Transcript

IN THE SUPREME COURT OF THE UNITED STATES

JUOZAS KUNGYS, Petitioner v. UNITED STATES

No. 86-228

October 13, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m.

APPEARANCES:

DONALD J. WILLIAMSON, ESQ., Westwood, New Jersey; on behalf of the Petitioner.

ROBERT H. KLONOFF, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

CHIEF JUSTICE 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.

ORAL ARGUMENT OF DONALD J. WILLIAMSON ON BEHALF OF PETITIONER

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 "illegally procured" were reinstated in the Section 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.

QUESTION: 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.

QUESTION: Mr. Williamson.

MR. WILLIAMSON: Yes.

QUESTION: 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 --

QUESTION: 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 --

QUESTION: 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.

QUESTION: 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.

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

MR. WILLIAMSON: Well --

QUESTION: 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 --

QUESTION: 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 --

QUESTION: 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.

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

MR. WILLIAMSON: Right.

QUESTION: 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.

QUESTION: 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 --

QUESTION: 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.

QUESTION: I don't know. This was all about 1947, was it?

MR. WILLIAMSON: Yes.

QUESTION: Most of these visas were?

MR. WILLIAMSON: Yes.

QUESTION: 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.

QUESTION: 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 --

QUESTION: 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 --

QUESTION: 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?

QUESTION: 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.

QUESTION: 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 --

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

MR. WILLIAMSON: Yes.

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

MR. WILLIAMSON: Correct.

QUESTION: 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.

QUESTION: 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.

QUESTION: -- 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.

QUESTION: I know that's at the visa stage.

MR. WILLIAMSON: Even at --

QUESTION: 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.

QUESTION: 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 --

QUESTION: 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 --

QUESTION: 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.

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

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

QUESTION: 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.

QUESTION: Well, the Court of Appeals ruled against you.

MR. WILLIAMSON: Well, not on that particular issue.

QUESTION: 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 -

QUESTION: 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.

QUESTION: 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 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.

QUESTION: 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 --

QUESTION: 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.

QUESTION: 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 --

QUESTION: 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 --

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

QUESTION: 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.

QUESTION: 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. --

QUESTION: 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 --

QUESTION: 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 --

QUESTION: 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 --

QUESTION: 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.

QUESTION: 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.

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

MR. KLONOFF: We conceded --

QUESTION: 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).

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

MR. KLONOFF: Absolutely. We have no --

QUESTION: 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 --

QUESTION: 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.

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

MR. KLONOFF: Well, there is a difference.

QUESTION: 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 --

QUESTION: -- 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.

QUESTION: 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 --

QUESTION: 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.

QUESTION: 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 --

QUESTION: 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.

QUESTION: You are reading from 120(a) of?

MR. KLONOFF: 120(a) of the Petitioner's appendix. The paragraph beginning, "On October 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.

QUESTION: 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.

QUESTION: "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.

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

MR. KLONOFF: Well, it isn't --

QUESTION: 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 --

QUESTION: 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 --

QUESTION: 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 --

QUESTION: 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 --

QUESTION: 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 --

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

MR. KLONOFF: He may not have. He probably would not have.

QUESTION: He would not have under your theory.

MR. KLONOFF: He probably would not have. There are many, many --

QUESTION: 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.

QUESTION: 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 --

QUESTION: 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 --

QUESTION: 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.

QUESTION: 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 --

QUESTION: 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.

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

MR. KLONOFF: The District Court --

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

MR. KLONOFF: He never argued --

QUESTION: -- 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.

QUESTION: 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 --

QUESTION: 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.

QUESTION: 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 --

QUESTION: 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 --

QUESTION: Do you consider that facilitating getting in?

MR. KLONOFF: We would.

QUESTION: 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 --

QUESTION: 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.

QUESTION: But here you are not dealing with anything quite as clear as the plain language. What you are talking about is the phrase "illegal procurement" inserted into Section 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.

QUESTION: 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 --

QUESTION: 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.

QUESTION: Well, at the naturalization stage though.

MR. KLONOFF: The naturalization stage, there is some --

QUESTION: 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 --

QUESTION: 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.

QUESTION: 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 --

QUESTION: 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 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 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 "to gain admission" and to "gain a benefit" in the language referred to in Section 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.

QUESTION: 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.

QUESTION: 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.

QUESTION: 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 REHNQUIST: Your time has expired, Mr. Williamson.

The case is submitted.

(Whereupon, at 10:58 o'clock a.m., the case in the above-entitled matter was submitted.)