turmoil which resulted in numerous political arrests [N.T. 10-19 to 21].
From 1930 to 1939, Osidach freely admits that, while living in the town of Rawa Ruska in the Polish Ukraine, he was a member of the OUN and was on at least five occasions arrested and imprisoned for varying periods for advocating a free Ukraine [N.T. 2-150 to 156]. The political activities which led to his arrests during this period included distributing and posting handbills, possessing written materials and recruiting members for the OUN. In some of these arrests by the Polish government, he was released after a few days of detention; while on other occasions he was eventually tried by a Polish court of law and sentenced to varying brief prison terms. Overall, Osidach served a total of six years in “political prisons” for his beliefs [N.T. 2-154; 10-24]. The longest continuous period he spent in prison was eighteen months [N.T. 2-154]. These arrests and convictions were well-documented by the Government at trial and were authenticated by an expert in Polish law [Ex. P-10 to 16; N.T. 2-80 to 123].
(B)
Events From 1939 to 1941
In 1939, Nazi Germany
3
and the Soviet Union — in an unusual exercise of international friendship — agreed that, as a seal of their friendship, they would partition what was then Poland, with the Soviet Union occupying the western portion. This partition resulted in the Ukraine also being split between German and Soviet control. The town and region of Rawa Ruska, located in the western Ukraine, became subject to Soviet control. The friendship between these two powers was predictably short-lived and on June 21, 1941, the Germans manifested their change-of-heart by undertaking a full-scale military invasion of the Soviet portion of Poland, as well as the Soviet Union itself, thus engulfing the Ukraine as well as all of Poland.
During this period and before the Nazi invasion, Osidach was released from prison,
*60
whereupon he took up residence and worked from approximately September of 1939 until June of 1941 in Tomaszow, Poland, which was the portion under German control [N.T. 2-158 to 160].
(C)
Events From 1941 to 1944
As the Germans assumed control over Poland, they organized it into five major regions, each presided over by a German-controlled civil government. One of those regions was known as “Galicia,” which included within it the lesser region of Rawa Ruska, which, in turn, included the
town
of Rawá Ruska. In 1941, the population of the town of Rawa Ruska was approximately 10,000 to 11,000 persons. Approximately one-half of the people were Jews, while the remaining inhabitants were divided fairly equally between Ukrainians and Poles [N.T. 1-98; 3-50],
Soon after the military conquest of eastern Europe, the German high-command began to implement its uniform policy providing for the systematic, calculated extermination of the Jewish population in the occupied areas. As the German Wehrmacht military forces swept through the conquered areas, they were followed by mobile killing units composed of “S.S.” (Shutzstaffel) and other security personnel (called Einsatzgruppen), who proceeded to butcher innocent members of the Jewish civil population, including women and children, of all ages, through sundry methods of mass killing. Those Jews who survived, by whatever circumstance, were scheduled by the German high-command to nevertheless become victims of a somewhat different but more systematic and, for that reason, more efficient method of mass annihilation [N.T. 1-89 to 93; Ex. P-1 at 177
et
a/.]. This was by means of “killing centers” scattered throughout eastern Europe, including the Ukraine. It was at these centers, equipped with gas chambers for large-scale destruction, that millions of Jews, as well as members of other groups which the Germans deemed undesirable or hostile toward the war effort, were murdered [N.T. 1-101].
The gas chambers were the final step of a diabolical scenario called by the Germans the “final solution” of the “Jewish problem” or “PLAGUE” so that specified areas would be “free from Jews” [Ex. P-2], Throughout eastern Poland and the Ukraine, the Germans implemented this policy by the forcible uprooting and removal of Jews from the outlying towns and villages and transporting them into the larger towns within the regions [N.T. 1-89 to 92; Ex. P-1 at Chapter VI]. Within these towns, central concentration locations or “ghettos” were established where these persecuted people, from the towns and the surrounding areas, were collected and forced to live — to await further disposition. The ghettos were established in towns near main railroad lines and centers, so that the Germans could easily and conveniently — beginning in 1942, after the collecting process had been completed — transport the residents of the ghettos by train to the killing centers located throughout the regions. The German scheme also included the confiscation of Jewish-owned property [N.T. 1-101 to 102] and, in the interim between subjugation and extermination, the utilization of Jews as forced laborers at various German-created worksites [N.T. 1-89 to 92, 101 to 102].
(D)
The Rawa Ruska Ghetto
The town of Rawa Ruska was located in the minor region of Rawa Ruska, which was itself included within the major region of Galacia in the western Ukraine. It was located at the intersection of major railroad lines [N.T. 1-102; M.M. Bankh dep. at 42]. Because of its location along railroad lines and its close proximity to the killing center at Belzec, approximately 20 miles northwest of the town, a Jewish ghetto was established by the Germans soon after their occupation of the town in 1941 [N.T. 4-110]. The ghetto was located in the center of the town a few blocks from the town square and the Jewish house of worship (synagogue). This ghetto area was sealed off from the remainder of the town [N.T. 4-110], The Jewish population in the areas on the outskirts of Rawa Ruska were forcibly delivered into the ghetto [N.T. 1-102; 6-15,
*61
120 to 126]. Those Jews living in the town, which in 1941 numbered around 3,000 to 6,000 [N.T. 1-98; 3-50], were also forced into the ghetto [N.T. 3-111; 6-13, 88 to 89]. One of these persons testified at the trial that, at the time of the German occupation of the town, she was visited at her home by Germans and in the process of forcing her to leave her home she was brutally beaten, resulting in her nose and spine being broken [N.T. 6-77],
Life within the Rawa Ruska ghetto was not a matter of living but merely surviving. Beatings, strikings and other injurious acts of brutality toward members of the Jewish population were an everyday way of life. Soon after its formation, the ghetto was ravaged by an epidemic of typhus. Medicine and food were scarce [N.T. 3-11 to 113; 6-18]. Overcrowding was typical, with as many as 18 people crowded into one room [N.T. 6-18].
In Rawa Ruska, as elsewhere, the German occupying forces enacted a series of “special laws” applicable only to the Jewish population, which included a variety of degrading and dehumanizing practices, procedures and policies. For example, Jews over the age of 12 were required to make and wear on their upper-left arms an armband with the Star of David in conspicuous dimension. They were forbidden to leave the ghetto during the day without authorization and were absolutely forbidden to leave at night. If they were caught outside the ghetto without permission or without the identifying armband, they could be shot on sight. One further degrading practice was the forbidding of Jews to walk on the sidewalks of the town [N.T. 3-23; 4-104 to 105; 6-13].
The Germans also coerced members of the Jewish population who were able to work to engage in forced labor [N.T. 4-105 to 106] of the most dehumanizing sort. One detail involved Jewish laborers uprooting and smashing gravestones in an old Jewish cemetery in order to provide crushed stone for roads [N.T. 4-105 to 106]. These methods of persecution were only temporary because, as later events tragically prove, the ghetto at Rawa Ruska was merely a detention center for its inhabitants who were awaiting — unbeknownst to them — transportation to the killing center at nearby Belzec. The actual act of delivery to Belzec was done in three operations. These episodes— referred to as “actions” by the Germans and the victims as well — were conducted pursuant to direct orders from Heinrich Himmler, who was the highest ranking command figure in the Nazi S.S. Himmler decreed that the Jews in Galacia be deported to death camps by the end of 1942 [N.T. 1-104; 4-111 to 112, 116 to 117]. His orders were tragically carried out in the town of Rawa Ruska in these three “actions.” The “actions” occurred without warning in approximately March, July and December of 1942. Each action differed in method, but not in purpose or result. The first two actions in March and July of 1942 resulted in Jewish men, women and children being literally grabbed off the streets and from their dwellings in the ghetto, then thrown into trucks or forced to walk to the railway station in the town. There they were jammed into boxcars, with the assistance of rifle butts and bayonets, and then sent off to Belzec [N.T. 3-114 to 116; 4-88 to 91, 111 to 112, 114, 118 to 120; M.M. Banakh dep. at 34-36; S.D. Bakai dep. at 28-29; Kulikovska dep. at 29-34]. Those who attempted to escape were murdered [N.T. 6-27 to 29]. Each of these “actions” lasted from one to three days.
On December 9,1942, the third and “final action,” resulting in the literal liquidation of the ghetto at Rawa Ruska, took place in an effort by the Germans to make Rawa Ruska “free from Jews” [Ex. P-2 at 9]. The ghetto was totally destroyed. During this “final action,” the entire remaining Jewish population was either shot or removed from the streets, dwellings or hiding places. Persons seized were taken outside of town to a cemetery and the few able-bodied males were retained for forced labor and the remainder taken away in trucks and never seen again. The acts of brutality during this final action, which lasted for weeks, were unspeakable. One witness testified that she saw small Jewish children
*62
seized by the intruders and swung by their feet and their heads smashed against a wall [N.T. 6-94 to 95]. When all of the inhabitants of the ghetto had been removed, the ghetto was burned, dynamited and covered over until nothing remained but the smoking rubble and the charred bones of its prior inhabitants. All traces of Jewry had vanished [N.T. 3-42; 4-123 to 124; 6-127 to 131; Kulikovska dep. at 37-41; Straznik dep. at 23-28; Ex. P-2 at 11].
In January and February of 1944, the German occupying forces began to evacuate Rawa Ruska and, by the summer of that year, the Germans along with others had retreated from Rawa Ruska in the wake of the advancing Soviet forces [N.T. 3-52],
(E)
Defendant Osidach’s Undisputed Activities From 1941 to 1944
In the 1941 to 1944 period, certain facts surrounding the activities of Osidach are not in dispute and were admitted by the defendant either at trial or in his pretrial deposition.
In June of 1941, Osidach returned to Rawa Ruska after the German forces had seized control of that town from the occupying Soviets [N.T. 2-160 to 161]. When he first arrived, Osidach lived with the Terpeluk family and worked for a short time from June to July of 1941 in a local dairy [N.T. 2-161 to 162]. In approximately August of 1941, he was asked by the commandant of the Ukrainian militia in Rawa Ruska to become the new commandant [N.T. 2-164]. At a public meeting, the Ukrainian people of Rawa Ruska asked Osidach to occupy that position [N.T. 2-162 to 163; Osidach dep. of September 9, 1980 (dep. 2) at 9-10]. The Ukrainian people of Rawa Ruska trusted Osidach because he knew the German language and was a Ukrainian nationalist and “would take in protection the Ukrainian people” [N.T. 2-163, 165; Osidach dep. 2 at 9-10]. The Ukrainian militia’s function was to keep “order” in the streets of Rawa Ruska [N.T. 2-169; Osidach dep. 2 at 7]. There were approximately 15 to 25 men in the militia, all of them volunteers, and all under Osidach’s command when he became the new commandant of the militia [N.T. 2-170; Osidach dep. 2 at 14]. At that time, there were no other police within the town of Rawa Ruska except the militia [Osidach dep. 2 at 12-13]. Furthermore, at that point in time, only the German army was present in the town. At a later time, the German civil administration resumed control [Osidach dep. 2 at 9, 13],
Osidach was the commandant of the Ukrainian militia for approximately three to four months, at which time the militia was disbanded by the Germans and was reorganized as the Ukrainian police. All of the militia members became members of the Ukrainian police [N.T. 2-17; Osidach dep. 2 at 8, 18]. This reorganization was supervised by Gregor Stockmahl, who was the commander of the Ukrainian police throughout the Rawa Ruska region [N.T. 2-171; 3-10; Osidach dep. 2 at 14]. The Ukrainian police were so named because they were composed exclusively of members of the Ukrainian population [N.T. 2-171].
