United States v. Kumpf, Josias ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2972
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSIAS KUMPF,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 C 944—Lynn Adelman, Judge.
____________
ARGUED DECEMBER 7, 2005—DECIDED FEBRUARY 23, 2006
____________
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. During World War II, Josias
Kumpf was a member of the Waffen Schutzstaffel and a
guard at Nazi concentration camps. In 1956, without
disclosing this service, Kumpf obtained a visa to enter the
United States, entered the country, and later obtained
citizenship. The government, after discovering Kumpf’s
past, brought suit seeking his denaturalization, alleging that
he improperly obtained a visa and illegally procured
citizenship. The district court granted the government’s
motion for summary judgment and revoked Kumpf’s
citizenship. Kumpf appeals. We affirm.
2 No. 05-2972
I.
Josias Kumpf, an ethnic German, was born in Nova
Pasova, Yugoslavia on April 7, 1925. Kumpf attended school
for less than three years, spending the majority of his youth
farming with his father. Germany invaded Yugoslavia on
April 6, 1941. After the invasion, Germany mustered ethnic
Germans in Yugoslavia for its forces. A drummer marched
through Kumpf’s town in October 1942, alerting all young
men to report to the local school for a health exam. After
examining Kumpf, German officials instructed him to report
to the train station later that month.
Kumpf complied and was transported to Oranienburg,
Germany where he completed basic training. There he was
issued a uniform, a rifle, a blood-type tattoo, and both the
distinctive skull and SS insignia to wear on his uniform.
Thus, Kumpf began serving in the Waffen Schutzstaffel, or
armed protection guard. The Waffen SS was the paramili-
tary component of the Nazi Party and was distinct from the
German Army, the Wehrmacht. Although originally
intended to serve as bodyguards for Hitler, by World War
II the SS assumed responsibility for German state security
and the operation of the infamous Nazi concentration
camps.
After training, Kumpf was assigned to the SS Death’s
Head Battalion Sachsenhausen, which was later renamed
the SS Death’s Head Guard Battalion Sachsenhausen. He
remained in Oranienburg, guarding prisoners at
Sachsenhausen Concentration Camp. As this court re-
counted in detail in United States v. Wittje, 422 F.3d 479, 482-
83 (7th Cir. 2005), prisoners at Sachsenhausen were detained
in hellish conditions, forced to perform grueling labor,
subjected to medical experimentation, and executed. Kumpf
worked at the camp as an armed guard, assigned to watch
No. 05-2972 3
over the prisoners from perimeter guard towers. If an
escape attempt occurred, Kumpf was trained to fire warning
shots and, if necessary, shoot the escaping prisoner. Kumpf
testified that he never faced such a situation. During his
tenure at Sachsenhausen, Kumpf was paid, granted leave to
return to his home, and promoted once.
On October 29, 1943, Kumpf was one of 150 guards
transferred from Sachsenhausen to Trawniki Labor Camp in
German-occupied Poland. A few days later, on November
3, 1943, approximately 8,000 prisoners at Trawniki Labor
Camp were executed in Aktion Erntefest, or Operation
Harvest Festival. The victims were instructed to strip off
their clothing and then led to pits that the prisoners them-
selves previously dug, on the premise that they were air-
raid trenches. Members of the SS then fired on the naked
prisoners with varying degrees of accuracy. The parties
dispute whether Kumpf arrived before the massacre, but
Kumpf admits that he guarded the pits after the executions
to watch for escaping survivors. Although instructed to
shoot any escaping victim, no attempts were made on his
shifts. Soon after the massacre, a group of Jews were
brought to Trawniki to sort the victims’ clothing, recover the
dental gold from the bodies, and burn the corpses. Kumpf
recalled the stench of the burning bodies.
While stationed at Trawniki, Kumpf again obtained leave
to visit his family. After returning from leave, Kumpf left
Trawniki in early 1944 to assume duty in Occupied France.
There, among other tasks, he guarded a mobile detachment
of prisoners from concentration camps who were forced to
construct platforms for launching missiles against Great
Britain. Following the Allied invasion of Normandy,
Kumpf’s unit retreated into Germany. Kumpf claims that he
was sent to the eastern front, captured, and held as a
4 No. 05-2972
prisoner of war by the Soviet Army for the remainder of the
war.
After the war, Kumpf reunited with his family in Austria.
He married Elisabeth Eremity on May 8, 1948. In 1956,
Kumpf applied for a visa to enter the United States with his
wife and three children. His visa application states that he
served in the “German Army” in Germany, Poland, and
France, omitting any reference to the SS. Kumpf received a
visa on March 23, 1956. About two months later, he was
admitted to the United States in New York.
