broadly, however, the Chaunt second prong requires a possibility
that the disclosure of the true facts would have led to the
discovery of disqualifying facts. Here the nexus between a Kairys
born December 24, 1924 in Svilionys and a Kairys at Treblinka
was, both in 1949 and 1957, unknown, and given that the
information respecting such a nexus was solely in Soviet archives
probably unknowable. Kairys could have, with impunity, listed his
proper first name, place of birth and birth date, and a Svilionys
residence, and the visa and certificate of naturalization would
have issued. See United States v. Rossi, 299 F.2d 650 (9th Cir.
1962). Nor does defendant's listing of "farmer" add much to the
government's case. He was raised on a farm, he worked on a farm
immediately after the war, and he claims that he studied farming
when he was associated with the U.S. Army. In any event, it was
probably as close to a civilian occupation as Kairys had ever had
when he so claimed it as his own.
The case, then, comes down to whether defendant's certificate
of naturalization is revocable because it was "illegally
procured." That raises two issues: (1) is naturalization
illegally procured if it is based upon admission to this country
upon a visa for which the petitioner was ineligible, and (2) is
"illegally procured" a ground for revocation now even though it
was not a ground in the statute at the time of defendant's
naturalization. We deal with the second issue first.
Defendant contends that illegal procurement cannot serve as a
basis for revocation because it was not included in the statute
at the time of defendant's naturalization and a congressional
intention of retrospective application has not been clearly
manifested. In 1957, when Kairys was naturalized, 8 U.S.C. § 1451(a)
did not list illegal procurement as a basis for revocation. In 1961
Congress, noting that the Fifth Circuit in United States v.
Stromberg, 227 F.2d 903 (5th Cir. 1955), did not find illegal
procurement preserved from the 1940 Act as a basis for revocation,
added that language to the statute. See H.R.Rep. 1086, 87th Cong.,
1st Sess., reprinted in 1961 U.S.Code, Cong. & Ad. News 2950, 2982.
Defendant concedes that retrospective application of an amendment is
generally without legal infirmity if Congress so intended, see
generally, Union Pacific R.R. v. Laramie Stock Yards Co.,
231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913); South East
Chicago Commission v. Dept. of Housing & Urban Development,
488 F.2d 1119, 1122 (7th Cir. 1973), but argues that no such intent
was manifested here.
Retrospective application of an amendment is generally not
implied. No such application, however, is sought here. Sec. 1451
is a denaturalization statute, regulating denaturalization
proceedings. It is a remedial provision. This denaturalization
action was brought in 1980, well after enactment of the
amendment. The granting of citizenship — the substantive right
sought to be protected by defendant — is governed by other
sections, including 8 U.S.C. § 1181, which were in effect in
1957. Sec. 1181 requires a valid immigrant visa for legal
admission to this country, a requirement defendant did not
Sec. 1451(i) evidences clear congressional intent that this
action be governed by sec. 1451(a) as it currently exists. Sec.
1451(i), promulgated in 1952, states that the provisions of sec.
1451 apply to all certificates of naturalization, whenever
granted, without regard to what revocation standards were in
effect at the time of naturalization. The 1961 amendment, then,
was of a section which already provided for retrospective
application. It must be assumed that Congress was aware of sec.
1451(i) when it enacted the 1961 amendment and was aware of the
clear statutory language to that effect.
Indeed, it is difficult to conceive why Congress, in view of
the purpose of the amendment, would have it apply to citizenships
illegally procured after enactment but not before. A similar
intent has been followed by the Supreme Court in construing
predecessor statutes. See e.g., Luria v. United States,
231 U.S. 9, at 24, 34 S.Ct. 10, 13, 58 L.Ed. 101 (1913); Jokannessen v.
United States, 225 U.S. at 240-43, 32 S.Ct. at 616-17. An act
which is amended "should be construed as to future events as if
it had originally been enacted in that form." 1A, C. Sands,
Sutherland on Statutory Construction, § 22.35 at 197 (4th ed.
1972) (treatise cited approvingly by both parties). Sec. 1451, if
enacted in its present form in 1961, would allow application of
the illegal procurement standard to this action. The illegal
procurement standard does properly apply to defendant's
denaturalization proceeding. See generally United States v.