In November of 1941, Osidach voluntarily went to the city of Lvov in Poland where for three months he was trained by Ukrainians, Poles and Germans to be a Ukrainian policeman [N.T. 2-173; Osidach dep. 2 at 19; Ex. P-7]. Part of that training included instruction in the use of rifles, which was conducted under the supervision of German instructors [N.T. 2-174]. The students at this school were recruited from throughout the entire Rawa Ruska region [N.T. 2-174 to 175]. Osidach was taught to “enforce the laws of Rawa Ruska” and “to apply [them] to the people” [N.T. 2-175] in order to keep “order” in the streets [N.T. 2-175]. Through his “military training,” which Osidach says was “not enough” [Osidach dep. 2 at 36], he was trained to be a Ukrainian policeman [Osidach dep. 2 at 20, 36, 37].
When his training was completed in January of 1942, Osidach returned to Rawa Ruska equipped with the blue uniform of the Ukrainian police and bearing a pistol and holster, all of which he was to wear and did wear during the performance of his duties as a Ukrainian policeman [N.T. 2-176
*63
to 178]. Osidach’s sole employment upon his return to Rawa Ruska and until the summer of 1944 was that of a full-time member of the Ukrainian police in the town of Rawa Ruska [N.T. 2-182]. Osidach admits that his work assignment included two separate general duties. One was as an interpreter/clerk for the Ukrainian police, which work was performed at the Ukrainian police station in Rawa Ruska [Osidach dep. 2 at 47, 54 to 55]. Second, his general duties also included working on the streets of the town, whereby on an almost daily basis he was assigned to keep “order.” In the performance of both duties, he acted in the capacity of a hauptwachman, a rank he attained sometime after his return to Rawa Ruska in January of 1942 [N.T. 2-182 to 183; 3-11 to 15,16,45; Osidach dep. 2 at 43 to 46; Ex. P-7, P-9].
The rank of hauptwachman was one grade higher than a “simple policeman” or wachman. [N.T. 2-183; dep. 2 at 24,28]. As a hauptwachman, Osidach carried a pistol, as opposed to the rifles that the other wachman carried [N.T. 3-4; Osidach dep. 2 at 42-43]. Osidach and the other wachman wore a blue uniform with a badge of the Ukrainian police. However, as the hauptwachman, Osidach gave the orders to the lower-rank wachman [N.T. 3-20 to 21], as he stated, “Naturally, because I was higher rank, and I have to give orders” [N.T. 3-44; Osidach dep. 2 at 47]. At any one time, Osidach states there were only about eight Ukrainian policemen in the town of Rawa Ruska [Osidach dep. 2 at 63]. At times, Osidach was called upon when additional police were needed on the streets [Osidach dep. 2 at 45]. All members of the Ukrainian police were paid not by the Ukrainian police but through a section of the civil administration, which was at that time German controlled [Osidach dep. 2 at 24].
Finally, in the summer of 1944, while still a hauptwachman in the Ukrainian police, Osidach left Rawa Ruska with the retreating German army [N.T. 3-51].
II. ILLEGAL PROCUREMENT
The Government’s first major ground for denaturalization is based upon the first prong of § 1451(a) — that being that the defendant’s citizenship should be revoked if it was illegally procured. This major theory of the Government is bottomed upon two separate arguments: (1) that the defendant was never lawfully admitted to the United States in 1949, which is a prerequisite to securing a valid citizenship under § 1427(aXl)
4
of the Immigration and Nationalization Act of 1952 (“INA”); and, (2) in the alternative, the Government alleges that, when he applied for citizenship status in 1963, Osidach lacked the good moral character required to obtain a valid grant of citizenship under § 1427(a)(3).
5
Each of the Government’s underlying theories will be separately considered.
(A)
Unlawful Admission into the United States
The Government’s first theory based upon the contention of illegal procurement is further founded upon a two-point argument. First, it argues that Osidach was never lawfully admitted into the United States in 1949 because he was not an eligible displaced person under the Displaced Persons Act of 1948, Act of June 25, 1948, Pub.L.No. 80-774, 62 Stat. 1009 , as amended by Act of June 16, 1950, Pub.L.No. 81-
*64
555, 64 Stat. 219 (attached as Ex. A to Plaintiff’s Pretrial Memorandum) (“DPA”). Second, the Government alleges that Osidach was never lawfully admitted into the United States in 1949 because he made a willful misrepresentation of a material fact for purposes of securing immigration status as a displaced person, in violation of § 10 of the DPA. Therefore, his entry as a displaced person under the DPA was illegal. Here, too, each argument under the Government’s illegal-admission theory will be addressed separately.
(1)
Ineligibility as a Displaced Person
(a)
Historical Overview
In 1949, Osidach entered this country pursuant to an entry visa issued under the DPA. That visa was issued by a vice-consul working in conjunction with the Displaced Persons Commission (“DPC”). Both worked under the applicable provisions of the DPA. The DPC was an organization created under the DPA to administer the provisions of the Act. The Government claims that Osidach was not eligible to be a displaced person as defined by the DPA.
The DPA was enacted as a special emergency form of immigration legislation by Congress in 1948. Its passage was directly attributed to a historical reality of World War II (“WW II”) — that being the propagation of approximately eight million persons from throughout eastern and western Europe who constituted the displaced human by-product of the war. Those displaced persons included not only civilian refugees from war-torn areas but also prisoners of war, forced laborers and those fortunate survivors of the German concentration and death camps. As a result of the repatriation and resettlement policies formulated at the 1945 Yalta Conference, many of these displaced persons were voluntarily resettled in various areas. However, over one million remained homeless for a variety of economic and political reasons, S.Rep. 950, 80th Cong., 2d Sess. 8, reprinted in [1948] U.S. Code Cong.Serv. 2028, 2035 (“S.Rep. 950”). Of these, many became residents of temporarily created camps located throughout Germany and other countries.
Id.
at 2036. These displaced persons camps were organized and operated by the Preparatory Commission for the International Refugee Organization (“IRO”), a United Nations-established post-war interim agency with its purpose being to assist with the problems posed by the refugees and displaced persons produced by WW II. The IRO functioned pursuant to the provisions of the then-proposed IRO Constitution, which became effective in 1948 after being accepted by 15 nations of the United Nations, including the United States which became a signatory in 1947, Act of July 1, 1947, Pub.L.No. 80-146, 61 Stat. 214 . The IRO Constitution, 62 Stat. 3037 -3055 (1946), provided for the screening and classification of persons through procedural mechanisms staffed by IRO personnel to certify persons of “concern” to the IRO under the IRO Constitution as eligible displaced persons for IRO purposes. This in turn facilitated their resettlement to those countries accepting the IRO constitutional goals. The United States received displaced persons under this temporary measure and contributed 79% of the total contributions received by the IRO for approximately one year until June 25, 1948, when the DPA was passed by Congress, S.Rep. 950 at 2037.
The DPA was specifically enacted by Congress as a unique form of humanitarian legislation providing for the granting of entrance visas to this country to certain defined eligible persons, with notable exceptions, after a thorough investigatory screening and certification of approval by personnel organized and supervised by the DPC,
see
§§ 8, 10 of DPA. The burden of proof was on the person seeking displaced persons status under the DPA, see § 10 of DPA. In form, the DPA served to greatly enlarge the prior immigration quotas under the then-existing United States immigration laws,
see
§ 3(a) of DPA. Under the DPA, quota limitations were temporarily restructured with a limit of 202,000 immigration visas being issued to eligible displaced persons over a two-year period beginning in 1948,
see
§ 3(a) of DPA. In
*65
1950, this was amended to provide for 341,-000 persons over a three-year period starting from 1948, Act of June 16, 1950, Pub. L.No. 81-555, § 4, 64 Stat. 219 , 221. Congress provided that, in the event this enlarged quota resulted in an excess over the annual quota limitations imposed under the Immigration Act of May 26, 1924, Pub. L.No. 68-139, § 12, 43 Stat. 153 , 160-161, the excess number would be subtracted up to 50% from those annual quotas in the next succeeding fiscal year in which a quota was accorded,
see
§ 3(b) of DPA. Therefore, while the legislation served to alleviate a severe existing problem, it had the added effect of “mortgaging” the quotá restrictions for other aliens from some countries for years in the future,
see
1 C. Gordon & H. Rosenfield,
Immigration Law & Procedure,
§ 1 at 1-13 (2d rev. ed. 1979).
See generally
Note, Misrepresentation and Materiality in Immigration Law — Scouring the Melting Pot, 48
Fordham L.Rev.
471, 471-473 (1980).
It was under this specially created legislation that Osidach in 1949 benefited by securing status and entry into the United States as a displaced person.
It is his status as an eligible displaced person that the Government now contests. The Government argues that, when Osidach entered this country in 1949 under the DPA, he was not an eligible displaced person as defined by the DPA and, hence, he was never legally admitted into this country, thus lacking a requirement under § 1427(aXl) of the INA.
The Government bases its assertion that Osidach was an ineligible displaced person by reference to § 2 of the DPA, 62 Stat. 1009 -1010, which incorporated by reference the definition of “refugees or displaced persons” contained within Annex I of the IRO Constitution which, in turn, contained the following exclusionary provision:
Persons who will not be the concern of the Organization.
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.
7
3. Ordinary criminals who are extraditable by treaty.
4. Persons of German ethnic origin, whether German nationals or members of German minorities in other countries, who:
(a) have been or may be transferred to Germany from other countries;
(b) have been, during the second world war, evacuated from Germany to other countries;
(c) have fled from, or into, Germany, or from their places of residence into countries other than Germany in order to avoid falling into the hands of Allied armies.
5. Persons who are in receipt of financial support and protection from their country of nationality, unless their country of nationality requests international assistance for them.
6. Persons who, since the end of hostilities in the second war:
(a) have participated in any organization having as one of its purposes the overthrow by armed force of the Government of their country of origin, being a Member of the United Nations; or the overthrow by armed force of the Government of any other Member of the United Nations, or have participated in any terrorist organization;
(b) have become leaders of movements hostile to the Government of their country of origin being a Member of the Unit
*66
ed Nations or sponsors of movements encouraging refugees not to return to their country of origin;
(c) at the time of application for assistance, are in the military or civil service of a foreign State.
62 Stat. 3051 -3052 (emphasis supplied).
See
Ex. B attached to the Plaintiff’s Pretrial Memorandum at Annex I, Part II.
The Government claims that Osidach’s affiliation with the Ukrainian police in the town of Rawa Ruska from 1942 to 1944 places him within the second category of persons defined by the above IRO constitutional provision.
See
Part II at 2(a).
