JUOZAS KUNGYS, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-228

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Third Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Questions presented
   Statement
   Summary of argument
   Argument:
      I. Petitioner's misrepresentations were material
         under 8 U.S.C. 1451(a)
         A. A misrepresentation is material if disclosure
            of the truth would have led to an investigation
            that might have uncovered facts warranting
            denial of a visa or citizenship
         B. Petitioner's misrepresentations were material
            under any standard
            1. Discovery of the true facts would have
               led to an investigation
            2. The investigation would likely have led
               to the discovery of disqualifying facts
               a. The investigation would have resulted
                  in the denial of petitioner's visa
                  application because of falsified
                  information concerning his identity
               b. The investigation probably would
                  have led to the discovery of facts
                  resulting in the denial of petitioner's
                  visa or petition for naturalization on
                  the ground that petitioner was not a
                  victim of persecution
               c. The investigation probably would
                  have led to the denial of the petition
                  for naturalization on the ground that
                  petitioner was not a person of good
                  moral character
               d. The investigation might have led to
                  the discovery of facts showing
                  petitioner's role in the atrocities
                  at Kedainiai
      II. In light of his pattern of repeated misrepresentations,
          petitioner's citizenship was illegally procured,
          since he was not a person of good moral
          character
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-37a) is reported
at 793 F.2d 516.  The opinion of the district court (Pet. App.
39a-137a) is reported at 571 F. Supp. 1104.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 38a) was entered on
June 20, 1986.  The petition for a writ of certiorari was filed on
August 9, 1986, and was granted by this Court on November 10, 1986.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   The pertinent statutory provisions are set out in an appendix to
this brief.

                          QUESTIONS PRESENTED

   1. Whether petitioner's submission, in his visa and citizenship
applications, of false information concerning his date of birth, place
of birth, wartime residence, and wartime occupations, constituted a
"material" misrepresentation warranting his denaturalization under 8
U.S.C. 1451(a).

   2. Whether petitioner's deliberate and repeated misrepresentations
and concealments, made under oath and in the form of forged documents,
rendered his citizenship "illegally procured" under 8 U.S.C.
1101(f)(6), 1427(a)(3), and 1451(a) on the ground that he lacked the
requisite good moral character.

                               STATEMENT

   In 1981, the United States filed an action, pursuant to Section
340(a) of the Immigration and Nationality Act of 1952 (the 1952 Act),
8 U.S.C. 1451(a), to revoke petitioner's citizenship on the ground
that it was illegally procured and that it was procured on the basis
of material misrepresentations.  Specifically, the United States
alleged in its amended complaint that (1) in July and August 1941,
petitioner had participated in the murder of more than 2000 unarmed
civilians by forcing the victims into a mass grave and shooting them;
and (2) in connection with his visa and citizenship applications,
petitioner had provided false testimony and documents concerning his
date and place of birth, his place of residence during 1940-1942, and
his wartime occupation.  Pet. App. 3a, 40a-45a;  J.A. 4-25.  /1/
Following a nonjury trial, the district court ruled that the
government had failed to establish any ground for revoking
petitioner's citizenship (Pet. App. 39a-137a).  /2/ The court of
appeals reversed and remanded for denaturalization proceedings.
Without reaching the question whether petitioner had participated in
the mass murders, it held that petitioner's citizenship was procured
on the basis of material misrepresentations.  Id. at 1a-37a.  /3/

   1. Petitioner, a native of Lithuania, obtained a non-preference
quota visa in March 1948 from the American consulate in Stuttgart,
Germany.  He emigrated to the United States later that year and was
naturalized in 1954.  Pet. App. 3a, 120a-121a.

   The evidence at trial revealed that petitioner was born on
September 21, 1915, in Reistru Village in the Taurage Region of
Lithuania.  He entered military service in 1938 and later graduated
from cadet school.  On December 1, 1939, after having attained the
rank of junior lieutenant, he left military service and began working
at the Bank of Lithuania in Kedainiai.  While living in Kedainiai,
petitioner joined the Sauliai (Riflemen's Association), a paramilitary
organization.  Pet. App. 109a, 110a;  J.A. 138-139;  C.A. App.
991-992.

   On June 22, 1941, Nazi Germany invaded the Soviet Union, and German
troops soon reached Lithuania.  The Third Reich promptly began
identifying, confining, and ultimately murdering all Jews in the
occupied areas except for a small number who were used for forced
labor.  German commando units knows as the SS Einsatzkommandos were
responsible for exterminating the Jews and other groups deemed
inimical to the Third Reich.  For the most part, however, the SS
Einsatzkommandos were not able to carry out all of the arrests and
executions by themselves.  Accordingly, they relied heavily on local
residents to assist in carrying out those activities.  Pet. App.
48a-64a.

