Breyer v. Atty Gen USA

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

11-20-2003

Breyer v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 02-4226

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PRECEDENTIAL

Filed November 19, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-4226

JOHANN BREYER

v.

*JOHN ASHCROFT,

U.S. IMMIGRATION AND NATURALIZATION SERVICE,

Appellant

*(Pursuant to F.R.A.P. 43(c))

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil Action No. 97-cv-06515

(Honorable William H. Yohn, Jr.)

Argued July 29, 2003

Before: SCIRICA, Chief Judge, RENDELL and AMBRO,

Circuit Judges

(Filed November 19, 2003)

JONATHAN C. DRIMMER, ESQUIRE

(ARGUED)

DAVID W. FOLTS, ESQUIRE

Office of Special Investigations

United States Department of Justice

Criminal Division

10th & Constitution Avenue, N.W.

Keeney Building, Suite 200

Washington, D.C. 20530

Attorneys for Appellant

2

MARTIN R. LENTZ, ESQUIRE

(ARGUED)

Pelino & Lentz

One Liberty Place, 32nd Floor

1650 Market Street

Philadelphia, Pennsylvania 19103

Attorney for Appellee

OPINION OF THE COURT

SCIRICA, Chief Judge.

The government seeks to strip Johann Breyer of his

United States citizenship for serving in the Waffen SS

during World War II. At issue is whether Breyer, who joined

at age seventeen, was a voluntary member of the Nazi

military unit. The District Court found that he was not, and

consequently issued a declaratory judgment that Breyer

was a United States citizen. We will affirm.1

I.

The facts of this case have been extensively discussed

elsewhere, especially in the District Court’s bench opinion

in the judgment now appealed. See Breyer v. Meissner, No.

97-6515, 2002 WL 31086985 (E.D. Pa. Sept. 18, 2002).2

With a few exceptions not determinative here, the District

Court’s findings of “historical fact” have not been

challenged. We detail the facts as they relate to the matters

currently being appealed.

Johann Breyer was born in 1925 to an American-born

mother and a non-citizen father in Nova Lesna, a small

farming village located in what was then Czechoslovakia

1. We have appellate jurisdiction under 28 U.S.C. § 1291. We review the

District Court’s factual findings for clear error. Edwards v. Wyatt, 335

F.3d 261, 271 (3d Cir. 2003). We exercise plenary review over the

District Court’s conclusions of law. Id.

2. See also, Breyer v. Meissner, 214 F.3d 416 (3d Cir. 2000); Breyer v.

Meissner, 41 F.3d 884 (3d Cir. 1994).

3

(and later became Slovakia). Although they resided in

Czechoslovakia, the Breyer family was ethnically German

(“Volksdeutschen”). Slovakia became a separate state in

1939 controlled by Germany, and thus allied with Germany

during World War II. During that time, the political and

social interests of the Slovak ethnic German population

were represented by Deutsche Partei (“DP”), or German

Party. The DP was a functional instrument of the Third

Reich, but exerted no legal control over its members.

As the tides of war began to turn against Germany in

1942, the Schutzstaffel (“SS”), a Nazi political organization,

coordinated with the DP to devise a plan to recruit Slovak

Volksdeutschen for membership in the Waffen SS, a Nazi

paramilitary organization. Breyer received a notification

letter sent in the first wave of this recruiting drive

instructing him to report for military service. Breyer asked

the mayor of his town whether he was obligated to report as

instructed. The mayor confirmed this obligation, and Breyer

subsequently appeared for the required physical

examination. Several months later, Breyer received a call-

up notification that he had passed the examination,

instructing him to report for induction into the Waffen SS.

Breyer again approached the mayor who informed him that

he was obligated to comply with the notification. But the

mayor assured Breyer that he would work with local DP

officials to secure Breyer’s release if ultimately he were

assigned to a distant post.

On February 10, 1943, Breyer was transported to the

concentration camp at Buchenwald, Germany, where he

was assigned to the Totenkopf Sturmbann, or Death’s Head

Battalion, in the Waffen SS. Upon completion of a six-week

training program, seventeen-year-old Breyer swore an oath

of allegiance to Adolf Hitler. Upon induction into the Waffen

SS, Breyer was advised to abandon religion—a policy

financially encouraged by waiver of the Reich’s church tax

—but he refused. Breyer also refused to join the new

inductees in having his blood-type branded on his upper

arm, a mark that would have permanently identified him as

a member of the Waffen SS. When Breyer was asked in

front of a group of new SS inductees whether he could

shoot a person, he responded that he could not.