In regard to the Government’s allegation of ineligibility as a displaced person under its theory of illegal admission, the Court finds the recently decided case of
Fedorenko v. United States,
- U.S. -, 101 S.Ct. 737 , 66 L.Ed.2d 686 (1981) to be controlling as to many of the legal issues presented in this case. At the same time, the Court is quick to note that it believes that the instant case poses factual and legal issues that were either not before or not decided by the
Fedorenko
Court. The resolution of these other issues by this Court will not be inconsistent or contrary to the holding in
Fedorenko
and its statutory interpretation of the DPA but, rather, will hopefully serve to build upon that decision.
In
Fedorenko ,
the Supreme Court affirmed the judgment for denaturalization by the United States Court of Appeals for the Fifth Circuit, 597 F.2d 946 (5th Cir. 1979), which had reversed the district court, 455 F.Supp. 893 (S.D.Fla.1978). In summary, the Supreme Court held that the defendant, Fedorenko, had illegally procured his citizenship under 8 U.S.C. § 1451 (a) because he willfully misrepresented a material fact to the Displaced Persons Commission in 1949 when he applied for admission to the United States as a displaced person. The Court found his conduct violative of § 10 of the DPA. Section 10 provides:
No eligible displaced person shall be admitted
into the United States unless there shall have first been a thorough investigation and written report made and prepared by such agency of the Government of the United States as the President shall designate, regarding such person’s character, history, and eligibility under this Act.
The burden of proof shall be upon the person who seeks to establish his eligibility under this Act. 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.
No eligible displaced orphan or eligible displaced person shall be admitted into the United States under the provisions of this Act except in pursuance of the regulations of the Commission, but, except as otherwise expressly provided in this Act, the administration of this Act, under the provisions of this Act and the regulations of the Commission as herein provided, shall be by the officials who administer the other immigration laws of the United States. Except as otherwise authorized in this Act, all immigration laws, including deportation laws, shall be applicable to eligible displaced orphans and eligible displaced persons who apply to be or who are admitted into the United States pursuant to this Act.
62 Stat. 1013 (emphasis supplied).
The material fact which Fedorenko misrepresented was his service as a concentration camp armed guard during WW II, which the Supreme Court found, if disclosed to the DPC, would have resulted in his being declared ineligible for an entry visa under the DPA as a displaced person.
Id.
at-, 101 S.Ct. at 750 .
In determining the materiality of Fedorenko’s factual misrepresentation, the Supreme Court did not apply the test of materiality that had been previously articulated in
Chaunt v. United States,
364 U.S. 350, 355 , 81 S.Ct. 147, 150 , 5 L.Ed.2d 120 (1960). Instead, the
Fedorenko
Court limited the holding of the
Chaunt
decision to situations involving misrepresentations in applications for
citizenship
and not to false statements provided in
visa
applications which concern
*67
initial entry into the United States.
6
Id.
-U.S. at-, 101 S.Ct. at 748 . As to the latter category of cases, the Supreme Court found in determining materiality under § 10 of the DPA that the standard was: “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.”
Id.
at-, 101 S.Ct. at 748 . The
Fedorenko
Court found that, as a matter of law, Fedorenko was ineligible for a visa under the DPA based upon § 2(b) of the DPA, which incorporated by reference the exclusionary provision of the IRO Constitution cited
supra. Id.
at -nn.3, 4,-,-n.33, 101 S.Ct. at 741 n.3, 4, 748, 750 n.3. In applying that standard of materiality, the Court accepted the district court’s findings that Fedorenko had not been personally involved in the crimes and atrocities committed against the inmates in the concentration camp at Treblinka.
Id.
at-& n.19,-& n.24, 101 5. Ct. at 744 n.19, 746 n.24. The Court did find, nevertheless, that the defendant had assisted the enemy in the persecution of civilians during WW II due to his service as an armed, uniformed and paid guard at that camp.
Id.
at-& n.34, 101 S.Ct. at 750 n.34. The Court noted that the assessment under the DPA did not hinge on the voluntariness of the person’s actions because the word “voluntary” was not contained within the specific IRO constitutional provision incorporated into the DPA.
Id.
at-& n.35, 101 S.Ct. at 751 n.35. Rather, the Court found that the focus should be “on whether particular conduct can be considered assisting in the persecution of civilians.”
Id.
at- n.34, 101 S.Ct. at 750 n.34.
But see
- U.S. --, 101 S.Ct. 760 -763 (Stevens, J., dissenting).
The
Fedorenko
Court’s findings in that regard were based only upon “the plain language and Jenkins’s [prior vice-consul administering the Displaced Persons Act] uncontradicted and unequivocal testimony” that:
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 riñe 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.
-U.S.-n.34, 101 S.Ct. 750 n.34 (emphasis supplied).
This Court believes that the case at bar presents the anticipated situation of a “more difficult line-drawing problem” of which the
Fedorenko
Court spoke, but in a slightly different manner. This Court finds that the instant case presents different factual and legal issues from those raised in the
Fedorenko
case on appeal. The crux of the difference between this case and the
Fedorenko
decision is that
Fedorenko
was based solely upon a claim under § 10 of the DPA, while this case is founded not only upon § 10 but another statutory provision of the DPA as well. That particular statutory provision, which was not addressed by the Supreme Court in Fedorenko
7
in its
*68
interpretation of the standard of materiality under the DPA nor was it raised by the Government in this case, is § 13 of the DPA, which provides:
No visas shall be issued under the provisions of this Act to
any person who is or has been a member of, or participated in, any movement
which is or has been hostile to the United States or the form of the government of the United States.
62 Stat. 1014 (emphasis supplied).
See
Ex. A attached to Plaintiff’s Pretrial Memorandum.
This Court is convinced that § 13 goes to the heart of this case and other cases based upon denaturalization claims under the DPA alleging ineligibility as a displaced person because of prior affiliation with “movements” assisting the enemy in the persecution of innocent civilians during WW II.
However, in order to understand the applicability of § 13 to this case and to additionally understand how that provision can be nevertheless consistently applied to the findings and holdings in the
Fedorenko
decision, it is imperative to examine briefly the legislative history of the section itself.
See
Appendix for a treatise regarding the legislative history of § 13.
(b)
Application of the Fedorenko Decision to § 13 of the DPA
It must be recalled that the
Fedorenko
decision was based upon an interpretation of § 10 of the DPA. The Supreme Court did not have reason to consider the implications of § 13 of the DPA in its interpretation of what constitutes a material fact warranting a finding of ineligibility under the DPA. In the context of the case before us, the plain language of the DPA indicates that §§ 10 and 13 are interrelated, in the sense that § 10 requires a misrepresentation of a material fact and § 13 serves to define in part what can constitute a material fact warranting a finding of ineligibility. Ineligibility under the DPA is not always determined only through the initiation of a § 10 claim, as in
Fedorenko ,
but can also be asserted under § 13 with or without a companion § 10 claim.
Section 13’s relationship to § 10 is clearly seen exemplified in the situation of a person appearing before the DPC for determination of eligibility status in 1949 but not being asked any questions concerning his war-time activities. In
Fedorenko ,
the defendant had been asked on two separate occasions by the DPC and the vice-consul about his war-time activities. - U.S. -,-, 101 S.Ct. 743 , 748. If a person was neither asked by interview nor by written application of his war-time activities, there would be no duty under § 10 to disclose that information. Although that fact would be material, there can be no duty to disclose where it was not asked. This is because § 10 only applied to “misrepresentations” and not to “concealments” of material facts.
Compare
8 U.S.C. § 1451 (a). A misrepresentation implies an active role by providing a false or misleading response to a direct or even an indirect question.
See U. S. v. Accardo,
113 F.Supp. 783, 785-786 (D.N.J.1953),
aff’d per curiam,
208 F.2d 632 (3d Cir.) (failure to disclose other arrests when asked constitutes concealment).
See also
3 Gordon & Rosenfield,
supra,
§ 20.4b at 20-14, 15. If the element of a passive concealment could be read into § 10, decisional authority correctly suggests that there could be no misrepresentation or concealment of a material fact when the interviewee or applicant has not been asked anything concerning that fact.
See U. S. v. Minerich,
250 F.2d 721, 730-732 (7th Cir. 1957) (no duty to disclose information not questioned about);
Cufari v. United States,
217 F.2d 404, 409 (1st Cir. 1954) (no evidence question orally asked by INS and, therefore, no duty to disclose information not requested).
See also Maisenberg v. United States,
356 U.S. 670, 672-673 , 78 S.Ct. 960, 962 , 2 L.Ed.2d 1056 (1958) (no concealment or misrepresentation where the question asked was ambiguous).
But see United States v. Palmeri, 52
F.Supp. 226, 227 (E.D.N.Y.1943).
*69
Furthermore, the legislative history of § 10 of the DPA indicates a concern only over the submission of fraudulent documents or statements in order to secure eligible displaced persons status under the IRO system. No mention is made of an affirmative duty to disclose information which was not asked for.
See
S.Rep.No. 950, 80th Cong., 2d Sess. 27 (1948); 94 Cong.Rec. 6446-6447 (1948) (remarks of Senator Wiley); 94 Cong.Rec. 6864 (1948) (remarks of Senator Revercomb); 94 Cong.Rec. 6897 (1948) (remarks of Senator Baldwin); 94 Cong.Rec. 6904 (1948) (remarks of Senator Eastland).
See also infra
at A-2, 4 n.35.
It would be fundamentally unfair to place upon a person the duty to disclose information not asked for. Otherwise, the reach of the duty would be as far and as varied as the undisclosed imagination of the interviewer concerning his belief in his mission. The concept of “fraud” cannot settle securely in
that
setting.
By contrast, under § 13, a person may be ineligible under the DPA simply because he falls within a predetermined ex-cludable category of persons,
even though
no misrepresentation of a material fact has been made by that person — that is, even when that status rests on the undisclosed truth.
Congressional history shows that there was concern about persons who were members or participants of certain types of movements,
as well
as persons securing displaced persons status by advancing false information or documents, which practice had prevailed under the pre-1948 IRO screening process.
See infra
at A-2, 4a n.35. Therefore, § 10 and § 13 were aimed at different problems but naturally were interrelated to a limited degree. Section 10 was designed to cover a misrepresentation of material facts even beyond those material facts defined by § 13. For example, a person could misrepresent (a § 10 violation) their past history of prostitution.
See
1 Gordon & Rosenfield,
supra,
§§ 1.2(b) at 2.44b. Congress was additionally concerned about this category of persons (prostitutes) gaining entry into the United States as displaced persons.
See infra
at A-3, 4b n.37. However, such person’s ineligibility under the DPA was not merely dependent upon their misrepresenting the material fact of their history of prostitution before the DPC but their ineligibility could rest on their categorical status as a prostitute alone, without the need for a § 10 misrepresentation. Section 13 set forth other examples of such categorical ineligible status under the DPA.
In
Fedorenko ,
the Supreme Court defined materiality under § 10 by examining the IRO constitutional exclusionary provision incorporated by reference under § 2(b) of the DPA. Had the Court felt the need to have § 13 and its legislative history before it, as we do now, it surely would have seen that § 13 incorporates the same IRO constitutional exclusionary provision as § 10 and plainly attempted to further define what constituted a person “assisting in the persecution” of civilians. This legislative purpose is made clear from the following excerpt from the legislative debates:
The point I make first of all is that we have joined the International Refugee Organization, which was set up by the United Nations, and through the other body, we have become a party in the support of that Organization.
