In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3517
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH WITTJE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 6367—Suzanne B. Conlon, Judge.
____________
ARGUED APRIL 1, 2005—DECIDED SEPTEMBER 1, 2005
____________
Before EASTERBROOK, MANION, and WILLIAMS, Circuit
Judges.
MANION, Circuit Judge. During World War II Joseph
Wittje was a member of the Waffen SS, the paramilitary
component of the Nazi Party. In 1950 he obtained a visa and
entered this country. He became a citizen in 1959. He now
appeals from a decision of the District Court for the North-
ern District of Illinois revoking his United States citizenship.
We affirm.
2 No. 04-3517
I.
Joseph Wittje, an ethnic German, was born in 1920 and
grew up in Deutsch St. Michael, an ethnic German en-
1
clave in Romania. Prior to World War II, Wittje attended
school until he was fourteen and then worked as a brick-
layer.
2
Romania began World War II as a neutral state. A peri-
od of political unrest in 1939 and 1940 that included the
forced cession of Romanian territory to Hungary, Bulgaria,
and the Soviet Union brought about political leaders
who were strongly sympathetic to the Axis powers. By
October 1940, several hundred thousand German troops
had crossed into Romania. A month later, Romania joined
the Tripartite Pact and became a member of the Axis.
In 1942, Wittje was drafted into the Romanian Army
and took part in the invasion of Russia (Romania contrib-
uted a significant number of troops to the invasion of
Russia). Wittje was wounded near Stalingrad and was
eventually returned to his home in Romania. After recuper-
ating from his wounds, in July 1943, Wittje was drafted
by Germany pursuant to an agreement between Germany
1
Ethnic Germans were a significant part of Romania’s popula-
tion prior to World War II. In 1939 approximately 500,000 ethnic
Germans lived in Romania. United States v. Negele, No.
4:97CV01810 ERW, slip op. at 13 (E.D. Mo. July 20, 1999).
2
The background information on the history of Romania, the
Waffen SS, and Sachsenhausen (all facts that are not in dispute)
in Part I of this opinion is drawn from the affidavit of Dr.
Johannes Tuchel, a government expert witness; Negele, slip op. at
8-32; and the Library of Congress’s Country Study on Romania,
http://lcweb2.loc.gov/frd/cs/cshome.html (search for “Roma-
nia”).
No. 04-3517 3
and Romania that permitted Germany to draft ethnic
Germans living in Romania.
Wittje was not assigned to the German Army, the
“Wehrmacht”, but was instead assigned to the militarized
branch of the Schutzstaffel (the “SS”), the Waffen SS
(literally, the “armed SS”). The SS was the paramilitary
component of the Nazi Party and was distinct from the
Wehrmacht—it had its own command (including, for the
bulk of its existence, one of the principal architects of the
Holocaust, Heinrich Himmler). It also had a separate
organizational structure, discipline, insignia, and uniforms.
Originally conceived of as a cadre of bodyguards for
Hitler (Schutzstaffel translates to “protection guard”), by the
onset of World War II, the SS virtually controlled German
state security (one of its principal offices was the Gestapo)
and, most infamously, was responsible for the operation of
the concentration camps. The SS was, therefore, ultimately
charged with the responsibility for carrying out the “final
solution”—the murder of the vast majority of European
3
Jewry.
Wittje’s principal assignment during his service in the
Waffen SS was to the 9th Company SS Death’s Head Guard
Battalion (Totenkopf-Wachbataillon) at the Sachsenhau-
4
sen Concentration Camp (“Sachsenhausen”). Sachsen-
hausen, located approximately twenty miles from Berlin,
was one of the original Nazi concentration camps. From the
3
The Third Reich’s victims included other groups as
well—Slavs, the disabled, political dissidents, labor leaders,
homosexuals, Roma and Sinti (also known as Gypsies), Jehovah’s
Witnesses, clergymen, and others the Nazis found objectionable.
4
Sachsenhausen was also known as “Oranienburg.” This is not
our first case involving Sachsenhausen. See United States v.