4

Consequently, he was assigned to a section of the

concentration camp where prisoner escape was considered

unlikely. He carried a weapon while on perimeter duty, but

it was not always loaded. On May 30, 1943, shortly after

the completion of his training, Breyer turned eighteen.

Whether Breyer voluntarily entered the Waffen SS is

unclear. While there is evidence that Slovak Volksdeutschen

were subject to some degree of compulsion to enter the

Waffen SS, there is also evidence that membership was

ultimately a voluntary choice. On balance, however, the

District Court concluded that Breyer’s entry into service

was voluntary as a matter of fact, though involuntary as a

matter of law as Breyer was under the age of eighteen at

the time. Id. at *14. In any event, it is undisputed that once

inducted in the Waffen SS, a solider was obligated to

remain a member for the duration of the war, whether or

not he voluntarily enlisted.

In or around December 1943, Breyer was granted a

standard two-week home leave. He was told that if he did

not return, his family would be gravely harmed. Breyer took

his leave and returned as scheduled. In the spring of 1944,

Breyer requested an emergency home leave after receiving

word that his mother was ill. This request was denied, but

Breyer wrote to inform his parents that he would come

home “one way or another.” The letter was intercepted by

censors and interpreted as a threat of desertion. As

punishment for that perceived threat, Breyer was

transferred to another unit of the Totenkopf Sturmbann

stationed at Auschwitz I, a slave labor camp in Poland.

While there, Breyer maintained essentially the same

responsibilities he held at Buchenwald. Breyer testified,

and the District Court found, that he never harmed a

prisoner at Buchenwald or Auschwitz. Id. at *9. He was

aware, however, of the large-scale murder being committed

at Auschwitz II, the nearby Nazi death camp.

During his time at the concentration camp, Breyer never

attempted to transfer to another type of service or to a

different unit. He did, however, request leave every week

during his posting at Auschwitz. In April 1944, Franz

Karmasin, head of the DP and Slovak State Secretary for

Ethnic German Affairs, appealed to the Waffen SS for

5

Breyer’s permanent release from service, urging that Breyer

was needed to tend to the family farm on account of his

parents’ illness. That appeal was denied, but Breyer was

eventually granted temporary home leave in August 1944.

Upon expiration of his scheduled leave, Breyer did not

return to Auschwitz—an act of desertion. Although he never

stayed at home, Breyer remained in the vicinity, hiding in

nearby barns and in the surrounding woods, until at least

December 1944 when Slovak Volksdeutschen in Nova Lesna

began to evacuate ahead of the advancing Soviet army.

Breyer fled the town and attempted to rejoin his unit at

Auschwitz. The District Court found that Breyer had done

so because he feared being discovered by the Germans and

shot as a deserter. Id. at *11. En route, he was informed

that the Soviets already had reached the camps at

Auschwitz and that his unit was engaged in combat with

the Soviet army on the eastern front. Breyer subsequently

rejoined his unit near Berlin as a forward observer. Breyer

was wounded in March, 1945, but returned to combat

three weeks later. On May 3, 1945, his unit surrendered to

the Soviet army, whereupon he was shipped to a prisoner-

of-war camp in the Czech Republic. Following his release,

Breyer reunited with his family in Bavaria.

Breyer lived in Germany until 1952, when he applied for

a United States visa under the Displaced Persons Act of

1948, Pub. L. No. 80-774, 62 Stat. 1009, as amended by

Pub. L. No. 81-555, 64 Stat. 219 (1950). In his visa

application, Breyer acknowledged his membership in the

Waffen SS, but did not disclose his participation in the

Totenkopf Sturmbann. After initially rejecting his

application, the Displaced Persons Commission certified

Breyer eligible for a visa in March, 1952. He immigrated to

the United States the same year. He later filed a petition for

naturalization and was naturalized as a United States

citizen in November, 1957.

II.

In 1992, the government filed an action to denaturalize

Breyer because of his service as an armed SS guard at

Buchenwald and Auschwitz. The government claimed that

6

Breyer’s citizenship was illegally procured, or procured by

concealment or wilful misrepresentation. Breyer responded

that he derived United States citizenship at birth through

his mother who was born in Philadelphia, Pennsylvania.