That Organization has defined who are displaced persons and who are not. We will now take up their definition of who are not displaced persons.
You will understand that all through this measure, we are dealing with displaced persons.
In annex I, part 2, they say:
Persons who will not be the concern of this Organization.
I begin with (4):
Persons of German ethnic origin, whether German nationals of members of German minorities in other countries who (a) have been or may be transferred to Germany from other countries; (b) have been during the second World War evacuated from Germany to other countries; or (c) have fled from or into Germany or from their places of residence into other countries other than Germany in order to
*70
avoid falling into the hands of the Allied Armies.
There are your three definitions of these groups which the International Refugee Organization will not consider as displaced persons.
I refer again to the bill. Under subsection (c) of section 2, I read:
The term “displaced person” shall not include any person who is or has been a member of, or participated in, any movement which is or has been hostile to the United States or the form of government of the United States.
94 CongJRec. 7878 (1948) (emphasis supplied) (remarks of Rep. Graham, member of House Committee on the Judiciary and Joint Conference Committee).
See also
94 Cong.Rec. 7872-7873 (1948).
Under § 13, Congress further defined the act of assisting in the persecution of civilians as being a “member of, or participant in, a movement” that persecuted civilians. Section 13, therefore, expanded upon the somewhat vague IRO provision.
See Fedorenko, supra,
- U.S. -, 101 S.Ct. 761 (Stevens, J., dissenting).
While incorporating the IRO provision, § 13 added a limitation that was not contained within the IRO section. As indicated by the plain words of § 13, the assistance shown by participation or membership must be coupled with a movement which itself persecuted civilians. Assistance without movement affiliation was not proscribed by the 1948 version of § 13. However, when speaking of assistance by way of participation in a movement, that act of participation must, as set forth by the
Fedorenko
Court, in and of itself involve some personal activity involving persecution.
It was not until the 1950 amendments to the DPA that Congress included within the § 13 exclusion persons committing acts of persecution
without regard
to movement affiliation. The 1950 amendment to § 13 of the DPA provided as follows:
Sec. 11. Section 13 of the Displaced Persons Act of 1948 is amended to read:
“Sec. 13. No visas shall be issued under the provisions of this Act, as amended, to any person who is or has been a member of the Communist Party, or to any person who adheres to, advocates, or follows, or who has adhered to, advocated, or followed, the principles of any political or economic system or philosophy directed toward the destruction of free competitive enterprise and the revolutionary overthrow of representative governments, or to any person who is or has been a member of any organization which has been designated by the Attorney General of the United States as a Communist organization, or to any person who is or has been a member of or participated in any movement which is or has been hostile to the United States or the form of government of the United States,
or to any person who advocated or assisted in the persecution of any person because of race, religion, or national origin,
or to any person who has voluntarily borne arms against the United States during World War II. Upon arrival at the port of entry in the United States, every person eighteen years of age or older authorized to be admitted under this Act, shall take and subscribe an oath or affirmation that he is not and has never been a member of any organization or movement named in this section, and shall be liable to prosecution for perjury if such oath or affirmation is willfully false. If any person not entitled to a visa under this section shall nevertheless gain admission to this country, in addition to the penalty above-mentioned, 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.”
Act of June 16, 1950, Pub.L.No. 81-555, § 11, 64 Stat. 219 , 227 (emphasis supplied).
Significantly, the “member of or particip[ant] in any movement” language remained in the Act; but a further category of persons was added, as indicated by the emphasized language above. Although that addition is only minimally discussed in the congressional reports and debates antecedent to the 1950 amendments to the DPA,
*71
the Court has found a very helpful reference in the hearings before the Subcommittee No. 1 of the Committee on the Judiciary of the House on H.R. 1344, 81st Cong., 1st Sess. (1949), during which Mr. Ugo Carusi, the chairman of the DPC, was asked about the proposed amendment to § 13. He stated:
Mr. Carusi. As a practical matter, it causes us no great difficulty, but if I went in and told you why it ought to be eliminated, we would get into a discussion whieh you would say I should not enter into, it is policy. I am not entering into that.
Now, I think I have said all I need to say on the inland transportation. That explains itself.
There is a provision which merely adds a few lines to section 13. That is the line that says the people who are participants in movements hostile to the United States should be excluded. We all know what that means, but there is some question as to whether or not a person might be active and still not be a member of a movement that is hostile, so just to button that up a little more tightly we add the words that if he participated in the persecution of anyone for race, religion, or nationality reasons, that he shall be excluded, and then we will not have to prove he is a member of any outfit, we can show what his conduct was and bar him by that.
I think that explains itself.
Then there is the provision which relates to section 12, which relates to ethnic Germans and you remember making the German quota available to that group. Our only point on that is simply this and it was heightened by a colloquy in the Senate the other day in which one Senator was insisting the Displaced Persons -Commission, particularly Mr. Carusi, was flouting the will of Congress by not processing these ethnic German cases. The fact is, it is none of our business. The law does not authorize us to. There is that misunderstanding because it happens to be in the Displaced Persons Act. The amendment as proposed says move it over into its right place so that misunderstanding won’t exist. We get a lot of correspondence on cases like that. It slows us down. As I say, in Congress, there was the suggestion that we were violating the law by not processing them. You gentlemen can tell me whether we should.
We do not go into the merits of that at all. We just say put it where it belongs in the code book.
Hearings at 75.
See also
Hearings at 3 (containing amendment).
See also
S.Rep.No. 1237, 81st Cong., 2d Sess. 6 (1950),
reprinted in
[1950] U.S.Code Cong. Serv. 2513, 2519; Conf.Rep.No. 2187, 81st Cong., 2d Sess. (1950),
reprinted in
[1950] U.S.Code Cong.Serv. 2520, 2524; H.Rep.No. 581, 81st Cong., 2d Sess. 27 (1949).
See generally
2A Sutherland,
Statutes and Statutory Construction,
§ 48.10 at 209, § 48.16 at 222 (4th ed. 1972).
The Supreme Court’s
Fedorenko
interpretation of materiality under the DPA is totally consistent with § 13 because it falls, albeit unintentionally, squarely on the “participant” prong of § 13. In that regard, the Supreme Court stated that:
[B]ut 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.
-U.S.-n.34, 101 S.Ct. 750 n.34 (emphasis in original).
*72
That interpretive language tells us the standard to be applied when determining whether a person is to be constituted a “participant” within the language of § 13. It is additionally helpful in determining what constitutes “persecution,” whether it be by a participant
8
of a movement, or a member of a movement. The Supreme Court in
Fedorenko
was, in effect, tracking the interpretive process that Congress had previously used in 1948 when examining that same IRO exclusionary provision to determine what assisting in the persecution of civilians was to mean. The Supreme Court in
Fedorenko
did not find it necessary to extend its interpretation, as Congress did, to also define “assisting” to mean membership in a movement that persecuted civilians — quite aside from the concept of personal participation. This is shown in the legislative history of § 13 where Congress spoke both in terms of personal participation in acts of persecution and in terms of mere membership without personal participation.
See infra
at 73-75.
In applying § 13 to the
Fedorenko
conduct, it is clear defendant Fedorenko clearly exemplified a person who assisted in the persecution of civilians by being a participant in a movement. His participation constituted his service as an armed, uniformed and paid guard at a concentration camp where he shot at fleeing inmates. His actions, which the Supreme Court found to be acts of persecution, were as a participant in a movement which itself persecuted civilians. That movement was the agency that conceived, constructed, managed and controlled the concentration camp enterprise at Treblinka that had as its policy — by the most brutal means imaginable — the persecution of civilians, and to which agency Fedorenko willingly accepted the status of a loyal, obedient subordinate for pay.
This case
sub judice
presents somewhat of a prologue to the
Fedorenko
decision, because it concerns a person who was both a personal participant under § 13 (like Fedorenko)
and
a willing member of a movement which assisted the Germans in the persecution of civilians during WW II in the town of Rawa Ruska. The latter constituting an issue which the
Fedorenko
Court did not decide. This Court’s decision, therefore, is that defendant Osidach was ineligible under both prongs of § 13 as a displaced person making his 1949 entry into this country invalid and illegal.
(c)
Membership Under § 13 of the DPA
The Court holds that, under § 13 of the DPA, mere willing membership — without proof of personal participation in acts of persecution — in a movement that persecuted civilians is sufficient to warrant a finding of ineligibility as a displaced person. The Court bases that holding upon three separate grounds: (1) the plain language of the statute; (2) the legislative history underlying the statute; and, (3) the administrative interpretation of the IRO Constitution incorporated by reference into the DPA, as found in the
Fedorenko
decision.
The Court also finds that § 13, as so construed, is not violative of any constitutional provision.
*73
First, it is clear from the plain meaning of the words of the statute that Congress intended that membership be sufficient under § 13. That section provides: “...
any
person who is or has been a
member
of,
or participant
in, any movement. . .” (emphasis supplied). The statutory language contains no qualification as to the degree or quality of that membership, or whether it be passive or active.
9
Fedorenko
tells us in regard to the issue of whether voluntariness was required under the IRO exclusionary provision:
Under traditional principles of statutory construction, the deliberate omission of the word “voluntary” from § 2(a) compels the conclusion that the statute made
all
those who assisted in the persecution of civilians ineligible for visas. See
National Railroad Passenger Corp. v. National Assn, of Railroad Passengers,
414 U.S. 453,458 [ 94 S.Ct. 690, 693 , 38 L.Ed.2d 646 ] (1974);
Botany Worsted Mills v. United States,
278 U.S. 282, 289 [ 49 S.Ct. 129, 131 , 73 L.Ed. 379 ] (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.”
Detroit Trust Co. v. The Barium,
293 U.S. 21, 38 [ 55 S.Ct. 31, 35 , 79 L.Ed. 176 ] (1934). See
Federal Trade Comm’n v. Sun Oil Co.,
371 U.S. 505, 514-515 [ 83 S.Ct. 358, 364 , 9 L.Ed.2d 466 ] (1963).
-U.S.-, 101 S.Ct. 750 .
See also
— U.S.-n.35, 101 S.Ct. 751 n.35.
Second, the statute is phrased in the disjunctive such that a person who is or has been “a member of,
or
participant in, any movement...” (emphasis supplied) is ineligible under the DPA. The use of the conjunctive “or” indicates that two separate categories of persons were intended to be covered. Those categories are: those who were
members
in a movement and those who were
participants
in a movement but who lacked membership status. As stated previously, it is the second (participant) prong of § 13 that speaks to the degree of personal activity, and not the first (membership) prong. Any other construction would render the phrase “member” meaningless, because persons personally “participating” in a movement would include by definition both active members and nonmember participants. By phrasing the statute in the manner it did, Congress was in effect making the initial presumption that mere willing members in movements were responsible for the persecutive actions of a movement to which they belonged, without additional proof of personal participation in those acts. The addition of the participant-prong of § 13 broadened the scope of the provision tó include persons who were not members — and, hence, held automatically responsible — but had committed personal acts in affiliation with the movement which itself also committed similar actions.
