United States v. Tittjung, Anton

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2442
United States of America,
Plaintiff-Appellee,
v.
Anton Tittjung,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 89-C-1068--John W. Reynolds, Judge.
Argued November 9, 2000--Decided December 15, 2000
Before Flaum, Chief Judge, and Ripple and Kanne,
Circuit Judges.
Flaum, Chief Judge. On December 14, 1990, the
District Court for the Eastern District of
Wisconsin determined that Anton Tittjung’s
position as a Nazi concentration camp guard
during World War II invalidated his previously
issued visa. Therefore, the court revoked
Tittjung’s citizenship and cancelled his
certificate of naturalization. This Court
affirmed that decision. On March 24, 1994, the
Immigration Court ordered the deportation of
Tittjung, pursuant to the Holtzman Amendment, 8
U.S.C. sec. 1227(a) (4)(D) (formerly 8 U.S.C.
sec. 1251(a)(4)(D)). The Board of Immigration
Appeals ("BIA") affirmed the Immigration Court’s
decision, and this Court affirmed the decision of
the BIA. On January 10, 2000, almost six years
after his deportation was first ordered, Tittjung
filed a motion to dismiss, pursuant to
Fed.R.Civ.P. 60(b)(4), seeking to vacate the
district court’s 1990 order. The district court
denied Tittjung’s motion to dismiss. For the
reasons stated herein, we affirm the district
court’s decision.
I. BACKGROUND
Anton Tittjung was born in Erdud, Yugoslavia on
November 17, 1924. Beginning in October of 1942,
and for the duration of World War II, Tittjung
served in the Waffen SS, an organization of the
Nazi government. Specifically, Tittjung was a
member of the Totenkopf-Sturmbann (Death’s Head
Battalion), where he operated as an armed guard
at the Mauthausen concentration camp and its
subcamp Gross Raming./1
In 1952, Tittjung applied for and obtained a
visa to enter the United States pursuant to the
Displaced Persons Act of 1948 ("DPA"). At no
point during the application process did Tittjung
disclose his association with the SS Death’s Head
Battalion nor his participation in Nazi
persecution as a concentration camp guard.
Tittjung applied for naturalization in 1973, once
again concealing his Nazi wartime service. On
January 9, 1974, Tittjung was naturalized and
became a citizen of the United States.
On September 1, 1989, the government filed a
complaint against Tittjung asking the District
Court for the Eastern District of Wisconsin to
revoke Tittjung’s citizenship. The request for
revocation was based on evidence which revealed
Tittjung’s history as a member of the Waffen SS
and an armed concentration camp guard at
Mauthausen and Gross Raming. The government moved
for summary judgment, arguing that Nazi
concentration camp guards were ineligible for
visas under the DPA, and that as a result,
Tittjung’s citizenship was illegally procured. On
December 14, 1990, the district court granted the
government’s motion. See Tittjung, 753 F.Supp. at
251. The court held that as a concentration camp
guard, Tittjung had assisted in the persecution
of persons because of their race, religion, or
national origin. Because the DPA, as amended in
1950, made all persons who assisted Nazi Germany
in the persecution of civilian populations of
countries ineligible for visas, Tittjung was
ineligible for a visa when he entered the United
States. To be eligible for naturalization, a
person must have been lawfully admitted into the
United States with a valid immigration visa. See
8 U.S.C. sec. 1427(a)(1). The court determined
that because Tittjung’s visa was invalid, he was
never lawfully admitted into the United States.
Since Tittjung had not satisfied the
prerequisites for naturalization, the court
revoked his citizenship, set aside its January 9,
1974 order admitting Tittjung to citizenship, and
cancelled Tittjung’s certification of
naturalization. See Tittjung, 753 F. Supp. at
256-57. Because Tittjung’s guard service required
his denaturalization as a matter of law, the
district court did not address allegations that
Tittjung misrepresented his World War II service
to visa officials and thereby entered the United
States by means of fraud. Id. at 257. This Court
affirmed the district court’s order in an opinion
dated November 14, 1991, 948 F.2d 1292 (7th Cir.
1991), and the Supreme Court thereafter denied
certiorari, 505 U.S. 1222 (1992).
