ILW.COM - Summary Judgment for Denaturalization

Jeffrey L. Menkin, UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF SPECIAL INVESTIGATIONS, Washington, D.C., for Appellee. ON BRIEF: Joseph T. McGinness, Cleveland, Ohio, for Appellant. Jeffrey L. Menkin, Susan Masling, William Henry Kenety V, UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF SPECIAL INVESTIGATIONS, Washington, D.C., Michael Anne Johnson, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.

CLAY, J., delivered the opinion of the court. NELSON, J. (p. 26), delivered a separate opinion concurring in part. BOGGS, J. (pp. 27-55), delivered a separate dissenting opinion.

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OPINION

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CLAY, Circuit Judge. Defendant Algimantas Dailide appeals from the district court's order granting partial summary judgment to the United States, on Counts I and IV of the government's six-count complaint brought pursuant to § 340(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1451, seeking to revoke Dailide's citizenship and cancel the Certificate of Naturalization issued to him, while dismissing the remaining counts without prejudice. In Count I of the complaint, the government alleged that Dailide was guilty of the persecution of civilians in violation of § 2(b) of the Displaced Persons Act of 1948 ("DPA"); and, in Count IV of the complaint, the government alleged that Dailide made material misrepresentations during the immigration process which rendered him ineligible for admission to the United States under § 10 of the DPA. For the reasons set forth below, we AFFIRM the judgment of the district court.

Dailide was born on March 12, 1921, in Kaunas, Lithuania. On June 22, 1941, Nazi Germany invaded Lithuania, along with its capital, Vilnius, and reestablished a police force known as the Saugumas that had existed under the Soviet occupation of Lithuania but had disbanded prior to the German invasion. Dailide voluntarily joined the Saugumas in 1941, and served until 1944, when the Saugumas dissolved along with the Nazi regime. According to Dailide, he was first hired as a Saugumas clerk in late June of 1941, and about six months later was then made a Saugumas police candidate. During this time, the infamous Aleksandras Lileikis became Chief of the Vilnius Saugumas.(1) Also during this period, Dailide claims that he worked in the Communist Section(2) of the Saugumas for approximately two weeks, and then was transferred to the Information Section of the Saugumas, where he gathered background information on prospective employees, including their nationality and citizenship. Thereafter, around the end of 1942 or early 1943, Dailide contends that he was given a field assignment, at which time he was issued a firearm which he claims he carried but never used.

The record details the role the Saugumas played during the Nazi occupation of Lithuania as follows:

During the first days, apart from the formation of the partisan auxiliary squad, a Lithuanian Security Police and Criminal Police force was created. . . . The Lithuanian Security and Criminal Police operates according to the orders and guidelines provided to them by Einsatzkommando 3 and its activities are under constant surveillance [kontrolliert] and, as much as possible, they are used for security police work which cannot be performed by the SD's own personnel, particularly searches, arrests, and investigations. . . .

(J.A. at 501-02.) The Einsatzkommando 3 was a subunit of four mobile killing units responsible for the destruction of Jews in the Nazi-occupied areas of the Soviet Union. The Einsatzkommando 3, commanded by SS Colonel Jaeger, was specifically responsible for the execution of all Jews in the Vilnius region. The killing of the Vilnius Jews was conducted in three stages: 1) the Jews were arrested and transferred to Vilnius' Lukiskes Hard Labor Prison where they were kept in open cells; 2) the Jews were marched or driven from Lukiskes Prison to Paneriai, a wooded site about six miles outside Vilnius; and 3) the Jews were shot and killed in groups. The record indicates that SS Colonel Jaeger reported to SS General Stahlecker that the Einsatzkommando 3 accomplished its goal of eliminating Jews from Lithuania:

Today I can ascertain that the goal of solving the Jewish problem for Lithuania has been attained by Einsatzkommando 3. There are no Jews in Lithuania anymore, apart from work Jews, including their families. . . . I wanted to finish off these work Jews and their families as well but that brought me a sharp challenge from the Civilian Administration (the Reich Commissar) and the Wehrmacht [Armed Forces] and brought about this prohibition: These Jews and their families may not be shot!

(J.A. at 485.)

Dailide denies knowing that a relationship existed between the Saugumas and the German Police or military authorities. He also denies having any personal knowledge that Jews were shot at Paneriai, although he admits to having heard such a "rumor." However, according to the Government's expert historian, Dr. Yitzhak Arad, who has testified in similar denaturalization proceedings, by the end of 1941, approximately 30,000 Vilnius Jewish civilians had been killed by the Saugumas. Dr. Arad, who relied on records from the Lithuanian Central State Archives in Vilnius, on records from his own files, and on records held by the United States National Archives, stated in his affidavit that Vilnius killings were conducted in the three-step process described above, and, although the Jews arrested by the Saugumas were nearly always shot and killed, those Jews who were not initially killed were confined to one of two ghettos. According to Dr. Arad, ghetto conditions were wretched, in that the overcrowded conditions led to lice, filth, and disease; food and firewood were scarce; electrical appliances were banned; the exits of the ghettos were sealed by barbed-wire obstructions, and the doors and windows that faced the streets were barricaded; telephone and postal communications were forbidden; and Jews attempting to smuggle food into the ghetto were shot. The ghettos were liquidated in 1941 and in 1943, respectively, with a total of approximately 55,000 Vilnius Jewish civilians killed.

Dailide left Lithuania in 1944, and fled to Germany as a refugee. Dailide remained in Germany until 1949, and eventually entered the United States in 1950 as a non-quota immigrant under a DPA visa. In order to ultimately obtain his DPA visa, Dailide had to undergo a three-step process. First, he had to qualify as a refugee within "the concern" of the International Refugee Organization ("IRO"); second, he had to receive a determination of displaced-person status by the Displaced Persons Commission ("DPC"); and third, Dailide had to qualify for and receive a visa from the United States Department of State.

After apparently qualifying as a refugee under the IRO, Dailide completed a personal history form prepared by the United States Army's Counter Intelligence Corps. ("CIC"), an organization which conducted investigations and interviews of applicants on behalf of the DPC. The personal history form asked Dailide for the "[e]xact description" of his activities during the war. Dailide stated that during 1942-44 he was employed as a "practitioner forester" in Vilnius, Lithuania. Moreover, the form asked whether the applicant had been involved in any police service membership, to which Dailide responded, "No." Dailide claims to have concealed his membership in the Saugumas for fear of repatriation to the Soviet Union. Dailide eventually received displaced-person status, was granted a DPA visa, and entered the United States on February 19, 1950. Dailide then applied for naturalization on February 3, 1955, which was granted by order of the United States District Court for the Northern District of Ohio on September 6, 1955. Dailide currently resides in Brecksville, Ohio.

