United States v. Geiser

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-10-2008
USA v. Geiser
Precedential or Non-Precedential: Precedential
Docket No. 06-4406
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4406
UNITED STATES OF AMERICA
v.
ANTON GEISER,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 04-cv-01184)
District Judge: Honorable David S. Cercone
Argued March 3, 2008
Before: SCIRICA, Chief Judge, FISHER
and ROTH, Circuit Judges.
(Filed: June 10, 2008 )
Valerie M. Antonette
Samuel J. Reich
Jay K. Reisinger
Reich, Alexander, Reisinger & Farrell
436 Seventh Avenue
1000 Koppers Building
Pittsburgh, PA 15219
Adrian N. Roe (Argued)
Watkins, Dulac & Roe
603 Stanwix Street
Two Gateway Center, 17 East
Pittsburgh, PA 15222
Attorneys for Appellant
Christina Giffin (Argued)
United States Department of Justice
Criminal Division, Appellate Section
10th and Constitution Avenue, N.W.
Patrick Henry Building
Washington, DC 20530
Stephen J. Paskey
United States Department of Justice
Criminal Division
Suite 200
10th Street and Pennsylvania Avenue, N.W.
Washington, DC 20530
Attorneys for Appellee
2
OPINION OF THE COURT
FISHER, Circuit Judge.
In this case, we must decide whether Anton Geiser, who
served as an armed Nazi concentration camp guard, “personally
advocated or assisted in the persecution of . . . [a] group of
persons because of race, religion, or national origin” and is thus
ineligible for a visa under the Refugee Relief Act of 1953, Pub.
L. No. 83-203 at § 14(a), 67 Stat. 400, 406 (“RRA”). For the
reasons that follow, we conclude that Geiser “personally
advocated or assisted in . . . persecution” and is ineligible for an
RRA visa. Therefore, we will affirm the District Court’s order
granting the Government’s motion for summary judgment and
revoking Geiser’s United States citizenship.
I. BACKGROUND
Anton Geiser, an ethnic German, was born in 1924 in a
part of what was then Yugoslavia and is now Croatia. After
German forces invaded Yugoslavia in 1941, Geiser was drafted
into the Waffen Schutzstaffel (“SS”). The SS was the elite
guard of the Nazi party, and the “Waffen” SS was the “Armed”
SS. Certain units of the Waffen SS, the “Death’s Head”
battalions, were responsible for guarding concentration camps.
Geiser was chosen for a Death’s Head battalion and sent
to Sachsenhausen concentration camp near Oranienberg,
3
Germany. Geiser received training in how to guard prisoners
and was told that if a prisoner tried to escape, he should shoot
the prisoner with his rifle or sidearm. He guarded the perimeter
of the camp and escorted prisoners to and from labor sites. He
also served at Buchenwald concentration camp near Weimar,
Germany, as well as Arolsen, a subcamp of Buchenwald. Geiser
admits that Sachsenhausen and Buchenwald were places of
persecution.
When Allied forces approached, Geiser and his fellow
guards fled. They obtained civilian clothing and buried their SS
uniforms in the woods. After the war, Geiser worked in
Germany and Austria. In 1956, he applied for a United States
visa under the Immigration and Nationality Act of 1952 and the
RRA. Geiser entered the United States in 1956 and was
naturalized in the Court of Common Pleas of Mercer County,
Pennsylvania, in 1962.
On April 9, 2004, the United States filed a complaint to
revoke Geiser’s citizenship in the United States District Court
for the Western District of Pennsylvania. The complaint alleged
that Geiser’s service as an SS concentration camp guard
rendered him ineligible for a visa under the RRA, which
provides: “No visa shall be issued under this Act to any person
who personally advocated or assisted in the persecution of any
person or group of persons because of race, religion, or national
origin.” RRA § 14(a). Geiser and the Government filed cross
motions for summary judgment.
The District Court rejected Geiser’s argument that the
term “persecution” in the RRA is ambiguous. Therefore, the
4
Court concluded that Chevron deference, as outlined in Chevron
U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837
(1984), did not apply. Based on the undisputed facts, the Court
granted the Government’s motion for summary judgment and
ordered Geiser’s citizenship to be revoked.
Geiser filed this timely appeal. He argues that the term
“persecution” is ambiguous, and he asks us to reverse and
remand for consideration of the second step of the Chevron
analysis.