As a result of the district court’s 1990
decision, Tittjung reverted to alien status and
was thus removable. On May 11, 1992, the
government commenced deportation proceedings
against Tittjung. The Immigration Court, on March
24, 1994, ordered Tittjung’s deportation pursuant
to the Holtzman Amendment./2 Tittjung appealed
the decision of the Immigration Court to the BIA.
On August 13, 1997, the BIA affirmed the
deportation order and dismissed Tittjung’s
appeal. Tittjung then filed a motion for
reconsideration, which the BIA denied on August
27, 1998. On December 2, 1999, this Court
affirmed the BIA’s decision. Tittjung v. Reno,
199 F.3d at 393, reh’g denied, No. 98-3407 (Feb.
9, 2000). On June 29, 2000, the Supreme Court
denied certiorari. ___ U.S. ___, 120 S.Ct. 2746.
Faced with an imminent deportation, Tittjung
filed a motion with the District Court for the
Eastern District of Wisconsin, seeking to vacate
the 1990 denaturalization judgment and dismiss
the complaint. Tittjung argued that the 1990
judgment was void under Fed.R.Civ.P. 60(b)(4) on
the ground that the district court lacked subject
matter jurisdiction. On April 27, 2000, that
motion was denied by the district court. Tittjung
now appeals, arguing that: (1) there is no
Article III jurisdiction to redetermine visa
eligibility, and on that basis find that Tittjung
was not lawfully admitted when he was granted
citizenship; (2) it is an unconstitutional
encroachment into an executive function for the
judiciary to redetermine visa eligibility; (3)
since the DPA is no longer in effect, the
district court cannot make a finding of visa
ineligibility and unlawful admission based on
that law; (4) the court had to make certain
factual findings, including that Tittjung made a
misrepresentation in order to obtain a visa,
before it could hold that he illegally obtained
a visa and was thus not "lawfully admitted."
II. DISCUSSION
A. Rule 60(b)(4) Standard of Review
Tittjung’s present motion challenges the
jurisdiction of the District Court for the
Eastern District of Wisconsin to determine that
he was visa ineligible when he entered the United
States in 1952. No court may decide a case
without subject matter jurisdiction, and neither
the parties nor their lawyers may stipulate to
jurisdiction or waive arguments that the court
lacks jurisdiction. See Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 818 (1988);
Indiana Gas Co. v. Home Ins. Co., 141 F.3d 314(7th Cir. 1998); see also United States v. County
of Cook, Ill., 167 F.3d 381, 387-88 (7th Cir.
1999). To further that end, "It is the duty of
this court to ’satisfy itself not only of its own
jurisdiction, but also that of the lower courts
in a cause under review.’" EEOC v. Chicago Club,
86 F.3d 1423, 1428 (7th Cir. 1996) (citing
Mitchell v. Maurer, 293 U.S. 237, 244 (1934)).
Therefore, if the parties neglect the subject, a
court must raise the jurisdictional question on
its own. Christianson, 486 U.S. at 818. However,
in unexceptional circumstances, a party that has
had an opportunity to litigate the question of
subject matter jurisdiction may not reopen that
question in a collateral attack following an
adverse judgment. See Insurance Corp. of Ireland,
Ltd. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 702 n.9 (1982).
The exception to the general rule barring
collateral attacks on subject matter jurisdiction
flows from Fed.R. Civ.P. 60(b)(4)./3 Yet that
exception is narrowly tailored, such that a lack
of subject matter jurisdiction will not always
render a final judgment "void." Only when the
jurisdictional error is "egregious" will courts
treat the judgment as void. In re Edwards, 962
F.2d 641, 644 (7th Cir. 1992). To be egregious,
and thus void under Rule 60(b)(4), the error must
involve a clear usurpation of judicial power,
where the court wrongfully extends its
jurisdiction beyond the scope of its authority.
See O’Rourke Bros., Inc. v. Nesbitt Burns, Inc.,
201 F.3d 948, 951 (7th Cir. 2000); Edwards, 962
F.2d at 644; Kansas City S. Ry. v. Great Lakes
Carbon Corp., 624 F.2d 822, 825 (8th Cir. 1979).
"If it is not egregious, the courts say that the
court that issued the judgment in excess of its
jurisdiction had jurisdiction to determine
jurisdiction, and its jurisdictional finding,
even if erroneous, is therefore good against
collateral attack, like any other erroneous but
final judgment." Edwards, 962 F.2d at 644. Here,
the district court did not find any
jurisdictional errors let alone egregious ones.