Even if the 1957 naturalization could be set aside, Breyer

argued, he was still a citizen by birth.

At the time of Breyer’s birth, derivative citizenship was

governed by Section 1993 of the Revised Statutes of 1874.

Act of Dec. 1, 1873, tit. 25, § 1993 (superseded by

Immigration and Nationality Act of 1952 § 301(a), 8 U.S.C.

§ 1401(1994)). Under that statute, foreign-born children

whose fathers were United States citizens at the time of

their birth derived United States citizenship.3 The statute

did not extend the same right of derivative citizenship to

foreign-born children whose mothers were United States

citizens. Breyer argued that the statute was

unconstitutional as a violation of the Equal Protection

Clause of the Fifth Amendment. He contended, therefore,

that he should be granted citizenship retroactively under

the statute.

The District Court granted partial summary judgment for

the government with respect to Breyer’s denaturalization.

United States v. Breyer, 829 F. Supp. 773, 779 (E.D. Pa.

1993). But the District Court also determined that Section

1993 was unconstitutional on equal protection grounds. Id.

at 781. At trial, the District Court found that Breyer’s

mother was born in the United States, and held that the

3. Section 1993 of the Revised Statutes of 1874 provides:

All children heretofore born or hereafter born out of the limits and

jurisdiction of the United States, whose fathers were or may be at

the time of their birth citizens thereof, are declared to be citizens of

the United States; but the rights of citizenship shall not descend to

children whose fathers never resided in the United States.

Act of Dec. 1, 1873, tit. 25, § 1993 (superseded by Immigration and

Nationality Act of 1952 § 301(a), 8 U.S.C. § 1401(1994)). In 1934,

Congress amended Section 1993 to make it gender-neutral. Thereafter,

the statute extended United States citizenship to children born outside

of the United States “whose father or mother or both at the time of the

birth of such child is a citizen of the United States.” Act of May 24,

1934, ch. 344, § 1, 48 Stat. 797 (1934).

7

appropriate remedy for the unconstitutionality of the

statute was to retroactively grant Breyer United States

citizenship. United States v. Breyer, 841 F. Supp. 679, 685-

86 (E.D. Pa. 1993). Nevertheless, the District Court

refrained from granting citizenship after concluding that

Breyer had failed to exhaust the required administrative

remedies. Id. at 686.

We affirmed the holding that Breyer had illegally obtained

his naturalization, finding that Breyer’s wartime activities

disqualified him from being a “displaced person” under the

Displaced Persons Act. United States v. Breyer, 41 F.3d

884, 891 (3d Cir. 1994). But we vacated the portion of the

decision addressing Breyer’s derivative citizenship based

upon the statute’s unconstitutionality after concluding the

District Court had exceeded its jurisdiction in deciding a

constitutional issue it was unnecessary to reach. Id. at 893.

In 1994, Congress amended Section 1993 of the

Immigration and Nationality Technical Corrections Act of

1994 (“INTCA”), granting citizenship retroactively to all

foreign-born children of United States citizens who had

previously resided in the United States. Pub. L. No. 103-

416, 108 Stat. 4305, 4306 (codified as amended at 8

U.S.C.A. § 1401 (1994)). But Congress did not extend

retroactive application to anyone who “was excluded from,

or who would not have been eligible for admission to, the

United States under the Displaced Persons Act of 1948.” Id.

Because Breyer was found ineligible for admission under

the Displaced Persons Act, he was not entitled to

retroactive application of § 1401.

The Immigration and Naturalization Service denied

Breyer’s application for citizenship in 1996. Shortly

thereafter, the government initiated deportation

proceedings. On October 21, 1997, Breyer filed a petition

for declaratory judgment in the District Court, seeking a

declaration of derivative citizenship based on his mother’s

American citizenship at the time of his birth. The District

Court ruled that the citizenship rules applicable to Breyer,

as modified by INTCA, did not violate the equal protection

component of the Due Process Clause of the Fifth

Amendment. Breyer v. Meissner, 23 F. Supp. 2d 521, 537

(E.D. Pa. 1998).

