KUNGYS v. UNITED STATES

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IN THE SUPREME COURT OF THE UNITED STATES

JUOZAS KUNGYS, Petitioner v. UNITED STATES

No. 86-228

April 27, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:57 o'clock a.m.

APPEARANCES:

DONALD J. WILLIAMSON, Newark, N.J.; on behalf of Petitioner

ROBERT H. KLONOFF, Washington, D.C.; Assistant to the Sol. Gen. Department of Justice on behalf of Respondent

DONALD J. WILLIAMSON, Newark, N.J.; on behalf of Petitioner - Rebuttal

PROCEEDINGS

CHIEF JUSTICE REHNQUIST: Mr. Williamson, you may proceed whenever you're ready.

ORAL ARGUMENT OF DONALD J. WILLIAMSON ON BEHALF OF PETITIONER

MR. WILLIAMSON: Mr. Chief Justice, and may it please the Court:

This denaturalization case raises the issue as to how to determine the materiality, or lack of materiality of a misrepresentation in a visa application and a petition for naturalization when the truth would not have resulted in the ineligibility of the naturalized citizen for either a visa or for citizenship.

Here the Third Circuit transformed the immaterial misrepresentations of date and town of birth by applying evidentiary standard less than and inconsistent with that required by the long-standing requirement of Schneiderman of an evidentiary standard of proof that is doubt free. And it applied that diluted standard to reach a non-existent ultimate disqualifying fact.

QUESTION: You say a standard that is doubt free, Mr. Williamson?

MR. WILLIAMSON: Doubt free.

QUESTION: Is that beyond a reasonable doubt?

MR. WILLIAMSON: It is at least, according to this Court in (inaudible) the equivalent of the criminal beyond a reasonable doubt.

QUESTION: I don't think of beyond a reasonable doubt as being doubt free.

MR. WILLIAMSON: The language of clear, convincing and unequivocal which does not leave any issue in doubt, I would characterize as doubt free.

QUESTION: Well, clear and convincing has been thought of a standard between a preponderance and beyond a reasonable doubt.

MR. WILLIAMSON: But, this Court went further in Schneiderman to indicate that it not only has to be clear, convincing and unequivocal, but it will leave no issue in doubt and any inference of fact or law as far as reasonably as possible it should be drawn in favor of the citizen.

But, I would argue in terms of the application to this case that doubt free is more of a short end expression in my having to completely repeat each time that language of the Court.

But nevertheless, if we're to take literally the Chaunt second prong of the second expression of the second prong then this Court is likewise free to take literally the language in Schneiderman which is doubt free and which in the concurring opinions is fairly clear that this Court was trying to avoid any potentiality of having two classes of citizenship and therefore did in fact make the standard of proof as vigorous as possible.

When the applications of the fact to this particular case the District Court was able to apply all of the formulations of Chaunt and Fedorenko, taken in combination, and under none of those standards did it find the misrepresentations to be material.

What happened here however is that the Third Circuit tried to get from point A, the suppressed truth by drawing an inference as to a residency permit in which correspondence indicated that it was issued without special restrictions and from that it drew a tendentious inference that that would have led to a conclusion that the naturalized citizen was not a victim of Nazi persecution.

I think we demonstrate fairly clearly that the law and the regulations at that time had no such requirement that one had to be a victim of Nazi persecution. So that the ultimate disqualifying fact to which the Third Circuit, I reach this conclusion is in essence a false premise and its logic was bound to face since it didn't exist.

But in addition to which the case illustrates that you cannot have a standard which you can characterize as it did as probability and still in effect comply with safeguarding the rights of the denaturalized citizens. Because what they did there is they turned Schneiderman upside down and instead of drawing the inferences in favor of the citizen they draw the most tenuous inference in favor of a government.

In point of fact, the inference is neutral because every person whether or not a citizen of Germany at the Third Reich at that time, or even today, who is in Germany whether it be a citizen, or displaced person, or foreigner, has to register and the registration is a simple bureaucratic act.

All it does is establish that the neutral fact that one resided in Tubingen. Now the irony is that the establishment of the residence in Poltringen rather, at that time, established that the petitioner was a displaced person who was covered by the Presidential Directive of December 22nd, 1945.

Now that was incorporated specifically on December of 1946, in the Federal Regulations incorporated the Truman Directive as part of the priority for Non-preference Immigration Quota Visas.

The Third Circuit looked at the President Truman Directive in isolation and did not take into consideration that indeed it was incorporated in the regulations. As a result of which they came to the improper conclusion that was a mere generalized statement instead of in fact a Presidential Order directing that all displaced persons would, in effect, receive a priority under a Non-preference Quota Immigration Visa standard.

This Court has never applied the second prong of Chaunt even in Chaunt. And as a result of which it is dicta and I would submit that if it is to be taken literally, it is impossible to reconcile the dicta in the second prong of Chaunt with the Schneiderman test.

What has happened is we have two formulations in Chaunt within two pages. One on Page 353 and one Page 355. The latter one picks up the word, "possibly," and the question has in effect, plagued the Courts of Appeals as to how one applies the test and where, in effect, what part of the phraseology it modifies.

Whereas it is reasonably clear that in Chaunt this Court in effect did say that you had to connect the suppressed fact, there the arrests, to an ultimate disqualifying fact, their communist affiliation, and what the Court said is that the attempted connection by the government at that time was too tenuous and in addition to which it said as part of its holding that no investigation would have been conducted because there, there was a disclosure which, in effect, that disclosure did precipitate an investigation.

Similarly here, although the petitioner did in fact misstate his date and town of birth, he disclosed his residence in Poltringen and in Tubingen in Germany prior to the end of the war. That was disclosed and it did not trigger off an investigation by the Vice Counsel to look at the records in Tubingen. But we don't know that it did not because the Vice Counsel in effect, indicates in the application for visa, police dossier available.

A police dossier meant that they went to the available public records of the jurisdiction in which the individual resided. So that presumably we would have gone to Poltringen or Tubingen and what would they have found?

Contrary to the indications of faulty review by the Third Circuit, they would have found the original document which we have in our Joint Appendix. That is the original register of Ammerbuch, which in effect is the district which controlled the residential permits there.

And there it contains the same information which is reflected in the internal passport. It contains the statement that he was born in Kaunas and born in Canniest on the incorrect date. So that in point of fact there is no connection, proper connection on the factual basis to go from point A, the truth of the true date and place of birth which the District Court properly held would not have led anywhere because that would not have created any type of suspicion.

In addition to which it could not connect to something which is the residence rather the appropriate fact was to disclose fact which connected to the residence and which is his residence in Poltringen which is on the application.

But in any event, the whole exercise is an exercise in futility if at the end the ultimate disqualifying fact doesn't exist. There was no requirement that one had to be a victim of Nazi persecution in order to get a visa.

And equally important there is no exclusion which excludes someone who's not a victim of Nazi persecution from obtaining a visa. This naturalized citizen received his visa under the 1924 Act and the Third Circuit at least says that you should determine the validity of either the visa or the citizenship petition judged by the law in effect at the time that he obtained it.

Under the 1924 Act, since he received his visa in 1948 having applied for it in February of 1947, the law at that time was that the visa shall specify the nationality, which quota the immigrant is coming into and such additional information necessary for the proper enforcement of the immigration laws.

And what they provided for is one form, but that one form was an attempt to cover many different applications. As a result of which some of the questions that are asked in the form have no relevance or in the standards here no materiality to the ultimate decision to be arrived at.

By way of illustration the form requires that you set forth your age. Of course the age is relevant if you are attempting to obtain a first preference because, excuse me, a second preference, obtain a second preference because the second preference is available to unmarried children under the age of 21 years old.

Obviously if the petitioner attempted to make himself, an alien, an unmarried alien under the age of 21 years then clearly that would have been material. But the difference of the two years from 30 to 32 years was meaningless piece of information. It was not necessary for the proper enforcement of the immigration laws at that time.

Similarly, he did not attempt, for example, it asked whether or not he's married and indeed he disclosed the fact of his marriage, but that marriage had no relevance to the Non-preference Immigration Quota Visa which he obtained.

Although it would have had relevance to a first preference, so that in point of fact information is requested in that form which is not necessary to enforcement of the laws. In addition to which the Act of --

QUESTION: Mr. Williamson?

MR. WILLIAMSON: Yes.

QUESTION: As I understand one of your points is that the Court of Appeals here engaged in improper fact finding under our Icicle Seafoods decision of last term.

MR. WILLIAMSON: Yes.

QUESTION: And are you going to discuss that in your oral argument?

MR. WILLIAMSON: I believe that as one of the bases of which to reverse I also believe that it is a relevant consideration here because it goes to the question of the District Court applying each one of the standards in Fedorenko as particularly relevant to the opinion of Justice White. (Inaudible).

QUESTION: I would find it helpful, --

MR. WILLIAMSON: All Right.

MR. WILLIAMSON: -- speaking only for myself, if you could point out factually, not with theories, just where the Court of Appeals went wrong in what you claim to be it's fact finding?

MR. WILLIAMSON: All right. The District Court found --

QUESTION: I would agree with the Chief Justice on that. I would like to have you comment.

MR. WILLIAMSON: Yes. The District Court found that no investigation would have been conducted had the truth of the suppressed facts been disclosed. And he obviously was not clearly erroneous because no suspicion would have been aroused by a man who made himself two years older, by a man who placed himself in a city rather than a town in Lithuania.

QUESTION: Well, now did the Third Circuit find that clearly erroneous?

MR. WILLIAMSON: Well the Third Circuit used the language of apply a clearly erroneous test, but that's not what they did. What they did in effect is to say that an investigation would have been conducted and the way in which they did it is they looked to the discrepancies of the documents which are ultimately discovered and they reasoned backward from the discrepancy of the document back from the truth.

But, it's not the consequence of the lie that's significant, it's the consequence of the truth. Would the truth have led to an investigation. And that's what this Court, as I read it, in Fedorenko said. Would the truth, if disclosed, have led to an investigation?

Now the reason why I argue, in effect, that the Court of Appeals made a de novo finding is that although when you apply a mixed question of law and fact, it may be that the legal standard is something which they could address themselves to.

But they cannot change the factual component unless it is clearly erroneous and here they changed the factual component of whether an investigation would have been conducted.

But if I may also follow up on the dissent, if you would, of Mr. Justice White in Fedorenko. The District Court found that since no investigation would have been conducted it would have satisfied that test.

But I would also submit that the test would likewise be satisfied because under these particular circumstances the naturalized citizen did rebut Mr. Justice White's suggestion that if you have a probability test and it establishes a presumption, that presumption is a rebuttable presumption.

But nevertheless you still have to reach an ultimate disqualifying fact. Here the petitioner did rebut the presumption as to whether or not one had to be a victim of Nazi persecution and he did it very simply.

He did in the first instance by his cross examination. The Third Circuit reached the false premise by examining only the direct examination of Former Vice Counsel Finger.

QUESTION: I was curious about that too. It seemed to me that the Court of Appeals treated his testimony as if it had to be believed. And I thought the District Court could totally disbelieve the testimony of any witness whether interested, or not.

MR. WILLIAMSON: Not only could he, but he did. Now in a very genteel way he said that the law and the regulations in effect suggest that Mr. Finger was in error, but perhaps there was an informal policy. But that's not what the immigration laws say.

As I've indicated in our Joint Appendix and also in the attachment to the reply brief. The only way in which one could refuse a visa is on grounds in the law itself or in the regulations and there they don't exist. And what we've --

QUESTION: But, of course, if it's essentially a question of a fact --

MR. WILLIAMSON: Credibility.

QUESTION: -- you don't have to prove you're right. All you have to prove is there was a dispute which the District Court was entitled to resolve either way.

MR. WILLIAMSON: And which he resolved in favor of the naturalized citizen. Once again, however, the Third Circuit, when you asked me whether or not they had made de novo findings, they obviously did on the most erroneous of fashions. That is to say they didn't look at the cross examination and they didn't look at the federal regulations, nor did they look at the Presidential Directive.

QUESTION: I'm interested in that. Was in fact no regulation in existence?

MR. WILLIAMSON: No regulations existence.

QUESTION: Even though Ambassador Finger, then Vice Counsel said he was relying on one.