   Two mass killings occurred in Kedainiai in the summer of 1941 while
petitioner was a resident there.  The first occurred on July 23, 1941.
 Using the SS Einsatzkommandos, the Nazis recruited local
collaborators who had been members of the Sauliai or who had been in
the Lithuanian military.  Approximately 125 former Communists or
Soviet government officials were arrested, taken in trucks to a nearby
forest, and forced into a large pit where they were shot.  The second
mass murder occurred on August 28, 1941, and involved the Jewish
residents of the town.  Having already been forced to live in a ghetto
and observe severe restrictions, they were taken to a horse breeding
farm on the outskirts of town and confined there.  They were then led
to a huge pit, were ordered to undress, and were shot.  Official
German records reveal that more than 2000 Jewish men, women, and
children were murdered on August 28.  Pet. App. 4a, 62a, 70a-73a,
111a.  /4/

   In October 1941, petitioner left Kedainiai and moved to Kaunas, the
capital of Lithuania (Pet. App. 111a).  According to information he
later provided to the German authorities, petitioner worked in Kaunas
as an industrial manager, although he maintained at trial (and the
district court so found) that his statements to the Germans describing
his position were somewhat exaggerated (id. at 117a;  Lodging Tr.
866).  Petitioner and his wife moved again in October 1944 (at the
time the German armed forces retreated from the Soviet Union), this
time to Tuebingen, in Nazi Germany.  Petitioner was given permission
by the Nazi regime to live there without special restrictions.  His
residence permit was granted on February 13, 1945, prior to the end of
the war.  In addition, his wife applied to the Nazi authorities for
permission to practice dentistry.  /5/ Petitioner and his wife
remained in the Tuebingen region until Allied Forces occupied the area
in May 1945.  Pet. App. 7a, 115a-117a;  J.A. 57, 59-60.

   2.a. In January 1947, petitioner and his wife applied in Stuttgart
for a nonpreference quota immigration visa under the Immigration Act
of 1924 (the 1924 Act), ch. 190, 43 Stat. 153 et seq.  /6/ When
petitioner applied for his visa, he did not submit any of the
documents in his possession or available to him that showed his true
date and place of birth.  See note 6, supra.  Instead, he submitted
four falsified documents:  (1) a police record from Fellbach,
Stuttgart, listing a false date and place of birth (Oct. 4, 1913,
Kaunas, Lithuania) (J.A. 37);  (2) a record from the Vatican
representative in Germany listing the same false date and place of
birth (J.A. 38);  (3) a Lithuanian identity card, also listing the
false date and place of birth (J.A. 28-29);  and (4) a certificate
from the Lithuanian Ex-Political Prisoners Nazi Victims Central
Committee, which similarly listed the false date and place of birth
and which indicated that petitioner had been "persecuted by the
gestapo" (J.A. 29).  Petitioner's visa application (J.A. 30-34),
excuted under oath, also listed a false date and place of birth (J.A.
30).  Additionally, his visa application indicated that from 1940 to
1942 he resided in Telsiai, Lithuania (ibid.);  /7/ petitioner did not
reveal that he had lived in Kedainiai from 1939 through October 1941.
Finally, petitioner's visa application listed his occupation as dental
technician (ibid.);  it did not reveal his position as a bank employee
and the supervisor of a factory during the Nazi occupation of
Lithuania.  Pet. App. 111a, 118a-119a.

   In addition to the visa application and the falsified documents,
petitioner also executed under oath an Alien's Registration Foreign
Service Form (J.A. 34-37).  Like his other materials, that form
specified a false date and place of birth (J.A. 35) and omitted
reference to any work activity other than "dental technician, farmer,
and forestry work" (ibid.).

   On the basis of the information he submitted, petitioner was issued
a visa on March 4, 1948.  He entered the United States on April 29,
1948, upon presentation of his visa.  Pet. App. 120a.

   b. At trial, the government offered evidence concerning visa
application procedures and the significance of false statements made
by visa applicants.  Specifically, former Ambassador Seymour Finger,
who had been a vice consul in Stuttgart at the time petitioner
submitted his application there, /8/ testified that a visa applicant
would first fill out preliminary forms that were reviewed by local
employees.  If those forms were in order, the applicant would then
complete a visa application and an alien registration form and would
submit identifying documents, such as his birth certificate.  The
entire file would then be reviewed by a vice consul, and if everything
appeared to be in order, an interview would be scheduled with the
applicant.  During the interview, the vice consul would focus on the
applicant's biographical information, looking particularly at his
residence and occupation between 1939 and 1945.  As part of the
procedure, the applicant was required to swear under oath to the truth
of all of the statements in the application.  The applicant was
permitted to make corrections to the forms during the interview, but
only to correct oversights and not to alter deliberate or willful
falsifications of significant items.  Pet. App. 30a, 117a-118a;  J.A.
187-194.

   Finger testified that during his tenure at Stuttgart, if a person
lied under oath concerning his date and place of birth, wartime
occupation, or wartime residence, the visa would be routinely denied
(J.A. 200-201).  Similarly, a visa would be denied if the applicant
submitted falsified documents and withheld documents containing true
information (J.A. 200), or if he lied about his date and place of
birth to United States immigration officials and had, prior to that
time, given truthful information to the German authorities (J.A. 202).
 Likewise, the applicant's visa would be denied if the applicant
falsely claimed to have been persecuted by the Gestapo (J.A. 201).
Finger also testified that during the relevant period the policy at
Stuttgart was to grant visas only to persons who had close relatives
in the United States and to those who had been victims of Nazi
persecution.  Pet. App. 29a-32a;  J.A. 187, 197, 213-214, 217-218.