Schmidt, 923 F.2d 1253, 1255 (7th Cir. 1991).
4 No. 04-3517
mid-1930’s (when the camp was constructed) to 1945 (when
the camp was liberated by the Soviet Army), 200,000 people
were imprisoned at the camp.
Prisoners at Sachsenhausen were forced to engage in slave
labor including heavy construction and excavation work.
Some prisoners were forced to test the durability of combat
boots used by the Wehrmacht by wearing the boots on
forced marches of thirty to forty miles in all weather.
Prisoners at the camp were also farmed out to sub-camps,
often near armaments plants to work in factories as part of
the German war effort. The death of a prisoner at labor was
of no consequence—prisoners were simply worked until
they died (“annihilation through labor”).
Conditions at the camp were hellish. Food was scarce and
malnourishment and disease, including cholera and typhus,
swept through the (often overcrowded) camp weakening
and killing many. To the extent there was medical care, it
often included ghoulish medical experiments subjecting the
“patient” to extreme pain and often death.
Tens of thousands of prisoners were killed during the
camp’s operation. The life span for a prisoner was approxi-
mately three months. In addition to the death toll attrib-
utable to disease, exhaustion, starvation, and medical
experiments, arbitrary executions were common. Guards
would often beat or kill a prisoner for sport, sometimes
using dogs turned loose on the prisoner. The camp also had
a special facility for executing prisoners. Prisoners were
taken one at a time to a room and told to undress for a
medical examination. A “doctor” examined the prisoner’s
mouth under this pretense but really for the purpose of
determining if the prisoner had any gold teeth that would
be removed and melted down. Once the examination was
over, prisoners were shot. The body was removed and the
No. 04-3517 5
room was cleaned to remove all traces of the execu-
tion—and another “patient” was brought in.
Wittje was assigned to Sachsenhausen from 1943 to 1945.
At all stages of this litigation, Wittje has acknowledged that
he was stationed for this period of time at the SS barracks
near Sachsenhausen and that this barracks is where camp
guards lived. The parties differ, however, on Wittje’s
role at the camp. The United States claims he was a guard at
the camp, while Wittje claims he was a member of a “track
and field sports competition unit” stationed near the camp
for part of the time he was stationed in the 9th Company.
Wittje also claims that he was later assigned work as a
bricklayer and helped construct air raid shelters and
bunkers. Wittje claims he never set foot in the prison camp
proper.
In February 1945, Wittje was transferred from the Death’s
Head Guard Battalion to the 32nd SS Armored Division, a
recently formed combat unit sent to the Eastern Front as
part of an attempt to stem the Russian advance. Wittje’s
service in this unit was brief. He was wounded in combat on
March 2, 1945, and sent to a military hospital where he
remained for the rest of March. He was discharged from the
hospital on March 31, 1945, but apparently did not return to
his unit or take further part in what little remained of the
German war effort. Sometime after the conclusion of the
war in 1945, Wittje traveled with his family to Wels, Austria
where he worked for a construction company until 1950.
In February 1950, Wittje applied for a “nonpreference”
immigrant quota visa to enter the United States at the
United States consulate in Salzburg, Austria. Wittje based
his claim for this type of visa on the fact that he was a
“Volksdeutscher [an ethnic German]; born in Rumania.” He
listed his nationality as “stateless” and stated that he
resided in Wels, Austria. In an area of the application that
6 No. 04-3517
required the applicant to list his residences since turning
fourteen years old, Wittje stated that he was in St. Michael,
Rumania in 1943-1944, Haindorf, Germany in 1944-1945,
and Wels, Austria from 1945 to the date of the application.
Wittje did not mention his membership in the SS or his
assignment to Sachsenhausen from 1943-1945.
Wittje’s application was processed by Ralph McMahon,
one of the two vice consuls in the Salzburg consulate
assigned to review visa applications of ethnic Germans.
McMahon approved Wittje’s application the same day
it was filed and Wittje, with his wife and son, traveled to,
and arrived in, this country shortly thereafter.
