Fedorenko v. United States

Justice Blackmun,

concurring in the judgment.

I agree with much of the Court’s reasoning as well as with the result it reaches. I am perplexed, however, by the Court’s reluctance, ante, at 508-509, to apply the materiality standard of Chaunt v. United States, 364 U. S. 350 (1960), to petitioner’s circumstances. I write separately to express my understanding that application of Chaunt would yield no different result here and to state my belief that a standard as rigorous as Chaunt’s is necessary to protect the rights of our naturalized citizens.

In Chaunt, the issue presented was whether failure to reveal certain prior arrests in response to a question on a citizenship application form constituted misrepresentation or concealment *519of a material fact for purposes of the denaturalization statute.1 Id., at 351-352. As construed by Chaunt, the statute authorizes denaturalization on the basis of an applicant’s failure to disclose suppressed facts which (1) “if known, would have warranted denial of citizenship,” or (2) “might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.” Id., at 355.

The Court says that Chaunt need not be invoked when de-naturalization is premised on deliberate misstatements at the visa application stage, but does not explain why this is so. I fail to see any relevant limitation in the Chaunt decision or the governing statute that bars Chaunt’s application to this case. By its terms, the denaturalization statute at the time of Chaunt, as now, was not restricted to any single stage of the citizenship process.2 Although in Chaunt the nondisclosures arose in response to a question on a citizenship application form filed some years after the applicant first arrived in this country, nothing in the language or import of the opinion suggests that omissions or false statements should be assessed differently when they are tendered upon initial entry into this country. If such a distinction was intended, it has eluded the several courts that unquestioningly have applied Chaunt’s materiality standard when reviewing alleged distortions in the visa request process. See, e. g., Kassab v. Immigration & *520Naturalization Service, 364 F. 2d 806 (CA6 1966); United States v. Rossi, 299 F. 2d 650 (CA9 1962); Langhammer v. Hamilton, 295 F. 2d 642 (CA1 1961).

I doubt that the failure of these courts to raise any question about the relevance of Chaunt was an oversight. It is far from clear to me that the materiality of facts should vary because of the time at which they are concealed or misrepresented. Nor do I see why the events or activities underlying these facts become more or less material depending upon the country in which they transpired.3 In each context, the inquiry concerning nondisclosure addresses the same fundamental issue: did the applicant shield from review facts material to his eligibility for citizenship?

In Chaunt, the Court articulated two approaches to provide guidance and uniformity in such inquiries. The Court today adopts what it considers a new and minimal definition of materiality: it announces that a misrepresentation is material “if disclosure of the true facts would have made the applicant ineligible for a visa.” Ante, at 509. This standard bears no small resemblance to the “first test” of Chaunt, for it too deems material those facts “which, if known, would have warranted denial of” eligibility. 364 U. S., at 355. Because I see no effective difference between the standards, nor any persuasive grounds for contriving a difference, I would rely explicitly upon the Chaunt test here and avoid risking *521the confusion that is likely to be engendered by multiple standards.4

Application of Chaunt to the instant record would not result in any significant departure from the Court’s basic analysis. As the Court notes, ante, at 500, petitioner admitted at trial that he deliberately misrepresented his wartime activities and whereabouts when communicating with representatives of the Displaced Persons Commission during the visa application process. Record 1518-1522.5 The expert testimony of former Vice Consul Jenkins demonstrates convincingly that an applicant who had served as a concentration camp guard would not have qualified for a displaced person’s visa.6 The determination to exclude persons who had assisted in persecuting civilians was grounded in a clear statutory mandate,7 and uncontroverted testimony established that *522the statute was consistently applied in just this fashion against individuals in petitioner’s position.8 Under these circumstances, I agree with the Court that petitioner’s true activities, if known, would certainly have warranted denial of his visa application. Without a valid visa, petitioner could not have been considered for status as a United States citizen. Having proved this much by clear and convincing evidence, the Government has satisfied the first test of Chaunt.

This test strikes a careful and necessary balance between the Government’s commitment to supervising the citizenship process and the naturalized citizen’s interest in preserving his status. The individual seeks to retain his citizenship right to full and equal status in our national community, a right conferring benefits of inestimable value upon those who possess it. The freedoms and opportunities secured by United States citizenship long have been treasured by persons fortunate enough to be born with them, and are yearned for by countless less fortunate. Indeed, citizenship has been described as “man’s basic right for it is nothing less than the right to have rights.” 9 and the effects of its loss justly have been called “more serious than a taking of one’s property, or *523the imposition of a fine or other penalty.”10 Where, as here, the Government seeks to revoke this right, the Court consistently and forcefully has held that it may do so only on scrupulously clear justification and proof. Costello v. United States, 365 U. S. 265 (1961); Nowak v. United States, 356 U. S. 660 (1958); Knauer v. United States, 328 U. S. 654 (1946); Baumgartner v. United States, 322 U. S. 665 (1944); Schneiderman v. United States, 320 U. S. 118 (1943). Before sustaining any decision to impose the grave consequences of denaturalization, the Court has regarded it as its duty “to scrutinize the record with the utmost care,” 11 construing “the facts and the law ... as far as is reasonably possible in favor of the citizen.” 12