II. DISCUSSION
The District Court had subject matter jurisdiction under
28 U.S.C. §§ 1331 and 1345. We have jurisdiction under 28
U.S.C. § 1291. We have previously explained our standard of
review for an appeal from a grant of summary judgment:
“We review a district court’s grant of summary
judgment de novo. Summary judgment is only
appropriate if there are no genuine issues of
material fact and the movant is entitled to
judgment as a matter of law. In reviewing the
District Court’s grant of summary judgment, we
view the facts in a light most favorable to the
nonmoving party.”
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch,
510 F.3d 253, 260 (3d Cir. 2007) (citations omitted).
5
A. Applicable Statutes: the INA and the RRA
“[T]he Immigration and Nationality Act of 1952 . . . , 8
U.S.C. § 1451(a), requires revocation of United States
citizenship that was illegally procured.” Fedorenko v. United
States, 449 U.S. 490, 493 (1981) (internal quotation marks
omitted). The legality of a naturalization “ultimately turns on”
an alien’s eligibility under the Act under which he was issued a
visa. United States v. Szehinskyj (Szehinskyj I), 277 F.3d 331,
334 (3d Cir. 2002). Therefore, in order to determine whether
Geiser’s citizenship was illegally procured, we must examine
whether he met the RRA’s requirements.
The RRA was one of a series of post-World War II
immigration statutes. “In 1948, Congress enacted the Displaced
Persons Act . . . , [or DPA,] to enable European refugees driven
from their homelands by the war to emigrate to the United States
without regard to traditional immigration quotas.” Fedorenko,
449 U.S. at 495. “Section 13 of the [DPA] . . . states . . . : ‘No
visas shall be issued under the provisions of this Act, as
amended . . . to any person . . . who advocated or assisted in the
persecution of any person because of race, religion or national
origin.’” Szehinskyj I, 277 F.3d at 334. In 1953, Congress
passed the RRA as a successor statute to the DPA. United
States v. Friedrich, 402 F.3d 842, 844 (8th Cir. 2005). The
RRA provides: “No visa shall be issued under this Act to any
person who personally advocated or assisted in the persecution
of any person or group of persons because of race, religion, or
national origin.” RRA § 14(a).
6
The RRA did not displace the then-existing immigration
requirements under the Immigration and Nationality Act
(“INA”). The RRA states: “No person shall be issued a visa . . .
under [the RRA] unless . . . the applicant has established his
eligibility for a visa and his admissibility into the United States
under this Act and under the immigration laws and regulations.”
RRA § 11(c).
B. The Parameters of Chevron Step One Analysis
Geiser’s appeal rests on his assertion that RRA § 14(a) is
ambiguous because it uses the term “persecution.” Geiser
argues that because of the ambiguity, the District Court should
not have stopped with its Chevron step one analysis, but should
have proceeded to inquire at Chevron step two whether the State
Department’s interpretation of the RRA is reasonable.
We have explained Chevron analysis as follows:
“Chevron applies when ‘it appears that Congress
delegated authority to . . . [an administrative]
agency . . . to make rules carrying the force of
law, and that the agency interpretation claiming
deference was promulgated in the exercise of that
authority.’ United States v. Mead Corp., 533 U.S.
218, 226-27 (2001). If Chevron applies, a court
must ask (at what is customarily called step one)
‘whether Congress has directly spoken to the
precise question at issue.’ Chevron, 467 U.S. at
842. ‘If so, courts, as well as the agency, “must
give effect to the unambiguously expressed intent
7
of Congress.”’ Household Credit Servs. Inc. v.
Pfennig, 541 U.S. 232, [239] (2004) (quoting
Chevron, 467 U.S. at 842-43). ‘However,
whenever Congress has “explicitly left a gap for
the agency to fill,”’ a court must proceed to step
two, and ‘the agency’s [interpretation] is “given
controlling weight unless [it is] arbitrary,
capricious, or manifestly contrary to the statute.”’
Id. (second brackets in original) (quoting
Chevron, 467 U.S. at 843-44). The Court has
described this test as one of reasonableness. See
Chevron, 467 U.S. at 845, 865, 866.”
Chen v. Ashcroft, 381 F.3d 221, 223-24 (3d Cir. 2004) (parallel
citations omitted).
Thus, at step one, the question is “whether Congress has
directly spoken to the precise question at issue,” id. at 224 –
whether serving as a concentration camp guard constitutes
“personally advocat[ing] or assist[ing] in . . . persecution.”
RRA § 14(a). At step one, we consider the text and structure of
the statute in question. See Zheng v. Gonzales, 422 F.3d 98, 120
(3d Cir. 2005). The parties dispute whether further analysis is
required at Chevron step one. Geiser states that according to our
case law, a court should refer to legislative history to confirm its
step one statutory analysis. To support this proposition, he cites
Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 388 n.3
(3d Cir. 2005). The Government contends that if the statutory
text is unambiguous, it is inappropriate and unnecessary to
inquire into the legislative history at step one.
8
The Government is correct that legislative history should
not be considered at Chevron step one. A closer look at
Santiago and subsequent cases confirms this point. In Santiago,
we stated:
“It is not clear whether it is appropriate for us to
consider legislative history to determine whether
a statute is unambiguous at this point in Chevron
analysis. Compare FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133, 137 (2000)
(considering legislative history at step one of
Chevron analysis), with K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 293 n.4 (1988) (stating that
‘any reference to legislative history . . . is in the
first instance irrelevant’ in step one of Chevron
analysis) and Nat’l R.R. Passenger Corp. v.
Boston & Me. Corp., 503 U.S. 407, 417 (1992)
(finding only statutory text is relevant for step one
of Chevron analysis). However, it is worth noting
that the legislative history of [the statute in
question] supports the conclusion [we have
reached].”
417 F.3d at 388 n.3. Santiago merely demonstrates that in light
of ambiguous guidance from the Supreme Court, we covered
our bases by including a brief reference to the legislative history.
As we noted in Santiago, the Supreme Court referred to
legislative history when explaining the meaning of the Food,
Drug and Cosmetic Act in Brown & Williamson. Id. (citing 529
U.S. at 133). However, subsequent to Brown & Williamson, the
9
Supreme Court returned to its original mode of analysis, which
does not include a consideration of legislative history at
Chevron step one. Zuni Pub. Sch. Dist. No. 89 v. Dep’t of
Educ., 127 S. Ct. 1534, 1543 (2007) (“[N]ormally neither the
legislative history nor the reasonableness of the [agency
interpretation] would be determinative if the plain language of
the statute unambiguously indicated [Congress’s intent].”);
Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 132-33
(2002) (“[R]eference to legislative history is inappropriate when
the text of the statute is unambiguous.”). Thus, we no longer
find it necessary to consider legislative history at Chevron step
one.
Geiser argues that Fedorenko, 449 U.S. 490, and
Szehinskyj v. Att’y Gen. (Szehinskyj II), 432 F.3d 253 (3d Cir.
2005), indicate that we should consider legislative history at
Chevron step one. But these cases, read in their entirety, do not
support his argument.
Geiser cites Fedorenko to show that the Supreme Court,
when deciding whether a concentration camp guard was eligible
for a visa under the DPA, took into account the testimony of a
foreign service officer who had administered visa applications
under the DPA. Fedorenko, 490 U.S. at 511. Geiser’s reading
of Fedorenko contains several weaknesses. First, the material
the Supreme Court considered in that case was not legislative
history, but testimony about agency interpretation of the statute.
Id. Second, the Fedorenko Court relied heavily on the plain
meaning of the language of the DPA. Id. at 512. Third, citing
Fedorenko to explain Chevron analysis is a dubious proposition,
since Fedorenko predates Chevron by three years. Even if
10
Fedorenko did consider legislative history when initially
construing the statute’s meaning, this approach was altered by
the Supreme Court’s Chevron jurisprudence, which now
controls our analysis of the RRA.
Nor does Szehinskyj II support Geiser’s argument that we
should consider legislative history at Chevron step one. The
petitioner in Szehinskyj II was a former concentration camp
guard who had received a visa under the DPA, became a United
States citizen, and was later denaturalized. 432 F.3d at 254.
After his denaturalization, the INS instituted removal
proceedings under the Holtzman Amendment. Id. Szehinskyj
argued that the legislative history of the Holtzman Amendment
showed that it had a different meaning than the DPA despite
using the same language (“assisted in persecution”). Id. at 255-
56. We stated that “[t]he law is what Congress enacts, not what
its members say on the floor.” Id. at 256.
We showed that Szehinskyj had selectively chosen
comments from the floor debate that supported his argument.
Id. at 256-60. We also showed that the floor debate as a whole
supported the plain meaning of the statute, which was
controlling in any case. Id. Our consideration of legislative
history illustrated “the perils of appealing to [selected comments
from the floor debate] as a guide to statutory meaning;” we
rejected Szehinskyj’s argument largely because “the statutory
language is not ambiguous, and is contrary to [his]
interpretation.” Id. at 256. Therefore, Geiser is not on solid
ground when he reads Szehinskyj II as a statement by this Court
that legislative history should be considered at Chevron step
one.
11
In sum, the current state of Supreme Court and Third
Circuit jurisprudence demonstrates that legislative history
should not be considered at Chevron step one. At step one, a
court “must ask . . . whether Congress has directly spoken to the
precise question at issue.” Chen, 381 F.3d at 224 (internal
quotation marks and citations omitted). We determine whether
Congress has “unambiguously expressed [its] intent,” id., by
looking at the “plain” and “literal” language of the statute, Zuni
Pub. Sch. Dist., 127 S. Ct. at 1543.
C. Application of Chevron Step One Analysis to the RRA
The District Court determined, in its Chevron step one
analysis, that the meaning of RRA § 14(a) (“personally
advocated or assisted in the persecution of any person or group
of persons because of race, religion, or national origin”) was not
ambiguous and referred to former concentration camp guards.
Therefore, the District Court did not proceed to Chevron step
two, stating that it did not “reach Geiser’s contention that the
State Department had in fact adopted a policy of granting RRA
visas to former Nazi concentration camp guards who were not
war criminals.”
Leaving aside the legislative history, which we have
shown to be irrelevant at Chevron step one, Geiser argues that
the text and structure of the RRA are ambiguous.
1. Textual Ambiguity in the RRA
Geiser argues that RRA § 14(a) is silent as to the
meaning of the term “persecution,” and that the definition of
12
“persecution” is therefore ambiguous. He cites Chen, 381 F.3d
221, to support this proposition. Geiser does not argue that the
RRA’s use of the word “personally” is ambiguous, but we will
address this question as well in order to complete the Chevron
step one textual analysis. We conclude that the District Court
correctly found that there is no textual ambiguity in the RRA.
a. Ambiguity in the Term “Persecution”
The RRA does not define “persecution.” RRA § 2
(“Definitions” section, defining “refugee,” “escapee,” “German
expellee,” and “Administrator”). However, statutory silence
does not prove that a term is ambiguous. Appalachian States
Low-Level Radioactive Waste Comm’n v. Pena, 126 F.3d 193,
197-98 (3d Cir. 1997) (concluding that a statutory term was
unambiguous, although it was not defined). When determining
a statute’s plain meaning, our starting point is “the ordinary
meaning of the words used.” Id. at 197. We refer to standard
reference works such as legal and general dictionaries in order
to ascertain the ordinary meaning of words. Id. (citing Black’s
Law Dictionary, Webster’s Ninth New Collegiate Dictionary,
and Webster’s Third New International Dictionary).
Webster’s second definition of “persecute” is: “to harass
in a manner to injure, grieve, or afflict [usually] because of some
difference of outlook or opinion[;] set upon with cruelty or
malignity[;] . . . to cause to suffer or put to death because of
13
belief (as in a religion) . . . .” 1 Webster’s Third New
International Dictionary 1685 (1981). Black’s defines
“persecution” as: “Violent, cruel, and oppressive treatment
directed toward a person or group of persons because of their
race, religion, sexual orientation, politics, or other beliefs.”
Black’s Law Dictionary 1178 (8th ed. 2004).
In a case involving the denaturalization of a former Nazi,
we defined “persecution” in a manner that is substantively
identical to these definitions. United States v. Koreh, 59 F.3d
431, 440 (3d Cir. 1995). We said that persecution is “the
infliction of sufferings, harm, or death on those who differ . . .
in a way regarded as offensive or meriting extirpation[;] a
campaign having for its object the subjugation or extirpation of
the adherents of a religion.” Id. (internal quotation marks and
citations omitted).
Under these definitions, the experiences of prisoners at
Nazi concentration camps fit squarely within the plain meaning
of “persecution.” Thus, the meaning of “persecution” is not
ambiguous, even though the statute does not define the term.
Indeed, Geiser concedes that Sachsenhausen and Buchenwald
were “places of persecution.” This admission forecloses his
argument that “persecution” is an ambiguous term in the context
of this case, because even if it is, he agrees that the
1
The first definition, which is not applicable in this case,
is: “to follow with the intent of killing, capturing, or harming
. . . .” Webster’s Third New International Dictionary 1685
(1981).
14
concentration camps where he was a guard were places of
persecution.
Geiser nevertheless argues that Chen demonstrates that
the term “persecution” is ambiguous. In Chen, we considered
which individuals are entitled to refugee status based on past
experiences of forced abortion and sterilization. 381 F.3d at
223. According to a 1996 statute, coercive population control
programs constitute persecution. Id. at 224-25. The BIA
interpreted the statute to allow women affected by those
programs, as well as their husbands, to make claims of
persecution. Id. at 227. Chen argued that the definition of
“persecution” should be expanded to include the fiancé of a
woman who had experienced forcible abortion or sterilization,
but we disagreed. Id. at 229. In the course of our analysis, we
made the following point, upon which Geiser relies:
“[W]ith the exception of forced abortions and
sterilizations, the concept of ‘persecution’ is left
completely undefined. We infer from Congress’s
use of this ambiguous term an intent to delegate
interpretive authority to the agency, including the
ability to decide, within a reasonable range, the
precise contours of its meaning.”
Id. at 232. It is important to note that in Chen, we spoke of the
agency’s authorization to regulate within the “reasonable range”
specified by the statutory language. Id. We reiterated this point
later in the opinion:
15
“[T]here is no indication that Congress intended
to put limits on the meaning of the term
‘persecution’ beyond those imposed by the normal
understanding of the word. Matter of Acosta, 19
I&N Dec. 211, at 223 (BIA 1985). (‘Congress
chose not to define the word “persecution” . . .
because the meaning of the word was understood
to be well established by administrative and court
precedents.’).”
Id. at 233.
In Chen, the petitioner was attempting to show that the
concept of “persecution” should be expanded to include the
fiancés of women who were victims of coercive population
control programs. Id. at 223. It was logical to discuss the
ambiguity in a term like “persecution,” which in the context of
Chen applied to some individuals and not others. Geiser’s case,
on the other hand, does not stretch the boundaries of the concept
of “persecution.” What occurred in Nazi concentration camps
rests within the plain meaning of the word. Thus, Chen’s
discussion of the ambiguity of the term “persecution” is
inapplicable to the concentration camp context.
In Fedorenko, the Supreme Court recognized that
persecution has a basically unambiguous meaning, but
potentially ambiguous boundaries. 449 U.S. at 511 n.3.
Fedorenko parallels Geiser’s case to a large extent, except that
Fedorenko obtained his visa under the DPA rather than the
RRA. Id. at 496-97. The District Court refused to denaturalize
Fedorenko because it found that he had not voluntarily assisted
16
in persecution. Id. at 511 n.33. The District Court read this
voluntariness requirement into the statute because it believed
that otherwise, it would be constrained to denaturalize Jewish
survivors of Treblinka who had involuntarily “assisted . . . in
persecution” by, for example, cutting other prisoners’ hair
before their execution. Id.
The Supreme Court laid to rest the District Court’s fears
by pointing out that the term “persecution” can be ambiguous.
Id. at 512 n.34. The Court stated that “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.” Id. In other words, “persecution” is ambiguous when
applied to a prisoner forced to assist in concentration camp
operations, but it is not ambiguous when applied to an armed
camp guard. Id. On the basis of this reasoning, the Supreme
Court concluded that Fedorenko’s citizenship must be revoked.
Id. at 518.
Thus, the Supreme Court and this Court have both
acknowledged that the term “persecution” has gray boundaries
where ambiguity may legitimately be found. Id.; Chen, 381 F.3d
at 232. However, these cases also recognize that certain conduct
(guarding a concentration camp or forcing a woman to undergo
an abortion) falls squarely within the definition of “persecution.”