We review de novo the denial of a motion to
vacate a judgment as "void" under Fed.R.Civ.P.
60(b)(4). Federal Election Comm’n v. Al Salvi for
Senate Comm., 205 F.3d 1015 (7th Cir. 2000).
B. Tittjung’s Jurisdictional Arguments
1. The District Court’s Jurisdiction to Review a
Visa
Tittjung’s overarching claim on appeal is that
a district court lacks subject matter
jurisdiction to review a visa eligibility
determination and on that basis vacate an order
of naturalization. We note at the outset that
Tittjung’s status as visa eligible has been at
issue in Article III proceedings for
approximately eleven years to date. To say that
Tittjung has had ample opportunity to raise this
issue is to understate the matter. Moreover,
Tittjung has previously admitted that the courts
do have jurisdiction to examine his visa
eligibility. The original complaint, filed in
1989, specifically alleged that the district
court had jurisdiction pursuant to 28 U.S.C. sec.
1345 (original jurisdiction over all civil
actions brought by the government) and 8 U.S.C.
sec. 1451(a) (jurisdiction to revoke
citizenship). Tittjung admitted that allegation,
and has never challenged the district court’s
determination that it had jurisdiction, either in
this Court or in the Supreme Court. Therefore,
unless an error of the aforementioned egregious
nature has been made, res judicata bars
Tittjung’s claim. See County of Cook, Ill., 167
F.3d at 388.
We begin with 8 U.S.C. sec. 1451(a). That
statute expressly confers jurisdiction upon
district courts to decide suits brought to revoke
citizenship illegally procured. Specifically, the
statute reads in relevant part that:
It shall be the duty of the United States
Attorney for the respective districts, upon
affidavit showing good cause therefor, to
institute proceedings in any district court of
the United States in the judicial district in
which the naturalized citizen may reside at the
time of bringing suit, for the purpose of
revoking and setting aside the order admitting
such person to citizenship and cancelling the
certificate of naturalization on the ground that
such order and certificate of naturalization were
illegally procured or were procured by
concealment of a material fact or by willful
misrepresentation, and such revocation and
setting aside of the order admitting such person
to citizenship and such canceling of certificate
of naturalization shall be effective as of the
original date of the order and certificate,
respectively. . ."
Tittjung argues that 8 U.S.C. sec. 1451(a) is
inapplicable to his situation, as he did not
illegally procure his citizenship. According to
Tittjung, if any illegality took place, it was at
the visa procurement phase, when Tittjung did not
disclose his service as a concentration camp
guard. Yet those actions, he urges, are in effect
shielded from review, as he claims that his
certificate of naturalization was based on
compliance with all applicable provisions. Thus,
when the district court in 1990 determined
Tittjung to be visa ineligible and therefore
revoked his citizenship, the court, he suggests,
traveled beyond the scope granted by 8 U.S.C.
sec. 1451(a).
We do not believe, nor have we found any case
law to suggest that a certificate of
naturalization acts as a tabla rosa, thereby
precluding us from examining the validity of the
visa upon which that certificate was granted. To
begin with, Supreme Court precedent forecloses
that argument. In Fedorenko v. United States, the
Court was called upon to decide whether
Fedorenko’s citizenship was illegally procured,
and therefore subject to revocation. 449 U.S. 490(1981). As in the case of Tittjung, Fedorenko
entered the United States under the DPA, was
naturalized years later, and was having his
citizenship challenged on the basis that his
service as a concentration camp guard rendered
him visa ineligible. See id. at 508-09 ("[T]he
Government [was] seeking to revoke petitioner’s
citizenship because of the alleged unlawfulness
of his initial entry into the United States.").
After the Court determined that Fedorenko’s World
War II service made him ineligible for a visa, it
perceived the resolution of the case to be
"fairly straightforward." Id. at 514. Justice
Marshall, writing for the Court noted that
Supreme Court "cases have established that a
naturalized citizen’s failure to comply with
statutory prerequisites for naturalization
renders his certificate of citizenship revocable
as ’illegally procured’ under 8 U.S.C. sec.