This statutory construction is further supported by the legislative history of the DPA of 1948. H.R.Rep.No. 1854, as previously noted, when discussing § 2(c) of the House bill, the predecessor to § 13, clearly stated that:
The committee wishes to emphasize at this point that several specific provisions
*74
of H.R. 6369 are designed to enable consular officers abroad and immigration authorities in this country to prevent from entering the United States any and all undesirable elements, such as persons with bad moral records, persons afflicted with diseases making them inadmissible, or persons whose presence in this country may endanger its public safety — Communists and
members or former members of movements or groups which during the war rendered and comfort to the enemies of the United States.
It is the consensus of the committee that in the administration of the act those safety measures should be strictly adhered to and meticulously enforced.
H.R.Rep.No. 1854, 80th Cong., 2d Sess. 15 (1948) (emphasis supplied).
See also
94 Cong.Rec. 7740 (1948) (remarks of Rep. Fellows).
During the legislative debates, several references were made that serve to define the terms “participant” and “member” in § 13. In regard to the meaning of the term “participant,” references were used that explain its meaning as including “people who.. .assist,” 94 Cong.Rec. 7872 (1948); “Nazi fifth columnists,” 94 Cong.Rec. 9019-9020 (1948); “follows of Hitler” and “Nazi follows,” 94 Cong.Rec. 7873-7874 (1948); “gauleiters” and “quislings,” 94 Cong.Rec. 7873, 9019-9020 (1948); “adherents of nazism,” “agents of Hitler” and “facilitated the Reichswehr blitz,” 94 Cong.Rec. 7873 (1948); and, “persons who supported Hitler,” 94 Cong.Rec. 9022 (1948). Without more, these references might be construed to mean that only participants, which would include only active members, were intended to be included under § 13. However, the repeated references to membership alone, without qualifying phraseology, convinces the Court that willing membership status alone was intended to be enough. Those references include: “members of the celebrated fifth column,” 94 Cong.Rec. 7876 (1948); “members of movements which during the war rendered aid and comfort to our enemies,” 94 Cong.Rec. 7740 (1948); “agents and others belonging to subversive organizations,” 94 Cong.Rec. 6865 (1948); “members of subversive organizations,” 94 Cong.Rec. 6865 (1948); “persons. . . affiliated with subversive groups,” 94 Cong.Rec. 6190 (1948).
The only qualifying restriction as to willing membership does not go to the type or personal degree of membership but, rather, to the type of movement in which a person is a member. As noted, Congress did not want to classify all members of the ethnic Volksdeutsche group excludable merely because some Volksdeutsche, as members of smaller Volksdeutsche-composed groups, had rendered aid and comfort to the enemy.
See infra
at 110 to 112. That type of reasoning would imply that Congress intended narrower lines to be drawn as to movement composition in general. For example, being a Ukrainian, without more, would not be enough to be excluded under § 13, even though it might be proven that some Ukrainians in Ukrainian-composed groups had rendered aid and comfort to the enemy. The Court believes that it is also within the spirit of § 13 that Congress did not intend that mere willing membership in the Ukrainian police would entail individual responsibility and, hence, exclusion under § 13 for the actions of all Ukrainian police throughout Galacia during WW II. The Court believes movement classification was intended to be drawn in narrower circles but not so narrow as to require personal participation in acts of persecution under the membership-prong of § 13.
The statutory construction of mere membership is further supported by the notion that § 13 was not merely designed to cover collaborating war movements but communist organizations as well. The grave concern many legislators exhibited in 1948 over the threat of communist infiltration into displaced persons camps and entry into the United States as displaced persons is clearly shown throughout the legislative reports and debates.
See infra
at 107 to 108, 109 n.36. Therefore, Congress’ intent to wield a broad brush in dealing with the communist problem under § 13 had the effect of making mere membership in a communist organization sufficient, without
*75
more, to constitute exclusion as an eligible displaced person.
The membership-prong of § 13 did not differentiate between membership in a communist organization and membership in a movement rendering aid and comfort to the enemy during WW II. Therefore, the requirement of mere membership, without more, under § 13, thought necessary by Congress in 1948 to stop the threat of communism, is equally applicable as a matter of statutory construction to membership in other movements additionally covered under § 13.
Finally, the DPA was enacted by Congress to assist many different types of displaced persons. In particular, its passage was aimed at helping those persons who had been persecuted by the enemy for their religious, nationalistic and ethnic beliefs during WW II. Section 2(c)(1) of the DPA provides that eligible displaced persons means anyone who “was a victim of persecution by the Nazi government and was detained in, or was obliged to flee from such persecution....” This legislative concern was repeatedly and forcefully asserted throughout the committee reports and legislative debates.
10
See
S.Rep.No. 950, 80th Cong., 2d Sess. 8-9 (1948).
Therefore, the Court finds that it would be totally contradictory for Congress, on the one hand, to assist those who were truly victims of acts of persecution and then, on the other hand, afford those same benefits under the DPA to those persons who were willing members of movements who assisted the enemy in persecuting those same victims.
See
94 Cong.Rec. 9019-9020 (remarks of Senator Pepper).
In conclusion, the Court is convinced that in 1948 Congress very much intended for persons who were mere willing members in movements which had persecuted civilians to be excludable under § 13 of the DPA.
Third, in
Fedorenko ,
the Supreme Court, as previously discussed, held that the IRO exclusionary provision had been incorporated into the DPA by § 2(b). This Court has additionally found that provision was also incorporated into the DPA by § 13 and further defined in the process.
Therefore, the administrative interpretation that had been afforded that IRO provision should be afforded some weight by this Court in the same manner that the
Fedor
*76
enko
Court afforded weight to the particular expert testimony in that case.
See
2A Sutherland,
supra,
§ 49.05 at 238-239; Nathanson, Administrative Discretion in the Interpretation of Statutes, 3
Vanderbilt L.Rev.
470 (1950).
At trial, the Government introduced into evidence the deposition testimony of Daniel Segat (“Segat”), who from 1948 to 1952 was employed by the IRO first as an eligibility officer determining the eligibility status of displaced persons under the IRO Constitution [dep. at 5-7] and later as a member of the four to five member eligibility review board of the IRO reviewing, lower-level eligibility decisions numbering in the hundreds. Finally, Segat became the chief eligibility officer for the entire IRO [dep. at 14-15],
Segat was qualified as an expert in the administrative interpretation of the IRO Constitution [N.T. 9-5].
The Court finds his testimony to be credible, consistent and unequivocal and will, therefore, be afforded significant weight.
11
The Court found Segat’s employment experience with the IRO to have resulted in his being personally exposed to those persons and movements upon which he based his expert testimony [dep. at 8-9, 13, 30, 76]. He testified that the provisions of the IRO Constitution were uniformly applied by the IRO [dep. 15-18].
Segat unequivocally testified under direct and cross-examination to the following:
A. In general terms, the examination was to see whether the refugee was what we call a bonafide [sic] refugee. In other words, anybody who collaborated with or helped in any way or in any fashion the Germans was automatically excluded.
* * * * * *
A. The focus and concern of these interviews was to see whether the refugee was in any way, in any shape or form connected with organizations that helped Germans, either militarily or to persecute civilian populations. That was the focus. * * * * * *
A. The majority were cases who were denied eligibility [on appeal] because of the fact that they belonged to various organizations that helped Germans.
s}c Jfs sft * sfc
Q. Do you recall what part of the IRO constitution these principles were stated in?
A. If I recall exactly, in Part II of the annex to the constitution.
Q. In general, what was that standard stated in the annex?
A. The standard stated in the annex was that anyone who gave assistance to the enemy, either by serving in the enemy forces or by serving in auxiliary forces or in military or civilian forces supervised by the Germans were prima facie ineligible.
Q. In practice, in terms of dealing with particular organizations or memberships, how did you interpret that principle?
A. This principle was interpreted strictly. Anybody who belonged to any of those organizations was deemed ineligible and the burden of proof was on him to prove with witnesses or some other way that he was indeed not involved.
Q. What kinds of organizations are you referring to?
A. I am referring to organizations that were created or sponsored by the Germans.
Q. What would be examples of some of these organizations?
*77
A. They were organizations of Latvians who collaborated with the Germans, of Lithuanians, Ukrainians, Russians. There they were both people in uniform or out of uniform. Some of them had simply bands to indicate that they belonged to some such organization.
Q. If it was discovered that an applicant was a member of one of these organizations, what would happen to him in terms of eligibility process?
A. He would be declared ineligible.
Q. Did you yourself review such cases?
A. Yes.
Q. What findings did you make when you determined that applicants were members of such organizations?
A. I declared them ineligible.
Q. In making a finding of ineligibility in such cases, what kind of evidence was required?
A. The evidence, for example, admission of the refugee, if he simply admitted that he was a member of any of these organizations, if we found out from national committees that they knew of his membership in such an organization. A national committee was a committee of refugees that cooperated with IRO. We had outside information from outside sources about their membership.
Q. How uniformly were the standards on eligibility with regard to these organizations applied by the IRO?
******
A. The standards were applied uniformly. As the chief eligibility officer, it was my job to see to it they were followed uniformly.
******
Q. Based on your experience in the IRO, first as a field eligibility officer and then as a member of the review board and then as chief eligibility officer of the IRO, if it were learned that an applicant for eligibility status was a member of the Ukrainian police during the German occupation, what determination would have been reached as to his eligibility for IRO assistance?
A. Ineligible.
Q. That would have been the determination?
A. Right.
Q. If it had been learned that an applicant was an officer of rank with the Ukrainian police, again based on your experience, what determination would have been reached?
A. Ineligible.
Q. Based on your knowledge of practices throughout the IRO, how likely is it that an IRO field officer in some other office other than the one that you served would reach a different determination on those facts?
******
A. Very unlikely.
******
A. At what time? During the German occupation?
Q. Yes.
A. Yes.
******
Q. What you are telling me is that in any country occupied by the Germans from the time that they started their policy of aggression that any official in any police force in any of those occupied countries would be. declared ineligible by the IRO?
A. That is correct.
Q. So that not one person who is a member of the police force in any of the occupied countries could be declared eligible by the IRO, is that correct?
A. That is correct.
Segat dep. at 7, 8-9, 13, 15-17, 20-22.
Furthermore, Segat testified that he had specifically been exposed to cases of refugees stating that they were “members of the Ukrainian police” and, of those approximately 10 to 20 cases of which he had knowledge,
all
were denied eligibility status. In some, of these cases, Segat testified that he had personally conducted the initial interviews and denied them eligibility status as a displaced person under the IRO
*78
Constitution [dep. at 30]. He also stated that it made no difference if the person was an officer or an enlisted person, as long as they were a member of the particular organization found to have assisted the Germans in persecuting civilians [dep. at 31-32]. Finally, he testified that if a person, as a member, served in the capacity of an interpreter that he was denied eligibility based on that employment capacity alone [dep. at 32].
Therefore, from the expert testimony of Segat,' it is clear that membership alone, without proof of personal participation in an organization assisting in the persecution of civilians, was sufficient under the IRO Constitution, which was incorporated into the DPA, to warrant denial of displaced persons status. His administrative interpretation is further supportive of the plain language of § 13 of the DPA and the legislative history of that Act and should, therefore, be afforded significant weight.