8

We reversed on appeal, concluding that section 101(c)(2)

of the INTCA preserved the unconstitutional gender bias of

Section 1993.4 Breyer v. Meissner, 214 F.3d 416, 429 (3d

Cir. 2000). Because fathers were entitled to pass citizenship

to children who would be ineligible under the Displaced

Person’s Act, it was unconstitutionally discriminatory to

deny mothers the ability to pass citizenship to their

children, even when the children would not be entitled to

naturalization. Id. at 428. Consequently, we held that

Breyer was entitled to American citizenship from the date of

his birth.5 Id. at 429.

4. We reasoned that Section 101(c)(2) placed an additional burden on

American mothers in transferring citizenship to their foreign-born

children. Because Section 1993 granted citizenship to foreign-born

children of American fathers, these children may have been aware of

their citizenship during World War II. Breyer, 214 F.3d at 428. Therefore,

foreign-born children of American fathers could lose their citizenship

only by intentionally committing expatriating acts. Id.; see also Vance v.

Terrazas, 444 U.S. 252 (1980). By contrast, foreign-born offspring of

American mothers were prevented from obtaining American citizenship if

they, with or without intent, committed similar expatriating acts. To

subject “American women to this additional burden for the transmission

of citizenship to their foreign-born offspring is in fundamental tension

with the principle of equal protection.” 214 F.3d at 428.”

5. The government asks us to reconsider this holding in light of Nguyen

v. INS, 533 U.S. 53 (2001). In Nguyen, the Supreme Court upheld a

different gender-based distinction in the Immigration and Nationality Act

governing the citizenship of foreign-born children. Section 1409 provides

that foreign-born children born out of wedlock acquire citizenship from

their mother. For such a child to acquire United States citizenship from

a father, by contrast, the father must meet certain additional

requirements, such as showing paternity by clear and convincing

evidence and agreeing in writing to financially support the child. 8

U.S.C. § 1409(a).

The Court, in a five to four decision, upheld the provision based on two

“important governmental objectives.” 533 U.S. at 62. The first was proof

of parentage, which the court noted is often much more difficult to

establish with respect to fathers. Id. at 62-64. Second, the provision

helps ensure that there is an “opportunity for a meaningful relationship

between citizen parent and child,” which does not necessarily result as

a matter of “biological inevitability” in the case of unwed fathers. Id. at

65.

9

The question remained, however, whether Breyer had lost

that citizenship as a result of his wartime activities by, in

effect, voluntarily renouncing his citizenship. We remanded

to the District Court to make additional findings

“concerning the circumstances under which Breyer joined

the Waffen SS and the Death’s Head Battalion to determine

if his actions constitute[d] a voluntary and unequivocal

renunciation of any possible allegiance to the United States

of America.” Id. at 431.

Following a bench trial, the District Court ruled in

Breyer’s favor. It determined that Breyer did not voluntarily

take any actions that could be expatriating. Because Breyer

committed no voluntary expatriating act, the court

concluded that he retained his United States citizenship.

The government appealed.

III.

A.

The Fourteenth Amendment provides that “[a]ll persons

born or naturalized in the United States . . . are citizens of

the United States.” U.S. Const. amend. XIV, § 1. “There is

no indication in these words of a fleeting citizenship, good

at the moment it is acquired but subject to destruction by

the Government at any time. Rather the Amendment can

most reasonably be read as defining a citizenship which a

citizen keeps unless he voluntarily relinquishes it.” Afroyim

v. Rusk, 387 U.S. 253, 262 (1967). As such, United States

citizenship obtained either by birth or legitimate

naturalization cannot be lost unless the citizen voluntarily

renounces his citizenship. Vance v. Terrazas, 444 U.S. 252,

261 (1980); see also Afroyim, 387 U.S. at 268. By statute,

certain expatriating acts, if proven, are presumptively

Neither of these interests is implicated here, in a case in which it is the

mother, not the father, who is saddled with the greater difficulty in

transmitting citizenship. Accordingly, Nguyen does not disturb our

holding with respect to § 1401, and we see no reason to—or basis for—

reconsidering it at this time.

10

voluntary.6 See 8 U.S.C. § 1481(b). This presumption may

be rebutted by showing, by a preponderance of the

evidence, that the expatriating act was involuntary. Id.

However, the party claiming a loss of nationality has

occurred, in this case the United States, bears the burden

of proving by a preponderance of the evidence that the

citizen voluntarily performed the act with the intent to

relinquish his citizenship. 444 U.S. at 268; 8 U.S.C.