Kumpf then settled in Chicago. He filed an application for
naturalization in February 1964. Again, the application
omitted any reference to the SS; in response to a question
regarding his memberships in military or other organiza-
tions, Kumpf asserted that he was in the “German Army.”
The United States conferred citizenship on Kumpf on May
9, 1964. Kumpf, now a widower, worked continuously for
the Vienna Sausage Company until retirement, and fathered
two more children with his wife in this country.
After discovering wartime documents relating to his
service in the SS, the government filed a four-count com-
plaint seeking Kumpf’s denaturalization. The district court
granted summary judgment to the government, addressing
only the government’s argument that Kumpf’s citizenship
was illegally procured because he personally assisted in
persecution and was therefore ineligible for a visa under the
Refugee Relief Act. Kumpf appeals, arguing that his citizen-
ship was not illegally procured, that the federal courts lack
subject matter jurisdiction over this determination, and that
his denaturalization would be a violation of equal protec-
tion.
No. 05-2972 5
II.
If an individual “illegally procured” citizenship, Congress
provides for the revocation of the individual’s naturaliza-
tion. 8 U.S.C. § 1451(a). To procure citizenship lawfully, an
individual must be “lawfully admitted for permanent
residence” into the United States, among other require-
ments. 8 U.S.C. § 1427(a). Kumpf was admitted for perma-
nent residence based on a visa issued under the Refugee
Relief Act. To ascertain whether Kumpf illegally procured
citizenship, we must therefore evaluate the validity of his
visa.
Kumpf first argues that this court lacks subject matter
jurisdiction to consider the validity of the visa. Kumpf
submits that Congress empowered the consular officers of
the United States with exclusive authority “relating to the
granting or refusal of visas.” 8 U.S.C. § 1104(a). Since the
consular officer has such exclusive authority, he argues, the
federal courts cannot displace the consular function by
reviewing the decision to grant a visa. This court previously
decided this issue, determining that the federal courts do
have jurisdiction “to examine visa eligibility.” United States
v. Tittjung, 235 F.3d 330, 338 (7th Cir. 2000). This holding
was recently reaffirmed in United States v. Wittje, in which
we explained:
The district court had all the jurisdiction necessary to
consider whether Wittje was eligible for a visa. The
district court had (and has) jurisdiction to hear all civil
claims brought by the United States, 28 U.S.C. § 1345,
and the district court had specific jurisdiction to con-
sider a claim by the United States that Wittje’s certificate
of naturalization should be revoked, 8 U.S.C. § 1451(a)
. . . . [A] prerequisite to such a certificate [of naturaliza-
tion] is lawful admission into this country. Lawful
admission requires, in turn, a valid visa. The determina-
6 No. 05-2972
tion that a person’s citizenship should be revoked
necessitates, therefore, a review of the visa process.
Wittje, 422 F.3d at 485-86 (citation omitted). Kumpf attempts
to distinguish this holding by noting that his visa was
issued under the Refugee Relief Act and not the earlier
Displaced Persons Act, which was at issue in Wittje. This
distinction, however, is immaterial to the jurisdictional
argument. The federal courts have jurisdiction to review the
visa process, regardless of the statute under which the visa
was issued. Kumpf’s jurisdictional argument is without
merit.
Having jurisdiction, we turn to the question of whether
Kumpf obtained a valid visa. We review the district court’s
grant of summary judgment de novo. Wittje, 422 F.3d at 487(citation omitted). Summary judgment is appropriate if the
moving party demonstrates that “there is no genuine issue
as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Because of the “precious” nature of United States citizen-
ship, “the Government carries a heavy burden of proof” in
denaturalization cases, and the evidence justifying revoca-
tion “must be clear, unequivocal, and convincing and not
leave the issue in doubt.” United States v. Fedorenko, 449 U.S.
490, 505 (1981) (internal quotations and citations omitted).
To evaluate the validity of the visa under this standard,
we apply the governing statute at the time Kumpf’s visa
was issued, the Refugee Relief Act. See Tittjung, 235 F.3d at
339-40 (examining the immigration act in effect “ ‘[a]t the
time of petitioner’s initial entry into this country’ ” (quoting
Fedorenko, 449 U.S. at 514)). Kumpf argues that because this
act expired by the time of his naturalization, it cannot be
used to revoke his citizenship. This argument is without
merit: because Kumpf received a visa under the Refugee
No. 05-2972 7
Relief Act, the court must look to that act to evaluate
whether the visa was issued properly. Id.The Refugee Relief Act of 1953 provides that a person who
“personally advocated or assisted” in persecution is ineligi-
ble for a visa. Pub. L. No. 83-203 § 14(a), 67 Stat. 400 (1953).