MR. WILLIAMSON: He said the policy was embodied in the regulations which the government attorney showed me during my trial preparations. There was a three week recess call in which the government was given the opportunity to produce that regulation. They didn't, I did.

I produced the regulation which was the one I referred to in the Federal Register of December of 1946. Now in addition to that, since that time we have looked at every conceivable source of historical evidence including the literature at the time, including the INS monthly reviews, the contemporaneously written articles, all of those appear in the Appendix of the amici in support of the petition for certiorari.

QUESTION: So, it remains a puzzlement what it was that the government did show Mr. Finger, or whether he just --

MR. WILLIAMSON: Or if they showed him anything.

QUESTION: Or if they showed him anything.

MR. WILLIAMSON: Or, if in effect, we have merely a faulty memory, in effect, he would like to believe that that was the particular case. But obviously it didn't exist and there's no factual support for his testimony which the District Court found was in error.

QUESTION: And there was also testimony by, was it the counsel at the time, who had no recollection of any such --

MR. WILLIAMSON: Yes, the government in its --

QUESTION: Policy.

MR. WILLIAMSON: -- brief says that that's simply a telephone conversation which was in evidence, but it is in evidence because the alternative that the District Court judge gave was, either we adjourn the trial and go there and take the deposition of Mr. Schilling, or we take his deposition by telephone with me listening, or in effect you agree that the transcript goes in without cross examination.

QUESTIONS: The transcript of what?

MR. WILLIAMSON: The transcript of the telephone conversation I had with Mr. Schilling who was the individual actually processed the naturalized citizen's petition, visa petition which the government chose not to use, instead to use Mr. Finger.

Presumably the bases for not using him was Mr. Schilling was uncooperative and had no memory and in effect what we have instead is Mr. Finger who was cooperative and had a memory of something which doesn't exist and never existed and there's no support for.

In addition to which the government has not produced a refusal card. If in fact, the absence of being a victim of Nazi persecution was a disqualifying fact then there would be refusal cards which would show that as to some individuals.

QUESTION: Mr. Williamson, may I come back to the facts?

MR. WILLIAMSON: Yes.

QUESTION: Do you deny that the petitioner in this case knowingly lied every time he had the opportunity to do so?

MR. WILLIAMSON: Oh, yes.

QUESTION: You do?

MR. WILLIAMSON: I do. Because what we have here --

QUESTION: Didn't he have the correct documents in his possession and didn't he falsify the documents he filed and signed, swore to? (Inaudible).

MR. WILLIAMSON: The reason I answered your question the way in which I did, Mr. Justice Powell, is this: Your question was so broad --

QUESTION: All right. You (inaudible) --

MR. WILLIAMSON: -- that it picks up many different statements, but if you're asking me whether or not, the same misrepresentation of his date and place of birth was made throughout then the answer to your question is, yes. And if you're asking me whether --

QUESTION: May I interrupt you now?

MR. WILLIAMSON: Yes, I'm sorry.

QUESTION: And those misstatements were wilfully and knowingly made?

MR. WILLIAMSON: Those statements were intentionally made.

QUESTION: Right.

MR. WILLIAMSON: I think that willful embodies within it a concept of mens rea or a black heart and in this particular instance there's no black heart because we have --

QUESTION: He just wanted to be a United States citizen.

MR. WILLIAMSON: No. What he did is he made a misjudgment and the misjudgment that he made was that in a procrustean way he tried to conform the application to his internal Lithuanian passport which was the best record of a public record of the country to which he owed allegiance which was basically the test.

Now, the so-called other documents that you're talking about, none of them were public records and doubtful that they would have satisfied a requirement to obtain the particular visa.

Now the particular instance here, however, there's a certain irony. The reason why he had the misstated date and place of birth on the internal Lithuanian passport was to avoid conscription into the Nazi Army at a time when there was an order seeking mobilization of the Lithuanians under the most dire and harshest of repressions to the Lithuanians. Point of fact that happened four days --

QUESTION: But that wasn't the application for the visa.

MR. WILLIAMSON: Pardon?

QUESTION: I thought Justice Powell was talking about the application for the visa.

MR. WILLIAMSON: Yes, I'm saying why it wasn't

QUESTION: But, that had nothing to do with him going in the military did it?

MR. WILLIAMSON: It had nothing with him going into the military. It had the reason why --

QUESTION: He was (inaudible).

MR. KLONOFF: -- he thought, he made the misjudgment that he had to put down the same date and place of birth as he had on his passport.

QUESTION: Do you say that to tell a deliberate lie is a misjudgment?

MR. WILLIAMSON: I'm not trying to, in effect, minimize the fact that he lied.

QUESTION: Isn't it a fact that he didn't want to be found out to have murdered 4,000 people?

MR. WILLIAMSON: Well, Your Honor, that I would take severe issue with. The fact of the matter is that this individual defended himself against those kind of charges and the District Court found them unreliable and inadmissable and I respectfully suggest that if we had the most heinous crime committed in the United States of a similar type of nature no court, no responsible court would have admitted the evidence or found it to be reliable that existed in this particular court. So I would take very serious issue with that as to how this gentleman have under our system having proved --

QUESTION: (Inaudible) lie.

MR. WILLIAMSON: No, it is not in the least Your Honor. And I take serious issue with it, but what it does raise in effect, is it shows how the tremendous high (inaudible) pressure of the nature of the accusations in effect, makes it very difficult to deal with these particular issues and it does distort judgment.

And I think that what we have to do under our system of justice in order for it to work and work effectively is we have to see whether or not it's capable of handling cases like this so that the allegations if not proved don't bear upon the considerations of the other issues.

And the issues here are whether or not the misstatement as to his date and place of birth can be a sufficient grounds for, in effect, denaturalizing him.

QUESTION: Mr. Williamson, let me get it clear why you say he was misrepresenting. You say that he thought that the best documentation that he had available was his Lithuanian passport so he recited the date and place of birth that was on that?

MR. WILLIAMSON: Yes. You have, under the --

QUESTION: Why didn't he use the same reasoning when he gave testimony to the German officials for the other documents that contained the correct date and place of birth?

MR. WILLIAMSON: When you look at the actual document, the initial registration, he did the same thing to the "German authorities, " and that was the German authorities (inaudible). Now it is true on a different and subsequent page and after the allied occupation it does contain the correct date and place of birth.

QUESTION: After the allied occupation?

MR. WILLIAMSON: That's correct. After the allied occupation.

QUESTION: All the documentation that shows the correct date and place of birth is after the allied occupation?

MR. WILLIAMSON: That is correct. And that documentation was in fact, available to the Vice Counsel because of the fact he disclosed each one of those residences where it would appear. The document is very clear. The only ambiguity that arises from it is the fact that it says born in Kaunas but has to Taurage.

Taurage is a different county than Kaunas. But the Kaunas place of birth and the incorrect date of birth are, in effect, in the initial registration document. Those other documents you see are reports which are reflected off of that document, but it is not until after the allies occupy that the other correct information is reflected.

And that's a faulty review again of the Third Circuit which was picked up by the government, but it's available in the Joint Appendix for the examination of the Court. It's the fold out document that we have in there and I have in it's original form for that particular reason.

I see that I've less than five minutes. If there are no further questions, I'd like to reserve my additional time for rebuttal.

QUESTION: Thank you, Mr. Williamson.

MR. WILLIAMSON: Thank you.

QUESTION: We'll here now from you Mr. Klonoff.

ORAL ARGUMENT OF ROBERT H. KLONOFF ON BEHALF OF RESPONDENT

MR. KLONOFF: Mr. Chief Justice, and may it please the Court:

The issue in this case is how to balance two important interests, a naturalized citizens right to citizenship versus the government's need for truthful answers by applicants for visas and for citizenship. The issue arises in the context of the case involving willful and deliberate lies at every stage of the process.

And in answer to Justice Powell's question the record is clear and it's been conceded throughout that these lies were willful, and I would cite to Pages 9A and 46A of the petitioner's Appendix, the decisions of the Court of Appeals and the District Court.

The Court of Appeals is absolutely clear that these were conceded to be willful. And I will get, in detail, during the course of this argument to the nature of these lies because, in fact, a number of misstatements were given during Mr. Williamson's arguments and I want to clear up precisely what the nature of the misstatements were and how they occurred during the proceedings.

The standard of materiality urged by the government in this case requires proof by clear convincing and unequivocal evidence that there would have been an investigation and that that investigation might have uncovered disqualifying facts.

Now I think Mr. Williamson confuses two different issues here. He indicates that the use of the phrase, "might" somehow dilutes the clear, convincing and unequivocal standard. But, in fact, he's confusing two separate issues.

For example, in the criminal perjury cases the standard of proof is proof beyond a reasonable doubt. The question of materiality is whether or not there is a tendency to influence the decision-maker and the question whether there's a tendency to influence the decision-maker has to be proven by a reasonable doubt. So we submit there's no dilution of the proper standard.

QUESTION: What would, might, whatever, tell me why the listing of birth date two years earlier and a different location in the country instead of in the city of Kaunas would have provoked an investigation.

MR. KLONOFF: Well, let me say there are four separate patterns of lies. It isn't just date and place and birth. Mr. Williamson, throughout the litigation and again in this Court, ignores what the government believes to be the most crucial lie, namely where the petitioner was during the time of the atrocities.

QUESTION: Yes, but what about the date and place of birth alone?

MR. KLONOFF: Well, the Court of Appeals found date and place of birth alone to be enough, the analysis that we --

QUESTION: Well, what's your position on that?

MR. KLONOFF: We submit that that's correct. (Inaudible).

QUESTION: Well, why would that have led to an investigation as Justice Scalia asked?

MR. KLONOFF: Well, first of all and this goes also to Chief Justice Rehnquist's question about whether or not there was an error of law or an error of fact. What the District Court did is it said, let's look at a fact in isolation per se.

For example, if someone came in and said, I was born in 1915, are you disqualified based on that fact per se? If that were the analysis, then virtually no fact of identity would be material. For example, somebody could come in and give a totally fictitious name, but then when it --

QUESTION: You tell me how it would have led to investigation? Granted that it wouldn't have disqualified him and you need not show that it would have disqualified him automatically.

MR. KLONOFF: (Inaudible).

QUESTION: How would it have led to an investigation? Somebody would say, ah ha, he was not born in 1933, he was born in '31. That will set me to, why would that set anybody to investigate?

MR. KLONOFF: Well, what happens Justice Scalia, the way this process works is first the applicant provides documentation, he then fills out the application forms and he's then interviewed under oath and given the information and the testimony in terms of triggering an investigation which the Court of Appeals correctly said was undisputed is where the person, well, first provides --

QUESTION: You said the Court of Appeals said it was undisputed, but are you suggesting that the District Court doesn't have the right to disbelieve someone's testimony just because there isn't any contradictory testimony?

MR. KLONOFF: Well, we're not suggesting that. Nowhere in the record does the District Court indicate that it disbelieved (inaudible).

QUESTION: Why does the District Court have to indicate that it disbelieves? So long as it didn't make a finding in accordance with that testimony the District Court may have disbelieved it.

MR. KLONOFF: Well, --

QUESTION: I mean, I think the Finger testimony doesn't do you any good at all up here.

MR. KLONOFF: Well, what the District Court did wrong, we would submit, is not looking at discrepancies created by later lies. What Vice Counsel Finger explained is --

QUESTION: Well, but, what I'm saying is that you may be right as to the discrepancies, but I don't think you have any business relying up here on any of the explanations of Vice Counsel Finger. Because the District Court was free to disbelieve him.

MR. KLONOFF: But, with all respect, Chief Justice Rehnquist, the District Court did not reach the issue of the discrepancies at all.

QUESTION: Are you saying that the District Court was not free to disbelieve Finger?

MR. KLONOFF: The District Court certainly could have disbelieved Finger.

QUESTION: Well okay then why are you relying on what he said in your explanation. Because the District Court could have disbelieved him.

MR. KLONOFF: That's correct. What we're doing, we're reviewing the record as to the analyses undertaken by the Court of Appeals.

QUESTION: Yes, but I suggest you not rely on the Finger testimony.

MR. KLONOFF: Well, but the District Court did not specifically refuse to rely on it.

