A. The Camp at Koldyczewo
Fedorenko held only that a Nazi concentration camp inevitably was a site of persecution. While the conditions at Koldyczewo were atrocious, during defendant's stay they did not reach the level of the camp at issue in Fedorenko; in fact, defendant contends that no camp existed while he was at Koldyczewo. The clear import of the case law in this area of law, including Fedorenko, however, shows that in order to be a persecutory site, a camp need not involve such barbarous acts as mass executions or even sporadic shootings. Rather, persecution comes in many forms, mental as well physical. Addressing a situation directly pertinent to this case, one Court has noted that there is "nothing significant to distinguish armed guard service at a labor camp from such service at a concentration camp." United States v. Kairys, 782 F.2d 1374, 1378 (7th Cir. 1986). As the Seventh circuit has put it:
Incarcerations, forced labor, cruel and inhuman treatment, and arbitrary and severe punishment are sufficient to rise to the level of persecution. . . . We need only recall the Nazis' decree that Jews, Gypsies, Russians, Ukrainians and Poles must suffer "extermination through work." Once the fact of forced labor is established, the remaining proof is routinely satisfied. It seems clear to us that the tagging of prisoners along racial, national, or religious lines creates a strong presumption of persecution because of race, religion, national origin or political opinion.
Kulle v. I.N.S., 825 F.2d 1188, 1193 (7th Cir. 1987).
As detailed above, there is much uncontradicted evidence in the record which indicates that during the time that defendant admits to being a guard at Koldyczewo, acts that can only be described as causing mental anguish, fear and humiliation -- all indicia of persecution -- occurred at Koldyczewo.
The camp served as a prison for Jews, who were forced to identify themselves as Jewish by wearing yellow stars of David on their clothing, were housed in a locked barn without a floor, and were unable to leave the camp except, perhaps, for brief supervised trips to the village for food. While defendant was there during the summer of 1942, about 100 Jews were imprisoned and forced to work at their trades from morning to evening. Thus, without finding that all labor camps necessarily constitute sites of persecution, I find that during the time period at issue in this case, the undisputed facts disclose that Koldyczewo, as a matter of law, constituted a persecutory setting within the meaning of the DPA. Thus, if defendant assisted in the persecution taking place at the camp, the government is entitled to denaturalize him.
B. Defendant's 'activities
While defendant cannot be considered an armed concentration camp guard under Fedorenko, it seems clear, from the policies and case law in this area, that defendant's activities were clearly closer to Fedorenko's than to the person who cuts a prisoner's hair before the prisoner is to be executed.
It is uncontradicted from the record that Hutyrczyk carried a rifle, wore a uniform issued by the Germans, received a stipend, was allowed to leave the camp, and patrolled the perimeter of the camp to enforce a curfew that resulted in Jewish prisoners remaining at the camp to be persecuted both physically and mentally. While Hutyrczyk does not explicitly say that he was under orders to shoot escaping inmates, his testimony quoted above clearly exhibits an awareness of the grave treatment accorded potential escapees.
Moreover, courts have repeatedly held that personal involvement in persecution is unnecessary to a finding that citizenship was illegally procured under the DPA. See Kairys v. United States, 782 F.2d 1374, 1377 n.3 (7th Cir. 1986) ("service as Nazi concentration camp guard equaled persecution of civilians for purposes of the DPA without proof of personal involvement in the atrocities, and the outcome here must be the same because service in a Nazi labor camp was similar to service in a Nazi concentration camp.") (citations omitted). In another case, a United States District Court persuasively reasoned that there exists an inevitably persecutory relationship between the armed representatives of the occupying forces and the unarmed prisoners forced to fear every armed presence:
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 . . . is the personification of mental persecution to anyone, let alone innocent civilian[s] . . . reduced to various degrees of substandard mental and physical well-being.
United States v. Osidach, 513 F.Supp. 51, 90 (E.D.Pa. 1981), appeal dismissed or, defendant's death, No. 81-1956 (3d Cir. July 22, 1981). At Koldyczewo during the summer and fall of 1942, Hutyrczyk was an armed representative of the occupying force that had imprisoned Jews simply because they were Jews and had persecuted them.
Without individuals guarding the perimeter of the camp at night, ensuring that no Jew escaped, the cruel treatment would not have been able to continue. Defendant's work, then, does seem to have been assisting persecution.
Hutyrcsyk nevertheless makes a number of arguments why summary judgment should not be granted.
First, defendant argues that he never actually had to stop anyone while on duty patrolling the perimeter of the camp. This argument is dispositive of nothing, however, because the effect of the presence of armed guards surely must have persuaded prisoners not to attempt to leave their barracks, thereby keeping the Jews imprisoned because of their religion.
Second, defendant contends that he did not directly participate in any activities concerning Jews at the camp. But one does not have to directly torture an individual to be held as assisting persecution. In this case, defendant admits to patrolling the perimeter of the camp to ensure that Jews and others did not escape. This is certainly assisting in keeping Jews confined at a forced labor camp.