Wittje settled in Chicago, and in 1959 applied for United
States citizenship. The petition for naturalization Wittje
completed required a petitioner to list his membership in
any “organizations, clubs, or societies in the United States
or in any other country . . . before the last 10 years.” Wittje
listed membership in a Roman Catholic youth organization.
He did not mention his membership in Waffen SS. Wittje’s
petition was granted and he became a United States citizen
on August 18, 1959.
On September 10, 2003, the United States filed a four-
count complaint seeking to revoke Wittje’s citizenship. The
first count (and the only count at issue here) alleged that
Wittje unlawfully procured a visa by failing to disclose his
membership in a movement hostile to the United States—
the Waffen SS.
At the conclusion of significant discovery (including
the deposition testimony of Wittje), on June 18, 2004, the
United States moved for summary judgment as to count
one. Three days later, on June 21, Wittje moved to dis-
miss the complaint for lack of subject matter jurisdiction,
failure to state a claim upon which relief may be
No. 04-3517 7
granted, and on the ground that the United States’s efforts
to revoke his citizenship constituted a violation of his rights
to due process and equal protection. The district court
denied the motion and subsequently granted the United
States’s motion for summary judgment and revoked Wittje’s
Certificate of Naturalization. This appeal followed.
II.
Wittje raises three issues on appeal. First, he argues that
the district court lacked the jurisdiction to reconsider a
visa eligibility determination by consular officers. Sec-
ond, he argues that denaturalization violates his constitu-
tional right to equal protection. Third, he argues that the
United States was not entitled to summary judgment
because it was not entitled to judgment as a matter of law
and there are genuine issues as to material facts.
A. Statutory Background
Section 340(a) of the Immigration and Nationality Act
of 1952 (the “INA”) directs the United States (acting through
the United States Attorney in the appropriate district) to
seek the revocation of a certificate of naturalization when
that certificate was ” illegally procured . . . .” 8 U.S.C. §
1451(a). In order to be eligible for a certificate
of naturalization, a person must have been “lawfully ad-
mitted [into the United States] for permanent residence.” 8
U.S.C. § 1427(a)(1). Lawful admission into the United States
in turn requires entry pursuant to a valid visa. 8 U.S.C. §
1181(a)(1). Read together, these provisions make it clear that
a person cannot become a citizen by naturalization if his
visa was illegally obtained and that a district court must
revoke the citizenship of a person who illegally obtained a
8 No. 04-3517
visa. Fedorenko v. United States, 449 U.S. 490, 514 (1981)
(“[O]ur cases have established that a naturalized citizen’s
failure to comply with the statutory prerequisites for
naturalization renders his certificate of citizenship revocable
as ‘illegally procured’ under 8 U.S.C. § 1451(a).”); United
States v. Tittjung, 235 F.3d 330, 337 (7th Cir. 2000); see also
United States v. Stelmokas, 100 F.3d 302, 306 (3d Cir. 1996);
United States v. Koziy, 728 F.2d 1314, 1318 (11th Cir. 1984).
The principal immigration law in place in 1950 (when
Wittje was issued a visa) was the Immigration Act of 1924,
Pub. L. No. 60-139, ch. 190, 43 Stat. 153 (1924) (the “1924
Act”). The 1924 Act contained quotas on the number of
aliens of any one nationality that were admissible to this
country. § 11, 43 Stat. At 159-60.
Following World War II and in light of the upheaval in
Europe, Congress amended the 1924 Act with the Displaced
Persons Act of 1948, Pub. L. No. 80-774, ch. 647, 62 Stat. 1009
(1948) (the “DPA”). The DPA suspended the 1924 Act
quotas for “eligible displaced persons.” § 3, 62 Stat. at 1010-
11. The DPA adopted the definition of “displaced person”
from Annex I to the Constitution of the International
5
Refugee Organization of the United Nations (the “IRO”).