In July of 1993, after Saugumas records became available to outside investigators, Immigration and Naturalization Service ("INS") agents and the Office of Special Investigations ("OSI") personnel interrogated Dailide at his office in Cleveland regarding his role in the Saugumas. Thereafter, on December 7, 1994, the Government filed a six-count complaint seeking to revoke Dailide's citizenship and cancel his certificate of naturalization pursuant to § 340(a) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1451(a). The government sought summary judgment on Count I, which alleged that Dailide was guilty of assisting the enemy in persecuting civil populations in violation of § 2(b) of the DPA, and on Count IV, which contended that Dailide made material misrepresentations during the critical stage of the immigration process in violation of § 10 of the DPA. The district court granted the government's motion for summary judgment on these two counts on January 29, 1997, and on February 28, 1997, the district court entered an amended order granting the government's motion, and dismissing the remaining counts without prejudice. See United States v. Dailide, 953 F. Supp. 192 (N.D. Ohio 1997). Dailide then filed a timely notice of appeal.

II.

Standard of Review -- Summary Judgment & Denaturalization Proceedings

This Court reviews a district court's order granting summary judgment de novo. Equitable Life Assur. Soc'y v. Poe, 143 F.3d 1013, 1015 (6th Cir. 1998). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56. The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-moving party's case. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317; 106 S. Ct. 2548 (1986)). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a fact is "genuine" requires consideration of the applicable evidentiary standard. Id. A fact is "material" only if its resolution will affect the outcome of the lawsuit. Id. Once the moving party satisfies its burden, "the burden shifts to the nonmoving party to set forth specific facts showing a triable issue." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574; 106 S. Ct. 1348 (1986).

In denaturalization proceedings the government carries a heavy burden of proof. Fedorenko v. United States, 449 U.S. 490, 505 (1981). The evidence justifying revocation of citizenship must be "clear, unequivocal, and convincing" and not leave the issue in doubt. Id. However, the defendant bears an equally heavy burden in establishing that he strictly complied with all the congressionally imposed prerequisites to the acquisition of citizenship, because his failure to comply with any of these conditions renders the certificate of citizenship "illegally procured," and naturalization that is unlawfully procured can be set aside. Id. at 506.

As noted by the district court, although the government bears a heavy burden in denaturalization proceedings, the facts of a case may be such that revocation of citizenship at the summary judgment stage may be appropriate. See, e.g., United States v. Koreh, 59 F.3d 431 (3rd Cir. 1995); United States v. Lileikis, 929 F. Supp. 31 (D. Mass. 1996); United States v. Leprich, 666 F. Supp. 967 (E.D. Mich. 1987). Those supportive of Dailide may attempt to distinguish these cases by arguing that the acts of the defendants therein were somehow more egregious than those of Dailide. We are unpersuaded by such an argument where the degree of persecution is not at issue. Rather, the issue is whether Dailide engaged in such persecution and, specifically, at the summary judgment stage, whether a genuine issue of material fact remained for trial as to his participation in the persecution. Indeed, under the facts of this case, we find the evidence that Dailide assisted the enemy in persecuting civil populations and willfully misrepresented material facts for purposes of gaining admission to the United States to be so "clear, unequivocal, and convincing," that no stronger or more obvious a case exists for summary judgment.

Apologists for Dailide may also argue that summary judgment was not appropriate because it has been said that, "where the fate of a human being is at stake, we must not leave the presence of his evil purpose to conjecture." Knauer v. United States, 328 U.S. 654, 659 (1946). However, under the facts of this case, to find that the presence of Dailide's evil purpose was mere conjecture would be a travesty of justice and make a mockery of the process by which traditional denaturalization proceedings should occur. To deny the government's motion here would do nothing more than protect one who clearly, as a matter of law, failed to comply with all the congressionally imposed prerequisites to the acquisition of citizenship.(3) Fedorenko, 449 U.S. at 505.

III.

Congressional Prerequisites for Citizenship & Basis for Denaturalization

Pursuant to § 1451(a), citizenship may be revoked and the certificate of naturalization may be canceled if both were "illegally procured or were procured by concealment of a material fact or by willful misrepresentation." 8 U.S.C. § 1451(a) (1994). One of the requirements to "legally" obtain a naturalization order and certificate is that the applicant was "lawfully admitted for permanent residence." 8 U.S.C. § 1427(a)(1) (1994). Lawful admission for permanent residence, in turn, requires that the applicant enter the United States pursuant to a valid immigrant visa. Fedorenko, 449 U.S. at 515.

Therefore, entry into the United States under an invalid visa is a failure to comply with congressionally imposed statutory prerequisites to citizenship which renders any certificate of citizenship revocable as illegally procured under § 1451(a). The government contends that Dailide unlawfully obtained admittance to the United States because he did not obtain a valid visa inasmuch as he (1) assisted the enemy in the persecution of civil populations, and (2) willfully misrepresented material facts for purposes of gaining admission to the country.

IV.

Whether Dailide Assisted the Enemy in the Persecution of Civil Populations

As stated, Dailide entered this country in 1950 as a non-quota immigrant under a DPA visa. In order to have qualified as an eligible displaced person for purposes of emigration into the United States under the DPA, the applicant must have been a "displaced person" as defined in the DPA. Pursuant to § 2(b) of the DPA, "'Displaced Person' means any displaced person or refugee as defined in Annex I of the Constitution of the International Refugee Organization [IRO] and who is the concern of the International Refugee Organization." In turn, the IRO sets forth a number of groups who are not "of concern" to the IRO, and include persons "who can be shown to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations." IRO Manual, Annex I, Part II, §16 (2)(a). Accordingly, if the government is able show that Dailide assisted in the persecution of civilians, it would succeed in its claim that Dailide was not eligible for a DPA visa at the time he entered this country.(4)

The Fedorenko Court emphasized that the proper focus in ascertaining whether one "assisted in persecution" should be on conduct of the individual, noting that mere membership in an enemy group was not sufficient to constitute assistance in persecution. 449 U.S. at 513-14 n.34. By way of example, the Court noted as follows:

[A]n 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. Id. However one's conduct, even if involuntary, may rise to the level of assisting the enemy in persecution, id.; "[t]here need be no personal participation by the defendant in the commission of physical atrocities." Koreh, 59 F.3d at 442.