   3.a. In May 1948, one month after arriving in the United States,
petitioner submitted an application for a certificate of arrival and a
declaration of intent to become a United States citizen (J.A. 38-41).
In that application, petitioner again represented falsely that he was
born on October 4, 1913, in Kaunas, and he again concealed his wartime
employment (J.A. 40).  Moreover, he certified that the assertions in
his application were "true to the best of (his) knowledge and belief"
(J.A. 41).

   In October 1953, petitioner applied for naturalization.  At that
time, he executed under oath a detailed application form (J.A. 42-48).
 /9/ In the application, petitioner denied having ever "given false
testimony to obtain benefits under the immigration or naturalization
laws" (J.A. 45).  He continued to maintain that he was born October 4,
1913, in Kaunas (ibid.).  /10/ Also in connection with his citizenship
application, petitioner executed under oath a Petition for
Naturalization (J.A. 48-50).  In that petition, he similarly gave a
false date and place of birth (J.A. 48).  He also swore that he was a
person of good moral character (J.A. 49).  As part of the application
process, petitioner was first interviewed under oath by the
preliminary naturalization examiner;  each question in the application
was reviewed with petitioner, and he verified each answer (J.A.
145-150, 157-158).  A designated naturalization examiner also
questioned petitioner under oath (J.A. 152-153, 160-162).  In February
1954, the district court granted petitioner's application for
citizenship.  Pet. App. 36a, 117a-118a, 120a-121a.

   b. Julius Goldberg, now a retired immigration judge, was the
designated examiner who processed petitioner's naturalization
application.  /11/ He testified in a deposition admitted at trial that
he invariably asked applicants to reaffirm under oath their prior
statements given to the preliminary examiner.  He also testified that
one task of an examiner was to compare the information in a
naturalization application with the documents and information provided
by the alien when he applied for a visa.  If a discrepancy appeared,
the naturalization application could be rejected outright or suspended
pending an investigation by immigration authorities to determine
deportability.  If an applicant willfully gave false testimony to
immigration and naturalization officials, Goldberg testified, his
application could be rejected on the ground that he did not possess
the requisite good moral character.  Pet. App. 36a;  J.A. 160-162,
165, 170-171.

   4. In 1975, an investigator from the Immigration and Naturalization
Service (INS) questioned petitioner under oath regarding his
activities prior to entering into the United States (J.A. 70-79).
Petitioner falsely stated to the investigator that he had been born on
October 4, 1913, in Kaunas (J.A. 72).  Contrary to his visa
application (J.A. 30), he admitted that he had lived in Kedainiai
between 1939 and 1941, but he claimed that he left Kedainiai in June
1941 (J.A. 73).  Subsequently, in April 1977, while his case was still
under investigation by the INS, petitioner submitted to immigration
officials an employment certificate that purported to evidence his
employment in Kaunas as of July 6, 1941 (GX A13;  C.A. Exh. 38).  /12/

   In 1981, petitioner was again interviewed under oath, this time by
attorneys from the Department of Justice (J.A. 79-137).  Petitioner
continued to maintain that he left Kedainiai before the atrocities in
July and August 1941 and that he commenced employment in Kaunas on
July 6, 1941 (J.A. 85).  Petitioner indicated (J.A. 115) that he could
not recall why he had omitted any reference to his residence in
Kedainiai when applying for his visa.  Throughout most of the
questioning, he maintained that he had been born on October 4, 1913,
in Kaunas (J.A. 80-81, 104, 112- 129-130).  When shown documents
evidencing his true date and place of birth, he claimed that those
documents were Russian forgeries (J.A. 104-105).  At the end of the
interview, however, petitioner changed his story and admitted that the
supposed forgeries were indeed correct (J.A. 131-132).  Contrary to
his representations to United States government officials for over
three decades, petitioner admitted that he had indeed been born on
September 21, 1915, in Reistru, Lithuania (ibid.).  He claimed that he
had altered his date and place of birth because he had been a member
of the Lithuanian underground during the war and was being hunted by
the Germans at the time he moved to Germany (ibid.).  He did not
explain why this deception was still necessary in 1953, when he was in
the United States applying for citizenship.  Nor did he explain why he
had given his true name to the Nazis (see J.A. 59-60) or why he had
given his true name, date, and place of birth to the Germans after the
end of the war (see J.A. 60-61, 63-68).

   On September 12, 1981, petitioner sent a letter to a Lithuanian
emigre requesting his help in giving testimony (J.A. 138).  In that
letter, petitioner stated that he had lived in Kedainiai "from
December 1939 until October 1941" -- a period that included both the
July 1941 and August 1941 mass murders -- and that he had been a
member of the Riflemen's Association (ibid.).

   The government also obtained a letter signed by petitioner
indicating that he was resigning from his job at the bank in Kedainiai
effective October 16, 1941 (J.A. 51;  Lodging Tr. 670-671).  The
letter, dated October 10, 1941, further indicated that petitioner was
"(r)esiding at No. 3 Radvila St.(,) Kedainiai" (J.A. 51).