§ 2(b), 62 Stat. at 1009. That definition excluded many ethnic
5
“The IRO was established in 1946 as a temporary specialized
agency of the United Nations to deal with all aspects of the
refugee problem in postwar Europe. The IRO established and
administered a network of camps and resettlement centers where
the refugees were registered, housed, fed, and provided with
medical care. Where possible, the IRO provided for the refugees’
rehabilitation and training, arranged legal protection for as long
as they were stateless, and negotiated agreements for resettle-
ment.” Fedorenko, 449 U.S. at 495 n.5
No. 04-3517 9
Germans. IRO const., Annex I, Part II, § 4 (reprinted at S.
Rep. No. 80-950, at 68 (1948)).
The DPA contained two provisions of critical importance
in this case. First, § 12 of the DPA amended the 1924 Act to
require 50% of the quota for German immigrants to be made
available to ethnic Germans born in “Poland, Czechoslova-
kia, Hungary, Romania or Yugoslavia and who, on the
effective date of this Act, reside in Germany or Austria.” §
12, 62 Stat. at 1013-14. This quota-shifting provision had the
effect of allowing ethnic Germans, who would otherwise not
be eligible for visas to enter the United States because they
were not covered by the IRO Constitution, to take advan-
tage of the quotas available to those born in Germany.
The second important provision is § 13. Section 13 pro-
vides that “[n]o visas shall be issued under the provisions
of this Act to any person who is or has been a member of, or
participated in, any movement which is or has been hostile
to the United States or the form of government of the United
States.” § 13, 62 Stat. at 1014.
B. Subject Matter Jurisdiction
Wittje’s first argument concerns the jurisdiction of the
district court to revisit a decision by a consular officer
that an immigrant is eligible for a visa. Wittje argues that
a district court does not have such jurisdiction.
Wittje is asking this court to reconsider and overrule
6
our decision in Tittjung. In that case we were faced with the
6
Counsel for Wittje may be persistent but he is certainly
redundant in the face of the legal precedent he helped to estab-
lish. He was counsel to the defendant in Tittjung. He was also
(continued...)
10 No. 04-3517
precise argument raised here. Tittjung, 235 F.3d at 338
(“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.”). We rejected that argument as without
merit. Id. Nothing has changed.
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 consider a claim by
the United States that Wittje’s certificate of naturalization
should be revoked, 8 U.S.C. §1451(a).
As we have explained above, a prerequisite to such a
certificate is lawful admission into this country. Lawful
admission requires, in turn, a valid visa. The determination
that a person’s citizenship should be revoked necessitates,
therefore, a review of the visa process. See United States
v. Dailide, 316 F.3d 611, 618 (6th Cir. 2003). We stand by
what we wrote in Tittjung:
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
6
(...continued)
counsel to defendants in United States v. Dailide, 316 F.3d 611 (6th
Cir.), cert. denied, 540 U.S. 876 (2003); United States v. Negele, 222
F.3d F.3d 443 (8th Cir. 2000); United States v. Leprich, No. 86-CV-
72531 (E.D. Mich. Dec. 10, 2003); United States v. Krysa, No.
1:99CV2736 (N.D. Ohio Nov. 16, 2000); and United States v. Milius,
No. 96-2534-CIV-T-25A (M.D. Fla. Aug. 17, 1998). In each of these
cases the court rejected precisely the argument counsel raises
again here.
No. 04-3517 11
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,
103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (citing Yakus v.
United States, 321 U.S. 414, 425, 64 S.Ct. 660, 88 L.Ed. 834
(1944) and Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 585, 72 S.Ct. 863, 96 L.Ed. 1153 (1952)).
Tittjung, 235 F.3d at 338. As it was in Tittjung, Wittje’s
argument that we do not have subject matter jurisdiction
is without merit.