In short, the determination of whether a defendant's individual conduct could be considered as assisting the enemy in this regard must be determined on a case-by-case basis with reference to the relevant facts. Fedorenko, 449 U.S. at 513-14 n.34; Koreh, 59 F.3d at 439. Whether Dailide's individual conduct rose to the level of assisting the Nazi regime in persecuting Jews as a matter of law requires a two-step inquiry. First, we must determine whether a genuine issue of material fact remains for trial as to whether the Saugumas persecuted civil populations; and second, whether a genuine issue exists as to whether Dailide assisted the Saugumas in the persecution.

1. Role of the Saugumas

The government presented documents that revealed the role the Saugumas played in assisting the Nazi regime in persecuting Jews. Specifically, the government produced the Stahlecker Report which detailed the role the Lithuanian Security Police and Criminal Police played during the Nazi occupation of Lithuania. See supra discussion Part I. The Stahlecker Report stated that the Saugumas were used to assist Einsatzkommando 3, particularly with searches, arrests, and investigations.(5) The Saugumas apparently carried out their operations satisfactorily, receiving praise from SS General Stahlecker. The General noted in his report that "[a]fter the removal of the accused and unfit personnel and under the constant surveillance [kontrolliert] of Einsatzkommando 3, the Lithuanian Security and Criminal Police produced entirely satisfactory work . . . ."

Dailide argues that the government's translation of the Stahlecker Report changes the German word kontrolliert to "control" instead of Dailide's preferred translation "surveillance." However, viewing the translation as meaning "constant surveillance" as opposed to "constant control" the Stahlecker Report still shows that the Germans created, staffed, and directed the Saugumas.

Moreover, Dr. Arad stated in both his affidavit and deposition that Jews who were arrested by the Saugumas were almost always shot at Paneriai. Dr. Arad gave accounts of some of the atrocities committed by the Saugumas. For example, Dr. Arad stated that the Saugumas arrested two Jews, Saulius Varsaskis and Jenta Rachmaniene, for escaping from the ghetto, and ordered them transferred to the Chief of the German Security Police. Varsaskis' prison card states that he was treated "in accordance with orders" on December 22, 1941. According to Dr. Arad, the phrase "dealt with in accordance with orders" was a German euphemism meaning that the prisoner was killed.

Dr. Arad provided another example where two Jews, Gitta Kaplan and her six-year-old daughter Fruma, were arrested by the Vilnius Saugumas for escaping from the ghetto. Thereafter, the Saugumas ordered them transferred to the Chief of the German Security Police, and both were "dealt with in accordance with orders" on December 22, 1941. As to the arrests of Gitta and Fruma Kaplan, the Lileikis court noted as follows when it considered this same evidence:

[T]he arrest of a woman solely because she was suspected of being a Jew, and the confinement of a six year old girl in a hard labor prison for "hiding" after being spirited from a ghetto by her mother, would satisfy even the most liberal construction of the term "persecution."

929 F.Supp at 39 n.14.

Dailide argues that Dr. Arad's opinion as an expert should be discounted because he had "no personal knowledge" of the Saugumas when he drafted his affidavit. He raised this same argument below in his motion to bar Dr. Arad as a witness. The district court denied Dailide's motion and found that Dr. Arad was competent as an expert. In reviewing the record, we find no reason to doubt Dr. Arad's competence; his affidavit cites the facts and documents upon which his opinion is based, and his opinion is well-informed. More importantly, experts may base their testimony upon information not within their personal knowledge or observation. See Fed. R. Evid. 702, 703. In addition, it should be noted that the Lileikis Court found that Dr. Arad's analysis of some of the same Lithuanian documents used in this case was credible when used in Lileikis' denaturalization proceeding. See Lileikis, 929 F. Supp. at 38; see also Backes v. Valspar Corp., 783 F.2d 77, 79 (7th Cir. 1986) (finding that a witness' testimony in a closely related suit indicates competence).(6)

Based upon the Stahlecker Report and events documented in Dr. Arad's affidavit regarding the activities of the Saugumas, we hold that no genuine issue of material fact remains as to whether the Saugumas assisted the Nazi regime in persecuting the Jews in Lithuania, particularly during the time when Dailide was a member of the Saugumas - that being the years 1941 through 1944. Accordingly, we must now examine Dailide's role as a member of the Saugumas to determine whether a genuine issue of material fact remains that Dailide assisted the Saugumas in this persecution.

2. Individual Conduct of Dailide

It is undisputed that Dailide was an active member of the Saugumas. He conceded to detaining and searching Jewish civilians escaping from the ghetto, to interviewing prisoners held at Lukiskes prison, and to carrying a police sidearm. This admission by Dailide in itself shows that no genuine issue of fact remains for trial as to whether Dailide assisted the Saugumas in persecuting Jewish civilians. In United States v. Osidach, 513 F. Supp. 51, 99 (E.D. Penn. 1981), the court found that the defendant's "role as an armed, uniformed interpreter for either the Ukrainian police's or the German gendarmes' interrogation of suspects could be classified as both physical and mental persecution." The court reasoned that:

The mere presence of the watchful eye of the conqueror or his deputies, coupled with the often demonstrated presence of both the means and the inclination to persistently inflict various indignities, physical abuse, injuries or even death, without notice or reason, is the personification of mental persecution, to anyone, let alone innocent civilian men, women and children reduced to various degrees of substandard mental and physical well-being.

Id.

Similarly, as in Osidach, Dailide's act of interviewing prisoners held at Lukiskes Prison, which as stated previously was an intermediate stop to Paneriai, constituted mental persecution. Dailide admitted that, while at the prison, he would be escorted by a guard to a room, and the guard would then bring in the prisoner to be interviewed. Dailide would then ask the prisoner various questions, including the prisoner's history and the reason for his arrest.

At the time of Dailide's interviews, the jails were overcrowded. There was a need to screen prisoners and separate out the innocently arrested from the serious offenders as defined by the Germans, - i.e., criminals, Communist functionaries, politruks, and others the Germans considered "riffraff" - so that the serious offenders could be liquidated. As stated by Dr. Arad, the data that Dailide obtained from his interviews was used to determine which prisoners would be released and which prisoners would be liquidated, and according to SS Colonel Jaeger, the task of interviewing the prisoners held at the Lukiskes Prison was one of the Einsatzkommando's most important tasks in fulfilling the Nazi regime's ultimate goal of genocide. Thus, it is reasonable to conclude that to prisoners held at Lukiskes, the answers that they provided to Dailide during his interrogation determined whether they lived or died. Although it is true that this Court is not bound by the Eastern District of Pennsylvania's holding in Osidach, we embrace the Osidach court's sound reasoning and analysis. We decline the dissent's invitation to put form over substance and ignore the Osidach's court's logic and legal acuity, particularly under the compelling and undisputed facts of this case.