QUESTION: No, but you agree it could have disbelieved it?

MR. KLONOFF: It could have. But, what the Court of Appeals found was an error of law, in other words, that Vice Counsel Finger explained that the way the process worked is --

QUESTION: Yes, but again, you're relying on his testimony. The District Court could have found his testimony totally false.

MR. KLONOFF: Well, that's correct. And perhaps on an issue where the District Court didn't address this precise issue, perhaps one approach could be for this Court to remand for the purpose of having the District Court specifically address --

QUESTION: That's what Icicle Seafood says, doesn't it?

MR. KLONOFF: That is correct. We have taken the position that the Court of Appeals had a basis in viewing the record to be undisputed on these particular points and therefore --

QUESTION: But, what does undisputed mean?

MR. KLONOFF: Well, it means that there is no evidence to the contrary.

QUESTION: Well, but that isn't the testimony you, that isn't the way you ordinarily review a District Court finding of fact. You can say the testimony of Witness A before the District Court was undisputed. Nobody contradicted this witness, and yet if the District Court, sitting as a fact finder, says, I don't believe a word that witness says, the fact that the witness was undisputed doesn't make any difference.

MR. KLONOFF: No, I understand that. And I would just again reiterate that there was no finding that Vice Counsel Finger was not credible.

But in any event, in answer to Justice Scalia's question, the course of investigation would have been triggered by an inconsistency between the earlier lie and the later telling of the truth because at each stage of the process the individual is asked to provide this biographical information.

And having supplied false documents, if he then comes in and gives the truth an investigation would be triggered and it was required by regulation as a result of the inconsistency of this basic biographical information. The same thing is true within that organization.

QUESTION: If you believe Finger?

MR. KLONOFF: That's right. Or, Goldberg. And as to Justice Goldberg, the District Court didn't discuss the evidence at all.

QUESTION: But there was no reason for the District Court to be required to believe Justice Goldberg, was it?

MR. KLONOFF: That's correct. We don't disagree on that, Mr. Chief Justice.

QUESTION: See, I still don't understand this. You mean, since he lied the first time in the visa application, had he told the truth the second time in the naturalization application, the inconsistency between the two would have set an investigation afoot.

MR. KLONOFF: Exactly. That's a fact.

QUESTION: And that investigation would of looked into why. Why is that the man said that he was born in 1931 when he was born in 1933?

MR. KLONOFF: Exactly. But, first of all --

QUESTION: And why is it that he said he was born in Kaunas instead of, where was he born?

MR. KLONOFF: That's correct. In Taurage. And that's correct. Those are two --

QUESTION: So what? What would that investigation have led to? Absolutely nothing.

MR. KLONOFF: Well, we submit that that's not correct.

QUESTION: Those specific facts couldn't make any difference at all.

MR. KLONOFF: Well, again, first of all at the visa stage there was a requirement that people tell the truth about biographical information. This was supported by the case law at the time. And so the very discovery of the discrepancy would have disqualified the applicant from obtaining a visa.

QUESTION: Oh, you're saying any, oh, you are eliminating therefore the requirement which I thought, I thought the case has established up to now that any misrepresentation has to be not only willful, but material in order to disqualify.

MR. KLONOFF: Well, what the (inaudible) --

QUESTION: You're saying, if we find somebody making a willful misrepresentation whether it's material or not, whether it would have caused him to be disqualified from naturalization or from a visa, or not, it's enough.

MR. KLONOFF: No, that' not, it's much narrower than that. The cases deal at that time specifically with identity with information that Congress specifically required that an applicant provide as to those specific pieces of information. The case law at the time was quite clear that it was per se grounds for denial. So that's just one avenue. Let me explore your question further.

QUESTION: Wait, excuse me. It was per se grounds of denial. Any misrepresentation whether it was material, or not?

MR. KLONOFF: Well, the cases held that because identity was so fundamental to the inquiry of investigation that misstatements of identify were in essence deemed material per se. Only a small category of misstatements known as identity.

But, let me pursue it further because wholly apart from the identity point there are additional avenues, one of which is what the Court of Appeals went off on, the fact that the investigation would have revealed that the petitioner was not a victim of persecution and that this was a requirement at the time. Now, we would note in that regard first of all that we conceded hat --

QUESTION: Is that uncontested that it was required at that time?

MR. KLONOFF: Well, it was --

QUESTION: That's what Finger said.

QUESTION: That's what Finger said. Nobody else said.

QUESTION: Substantiated by a regulation which didn't exist.

MR. KLONOFF: And again, I would note to the Court that if the question has to do with whether or not this type of issue should have been dealt with first in the first instance by the District Court that that maybe the procedure to have dealt with.

But, I'm just answering, in terms of the remand, but I'm answering Justice Scalia's question about the avenues of investigation. And if we can assume for a moment that Vice Counsel Finger was correct, and if we've noted in our brief and supported historically by the actual numbers of the visas, virtually all of the visas at the time in this part of the world were going to Jews who by definition, were victims of persecution.

Petitioner himself provided the most important evidence of the existence of the requirement. He submitted a document for the very purpose of proving that he was a victim of persecution.

And finally, petitioner offered evidence at trial, a Mr. Zabarskis, who had testified that he was not a victim of persecution, but nonetheless got a visa. But as the government showed, he too represented himself to be a victim of persecution.

QUESTION: Excuse me. I still don't understand how all of this ties into the birth date and the place of birth. What does that have to do with whether he's a victim of persecution, or not?

MR. KLONOFF: Because what Vice Counsel Finger indicated is that if a discrepancy develops between a document and the other information, the first thing that will be done is to look at the police records in the city of prior residence of the individual.

That investigation, we submit, would have uncovered the documentation indicating first of all that petitioner was living without restriction in Nazi Germany. Secondly, the very identity of the false date and place of birth would of revealed to the Vice Counsel that the document --

QUESTION: Mr. Klonoff, does the government's case here depend on accepting the truth of the statements of Finger and Goldberg?

MR. KLONOFF: Yes, I mean, well --

QUESTION: The judgment ought to be reversed or vacated if you don't rely on their statements?

MR. KLONOFF: Well, if we don't, two things: First of all, if the Court is not prepared to rely on Vice Counsel Finger and Goldberg we would submit that the proper approach would be to properly define the test of materiality and then to remand so that the District Court can consider these issues in the first instance. District Court is really never considered the issue of discrepancy for example. It has never really considered --

QUESTION: (Inaudible). Is it not also critical of the government's case that not being a victim of persecution is a disqualifying fact?

MR. KLONOFF: Well, or that not necessarily is a matter of statute. We concede there's no statute of regulation --

QUESTION: And it's a fact you would have prevented him from getting a visa had it been known?

MR. KLONOFF: That's not critical since we've given several other possible grounds of investigation. One of which is, by the way, under the "would and might" standard that the investigation would have led to an investigation that might have shown the petitioner was in fact a persecutor, or committed the war crime --

QUESTION: That's what I wanted to find out. You are relying on a reading of the standard which would allow, even though it had not been proved that he was such a persecutor, what you're saying is there might be some other evidence out there that might have been discovered that might have shifted the scales on the fact issue and might have led to the conclusion that he was in fact a persecutor?

MR. KLONOFF: Well, that's correct. His --

QUESTION: Isn't that always true? I mean, in unsettled conditions in Europe there that if you use the "might" language literally it's all, once you get over the hurdle of saying you would have triggered an investigation would you not always win on the ground that they might have found something disqualifying?

MR. KLONOFF: Well, we don't think so. We think that there's considerable content to the "might" part of the test explained by the attorney general in 1961. That "might" requires some showing of a basis for ultimate disqualification. It doesn't require a preponderance of the evidence but it requires a considerable showing.

Here we have petitioner lying about the very fact of where he lived during the war. That's the fact that the District Court found for the government. That is some support although the --

QUESTION: What you're saying in effect is that they might have discovered evidence that would have corroborated evidence that was otherwise insufficient?

MR. KLONOFF: That's correct. That even the government didn't prove --

QUESTION: So, if they get a little evidence of persecution, you'd always pass that "might" hurdle, I suppose?

MR. KLONOFF: No, we don't think so. But, even though the government --

QUESTION: Well, how much evidence do you have to have on that issue of persecution?

MR. KLONOFF: Enough to raise a serious question about whether, in fact, the government could have made its case. Let me further answer though your question about --

QUESTION: Reasonable suspicion enough, or probable cause? What is the standard?

MR. KLONOFF: We would think that reasonable standard --

QUESTION: If there's reasonable suspicion that he was engaged in this kind of activity, you satisfied the "might" hurdle.

MR. KLONOFF: We would think, once we've first shown that there would have been an investigation.

QUESTION: Right. Once you say you would have triggered some kind of an investigation --

MR. KLONOFF: Let me first though if I could --

QUESTION: Found the reasonable suspicion here. What would have justified that reasonable suspicion?

MR. KLONOFF: Well again, the Vice Counsel would have found through the discrepancies that petitioner lied about the very place he was during the atrocities. The investigation as the evidence indicates, would have led the Vice Counsel to the displaced person's camp where there were --

QUESTION: Were there no atrocities in the place where he said he was? I mean, you know, you mentioned, what's the name of that city where --

MR. KLONOFF: Taurage (inaudible).

QUESTION: There were atrocities all over Lithuania.

MR. KLONOFF: Well, that's correct. But this is --

QUESTION: So, I mean, you can always say, yeah, he lied because he, you know, are you sure the city he said he was in didn't have atrocities as well?

MR. KLONOFF: Well, that's not the point. If he lied about where he was no one in the place where he claims to have been would be able to link to him to atrocities there. So no one could prove that he committed atrocities in Telsiai.

But, let me just move back briefly to the question about whether or not the case depends on Vice Counsel Finger and Vice Counsel Goldberg. We've also given an alternative analysis that doesn't depend specifically on the acceptance of that testimony and that has to do with the issue of good moral character.

And we would submit that without regard at all to the credibility findings that are made that an individual who lies repeatedly on these critical types of facts has demonstrated a lack of good moral character under the statute and that would provide a basis for disqualification. Let me --

QUESTION: Did the courts below rely on that?

MR. KLONOFF: Well, the courts dealt with it and they dealt with it, both of them rejected it.

QUESTION: Did they rely on that as a basis for denaturalization?

MR. KLONOFF: They did not. They, both the Third Circuit and the District Court rejected that argument. They held that for purposes of good moral character, the Chaunt materiality standard applies in that context. If I could very briefly --

QUESTION: What is the meaning of the materiality standard if you adopt that position? That is, the lie has to be material, but of course, anybody who lies doesn't have good moral character, so a lie doesn't have to be material.

MR. KLONOFF: Well --

QUESTION: Why would you need a materiality standard?

MR. KLONOFF: Well there's a difference and there's a question of overlap. We're not saying that any lie, regardless of its significance is enough to show that you lack good moral character.

What we're saying is, is that here in the context of lies that could have proven a basis for perjury, and we cite the Ramos case for example, that where somebody has repeatedly committed perjury that he has demonstrated a lack of good moral character.

QUESTION: Well what makes it perjury as opposed to just a lie if it isn't materiality?

MR. KLONOFF: Well, but the materiality test, again, this assumes just hypothetically, regardless of whatever the Court adopts with respect to Chaunt, the materiality test in the perjury context is well-established. And that requires only that there be a tendency to influence the decision-maker and we suggest that under that test of materiality it's clear the petitioner's lies were material for criminal purposes.

So, regardless of the Chaunt test, we would submit that somebody who is engaged in repeated acts of perjury has established a lack of good moral character.

Let me briefly, if I could, review the entire scenario of misstatements because they really are quite dramatic in the context of this case. Petitioner repeatedly lied about his identity at the very time he was telling the truth to the Germans. And it's simply not correct as petitioner would indicate that he also lied to the Nazi Germans.

And I would refer the Court to Page 117A of the petitioner's Appendix where the District Court found as a fact that all of the documents reflected the, that were submitted to the Germans, both Nazi and after, reflected his true place of birth and almost all reflected his true date of birth. So, clearly he was giving truthful information to the Germans.

It was also found as a fact that he had a identifying document on him with a true place of birth and that he didn't disclose that document to the immigration officials. Now, his explanation that he's given, namely avoiding conscription into the German Army simply makes no sense because it doesn't explain why he would tell the truth to the Germans and then lie to the American officials.