The Chaunt decision is properly attentive to this long-recognized unique interest in citizenship, and I must join the Court in not accepting the reasoning of the Court of Appeals, which would have diluted the materiality standard. The Court of Appeals reasoned that materiality was established if the nondisclosed facts would have triggered an inquiry that might have uncovered other unproved and disqualifying facts. See 597 F. 2d 946, 950-951 (CA5 1979). By concluding that the Government has demonstrated the actual existence of disqualifying facts — facts that themselves would have warranted denial of petitioner’s citizenship — this Court adheres to a more rigorous standard of proof. I believe that Chaunt indeed contemplated only this rigorous standard, and I suspect the Court’s reluctance explicitly to apply it stems from a desire to sidestep the confusion over whether Chaunt created more than one standard.

Chaunt, to be sure, did announce a disjunctive approach to the inquiry into materiality, but several factors support the conclusion that under either “test” the Government’s *524task is the same: it must prove the existence of disqualifying facts, not simply facts that might lead to hypothesized disqualifying facts. First, this Court’s reasoning before Chaunt contains no suggestion that a naturalized citizen would be reduced to alien status merely because a thwarted Government inquiry might have shown him to be unqualified. Instead, the Court has been willing to approve denaturalization only upon a clear and convincing showing that the prescribed statutory conditions of citizenship had never been met. This, it seems to me, is the clear import of the Court’s exhaustive reviews in Nowak v. United States 356 U. S., at 663-668; Knauer v. United States, 328 U. S., at 656-669; Baumgartner v. United States, 322 U. S., at 666-678; and Schneiderman v. United States, 320 U. S., at 131-159. Of course, the Government’s ability to investigate with vigor may be affected adversely by its inability to discover that certain facts have been suppressed. The standard announced by the Court of Appeals, however, seems to me to transform this interest in unhampered investigation into an end in itself. Application of that court’s standard suggests that a deliberately false answer to any question the Government deems worth asking may be considered material. I do not believe that such a weak standard of proof was ever contemplated by this Court’s decisions prior to Chaunt.

Instead, I conclude that the Court in Chaunt intended to follow its earlier cases, and that its “two tests” are simply two methods by which the existence of ultimate disqualifying facts might be proved. This reading of Chaunt is consistent with the actual language of the so-called second test;13 it *525also appears to be the meaning that the dissent in Chaunt believed the Court to have intended.14

Significantly, this view accords with the policy considerations informing the Court’s decisions in the area of de-naturalization. If naturalization can be revoked years or decades after it is conferred, on the mere suspicion that cer*526tain undisclosed facts might have warranted exclusion, I fear that the valued rights of citizenship are in danger of erosion. If the weaker standard were employed, I doubt that the denaturalization process would remain as careful as it has been in the past in situations where a citizen’s allegedly material misstatements were closely tied to his expression of political beliefs or activities implicating the First Amendment.15 Citizenship determinations continue to involve judgments about a person’s “good moral character” or his attachment “to the principles of the Constitution,” see 8 U. S. C. § 1427 (a), and the judiciary’s task remains the difficult one of balancing a need to safeguard admission to United States citizenship, in accord with the will of Congress, against a citizen’s right to feel secure in the exercise of his constitutional freedoms. By concluding that an impaired investigation may justify the loss of these freedoms, the Court of Appeals threatens to leave the naturalized citizen with “nothing more than citizenship in attenuated, if not suspended, animation.” 16 The Court seems to reject this approach, and follows the essential teaching of Chaunt. I regret only its unwillingness to say so.

The statute is § 340 (a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 8 U. S. C. § 1451 (a). Its relevant-provisions are quoted ante, at 493, n. 1.

Except for the prohibition against “illegally procured” citizenship, added in 1961 by Pub. L. 87-301, § 18 (a), 75 Stat. 656, the statute today is unchanged from the version considered in Chaunt. Now, as then, it authorizes the initiation of denaturalization proceedings should the Government discover that the order admitting a person to citizenship was “procured by concealment of a material fact or by willful misrepresentation.” In accord with the Court’s prior construction of this phrase, both the concealment and the misrepresentation must be willful, and each must also relate to a material fact. Ante, at 507-508, n. 28, citing Costello v. United States, 365 U. S. 265, 271-272, n. 3 (1961).

This discussion of materiality relates only to proceedings brought by the Government to denaturalize a United States citizen. I do not mean to suggest that, for purposes of attaining citizenship, a misrepresentation must be analyzed in an identical fashion. The immigration law historically has afforded greater protections to persons already admitted to citizenship than to those seeking to obtain its privileges and benefits. This choice, however, reflects a judgment that the weighty interest in citizenship should be neither casually conferred nor lightly revoked. See Berenyi v. District Director, 385 U. S. 630, 636-637 (1967). In view of petitioner’s status as a United States citizen, it is unnecessary to consider here the question of materiality at the naturalization stage.

Confusion to some extent is already present. We granted certiorari in this case primarily to resolve conflicting interpretations of the Chaunt materiality standard. Compare United States v. Riela, 337 F. 2d 986 (CA3 1964), and United States v. Rossi, 299 F. 2d 650 (CA9 1962), with Kassab v. Immigration & Naturalization Service, 364 F. 2d 806 (CA6 1966), and Langhammer v. Hamilton, 295 F. 2d 642 (CA1 1961).

Justice White’s observation in dissent, post, at 529, and n. 10, is not to the contrary. The District Court found a lack of willfulness with respect to the nondisclosure on petitioner’s citizenship application form, completed in 1969. As. the Court correctly observes, ante, at 507, n. 26, petitioner’s misrepresentations at the visa application stage were plainly willful.

Record 766-768, 822-823, substantially reproduced, ante, at 510-511, n. 31. Jenkins further testified at length that, based on his knowledge and experience, “involuntary” guard service in Nazi concentration camps was unknown and virtually inconceivable. Record 754-758, 807-808, 823-824. While I find much of this testimony persuasive, I do not need to rely upon it here since petitioner’s ineligibility for a visa is independently established. See nn. 7 and 8, infra.

The Displaced Persons Act, 62 Stat. 1009, enabled refugees driven from their homelands during and after World War II to emigrate to the United States without regard to traditional immigration quotas. Eligibility was extended consistent with requirements set forth in Annex I to *522the Constitution of the International Refugee Organization of the United Nations. This excluded the following displaced persons from its ambit of concern:

“1. War criminals, quislings and traitors.
“2. Any other persons who can be shown:
“(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or
“(6) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.” Annex I, Part II, 62 Stat. 3051-3052.

Record 766-768. See also id., at 790 (concentration camp guards themselves understood that admission of their former status, without more, was enough to render them ineligible).

Perez v. Brownell, 356 U. S. 44, 64 (1958) (Warren, C. J., dissenting).

Schneiderman v. United States, 320 U. S. 118, 122 (1943).

Nowak v. United States, 356 U. S. 660, 663 (1958).

Schneiderman v. United States, 320 U. S., at 122.

Under the “second test” in Chaunt, the Government is required to prove with respect to suppressed facts “that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.” 364 U. S., at 355. The Court of Appeals in effect construes the word “possibly” to modify the entire following phrase. I believe the sounder construction is that adopted by the District Court, see 455 F. Supp. 893, 915-916 (SD Fla. 1978), whereby *525the word “possibly” modifies only the first, part of the ensuing phrase. Because what would “possibly” be discovered is not “facts which might warrant denial of citizenship” but “other facts warranting denial of citizenship” (emphasis supplied), the “second test” simply asks whether knowledge of the suppressed facts could have enabled the Government to reach the ultimate disqualifying facts whose existence is now known. See also 364 U. S., at 353 (second test stated as whether “disclosure of the true facts might have led to the discovery of other facts which would justify denial of citizenship”).

The dissent in Chaunt proposed its own standard, which it apparently believed was at odds with what the Court had adopted:

“The test is not whether the truthful answer in itself, or the facts discovered through an investigation prompted by that answer, would have justified a denial of citizenship. It is whether the falsification, by misleading the examining officer, forestalled an investigation which might have resulted in the defeat of petitioner’s application for naturalization.” Id., at 357. (Emphasis in original.)

The dissent also voiced concern that the Court, by imposing such a heavy burden of proof on the Government in denaturalization proceedings, in effect would invite dishonesty from future applicants for citizenship. Ibid. Justice White in dissent today expresses the same concern. Post, at 529. It of course is never easy to demonstrate the existence of statements or events that occurred long ago. Records and witnesses disappear, memories fade, and even the actor’s personal knowledge becomes less reliable. While recognizing the arduous nature of the task, the Court nonetheless has insisted that the Government meet a very high standard of proof in denaturalization proceedings. Chaunt’s rigorous definition of materiality, it is true, may occasionally benefit an applicant who conceals disqualifying information. Yet, practically and constitutionally, naturalized citizens as a class are not less trustworthy or reliable than the native-born. The procedural protection of the high standard of proof is necessary to assure the naturalized citizen his right, equally with the native-born, to enjoy the benefits of citizenship in confidence and without fear.

Chaunt’s prior activities involved distributing handbills and speaking in a public park, activities that merit a high degree of First Amendment protection. See also Schneiderman v. United States, supra (membership in Communist Party in the United States); Nowak v. United States, supra (same).

Schneiderman v. United States, 320 U. S., at 166 (Rutledge, J., concurring).