§ 1481(b). Evidence that the citizen voluntarily committed

expatriating acts “may be highly persuasive . . . in the

particular case of a purpose to abandon citizenship.” 444

U.S. at 261 (citing Nishikawa v. Dulles, 356 U.S. 129, 139

(1958) (Black, J., concurring)).

The government contends the District Court committed

legal error by failing to consider Breyer’s state of mind

when evaluating whether his service in the Waffen SS after

his eighteenth birthday was involuntary. Moreover, the

government argues that Breyer failed to establish the

affirmative defense of duress and that his service in the

Waffen SS was voluntary. We will address these arguments

in turn.

B.

During his service with the Waffen SS, Breyer had no

knowledge that he was a United States citizen by virtue of

his mother’s citizenship. And there is no reason that he

should have known that he might be granted citizenship

retroactively more than a half century later. Nevertheless,

the previous panel suggested that it was possible for Breyer

to voluntarily renounce his citizenship despite that lack of

knowledge, if his actions “constitute[d] a voluntary and

unequivocal renunciation of any possible allegiance to the

United States of America.”7 Breyer, 214 F.3d at 431.

6. Entering the armed forces of a foreign state engaged in hostilities

against the United States is considered an expatriating act. See 8 U.S.C.

§ 1481(a)(3).

7. Breyer challenges the prior panel’s conclusion that if his participation

with the Waffen SS and oaths of allegiance to Nazi Germany were

voluntary, he may have voluntarily and unequivocally renounced his

11

On remand, the District Court addressed only whether

Breyer voluntarily served in the Waffen SS after his

American citizenship despite having no knowledge of that citizenship.

The government responds that we are bound by the previous panel’s

conclusion under the law-of-the-case doctrine. See, e.g., Africa v. City of

Philadelphia (In re City of Philadelphia Litig.), 158 F.3d 711, 717 (3d Cir.

1998) (“[O]ne panel of an appellate court generally will not reconsider

questions that another panel has decided on a prior appeal in the same

case.”). Consequently, the government argues that if Breyer’s service was

voluntary, then he necessarily voluntarily renounced his citizenship.

As an initial matter, it is not clear that the previous panel’s opinion

should be construed in that way. The panel stated that “a voluntary oath

of allegiance to a nation at war with the United States and to an

organization of that warring nation that is committed to policies

incompatible with the principles of American democracy and the rights

of citizens protected by the American constitution—an organization such

as the Death’s Head Battalion—is an unequivocal renunciation of

American citizenship whether or not the putative citizen is then aware

that he has a right to American citizenship.” Breyer, 214 F.3d at 431.

Elsewhere, however, the same panel ruled that only if Breyer’s service

was voluntary, he “may have made . . . a disclaimer of allegiance to the

United States.” Id. (emphasis added). We think it unlikely the previous

panel meant to conclude that every voluntary member of the Death’s

Head Battalion would necessarily have made such an unequivocal

renunciation, regardless of other potentially relevant circumstances.

Furthermore, the panel remanded for a finding not only on

voluntariness, but also on whether Breyer’s “actions constitute a

voluntary and unequivocal renunciation of any possible allegiance to the

United States of America.” Id. The previous panel opinion could be read,

therefore, as merely concluding that it would be possible for Breyer to

voluntarily renounce his citizenship without knowledge of it. The

Supreme Court has held that the ultimate question must always be

whether the citizen voluntarily and purposefully abandoned citizenship.

Terrazas, 444 U.S. at 261. Any interpretation of the previous panel’s

opinion should be consistent with that rule.

Breyer contends we are not bound by the previous panel and should

hold that a citizen without knowledge of his citizenship is necessarily

incapable of forming the necessary specific intent. It is arguable that,

because it may have simply concluded that such intent was possible, the

previous panel did not actually decide an issue that would be binding on

future panels. In any event, we need not revisit the issue. Voluntary

renunciation of citizenship requires, at a minimum, that any alleged

expatriating act be performed voluntarily. We conclude the District Court

committed no error in concluding that Breyer did not voluntarily perform

the potentially expatriating actions.

12

eighteenth birthday. Breyer joined the Waffen SS when he

was seventeen years old and, under the Nationality Act of

1940—the law governing expatriation at the time of Breyer’s

wartime activities—a citizen could not expatriate himself by

military service or oaths of loyalty before his eighteenth

birthday. Nationality Act of 1940 § 403(b), 54 Stat. 1170.