   In the course of discovery in this case, petitioner responded to
one of the government's interrogatories by stating that he had
obtained false Lithuanian identification (J.A. 28-29) prior to
entering the United States in order to avoid conscription into the
Germany Army (Pet. App. 113a).  Petitioner did not reiterate his prior
claim that he had been hunted by the Gestapo because of his
participation in the Lithuanian underground.

   At trial, petitioner admitted that he was in fact born in 1915 in
Reistru, and he acknowledged that his visa and naturalization
applications were false in those respects (Lodging Tr. 617-618,
620-623).  When confronted with a series of official records from
Germany predating his visa application that showed his correct date
and place of birth, petitioner testified that he could not explain why
those records had the correct information (id. at 859-860).
Petitioner also continued to maintain that he had left Kedainiai only
a few days after the German invasion and that he was not living in
Kedainiai between July and October 1941 (id. at 756, 771).  When
petitioner was confronted with the letter he had written to the
Lithuania emigre indicating that he lived in Kedainiai until October
1941, he testified that the letter was simply "expanding too much" on
that particular point (id. at 761-762).  When shown the letter he had
signed indicating that he had resigned from his job in Kedainiai
effective October 16, 1941, petitioner simply denied that he was
living or working at Kedainiai in October of that year (id. at
671-673).  He had no explanation for the discrepancy except to
indicate that "maybe" he was on a leave of absence (C.A. App. 873).

   5. On September 28, 1983, the district court issued a written
decision holding that the government had not established any basis for
revoking petitioner's citizenship (Pet. App. 39a-137a).  The court
ruled, first, that petitioner's citizenship had not been "illegally
procured" within the meaning of 8 U.S.C 1451(a) (Pet. App. 122a-124a).
 Having excluded the government's evidence of the atrocities at
Kedainiai to the extent that the evidence implicated petitioner, the
court found that the government had failed to prove by clear and
convincing evidence that petitioner had participated in those
atrocities (id. at 122a-123a).  /13/ Second, the district court ruled
that petitioner's citizenship was not "procured by concealment of a
material fact or by willful misrepresentation" within the meaning of 8
U.S.C. 1451(a).  Notwithstanding petitioner's repeated false
statements in the course of obtaining his citizenship, the court held
that those false statements were not "material" as that term was
construed in Chaunt v. United States, 364 U.S. 350 (1960), and in the
separate opinions in Fedorenko v. United States, 449 U.S. 490 (1981)
(Pet. App. 124a-137a).  The court determined that none of the true
facts, if known, would have warranted the denial of citizenship or
would have made petitioner ineligible for a visa (id. at 135a).  In
addition, the court concluded (id. at 136a-137a) that disclosure of
the true facts in petitioner's visa application would not have
prompted an investigation by American consular officials.  /14/
Accordingly, the court entered judgment for petitioner.

   6. The court of appeals reversed (Pet. App. 1a-37a).  It found it
unnecessary to decide whether the deposition evidence linking
petitioner to the Kedainiai murders was erroneously excluded (id. at
6a & n.2) /15/ because it held that petitioner's misrepresentations
were material under its construction of the standards set forth in
Chaunt (id. at 8a-23a, 28a-37a).  Relying on the testimony of former
Vice Consul Finger, the court concluded (id. at 29a) that in light of
the falsified documents previously submitted by petitioner, an
investigation would have been conducted into petitioner's background
if he had truthfully stated his correct date and place of birth when
he was later interviewed under oath by the vice consul.  The
investigation, the court explained, probably would have revealed that
petitioner had not been a victim of persecution (ibid.).  /16/ That
status, the court noted, was necessary to obtain a nonpreference visa
at the time and place in question (id. at 30a-33a).  The court also
concluded that if petitioner had told the truth in the course of his
naturalization proceedings, the discrepancies between those truthful
statements and his misrepresentations at the visa stage would have
resulted in either an outright denial of the petition or a field
investigation, which probably would have shown that petitioner was
ineligible for a visa in the first place because he was not a victim
of persecution (id. at 36a).  Thus, the court reasoned (id. at 37a),
petitioner's false statements were material regardless of whether the
focus of inquiry was the visa stage or the naturalization stage.

                          SUMMARY OF ARGUMENT

                                   I

   A. Under 8 U.S.C. 1451(a), citizenship must be revoked if it was
procured on the basis of a misrepresentation or concealment of a
material fact.  In Chaunt v. United States, supra, this Court held
that a concealed or misrepresented fact is material if either (1) the
fact, if disclosed, would have warranted denial of citizenship, or (2)
"disclosure might have been useful in an investigation possibly
leading to the discovery of other facts warranting denial of
citizenship" (364 U.S. at 355).

   The first Chaunt test requires the government to prove that a
misrepresented or concealed fact would have definitely resulted in
denial of a visa or citizenship.  The second Chaunt test, however,
does not require proof of the existence of ultimate disqualifying
facts.  Rather, as the Court's formulation indicates, it is sufficient
if the government proves that there would have been an investigation
and that such an investigation might have uncovered disqualifying
facts.