The Refugee Relief Act added the word “personally.” The
prior governing act, the Displaced Persons Act of 1948,
which was amended in 1950, considered any person who
“advocated or assisted” in persecution to be ineligible for a
visa, regardless of whether he “personally” did so. Pub. L.
No. 81-555 § 13, 64 Stat. 219 (1950). The amendment thus
narrowed the class of potential immigrants who could be
excluded based on their assistance in persecution. See United
States v. Friedrich, 402 F.3d 842, 845 (8th Cir. 2005) (citing
United States v. Lileikis, 929 F. Supp. 31, 38-39 (D. Mass.
1996)).
Under the narrower language of the Refugee Relief Act,
Kumpf argues that his service in the Waffen SS does not
constitute personal assistance in persecution, and therefore
does not disqualify him from obtaining a visa. The Supreme
Court described conduct that would satisfy the broader
“assisting in persecution” under the Displaced Persons Act
by stating:
an 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 escap-
ing inmates on orders from the commandant of the
camp, fits within the statutory language about persons
who assisted in the persecution of civilians. Other cases
8 No. 05-2972
may present more difficult line-drawing problems but
we need decide only this case.
Fedorenko, 449 U.S. at 512 n.34. Thus, an armed guard who
took direct action against prisoners unquestionably assisted
in persecution. It is undisputed that persecution occurred at
the locations where Kumpf served. The issue in this case,
however, is whether Kumpf’s particular actions as a guard
constituted “personal” assistance in the persecution under
the Refugee Relief Act.
In this case, like the example in Fedorenko, Kumpf was a
guard who was issued a uniform, armed with a rifle,
received wages, and took leave to visit home. He admits to
standing guard over prisoners at Sachsenhausen, Trawniki,
and in Occupied France. He also admits to receiving orders
to shoot escaping prisoners, although he claims he never
needed to do so. In his own words, he described his duty at
Trawniki as follows:
Q. What kind of guard duty did you do?
A. Kind of the—I was watching them shoot some
people and some of them [came] out and [ran] away
again. There was hurt [sic] and not enough so [they]
still convulse[d], some of them, you know. That’s
what we ha[d] to watch. . . . Some people [were]
shot and not good enough so they [were] still able
to move, you know. That’s what we ha[d] to watch
outside so that they [would] go no place.
Kumpf Dep. at 73-74. He reiterated this same scene later in
his deposition: ”. . . some of them move[d]. I say what we
ha[d] to [do was] watch, they say some of them are still half
way alive and they run out. So—[ ] if somebody come[s] like
that, shoot them to kill, shoot to kill. I didn’t have to shoot
[any]body.” Id. at 88.
No. 05-2972 9
Kumpf emphasizes in his brief that he “never personally
harmed any individual” and never “aimed or discharged
his weapon at anyone.” He argues that his limited conduct
cannot constitute personal assistance in persecution. This
lack of affirmative acts, however, does not undermine the
fact that he fulfilled his role as a guard. The Refugee Relief
Act’s parameters are not limited to personally harming or
personally shooting individuals; the language instead
addresses personal assistance. Kumpf’s personal presence
functioned to discourage escape attempts and maintain
order over the prisoners. His participation was not through
monetary contributions, mere membership, or other indirect
actions. Rather, he presided over and witnessed the torture
and murder of helpless people. Because no one tried to
escape during his watch, he claims he did not have to shoot
anyone. Nevertheless, his personal presence as an armed
guard clearly assisted in the persecution of the prisoners. As
the Eighth Circuit explained, “[t]he pertinent question is [ ]
whether Friedrich ‘personally assisted’ on persecution, not
whether he engaged in direct persecution.” Friedrich, 402
F.3d at 845. The Eighth Circuit concluded that “[b]y guard-
ing the perimeter of the [ ] concentration camps to ensure
that prisoners did not escape from these unspeakable
conditions, Friedrich personally assisted in the persecution
that occurred in those camps.” Id. at 846. We agree with this
reasoning. While the precise parameters of personal assis-
tance under the Refugee Relief Act have not been delineated
by the courts, Kumpf’s own actions clearly constitute
personal assistance in persecution. His claim of no affirma-
tive or direct acts of harm does not alter this conclusion.