In addition, we disagree with the dissent's contention that a genuine issue of fact exists for trial as to whether Dailide assisted the Saugumas in the persecution of Jewish civilians because Dailide claims that he was not armed when he interrogated the prisoners at Lukiskes, inasmuch as he was not issued the weapon until he was assigned to do field work in 1942. We do not believe that Dailide's being armed or unarmed at the time of the interrogation rises to the level of a genuine issue of material fact for trial. The issue of Dailide's assistance in the persecution of innocent Jewish civilians is not dependant upon whether he was armed at the time; rather, it is Dailide's acts as a uniformed member of the Saugumas which are at issue. Reviewing such acts, it is undisputed that Dailide was a uniformed member of the Saugumas when he interviewed the prisoners, that he was accompanied by a guard when escorted to the prisoners' cells, and that the prisoners were put to death depending upon how they answered the questions asked of them. Accordingly, whether Dailide was armed or unarmed, these defenseless Jewish civilians were at his mercy. It is irrelevant whether Dailide actually "pulled the trigger" in this chain of genocide where his acts proved him to be an inextricable link in the ultimate result -- the death of innocent Jewish civilians. See Anderson, 477 U.S. at 248 (finding that a fact is "material" for purposes of summary judgment only if its resolution will affect the outcome of the lawsuit).

It is impossible for this Court, or any free citizen of the United States who has never known the fear of being occupied by an enemy, to fully appreciate the terror and sense of desperation that must be felt by the mere presence of an enemy official, particularly at the time of the Nazi regime. However, to the best that anyone standing in our shoes is able to do so, we find that Dailide's acts of interrogating these defenseless prisoners -- who had been forced to suffer the physical atrocities of living in the ghettos -- to be the height of mental persecution. These defenseless prisoners, whose only offense was escaping from the plight of the ghettos, knew of the genocide at the time and realized that they could fall prey to Adolf Hitler's goal depending upon how they answered the questions Dailide asked of them.(7)

Although we hold that Dailide's admission of interviewing prisoners in this case to be sufficient as a matter of law to find that Dailide assisted in the persecution of Jewish civilians, we are further persuaded in our decision by four documents presented by the government.

Document 1, the Milinavicius Report dated October 31, 1941, states in relevant part:

It has been reported to me that two Jews, IZRAEL SOAK and RIVA SOAK, are staying overnight at Apt. 2, 51 Krokuvos Street, the residence of LEON LEJSAK, a citizen of Polish nationality. They have escaped from the Ghetto with the objective of leaving for Beniakonys. They were waiting for a truck at the residence of the above listed Pole. LEON LEJSAK probably has contacts with Jews, and he himself said that he knew that they were waiting for a car. Officers LEONAS KAULINIS and ALGIMANTAS DAILIDE took part with me. We conducted a search and arrested (sulaikyti) the Jews on 30 October.

(J.A. at 136.) (emphasis added). Dailide argues that the government mistranslates the word sulaikyti to mean "arrest" rather than "detain," and that the above document suggests that a "personal" search was done rather than a search of the premises. Regardless of which translation is applied, the record indicates that the Jews were taken into custody and placed in prison; therefore, they were "arrested' in every sense of the word.(8)

Document 2, the Regina Report, dated October 31, 1941, states that several officers, including Dailide, detained twelve Jews attempting to escape from Vilnius in the direction of Lyda. The list of Jews detained included the Soaks mentioned in the Milinavicius Report. The report further states that "[a]ll were transported to the Security Police; a personal search was performed, and they were placed into the jail." This report clearly rebuts Dailide's contention that the Jews were merely detained and then released.

Document 3, the List of Jews Arrested by the Lithuanian Security Police, dated November 5, 1941, indicates that the Soaks and the other ten Jews still remained incarcerated as of November 5, 1941. The report ends by stating that all the Jews are in the Lukischkiai Prison and at the "disposition of the German authorities".

Finally, Document 4, the Dailide Report dated November 3, 1941, states that Dailide executed a personal search of "the Jew Mark Sapyro." Dailide inventoried several items including money which was turned over to the Germans. Mark Sapyro was listed on Document 3 as Mark Sapiro, and thus, was at the "disposition of the German authorities", as well. According to Dr. Arad, this "handover to the German Security Police . . . almost inevitably meant death by shooting at Paneriai."

Furthermore, two affidavits in the record also support the conclusion that Dailide assisted in the persecution of Jewish civilians, and thus was not eligible for a visa. The affidavit of Daniel Ashe, Case Analyst for the DPC from December 1948 to September 1949, stated that if any one of the allegations by the government were true (i.e., Dailide's active service in the Nazi controlled Saugumas, and Dailide's individual conduct such as arresting and inventorying the possessions of Jews), Dailide would not have been eligible for admission into the United States. The affidavit of Michael Thomas, Chief Eligibility Officer for the entire IRO and co-author of the IRO Manual, states as follows:

[A]n applicant for IRO relief who had served in the Lithuanian Security Police during the Nazi occupation and (1) participated at any time as an armed police officer in the arrest of Jews attempting to escape the Vilnius ghetto or (2) participated as an armed police officer in the search of one or more Jews and/or confiscated their money to be turned over to Nazi authorities, would have been ineligible for IRO relief under Part II (a), Annex I of the IRO Constitution, which precluded giving IRO relief to those who assisted the enemy in persecuting civil populations.

(J.A. at 641.)

We find that these documents show that no genuine issue of material fact remains for trial that Dailide assisted the Saugumas in the persecution of Jewish civilians, particularly when coupled with his admission as discussed earlier. Clearly, Dailide's acts, as detailed in these documents, went well beyond the innocuous (such as the barber who worked for the Saugumas and cut the Jewish prisoners' hair); rather, Dailide's actions provided an inextricable link in the Nazi regime's chain of genocide. Accordingly, because Dailide assisted in the such persecution, he did not obtain a valid visa into the United States as a matter of law. See Fedorenko, 449 U.S. at 505.