Geiser’s case presents an example of such conduct.2 It cannot
2
Geiser’s Answer to the Government’s Complaint denies
“that [he] personally assisted the Nazi government . . . in
persecuting any persons . . . . To the contrary, to the limited
17
be rationally argued that prisoners at Sachsenhausen and
Buchenwald were not persecuted within the plain meaning of
that term. Therefore, the text of the RRA is not ambiguous due
to the use of the term “persecution.”
b. Ambiguity in the Term “Personally”
The Supreme Court and this Court have held that
according to the plain meaning of the DPA, any armed
concentration camp guard “advocated or assisted in
persecution.” Fedorenko, 449 U.S. at 509 (“[D]isclosure of the
true facts about petitioner’s service as an armed guard at
Treblinka would, as a matter of law, have made him ineligible
for a visa under the DPA.”); Szehinskyj I, 277 F.3d at 339 (“It is
clear that personal participation in atrocities is not required for
one to have assisted in persecution-being an armed
concentration camp guard is sufficient.” (citing Fedorenko, 449
U.S. at 512)).
Since these cases establish that armed concentration
camp guards “advocated or assisted in persecution,” we must
determine whether the RRA’s inclusion of the word
“personally” (which did not appear in the DPA) requires a
extent possible in the context of a brutal military organization,
[Geiser] attempted to aid and assist [the] victims of
persecution.” However, service as an armed concentration camp
guard, without further participation in atrocities, is sufficient to
constitute assistance in persecution. Fedorenko v. United States,
449 U.S. 490, 512 n.34 (1981).
18
different result.3 This is an issue of first impression for our
Court.
As required by Chevron step one, we must decide
whether the term “personally” in the text of RRA § 14(a) is
ambiguous. We must determine whether Congress has “directly
spoken to the precise question at issue,” Chen, 381 F.3d at 224,
by looking at the “plain” and “literal” language of the statute,
Zuni Pub. Sch. Dist., 127 S. Ct. at 1543. The precise question
at issue is whether an armed concentration camp guard who is
not shown to have committed atrocities nevertheless “personally
advocated or assisted in . . . persecution.” RRA § 14(a).
Webster’s defines “personal” as: “[O]f or relating to a
particular person . . . [;] done in person without the intervention
of another . . . .” Webster’s Third New International Dictionary
1686 (1981). It defines “personally” as: “[S]o as to be
personal[;] in a personal manner; . . . as oneself[;] on or for
one’s own part.” Id. at 1687. Black’s defines “personal” as:
“Of or affecting a person.” Black’s Law Dictionary 1179 (8th
ed. 2004). Therefore, the plain meaning of “personally
advocated or assisted in the persecution of any person” is that an
3
The DPA provided that visas would not be issued to
anyone “who advocated or assisted in the persecution of any
person.” United States v. Szehinskyj (Szehinskyj I), 277 F.3d
331, 334 (3d Cir. 2002). The RRA provided that visas would
not be issued to “any person who personally advocated or
assisted in the persecution of any person or group of persons.”
RRA § 14(a).
19
individual, by his own actions performed in person, advocated
or assisted in persecution.
Geiser’s conduct as an SS guard fits the plain meaning of
“personally advocated or assisted in . . . persecution.” Geiser
stood watch at the perimeter of the concentration camps with
instructions to fire his rifle if a prisoner tried to escape. Thus,
his personal actions assisted in keeping the prisoners confined
in the camps where they were persecuted. In addition, he
marched prisoners to and from their work sites, and these
personal actions assisted in coercing the prisoners into
performing forced labor.
We find support for our conclusion in the opinions of our
sister Courts of Appeals, which have concluded that “personally
advocated and assisted in . . . persecution” describes the actions
of any concentration camp guard. In United States v. Hansl, the
Court of Appeals for the Eighth Circuit concluded that:
“Hansl’s admitted conduct as a member of the
Death’s Head Battalion, guarding the perimeters
of concentration camps while armed, issuing
orders, and threatening to shoot anyone who
attempted to leave a concentration camp is more
than sufficient to meet the common definition of
personally assisting in the persecution of a group
of persons based on their race, religion, or
national origin.”
439 F.3d 850, 854 (8th Cir. 2006). The Court of Appeals for the
Seventh Circuit reached the same result in United States v.
20
Kumpf: “While the precise parameters of personal assistance
under the [RRA] have not been delineated by the courts,
Kumpf’s own actions [as a concentration camp guard] clearly
constitute personal assistance in persecution.” 438 F.3d 785,
790 (7th Cir. 2006).
We conclude, as have other Courts of Appeals, that
according to the plain meaning of the RRA, concentration camp
guards “personally advocated or assisted in . . . persecution.”