QUESTION: Why did he lie to the American officials? What's your theory about why he lied to the American officials and told them he was born --

MR. KLONOFF: Well, the theory we've had --

QUESTION: -- two years later, or earlier.

MR. KLONOFF: -- throughout this case, as is typical of many of the cases that have been brought in this area, people are trying to shade their identities so that they can not be linked with certain atrocities. And that goes hand and hand --

QUESTION: But, he wasn't born where the, you know, if he had been born where the atrocities occurred, I could understand it.

MR. KLONOFF: Well --

QUESTION: But, neither the place where he actually was born, nor the place where he said he was born was the place where the atrocities occurred.

MR. KLONOFF: No, but if, for example, someone came in later and provided testimony that the person who they saw and they knew of who committed the atrocities was the person who was born in so and so town, he can come in having lied and said, well that's not me, I was born in a different place and I have a different year of birth.

But, certainly the most critical lie, we have submitted, is his lie about his residence during the war. And his lie has been really a spectrum of lies because he told the immigration officials at the visa stage that he had not resided in Kadainiai.

For a two year period, he listed just Telsiai. He kept changing around so that by the time the investigation occurred of this case he admitted that he was there until the beginning of July, but left right before the atrocities. And the District Court specifically found that he was there until October of 1941 and, therefore, was there during the time the atrocities occurred.

And finally, he lied about his occupation, and there, there's further testimony. Vice Counsel Finger indicated that at a minimum, had an individual come in and represented that he had worked in this plant manager capacity, even of say 15 employees, that would have triggered further questioning by the Vice Counsel.

Now, if I could just discuss briefly the general considerations concerning the test of materiality. We would submit that the government's test of materiality, the test we urge is the proper one that this Court should adopt for several reasons.

First of all, petitioner's standard of materiality creates an incentive for visa and citizenship applicants to lie and then later rewards the person for his successful lies. And many of the questions that the Court is asking today, it's troublesome to know exactly what the line of investigation would have been and this is the reason why a standard of what Counsel calls doubt free materiality simply is not right, because the government was denied the opportunity back in 1947, of investigating these facts.

The government has the right to get the true identity of the person so that it can make the investigation at the time and determine at the time whether or not the person has the necessary requirements. So we submit that the government standard properly balances those two interests.

Secondly, --

QUESTION: (Inaudible).

MR. KLONOFF: -- our standard, Justice White, is what you suggested in your dissenting opinion in Fedorenko that there would have been an investigation that might have led to the discovery of disqualifying facts and that that has to be proven by clear, convincing and unequivocal evidence.

And I would say in that regard, in addition to the Attorney General opinion in 1961 endorsing that standard, virtually every court both before and after this Court's Chaunt decision has endorsed that standard. The only exception is a split decision by the 10th Circuit and some dictum by the 9th Circuit.

But, beyond that the endorsement for this point of view has been sweeping and virtually unanimous by the courts who recognize exactly what I'm arguing today this difficult problem where an individual lies about critical information, who he is, and then tries to come in later after he's gotten his citizenship through the lie and then said, well United States you can't show precisely what an investigation would have uncovered 40 years ago. That's the problem with the very standard that the petitioner urges.

QUESTION: Yeah, I know a lit of people who misrepresent their birth date and I really don't consider that they're misrepresenting who they are. That's a little --

MR. KLONOFF: There's a question, Justice Scalia, and you've raised it there that one of the requirements is that the statement be willful and that it be willful in a sense of trying to deceive the immigration officials, so somebody who's lying for vanity purposes or whatever --

QUESTION: It's a different point and it seems to me quite hyperbolic to say that someone who gives the wrong birth date, or for that matter a wrong town of birth is misrepresenting who they are.

MR. KLONOFF: Well, we think so. Let's take --

QUESTION: (Inaudible).

MR. KLONOFF: I don't know how common Mr. Kungys name is at the time, but let's take the name John Smith. If somebody lies about their date and place of birth it is absolutely meaningless to give a name John Smith.

You just cannot do any investigation of who that person is, so we would submit that the date and place of birth are crucial. Congress specified them. The very beginning of the statute that we have quoted as an Appendix to our brief.

Congress listed only a few items that they required of all applicants and date and place of birth were among them. And the courts, as we've said, have given specific attention to the identity issue. The second point in terms of --

QUESTION: (Inaudible) asking us to overrule or cut back on Chaunt?

MR. KLONOFF: Not at all. We submit that the test we're proposing is a faithful interpretation of Chaunt and in fact, the cases that we've cited post Chaunt are relying on the literal language of the second Chaunt prong.

So, we submit that and this is entirely consistent with Justice Douglas' concern in his opinion that visa and citizenship applicants tell the truth. That truthfulness is a fundamental part of the immigration system and that a standard that gives no attention to that whatsoever is one that really is unworkable.

Now related to my first point in terms of the incentive to lie is the fact that once there is a lie, either at the visa or the citizenship stage you have deprived the government officials of the opportunity to do their job properly.

They simply cannot investigate an individual's bonafides if the standard that's endorsed is one that essentially says, which is what petitioner's standard would do, that you can give a completely false identity, because that would be the effect of endorsing the "would-would" standard.

You could give a completely false identify because no one could say 40 years later that had I given a true name, or had I given a true date of birth those facts per se would have disqualified me.

QUESTION: Why don't you use the standard that's used for the criminal statute 1001? I mean, apart from the fact that you have one vote here for "would-might" which I don't denigrate. I mean, that's --

MR. KLONOFF: Well, let me say, the "would-might" standard --

QUESTION: -- a good reason but why don't you use the one that we have a lot of case law on?

MR. KLONOFF: Well we've suggested --

QUESTION: The Federal Perjury Statute?

MR. KLONOFF: We've suggested that as an analogy, in fact, the would-might standard is more stringent than the standard in the criminal context. The criminal context only requires that there be a tendency to influence the decision-maker.

The government standard is requiring that there would have been an investigation, not only that there might have been or that there would be a tendency to. And, in fact, one case, the Sixth Circuit Kassab decision specifically endorsed a "might-might" standard which is more comparable to the criminal law.

But, let me just say we would have no objection whatsoever if this Court endorsed as the standard of materiality in this context, the standard that's applied in the perjury context and perhaps that would be a way to rid some of the confusion of this area by having a two prong standard --

QUESTION: Does the --

MR. KLONOFF: -- that would be

QUESTION: Does the record in this case tell us who made the investigations in Germany at the time? Say that, you say there would have been an investigation triggered. What would the counsel's office have done?

MR. KLONOFF: Well, the Vice Counsel testified, both he himself would investigate plus he had employees who would do it. They would interview people at displaced persons camp, they would go to the police records of the individual's prior residence, they would look at prior applications.

QUESTION: How big a staff did he have?

MR. KLONOFF: These were not large staffs and it's critical to note that these people relied on the truthfulness of the applicants. There simply were not the resources to go out and conduct a massive investigation for each applicant. And that again is a further reason --

QUESTION: But basically, the Vice Counsel himself would of gone out and checked the records and so forth?

MR. KLONOFF: He would have done some, or he had staff who assisted him in that regard. And it was sort of an ad hoc decision-making process. There's not a lot in the record on the specifics.

QUESTION: And what about it, with reference to Judge Goldberg's testimony? If he had thought an investigation was necessary what would the naturalization judge do?

MR. KLONOFF: He testified quite clearly that if he had found a discrepancy --

QUESTION: Right.

MR. KLONOFF: -- in biographical information he would have referred the case to the immigration officials for deportation proceedings. So the naturalization examiner wouldn't personally be involved, but the investigation would be a government investigation into possible prosecution of a deportation.

QUESTION: I see.

MR. KLONOFF: So that's how it would work in that context. Let me just make a couple of other points and both of these, by the way, are fully supported by a standard of materiality that endorses the criminal standard.

The standard the petitioner proposes is more onerous than in any other area of the law, criminal, civil, I would refer the Court to the TSC case for example, the tort examples. In no other context is there a requirement that you prove an ultimate disqualifying fact.

Now since Congress did not define materiality in the statute, principals of statutory construction would suggest that you would go to well-established meanings of the term such as the criminal context. You would not start from scratch and propose a definition that has absolutely no support anywhere in the law.

QUESTION: Mr. Klonoff, before you get off, one thing's troubling me about, let's assume that Finger's testimony is properly evaluated by the Court of Appeals and assume that we can't find any regulation, which you haven't been able to, that says it's only victims of Nazi persecution who would have been admitted on a visa.

MR. KLONOFF: Yes.

QUESTION: Now you say, nonetheless, it would have been a relevant misrepresentation if Finger, on his own was using that as a criteria. That would be enough to render the misrepresentation which would have shown that he was not a victim of Nazi persecution relevant --

MR. KLONOFF: If this were a well-established, --

QUESTION: Yeah.

MR. KLONOFF: -- if this were a legitimate policy --

QUESTION: Well-established. Suppose it were well-established that Finger was giving preference to blue-eyed people and was not allowing any brown-eyed people in and he writes down blue eyes on the thing.

MR. KLONOFF: Well that's not, I mean, that is not a legitimate policy carrying out the intent of the regulation. Our point is --

QUESTION: Nor was Fingers if the regulation doesn't say there's a preference or the victim is not --

MR. KLONOFF: The emphasis in the regulation, I would ask that --

QUESTION: What do you do with my hypothetical? Clearly not a relevant misrepresentation, is it?

MR. KLONOFF: That's not an effort to further the effort the concern of Congress and the President to try to get the neediest people visas. What Finger is talking about is a sub-category where you identify the most needy people and you say that these people who have been victims of persecution are going to be the one, the Court has to remember there were many, many people applying for visas. Way more than were eligible under the quota system and therefore, a decision on Meade had to be made.

And we would simply ask therefore, that the judgment of the Court of Appeals be affirmed.

QUESTION: Thank you, Mr. Klonoff. Mr. Williamson you have three minutes remaining.

REBUTTAL ARGUMENT OF DONALD J. WILLIAMSON ON BEHALF OF PETITIONER

MR. WILLIAMSON: Yes, thank you, Your Honor.

Justice Scalia, Page 53 of the Joint Appendix contains the initial entry records under the so-called Third Reich. The translation of that is on Page 56 of Block Form indicating the date of birth which is the same on the internal passport, Kaunas which is the same as the internal passport, the only differential is Terage, which is a county. It's a misstatement of the county. So I accurately stated that in fact he did give the same misinformation to the Nazi authorities.

Insofar as the statement that in 1948, that the courts in connection with whether or not to justify the refusal of a visa or the exclusion upon entry did not hold for materiality. I suggest that the government read Pages 25 and 26 of our brief.

The Second Circuit in Iorio v. Day, a 1929 case which was used as the predicate for a ruling of the attorney general says, it is true that the realtor was bound to tell the truth in his application. If what he suppressed was irrelevant to his admission, the mere suppression would not debar him.

But, I would like to speak to the test because this case gives an excellent illustration as to why the tests should be certitude tests to be consistent with Schneiderman. After the Soviet deposition of the sister-in-law was taken, she indicated that she was unaware that her sister was married.

Based upon that testimony, the government amended the complaint to allege that he misrepresented the fact of his marriage.

Now it is possible that the petitioner was not married in Lithuania. It is also possible that he was married in Lithuania. So a possibility test under those circumstances, if that was sufficient to rely on that evidence would have in effect, disqualified this individual under their test, the so-called identity, marriage being a factor and I agree with you when it didn't change his name, he didn't change his identity.

Now, as to probability Mrs. Kungys testified that she was married in Kaunas on August 24, 1943. She submits as part of the INS file of the government, her internal passport, it had stamped on it the marriage bureau of Kaunas with a number.

The government did not insist before they amended the complaint to allege a misrepresentation of a marriage that the simple fact of requiring the Soviets to produce the marriage register of that date, she gave them the date and the number.

What the Soviets did is typical of their subjugation of their concept of justice to the interests of the state. They waited until after the date that the case was scheduled for trial. It was then re-scheduled. The Soviets, seven weeks later produced the marriage register of Kaunas, same number, same date that Mrs. Kungys said.