   Petitioner disputes our interpretation of the second Chaunt test.
He maintains that proof of ultimate disqualifying facts is required
under either test.  Under petitioner's approach, however, a visa or
citizenship applicant would have everything to gain and nothing to
lose by lying about his background in an effort to avoid an
investigation into his past.  Even if the lie is later discovered, the
passage of time will make it more difficult for the government to
prove ultimate disqualifying facts.  Moreover, at the denaturalization
stage, the burden of proof shifts from the citizen to the government.

   Petitioner's proposed standard also ignores this Court's
recognition that truthful information must be obtained from
citizenship applicants if the system for admitting and naturalizing
immigrants is to function properly (Chaunt, 364 U.S. at 352-353).  In
addition, petitioner's standard would undermine Congress's intent in
enacting the denaturalization statute.  In Section 1451(a), Congress
specified that denaturalization is required for either illegal
procurement or procurement based on material misrepresentation.
Petitioner's interpretation of the second Chaunt test would render the
misrepresentation basis for denaturalization meaningless, since the
government would have to show in every case that the visa or
citizenship was illegally procured -- i.e., that the applicant lacked
a necessary prerequisite for a visa or citizenship.

   Petitioner's proposed standard would also create the anomaly of
requiring a higher standard of materiality for denaturalization than
for criminal prosecution.  Numerous statutes (e.g., 18 U.S.C. 1001,
1621) provide criminal penalties for making material false statements.
 The standard of materiality under those statutes is simply that the
statement have a natural tendency to influence, or be capable of
influencing, the tribunal or government official.

   B. Under the appropriate legal standard (and, indeed, even under
petitioner's standard), petitioner's misrepresentations and
concealments were material.  Petitioner repeatedly misrepresented and
concealed his true date of birth, place of birth, wartime residence,
and wartime occupation.  The testimony at trial established that if
petitioner's false statements and concealments had come to light at
either the visa or naturalization stage, an investigation would have
occurred.  Moreover, as a result of such an investigation,
petitioner's visa or citizenship petition would have (or at least
might have) been denied for at least four reasons.  First, had
petitioner given truthful information when he was interviewed under
oath by the vice consul, his visa would have been denied because of
his prior submission of false documents.  Second, his visa or
citizenship application probably would have been denied on the ground
that he was not a victim of Nazi persecution and therefore was
ineligible for a visa under the policies at the Stuttgart consulate in
1947.  Third, petitioner's citizenship application probably would have
been denied on the ground that, in light of his repeated lies under
oath, he lacked the requisite good moral character.  Fourth,
petitioner's visa or citizenship application might have been denied
because it might have led to the discovery of evidence inculpating him
in the atrocities against innocent civilians in Kedainiai in July and
August 1941.

                                 II.

   Petitioner's denaturalization is required for yet another reason.
A necessary prerequisite to citizenship is that the applicant be of
good moral character (8 U.S.C. 1427(a)).  Congress specifically
provided by statute (8 U.S.C. 1101(f)(6)) that a person is not of good
moral character if he "has given false testimony for the purpose of
obtaining benefits" under the immigration and naturalization laws.  A
person who has obtained his citizenship without the requisite moral
character has procured that citizenship illegally and is therefore
subject to denaturalization under 8 U.S.C. 1451(a).

   In the present case, petitioner repeatedly gave false testimony
under oath.  In addition, he submitted falsified documents to
immigration officials and withheld documents containing the true
information.  It is also clear that petitioner's only conceivable
reason for lying to government officials was to prevent an
investigation into his past.  Even today, petitioner can provide no
logical explanation of why he lied to American officials about his
date and place of birth, yet gave truthful information to the Germans.
 Nor can he explain why he lied about his wartime occupation.  Most
significantly, petitioner cannot explain why he falsely maintained
that he did not live in Kedainiai during the months of July and August
1941, when thousands of civilians were killed there by the Nazis with
the assistance of a Lithuanian paramilitary organization to which
petitioner belonged.  Petitioner's conduct, which could have formed a
basis for criminal prosecution, demonstrated a lack of good moral
character.  His citizenship was therefore illegally procured.

                               ARGUMENT

 I. PETITIONER'S MISREPRESENTATIONS WERE MATERIAL UNDER 8 U.S.C.
1451(a)

 A. A Misrepresentation Is Material If Disclosure Of The Truth Would
Have Led To An Investigation That Might Have Uncovered Facts
Warranting Denial Of A Visa Or Citizenship

   This Court has long recognized that citizenship is a "precious"
right (Fedorenko, 449 U.S. at 505).  For that reason, the government
"'carries a heavy burden of proof in a proceeding to divest a
naturalized citizen of his citizenship'" (ibid. (quoting Costello v.
United States, 365 U.S. 265, 269 (1961)).  The government's evidence
must be clear, unequivocal, and convincing, and not leave "the issue
in doubt" (Schneiderman v. United States, 320 U.S. 118, 125 (1943)).
At the same time, however, the Court has recognized that
"(a)cquisition of American citizenship is a solemn affair" and that
"(c)omplete replies (to officials) are essential so that the
qualifications of the applicant or his lack of them may be
ascertained" (Chaunt, 364 U.S. at 352).  Accordingly, "(f)ull and
truthful response to all relevant questions required by the
naturalization procedure is * * * to be exacted, and temporizing with
the truth must be vigorously discouraged" (ibid.).  The Court has also
made clear that "(n)o alien has the slightest right to naturalization
unless all statutory requirements are complied with," and it has
recognized the government's right to challenge (a naturalization
order) * * * and demand its cancellation "unless issued in accordance
with such requirements" (United States v. Ginsberg, 243 U.S. 472, 475
(1917);  see also Fedorenko, 449 U.S. at 506).