Before concluding, the Court notes that the Government also presented at trial the expert testimony of Ralph Fratske (“Fratske”), who had served as a vice-consul visa-issuing officer assigned in 1949 to the displaced persons program in Germany under the DPA [N.T. 7-55]. He testified to the administrative interpretation and usage of the DPA as it was applied in determining eligibility of displaced persons. The Court found his testimony regarding ineligibility status under the DPA to be of limited assistance. Fratske testified that, if an applicant disclosed information concerning their war-time activities, he would refer the case for further investigation by the investigatory branch of the DPC. He stated that those types of war-time activities warranting referral, as posed in the following hypothetical question that was asked of him, to include:
Q. In the oral interview which you have described, the applicant discloses to you that he had been a police officer of some senior rank in the Ukrainian police from 1941 following the German occupation with no prior police experience until the German evacuation of 1944, and those facts were nowhere in the documents reflected?
A. I would have referred it.
N.T. 7-69.
Although his testimony is totally consistent with the plain language of the statute, the legislative history of § 13 and the testimony of Daniel Segat from the IRO, it has limited evidentiary value. That is, because he was not asked whether the DPC — under the administrative interpretation and usage he, as an expert, was familiar with — would have denied such a person, as posed in the hypothetical question, displaced persons status
after
the investigatory results had confirmed the stated factual allegations. This is especially important because Fratske stated that not all cases that were referred for further investigation were automatically denied eligibility later [N.T. 7-78].
See Fedorenko,
supra,-U.S.-n.15, 101 S.Ct. 744 n.15.
Therefore, the testimony of Fratske does not serve to contradict or undermine the other interpretive analyses this Court has utilized to determine the interpretation to be afforded to § 13; nor does it serve to any large degree to support or aid those analyses, since it falls short in its evidentiary value.
12
In conclusion, the Court finds that the plain language of § 13, supported by the legislative history of the DPA and the uncontradicted and unequivocal testimony of IRO expert Segat “leave no room for doubt.”
Fedorenko ,
supra,-U.S.-, 101 S.Ct. 750 , that mere willing membership without proof of personal acts of persecu
*79
tion in a movement which assisted the Germans in the persecution of civilians during WW II was sufficient under § 13 of the DPA to warrant a denial of eligibility as a displaced person.
(d)
Constitutional Limitations
Before applying the above membership standard under § 13 to the facts of the instant case, one final question must be addressed — that is, if it was the intent of Congress in 1948 in enacting § 13 of the DPA to preclude those persons from being eligible displaced persons who were willing members of movements which persecuted civilians during WW II without the necessity of showing that those persons were active participating members in the actions of those movements, does § 13 then violate the due process right of freedom of association guaranteed under the Constitution? The Court finds that it does not.
The Court is fully cognizant of the existing line of judicial authority which states that mere membership, without more, does not hold a member responsible for the actions of an organization to which he or she belongs. That conclusion was reached by the United States Supreme Court in a series of decisions in the 1940’s and 1950’s involving the denaturalization of persons claimed to be communists and American Nazi Party members under differing statutory provisions than those present here. Initially, the Court held, in
Schneiderman v. United States,
320 U.S. 118 , 63 S.Ct. 1333 , 87 L.Ed. 1796 (1943), involving the denaturalization of a member of the American Communist Party, that denaturalization was not warranted because:
Apart from his membership in the League and the Party, the record is barren of any conduct or statement on petitioner’s part which indicates in the slightest that he believed in and advocated the employment of force and violence, instead of peaceful persuasion, as a means of attaining political ends. To find that he so believed and advocated it is necessary, therefore, to find that such was a principle of the organizations to which he belonged and then impute that principle to him on the basis of his activity in those organizations and his statement that he subscribed to their principles.
The Government frankly concedes that “it is normally true... that it is unsound to impute to an organization the views expressed in the writings of all its members, or to impute such writings to each member ...” But the Government contends, however, that it is proper to impute to petitioner certain excerpts from the documents in evidence upon which it particularly relies to show that advocacy of force and violence was a principle of the Communist Party of the United States in 1927, because those documents were official publications carefully supervised by the Party, because of the Party’s notorious discipline over its members, and
because petitioner was not a mere “rank and file or accidental member of the Party,” but “an intelligent and educated individual” who “became a leader of these organizations as an intellectual revolutionary.”
******
In the first place this phase of the Government’s case is subject to the admitted infirmities of proof by imputation.
The difficulties of this method of proof are here increased by the fact that there is, unfortunately, no absolutely accurate test of what a political party’s principles are. Political writings are often over-exaggerated polemics bearing the imprint of the period and the place in which written. Philosophies cannot generally be studied
in vacuo.
Meaning may be wholly distorted by lifting sentences out of context, instead of construing them as part of an organic whole.
Every utterance of party leaders is not taken as party gospel.. ..
320 U.S. at 146-147, 154 , 63 S.Ct. at 1346-1347,135 (footnotes omitted) (emphasis supplied).
See also Baumgartner v. United States,
322 U.S. 665, 677 , 64 S.Ct. 1240, 1246 , 88 L.Ed. 1525 (1944) (Frankfurter, J.) (attendance at a Nazi Party meeting was not enough to show association with that
*80
group for the systematic agitation of Nazi views).
Later, in
Knauer v. United States,
328 U.S. 654 , 66 S.Ct. 1304 , 90 L.Ed. 1500 (1946), Justice Douglas, writing for the majority of the Court in a denaturalization case involving an American Nazi Party member, held that, although denaturalization was warranted:
The District Court properly ruled
that membership in the Bund was not in itself sufficient to prove fraud which would warrant revocation of a decree of naturalization. Otherwise, guilt would rest on implication, contrary to the rule of the Schneiderman and Baumgartner cases.
But we have here much more than that. We have a clear course of conduct, of which membership in the Bund was a manifestation, designed to promote the Nazi cause in this country. This is not a case of an underling caught up in the enthusiasm of a movement, driven by ties of blood and old associations to extreme attitudes, and perhaps unaware of the conflict of allegiance implicit in his actions. Knauer is an astute person. He is a leader — the dominating figure in the cause he sponsored, a leading voice in the councils of the Bund, the spokesman in the program for systematic agitation of Nazi views. His activities portray a shrewd, calculating, and vigilant promotion of an alien cause. The conclusion seems to us plain that when Knauer forswore allegiance to Hitler and the German Reich he swore falsely.
328 U.S. at 669 , 66 S.Ct. at 1312 (footnotes omitted) (emphasis supplied).
See also Aptheker v. Secretary of State,
378 U.S. 500, 509-514 , 84 S.Ct. 1659, 1665-1667 , 12 L.Ed.2d 992 (1964) (holding that § 6 of the Subversive Activities Control Act of 1950, 64 Stat. 993 , was unconstitutional on its face because it made application or use of a passport by a member of the Communist Party a felony based on membership alone “without more,” “the sole criteria,” “irrelevant [of] the member’s degree of activity in the organization and his commitment to its purposes” a disqualification for obtaining a passport);
Nowak v. United States,
356 U.S. 660, 665-668 , 78 S.Ct. 955, 958-960 , 2 L.Ed.2d 1048 (1958) (“the record shows at best from the Government’s standpoint that Nowak was an active member and functionary of the Communist Party. But this proof does not suffice to make out the Government’s case, for Congress in the Nationality Act of 1940 did not make membership or holding office in the Communist Party a ground for loss of citizenship”);
Yates v. United States,
354 U.S. 298, 331, 333 , 77 S.Ct. 1064, 1083, 1084 , 1 L.Ed.2d 1356 (1957) (“mere membership or the holding of office in Communist party” was not sufficient without more, which would include the showing of “overt acts,” to uphold a Smith Act prosecution).
In the instant case, the Court is faced with a statutory provision of a much different náture. Its application concerns the determination of whether an
alien’s
initial entrance into this country was legal under federally enacted laws of immigration. Section 13 is not being applied as in the above judicial decisions to determine whether an already determined
legal resident
of the United States can be deprived of his citizenship status after so procuring it as a legal resident. Here, the Court is addressing a more basic issue — that being whether citizenship can be revoked on the theory of illegal procurement under § 1451(a) when the initial entry of an
alien
into this country is being challenged as constituting an illegal admission.
Congress has imposed certain terms and conditions for securing valid citizenship. One requirement is that an applicant for citizenship has been a legal resident prior to application for at least five years. 8 U.S.C. § 1429 .
See also
8 U.S.C. § 1427 (a). In turn, to be a legal resident, a person must have first been a legal entrant into this country, which requires that they had a valid unexpired immigration visa at the time of entry.
See Fedorenko,
supra,U.S.-, 101 S.Ct. 752 . Under the DPA, § 13 stated that no visas should be provided to certain types of persons. Therefore, visas later found to have been issued to such persons are retroactively invalid in the
*81
same way that visas secured by misrepresentation of a material fact are also invalid.
See Fedorenko,
supra,-U.S. -, 101 S.Ct. 752 . If under § 13 the visa was invalid, then that person’s entry into this country under the DPA was illegal and, hence, their later grant of citizenship would be illegally procured because they were not a lawful resident of this country.
Therefore, in the instant case, this Court is determining whether a person was a legal resident which is based on the initial determination of whether they were legally admitted to this country through a valid visa under the DPA in light of § 13. As such, this case is addressing in part the broader issue, in the first instance, of the rights of aliens under § 13 of the DPA to secure entry into this country and not the rights of legal residents in having their citizenship revoked. In that procedural and substantive posture, the following reaffirming statement of the Court in
Fedorenko
is applicable:
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.
-U.S.-, 101 S.Ct. 753 ,
quoting U. S. v. Ginsberg,
243 U.S. 472, 474-475 , 37 S.Ct. 422, 425 , 61 L.Ed. 853 (1917).
13
The constitutionality of § 13 of the DPA goes to the question of the rights of aliens under the immigration laws to secure entry into this country and, as such, concerns Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress had forbidden.”
Boutilier v. Immigration and Naturalization Service,
387 U.S. 118, 123 , 87 S.Ct. 1563, 1566 , 18 L.Ed.2d 661 (1967). In that regard, the Supreme Court in
Mathews v. Diaz,
426 U.S. 67 , 96 S.Ct. 1883 , 48 L.Ed.2d 478 (1976), stated: “Congress regularly makes rules that would be unacceptable if applied to citizens,” 426 U.S. at 80 , 96 S.Ct. at 1891 , or, in a similar vein, to legal residents of this country. In the instant ease, we are dealing with a power, “[i]n accord with ancient principles of the international law of nation-states . . .. ”
Kleindienst v. Mandel,
408 U.S. 753, 765 , 92 S.Ct. 2576, 2582 , 33 L.Ed.2d 683 (1972). The most recent pronouncement by the Supreme Court in this area serves as a continued reaffirmation of the limited scope of judicial review that exists when reviewing immigration legislation:
At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that “over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens.
