The opinion of the court was delivered by: Hon. Marianne O. Battani
OPINION AND ORDER REVOKING ORDER OF ADMISSION TO CITIZENSHIP AND CANCELING CERTIFICATE OF NATURALIZATION
This matter came before the Court for a bench trial on September 15, 2006, and was concluded on September 25, 2006. The Court heard testimony from Dr. Dieter Pohl, expert historian, Dr. Antonio Cantu, an ink and paper examiner, Defendant John Kalymon, and his wife, Lubow Kalymon. The Court also received and reviewed the deposition testimony of William Arket, Mario DeCapua, and William Smith, who testified about the administration of applications under the Displaced Persons Act of 1948 ("DPA"), Pub. L. No. 80-774, ch. 647, 62 Stat. 1009, and issuance of immigrant visas for entry into the United States. Finally, the Court received the deposition testimony of Roman Okpysh, a former employee of the Ukranian Auxiliary Police, who worked in L'viv during World War II. The Court received numerous documents, including P1-P18, P20-30, P34-44, P46-55, P58-89, 91-98, P100-130, P138-153, P155-162, 166-171, PR1, D1-48, D46, D52, D50, D62, and D95.
The Court, having considered the evidence submitted and the legal arguments of the parties, enters the following Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52(a).
The Government seeks the revocation of the 1955 order admitting Defendant, John Kalymon, to citizenship and cancellation of the certificate of naturalization issued to him, based upon Defendant's service from October 1941, through at least March 1944, in the Nazi-sponsored Ukrainian Auxiliary Police ("UAP"). This Court has jurisdiction to resolve this case pursuant to 28 U.S.C. § 1345 (providing district courts with original jurisdiction for civil actions brought by the United States) and 8 U.S.C. § 1451(a) (providing district courts with original jurisdiction for denaturalization actions and establishing venue in district where defendant resides).
In the Complaint, filed January 8, 2004, the Government alleges that Defendant's citizenship was illegally procured, and therefore must be revoked under Section 340(a) of the Immigration and Naturalization Act of 1952 ("INA"), 8 U.S.C. § 1451(a), because he was not "lawfully admitted for permanent residence" to the United States as required by Section 316(a) of the INA, 8 U.S.C. § 1427(a). The Government advances four grounds for denaturalization. First, it contends that Defendant's service and activities as an armed Ukrainian Auxiliary policeman in Nazi-occupied L'viv, in what now is Ukraine, included enforcement of Nazi ideologically-based persecutory measures against those whom the Nazis deemed dangerous or undesirable because of their race, religion, national origin, or political belief, especially the Jews of L'viv. The Government concludes that Kalymon's service constituted assistance in the persecution of civilians, rendering him ineligible for a visa under Section 2(b) of the DPA (Count I). Second, the Government alleges that Defendant's service in the Nazi-sponsored Ukranian Auxiliary Police ("UAP") constituted membership or participation in a movement hostile to the United States, rendering him ineligible for a visa under Section 13 of the DPA (Count II). Third, the Government asserts that Defendant willfully misrepresented his wartime service in the UAP to obtain a DPA visa, rendering him ineligible for a visa under Section 10 of the DPA (Count III). Fourth, the Government claims that by performing the duties of a Ukrainian Auxiliary policeman, Defendant "advocated or acquiesced in activities or conduct contrary to civilization and human decency," rendering him ineligible for a visa under State Department regulations in effect at the time he applied for entry to the United States (Count IV).
Defendant contests all charges.
The stipulated facts establish Mr. Kalymon's background, his service in the UAP, and his immigration to the United States. The stipulated facts also provide the backdrop of the Nazi occupation of L'viv, and establish the treatment of the Jewish population in L'Viv during the Nazi occupation. The Court's findings of facts are based not only on the stipulated facts, but also on the testimony and documents received at trial.
Because the Court received almost 200 exhibits, it limits its discussion to those exhibits most compelling to its findings. The government's first witness, Dr. Dieter Pohl, Senior Historian with the Institute of Contemporary History in Munich, Germany, a state-funded research institute, authenticated the wartime documents and placed them in their historical context. Dr. Pohl specializes in the Second World War, especially Nazi occupation policy and war crimes, and to a certain extent, on the post-war period of Communism." Tr. at 51. Dr. Pohl's knowledge of the documents and events that occurred during the relevant timeframe as well as the context and meaning of the documents greatly assisted this Court in reaching its decision on the troubling issues before it.
Defendant was born on May 16, 1921, in Komancza (Komantscha), Poland, to Teodor Kalymon and Anastasia (nee Suszko) Kalymon. Stipulated Facts ("SF") 1, 2. Mr. Kalymun's father died when he was a child, and his brother, Stepan, who was involved in the Polish resistance, was killed during World War II. Tr. at 757.