So, in effect, what you have here is when you require a certitude test on the government, what you are doing is saying government do your job. Conduct an effective investigation because if you rely upon Soviet evidence, which is unreliable, you're going to get half truths. But if you insist upon certitude and you do your investigation accurately --

QUESTION: Mr. Williamson, your time has expired.

The case is submitted.

(Whereupon, at 11:57 a.m., oral argument in the above-entitled case was submitted).

Print this transcript Transcript: 

ORAL ARGUMENT OF DONALD J. WILLIAMSON ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: The oral argument first this morning in No. 86-228, Kungys against the United States.

Mr. Williamson, you may proceed whenever you are ready.

Mr. Williamson: Mr. Chief Justice, and may it please the Court:

This is the reargument of a denaturalization case involving whether a final judgment of a federal court granting naturalized citizen to an immigrant can be vacated on the grounds he misrepresented in his immigration papers that he was two years old, and that he was born in a city instead of a town.

At the time the Petitioner was granted his citizenship in 1954, Section 340 A of the Immigration and Nationality Act of 1952, which is 8 USC 1451(a), provided, in pertinent part, shall be the duty of the United States attorneys to institute proceedings for the purposes of revoking and setting aside the order admitting such person to citizenship, and cancelling a Certificate of Naturalization on the ground that such order and Certificate of Naturalization were procured by concealment of a material fact or by willful misrepresentation.

The District Court expressly found that the Petitioner, had he given the correct information on his visa application form, his visa nevertheless would have been issued, and that there is nothing to suggest that his having been born on September 21, 1915, in Reistru, would have had any effect whatsoever.

The Court of Appeals agreed with that finding, and, indeed, it did not declare that any of the findings of the District Court were clearly erroneous as was required by Rule 52(a).

Nevertheless, the Court of Appeals reversed the judgment of the District Court and by construing the alternative approach to materiality in Chaunt, as permitting proof that disclosure of Petitioner's true date and town of birth would have resulted in an investigation notwithstanding the fact that the District Court expressly found that the government's own proofs indicated that no investigation would have resulted.

Nevertheless, the Court of Appeals, in effect, drew an inference in favor of the government that the disclosure of the truth of his correct date and place of birth would have led to residency records in Germany, and from those residency records you could draw a further inference that he was not a victim of Nazi persecution.

A former vice counsel, but one who had not processed the Petitioner's papers, had testified that that was an ultimate disqualifying fact.

In other words, if you are not a victim of Nazi persecution, you are not eligible for a nonpreference "immigration visa".

However, as indicated by the statement at oral argument by the government, there was no such statute.

There was no such regulation, and therefore there is no ultimate fact.

So the posture of the case at this point is that the government has no proof of any ultimate disqualifying fact.

And their argument, therefore, is that Chaunt does not require proof of an ultimate disqualifying fact.

And their further argument is that any misrepresentation, irrespective of materiality, is sufficient to have constituted a legal procurement, because the words 1451 by an amendment in 1965, which was seven years after Mr. Kungys or the Petitioner was granted his citizenship.

The short argument to the fact that a nonmaterial misrepresentation cannot be the basis for denaturalization is that the statute, Section 1451, explicitly requires that the misrepresentation or concealment be as to a material fact.

Unidentified Justice: Well, Mr. Williamson, you say in effect then that the part of 1451 that talks about misrepresentation covers the waterfront so far as denaturalization is concerned, and that you can't bring other forms of misrepresentation in under the head of illegally procured?

Mr. Williamson: Yes, what I argue, and in fact what I think is reasonable clear is that when Congress sets forth that the basis for denaturalization when it comes explicitly to a misrepresentation must, in effect, be procured by a concealment of a material fact, that is clear language; clear in the sense that it certainly the requirement of materiality is clear.

To argue, in effect, because there are nonmisrepresentational forms of conduct that can in effect constitute illegal procurement irrespective of whether there is a misrepresentation, i.e., such as if a person has contracted a dangerously contagious disease and is unaware of, they could still be denaturalized; i.e., if a person engaged in rape and if there was no such question asking whether you, in effect, had engaged in rape; or whether or not you had aided the illegal entry of other aliens, those are the examples which were used in the legislative history in 1961 to indicate the reason for the change.

But that doesn't mean in point of fact that when you attempt to use illegal procurement as the arguments made by the government in the case of Fedorenko, and there is an interesting statement in the brief on page 18 of solicitor general, whether Petitioner's citizenship is considered to be illegally procured, or procured by misrepresentation, the primary basis for its revocation, Petitioner's false representations concerning his whereabouts during World War II.

Accordingly, we agree that Petitioner's wartime activities, specifically his guard duty at Triblinka must be shown to be material facts within the meaning of 8 USC 1451(a).

That was the case... the government argued that in Fedorenko in its brief.

This is the brief of the United States in that case.

And, indeed, that particular portion of the brief, I believe, was the basis when Justice Marshall speaking for the majority in Fedorenko indicated that notwithstanding the fact that the petitioner there had misrepresented his country of birth on his visa, but that did not end the judicial inquiry.

Justice Marshall speaking for the majority court said,

"We agree with the government that that does not end the judicial inquiry, because the test is still materiality. "

Indeed, the question there was still materiality as to whether or not the status of being a concentration camp guard, in effect, was a predicate for denaturalization.

And, indeed, that particular case was an illegal procurement case.

Unidentified Justice: Mr. Williamson.

Mr. Williamson: Yes.

Unidentified Justice: Even if you are correct that there is a requirement of materiality, ordinarily a material fact is one that is important to the decision-maker, rather than one that is necessarily decisive.

Isn't there a difference there?

You seem to be arguing that materiality means it has to be a fact that is decisive rather than something merely important to making the decision.

Mr. Williamson: Yes.

I think it's an academic discussion on behalf of the client I represent, because I don't think the misrepresentations that he made in his petition for naturalization or his visa application were even important.

However--

Unidentified Justice: Well, certainly that's debatable.

Mr. Williamson: --Yes.

However, not important in the sense that it obviously could not have affected the decisions to whether the visa, and it certainly doesn't affect the ability to grant the citizenship.

But I would also state--

Unidentified Justice: But it might be important to the decision whether to grant it.

Mr. Williamson: --Well, once the decision is made to grant the visa, the vice counsel loses his jurisdiction.

At that point in time its a judicial determination, and the determination of what is important or not important goes to the question of whether, (a) he was eligible in the first instance, or (b) whether he was in the categories that are excludable.

And this traces all the way back, and it's very interesting because I traced the history as to whether or not even with respect to a visa, it had to be a material fact and one which is beyond important, i.e., that is really is decisive because that is the alternative dictionary meaning.

Having great consequences is one of the definitions which I saw in a dictionary.

Unidentified Justice: Well, what if we think it means just important to the decision?

Mr. Williamson: Well, then I would argue, in effect, that in light of the nature of the misrepresentations which were made in preceding cases, that none of these misrepresentations rise to the dignity of those particular cases.

Unidentified Justice: Mr. Williamson, suppose these lies were told expressly with the intention of getting a benefit under the immigration laws?

Mr. Williamson: Well--

Unidentified Justice: Would that not be a material misrepresentation?

And if he succeeded and he got the visa because the lies he told were believed, and whoever the immigration officer was consequently accommodated him and gave him the visa.

Mr. Williamson: --Well, let me say this.

If in fact it was not a false perception, in other words, if indeed he perceived that these lies were significant, then merely the question of intent--

Unidentified Justice: I am just wondering whether or not he did.

If in fact they were told, for the purpose of getting something from the immigration officer, and he succeeded, wouldn't that end the inquiry?

Mr. Williamson: --Well, according to Judge Learned Hand, it would not.

The cases trace back all the way to the case of United States v. Iorio Day.

There is a case in which the petitioner there, or the person who sought to obtain the visa, denied that he had ever been in prison.

Obviously, he perceived that denying that he had ever been in prison was significant and that his perception would naturally be that that would influence the vice counsel.

What Judge Learned Hand said in Iorio v. Day was it's true that the relator is bound to tell the truth.

But if what he suppressed was irrelevant to his admission, its mere suppression would not debar him.

So the first question comes down to at most whether the facts, had he disclosed them, would have been enough to justify the refusal of a visa or exclusion upon entry.

The appellant did not suppress from the vice counsel facts which would have justified in refusing a visa had he disclosed it.

So that in other words--

Unidentified Justice: Was this speaking of 1101, or was it 1451?

Mr. Williamson: --No, this was speaking in terms of what is the predicate necessary to deport an alien.

In that particular instance, what Judge Learned Hand was addressing himself was the 1924 Act.

The 1924 Act is the same act under which this Petitioner was brought in.

And he was not addressing himself to 1001.

What he was addressing himself to was, in effect, whether or not this particular immigrant could be, or alien could be deported because his visa wasn't valid.

Unidentified Justice: Well, he may be quite correct in what he says there as far as 1451(a) is concerned.

Mr. Williamson: Right.

Unidentified Justice: I thought we were talking here about a materiality requirement for 1101(f)(6).

Mr. Williamson: Well, 1101(f)(6), in my judgment, does not come into play, because, in effect, 1101(f)(6) is simply the means of determining whether or not a person is qualified for naturalization.

And this court as far back as Scheiderman has always distinguished between naturalization and denaturalization.

Here, in effect, we're not talking about the burden that the applicant has to bear in order to be naturalized.

We're talking about the burden that the government has to bear in order to vacate a judgment of a court.

And that's why, of course, the evidence has to be clear, convincing, unequivocable.

Unidentified Justice: Shifting the burden doesn't... shifting the burden of who has to prove it doesn't change what has to be proven.

Mr. Williamson: No, I think that the distinction covers more than shifting of the burden.

The distinction goes to the very nature of the right that is at stake.

And I believe that, as Justice Blackman indicated in his concurring opinion in the Fedorenko case, that once we discuss the question of citizenship already granted, in order to vacate it the only section of the statute which applies is 1451(a).

But in any event, each of the courts that have addressed this issue--

Unidentified Justice: Textually, how do you get to that?

Mr. Williamson: --Well, textually the way that I get to it is that 1451 states the requirements for denaturalization.

And it states that it must be procured by the misrepresentation of a material fact.

When it comes to illegal procurement, as Justice Brennan indicated in the Costello case, the reason for the inclusion of the language of misrepresentation of material fact was to distinguish between intrinsic fraud and extrinsic fraud, but clearly it was not the situation given a lucid definition of misrepresentation.

There is nothing in the legislative history to suggest that.

There is nothing in the legislative history to suggest the incorporation of 1101, or 1101(f)(6).

So that I would suggest that the distinction goes beyond the mere burden of proof.

But in any event, getting back to Justice O'Connor's question if I may, I think that it's more than simply the mere dictionary meaning.

When we look at Black's Law Dictionary, Black's Law Dictionary addresses I think a more pertinent aspect of it, because it goes to the question of material fact in the context of the law, in the context of a contract, and the contracts of insurance policies, in the context of a pleading, in a context, for example, of a Motion for Summary Judgment.

In those particular instances the cause and effect relationship of materiality, it's without which the particular contract wouldn't have been granted.

The insurance policy wouldn't have issued.

So in this particular instance, it has to be more than simply important.

It is a but for requirement, and I believe the language of the statute indicates that pretty clearly, because it doesn't simply say material fact in the abstract.

It says procured by, not capable of being procured by, not could have been procured by, but procured by... very strong word.

And again as indicated by Justice Douglas, it was referred to in the other opinions, fraud and misrepresentations are strong words.

Strong words require a vigorous burden of proof.

They require a vigorous application before we vacate a judgment of a court.

And what the government is seeking is a soft definition of a harsh term.

So to merely say it's important, I would suggest, does not do justice to the rights that are at stake here.

These consequences of denaturalization are far more serious than fine and imprisonment.

And I don't mean to trivialize fine and imprisonment, and I don't mean to trivialize the fact of lying.

Obviously, lying is not to be encouraged.

On the other hand, anytime that a person "lies" it doesn't necessarily mean that under any of the statutes the mere fact of lying results in consequences.

Unidentified Justice: I don't know.

This was all about 1947, was it?

Mr. Williamson: Yes.

Unidentified Justice: Most of these visas were?