RRA § 14(a). Although Geiser attempts to argue that the RRA
is textually ambiguous at Chevron step one, the meaning of the
statute is clear. Therefore, the District Court correctly refused
to proceed to Chevron step two.
2. Structural Ambiguity in the RRA
Geiser argues that the structure of the RRA demonstrates
that the statute is ambiguous. Statutory structure is properly
considered under Chevron step one. Zheng, 422 F.3d at 115-16.
However, the structure of the RRA does not create ambiguity as
to its meaning.
The RRA provides that individuals must establish
“eligibility for a visa and . . . admissibility into the United States
under this Act and under the immigration laws and regulations.”
RRA § 11(c). Thus, any individual who received a visa under
the RRA was also subject to the requirements of the
Immigration and Nationality Act of 1952 (“INA”). Section 104
of the INA provided that aliens should be excluded if, among
other things, they had been members of a “totalitarian party” or
21
would engage in “activity subversive to the national security.”
INA § 212(a)(28), (29).
The State Department issued regulations interpreting the
INA, among them 22 C.F.R. § 42.42. This regulation provided
that an alien was inadmissible if he “was guilty of, or . . .
advocated or acquiesced in activities or conduct contrary to
civilization and human decency on behalf of a power which was
at war with the United States during World War II.” 22 C.F.R.
§ 42.42(j)(2).
Geiser posits that the admissibility of former
concentration camp guards could be determined by looking at
RRA § 14, by looking at 22 C.F.R. § 42.42(j) and its interpretive
materials, or by looking at the State Department’s interpretations
of the immigration laws as a whole. He argues that because
there are multiple ways to interpret the RRA’s structure, the
statute is ambiguous.
These three interpretations of the structure of the RRA
are unconvincing. It is not clear how the admissibility of former
camp guards could be governed only by the RRA when the RRA
specifically incorporates the requirements of the INA.
Conversely, it would not make sense for admissibility to be
governed only by the INA and its associated regulations when
Geiser’s visa was issued under the RRA.
Geiser’s proffered interpretations of the RRA’s structure
do not include the most natural reading of the statute, which is
that the word “and” is used in its plain conjunctive sense. Reese
Bros., Inc. v. United States, 447 F.3d 229, 236 (3d Cir. 2006)
22
(“The usual meaning of the word ‘and’ . . . is conjunctive, and
unless the context dictates otherwise, the ‘and’ is presumed to
be used in its ordinary sense.”) (internal quotation marks and
citation omitted). RRA § 11(c) states that applicants must
demonstrate their eligibility “under this Act and under the
immigration laws and regulations.” Nothing in this context
dictates that we should abandon our usual presumption about the
meaning of “and.” In RRA § 11(c), “and” signifies that
applicants such as Geiser had to meet two sets of requirements:
those of the INA (and its associated regulations) and those of the
RRA. Thus, Geiser’s argument – that the RRA is structurally
ambiguous – fails.4
Despite Geiser’s effort to unearth ambiguity in the
structure of the RRA, none exists. The District Court properly
declined to proceed to Chevron step two in order to discern the
meaning of the RRA.
4
In cases involving former concentration camp guards,
the Courts of Appeals for the Seventh and Eighth Circuits have
also interpreted RRA § 11(c) to use “and” in its ordinary
conjunctive sense. Each of those courts analyzed the former
guard’s admissibility under the RRA, without reference to the
INA or its attendant regulations. United States v. Hansl, 439
F.3d 850 (8th Cir. 2006); United States v. Kumpf, 438 F.3d 785
(7th Cir. 2006). If the word “and” carries its plain conjunctive
meaning, the government only needs to show that an individual
failed to meet the requirements of the RRA or the INA, because
an individual who fails to meet either set of requirements does
not qualify under the RRA “and” the INA.
23
III. CONCLUSION
We conclude that the District Court properly granted the
Government’s motion for summary judgment. There is neither
textual nor structural ambiguity in RRA § 14(a), so Chevron
step two analysis is unnecessary. As an armed concentration
camp guard in World War II, Geiser “personally advocated or
assisted in the persecution of [a] . . . group of persons because
of race, religion, or national origin.” RRA § 14(a). Therefore,
we will affirm the District Court’s order granting the
Government’s motion for summary judgment and revoking
Geiser’s citizenship.
24