We reject the arguments that these documents merely show that Dailide participated in "rounding up" or detaining Jewish civilians trying to escape from the ghettos, and that "persecution" is nowhere defined either literally or figuratively for purposes of barring him from receiving displaced-person status. It is not difficult to see the fallacy of these arguments which we find to be contrary to the requirements of the naturalization process. By arguing that "persecution" is not adequately defined, the dissent seems to be making the illogical and unreasonable claim that "rounding up" Jewish civilians for purposes of turning them over to the Nazis for imprisonment or death does not satisfy the commonly understood definition of "persecution." To say that a reasonable person could conclude that Dailide's acts, as made known through these documents, would not have been regarded as sufficiently persecutory to bar him from receiving displaced-person status is completely unpersuasive. Contrary to the dissent's contention, the issue here does involve whether "Nazis are evil;" indeed, it is the Nazis' "evilness" in persecuting civil populations which makes assisting them in such acts a basis for denaturalization. But for Dailide's efforts in assisting the Nazis in their evil enterprise, we would not be visiting this issue today, nor would Dailide have had reason to lie when he applied for his visa to gain entry into this country, as will be discussed in the next section.

Whether Dailide Willfully Misrepresented Material Facts about his Wartime Activities

Dailide argues that the lower court erred in finding that no genuine issue of material fact remained for trial that he misrepresented facts about his wartime activities when applying for an immigration visa. Once again, we disagree.

Section 10 of the DPA states the following: "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." The phrase "misrepresentation for the purpose of gaining admission into the United States" has been defined as wilful misrepresentation, oral or written, to any "person while he is charged with the enforcement or administration of any part of the act, of any matter, material to an alien's eligibility for any of the benefits of this act." 8 C.F.R. § 700.11 (1950).

When applying for his DPA visa, Dailide completed a personal history form prepared by CIC. The CIC conducted investigations and interviews of applicants on behalf of the DPC, which administers the DPA. DPC case analysts were responsible for reviewing all of the documentation concerning each applicant to determine the applicant's eligibility and desirability to enter the United States. According to Ashe, standard procedure called for the analysts to review the file of an applicant, including information received from the CIC and other agencies. The DPC case analyst usually did not interview the applicants again. After reviewing the information contained in an applicant's file, the DPC case analysts prepared a final report. If the application was approved, it was then forwarded to a Vice Consul for further review. If the application was approved by a Vice Consul, an immigration visa was authorized.

Here, Dailide claimed on his personal history form that during the years 1942 through 1944, he was employed as a "practitioner forester" in Vilnius, Lithuania. In addition, Dailide's personal history form also indicates that he denied any police service membership. This form was sent by the CIC, with other relevant documents to the DPC. The DPC's final report prepared by a case analyst, repeats the "practitioner forester" misrepresentation virtually verbatim.

While acknowledging these statements in his personal documents, Dailide claims that they do not constitute wilful misrepresentations because he concealed his membership in the Saugumas for fear of repatriation to the Soviet Union. We are not persuaded by Dailide's argument where it has been found that an individual giving "false information in connection with his application for a DPA visa so as to avoid the possibility of repatriation to the Soviet Union" has made a willful misrepresentation for the purposes of § 10 of the DPA. Fedorenko, 449 U.S. at 507. In addition, because we have concluded that Dailide's individual conduct of assisting the Saugumas in the persecution of Jews would have rendered him ineligible for a visa, we also find that such wilful misrepresentations were material. See id. (finding that § 10 of the DPA only applies to willful misrepresentations about "material" facts, and that a misrepresentation is material if disclosure of the true facts would have made the applicant ineligible for a visa).

Dailide argues, however, that he did not violate § 10 of the DPA because his alleged misrepresentations were to the CIC, an organization that is not "charged with enforcement or administration" of the DPA. Dailide notes that the misrepresentations appeared on the CIC questionnaire, which was included in his CIC file; thus, he argues that since he did not make misrepresentations directly to the DPC, an organization charged with administration of the DPA, he did not violate § 10 of the DPA.

In support of the foregoing contention, Dailide cites several decisions from the Bureau of Immigration Affairs ("BIA"), and a 1951 letter from Attorney General McGrath to the Chairman of the BIA ("McGrath Memorandum"). We find only two of the BIA cases to be relevant: In re Suess et al., Nos. A-7927755-57 (Sept. 26, 1951), approved by Att'y Gen. (Oct. 16, 1951), and In re Altman et al., Nos. A-7991300-01 (Sept. 26, 1951), approved by Att'y Gen. (Oct. 16, 1951).

In Suess, the applicant admitted that she deliberately, knowingly, and falsely informed the representatives of the IRO and the CIC that she resided in Germany during a period of her absence from Hungary. She claimed she falsified her whereabouts for fear that she would be denied entry into the United States under the DPA. The applicant voluntarily disclosed her falsity when she made a sworn application for a visa. The BIA held that the CIC was not charged with enforcement of the DPA, but only with assisting the DPC in carrying out its responsibilities. Therefore, inasmuch as the misrepresentation was only made to the CIC, the BIA held that the applicant did not violate § 10 of the DPA.

Similarly in Altman, the applicants misrepresented to both the IRO and the CIC exactly when they entered Germany. That information was passed to the DPC. A DPC case analyst reviewed the documentation, and disqualified the applicants, not because of the misrepresentation, but for lack of required residence in Germany. Thereafter, the case was renewed, the applicants were called before the case analyst and placed under oath. They revealed the true facts, and confessed to the false statements. Citing Suess, the BIA held that since the applicants never gave false statements to the DPC, § 10 of the DPA did not apply. However, it was noted that had the applicants persisted in their false statements before the DPC case analyst, a different result would have occurred.

The Suess and Altman cases can easily be distinguished from the case at hand. In both of these cases, the DPC never relied on the misrepresentations because the applicants recanted their statements before approval by the DPC. Here, Dailide never recanted the statements made to the CIC. As noted in the Altman decision, without the applicants' recantation, they would have been found liable under § 10 of the DPA. Moreover, it is clear the DPC relied on Dailide's misrepresentations; the DPC report repeats almost verbatim the false employment history of Dailide.

Furthermore, the above cases can be distinguished because they dealt with misrepresentations concerning residency and should be limited to only that situation. The McGrath Memorandum buttresses this point in stating as follows regarding the interpretation of the Suess and Altman decisions:

At the time I approved the Board's orders in these cases, my decision was necessarily based on the individual records presented to me for review. Since the receipt of your memorandum I have reexamined the entire question and have had discussions with members of my staff. Had I had the additional background information furnished in your memorandum, as well as the discussions had with my staff, at the time I considered the Suess and Altman cases, I might have arrived at a different conclusion. However, in view of the fact that many cases probably have already been processed in the light of these decisions and the fact that the program is drawing to a close, I am not disposed to disturb these decisions at this time. The decisions, however, should be limited to stand for the following propositions:

(1)A misrepresentation as to residence, is a misrepresentation as to a material fact and when made to the Displaced Persons Commission, to a United States Consul, or to the Immigration and Naturalization Service, constitutes a misrepresentation within the contemplation of Section 10 of the Displaced Persons Act.