1451(a)." Id. The Court observed that the
statutory prerequisites required that the
individual be lawfully admitted to the United
States for permanent residence, 8 U.S.C. sec.
1427, and that "lawful admission for permanent
residence in turn required that the individual
possess a valid unexpired immigrant visa." Id. at
514-15; see also 8 U.S.C. sec. 1181(a). Because
the DPA excluded from the definition of displaced
persons eligible for immigration to this country
those who had "assisted the enemy in persecuting
civil[ians]" or had "voluntarily assisted the
enemy forces . . . in their operations," Pub. L.
No. 87-774, ch. 647, 62 Stat. 1009, amended by
Pub. L. No. 81-555, ch. 262, 64 Stat. 219 (1950),
Fedorenko’s visa, granted under the DPA, was
invalid at the time of issuance. Thus, the Court
found that 8 U.S.C. sec. 1451(a) provides a
federal court with jurisdiction to make a
determination of visa eligibility at the time of
entrance into the United States and revocation of
citizenship based on a finding of visa
ineligibility.
We find that Supreme Court precedent controls
and forecloses the type of claim that Tittjung
now raises. In addition, though we have not to
this point expressly addressed this type of
jurisdictional argument, we find our previous
decisions upholding the revocation of
naturalization certificates based on visa
ineligibility to be de facto confirmation that
Tittjung’s argument is meritless. As stated
above, "[i]t is the duty of this court to
’satisfy itself not only of its own jurisdiction,
but also that of the lower courts in a cause
under review,’" EEOC 86 F.3d at 1428, such that
if the parties neglect the subject, a court must
raise the jurisdictional question on its own,
Christianson, 486 U.S. at 818. In United States
v. Schmidt, 923 F.2d 1253 (7th Cir. 1991), as
well as in United States v. Ciurinkas, 976 F.
Supp. 1167 (N.D. Ind. 1997), aff’d, 148 F.3d 729(7th Cir. 1998) and United States v. Hajda, 963
F. Supp. 1452 (N.D. Ill. 1997), aff’d 135 F.3d
439 (7th Cir. 1998), we were faced with
denaturalization orders based on determinations
of visa ineligibility. That we reached the merits
in those cases casts into doubt any suggestion
that we do not believe there is jurisdiction to
find visa ineligibility and thus revoke a
certificate of naturalization./4
As we have just noted, this specific subject
matter jurisdiction argument has been resolved
repeatedly. However, to the extent that previous
decisions of this Court may have left the matter
unclear, we now state unequivocally that Article
III courts have jurisdiction to vacate an order
of naturalization when that order is based on an
illegally obtained visa. Here, Tittjung’s status
as a former concentration camp guard made him
ineligible to receive a visa. Fedorenko, 449 U.S.
at 511, 514. Therefore, when Tittjung entered
this country, he did so with an invalid visa. By
entering this country with an invalid visa,
Tittjung failed to gain lawful admission to the
United States. See 8 U.S.C. sec. 1181(a)(1);
Fedorenko, 449 U.S. at 514-15. Because Tittjung
could not be naturalized until he had first been
lawfully admitted for permanent residence, see 8
U.S.C. sec. 1427(a)(1), his citizenship was
illegally procured. Thus, the district court had
the power to revoke his certificate of
naturalization and cancel his citizenship. See 8
U.S.C. sec. 1451(a). Consequently, we agree with
the court below that there was no jurisdictional
error, let alone an egregious one, in the 1990
actions of the district court.
2. Separation of Powers and Jurisdiction
In addition to the primary subject matter
jurisdiction contention set forth above, Tittjung
presents a number of arguments which he believes
negate any federal jurisdiction conferred by 8
U.S.C. sec. 1451(a). Tittjung’s first such
argument is that the district court’s
redetermination of visa eligibility and
declaration that admission was unlawful "is an
unconstitutional judicial encroachment into an
exclusive Executive function . . . and it
violates the constitutional doctrine of
Separation of Powers." For support to his
argument, Tittjung looks to language in the
Immigration and Nationality Act of 8 U.S.C. sec.
1101 et seq. ("1952 Act"). Under Section
1103(a)(1) "The Attorney General shall be charged
with the administration and enforcement of this
chapter and all other laws relating to the
immigration and naturalization of aliens. . ."
Additionally, Tittjung cites to Section 1103(c),
which empowers the Commissioner of Immigration
with any and all responsibilities of the Attorney
General that the Attorney General delegates to
her, and Section 1104(a), which charges the
Secretary of State with the administration and
enforcement of the Act and other laws "except
those powers, duties, and functions conferred
upon the consular officers relating to the
granting and refusal of visas." Thus, Tittjung
puts forth that Article III courts are without
jurisdiction to proceed in reviewing visas and
cancelling certificates of naturalization based
on their findings of visa ineligibility.
Tittjung’s argument is without merit. While
Tittjung is correct that our system does delegate
specific powers to specific branches of
government, he fails to acknowledge that ours is
a system of checks and balances. Under Article 1,
Section 8 of the United States Constitution,
Congress is empowered to establish standards for
immigration. The 1952 Act delegates to the
Executive Branch, and specifically the Attorney
General, the powers of administration and
enforcement. In such a situation, "[t]he courts,
when a case or controversy arises, can always
’ascertain whether the will of Congress has been
obeyed’ and can enforce adherence to statutory
standards." See Immigration and Naturalization
Service v. Chadha, 462 U.S. 919, 954 (1983)
(citing Yakus v. United States, 321 U.S. 414, 425
(1944) and Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 585 (1952)). The Court in Fedorenko
acknowledged this mandated interplay between the
branches as well as the power of Article III
courts to review "lawful admissions." Justice
Marshall, writing for the Court noted "This
judicial insistence on strict compliance with the
statutory conditions precedent to naturalization
is simply an acknowledgment of the fact that
Congress alone has the constitutional authority
to prescribe rules for naturalization, and the
courts’ task is to assure compliance with the
particular prerequisites to the acquisition of
United States citizenship by naturalization
legislated to safeguard the integrity of this
priceless treasure." Fedorenko, 449 U.S. at 506-
07 (internal quotation omitted).
We stated above that Article III courts do have
the power, in the course of determining whether
the statutory prerequisites for naturalization
have been met, to examine visa eligibility. Were
we to hold that separation of powers bars
examination of visa eligibility by Article III
courts, we would be substantially limiting the
impact of 8 U.S.C. sec. 1451. Contrary to
Tittjung’s assertion, the fact that Congress
delegated authority to the Executive to oversee
matters of immigration does not mean that the
Attorney General was provided with exclusive
control for the entire area. Section 1451(a)
allows for the district courts to, among other
things, revoke or set aside certificates of
naturalization (which are based on compliance
with statutory prerequisites such as a valid
visa). Furthermore, Congress recognized that the
Judiciary and the Executive would both make
denaturalization decisions. It is for that reason
that 8 U.S.C. sec. 1451(h) provides that "Nothing
contained in this section shall be regarded as
limiting, denying, or restricting the power of
the Attorney General to correct, reopen, alter,
modify, or vacate an order naturalizing the
person." Given this limitation on the power of
the Judiciary, the district court was correct to
determine that the 1990 revocation of Tittjung’s
naturalization does not substantially or
unconstitutionally infringe on the Attorney
General’s authority./5 Thus we find no
jurisdictional defect, egregious or otherwise in
the 1990 district court’s actions.
3. Expiration of the DPA and Jurisdiction
Tittjung next argues that the district court
lacked jurisdiction to consider his unlawful
entry in 1952 because the Immigration Act of 1924
and the DPA (the laws pursuant to which he was
granted his visa) were no longer in effect at the
time of his naturalization in 1974. Specifically,
Tittjung claims that because these statutes did
not exist and were not considered when the
Milwaukee court entered its citizenship order in
1974, it was nonsensical for the district court
to reference and apply those laws during the
denaturalization proceedings./6 In support of
his position, Tittjung cites to Ex Parte
McCardle, where the court determined that the
passage of a bill repealing the portion of a
statute that conferred appellate jurisdiction on
the Supreme Court over habeas proceedings meant
that the Court no longer had jurisdiction to hear
McCardle’s appeal. 74 U.S. 506 (1868).
What, then, is the effect of the repealing act
upon the case before us? We cannot doubt as to
this. Without jurisdiction the court cannot
proceed at all in any cause. Jurisdiction is
power to declare the law, and when it ceases to
exist, the only function remaining to the court
is that of announcing the fact and dismissing the
cause. And this is not less clear upon authority
than upon principle.
Id. at 514.
Tittjung’s position lacks merit. Throughout his
argument, Tittjung goes to great lengths to
suggest that his naturalization should not be
tied to whether he lawfully procured his visa.
Rather, he suggests the relevant factor to be
that he complied with the statutory prerequisites
to naturalization. While we have noted that the
district court had jurisdiction to revoke
Tittjung’s certificate of naturalization after
determining that he was visa ineligible as a
matter of law, we have never wavered from our
understanding that the basis for the
determination that Tittjung was removable was
that he was never lawfully admitted to this
country, a required prerequisite to
naturalization under 8 U.S.C. sec. 1427. That
statute, which is ultimately the relevant one for
purposes of determining naturalization, was in
effect in 1974 when Tittjung was naturalized as
well as when this denaturalization case was
brought and decided./7
In addition, the Supreme Court’s analysis in
Fedorenko makes clear that lawful admission is
based on circumstances as they existed at the
time of initial entry. The Court, in
denaturalizing Fedorenko, looked to the law that
existed when he first entered the United States.
"Lawful admission for permanent residence in turn
required that the individual possess a valid
unexpired immigrant visa. At the time of
petitioner’s initial entry into this country,
sec. 13(a) of the Immigration and Nationality Act
of 1924, ch. 190, 43 Stat. 153, 161 (repealed in
1952), provided that ’[n]o immigrant shall be
admitted to the United States unless he (1) has
an unexpired immigration visa . . . .’"
Fedorenko, 449 U.S. at 514-15. Applying
Tittjung’s present argument would mandate the
conclusion that the Court in Fedorenko erred by
revoking a naturalization because the law that
allowed for the initial entry of the defendant
was no longer in effect at the time of the
denaturalization. We do not believe it would be
proper to reach such a conclusion.
Not only would granting Tittjung’s argument
require us to challenge Supreme Court precedent,
but doing so would also erode a large portion of
18 U.S.C. sec. 1451(a). The DPA was in existence
for four years from 1948-1952. The statutory
prerequisite for naturalization is five years of
continuous legal residence in the United States.
8 U.S.C. sec. 1427. Therefore, no person could
have been admitted to the United States under the
DPA and been naturalized within the period of the
law’s existence. As such, according to Tittjung’s
position, denaturalization proceedings under 8
U.S.C. sec. 1451(a) could never be brought
against one who entered under the DPA. Given that
the DPA was "intended to prevent those who
contributed to the Nazi persecution of innocent
civilians from obtaining visas to enter the
United States as refugees," Schmidt, 923 F.2d at
1259, it would seem anomalous that the law
provides uncontestable permanent residence for
those who illegally circumvented it. For these
reasons, we conclude that the district court
committed no error in cancelling Tittjung’s
naturalization which was based on illegal entry
under the DPA.
4. Factual Findings as Prerequisites to
Jurisdiction
Tittjung posits that even if this Court does
not agree that his previous arguments negate
federal jurisdiction, the district court’s
omission of certain factual findings precludes a
determination that Tittjung illegally procured
his citizenship. The court below found this
argument to be "a substantive one which is
precluded by res judicata and cannot be grafted
upon a motion to dismiss for lack of subject
matter jurisdiction." Yet, in support of the
proposition that certain factual findings are
within the scope of a Rule 60(b)(4) review on
subject matter jurisdiction, Tittjung cites to
language in Fedorenko which states that "In the
lexicon of our cases, one of the jurisdictional
facts upon which the grant [of citizenship] is
predicated, was missing at the time petitioner
became a citizen." 449 U.S. at 515-16 (internal
quotation omitted). As we noted above, the term
jurisdiction has so many uses that it is
commonplace for confusion to ensue regarding the
term. See United States v. Krilich, 209 F.3d 968,
971 (7th Cir. 2000); see also Steel Co., 523 U.S.
at 90. While we express doubt that this argument
of Tittjung’s is jurisdictional such that it
properly comes within the scope of our review of
a motion to dismiss for lack of subject-matter
jurisdiction, we assume arguendo that it does and
proceed to analyze the claim.
Tittjung asserts that the district court was
required to find that "Tittjung made a material
misrepresentation under DPA sec. 10," and "that
the invalid visa resulted in an unlawful
admission," in order to find that Tittjung
illegally procured his citizenship. We do not
dispute that the language of sec. 10 of the DPA
states that "Any person who shall willfully make
a representation for the purposes of gaining
admission into the United States as an eligible
displaced person shall thereafter not be
admissible into the United States." Nor do we
contest that Fedorenko makes clear that under
sec. 13(a) of the Immigration and Nationality Act
of 1924, "a visa obtained through a material
misrepresentation [is] not valid." 449 U.S. 515.
However, we do not read sec. 10 of the DPA and
sec. 13(a) of the 1924 Act as establishing an
exclusive basis for visa ineligibility. To adopt
Tittjung’s reasoning, we would be forced to
ignore the plain language of sec. 13(a) of the
DPA as amended in 1950, something we cannot do.
That Section states that "No visas shall be
issued under the provision 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." Section
13(a) does not contain a fraud element, but
rather provides wholly independent grounds for
denaturalization. The district court in 1990 was
well within its authority to find that Tittjung’s
service as an armed concentration camp guard
meant that he had assisted in the persecution of
persons because of their race, religion or
national origin,/8 and that his "assistance in
persecution" rendered him visa ineligible. Once
that determination was made, the court did not
and was under no obligation to assess whether
Tittjung had made misrepresentations in order to
procure his visa.
Requiring a finding of misrepresentation in
order to determine illegal procurement would not
only be inconsistent with the plain meaning of
the DPA, but would be in direct conflict with
previous federal case law on the matter. The
approach taken in Tittjung, that once a
determination of visa ineligibility is made on
"assistance in persecution" grounds there is no
need to address a possible "misrepresentation"
basis for ineligibility, has been continually
applied. For example, in Schmidt, after
determining that the defendant had assisted in
persecution thus making him ineligible for a visa
and mandating his denaturalization, the district
court found it unnecessary to decide whether he
also entered unlawfully by misrepresenting such
service to immigration authorities. See United
States v. Schmidt, No. 88 C 9475, 1990 WL 6667 at
*2 (N.D. Ill. Jan 3, 1990). Similarly, in
Leprich, the court noted that the visa of a
concentration camp guard "would have been
illegally procured under [DPA] Section 13 even if
he had secured it without making
misrepresentations." 666 F. Supp. at 969. See
also United States v. Kairys, 600 F. Supp. 1254,
1265-66 (N.D. Ill. 1984) (Kairys was visa
ineligible even though there was insufficient
proof of misrepresentation.). In light of this
consistent approach, as well as because of the
plain meaning of sec. 13(a) of the DPA, we hold
that the district court was able to find that
Tittjung illegally procured his citizenship
without making the suggested factual finding. To
the extent that Tittjung urges that the factual
finding of misrepresentation was "jurisdictional"
we see no jurisdictional error, let alone an
egregious one, in the method employed by the
district court in its 1990 decision.
5. Tittjung’s Additional Arguments
Finally we note that Tittjung’s brief contains
factual arguments, many of which were presented
in the district court. The fact issues
surrounding Tittjung’s cases have already been
determined, and are therefore outside the scope
of review of a collateral attack on subject
matter jurisdiction. In an effort to have this
court address these claims Tittjung labels these
arguments "jurisdictional." However, Tittjung
cannot bring his arguments on the merits within
this Rule 60(b)(4) review simply by relabelling
them "jurisdictional." Therefore, we do not
address these arguments.
III. CONCLUSION
The principle that jurisdictional defects may be
noticed at any time is limited . . . by the
equally important principle that litigation must
have an end. After a case has become final by
exhaustion of all appellate remedies, only an
egregious want of jurisdiction will allow the
judgment to be undone by someone who, having
participated in the case, cannot complain that
his rights were infringed without his knowledge.
In re Factor VIII or IX Concentrate Blood Prod.
Lit., 159 F.3d 1016, 1019 (7th Cir. 1998). We
have examined Tittjung’s claims extensively,
recognizing the gravity of the ramifications of
our decision. Our exhaustive inspection leads us
to conclude that those claims have no merit. As
such, it is time for the principle that
"litigation must have an end" to prevail. We
believe that now, more than ten years since these
proceedings began and approximately 48 years
since the illegal entry occurred, the time has
come for the Immigration Court’s order of
deportation to be carried out. We see no reason
for further delay.
For the foregoing reasons, we Affirm the decision
of the district court.
/1 The facts concerning Tittjung’s service during
World War II are laid out in greater detail in
our prior decision affirming the BIA’s denial of
Tittjung’s motion for reconsideration, Tittjung
v. Reno, 199 F.3d 393, 395 (7th Cir. 1999), as
well as in the opinion by the District Court for
the Eastern District of Wisconsin, cancelling
Tittjung’s certificate of naturalization, United
States v. Tittjung, 753 F.Supp. 251, 252-55 (E.D.
Wis. 1990). As Tittjung’s present motion is a
collateral attack on subject matter jurisdiction,
we need not revisit those facts.
/2 The Holtzman Amendment requires the deportation
of aliens found to have "assisted or otherwise
participated in the persecution of persons
because of race, religion, national origin, or
political opinion under the direction of, or in
association with, the Nazi government of
Germany." 8 U.S.C. sec. 1251 (a)(4)(D) (now
codified as 8 U.S.C. sec. 1227(a)(4)(D)).
/3 Rule 60(b)(4) states in relevant part:
On motion and upon such terms as are just, the
court may relieve a party or a party’s legal
representative from a final judgment, order, or
proceeding for the following reasons: . . . (4)
the judgment is void.
/4 We further note that other federal courts
applying 8 U.S.C. sec. 1451(a) have similarly
held that entry with an unlawfully obtained visa
renders naturalized citizenship illegally
procured. See, e.g. United States v. Stelmokas,
100 F.3d 302 (3rd Cir. 1996); United States v.
Koziy, 728 F.2d 1314 (11th Cir. 1984); United
States v. Linnas, 527 F. Supp. 426 (E.D.N.Y.
1981).
/5 Tittjung cannot contest that under 8 U.S.C. sec.
1201(i) a visa once granted can be revoked at any
time, and that under 8 U.S.C. sec. 1227(a)(1)(A)
and (B) an alien found to have unlawfully
obtained a visa is subject to deportation. Yet,
as he did above, Tittjung attempts to argue that
the further illegal act of exploiting an invalid
visa in order to obtain citizenship somehow
immunizes the illegal entrant from punishment for
her first violation, and actually rewards the
second indiscretion by making denaturalization
unavailable. We cannot conclude that Congress
intended to establish such a system where
compounded illegality is rewarded.
/6 We note that this argument, at best, is
tangentially related to federal jurisdiction. The
basis for the court’s determination that Tittjung
was not lawfully admitted into the United States
does not implicate federal court jurisdiction (in
the usual sense), which we have previously noted
is granted by 8 U.S.C. sec. 1451(a). The Supreme
Court has described the term "jurisdiction" as "a
word of many, too many meanings," Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 90
(1998), which has led to much confusion
surrounding what is appropriately considered in
a Rule 60(b)(4) motion. It is because of this
uncertainty, as well as our desire to provide a
measure of finality to these proceedings, that we
nonetheless proceed cautiously, assume arguendo
that the claim is jurisdictional in nature, and
address it.
/7 Additionally, we note that to the extent that
this is a jurisdictional argument, the fact that
the Supreme Court in Fedorenko was not troubled
with the removal of the defendant in light of the
fact that the DPA was no longer in effect lends
support to our present stance.
/8 The proposition that an armed concentration camp
guard "assisted in persecution" (as is understood
in the DPA) cannot be disputed. In Schmidt, we
stated "it is clear that service as an armed
concentration camp guard constitutes assisting in
persecution under the DPA." 923 F.2d at 1258.
Additionally we noted in Schellong v. INS, that
"Nazi concentration camps were places of
persecution; individuals who, armed with guns,
held the prisoners captive and prodded them into
forced labor with threats of death or capital
punishment cannot deny that they aided the Nazis
in their program of racial, political, and
religious oppression." 805 F.2d 655, 661 (7th
Cir. 1986). See also Fedorenko, 449 U.S. at 513-
16; United States v. Leprich, 666 F. Supp. 967,
969 (E.D. Mich. 1987) ("[B]ecause Leprich was a
concentration camp guard, he was ineligible for
the visa he received and his citizenship was
illegally procured.").