Oceanic Navigation Co. v. Stranahan,
214 U.S. 320, 329 [ 29 S.Ct. 671, 672 , 53 L.Ed. 1013 ] (1909); accord,
Kleindienst v. Mandel,
408 U.S. 753, 766 [ 92 S.Ct. 2576, 2583 , 33 L.Ed.2d 683 ] (1972). Our cases “have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”
Shaughnessy v. Mezei,
345 U.S. 206, 210 [ 73 S.Ct. 625, 628 , 97 L.Ed. 956 ] (1953); see, e.
g., Harisiades v. Shaughnessy,
342 U.S. 580 [ 72 S.Ct. 512 , 96 L.Ed. 586 ] (1952);
Lem Moon Sing v. United States,
158 U.S. 538 [ 15 S.Ct. 967 , 39 L.Ed. 1082 ] (1895);
Fong Yue Ting v. United States,
149 U.S. 698 [ 13 S.Ct. 1016 , 37 L.Ed. 905 ] (1893);
The Chinese Exclusion Case,
130 U.S. 581 [ 9 S.Ct. 623 , 32 L.Ed. 1068 ] (1889). Our recent decisions have not departed from this long-established rule. Just last Term, for example, the Court had occa
*82
sion to note that “the power over aliens is of a political character and therefore subject only to narrow judicial review.”
Hampton v. Mow Sun Wong,
426 U.S. 88 , 101 n.21 [ 96 S.Ct. 1895 , 48 L.Ed.2d 495 ] (1976), citing
Fong Yue Ting v. United States, supra
[149 U.S.] at 713 [ 13 S.Ct. at 1022 ;] accord,
Mathews v. Diaz,
426 U.S. 67, 81-82 [ 96 S.Ct. 1883, 1892 , 48 L.Ed.2d 478 ] (1976).
Fiallo v. Bell,
430 U.S. 787, 792 , 97 S.Ct. 1473, 1477 , 52 L.Ed.2d 50 (1977).
The constitutional challenges to immigration laws restricting the entry of certain types and classes of aliens have been brought in a variety of constitutional contexts and have been repeatedly upheld by the Supreme Court and other lower courts.
See
1 Gordon & Rosenfield,
supra,
at § 2.2a.
Involving a challenge based upon the due process clause, particularly relevant to the case at bar, Justice Frankfurter, writing for the Court in
Galvan v. Press,
347 U.S. 522 , 74 S.Ct. 737 , 98 L.Ed. 911 (1954), stated:
But the slate is not clean. As to the extent of the power of Congress under review, there is not merely “a page of history”... but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process.... But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. ...
We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens....
347 U.S. 531 -532, 74 S.Ct. at 742-743 .
In
Fiallo, supra,
the Court stated in regard to the
Galvan
decision: “We are no more inclined to reconsider this line of cases today than we were five years ago when we decided
Kleindienst
v.
Mandel .
...” 430 U.S. at 793 n.4, 97 S.Ct. at 1478 n.4.
The judicial reasoning that has been advanced for this limited scope of judicial review has been stated as:
We are dealing here with an exercise of the Nation’s sovereign power to admit or exclude foreigners
in accordance with perceived national interests.
Although few, if any, countries have been as generous as the United States in extending the privilege to immigrate, or in providing sanctuary to the oppressed, limits and classifications as to who shall be admitted are traditional and necessary elements of legislation in this area.
Fiallo, supra,
430 U.S. at 795 n.6, 97 S.Ct. at 1479 n.6 (emphasis supplied).
See also Fiallo, supra,
at 798-799, 97 S.Ct. at 1481 .
In an earlier decision, the Supreme Court in
Mathews v. Diaz, supra,
further stated:
Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of
classifications must be defined in the light of changing political and economic circumstances,
such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary .... The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.
426 U.S. at 81-82, 96 S.Ct. at 1892 (emphasis supplied), cited with approval in
Fiallo, supra,
430 U.S. at 796 , 97 S.Ct. at 1480 .
See also Harisiades v. Shaughnessy,
342 U.S. 580, 588-589 , 72 S.Ct. 512, 518-519 , 96 L.Ed. 586 (1952).
In the instant action, this Court has undertaken the only “limited judicial review,”
Fiallo, supra,
430 U.S. at 795 -796 n.6, 97 S.Ct. at 1479 -1480 n.6, that has until now been defined by the United States Supreme Court — that being to determine exactly what Congress intended to be the scope and application of § 13 of the DP A.
See Fiallo,
*83
supra,
430 U.S. at 797 n.7, 97 S.Ct. at 1480 n.7. We have thoroughly and carefully examined the reasons, policies and underlying concerns expressed by Congress in 1948 after it had undertaken a first-hand investigation of the displaced persons problem in Europe, had rigorous committee hearings and meetings, as well as extensive and often-heated floor debate. It was as a direct result of this democratic process that the compromise of politics was reached and § 13 became codified. This Court cannot and should not attempt to reconstruct the postwar mentality of Congress, and presumably the American people whom they represent, now in 1981 and substitute its own political or moral judgment for that of Congress. The “inevitable process of ‘line drawing,’ ”
Fiallo, supra,
430 U.S. at 795 n.6, 97 S.Ct. at 1479 n.6, has already been undertaken by Congress by making willing membership, without more, sufficient under § 13 to warrant the denial of entry into this country as a displaced person. The Court has found that § 13 was intended as such and was within the power of Congress to so enact, and this judicial body will not disturb that decision by turning back the hands of time and engage in legislative second-guessing.
(2)
Osidach’s Ineligibility as a Displaced Person
Based upon the above membership standard of § 13 of the DPA, the Court must now determine, under the applicable burden of proof, that (1) the Ukrainian police in the town of Rawa Ruska during WW II constituted a movement that assisted the Germans in the persecution of innocent civilians; and, (2) if it was, that Osidach was a willing member of that movement during the relevant periods in question.
(a)
Bole of the Ukrainian Police Throughout Galacia From 1941 to 1945
The Government presented the testimony of Dr. Raul Hilberg (“Hilberg”) at trial, who was qualified as an expert in the subject of the Holocaust
14
upon which his book was based, which was introduced into evidence as Ex. P-1 [N.T. 1-84]. Hilberg testified that, based upon his expert opinion, formulated after years of research and the review of thousands of documents located in various depositories throughout the world, including the National Archives, during the German occupation during WW II of the western Ukraine, or Galacia, extensive use was made by the Germans of other indigenous forces in order to effectively accomplish their goals of the concentration and the eventual extermination of the Jewish population in that area. Hilberg testified as follows as to how this was done:
Inasmuch as the Jewish population adjacent to the starting off line was very heavy, most were not killed — repeat—not killed — by these Einsatzgruppen. These stayed behind in very large pockets. It is therefore to be understood that after the occupation of those territories which were initially conquered, that is to say, the Eastern part of pre-war Poland, the German order police as well as the security police spilled over, that is, thinned out, since there wasn’t enough German police to be brought in from Germany itself and establish itself in these new territories. However, in that part of what we have called here the Western Ukraine, but which the Germans called Galacia, the personnel utilized was Ukrainian.
This Ukrainian police was placed under the order police. Just a[s] Polish police was placed under the German order police as an integral unit of stationary personnel.
In addition, not perhaps completely relevant but possibly of interest, Ukrainians were also utilized in units of so-called battalions employed in combat, deployed in death camps, deployed at ghettos.
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They took part, for example, in the Warsaw ghetto battle of 1943.
N.T. 1-93 to 94.
See also
N.T. 1-105.
One of those indigenous forces utilized by the Germans in Galacia was the Ukrainian police. Hilberg stated that they were used to carry out deportations of Jews throughout the area and other forms of anti-Jewish policies [N.T. 1-94 to 95, 105, 106, 107, 116, 117]. Hilberg’s opinion as to the role of the Ukrainian police throughout Galacia was based upon his extensive archival research and years of study [N.T. 1-104, 105, 115, 118, 119 to 124]. He stated that, in his expert opinion, the Ukrainian police were used in Galacia for work in the death camps, for ghetto deportations. [N.T. 1-94]. He testified that, during the mass deportations of Jews in Galacia, every unit available was used by the Germans: “[A]nyone at all who could be trusted or who was armed could be mobilized.” [N.T. 1-105]. These units, including the Ukrainian police, took part in round-ups, deportations and guarding the trains that took the Jews to the death camps [N.T. 1-105]. This pattern, Hilberg testified, took place throughout the Galacia region with the Ukrainian police used in a collaborating or assisting function with the Germans to carry out their systematic destruction of the Jewish civilian population in those areas. When asked if the Ukrainian police were also active in the town of Rawa Ruska within the Galacia region, Hilberg stated that it “would be inconceivable” for them to have not been involved in the persecution of civilians there [N.T. 1-117]. Hilberg stated that it was necessary as “a matter of administrative necessity” [N.T. 1-116], considering the overall civilian population of Galacia at the time — which numbered somewhere between five to six million, with the Rawa Ruska [N.T. 1-96 to 98]. Hilberg testified:
First, we have to keep in mind the overall ratio of forces. There were only approximately 12,000 German order policemen, perhaps 11,000 — the number varied from area to area — and only about 1200 security police. Indigenous police, Poles and Ukrainians, numbered 16,000.
N.T. 1-105.
Osidach presented his own expert to counter Hilberg’s assertions. Dr. Petro Mirchuk (“Mirchuk”), qualified as an expert on Ukrainian nationalism and the OUN [N.T. 10-17], testified that the Ukrainian police were not involved in acts of persecution against Jews throughout Galacia, including the town of Rawa Ruska [N.T. 10-41]. However, Mirchuk
15
also testified that he had not done any independent research on the plight of the Jews in the Ukraine in the early 1940’s, which would include research on the identity of their persecutors [N.T. 10-54].
The Court finds the expert testimony of Dr. Hilberg to be credible but limited solely to the role of the Ukrainian police throughout the Galacia region so as to indicate a general pattern of conduct. Hilberg himself admitted that his research was limited as to the specific role of the Ukrainian police in the town of Rawa Ruska [N.T. 2-4, 5; Ex. P-1 at 312]. It is the particular activities of the Ukrainian police in the town of Rawa Ruska which forms the basis of this litigation. Hilberg’s testimony does serve as a focal point from which further proof can be mounted either in eyewitness or documentary forms. His testimony also serves to support to some degree the reliability and credibility of other evidence bearing upon the particular activities of the Ukrainian police in the town of Rawa Ruska. It serves to show that what occurred in that town was not an isolated instance of conduct but totally consistent with a general pattern of persecutory conduct throughout the Galacia region.