(2)Such misrepresentation to the Counter Intelligence Corps of the United States Army, even if wilfull [sic] and as to a material fact, is not a misrepresentation within the contemplation of Section 10, since the Counter Intelligence Corps is not an agency charged with the enforcement or administration of the Displaced Persons Act.

(J.A. at 410.) (emphasis added).

Attorney General McGrath notes in his memorandum that had he contemplated the question further, before rendering a decision, he may have reconsidered his approval of these cases. In light of this fact, McGrath limits the holding of these cases to apply only in situations of misrepresentations of residency. In addition, the McGrath Memorandum expressly states that the holdings in both Suess and Altman are limited to misrepresentation "as to residence."(9) Because Dailide's false statements concerned his involvement in the persecution of civilian populations, not residency, neither Suess nor Altman support Dailide's contention.

VI.

For the foregoing reasons, we AFFIRM the district court's order granting the government's motion for summary judgment on Counts I and IV of the government's complaint. In doing so, we are mindful of the heavy burden placed upon the government in a denaturalization proceeding; however, we are also mindful of the requirement for Dailide to have strictly complied with congressionally imposed prerequisites of citizenship. Under these facts, we cannot imagine a more compelling case for finding noncompliance as a matter of law, where no genuine issue of material fact remains that the government's overwhelming evidence against Dailide is "clear, unequivocal, and convincing." For us to find otherwise under these facts would be a travesty and would serve no purpose but to allow a persecutor who willfully participated in Adolf Hitler's attempt to eliminate the Jewish population through genocide to enjoy the fruits of being a United States citizen -- no greater insult could be done to the spirit and purpose of the principles upon which this country was built.

Parenthetically, it must be said that the dissent's attempt to minimize the force of the opinion and holding of the majority by pointing out that Judge Nelson's concurrence rests on his agreement that Dailide assisted the enemy in the persecution of civil populations is out of line and misplaced. First, contrary to the dissent's mischaracterization, Judge Nelson's concurrence does not rest solely on Dailide's participation in the arrest of two Jews fleeing the Vilnius ghetto. Rather, an accurate reading of Judge Nelson's concurrence indicates that he concurs in the affirmance of summary judgment for the United States as well as in "most of the reasoning . . . ably set forth in Part IV" of this opinion. Accordingly, the reasoning of the concurrence is not limited to "the minimum ground" that Dailide assisted in the arrest of two Jews. Second, the concurrence expresses no opinion one way or the other as to whether Dailide made willful misrepresentations of material fact in gaining entry into this country; therefore, although the concurrence does not expressly agree with the position set forth in this opinion, it does not agree with the dissent's position either. Finally, the government may prevail in this case by proving either Count I or Count IV; it need not prove both counts against Dailide. Thus, the dissent's opening "clarification" that when it refers to this opinion as being "of the court" only to the extent of Judge Nelson's concurrence, shows nothing except perhaps the dissent's dissatisfaction in not having its viewpoint prevail in this case.

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CONCURRENCE

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DAVID A. NELSON, Circuit Judge, concurring in part. I concur in the affirmance of summary judgment for the United States and in most of the reasoning, if not all of the rhetorical flourishes, ably set forth in Part IV of Judge Clay's opinion. There is no genuine issue over the fact that Dailide assisted in the detention of Izrael and Riva Šoak, Jews who had escaped from the ghetto and who were turned over to the Germans for imprisonment. In helping to deprive these individuals of their freedom - which he unquestionably did, whether he personally was carrying a sidearm at the time or not - I believe that Dailide "assisted the enemy in persecuting civil populations of countries, Members of the United Nations," within the meaning of those words as used in § 2(b) of the Displaced Persons Act of 1948. I express no view on the question whether summary judgment in favor of the government could also be affirmed on the basis of the misrepresentations Dailide made to the U.S. Army's Counter Intelligence Corps about his wartime activities.

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DISSENT

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BOGGS, Circuit Judge, dissenting.

PROCEDURAL SUMMARY

The district court granted summary judgment to the government on two grounds. I would reverse the district court because I believe that neither ground can be supported as a matter of law, and I explain why in my opinion below. In my dissent, I refer to Judge Clay's opinion as being that of "the court" though it is so only in its conclusion of affirmance and to the extent of Judge Nelson's concurrence. Judge Nelson's concurrence, based on the minimum ground that Dailide's participation, in whatever capacity, in the arrest of two Jews fleeing the Vilnius ghetto is sufficient to establish his legal status as a persecutor is, of course, the only holding of the majority of the court. As I also explain below, I would hold that such participation, when the circumstances are disputed and the legal import is unsupported, is an inadequate basis to strip an American citizen of his citizenship without a trial. I therefore dissent from the court's judgment and opinions.

SUBSTANTIVE SUMMARY

Dailide was a member of the Saugumas and the Saugumas assisted the Nazis in committing atrocities and persecutions. The government has proven this conclusively. If that were enough to affirm the district court, this would be an easy case. But even the government does not seriously argue that this is enough, and the court correctly so holds, supra at 11.

Instead, to affirm the district court, we must find that there is no genuine issue of material fact as to Dailide's violation of the immigration laws. Contrary to the court's opinion, supra at 8 n.3, it is much harder to meet a burden "as a matter of law" when you must take all facts and inferences in the light most favorable to the defendant, rather than having a trial and making findings of fact.

It may well be that Dailide should be denaturalized and deported, after a finder of fact has looked at all the evidence and made findings about who is lying and who is telling the truth. At this stage, however, our law does not allow the stripping of American citizenship from Dailide when many material factual matters are in dispute.

In very brief summary, the court errs on both of the key issues.

As to Count IV, misrepresentation, it is undisputed that Dailide signed a personal history form, taken by the Army Counterintelligence Corps (CIC), which was false in two major respects. It is also undisputed, or not affirmatively contended, that Dailide did not repeat this, or any other misrepresentation, on any subsequent document that he submitted to Immigration authorities - not on his visa application, or on any subsequent immigration or naturalization document. Nor does it appear that he made any misrepresentation when interviewed by the relevant Vice Consul, though that could be controverted.

So, the issue is whether this misrepresentation was made to one "charged with the enforcement" of the Displaced Persons Act as required by 8 C.F.R. § 700.11 (1950). On its face, the question appears to be in dispute. There is nothing on the CIC form that says it is for immigration purposes. Nothing on any subsequent form asked that he affirm the CIC form. As detailed at greater length infra at 49-52, the Attorney General at the relevant time specifically held that the CIC was not such an agency. The court relies on the fact that the circumstances in those cases can be distinguished factually, but the differences in factual circumstances cannot alter the general role of the CIC, as held by the Attorney General.

If the question were whether a particular police officer had general arrest powers in a certain town, and there were a binding precedent that he did not, the fact that the earlier case involved a robbery and the case at issue involved a homicide would not invalidate the earlier precedent.

If factual development and findings were to prove that in completing the CIC form, Dailide knew that he was in fact submitting the material for consideration by the DPC, then it might be that he could be held to have knowingly misrepresented to someone "charged with enforcement" of the act. But again, the government does not argue, at this stage, that such is true as a matter of undisputed fact, only that, in general, the CIC forms were relied on by the DPC.

The second issue, the charge of assisting in persecution under Count I, is even more bound up in disputed facts. Again, after a trial, it may well be that a finder of fact could determine that Dailide's account is not truthful, and that he met the standards established by law for assisting in persecution. However, under the standards developed, it is a very key question whether Dailide was armed when he participated in the arrest of certain fleeing Jews, and when he took part in the search of particular prisoners. Dailide's accounts can be read two ways, and are certainly not undisputed.

There is also a key factual dispute as to the nature of that search and of Dailide's questioning of prisoners. The court's expansive account of that questioning, supra at 15-16, may be correct. However, it is not supported by undisputed facts in the record, and thus cannot be taken, at this stage, as a correct statement for purposes of summary judgment. Dailide's account, and the face of the documents in which he is specifically mentioned, are consistent with a history in which he was no more than a glorified desk clerk, filling out forms and recording prisoner responses.

Again, that account may not be true, but it must be taken as such on summary judgment.

The crucial difference between summary judgment and full trial is shown by two cases. In United States v. Osidach, 513 F. Supp. 51 (E.D. Pa. 1981), heavily cited by the government and relied on by the court, there was a full trial, and a judge made findings of fact about what Osidach did.

On the other hand, in the case of United States v. Lindert, 907 F. Supp. 1114 (N.D. Ohio 1995), a man who was a gun-toting SS guard at a Nazi death camp was found, after a full trial, not to have assisted in persecution, because his specific acts were found to be sufficiently peripheral to the actual persecution. The government chose not to exercise its right to appeal from that verdict.

In short, Dailide may be a very bad man. In any event, he has much to answer for in a moral sense. But before we can strip him of United States citizenship, we must follow the rules, especially the rules that make summary judgment quite different from verdict after a trial. This is what the court overlooks today, and I therefore respectfully dissent.

Dailide was born in Lithuania in 1921. He was a student in forestry school in Vilnius when the Soviet Union conquered Lithuania in 1940. Not long after the annexation, Dailide was expelled from school for his opposition to communism.

When the Nazis invaded Lithuania in June 1941, the Lithuanian Security Police (known as the Saugumas) were reconstituted to help the invaders keep order by performing searches, arrests, and investigations. Dailide was hired as a Saugumas clerk in June. He claims that he worked in the office and, on occasion, interviewed arrestees brought in on their way to the nearby Lukiski prison.

Dailide became a Saugumas "police candidate" in August, around the time that the infamous Aleksandras Lileikis became the local Saugumas chief. See United States v. Lileikis, 929 F. Supp. 31 (D. Mass. 1996) (rejecting Lileikis's "just following orders" defense and revoking his citizenship). Dailide worked in the Communist Section of the Saugumas for a brief period (he claims it was for about two weeks in late August). According to Dailide, the purpose of the Section was to obtain information on communists and potential revolutionaries. After his service in the Communist Section, Dailide was transferred to the Information Section, where he says his job was to gather background information on prospective employees to ensure that they were not communists. Around the end of 1942, Dailide states that he received a field assignment, for which he was issued a firearm -- he notes that three officers were killed by communists -- though there is no evidence that he ever used it.

Aside from these activities, it is clear from the record that the Saugumas also assisted the German invaders in their persecution of Lithuania's Jews, though Dailide claims he had no knowledge of any such link. He also says that he had no knowledge above the level of rumor of the murder of the Jews. Regardless of what Dailide knew or did not know, many of the Jews in Vilnius were arrested and sent to prison, then marched out in groups to Paneriai, a wooded area near Vilnius, and shot. By the end of 1941, 30,000 were dead. The remaining Jews were confined to ghettoes. One ghetto was liquidated in 1941, the other in 1943. In all, 55,000 Jews were killed. See generally Lileikis; United States v. Balsys, 918 F. Supp. 588 (E.D.N.Y. 1996), vacated, 119 F.3d 122 (2d Cir. 1997), reversed by 118 S. Ct. 2218 (1998).

The reconstituted Saugumas was placed under the control of the Einsatzkommando, the Nazis' mobile killing units, there being no Lithuanian civilian government to which the Saugumas would have reported after August 1941. Among their other duties, the Saugumas, plain-clothed police, were responsible for locating Jews hiding outside the ghetto, for capturing escapees, and for breaking up document-forgery rings. Arrestees were transferred to Lukiski prison and most were apparently killed, with contemporaneous records noting this euphemistically. The government states that the Saugumas's Communist Section (which it calls the Communist-Jews Section) was responsible for, among other things, apprehending and interrogating Jews and those who assisted them.

In 1944, the Soviet Army swept back into Lithuania. Dailide fled to Germany, where he lived in the American sector until 1950. He and others discussed whether they should reveal their Saugumas service in applying for emigration, and decided against it. Dailide's emigration process had three steps. First, he had to qualify as a refugee within "the concern" of the International Refugee Organization (IRO). IRO Constitution, 62 Stat. 3037, 3051 (1948). Then he had to receive a determination of displaced-person status by the DPC (Displaced Persons Commission). Finally, he had to qualify for and receive a visa from the United States Department of State.

In 1949, apparently after qualifying as a refugee (a status conferred by an IRO field eligibility officer, applying the standards of the IRO Constitution), Dailide completed a questionnaire from the United States Army counter-intelligence corps (CIC), as part of his application for displaced-person status. Although he says that he was not the one who physically filled out the form, he does not deny that he signed it. The questionnaire asked Dailide for an "[e]xact description" of his activities during the war. Dailide said that from 1942 to 1944, he had been a "practitioner forester" in Vilnius. Asked if he had been a member of any police service or civil service, Dailide answered "No." Dailide eventually received displaced-person status. In 1950, Dailide applied for an immigration visa under the Displaced Persons Act. Dailide received his visa, moved to Ohio, and received citizenship in 1955.

