Transcript

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).