C. Equal Protection
Wittje’s next argument is that his denaturalization violates
the Equal Protection Clause of the Constitution. His argu-
ment is premised on the fact that he was naturalized
pursuant to § 1427(a) of the INA. Wittje posits that the INA,
unlike the DPA, had no hostile movement restriction for
immigrants. Wittje then asks us to explore the hypothetical
situation where two former members of the Waffen SS were
both naturalized in 1959. One of these men entered the
country in 1950 while the other entered the country after the
effective date of the INA. Wittje first notes that the determi-
nation of whether an immigrant has been lawfully admitted
is based on the laws in place at the time an immigrant enters
the country. Fedorenko, 449 U.S. at 514; Tittjung, 235 F.3d at
339 (“[L]awful admission is based on the circumstances as
12 No. 04-3517
they existed at the time of initial entry.”); see also Dailide, 316
F.3d at 619 (“The question of whether an alien was lawfully
admitted is answered, not by the law at the time of natural-
ization, but by the law at the time of entry.”). Because they
arrived at different times, the two men in his hypothetical
would be treated differently: the immigrant who entered the
country in 1950 would be subject to denaturalization, while
the immigrant who entered after the effective date of the
INA would not. Wittje suggests that such a situation would
be a violation of the Equal Protection Clause because it
would treat similarly situated persons (two former members
of the Waffen SS applying for citizenship at the same time)
differently.
We disagree. At the time Wittje entered this country, he
was not eligible for a visa as a former member of a group
hostile to the United States. It cannot be seriously dis-
puted 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 over-
see a reign of terror and murder on a then-unprecedented
scale. That Congress let this restriction expire with the
DPA or enacted new legislation (the INA) that did not
contain such a restriction or significantly modified the
restriction does not make the original restriction any less
rational.
D. Summary Judgment
Wittje’s final series of arguments is that the district
court erred in granting summary judgment in favor of the
United States. Our review is de novo. McPherson v. City of
No. 04-3517 13
Waukegan, 379 F.3d 430, 437 (7th Cir. 2004). A party is
entitled to summary judgment in its favor when “there is no
genuine issue of material fact and that he or she is entitled
to judgment as a matter of law.” Id.; Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
1. Wittje’s admission statute.
Wittje first takes issue with the district court’s conclu-
sion that he was admitted to this country pursuant to the
1924 Act and the DPA. Wittje argues that he was admitted
pursuant only to the 1924 Act, and consequently, there
was no hostile movement restriction on his admission.
Recall that it is the DPA (and not the 1924 Act) that contains
the hostile movement restriction that forms the basis for the
district court’s ultimate conclusion that Wittje was not
issued a valid visa. Wittje’s argument is premised on the
fact that his application for a visa states that he is applying
for a visa pursuant to the 1924 Act and does not reference
the DPA.
Wittje’s argument is without merit. He received his visa
pursuant to the DPA and the 1924 Act. The 1924 Act
established quotas by nationality. As mentioned above,
however, in the area for listing an applicant’s national-
ity, Wittje’s application for a visa states that he was “state-
less.” The salient fact in Wittje’s application was his claim
that he was entitled to a visa because he was a
“Volksdeutscher; born in Romania.” It was the DPA with its
quota-shifting provision in § 12, and no other immigration
statute in force in 1950 that Wittje can cite to, that would
have made his ethnicity—a Volksdeutscher— relevant.
This conclusion is supported by the affidavit of Chester G.
14 No. 04-3517
7
Dunham. Dunham was, along with McMahon, one of the
two vice-consuls responsible for processing visa applica-
tions for ethnic Germans at the Salzburg consulate. Dunham
was responsible for processing the first half of the alphabet,
McMahon the second. Dunham testified that ethnic Ger-
mans from countries such as Romania were processed
pursuant to the DPA and described the quota-shifting
regime of § 12. Dunham’s affidavit confirms what the
statutes in effect at the time made clear— Wittje was
admitted to this country pursuant to the 1924 Act and the
DPA.
2. Wittje’s membership in the Waffen SS.
As we have noted, Wittje concedes he was a member of
the Waffen SS. He raises two arguments, however, as to
why his membership did not render him ineligible for a
visa. First, Wittje argues that the Waffen SS was not, as
of 1950, considered a movement that had been hostile to the
United States. In other words, according to Wittje, a member
of the Waffen SS, by virtue of such membership, was not
ineligible for a visa pursuant to § 13 of the DPA.