When the Soviet Union collapsed, Saugumas records became available to outside investigators. In July 1993, INS agents and Office of Special Investigations (OSI) personnel interrogated Dailide at his office in Cleveland. On December 7, 1994, the government filed a six-count complaint that charged Dailide with illegal procurement of United States citizenship and that sought to revoke Dailide's citizenship and cancel his Certificate of Naturalization. The government then filed for partial summary judgment on counts I and IV. Count I alleged that Dailide had assisted in persecution, in violation of the Constitution of the IRO, 62 Stat. 3037, 3051-52 (1948), and in violation of 8 U.S.C. § 1427. Count IV accused Dailide of material misrepresentation, in violation of the Displaced Persons Act, 62 Stat. 1009, 1013 (1948), and of 8 U.S.C. § 1427.

In December 1996, the district court announced that it would grant summary judgment against Dailide on the two counts. In February 1997, the court entered an amended order granting summary judgment, United States v. Dailide, 953 F. Supp. 192 (N.D. Ohio 1997), and the remaining counts were dismissed without prejudice.

Dailide filed this timely appeal.

A decision to reverse the district court is a difficult one. There is significant evidence that Dailide helped to arrest Jews fleeing from the ghetto, most of whom were probably killed by the Nazis soon afterward. Dailide lied at times about some of his activities. I would not vindicate Dailide in either the legal or moral senses of that word, and the government might well be able to prove at trial that Dailide should be stripped of his citizenship. Nevertheless, I believe the law is clear that the district court erred in granting the government summary judgment without the type of full trial necessary to determine genuine issues of facts material to the legal (if not the moral) issues in this case.

This conclusion is not a novel one. As the Supreme Court said, newly cognizant of the evils of World War II:

Denaturalization actions present extremely serious problems. They involve not only fundamental principles of our political system designed for the protection of minorities and majorities alike. They also involve tremendously high stakes for the individual. For denaturalization, like deportation, may result in the loss of all that makes life worth living. Hence, where the fate of a human being is at stake, we must not leave the presence of his evil purpose to conjecture.

Knauer v. United States, 328 U.S. 654, 659 (1946) (Douglas, J.) (quotation marks omitted).

More specifically, the Supreme Court has long made it clear that the government "carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship," Costello v. United States, 365 U.S. 265, 269 (1961), and so the government must present "clear, unequivocal, and convincing" evidence supporting denaturalization, Fedorenko v. United States, 449 U.S. 490, 505 (1981).

The government's task is even more difficult when it seeks, as it did here, to win its case at summary judgment. Our summary-judgment standard requires that there be no disputed issues of material fact; that we view the facts in the light most favorable to Dailide; and that the government prevail only if it is entitled to a judgment as a matter of law upon such a view of the facts. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986).

Although the district court suggested that there is precedent for summary judgment in cases such as Dailide's, 953 F. Supp. at 195, the cases it cited as examples are all distinguishable in that the roles of their respective defendants were much more clearly established and more clearly persecutory. In the first case cited, that of Lileikis, the defendant was the head of the Vilnius division of the Saugumas and did not "deny that he personally ordered the Saugumas officers under his command to cooperate with the Nazis in arresting, detaining, and delivering thousands of Jews to the death squads." Lileikis, 929 F. Supp. at 36. In the second case, the defendant was a Hungarian pro-Nazi propagandist and convicted war criminal, whose newspaper "played a prominent role in calling for Hungary's adoption of increasingly drastic anti-Jewish restrictions." United States v. Koreh, 59 F.3d 431, 436, 440 (3d Cir. 1995). Finally, in the third case cited, the defendant was a uniformed guard at the Mauthausen concentration camp and member of the SS Totenkopf-Sturmbann (Death's Head Battalion). United States v. Leprich, 666 F. Supp. 967, 967 (E.D. Mich. 1987). As discussed below, Dailide's actions, though hardly above reproach, do not rise near to this level, and thus cannot as easily be declared sufficient as a matter of law. Cf. United States v. Lindert, 907 F. Supp. 1114 (N.D. Ohio 1995) (concluding, after trial, that an armed SS member who served as a concentration camp perimeter guard did not participate in persecution and thus did not lack "good moral character" sufficiently to warrant denaturalization).

III

The following interplay of statutes forms the legal basis for this action. According to 8 U.S.C. § 1451(a), if a naturalization is illegally procured, that citizen loses his citizenship. Illegal procurement exists when "some statutory requirement which is a condition precedent to naturalization is absent at the time the petition [for naturalization is] granted." Fedorenko, 449 U.S. at 515 n.38 (quoting H. R. Rep. No. 1086, 87th Cong., 1st Sess., at 39 (1961) (alteration in Fedorenko)). One of the statutory conditions precedent is that the applicant was "lawfully admitted" to this country for permanent residence. 8 U.S.C. § 1427(a)(1).

The government claims two bases for concluding that Dailide was unlawfully admitted. First, as cited above, the IRO Constitution excludes from its protections any person who can be shown "to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations." Without IRO protection, there was no way for Dailide to obtain refugee status, and by extension displaced-person status, a visa, and citizenship. Second, also as cited above, the Displaced Persons Act renders inadmissible anyone who willfully misrepresents material facts for the purposes of gaining admission into the United States as a displaced person.

The government's charge that Dailide "assisted in persecution" has a factual predicate of two parts. First, in its original complaint, the government said that the Saugumas persecuted civil populations, and that Dailide assisted the Saugumas. There is a document in the record, written by a German Einsatzgruppe commander in October 1941, that bolsters the first portion of this syllogism:

[A] Lithuanian Security and Criminal Police(1) force was created. . . . [A]fter careful investigation the extra auxiliary personnel needed was brought in. The Lithuanian Security and Criminal Police operates according to the orders and guidelines provided to them by Einsatzkommando 3 and its activities are under constant surveillance [kontrolliert] and, as much as possible, they are used for security police work which cannot be performed by the SD's own personnel, particularly searches, arrests, and investigations. . . .

. . . . After the removal of the accused and unfit personnel and under the constant surveillance of Einsatzkommando 3, the Lithuanian Security and Criminal Police produced entirely satisfactory work . . . .

Dailide's translation changes the German word kontrolliert to "surveillance," rather than "control" as in the government's translation. The portion quoted above thus conforms to Dailide's preferred translation, saying "constant surveillance" rather than "constant control." Nevertheless, contrary to Dailide's argument, the passage still shows that the Germans staffed, purged, and directed the Saugumas.

The government alleges specifically that the Communist Section, of which Dailide was a member, helped to enforce the ghettoization of Vil