Koziy, supra (applying illegal procurement standard in
denaturalization proceeding where citizenship was acquired in
Revocation premised upon illegal procurement was, from time to
time, granted without regard to any mental state of the
defendant. See United States v. Ginsberg, 243 U.S. 472, 37 S.Ct.
422, 61 L.Ed. 853 (1917); United States v. Ness, 245 U.S. 319, 38
S.Ct. 118, 62 L.Ed. 321 (1917); United States v. Beda,
118 F.2d 458 (2d Cir. 1941). The obvious inequities of a mechanical
application of such an interpretation led courts to ameliorate or
ignore it in numerous cases, e.g., United States v. Anastasio,
226 F.2d 912 (3d Cir. 1955); United States v. Bialoglowski,
21 F. Supp. 613 (S.D.Calif. 1937), aff'd 101 F.2d 928 (9th Cir.
1939). The result was that, in 1952, when "illegally procured"
was removed from the statute as a basis for revocation and in
1961, when it was returned to the statute, the case authority was
in hopeless confusion, as is well documented in United States v.
Kusche, 56 F. Supp. 201 (S.D.Calif. 1944).
The legislative history of the 1961 amendment, however,
crystallizes Congress' intent in returning the words "illegal
procurement" to the statute. The sponsors of the amendment
intended to combat fraud in naturalization proceedings. See 107
Cong.Rec. 18,284 (1961) (remarks of Rep. Walter); 107 Cong.Rec.
19,651 (1961) (remarks of Sen. Eastland). They were concerned
with the same proof problems that have arisen here. See H.R.Rep.
1086, 87th Cong., 3d Sess., 39, reprinted in 1961 U.S.Code, Cong.
& Ad.News, 2950, 2983. The House report, in advocating the adding
of the amendment, made it clear what it intended the addition to
accomplish. "The congressional mandate that no person shall be
naturalized unless possessed of certain qualifications is
ineffectual unless there is also statutory provision for revoking
citizenship where the prerequisites did not in fact exist. In the
majority of such cases it is difficult if not impossible to prove
there was concealment of material facts or wilful
misrepresentation." Id. To that end, Congress added the "illegal
procurement" basis for revocation to remove the intent
requirement and to allow denaturalization for any failure of a
condition precedent to the naturalization.
Naturalization is illegally procured if some
statutory requirement is absent at the time the
petition was granted. In other words, naturalization
has been illegally procured if jurisdictional factors
are not present at the time citizenship is granted.
(United States v. Ginsberg, 37 Sup. Ct. 422,
243 U.S. 472, 61 L.ed. 853.)
Id. See United States v. Koziy,
That doctrine was sanctioned by United States v. Ginsberg,
supra, and it has been given renewed vigor by Fedorenko. The
absence of defined constitutional restrictions, other than an
enhanced burden of proof, leaves citizenship by naturalization
vulnerable to revocation many years later, regardless of
culpability. For example, a physical examination years later may
determine that an immigrant had, unknown to him, tuberculosis
when he entered this country and therefore was ineligible for a
visa. Continued citizenship may, in those circumstances, depend
solely upon an executive decision not to seek revocation. That
doctrine, coupled with the inapplicability of laches, leaves the
naturalized citizen always at risk. Small wonder it is, then,
that courts have struggled against the rigors of its application.
This court is troubled by the implications of a power, largely
unchecked by constitutional restraints, to revoke citizenship
based upon some decades-old error, however clearly demonstrated.
"Citizenship is man's basic right for it is nothing less than the
right to have rights." Perez v. Brownell, 356 U.S. 44, 64, 78
S.Ct. 568, 579, 2 L.Ed.2d 603 (1958) (Warren, C.J., dissenting).
Revocation becomes dependent upon highly selective executive
discretion, which in turn is influenced by subsequently arising
policy priorities — involvement in organized crime, pan-Germanism
during World War II, Communist affiliation or, as here, a
response to belated disclosures and criticisms by the Soviet
The implications of virtually unrestrained congressional and
executive power over the continuing status of citizenship has led
to a number of decisions by a sharply divided Court respecting
denationalization by expatriation. During the post-war period
many lower courts adopted an elastic concept of duress to
ameliorate the rigors of expatriation provisions. See e.g., Stipa
v. Dulles, 233 F.2d 551 (3d Cir. 1956); Soccodato v. Dulles,
226 F.2d 243 (D.C.Cir. 1955); Mendelsohn v. Dulles, 207 F.2d 37
(D.C.Cir. 1953); Takehara v. Dulles, 205 F.2d 560 (9th Cir.