There is no doubt that the Waffen SS was a movement
hostile to the United States. Wittje’s argument to the
contrary is frivolous. In a March 1949 opinion letter, the
chief of the State Department’s Visa Division categorized
the Waffen SS as a criminal organization and stated that
its members were “definitely excluded” from receiving a
visa pursuant to § 13 of the DPA. A State Department
memorandum to the American Consul in Stuttgart, Ger-
many dated August 3, 1949, reached the same conclusion
using substantively identical language.
7
McMahon, who processed Wittje’s visa, is deceased.
No. 04-3517 15
Also instructive is the position of the United States
Displaced Persons Commission (the “DPC”). The DPC was
established by the DPA and was charged with, among other
things, “formulat[ing] and issu[ing] regulations, necessary
under the provisions of this Act, and in compliance there-
with, for the admission into the United States of . . . eligible
displaced persons.”
The Waffen SS was among those groups on the “Inimical
List,” a list of organizations, prepared by the DPC, that, as
the name implies, were considered inimical to the United
States. A memorandum circulated to “Senior Officers and
Staff” of the DPC by the DPC Coordinator for Europe dated
November 28, 1950, noted that the “[p]olicy of the [DPC]
has been to consider either voluntary or involuntary
membership in the Waffen SS . . . as a bar per se under
Section 13 [of the DPA].” Another memorandum to the
Chairman and Commissioners of the DPC cited approvingly
the August 3, 1949, State Department memorandum as well
as a September 23, 1949, decision of the State Department
rejecting a consular recommendation that an SS officer be
granted a visa to join his family in the United States. The
Department rejection noted that “[t]he current policy of the
Department is to recommend refusal of visas to aliens who
were members of the SS at any time, regardless of whatever
mitigating circumstances they may now try to offer in
explanation of such membership . . . .”
In response to this contemporaneous evidence of § 13’s
applicability to the Waffen SS, Wittje cites to an April 1949
State Department telegram from Secretary of State Dean
Acheson to the Chairman of the DPC. In that telegram,
Acheson stated that § 13 was intended to cover “political or
subversive groups of an ideological character” and “not
considered as embracing military, naval, or air forces nor
local constabularies . . . .” Wittje argues that statement
16 No. 04-3517
supports his conclusion that § 13 was not intended to
cover “a private drafted into the Waffen SS.” In effect, Wittje
seeks to have this court view the Waffen SS as a military
force akin to the Wehrmacht.
The problem for Wittje, however, is that, as pointed out
above, the Waffen SS was not considered a part of, or akin
to, the Wehrmacht, but was a paramilitary component of the
Nazi party. The State Department’s August 3, 1949 memo-
randum referenced above makes this distinction clear. The
memorandum begins by noting that “[t]he Department has
taken the view that service in the Wehrmacht or other
regular branches of the armed forces of the enemy powers
. . . would not serve as a bar to eligibility of person of
German ethnic origin to receive a visa.” The memorandum
then goes on to note, however, that “members of such other
military organizations as the Waffen [SS], proscribed as a
criminal organization, are definitely excluded under the
[DPA].” Wittje himself, in his “Amended Statement of
Undisputed Material Facts and Counterstatement to [the]
Government’s Statement of Material Facts” admits that the
Waffen SS was a “Nazi party organization.”
Wittje’s second argument is that, assuming the Waffen
SS was considered a movement hostile to the United States,
a person was a member of the Waffen SS for the purposes of
the DPA only if they voluntarily joined the organization.
Thus, Wittje, who claims he was drafted into the Waffen SS,
argues he was not covered by § 13.
We disagree. In Fedorenko, the Supreme Court held that
there was no “involuntariness” exception to the exclusion
from visa eligibility in the DPA of persons who had
“assisted the enemy in persecuting civil[ians].” 449 U.S. at
512. This exclusion arose as a result of the DPA’s incorpora-
tion of the definition of displaced persons contained in
Annex I to the IRO Constitution, specifically § 2(a) of Part II
No. 04-3517 17
of Annex I. The Court compared the absence of an involun-
tariness exception in § 2(a) to § 2(b). That section excluded
from displaced person status those who had “voluntarily
assisted the enemy forces since the outbreak of the second
world war in their operations against the United Nations.”