(b)
Role of the Ukrainian Police in the Town of Rawa Ruska From 1942 to 1944
(i)
Documentary Proof
The Government offered into evidence two separate documents in support of their
*85
assertion that the Ukrainian police assisted the Germans in acts of persecution against civilians in the town of Rawa Ruska. Exhibit P-4 was presented and was figuratively called the “Katzman Report” because it was the report submitted to German superiors in 1943 by an S.S. officer named Katzman serving in a command capacity in the Galacia region during various stages of the systematic extermination of the Jews in that region. That report, specifically entitled “The Solution of the Jewish Question in Galacia,” generally describes the various activities that took place in the “final action” throughout the region in June of 1943. It had been introduced into evidence at the initial post-war Nuremberg trials [N.T. 1-110 to 111]. Of particular concern to this Court for purposes of this litigation is a statement made in that report:
Owing to the great number of Jews and the vast area to be combed out these Actions were performed with the assistance of detachments from the Security Police[,] the Order Police, the Gendarmarie, the Special Service, and the Ukrainian] Police, all acting together in numerous single sweeps. P. 19 of this report contains a map intended to show how Jews lived scattered throughout the whole of the District, until the Special Jewish Residence Districts were established. The detachments continually were exposed to serious physical and mental strains. Again and again they had to overcome the nausea threatening them when they were compelled to enter the City and pestilential Jewish holes. During the searches there has been found, moreover, a number of leaflets in the Hebrew language, inciting the Jews to breed lice carrying Spotted Fever, in order to destroy the Police Force. In fact several phials [s/e] filled with lice were confiscated. Nothing but catastrophical conditions were found in the Ghettoes [sic] of Rawa-Ruska and Rohatyn. The Jews of Rawa-Ruska, fearing the evacuation, had concealed those suffering from Spotted Fever in underground holes. When evacuation was to start the Police found that 3000 Jews suffering from Spotted Fever lay in this Ghetto. In
order to destroy this center of pestilence. Ex. P-4 at 11.
Finally, Ex. P-6 constituted the report of the so-called “Rayon Commission,” which was a civilian commission established in the town of Rawa Ruska shortly after the Soviets regained control of that area. The commission conducted hearings throughout the Rawa Ruska region and issued the report detailing the persecution of civilians and Soviet prisoners of war by the Germans and others during the German occupation of that area. Of concern here are specific references made in that report concerning the role of the Ukrainian police in the town of Rawa Ruska involving assisting the Germans in committing various acts of persecution. The report speaks of Ukrainian police having taken Jews to a bathhouse in the town in the spring of 1943 where they were shot by the S.S. [Ex. P-6 at 4]. It also refers to Ukrainian police assisting the Germans in the round-up of Jews in the town, particularly in March of 1942, when some 2,000 Jews were arrested and taken away by train [Ex. P-6 at 3]. In December of 1942, the Ukrainian police, the report states, assisted the Germans in gathering Jewish males for forced labor and taking others away in trucks. Some Jews, including women and children, at that time were killed, the report states, in the streets of the town by S.S., Gestapo and Ukrainian policemen [Ex. P-6 at testimony of Mendel Gokh at 1-2].
Both documents were referred to by Dr. Hilberg during his testimony and were admitted, not for the truth of their contents, but to serve as a documentary basis for Dr. Hilberg’s expert opinion, detailed above, as to the role of the Ukrainian police throughout Galacia and, in particular, in the town of Rawa Ruska [N.T. 1-110 to 136]. Standing alone, these documents do not constitute conclusive proof of the actual role of the Ukrainian police in the town of Rawa Ruska because they only go to the weight of Dr. Hilberg’s expert opinion. However, to the extent that they were substantiated by subsequent eyewitness testimony presented at trial, the evidentiary weight of the documents proportionately increases
*86
and, in turn, so does the weight of Dr. Hilberg’s expert opinion based upon them. Once again, neither the documents nor Dr. Hilberg’s expert opinion, separately or together, without more, would be sufficient under the burden of proof the Government faces to prove the actual role of the Ukrainian police in the town of Rawa Ruska from 1942 to 1944. What they
do
provide the Court is an evidentiary stepping-stone upon which the following eyewitness testimony rests and is supported. In that regard, each element of proof serves to substantiate the other to produce a quantum of evidence which does meet the applicable burden of proof.
(ii)
Eyewitness Testimony
The Government at trial offered several live and videotaped eyewitnesses who each testified as to what they personally observed during their residency in the town of Rawa Ruska during the German occupation period.
16
Overall, the Court finds that their combined testimony points to four separate categories of activities in which the Ukrainian police were in fact engaged. The Court finds that each category in and of itself constitutes, under § 13, the assisting of the Germans in the persecution of innocent civilians in the town of Rawa Ruska during WW II.
(ii-a)
Enforcement of Ghettoization of Jews and Enforcement of Other Degrading Laws Enacted for the Jewish Population by the Occupying Germans
Shlomo Altshuler
17
testified at trial that he was taken from his home within the ghetto at Potylitc in Galacia to the ghetto within the town of Rawa Ruska under
*87
guard by both S.S. and Ukrainian police [N.T. 6-120 to 125]. He stated that the Ukrainian police were dressed in blue uniforms and carried rifles [N.T. 6-124 to 125]. Anna Weinfeld
18
testified at trial that she was ordered by two Ukrainian policemen in blue uniforms to leave her home in Rawa Ruska in the summer of 1942. They told her to leave within the hour and for her to move to the ghetto in the town [N.T. 6-88 to 90].
Kurt Lewin
19
stated during his trial testimony that in his job as a ragpicker, for which he was provided a special work permit [N.T. 4-88], he moved daily about the streets of Rawa Ruska and the surrounding communities [N.T. 4-87, 88, 92]. During that time, he “periodically” observed Ukrainian policemen wearing dark blue uniforms and carrying rifles, with officers armed with pistols, patrolling the streets outside the ghetto [N.T. 4-91 to 92], He also stated that he saw Ukrainian policemen assisting Germans in removing Jews from their homes [N.T. 4-88]. He testified that Ukrainian policemen also assisted the Germans in checking Jews without arm
*88
bands or those out after curfew hour. For those infractions he stated that the penalty was to be shot on the spot [N.T. 4-92]. He personally saw such shootings for those infractions [N.T. 4-92]. He was checked by Ukrainian police for his work permit [N.T. 4-88]. He further testified that members of the Ukrainian police “were quite brutal to the population and sometimes provoked incidents, beating innocent people, women, kicking children.. .. ” [N.T. 4-92], He also testified that he personally observed such beatings [N.T. 4-92].
In that regard, Abraham Weinfeld stated that he saw, on more than one occasion, Ukrainian policemen in navy blue uniforms walking the streets of the ghetto [N.T. 6-19 to 20]. He said at those times the Ukrainian police were usually walking in groups of two and were “always armed” [N.T. 6-20].
Witness Philip Langer
20
also testified at trial on cross-examination that the Ukrainian police had a “free hand” in Rawa Ruska and he stated that if the Ukrainian police “decided to take, say, my kid or my brother’s kid and just take him and beat him to death or take him and throw him any-wheres [sic] he felt like it he could have done it.... ” [N.T. 4-160 to 161.
See also
N.T. 4-116, 141],
(ii-b)
Guarding and Abuse of Jewish Forced Laborers
Witness Philip Langer testified that the Ukrainian police, along with the Germans, often literally grabbed Jews off of the streets of the ghetto when additional workers were needed than those that could be organized by the Judenrat (Jewish police) [N.T. 4-105, 108;
see also
N.T. 6-123]. He said that the Ukrainian police dressed in dark blue uniforms and along with the Germans took these laborers away for forced labor [N.T. 4-107, 108] and that this particularly happened to him [N.T. 4-108 to 109]. He also stated that the Ukrainian police that guarded the Jewish laborers had weapons [N.T. 4-107 to 108]. Abraham Wein
*89
feld
21
testified that he also was taken by two Ukrainian policemen in dark blue uniforms with rifles for forced labor. He said that in the process of his recruitment for this work he was beaten and pushed by them [N.T. 6-20, 21]. He stated that they approached him and told him, “You are going with us” [N.T. 6-20], During his work assignment, Weinfeld testified that he was guarded by Ukrainian police while he was forced to do road construction work outside the town of Rawa Ruska [N.T. 6-23]. During the work, he said they screamed at him and beat him with whips [N.T. 6-23, 24]. The work he was forced to do included the breaking up of tombstones from a hundred-year-old Jewish cemetery for use as a foundation for a road. Weinfeld said that in the process of doing this heavy work he became injured and disabled and could not walk at the time [N.T. 6-20 to 25;
see also
N.T. 6-85].
Kurt Lewin testified that he also participated in that same work assignment at the Jewish cemetery during which he was guarded by Ukrainian police [N.T. 4-94 to 95]. Soviet .videotape witness
22
Or-
*90
est Strazhnik,
23
a Ukrainian, testified that he observed Jews working outside the ghetto placing stones for roads while guarded by armed Ukrainian police in dark blue uniforms [dep. at 20-22], Finally, witness Altshuler stated that at the time near the final action about 100 Jews, including himself, were taken outside the town under guard by the S.S. and armed Ukrainian police in dark blue uniforms to “an old cemetery” where the able-bodied Jewish males were selected by the S.S., in the presence of the Ukrainian police, for forced labor. The other Jews, including women and children, were taken away toward the direction of a forest outside the town with armed Ukrainian police stationed in the back of the trucks. One of those taken away was his mother, whom he never saw again [N.T. 6-128 to 131].
See also
Ex. P-6, Rayon Commission Report at 2, testimony of M. Gokh (“[o]n December 10, 1942.... They [S.S. and Ukrainian police] gathered the Jewish population together at an assembly point, where they selected the healthy for work and put the rest — that is women, old people, and children — in trucks and took them to the Sedlysk Forest and there shot them.”).
(ii-c)
Ukrainian Police Used in the Deportation of Jews From the Ghetto
Philip Langer testified that during July of 1942 an action occurred during which he observed Germans and armed Ukrainian police wearing dark blue uniforms surrounding the ghetto, seizing Jews off the streets and from their houses, placing them in trucks and taking them away. This he said occurred throughout the day [N.T. 4-112 to 114]. On another occasion, he personally was forceably seized by a Ukrainian policeman and taken away with others by truck to the railway station where, under the guard of armed Ukrainian policemen and Germans, some people were selected by the Germans and placed in railway cars. Others like himself were taken away to a labor camp outside of town [N.T. 4-118 to 120]. During the first action, Langer saw truckloads of Jews being taken to the railway station guarded by Ukrainian police and
*91
Germans [N.T. 4-111 to 112;
see also
Kulikovska dep.
24
at 29-34; Banakh dep.
25
at 32-37]. Kurt Lewin also testified that he saw armed Ukrainian police with dark blue uniforms, both alone and with Germans, removing Jewish citizens from their homes throughout Rawa Ruska and leading them to the railway station and there loading them into “cattle cars” and “shipped we didn’t know where” [N.T. 4-88 to 92].
(ii-d)
Activities of the Ukrainian Police in the Final Action Involving the Liquidation of the Rawa Ruska Ghetto
Several witnesses testified that, during the activities constituting the final action, Ukrainian policemen assisted the Germans by searching hiding places for Jews [N.T. 6-127 to 128;
see also
Ex. P-2 at 11]. The Weinfelds both testified as to the final liquidation during which they viewed Ukrainian police in dark blue uniforms assisting the Germans in searching homes in the ghetto and “pulling out people, children, older people, whoever they saw, whoever was Jewish. ..” [N.T. 6-31 to 33, 93, 95;
see also
Strazhnik dep. at 28-32; Kulikovska dep. at 40-41].
Finally, Anna Weinfeld testified:
All of a sudden, I heard some shooting and crying

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1613117. Public record. Not legal advice.