Mr. Williamson: Yes.

Unidentified Justice: And we had a great many immigration officers, I gather, handling these applications, did we not?

Mr. Williamson: There was clearly a policy that because of the pressures in Europe, because of so many displaced persons that were there, that there was all efforts were to be made to bring these immigrants in.

Unidentified Justice: Well, suppose, however, there were an administrative practice at that time that if anyone admitted that he had lied, as Kungys did, that automatically he would be denied a visa.

Mr. Williamson: But there wasn't any such administrative practice, and indeed--

Unidentified Justice: I'm just asking what if there had been.

Mr. Williamson: --Well, if there had been, then the question really would be, in effect, is would that have been totally--

Unidentified Justice: In other words, if he didn't confess that he had lied, that as soon as they detected that he had he would automatically be denied as a matter of administrative practice.

Mr. Williamson: --Lying as to anything?

Unidentified Justice: Yes.

Mr. Williamson: If he lied as to anything, then I would suggest that the vice counsel is not the final determinant.

The final determinant at that time would have been the counsel, attorney counsel for the State Department.

And in turn, that would be reviewed by a court.

When those situations at that time were reviewed by the court such as in the Tepper case, Judge Irving Kaufman indicated in that case the question is not whether or not the vice counsel would have decided that he lied, and therefore would have in effect denied the visa.

The question is whether or not he had done so on a ground specifically excludable by law.

And the fact of the matter is that the regulation then in effect specifically stated that the grounds of exclusion are those grounds which are specifically listed in the application for the visa, and any law is not set forth there.

What is set forth in the visa application refers to misrepresentation as to a material fact.

The test has always been a material fact.

Indeed, getting back to Justice Scalia's question about whether or not you could bring in other statutes.

The fact of the matter is that the courts have never held that any lie even in those statutes.

They have, in effect, engrafted a judge made interpretation of even 1001, but notwithstanding the language "any misstatement".

It means, in effect, any material misstatement, so it excludes innocuous lies.

In addition to which the courts have even accepted the question of the exculpatory no, because, for example, on this visa application what you had was the specific question, 18(c) I believe it was, have you ever in effect made any misrepresentations in order to gain benefits under the act.

The simple answer is no.

The courts have engrafted into similar language under 1001, the defense that's not covered by it because otherwise in effect you would be violating the privilege against self-incrimination and other particular policy considerations.

So we have always looked to the question of materiality.

Unidentified Justice: Well, Mr. Williamson, don't we have to go through... isn't it necessary to go through the same sort of an inquiry at the naturalization stage?

Something might be immaterial at the visa stage and quite material at the naturalization stage.

Mr. Williamson: Yes, I agree that you must go through the inquiry at the naturalization stage.

But, again, for example by virtue... in Fedorenko.

In Fedorenko, Fedorenko indicated to the examiner at the time that he had lied with respect to his country of birth.

And the examiner at that time said that's of no concern to us.

So in point of fact, it really comes down to whether at that stage, and again it's not any lie, but whether or not they could have legitimately denied naturalization.

And the question would be the significance of a lie.

Let me give an illustration.

Suppose, for example, we had a--

Unidentified Justice: Well, at the naturalization stage if he had said, yes, I lied on my visa application.

Mr. Williamson: --Yes.

Unidentified Justice: Then there would have been an inquiry what did you lie about.

Mr. Williamson: Correct.

Unidentified Justice: And you would have gotten into where he lived and what he did at the critical time, wouldn't you?

Mr. Williamson: Well, what you have gotten into is the truth.

And the question is what is the consequence of the truth, and that's what we have said that the test was in Chaunt.

Unidentified Justice: Well, living in this particular... living in this particular city might have... at that time might have meant something different to the person presiding over the naturalization than--

Mr. Williamson: Not in this case.

Unidentified Justice: --over the visa.

Mr. Williamson: Not in this case.

The District Court specifically held, relying upon the evidence of the government of vice counsel, the residence in Kedainiai was of no effect whatsoever.

Unidentified Justice: I know that's at the visa stage.

Mr. Williamson: Even at--

Unidentified Justice: That's at the visa stage, and the reason is that probably nobody knew there were any events that had happened at that time.

Mr. Williamson: --There was no knowledge that any events happened in 1954 when he was granted his citizenship either.

Unidentified Justice: Well, everybody knew that.

Everybody knew what had gone on at that time.

Mr. Williamson: In 1954, there was no indication with respect to Kedainiai that had any significance whatsoever.

But let me turn around the other way.

What he said was--

Unidentified Justice: Well, at least there was no... nobody expressly expressed that in the District Court or the Court of Appeals.

Mr. Williamson: --The reason for it is--

Unidentified Justice: Did they?

Mr. Williamson: --They did not address whether in 1954, but what said in effect no investigation would have resulted as a result of the disclosure of the truth.

But let me put it the other way.

If in point of fact there was concern about Lithuania at that time, he indicated he was born in Kaunas.

A greater number atrocities occurred in Kaunas than elsewhere.

And let me also say that his application was processed at the same time as his wife.

She indicated she lived in Kedainiai.

In addition to which we have other people who testified, such as Juozas, who indicated they lived in Kedainiai.

Kedainiai was of no significant to the grant of the petitions for naturalization either.

Unidentified Justice: Well, that's your version of the record.

Mr. Williamson: Well, I don't know of any other version, with all due respect.

Unidentified Justice: Well, it isn't a version of any court that I know of.

Mr. Williamson: Well, the Court of Appeals was fairly strong in its language.

Unidentified Justice: Well, the Court of Appeals ruled against you.

Mr. Williamson: Well, not on that particular issue.

Unidentified Justice: Exactly, but on the materiality ground they did.

Mr. Williamson: Well, when it came to that particular issue, they indicated that there was no evidence that the government had knowledge.

In any event, I don't have the exact--

Unidentified Justice: That's all right.

Go ahead, go ahead.

Mr. Williamson: --page of it, but I would suggest, Mr. Justice, that indeed the Third Circuit Court of Appeals on that particular issue said with respect to the residence in Kedainiai, we agree with the District Court that that finding was not material.

Unidentified Justice: But it didn't address at the naturalization stage either.

Mr. Williamson: They addressed it, I believe, in its totality when they had to come to the conclusion that the disclosure of the truth of the residence in Kedainiai would not have been material.

It would not have been material in the context of the case either to the visa application or to the grant of citizenship since those are both of the issues.

And, indeed, since we're attempting to fall back the naturalization representations back at the visa stage to go to the question of illegal procurement, I would suggest to you that that finding by the District Court and, in effect, the indication not only by the Court of Appeals that it wasn't clearly erroneous, but that they agreed with it indicted that my version of it I think is supported by the record.

I have noticed that my light is on.

I would like to reserve the balance of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Williamson.

We will hear now from you, Mr. Klonoff.

ORAL ARGUMENT OF ROBERT H. KLONOFF ON BEHALF OF THE RESPONDENT

Mr. Klonoff: Mr. Chief Justice, and may it please the Court:

The denaturalization laws are quite clear.

There are two separate grounds for denaturalizing someone.

Number one, a material misrepresentation ground, and number two, illegal procurement.

And Mr. Williamson has never responded to our textual argument that illegal procurement is a separate and distinct form of denaturalization.

Unidentified Justice: But, Mr. Klonoff, ordinarily when you are construing a statute such as 1451, the section we're talking about, where it covers quite elaborately the ground of misrepresentation as the basis for denaturalization, and then something else is there, illegal procurement, you would not think that illegal procurement embraced also misrepresentation which is elaborately covered in virtually the next sentence.

Mr. Klonoff: Well, I have two answers for that, Mr. Chief Justice.

First of all, as we have explained, the requirements for false testimony under illegal procurement are quite different than the requirements for material misrepresentation.

And there are category of cases in which the government could prove illegal procurement, but not material misrepresentation and vice-versa, and I'll get to that in a minute.

The second point, however, is that that is simply not the way the legislative history suggests Congress was focusing on this.

The illegal procurement legislative history in 1961 reveals that Congress' purpose was to bring in all of the 1101(f).

Now Mr. Williamson says that this court should pick and choose.

But Congress said that 1101(f) defines who does not have good moral character, and Congress made clear in 1961 that individuals who lacked good moral character could be denaturalized under an illegal procurement theory.

Now if it were correct that Congress did not want to bring--

Unidentified Justice: Simply because they lacked it, they had to do nothing but lack it at the time?

I mean, let's suppose they made no misrepresentations concerning the fact that they had been convicted of a murder which is one of the bases of bad moral character.

Mr. Klonoff: --Well, textually that's a different... the statute 1101(f)(6) does not refer to false testimony about the other subsections of (f).

It talks about any false testimony given for the purpose of obtaining immigration benefits.

Unidentified Justice: No, but let me finish my question.

The fact is that this individual had been convicted of a murder, didn't misrepresent anything about it.

It is later found that he had been convicted of a murder.

And you say that the illegally procured language in 1451 then enables the government to back, because it made a mistake when he was naturalized, to denaturalize him.

Mr. Klonoff: That's correct.

And in fact that--

Unidentified Justice: Any mistake in the original naturalization can form the basis for denaturalization under 1451.

Mr. Klonoff: --Well, not any mistake.

It has to... if somebody was naturalized when they did not meet the requirements for naturalization can be denaturalized.

This court has been clear on that in cases going back to Ginsberg in which--

Unidentified Justice: You're really hanging on a thin string if you have been naturalized now, aren't you?

Does that mean... I wanted to follow up on that if you don't mind, Judge Scalia.

Does that mean a habitual drunkenness is a basis for not being of good moral character?

That would me, I understand then, that the government would always be open to review the past history of any naturalized citizen to find if at the time he was naturalized he was in fact sufficiently alcoholic to fit into that category.

Mr. Klonoff: --We think that's exactly what Congress intended.

We would urge the court to examine the 1961 legislative history.

Unidentified Justice: And any other ground that would show a lack of good moral character at the time remains a permanent form of jeopardy for the naturalized citizen.

Mr. Klonoff: That's what we believe Congress intended.

Congress in fact pointed out that, for example, Mr.--

Unidentified Justice: Well, in that situation... let me take it one step further.

Supposing a person realizes that although he inadvertently did disclose some disqualifying circumstance after he has been here for 20 years living a blameless life, he realizes that there is this blot on his record.

Is there any way he can correct the record?

Can he come in and say, look, I made this mistake.

I didn't do any... you know, is there any way he can protect himself from that risk by making appropriate disclosures 20 years later?

Mr. Klonoff: --Certainly one ground would be in a form of prosecutorial discretion not to bring a denaturalization--

Unidentified Justice: Well, but I thought the statute was mandatory on 1451(a).

Mr. Klonoff: --Well, I was going to follow up with that.

That is... the statute does seem to suggest that the U.S. Attorney shall bring--

Unidentified Justice: It says so in so many words.

Mr. Klonoff: --We think that when Congress in '61 restored illegal procurement, they were talking about individuals who got in who had committed murders, for example, but were never asked, did you commit a murder.

And Congress was frustrated at the fact that in those cases where somebody never qualified for naturalization the government was powerless to act.

It must be remembered we're only talking about a category of people who were not entitled to citizenship in the first place.

We're not talking about bringing--

Unidentified Justice: Yes, but don't you think illegally procured means something different from received without proper qualification?

Don't you think there is some more active connotation to illegally procured?

Mr. Klonoff: --That's not the view that this court has taken.

I was going back, for example, to the Ginsberg case where the court said that where somebody didn't meet the qualification of citizen because a proceeding was held in chambers rather than open court, the court said this person lacked a statutory requirement for citizenship, and therefore it was illegally procured.

All I can suggest is that the court examine the legislative history in '61, because we would submit it's fully consistent with the position we are taking.

Unidentified Justice: Let me ask one other question.

I hadn't reexamined the Fedorenko case, but your opponent seemed to say you shifted your position.

Is that correct?

Mr. Klonoff: We did not, Mr. Justice Stevens.

In counsel's reading of our brief, he failed to note an important fact.

Namely, the government did not argue 1101(f)(6) to this court in Fedorenko.

We were not addressing that issue at all.

Unidentified Justice: But what he read seemed to suggest that you in effect conceded that it would not apply.