1953). Expatriation law was, at that time, as confused as
denaturalization for illegal procurement (see p. 1269, supra).
The Supreme Court thereafter recognized congressional authority
to provide for expatriating acts even in the absence of a
specific intent to surrender citizenship, if there were foreign
relations implications, Perez v. Brownell, 356 U.S. 44, 78 S.Ct.
568, 2 L.Ed.2d 603 (1958). That authority did not, however,
extend to expatriation as a penal sanction, Trop v. Dulles,
356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), and the Court
adopted both a stringent burden of proof and an expansive scope
of review, Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2
L.Ed.2d 659 (1958). That expatriation could not be employed as a
penal sanction was again determined in Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644
Four years later the Supreme Court, in Afroyim v. Rusk,
387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967), overruled Perez
v. Brownell, supra. In a 5-4 decision it held that expatriation
required not only voluntary conduct but also an informed and
voluntary renunciation of citizenship. The Court adhered to that
view in Vance v. Terrazas, 444 U.S. 252, 100 S.Ct. 540, 62
L.Ed.2d 461 (1980), but it also concluded that Congress could
adopt proof standards less stringent than those imposed in
Schneiderman v. United States, supra, and Nishikawa v. Dulles,
supra, specifically holding that those decisions were not rooted
in the Constitution.
In Afroyim v. Rusk, supra, the Court noted a distinction
between expatriation and denaturalization. Id. 387 U.S. at p.
267, fn. 23, 87 S.Ct. at p. 1667, fn. 23. ("Of course, . . .
naturalization unlawfully procured can be set aside.") The Court
introduced a further qualification in Rogers v. Bellei,
401 U.S. 815, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971), where it recognized a
distinction between Fourteenth Amendment citizenship, whether by
birth or naturalization, and citizenship acquired solely by
statutory enactment (there, birth abroad to a couple of whom one
was a United States citizen and one was an alien). The Court
relied, in part, at p. 830, 91 S.Ct. at p. 1068, upon United
States v. Ginsberg, supra,
and United States v. Ness, supra, just as it later did in
Fedorenko v. United States, supra.
The doctrine of illegal procurement, particularly in light of
the holding in Vance v. Terrazas, supra, that a stringent burden
of proof in denaturalization cases is subject to statutory
change, imparts an extraordinary fragility to citizenship
acquired by naturalization. It is difficult for this court to
rationalize the present law of denaturalization with Schneider v.
Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964), where
the Court started "from the premise that the rights of
citizenship of the native born and of the naturalized person are
of the same dignity and are coextensive," absent material fraud
in procurement and with the concept in Afroyim v. Rusk, supra,
that loss of citizenship by expatriation requires a voluntary and
informed choice. Id. 377 U.S. at pp. 165-166, 84 S.Ct. at pp.
1188-1189. The Supreme Court has, however, accorded illegal
procurement a continuing vitality, and this court is bound to
Pursuant to that doctrine, Kairys is properly subject to
denaturalization. As stated previously, an armed guard at the
Treblinka labor camp was not eligible for a visa under the
Displaced Persons Act. See Fedorenko v. United States, supra.
This is so with or without a material misrepresentation. Kairys,
therefore, was not statutorily eligible for the visa he procured
pursuant to the Act. Because he did not fulfill all of the
statutory requirements for his naturalization, his citizenship
was illegally procured. See United States v. Koziy, 728 F.2d at
1318-19; United States v. Kowalchuk, 571 F. Supp. 72 (E.D.Pa.
1983), rev'd on other grounds 744 F.2d 301 (3d Cir. 1984), en
banc hearing granted; United States v. Dercacz, 530 F. Supp. 1348,
1351-52 (E.D.N.Y. 1982). Accordingly, defendant's certificate of
naturalization must be revoked.