   Section 340(a) of the 1952 Act, as amended, 8 U.S.C. 1451(a),
provides that a naturalized person's citizenship may be canceled if
the government can establish that his citizenship was "illegally
procured or * * * procured by concealment of a material fact or by
willful misrepresentation." /17/ Petitioner does not dispute that
throughout the visa and naturalization process, he repeatedly
misrepresented and concealed his true date of birth, place of birth,
wartime residence, and wartime occupation.  /18/ Notwithstanding the
government's unrebutted evidence (J.A. 199-201) that if those lies had
been exposed petitioner would never have obtained a visa in the first
place, petitioner maintains (Pet. Br. 9-28) that his lies under oath
and his submission of falsified documents to United States government
officials were not "material" and therefore cannot provide the basis
for his denaturalization.  As we explain below, Congress could not
have intended, and this Court's decisions in no way hold, that a
person who has so totally disregarded the requirements for obtaining
benefits under the immigration laws should be entitled to retain his
citizenship.

   1. The leading case on materiality under Section 1451(a) is Chaunt
v. United States, supra.  Petitioner contends (Pet. Br. 9-20) that the
Court in Chaunt established only one test for determining materiality
and that the two prongs articulated in that opinion require
essentially the same showing -- that the applicant necessarily would
have been disqualified from citizenship (or from obtaining a visa) if
the government had received truthful and complete answers to its
questions.  But Chaunt by its terms did just the opposite:  it set
forth two alternative tests for materiality, only one of which
required proof of ultimate disqualifying facts.

   The government in the Chaunt case had sought to denaturalize a
citizen because he had concealed, in his 1940 citizenship application,
three arrests in 1929 and 1930 for handbilling, illegal demonstration,
and breach of the peace.  The statute in effect at the time /19/
provided that an applicant for citizenship must have behaved as a
person of good moral character during the previous five years.
Although the arrests were more than five years old, the government
argued that if it had known of those arrests, it would have conducted
an investigation and would have learned of Chaunt's position as a
Communist Party official, an affiliation that presumably would have
disqualified him from citizenship.

   This Court reversed the district court's order revoking
citizenship.  At the outset, the Court explained that "(f)ailure to
give frank, honest, and unequivocal answers * * * is a serious matter"
because "(s)uppressed or concealed facts, if known, might in and of
themselves justify denial of citizenship.  Or disclosure of the true
facts might have led to the discovery of other facts which justify
denial of citizenship." 364 U.S. at 352-353 (emphasis added).  The
Court then went on to reject the government's contention that truthful
answers from Chaunt would have prompted an investigation that might
have revealed that Chaunt was a Communist Party official in 1929.  It
noted (id. at 355) that the government was aware of other possible
indicia of Communist Party affiliation, such as his membership in the
International Workers' Order (IWO), which the Court assumed to be a
Communist organization.  Yet Chaunt's disclosure of his IWO membership
had not prompted an investigation into his political affiliations.
The Court was unwilling to believe that the "tenuous line of
investigation that might have led from the arrests to the alleged
communistic affiliations" was really material in light of the
government's inaction when faced with more substantial evidence of the
same affiliation (ibid.).

   The Court emphasized, however, that a different case would have
been presented if the arrests had involved "moral turpitude or acts
directed at the Government, (or) conduct which even peripherally
touched types of activity which might disqualify one from citizenship"
(364 U.S. at 354).  It also indicated that if Chaunt had not disclosed
his IWO affiliation, the "failure to report the arrests would have had
greater significance," because a forceful argument could then be made
that his failure to disclose the arrests was "part and parcel of a
project to conceal a Communist Party affiliation" (id. at 355).  On
the facts before it, however, the Court concluded that the government
had failed to show "either (1) that facts were suppressed which, if
known, would have warranted denial of citizenship or (2) that their
disclosure might have been useful in an investigation possibly leading
to the discovery of other facts warranting denial of citizenship"
(ibid. (emphasis added)).

   As the quoted language reveals, the Court in Chaunt established two
alternative tests for determining the materiality of
misrepresentations or concealments, and proof of disqualifying facts
is not required under the second test.  /20/ Although the Court's
language is not entirely free of ambiguity, we submit that under the
second prong, denaturalization is authorized for misrepresentations
even though truthful asnwers regarding the misrepresented facts would
not necessarily have required that result but simply might have
required it.

   Our interpretation of Chaunt is consistent with the established
rule prior to Chaunt, which Chaunt did not purport to disturb.  Thus,
in cases that discussed the materiality requirement prior to Chaunt,
the courts did not require proof of ultimate disqualifying facts.
See, e.g., Corrado v. United States, 227 F.2d 780 (6th Cir. 1955),
cert. denied, 351 U.S. 925 (1956) (noting that "the issue (was) not
whether naturalization would have been denied * * * but whether, by
his false answers, the Government was denied the opportunity of
investigating (his) moral character * * * and the facts relating to
his eligibility for citizenship");  United States v. Montalbano, 236
F.2d 757, 759-760 (3d Cir.), cert. denied, 352 U.S. 952 (1956);
Granduxe y Marino v. Murff, 183 F. Supp. 565, 567 (S.D.N.Y. 1959),
aff'd, 278 F.2d 330 (2d Cir.), cert. denied, 364 U.S. 824 (1960);
United States v. Chandler, 152 F. Supp. 169, 177 (D. Md. 1957);
United States v. Lumantes, 139 F. Supp. 574, 575 (N.D. Cal. 1955),
aff'd, 232 F.2d 216 (9th Cir. 1956).

   This Court has never reconsidered the language in Chaunt
establishing the two tests for materiality.  In Fedorenko v. United
States, supra, the Court found it unnecessary to decide whether the
court of appeals was correct when it applied the same materiality test
that we urge here.  The defendant in that case had served as an armed
guard at the Treblinka concentration camp.  Because those activities
would have made petitioner ineligible for a visa as a matter of law
under the Displaced Persons Act of 1948 (DP Act), Pub. L. No. 80-774,
ch. 647, 62 Stat. 1009 et seq., regardless of whether his service was
voluntary or involuntary, the Court concluded that his
misrepresentations about his wartime activities were material and
warranted his denaturalization.  /21/ See also Costello v. United
States, supra (upholding denaturalization of applicant who concealed
occupation as a bootlegger;  Court resolved case under first Chaunt
test and therefore did not construe the second test).

   Most of the lower court decisions since Chaunt have agreed with us
that the government need not establish some ultimate disqualifying
fact in order for a misrepresentation to be material.  For example, in
United States v. Oddo, 314 F.2d 115, 118 (2d Cir.) (Marshall, J.),
cert. denied, 375 U.S. 833 (1963), the court noted that the failure to
disclose a record of prior arrests was material, "even though none of
those arrests by itself would be a sufficient ground for denial of
naturalization," because the concealment "closes to the Government an
avenue of inquiry which might conceivably lead to collateral
information of greater relevance." Accord, e.g., United States v.
Palciauskas, 734 F.2d 625 (11th Cir. 1985);  United States v. Koziy,
728 F.2d 1314, 1320 (11th Cir.), cert. denied, 469 U.S. 835 (1984);
Kassab v. INS, 364 F.2d 806 (6th Cir. 1966) (adopting an even more
lenient test for materiality, requiring the government to show only
that the disclosure might have led to an investigation that might have
resulted in the denial of citizenship);  Langhammer v. Hamilton, 295
F.2d 642, 648 (1st Cir. 1961).  Contra, United States v. Sheshtawy,
714 F.2d 1038 (10th Cir. 1983);  see also La Madrid-Peraza v. INS, 492
F.2d 1297 (9th Cir. 1974).  /22/

   2. We submit that our interpretation of the materiality test best
balances the two important competing interests:  the naturalized
person's strong interest in retaining his citizenship and the
government's equally strong interest in ensuring that visa and
citizenship applicants provide truthful information.  As the lower
courts both before and after Chaunt have recognized, a materiality
standard of the sort suggested by petitioner would seriously interfere
with the enforcement of the immigration laws.

   A standard requiring proof that the applicant would have been
denied entry or citizenship if he had answered truthfully gives the
applicant every incentive to conceal information when he believes that
the information could adversely affect his visa application or
naturalization petition.  Fedorenko, 449 U.S. at 529 (White, J.,
dissenting).  In many cases, the lie will never be discovered, and the
applicant will retain his fraudulently obtained citizenship without a
challenge.  Even if his deception is eventually uncovered, the
applicant is better off in at least two ways for having lied.  First,
the passage of time invariably makes it more difficult for the
government to uncover disqualifying facts.  Essential witnesses may
have died and memories will have faded.  Second, the burden of proof
shifts to the government.  At the time he applies for citizenship, the
applicant bears the burden of "show(ing) his eligibility for
citizenship in every respect" (Berenyi v. District Director, 385 U.S.
630, 637 (1967)).  At the denaturalization stage, however, the
government can prevail only if it establishes proof of ineligibility
by clear, unequivocal, and convincing evidence (Schneiderman, 320 U.S.
at 125, 158).  Anyone with even the slightest fear that something in
his past might disqualify him from citizenship would therefore have
every incentive to lie about his past and to provide false
biographical information.