Accordingly, the District Court held—and the government

does not contest—that Breyer could not have expatriated

himself by his actions before he turned eighteen. Breyer,

2002 WL 31086985, at *14. The question then becomes

whether he had done so by voluntarily remaining in the

Waffen SS and swearing an oath of allegiance to the Third

Reich after his eighteenth birthday. The District Court

concluded that Breyer’s service was not voluntary

subsequent to his eighteenth birthday and therefore was

not expatriating as a matter of law. Id. Central to this

conclusion was the District Court’s finding that even those

persons who voluntarily enlisted were obligated to remain

in the Waffen SS for the duration of the war. Id. at *10.

The government does not dispute that Breyer was

required to remain in the Waffen SS after he enlisted.

Rather, the government argues that Breyer would have

served in the Waffen SS regardless of any obligation or

compulsion to do so. Even though his continuing

membership in the Waffen SS was mandatory, this

obligation allegedly did not cause Breyer to remain in the

organization. Accordingly, the government contends the

District Court committed legal error by failing to explicitly

consider “causation” and assessing the voluntariness of

Breyer’s actions solely in terms of the choices (or lack

thereof) available at the time.

We believe that voluntariness is most appropriately

evaluated by considering the totality of the circumstances.

By emphasizing causation as a determinative factor, the

government draws inordinate attention to a single

dimension of this broader inquiry. In this respect, the

government overstates the so-called “causation element”

and understates the extent to which the District Court

implicitly addressed this issue. While the District Court’s

opinion cites the absence of choice as the reason for

concluding that Breyer remained in the Waffen SS

13

involuntarily, read as a whole, it is clear that this was only

one—albeit perhaps the most important—element in the

District Court’s analysis. Breyer’s voluntary enlistment at

the age of seventeen may provide some evidence that he

served voluntarily several months later. But as the District

Court correctly recognized, “[w]hile indicia that plaintiff

voluntarily enlisted in the Waffen SS may entail some value

as evidence that his continued service following his

eighteenth birthday was similarly voluntary, they are by no

means determinative of this latter issue.” Id., at *1.

Furthermore, the District Court made extensive findings

with respect to matters relevant to a determination of

voluntariness, none of which would be relevant if the

District Court analyzed the issue in the manner the

government suggests it did. While subject to different

possible interpretations, Breyer’s refusal to renounce his

religion, to accept the distinctive Waffen SS blood-type

brand, or to publicly commit to his ability to shoot a

prisoner could be viewed by a fact-finder to establish a

general reluctance to participate as a member of the SS.

These same factors would not be relevant if Breyer’s lack of

choice was dispositive on the issue of voluntariness.

Importantly, the District Court extensively cited Breyer’s

attempts to secure leave and his ultimate desertion from

the Waffen SS. It may be, as the government emphasizes,

that Breyer could have done more to secure leave. But

deserting his unit under what he believed to be penalty of

execution suggests that Breyer’s service was not voluntary.

In short, we are convinced the District Court adequately

considered all of the relevant evidence in assessing whether

Breyer’s service was voluntary or involuntary. The District

Court did not expressly address “causation” as a discrete

factor in its voluntariness analysis. And there may be more

to the voluntariness analysis than evaluating the citizen’s

ability to choose an alternate course of action. But it is

clear that the District Court considered the critical issue of

whether Breyer voluntarily relinquished his citizenship by

analyzing the specific actions and circumstances related to

his service in the Waffen SS for evidence of voluntariness or

intent to abandon his United States citizenship.

14

C.

The government also contends that Breyer failed to

establish the affirmative defense of duress in the criminal

context. As an initial matter, even if Breyer’s defense can be

labeled as one of “duress,” we do not think the concept

operates in the same way in expatriation proceedings. The

government’s language framing the issue on appeal—

“[w]hether the district court misapplied the affirmative

defense of duress by omitting the ‘causal relationship’

element”—misconstrues the analysis that applies in cases

like this one. In this context, duress is not an affirmative

defense, and there is no burden on Breyer to prove the

elements of classic criminal duress. The burden rests on

the government to prove voluntariness.

Furthermore, the Supreme Court has explicitly stated

that “expatriation proceedings are civil in nature.” Terrazas,

444 U.S. at 266 (emphasis added). As a civil proceeding,

the standard for showing duress in an expatriation

proceeding would be lower than in a criminal proceeding.