Kumpf next argues that his service in the Waffen SS was
involuntary. He submits that the involuntariness of his
service should be considered in determining his eligibility
for a visa under the Refugee Relief Act. Even assuming that
10 No. 05-2972
Kumpf served involuntarily, the Refugee Relief Act does not
require a person to assist voluntarily in persecution. In the
context of the Displaced Persons Act, courts have held that
the voluntariness of the service is irrelevant. Fedorenko, 449
U.S. at 513 (“an individual’s service as a concentration camp
armed guard—whether voluntary or involuntary—made
him ineligible for a visa.”); Wittje, 422 F.3d at 489 (“there is
no voluntariness requirement in the plain language” of the
Displaced Persons Act). Similarly, the plain language of the
Refugee Relief Act lacks a voluntariness requirement.
Relatedly, Kumpf next relies on two memoranda: a 1951
memorandum of the Displaced Persons Commission and a
1985 government memorandum of an interview with
Richard Bloomfield, a visa officer at the time of Kumpf’s
visa issuance. These memoranda, Kumpf argues, demon-
strate that visa officers considered the voluntariness of SS
service in determining visa eligibility. Kumpf suggests in
his brief that the government bears the burden of proving
that his visa was not issued “with full knowledge of his
service in the Waffen SS and in consideration of his involun-
tary conscription.” Against this, in his sworn deposition
taken for this case, Ambassador Bloomfield clarified that a
watch tower guard at a concentration camp who was
compelled into service would not be eligible for a visa.
Furthermore, Kumpf himself testified that he did not
disclose to the visa officers anything about his service with
the Waffen SS. Regardless, the plain language of the Refu-
gee Relief Act does not provide for a consideration of
voluntariness in assessing whether an individual personally
assisted in persecution. The statute is not ambiguous, and
therefore we do not need to address the agency’s construc-
tion of the statute. Chevron, U.S.A., Inc. v. Nat’l Res. Def.
Council, Inc., 467 U.S. 837, 842-43 (1984). Finally, to the
extent that Kumpf claims that the federal courts cannot
No. 05-2972 11
“reverse the decision to grant Mr. Kumpf’s visa” based on
his involuntary service, this argument simply
recharacterizes his jurisdictional argument discussed above.
Given Kumpf’s candid recitation of his service, even if
such service were compelled, we conclude that through his
actions he personally assisted in persecution, and was
therefore ineligible for a visa. Accordingly, his visa was
invalid, making his admission to this country unlawful and
his citizenship illegally procured. The district court there-
fore properly revoked Kumpf’s citizenship.
Kumpf’s final argument is that his denaturalization would
violate his right to equal protection under the law. Kumpf
argues that two individuals with identical past service
would face different results under the immigration laws if
they entered the country at different times, under different
immigration acts. This court previously addressed the equal
protection argument in Wittje:
It cannot be seriously disputed that Congress had a
rational basis (all that is needed in this case) for such a
restriction when it enacted the DPA or even now.
Immigration to this country is a privilege, not a right,
and certainly there can be no class of persons less
deserving of that privilege than those who are, or were,
a member of a group hostile to this country, particularly
a well-armed and organized group that had helped
oversee a reign of terror and murder on a
then-unprecedented scale. That Congress let this restric-
tion expire with the DPA or enacted new legislation (the
INA) that did not contain a restriction or significantly
modified the restriction does not make the original
restriction any less rational.
Wittje, 422 F.3d at 486-87. The fact that Kumpf entered the
country under the Refugee Relief Act instead of the Dis-
12 No. 05-2972
placed Persons Act does not affect the reasoning in Wittje.
Kumpf’s equal protection argument therefore fails. Finally,
we note that in his statement of issues, Kumpf also lists a
due process violation. Since Kumpf does not develop this
argument or cite any cases in support of it in his brief, he
has waived it. See Fed. R. App. P. 28(a)(9)(A); Heft v. Moore,
351 F.3d 278, 285 (7th Cir. 2003).
III.
Kumpf’s actions as an armed guard at Nazi concentration
camps constitute personal assistance in persecution under
the Refugee Relief Act. Because of this service, Kumpf was
ineligible for a visa, making his entry into this country
improper and his citizenship illegally procured.
Denaturalization is therefore warranted. Kumpf’s argu-
ments that this court lacks subject matter jurisdiction to
evaluate the validity of his visa and that his
denaturalization would violate equal protection are unavail-
ing. Accordingly, we AFFIRM the judgment of the district
court.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-23-06