Third, defendant argues that under the INS's implementation of the Constitution of the IRO, membership in a German-controlled unit raised only a rebuttable presumption that the individual assisted in persecution. For example, defendant cites a Third Circuit case that quoted testimony of A.P. Conan, a senior DPC officer, to the effect that "an applicant who had served in the Ukrainian Schutzmannschaft would have been rejected unless he overcame the presumption against his eligibility by showing that his service was involuntary, and that he had not committed atrocities or persecuted any person on the ground of religion, race, or national origin." United States v. Kowalchuk, 773 F.2d 488, 494 (3d Cir. 1985). But whatever the practice of the DPC officers during interviews for granting visas, the Supreme Court has clearly held that the DPA does not contain an "involuntary assistance" exception. Thus, this argument is best taken to Congress, for the Courts are constrained by the Supreme Court's interpretation of the DPA.
Fourth, Hutyrczyk cites to a 6th Circuit case interpreting the Holtzman Amendment, a piece of legislation similar to the provisions of the DPA at issue in this case, passed in 1978 and providing for the deportation of aliens who participated in Nazi directed persecution of individuals because of race, religion, national origin or political opinion. Petkiewytsch v. INS, 945 F.2d 871, 876 (6th Cir. 1991). In that case, the Court of Appeals held that an individual forced to work as a civilian labor guard under threat of imprisonment or execution, who served reluctantly and at a young age, and who had not engaged in any persecution of a particular person, could not be deported under the Holtzman amendment. In its analysis, the Sixth Circuit distinguished Fedorenko:
In [Footnote 14 of Fedorenko], the Supreme Court stated that the proper focus of a court faced with the problem of limiting the DPA's exclusionary language only to those whom Congress intended to exclude should be upon "whether particular conduct can be considered assisting in the persecution of civilians." . . . . Obviously, Fedorenko's most egregious conduct was shooting at escaping inmates. The petitioner in the present case, Petkiewytsch did not ever fire his rifle or otherwise abuse or attempt to injure an inmate.
Petkiewytsch at 880. However, the Sixth Circuit quoted this language largely to support its argument that to be deported under the Holtzman Amendment, an individual's conduct must truly be egregious: "If as the Supreme Court stated, the focus under the DPA should be on the 'particular conduct' of the immigrant, then given the legislative history of the Holtzman Amendment, that focus should be even more searching under [the Holtzman Amendment]." Petkiewytsch at 880. And unlike the limited amount of legislative history under the DPA, the Court of Appeals found much evidence from legislative history of the Holtzman Amendment to point to its policy of deporting Nazi war criminals who deliberately persecuted civilians. For example, the Court found innumerable statements to the effect that the amendment was "intended to deny 'sanctuary' in the United States to Nazi war criminals'" Petkiewytsch at 879 (quoting 124 Cong. Rec. 31,647 (1978) (statement of Rep. Holtzman) (emphasis in original).
The standard simply is not so stringent under the DPA. Voluntariness does not matter, nor does active assistance in the persecution. Furthering the goals of forced slave labor, maltreatment of civilian prisoners because of religion, and guarding with orders to prevent prisoners from escaping are enough to constitute persecution under the DPA.
Finally, defendant's attorney made an impassioned plea during oral argument to consider that this case comes before the Court fifty years after the facts at issue, and implores the Court to keep the time frame at issue separate from today's general knowledge of the Nazi regime. Specifically, Joseph Benedict, defendant's attorney said:
I'm just thinking back to my days when I was in Viet Nam. I visited some client at Lon Bin Jail. And that was clearly a -- it was a military camp, and within the camp there was a jail. Men who'd been out on patrol would sometimes come back to the rear area at Lon Bin, and while they were back in the rear area they would occasionally pull guard duty. And if they're on the perimeter, what, if anything, is the relationship to the people who are imprisoned in that jail?
Transcript of Proceedings, July 27, 1992
This case is significantly different than Mr. Benedict's analogy, however. Here, 100 Jews were imprisoned for no reason other than their religion, were identifiable by the Star of David on their clothing, were forced to remain at the camp, housed in a barn without a floor. Once it is found that the camp constituted a persecutory setting, Hutyrczyk's role as an armed enforcer of a curfew while patrolling the perimeter of the camp is sufficient to categorize his activities as assisting persecution.
Thus, in finding clear and convincing evidence that Hutyrczyk was excludable under the Displaced Persons Act, I am compelled to grant the government's motion.
I can only repeat that I am acutely aware of the stakes involved in this case -- the possibility of the deportation of an individual who has lived an uneventful life in this country for nearly forty years. But the issue in this motion is what happened fifty years ago halfway across the world. And after carefully considering the entire record, the oral arguments, the grave nature of the proceeding, and the controlling law, I am left with the conclusion that the Government's motion for Summary Judgment pursuant to Fed.R.Civ.P. 56(a) must be granted as to Count I of its Complaint.
This matter having come before the Court upon a motion by plaintiff the United States for summary judgment pursuant to Fed.R.Civ.P. 56(a) and this Court, after carefully considering the submitted papers and the record before it, including the oral arguments of July 27, 1992; and for the reasons expressed in an Opinion issued this same day; and for good cause shown,
IT IS ON THIS 2nd day of October, 1992,
ORDERED that the Government's motion is granted.
Harold A. Ackerman, U.S.D.J.