See United States v. One 107.9 Acre Parcel of Land, 898

F.2d 396, 399 (3d Cir. 1990) (“We . . . assume that a

showing of duress would require less demanding proof in a

civil [as opposed to a criminal] context.”). The issue in

criminal cases is whether the involuntariness of the action

is sufficient to remove culpability for the actions taken. In

the expatriation context, the issue is different. Here we

assess whether the citizen’s actions demonstrate or express

a voluntary intention to abandon citizenship.

Conceivably, certain voluntary actions that give rise to

criminal liability may not be sufficiently voluntary to be

expatriating. For example, in Stipa v. Dulles, 233 F.2d 551,

554 (3d Cir. 1956), this Court held that an American-born

citizen who accepted a position as an auxiliary in the

Italian Police Force “for the purpose of earning a livelihood”

when no other jobs were available did not join voluntarily

for expatriation purposes. But it does not necessarily follow

that an American citizen would not be held culpable for

criminal activities committed under similar conditions of

economic hardship.

When a person performs an action, it is a fair inference

that the action was performed voluntarily, because it can

15

be assumed, in the absence of evidence to the contrary,

that he chose to do it. But when a person performs an

action required by law and subject to coercive sanctions,

there is ordinarily no longer a clear basis for the inference

of voluntariness, because the actor may not have exercised

his own free will. Establishing that one was conscripted,

therefore, ordinarily defeats the basis for assuming that

enlistment was voluntary. Consequently, a citizen might be

able to satisfy the burden of establishing that an action was

taken involuntarily—should other evidence not establish

the contrary—by showing that it was compulsory.

Historically, mandatory military service has been treated

as presumptively involuntary. “Conscription into the Army

of a foreign government of one holding dual citizenship is

sufficient to establish prima facie that his entry and service

were involuntary.” Lehmann v. Acheson, 206 F.2d 592, 594

(3d Cir. 1953) (citing Perri v. Dulles, 206 F.2d 586 (3d Cir.

1953)); see also Nishikawa, 356 U.S. at 136-37

(conscription into the Japanese army “adequately injected

the issue of voluntariness and required the Government to

sustain its burden of proving voluntary conduct”). For the

most part, however, courts have made clear that this

presumption of duress can be overcome. See Nishikawa,

356 U.S. at 136 (discussing the government’s burden of

responding once a showing of conscription had been made);

Lehmann, 206 F.2d at 597-98 (considering government’s

attempt to rebut presumption). The Court of Appeals for the

Second Circuit stated the issue clearly:

The inference of duress which flows from conscription

was doubtless subject to rebuttal by the defendant as,

for instance, through evidence that, once conscripted,

the soldier volunteered for service more onerous than

that mandatorily imposed upon a conscript, or through

evidence that Italian law in force at the time permitted

the plaintiff to invoke his American citizenship as a

ground for immunity from service to the Italian army,

coupled with evidence that the plaintiff failed to invoke

the immunity thus available to him.

Augello v. Dulles, 220 F.2d 344, 347 (2d Cir. 1955); see also

Acheson v. Maenza, 202 F.2d 453, 458 (D.C. Cir. 1953)

(“The additional factors of actual, in fact, duress and

16

coercion at the time of the conscription, on the one hand

and of a free exercise of the will and of the mind, on the

other, must bear heavily on the eventual answer.”).

At the same time, evidence that the claimant would have

enlisted without being required to do so can tip the balance

in the government’s favor. See id. (“Duress cannot be

inferred from the mere fact of conscription. . . . [T]here

must be consideration of the circumstances attending the

service in the foreign country, and the reasonable

inferences to be drawn therefrom.”). The ultimate question

remains whether, on balance, the expatriating action was

voluntary, and the party claiming loss of nationality bears

the burden of proving this by a preponderance of the

evidence. 8 U.S.C. § 1481(b). Any number of factors may

play a role in such an inquiry. As discussed, a fact finder

need not specifically address a separate “causation”

element in making this inquiry, but the determination must

take into account the totality of the circumstances.

Evidence of enlistment or conscription will often be the

most important parts of this determination, but they are

not the only relevant considerations.

Breyer was not involuntarily conscripted into the Waffen

SS. The District Court found that Breyer’s enlistment was

voluntary, although he was not free to leave once he joined.