IRO const. Annex I, § 2(b). The Court concluded that the use
of the word “voluntarily” in § 2(b) and its absence from §
2(a) demonstrated “[t]hat Congress was perfectly capable of
adopting a ‘voluntariness’ limitation where it felt that one
was necessary.” Fedorenko, 449 U.S. at 512. Thus, according
to the Court, “the deliberate omission of the word ‘volun-
tary’ from § 2(a) compels the conclusion that the statute
made all those who assisted in the persecution of civilians
ineligible for visas.” Id.
Like § 2(a) of Annex I, there is no voluntariness require-
ment in the plain language of § 13 of the DPA. Section 13
prohibits the issuance of a visa to “any person who is or has
been a member of, or participated in, any movement which
is or has been hostile to the United States or the form of
government of the United States.” (emphasis added). This
language does not condition such participation or member-
ship on whether the person was a volunteer or a conscript.
Other courts that addressed the issue have reached the
same conclusion. See United States v. Negele, No.
4:97CV01810, slip op. at 59 (E.D. Mo. July 20, 1999) (“The
[DPA] made no distinction between voluntary or involun-
tary membership in a hostile movement. Any member-
ship or participation in any such hostile movement was a
cause for mandatory disqualification.”); United States v.
Schiffer, 831 F. Supp. 1166, 1182 (E.D. Pa. 1993), aff’d, 31 F.3d
1175 (3d Cir. 1994) (table) (holding that prior to 1951,
“all members of the Waffen SS were precluded from receiv-
ing visas”) (emphasis added).
State Department and DPC policy at the time Wittje
applied for a visa also make it clear that all members of the
18 No. 04-3517
Waffen SS were covered by § 13 regardless of whether
such membership was voluntary. The State Department
memorandum dated August 3, 1949, referenced above
instructed the American Consul in Stuttgart, Germany to
reject the visa application of a former member of the Waffen
SS, “his contention that such membership was compulsory
8
notwithstanding.” A November 28, 1950, DPC memoran-
dum (also referenced above) noted that the “[p]olicy of the
[DPC] has been to consider either voluntary or involuntary
membership in the Waffen SS . . . as a bar per se under
Section 13.” (emphasis added).
In response, Wittje cites to a March, 1951, act of Con-
gress, Pub. L. No. 82-14, ch. 23, 65 Stat. 28 (1951), and a 1951
DPC regulation. These documents, Wittje insists, retrospec-
tively appended a voluntariness requirement to § 13. We
disagree. As we have pointed out, the lawfulness of Wittje’s
entry into the United States must be determined under the
law in effect at the time he entered. Any subsequent change
(as the act of Congress and the DPC regulation were) has no
bearing on the lawfulness of Wittje’s entry into this country.
In 1950, when Wittje applied for a visa and entered this
country, a member of the Waffen SS was ineligible to receive
a visa, regardless of the voluntariness of that membership.
3. Disputes as to material facts.
This conclusion forecloses Wittje’s argument that there are
disputes as to material facts. The dispute between the
parties as to the voluntariness of Wittje’s service and
whether Wittje served as a camp guard is immaterial.
Wittje’s service in the Death’s Head Battalion of the Waffen
8
As we have noted, a DPC memorandum dated March 14, 1950,
quoted approvingly this conclusion of the State Department.
No. 04-3517 19
SS, a fact he concedes, regardless of whether that service
was voluntary and regardless of whether that service
included time as a camp guard or was limited to participat-
ing in sports competitions, rendered Wittje ineligible for
a visa at the time of his application.
III.
Joseph Wittje served during World War II as a member
of the Waffen SS. That service, regardless of its nature or
voluntariness, rendered Wittje ineligible for a visa at the
time he applied for one. Summary judgment was, therefore,
appropriate in favor of the United States. Wittje’s arguments
concerning the jurisdiction of the district court and this
court, as well as his claim that his right to equal protection
was violated, are meritless. The decision of the district court
is
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-1-05