Mr. Kalymon attended school through the seventh (7th) grade, in Poland. SF 3. He left Poland in 1939, and went to Bomblitz, Germany, where he worked in a sausage casing factory. Tr. 652-53. He went to L'viv in late 1941. Id. at 677-79. When Mr. Kalymon arrived, he was a stranger in L'viv. He knew no one. He lived in a homeless shelter while searching for work. Tr. at 716. He eventually found employment as a police private in the Ukranian Auxiliary Police, also known as the Ukrainian Police out of "necessity to survive." Tr. at 653.
A. Conditions in the District of Galacia
Nazi Germany invaded Soviet Union territory in June 1941, SF 4, to create a "Lebestraum" or living space, in which it intended to install a new racial order. Tr. at 69. "Jews were at the bottom of the [racial order] hierarchy." Tr. at 80. The "general ideological belief held by the Nazi party was that the Jews were dangerous and pernicious to the German Regime." Id.
"When the Nazis invaded in June 1941, there were approximately 4.8 million inhabitants in the District of Galacia. Tr. at 70. "The majority of those were Ukraines who predominantly lived in the countryside; and second came the Poles, [who] predominantly lived in the cities; and third were the approximately 540,000 Jews, [who] also predominantly lived in the cities and towns." Id. Under Soviet rule, Ukrainians had been conscripted into the Red Army, and millions died as a result of Soviet policy. Tr. at 414.
The transition from Soviet occupation to Nazi occupation was not seamless. In late June, 1941, during the transition period, the Soviets suppressed an uprising by the Ukrainian independence movement. P1. Before the Soviets finally retreated, they committed mass murders of the intelligentsia, executed political prisoners, including Lubow Kalymon's father, a Greek Catholic priest, and set the prisons on fire. Tr. at 427, 752. The following summer there were food shortages. Tr. at 536. Forced deportation and resettlement of Ukrainians for service in the Reich was rumored and actually did occur. Id.
On August 1, 1941, Nazi Germany incorporated eastern Galicia into the so-called Government General, a territory comprising the central and southern part of what had a been prewar Poland. SF 4. The new Galician territory, designated "District Galicia," was ruled from the city of L'viv (L'vov, Lwow), which the Germans called Lemberg. Id. Tr. at 439. NonGermans had no role in government; however, they comprised the majority of personnel. The locals were "completely subordinate to the German Occupiers." Tr. at 94.
Upon their arrival, the Germans made use of indigenous forces to promote their ideology.*fn1 Dr. Pohl testified that Germans promoted spontaneous anti-Jewish violence. Tr. at 80. See P2 ( "No obstacles should be placed in the way of self-cleansing efforts in anti-Communist or anti-Jewish circles in the territories to be newly occupied."). One of the first steps taken in L'viv to effectuate the ideology was to isolate Jews from the nonJewish population. Tr. 95, 89. The second step was isolation of Jews from their property, and the third was to prepare them, or to have them prepared, for deportation. Id. Some overlap of the steps occurred. Id. When asked whether the primary tool used to keep order in the Government General in Galicia was fear, Dr. Pohl responded: "That depends on the definition of order, because order in the German sense, which at that point was highly ideological racist, meant racial order used for suppression of the Jews, for example, and other things, and, of course, in that respect, fear was a primary tool of the occupation regime." Tr. at 535. The Civil Administration also made use of the media. It included a Propaganda Section that used publications and the newspapers to promote the Nazi ideology. Tr. at 478-79.
In sum, from the outset, the Nazi occupation forces enacted a series of race-based persecutory policies against the civilian population of District Galicia, SF 5, particularly the Jews. Nazi persecutory policy toward the Jews in District Galicia included 1) confining all Jews in ghettos and issuing new identification papers that identified them as Jews; 2) forcibly removing Jews from the ghetto for subsequent murder either by shooting or gassing; and 3) sparing a limited number of Jews whom the Germans considered "work capable" until they were transferred to forced labor camps where many died from starvation, disease and other inhumane conditions. Id. The details of each step are set forth below.
Although the Civil Administration had harsh policies against all foreigners, Jews were singled out for the harshest treatment. An official document defining the concept of Jew was promulgated in August 1941. See P3. It was followed with an August 26, 1941, order that "All Jewish men and women residing in Galicia, District of Galicia, who are older than ten are obligated to wear an armband at least ten centimeters wide with a clearly visible eight centimeter star of David on the right arm of their clothing and outerwear." P4. The effective date of the order was delayed to September 15, 1941. P5. Fines were established for failure to comply. Id. Jews were given an earlier curfew, (P6), more severe trading restrictions (P7), and only one-half of the quantities of food distributions issued to the general population (P8). NonJews had to work, but Jews had to fulfill forced labor. Tr. at 81
The isolation policies were quickly followed by the Governor of the District of Galicia's November 10, 1941, announcement of the creation of a Jewish Sector in L'viv. P9. Consequently, all Jews living in L'viv were ordered to move to a newly-created Jewish ghetto north of the city center. SF 10. The operation was suspended in December and resumed in Spring 1942. Id.
During this ghettoization process, German police screened Jews moving into the quarter for personal valuables, which were seized. Id. Tr. at 89-92. The German Police also selected the infirm and elderly for immediate "resettlement," a Nazi euphemism for murder. Id. Those Jews selected were sent to a nearby forest and shot. Tr. at 179-80. Approximately 50,000 Jews were moved to the Ghetto, and between 5000 and 6000 were shot. Id., P55.
Ukrainians and Poles living in the designated sector were required to leave before December 14, 1941. Id. Jews were permitted to take only their "personal absolutely essential goods and equipment," id. at ¶ V, whereas Poles and Ukrainians were free to take all their possessions. Jews were permitted to enter and leave the residential sector only in designated areas, which were different that the egress designated for nonJews. Id.
After December 14, 1941, only Jews were allowed to enter the Jewish residential sector. The Jewish Council, or Judenrat, was responsible for ensuring orderly resettlement. Id.; Tr. at 187. Jews leaving the sector assigned to them without permission could "be punished by death. . .as [could] persons who knowingly provide[d] protection for Jews." P9, P28. The documents show that, at a minimum, nonJews were arrested and detained for hiding Jews. P28.
Jews employed in businesses related to the military economy were excepted, and a district for Jews who worked as craftsmen or skilled workers was created outside the ghetto. P10, P11. Around 20,000 skilled laborers lived outside the ghetto. Tr. at 100. A June 30, 1943, Report by Katzmann, the SS and police leader in the District, explains that "[b]ecause of the peculiar circumstances that 90 percent of the craftsmen in Galicia were Jewish. . .immediate removal would not have been in the interest of the war economy." P11, P58, Tr. at 185.
German security forces in L'viv began the reduction of the ghetto's population in a series of actions in March 1942, even as the ghetto was itself still being consolidated. SF 11. In preparation of the March Operation, several policies were enacted. Worker identification cards with photos were required to facilitate presorting. Tr. at 189-90, P60. Jews wearing "A" armbands included those deemed indispensable to the war economy. Those given "B" armbands were deemed capable of work; those with "C" armbands were incapable of work, and the first to be "deported." Tr. at 190.
The March Operation involved two stages. Tr. at 189. In the first, German and Ukranian police and the Jewish Order Service went through the ghetto and arrested those people to be resettled. "Jews without residences, unemployed persons and welfare recipients, the so-called anti-social elements" were identified. P63. Those deported were permitted to bring "200 Zlotys, 25 kilograms of luggage and provisions" in order to hide the true purpose. P63, Tr. at 196. It subsequently became clear that resettled/deported meant exterminated. Id. at 192, P61.
German municipal police and Ukrainian Police, including the 5th Commissariat, conducted the second stage more forcefully. Id. P64-P69, P71-78 Tr. 188-89, 194-95, 201-06. Jews were first collected at Sobieski School, then transferred to a railhead on the edge of the city. P63. German city police and Ukrainian police guarded the school. Tr. at 193, P64. Most of the people collected were sent by train for "labor deployment in the East." In reality, they were sent to the gas chambers of Belzec extermination center, outside of L'Viv. Tr. 188-89, 192-96, P61, P62, P63. After about four days, the SS took over the March operation to correct the inefficiencies attributed to the municipal police. Employers were allowed to undermine the stated goal to deport one thousand Jews each day because hundreds of Jews were released to employers at the school. Accordingly, the awaiting box cars were not filled to capacity. Id. at 197, P62, 63. Eye witness testimony revealed that treatment at the school was brutal. Jews were beaten, humiliated and spat upon. P63. As Jews lined up and boarded the awaiting transport, police beat them with sticks and rubber truncheons. Id. Approximately 20% died during transport. At the conclusion of the March Operation, approximately 15,000 Jews were deported. P66, P67, P72.
A follow-up report on transgressions committed during the March Operation confirms that Jews were abused for no reason, and work registration certificates were destroyed. P70. As a consequence, UAP employees were ordered to receive instruction on the prohibited actions, id., which they did. See P71. The records also show that Jews attempted to hide during the March Operation, P74, and attempted to buy their freedom, P75, P76, P78, and that panic spread through the Ghetto during that time. After the March operation, Germans and Ukrainians were reported to have become the worst enemies of the Jews. P21.
Another round-up of Jews took place in L'viv on June 24-25, 1942. SF 15. Approximately 1,000 Jews were sent to Janowska Forced Labor Camp or were "resettled" locally, i.e., shot in the forest outside the city. P86-89, Tr. at 235-36. The 5th Commissariat participated in the June 1942 round-up. P86, P87, Tr. at 236-42, 256-58.
In August 1942, German authorities began the largest ghetto reduction action against the residents of the L'viv Jewish ghetto, an action commonly known as the "Great Operation." SF 14. The Great Operation occurred shortly after the July 19, 1942, superior order for the August action was issued by the Chief of the German Police and SS, Heinrich Himmler. Himmler demanded a "total cleansing" of the Jewish population. He directed " that the resettlement of the entire Jewish population of the Government General be carried out and completed by 31 ...