Breyer, 2002 WL 31086985, at *10. Therefore, the critical

question is whether Breyer voluntarily remained in the

Waffen SS after his eighteenth birthday. In this regard, this

case closely resembles Perri v. Dulles, 206 F.2d 586 (3d Cir.

1953). In Perri, a naturalized United States citizen was

conscripted into the Italian army before the effective date of

the Nationality Act of 1940, under which the government

sought his expatriation. We declined to consider the district

court’s finding that the citizen voluntarily enlisted in the

Italian army before the effective date of the statute. Id. at

589. As here, the sole question was whether the citizen

voluntarily served in the armed forces of a foreign state

after the effective date of the statute. We found that the

citizen’s military service under the terms of the original

draft, without evidence that Italian law or military practice

would have permitted the citizen to secure release, was

“sufficient to establish prima facie that his service on and

17

after [the effective date of the statute] was involuntary,”

despite the District Court’s finding that his initial

enlistment had been voluntary. Id.

We think that Breyer’s demonstrated inability to secure

release from the Waffen SS and his subsequent desertion

can be, for the reasons discussed, sufficient to defeat the

presumption that his continued military service was

voluntary.8

D.

Finally, the government contends that when all of the

relevant facts are considered, the District Court erred in

concluding that Breyer’s service was involuntary. In this

respect, we see no clear error in the District Court’s factual

findings, nor do we disagree with its conclusion that

Breyer’s service in the Waffen SS was involuntary.

As noted, the District Court made several findings

relevant to the voluntariness inquiry. These findings do not

paint a picture of a person committed to serve. Breyer’s

refusal to forsake his religion, his refusal to be branded

with the distinctive mark of the Waffen SS, and his pledge

before one hundred new SS recruits that he was incapable

of shooting a prisoner suggest his general reluctance.

Furthermore, his repeated attempts to secure both

temporary and permanent release, followed by desertion

from his unit, demonstrate Breyer’s lack of commitment to

service in the Waffen SS.

The government has suggested alternative inferences that

could be drawn from these actions which support a finding

of voluntariness. While these and other inferences may be

reasonable ones, the District Court’s findings, which we

review for clear error, support the conclusion that Breyer’s

8. Of course, evidence that the citizen initially entered military service

voluntarily may support a finding of voluntariness later. The extent to

which the enlistment was voluntary and the space of time between that

enlistment and the time for determining expatriation will be relevant

factors to be considered together with whatever other evidence the

plaintiff and government produce tending to support a finding of

voluntariness or involuntariness.

18

membership in the Waffen SS after his eighteenth birthday

was involuntary.

There are, of course, some factual findings which support

the government’s position. The District Court’s finding that

Breyer voluntarily enlisted is perhaps the most significant.

Breyer joined the Waffen SS only a matter of months before

his eighteenth birthday, and one could ordinarily infer that

such voluntariness would not change over a short period of

time. But the District Court’s determination that Breyer

enlisted voluntarily is somewhat mitigated by contrary

evidence. There is evidence that Volksdeutschen recruits

faced significant pressure to join the Waffen SS, even if that

pressure did not rise to the level of actual compulsion. And

there are findings that could be viewed as indicia of

Breyer’s unwillingness to serve. When he received his

enlistment notice, Breyer asked the mayor of his town

whether he was obligated to go, and the mayor told him he

was. The mayor subsequently told Breyer that he would try

to get him released from service, if Breyer were assigned to

a distant post. So even if Breyer enlisted voluntarily, there

is evidence that supports the District Court’s conclusion

that Breyer remained in the Waffen SS only because he had

no other choice.

Perhaps the fact which most supports the conclusion

that Breyer’s service was voluntary is Breyer’s decision to

return to his unit after he deserted. But the District Court

found that Breyer sought to return to his unit because he

feared he would be shot as a deserter by the Germans if he

was discovered. Breyer, 2002 WL 31086985, at *10. This

finding is sufficient to rebut a contrary inference. At the

time Breyer returned to his unit, Allied armies were

approaching Germany from all sides. There is no evidence

of any other place Breyer safely could have gone. It is

consistent with the evidence that Breyer thought the safest

place for him was with his unit. If so, then his return was

not voluntary in the sense that it might represent an

intentional relinquishment of United States citizenship. Nor

would his return represent substantial evidence of earlier

voluntary service.

After reviewing the record, we see no clear errors of fact

and no erroneous conclusions of law.

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IV.

For the foregoing reasons, we will affirm the judgment of

the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit