Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C 1478 -- Bernard M. Decker, Judge.
Cummings, Chief Judge, Eschbach, Circuit Judges, and Campbell, Senior District Judge.*fn**
Defendant Conrad H. Schellong appeals from a district court order setting aside a prior order admitting defendant to citizenship, and cancelling defendant's Certificate of Naturalization. United States v. Schellong, 547 F. Supp. 569 (N.D. Ill. 1982). Plaintiff, the United States of America, brought this action pursuant to Section 340(a) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1451(a), to revoke the citizenship of the defendant on the grounds that he procured his citizenship illegally and by concealment or willful misrepresentation of a material fact.
The controversy centers around Schellong's activities between 1932 and 1939 as he described them in 1956 on his visa application, in 1962 on his petition for naturalization, and in a supplemental statement filed in connection with that petition. The evidence in the record shows that in 1932 defendant joined the para-military unit of the Nazi Party, the Sturmabteilungen, more commonly known as the storm troopers, "brown shirts" or "SA". He remained a member of the SA for several months. In December of 1932 defendant joined both the Nazi Party and the Schutzstaffel, commonly known as the Allgemeine SS, and he remained a member of the Allgemeine SS until 1934. As the district court found, "the principal function of the Allgemeine SS in the early 1930's was to guard Nazi Party speakers and to carry out party intelligence, although the SS gradually assumed the additional responsibility of the administration and guarding of the concentration camps." 547 F. Supp. at 570. In February 1934, defendant joined the SS Sonderkommando "Sachsen " (SS Special Commando "Sachsen") which was stationed at the Sachsenburg Concentration Camp in Saxony, Germany. The SS Special Commando "Sachsen" was renamed the SS Wachverbande "Sachsen " (SS Guard Unit "Sachsen") in late 1934, and in April 1936 was again renamed the SS Totenkopfverbande "Sachsen " (SS Death's Head Unit "Sachsen").
In early 1936, defendant was assigned for approximately four months to the 11th Company of the SS Guard Unit "Oberbayern" at Dachau Concentration Camp, near Dachau, Germany, where he participated in a platoon leaders training course. He returned to Sachsenburg for several months, and was then transferred to Dachau and assigned to the 7th Company of the Death's Head Unit "Oberbayern". Defendant remained at Dachau until December 1939, commanding the Second Platoon of the 7th Death's Head Company, the 11th Death's Head Company, and the 9th Death's Head Company, all of which were rifle companies. In late 1939 as the German war effort mounted, the SS Death's Head Units were consolidated into a single military organization called the Waffen SS ("armed" SS). This organization was never considered a part of the German armed forces, the Wehrmacht. During this time, defendant rose from a corporal at Sachsenburg in October 1934 to a Captain at Dachau in August 1939. By the end of the war, he held the rank of Lieutenant Colonel.
While at Sachsenburg, defendant's responsibilities included training and supervising a platoon of guards, and service as a Security Officer and a Reserve Officer on a rotating basis with other platoon leaders. During defendant's rotation as Security Officer, he was in charge of security for the entire camp for twenty-four hour periods. Incident to defendant's duties, he instructed the guards under his supervision to prevent escapes from the camp, to warn escaping prisoners and then shoot to kill. Defendant also had responsibility on at least one occasion for checking on a prisoner, Erich Jacoby, who was being held in solitary confinement.
The district court found "at Dachau, the defendant supervised guard troops who watched the prisoners on work detail, manned the watchtowers to prevent escapes, and engaged in other guard-type activities." 547 F. Supp. at 574. Defendant contests this finding, arguing that at Dachau he was in charge of a platoon of military recruits who did not have to do guard duty. There is substantial evidence in the record, however, to support the finding that the recruits were trained for both military and guard duty, and kept on reserve in case they were needed to do guard duty or maintain order in the camp.
The district court's opinion contains a succinct summary of defendant's visa and citizenship applications, 547 F. Supp. at 572-573 (footnote omitted):
On December 3, 1956, the defendant filed an "Application for Immigrant Visa and Alien Registration" (Form FS-256a) with the United States Consular Office in Hamburg, Germany. In response to Question 26 on the application, requesting the applicant to state his places of previous residence, the defendant answered:
"Birth -- 1911, Dresden, Germany; 1911-1934, Leipzig, Germany; 1934-1939, German Waffen SS; 1939-1945, Waffen SS during the war, . . ."
No mention was made on Schellong's application of his two years of residence at the Sachsenburg Concentration Camp, or of his three years of residence at Dachau.
On January 24, 1957, the defendant was granted a visa to enter the United States. The defendant entered the United States on or about February 23, 1957, and he has resided in this country ever since that time.
On or about January 29, 1962, the defendant filed an "Application to File Petition for Naturalization" (INS Form N-400) to the Immigration and Naturalization Service. The defendant signed the application on April 16, 1962. In response to Question 7 on the application, requesting the applicant to "list each organization, association, fund, foundation, club or society in the United States or in any other place ...