Mr. Klonoff: We conceded--

Unidentified Justice: Or at least impose any higher standard.

Mr. Klonoff: --We conceded with respect to Section 10 of the Displaced Persons Act that there was a materiality requirement as to that statute.

And as we explained in our supplemental brief, we think the purposes of the Displaced Persons Act were quite different than the purposes of good moral character statute, 1101(f)(6), and that it was appropriate, we felt, for a court to read materiality into Section 10.

We in no way addressed whether there was a materiality requirement under 1101(f)(6).

Unidentified Justice: So any position you advanced in Fedorenko would still be your position.

Mr. Klonoff: Absolutely.

We have no--

Unidentified Justice: We can rely on that.

Mr. Klonoff: --question, number one, as to the material misrepresentation aspect.

The statute speaks in terms of concealment of a material fact or willful misrepresentation.

We don't retrace our concession that the misrepresentation must be material also.

That's under the material misrep part of 1451(a).

We similarly have conceded, and still do that there is a materiality requirement under Section 10 of the DP Act.

But this is quite a bit different for two reasons.

Number one, neither one of those statutes in any way addressed someone's good moral character.

And as we have explained, someone who deliberately lies under oath for the purpose of obtaining immigration benefits, we submit, does not possess good moral character.

So the purposes are quite different, we would submit.

And, therefore--

Unidentified Justice: So if you deliberately lie under oath for the purpose of obtaining naturalization, you do not possess good moral character even though the misrepresentation may not be material.

Mr. Klonoff: --That's our position, and on the other hand the government has to show that the person's intent was to obtain immigration benefits.

And as we have explained, that's a difficult burden.

And ordinarily if a lie has absolutely nothing to do with any of the issues of immigration, it's going to be exceedingly difficult for the government to show that the person's intent in lying was to obtain immigration benefits.

Unidentified Justice: Indeed, there is not a whole lot of difference between that and a materiality requirement, is there?

Mr. Klonoff: Well, there is a difference.

Unidentified Justice: You have to assume that the person is stupid; that is that although he thinks this fact does not have any significant bearing upon whether he will be naturalized or not, he nonetheless lies about it.

Mr. Klonoff: I don't think you have to... you have to assume that someone is misinformed.

Let me just give an example that may illustrate the point.

An individual is applying for a government benefit, let's say naturalization or a visa, and his wife is present.

And he is under the mistaken impression that age is relevant to the decision that the government is making.

And so in order to obtain the government benefit he deliberately lies about his age.

Now we think that's the type of case that fits into the good moral character provision.

The person with the intent to--

Unidentified Justice: --no materiality?

Mr. Klonoff: --Well, if he is mistaken that age has nothing to do... I'm assuming no materiality just for purposes of the hypothetical.

That person clearly lacks good moral character, we would submit, regardless of whether age is material.

Unidentified Justice: Do you think a young man who lies about his age to get into the Marines never could have good moral character?

Mr. Klonoff: I'm not sure.

It really would--

Unidentified Justice: Under your argument, I would think he's conclusively presumed to have bad moral character.

Mr. Klonoff: --We think that Congress made that conclusive presumption.

This isn't something that we're inventing.

We are construing the statutory language.

Let me just round the situation out.

Let's say that age is fundamentally important to the decision that's being made, but the person doesn't know this.

He lies about his age not because he's trying to obtain immigration benefit, but because his wife is sitting there next to him and throughout their marriage he has lied about his age and he doesn't want to tell the truth.

Now, that type of lie is willful.

He clearly was lying deliberately, but he wasn't lying to obtain immigration benefits.

That is where the material misrep provision fits in.

He has made a material misrepresentation and it's willful, but he doesn't fit within the good moral character provisions.

So we would submit that the two statutes really do reach out to different types of people, and that that is precisely what Congress intended.

Unidentified Justice: Mr. Klonoff, did the District Court in this case ever determine the purpose for which the Petitioner lied?

Mr. Klonoff: He did, Justice O'Connor.

And counsel--

Unidentified Justice: Was it determined that it was for the purpose of obtaining immigration benefits?

Mr. Klonoff: --He did.

I would refer the court to page 120(a) of Petitioner's appendix.

The District Court, in describing the visa documents, stated that the documents were false in that they stated the defendant had not previously given false testimony to obtain benefits under the Immigration and Naturalization Laws.

Unidentified Justice: You are reading from 120(a) of?

Mr. Klonoff: 120(a) of the Petitioner's appendix.

The paragraph beginning, 3, 1953> ["].

It's the second half of the second sentence.

The court necessarily had to have found in making the observation that Petitioner lied on his visa papers that the reason for his lying was to obtain immigration benefits.

Otherwise, he would have been telling the truth.

Unidentified Justice: Well, now you are relying on the sentence that says,

"The documents were false as to defendant's date and place of birth. "

Mr. Klonoff: Right.

Unidentified Justice: "And in that stated that defendant had not previously given false testimony to obtain benefits under the Immigration and Naturalization Laws. "

Mr. Klonoff: That's correct.

If the District Court believed that the purpose of the lie was not to obtain immigration benefit, he could not have made that finding.

Unidentified Justice: But it's a rather opaque finding, isn't it?

Mr. Klonoff: Well, it isn't--

Unidentified Justice: It's certainly not explicit.

Mr. Klonoff: --Well, we think that if... I mean, there is no other explanation for that statement other than that the court concluded that the purpose of the lies was for immigration benefits.

It's consistent, by the way, with the rest of the District Court's opinion, because the District Court concluded that the government didn't qualify in 1101(f)(6) grounds for one reason; namely, his conclusion that 1101(f)(6) required materiality.

Had the District Court felt that the statements were not given for the purpose of obtaining immigration benefits, one would have assumed, given this thorough opinion, that the District Court would have rejected the government's argument not only because of the materiality point, but also because of the purpose of the lies.

We think that when that statement is read in conjunction with the court's finding that the government didn't qualify under 1101(f)(6) only because of the materiality which the court read into the statute, we think it is reasonably clear.

I would agree that the court did not state affirmatively, I hereby find, but we think that that's--

Unidentified Justice: Well, not only that.

We don't really know from... it's not only secondhanded sort, but it's also that we don't know what test the court was using with respect to the language for the purpose of obtaining benefits.

Mr. Klonoff: --Well, Justice Scalia--

Unidentified Justice: We don't know that that court, that the District Court had in mind the same theory about the two kinds of lies about age that you have just given us.

Mr. Klonoff: --Well, Judge Scalia, certainly the court would not require before the government could rely on a District Court finding of fact that the District Court couple it with an exhaustive legal analysis.

I mean, of course we don't know exactly--

Unidentified Justice: No, all I require is that I know what the District Court is talking about, and I don't really know what the District Court means here by false testimony to obtain benefits.

I just have to take on faith that it means what you say that phrase means, which doesn't... you know, that's not an obvious meaning.

Mr. Klonoff: --Well, certainly there is absolutely nothing in the opinion to suggest to the contrary, we would submit.

I mean, the District Court certainly didn't say that that was not its purpose.

The District Court wondered why somebody would lie about these things, but we think that this is the closest thing there is to a finding, but let me follow up on that because this relates to points we made both in our opening and our supplemental briefs.

However that intent requirement is proven, it would be difficult for the government to prove it in a situation where you have one lie that's inconsequential, that doesn't relate to issues of immigration or naturalization.

However, when you have a pattern of lies, it becomes inescapable that the person's intent was to obtain immigration benefits.

Here, for example, what's quite powerful, we would submit, is that the individual not only lied at the visa stage but at the naturalization stage.

He has given a number of explanations.

He was trying to evade the Germans, trying to avoid conscription.

Those explanations are meaningless at the naturalization stage.

There was absolutely no reason for someone to perpetuate those lies many years later when the person was safely in the United States.

So we would submit that that pattern of false testimony at every purpose extending, by the way, to testimony in 1975 before an immigration--

Unidentified Justice: But at the naturalization stage could he have acknowledged that he had lied in order to obtain benefits under the Act; namely, a visa and so forth, and still been eligible for citizenship?

Mr. Klonoff: --Well, we doubt that he would have acknowledged--

Unidentified Justice: No, but if he had acknowledged, would he have been eligible for citizenship?

Mr. Klonoff: --He may not have.

He probably would not have.

Unidentified Justice: He would not have under your theory.

Mr. Klonoff: He probably would not have.

There are many, many--

Unidentified Justice: Then how do you... I mean, if once he has made a lie, he's hooked.

He's got to stick to his story or he will never get in.

Isn't that--

Mr. Klonoff: --Well, that's certainly not a reason for this court to sanction it.

Unidentified Justice: --No, no, I'm not.

But I don't see how the second lie really compounds the first.

You can rely just... you are emphasizing how bad he was by saying he didn't straighten it out at the naturalization stage.

But he couldn't have.

Mr. Klonoff: Well, because it goes to his intent.

If his real intent was not to obtain immigration benefits, then he would have straightened it out.

The question that I was asked had to do with his intent, and we would submit that if his intent was to obtain immigration benefits, he would perpetuate the lie.

If his lie was given for another reason, then he could straighten it out and he would be entitled--

Unidentified Justice: Well, maybe the lie was given for another reason.

Maybe the lie was given for another reason, but he knew that if he didn't make it he wouldn't get in, because he can't.

Once he has lied... having committed one lie, he's through.

Mr. Klonoff: --I would respectfully--

Unidentified Justice: And one lie for the purpose of getting some benefit.

He think he will be better off if he describes himself as born in a different city, and that's not true.

Mr. Klonoff: --With all respect, Justice Stevens, I would submit if somebody had an intent other than to obtain immigration benefits, and he explained that to the naturalization examiner, here is why I lied, it was not to obtain immigration benefits.

It was because I afraid of being conscripted.

He would still be eligible for citizenship.

Unidentified Justice: No, no, no.

I'm assuming with you the first lie was when he thought he had to misrepresent his age; it would be advantageous to him.

He's dead.

Mr. Klonoff: That's correct, that as he would be if he was able to get into the country having successfully concealed that he had been convicted of a murder, or one of the other good moral character requirements.

We don't think there is anything anomalous about that.

In fact, we would submit that if there is any anomaly there, it's for Congress to correct.

These kinds of extreme--

Unidentified Justice: Do we take it that one has an intent to procure it falsely if one merely has an intent to procure what he believes he is entitled to more promptly than would otherwise occur; is that an intent to procure it falsely?

I mean, what he says here is that he lied about his age and his place of birth because some of the documents that he had that had been prepared by the Germans had those things on them.

And in order to facilitate the process, he was worried if he came up with different places it would take a lot longer.

But in his mind he didn't think it would make any difference where he was born really, or whether was a couple of years younger or older.

He just didn't want the process to take longer than it otherwise would.

Now is that intending to procure it falsely, or simply to facilitate the proper procurement of it.

Mr. Klonoff: --Let me respond to that in two ways.

First of all, in the facts of this case that explanation doesn't withstand scrutiny.

He had in his possession documents that bore his true date and place of birth.

So he did not... that explanation is simply without merit.

Unidentified Justice: Is there a finding to that effect that that couldn't be the basis of--

Mr. Klonoff: The District Court--

Unidentified Justice: --I mean it depends on what the District Court means by--

Mr. Klonoff: --He never argued--

Unidentified Justice: --to obtain benefits which you and I agree it never said what it means by it.

Mr. Klonoff: --That argument was made for the first time in this court at oral argument.

There is no finding.

His argument throughout this case is that the reason he lied was to avoid conscription in the German Army.

Unidentified Justice: Do we know that the District Court did not mean that by to obtain benefits when it said had not previously given false testimony to obtain benefits under the immigration... do we know that that's not what the District Court was talking about?

Mr. Klonoff: Well, as I said, we don't know exactly what the District Court was talking about.

It isn't as clear as it could have been in the sense of elaboration.

We submit that it's sufficient for a finding, but let me respond further to your question.

Somebody who lies in order to get ahead of the pack or to push the process along absolutely fits within what the government is arguing here, because the court has to remember, this is a quota system, and the quota is going to run out.

And if somebody lies to get ahead of the pack, he's going to get a visa that otherwise would have gone to someone else who went through the honest process of getting correct identification documents.

So we would submit that someone like that also lacks good moral character if his purpose is to jump ahead of the pack and get immigration benefits.

If I could--

Unidentified Justice: You know, there are a lot of people that came to this country who were given different names at Ellis Island.

The immigration officer couldn't pronounce the name, and they said, well, Sam, is that okay?

Yeah, that's my name Sam.

Now his name wasn't Sam.

Did he give that name to procure the visa, or to procure admission to the United States, falsely to procure?

Mr. Klonoff: --That's a factual question in each case, we would submit.

Unidentified Justice: He just wants to facilitate the thing.

The guy will never learn how to spell Salvator, or whatever the name is, and the officer... it's happened very often.

Mr. Klonoff: It has to be a question of fact.

If the person had adopted a false I.D. many, many years earlier for a totally different purpose--

Unidentified Justice: No, no, there is no evil purpose except to facilitate getting in.

I don't want to be here, you know, trying to straighten out what the proper spelling of my name is.

He says Sam, what do I care; Sam is fine.

Mr. Klonoff: --If he adopted a false identity to facilitate getting in and jumped ahead of the pack--

Unidentified Justice: Do you consider that facilitating getting in?

Mr. Klonoff: --We would.

Unidentified Justice: Just to facilitate... to make it quicker so the fellow doesn't have to figure out how to spell Salvator.

Mr. Klonoff: That would be our position.

That's consistent with the statutory--

Unidentified Justice: Wow, that's a tough position, and I think there are probably a lot of people that are excludable.

Mr. Klonoff: --Well, let me say that whether or not there are people excludable under what Congress defined, that shouldn't necessarily bear on the statutory construction issue.

It's for Congress to decide whether or not that is a correct policy of excluding people who made those kinds of laws.

I would refer this court to two recent cases in the deportation context: Hector and Phinpathya.

Phinpathya, it was available to the alien to make all kinds of absurd arguments that a brief absence from the United States would totally disqualify somebody for claiming suspension of deportation.

And this court held correctly that the plain language of the suspension statute required that any absence broke that continuity of physical presence, and that it was for Congress to change the law.

Unidentified Justice: But here you are not dealing with anything quite as clear as the plain language.

What you are talking about is the phrase 1451 in 1961.

And you have to go back to make legislative history arguments to say that you don't construe 1451, as amended, the way you normally would.

Mr. Klonoff: Well, we don't think that... our argument does not depend on legislative history.

We think that Congress restoring the words "illegal procurement" is quite clear that somebody who lacked a qualification for citizenship could be denaturalized.

That's the text of the statute.

You go on and look at the '61 legislative history, and that fully corroborates the government.

We would submit that in an analysis of statutory construction the burden should have been on the petitioner to come in and show through legislative history that Congress meant something else.

The legislative history bolsters our argument, but it is no way essential to it.

We think that the text is dispositive.

Let me move briefly if I could to the issue of materiality unless there are any more questions on the 1105(f)(6) point.

We would agree with the observation made by Justice O'Connor, and in fact that's central to our argument of materiality.

That in no other area of the law, and Petitioner has cited none, has materiality been construed to require a dispositive fact.

Now the government has argued for a criminal standard of materiality.

It has also construed Chaunt as a would/might test as I have explained previously the last time the case was argued, and as we have explained at length in our brief.

But whether or not the court goes with the would/might test, or the criminal test, or some other test, for example, the TSC test, the important point that the government is making here is that this court should not require proof of a dispositive fact.

In that regard, let me just note counsel's heavy reliance on one case, the Day case from 1929, the Second Circuit case.

It has nothing to do with the issues here for several reasons.

It wasn't a construction of 1451, and furthermore, I would urge the court to look at Landon v. Clark which we cite in our brief, the First Circuit case from 1956, which traces the law subsequent to Day, and indicates that even in the Second Circuit the court had backed away from any requirement of a dispositive fact.

And we would submit the law is quite clear as we have laid out in our brief, both before and after Chaunt, that the courts have not required a dispositive fact in order to establish materiality.

We would submit that there are several reasons why this court should reject the argument of the dispositive fact.

First of all, our interpretation is more consistent with the text of the statute.

If you were to require a dispositive fact under the material misrepresentation clause, that would essentially render that ground for denaturalization meaningless, because the government would have demonstrated illegal procurement in every case, and it would be entirely irrelevant whether the person lied or told the truth.

Unidentified Justice: But, of course, that's only true if we buy that part of your first argument.

I mean, we have not yet read illegal procurement quite as broadly as that, I think.

Mr. Klonoff: Well, we would submit that in Ginsberg, even in Fedorenko itself, the court has read illegal procurement to mean somebody who obtained citizenship without possessing the statutory qualifications.

If the court is going to retreat from those cases, then it's an open issue.

But we would submit that Fedorenko traces the law from Ginsberg to that decision.

We would submit that that is the law; that illegal procurement dealt with someone who didn't possess the requirements.

But that is true, our argument depends on that link.

Secondly, and I'll only briefly touch upon this, a standard that requires a dispositive fact gives the alien every incentive to lie, as Justice White pointed out in his dissenting opinion in Fedorenko.

The burden of proof shifts at the denaturalization stage, and it will be more difficult for the government later on to uncover disqualifying facts.

Related to that point--

Unidentified Justice: Of course, it is an incentive, it is perjury, isn't it if it... and so the incentive is to be willing to commit a crime?

Mr. Klonoff: --Well, except that a person who is trying to get over here, a person in another country who is faced with the situation where if he's denied a visa it's essentially unreviewable, he's not thinking about whether he is going to be prosecuted for perjury or not.

Unidentified Justice: Well, at the naturalization stage though.

Mr. Klonoff: The naturalization stage, there is some--

Unidentified Justice: Some deterrent.

Mr. Klonoff: --There is some deterrent with the perjury law, we would acknowledge, but we don't think it's a sufficient deterrent where somebody is seeking something like naturalization and where the fact it's being hidden is really buried in his past, and one could safely hope that he could get past the short statute of limitations for a perjury conviction.

Related to those points, we would submit that if individuals are given a license to lie, it makes it very, very difficult for the immigration officials to do their job properly.

As the material is revealed, there are very few vice counsels to process these applications.

They don't have big staffs to go out and investigate every case, and they rely very heavily on the truthfulness of the applicants.

And if they are going to--

Unidentified Justice: Mr. Klonoff, excuse me for interrupting, but your time... I do want one piece of information that I don't know about which you may not get to.

Do we know in this crucial phrase of the District Court saying that the defendant... his documents were false in that they stated that defendant had not previously given false testimony to obtain benefits, we have already gone around on whether it knew what it meant by "to obtain benefits".

Did it know what it meant by "false testimony"?

Do we know that the District Court was interpreting the phrase "false testimony" as you concede in your brief it should be interpreted to refer only to oral testimony, and not to statements in writing, oral testimony under oath?

Mr. Klonoff: --We don't know that.

Unidentified Justice: We don't know that.

Mr. Klonoff: We don't know that.

Let me say further though, we have argued throughout, and we are quite clear in our supplemental brief that testimony has its limited definition.

Petitioner has never quarreled with the government that he had given testimony.

That's quite clear from the joint appendix, page 157, for example, dealing with the naturalization stage.

The testimony of the naturalization examiner is that the preliminary examiner would check off each question that was asked of the applicant under oath.

So we would submit that on that issue of whether there is testimony, there really hasn't been any dispute.

Plus, the record is overwhelming.

We don't know, and again I would submit that I know of no case in which a court has required before it will accept the finding of fact that a district judge lay out in detail its understanding of testimony.

We think testimony is a well established term in the case law.

We think the District Court's finding was supported by the evidence, and consequently, the court should not require that the district judge have given an analysis of what it means by testimony.

We don't think a remand on that issue would be necessary, particularly since there really has been no dispute on that point.

Finally, let me make this point in terms of the standard of proof of materiality.

Much of Petitioner's argument has rested on the theory that somehow if the court adopts that standard it's going to lead to unfairness in the immigration process that Justice Scalia's question seemed to references that people are going to be denaturalized for inconsequential lies, and that somehow there is going to be an unfairness in the system.

Let me point out, however, that since 1952 when the misrepresentation clause was enacted, 1451(a), the courts have almost unanimously interpreted materiality the way the government has urged, and after Chaunt, with the exception of the Tenth Circuit, they have continued to do so.

So the test of materiality that the government has urged has been the law for over three decades, and we would submit--

Unidentified Justice: It's not materiality that we are worried about; illegally procured.

It's the 1101 provision that is drawn into 1451 by the phrase "illegally procured" that's the problem.

Mr. Klonoff: --Well, certainly... I see my time is up.

Thank you.

Chief Justice William H. Rehnquist: You can answer the question.

Mr. Klonoff: If the court is not worried about the government's test of materiality, that's all the better from our position.

Counsel was worried in his briefs, and I was responding to the concerns he had raised.

Chief Justice William H. Rehnquist: Thank you, Mr. Klonoff.

Mr. Williamson, you have four minutes remaining.

ORAL ARGUMENT BY DONALD J. WILLIAMSON ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Williamson: Thank you, Your Honor.

Addressing the question which Justice Stevens raised as to whether or not I had overstated what the government had conceded in the brief in Fedorenko, I was interpreting Section 10 of the Displaced Persons Act.

The key language which they say implied in that brief a coterminous requirement of materiality in illegal procurement was the phrase "to gain admission".

I submit that there is no difference in kind between the phrase 1101(f)(6).

So although the government wasn't addressing 1106 at that time, it was because of the fact that they recognized that the displaced person argument to gain admission equaled material.

It follows a fortiori that that would also be material.

Unidentified Justice: What force do you think that a statement in a brief by a former solicitor general years ago has on this case?

Mr. Williamson: I think that you gave it that force, Mr. Justice Marshall, when you speak for the majority in Fedorenko said, we agree with the government that Section 10 requires materiality.

Unidentified Justice: But then if you had written the opinion.

Mr. Williamson: Yes, I think it's the opinion of the Supreme Court that gave it that force.

Unidentified Justice: I write them.

I don't explain them.

[Laughter]

Mr. Williamson: I would also argue that a fortiori, the reason the government didn't raise the argument at that time because they did not perceive that it would be persuasive.

But getting back to Justice Scalia's question as to whether or not the court made a finding when it simply was, in effect, addressing itself to the question of the check mark on to gain admission, I think that the court in context was simply indicating that the same misrepresentation was repeated in the petition, because that was contained on page 120 of the Appendix C.

But if you go back to page 118, the court makes a finding.

It says,

"I cannot understand what benefit defendant expected to achieve by placing his birth in Kaunas rather than Reistru, by dating his birth October 4, 1913 rather than September 21, 1915. "

And the finding that had defendant given the correct information, his visa would have nevertheless been issued.

Later on in the opinion at page 123, the court simply reasserts that the government asserts that he lacked the prerequisite of good moral character because he gave false testimony for purpose of gaining benefits under the Act.

That's not a finding of fact.

That's a conclusion of law.

It's an erroneous conclusion of law, because of the fact of the requirement materiality as perceived in Fedorenko.

In any event, there is no testimony presented by the government at the District Court level as to what the Petitioner's intent was at the time he made the misrepresentation.

There is, however, testimony as to why the Petitioner in German gave the documents that he did.

That is to say, why did he make everything consistent with his internal Lithuanian passport, and everything consistent with, and I'd point to the joint appendix, and the joint appendix is on page 29, Exhibit 1(s).

That's the Lithuanian ex-political prison's certificate dated June 18, 1946, and the significance of that certificate was explained in the testimony at the District Court level that the purpose why the Lithuanian committee in the camps were giving these certificates is because the Soviet representatives on the committee were screening applicants for purposes of expatriation to the Soviet Union, or taking them out of the camps.

And this further exhibit on page 69, Exhibit 53(d), in which it confirms that.

This is the letter of the War Department, Special Staff, Civil Division, and it refers to,

"an intensive screening program initiated in mid-June 1946. "

the exact time that he received that certification.

So obviously he'd want to be in a position of having to indicate to a Soviet representative in the camp that his internal Lithuanian passport--

Chief Justice William H. Rehnquist: Your time has expired, Mr. Williamson.

The case is submitted.