   3. In addition to being contrary to the policy of the immigration
laws, petitioner's interpretation of the materiality requirement is
inconsistent with both the language of Section 1451(a) and its
legislative history.  Section 1451(a) provides two separate grounds
for denaturalization:  (1) illegal procurement and (2) willful
concealment or misrepresentation of a material fact.  Citizenship is
illegally procured if a necessary prerequisite to naturalization is
absent at the time the petition for naturalization is granted.
Fedorenko, 449 U.S. at 506, 515.  Yet to establish facts warranting
denial of citizenship, as petitioner's proposed standard would
require, the government would have to prove that at the time he
applied for citizenship, the individual lacked some essential
prerequisite for naturalization -- the same proof that is required to
show illegal procurement.  If, in order to establish a material
misrepresentation, the government must first make a showing sufficient
to prove illegal procurement, then the misrepresentation provision of
the statute is wholly redundant.  Put another way, if individuals may
be denaturalized only when it is shown that they were ineligible for
citizenship in the first place, then their behavior in making
misrepresentations during the naturalization process, no matter how
egregious, is of no separate significance for denaturalization
purposes.  Petitioner's interpretation thus would violate the
"elementary canon of construction that a statute should be interpreted
so as not to render one part inoperative." Colautti v. Franklin, 439
U.S. 379, 392 (1979).

   Moreover, petitioner's standard conflicts with the legislative
history of Section 1451(a), which demonstrates a firm congressional
intent to use the denaturalization process to discourage false
statements by visa and citizenship applicants.  Before 1952, the
predecessor to Section 1451(a) provided that a naturalization
certificate could be revoked either because the certificate was
"illegally procured" or "on the ground of fraud." 8 U.S.C. (1940 ed.)
738(a).  The Senate Judiciary Committee in 1950 pointed out that
litigation over extrinsic versus intrinsic fraud had hampered the
prosecution of denaturalization cases.  See S. Rep. 1515, 80th Cong.,
1st Sess. 755-758 (1950).  The committee therefore recommended that
the denaturalization provision include a false statement provision in
place of the reference to fraud because "proof of 'concealment of a
material fact or * * * willful misrepresentation' is more easily
proved than is an allegation of fraud and illegality." Id. at 769.
The 1952 Act adopted the Senate Committee's proposal.  See S. Rep.
1137, 82d Cong., 2d Sess. 45 (1952).  By rendering the
"misrepresentation" provision redundant, petitioner's proposed
standard of materiality would therefore be squarely contrary to the
congressional purpose of expanding the grounds for denaturalization,
which was the reason for including the misrepresentation provision in
the 1952 Act.

   4. Petitioner's proposal would also result in anomaly that the
standard for materiality in the denaturalization setting would be more
exacting than the standard in a criminal prosecution for perjury or
false statements.  Petitioner has pointed to nothing in the
legislative history or policies underlying the immigration laws to
suggest that Congress could have intended such a result.

   Congress's fialure to provide any definition of "materiality" in
Section 1451(a) suggests that the word should be given its ordinary
meaning.  See, e.g., NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981).
Numerous criminal statutes contain materiality requirements, /23/ and
the meaning of materiality in the criminal context is both well
settled and consistent with the interpretation we propose.

   Because of its investigative function, the grand jury performs a
role analogous to that of the vice consul or naturalization examiner
in reviewing an application for a visa or for citizenship.  A false
statement before a grand jury is material if it is "capable of
influencing the tribunal" or if it "would have the natural effect or
tendency to influence, impede, or dissuade the Grand Jury from
pursuing its investigation." United States v. Gremillion, 464 F.2d
901, 905 (5th Cir.) (emphasis added), cert. denied, 409 U.S. 1085
(1972).  Moreover, because the purpose of the grand jury's
investigation is a factfinding one, "leads to additional facts may be
material even though they do not reflect on the ultimate issue being
invetigated." United States v. Lardieri, 497 F.2d 317, 319 (3d Cir.
1974).

   Various criminal statutes penalize false statements to government
officials, including immigration authorities.  The materiality
standard under those statutes does not require a showing that
disclosure of the true facts would necessarily have led to a different
result.  For example, the general federal false statements statute, 18
U.S.C. 1001, provides that it is a crime to make a false statement or
use a false document "in any matter within the jurisdiction of any
department or agency of the United States." /24/ In United States v.
Ramos, 725 F.2d 1322 (11th Cir. 1984), the defendant was charged with
violating Section 1001 by giving a false name, place, and date of
birth and using false papers in applying for a passport.  The court
explained that a statement is material under Section 1001 if it "has
'a natural tendency to influence, or (is) capable of affecting or
influencing, a government function'" (725 F.2d at 1324).  The court
rejected the defendant's argument that his particular statements were
not material, concluding that a false statement as to the applicant's
name and identity "is indisputably material to the agency's decisions
whether to grant his passport application" (ibid.).  Accord, e.g.,
United States v. Lopez, 728 F.2d 1359, 1362 (11th Cir. 1984) (emphasis
in original;  citation omitted) (in prosecution under Section 1001 for
false statements to immigration officials, court noted that "(i)t
makes no difference so long as it had the capacity to do so");  United
States v. Valdez, 594 F.2d 725, 729 (9th Cir. 1979) (in prosecution
under Section 1001 for submitting false letters of employment to
United States consular officials, court upheld conviction because the
letters "were capable of influencing the consulate authorities in
their statutory duty of not granting immigrant visas to anyone who is
likely to become a public charge");  Tzantarmas v. United States, 402
F.2d 163, 168 (9th Cir. 1968) (emphasis added) (court noted in Section
1001 prosecution for false statements to immigration officials that
"(a) statement is material if it could affect or influence the
exercise of a governmental function"), cert. denied, 394 U.S. 966
(1969);  Robles v. United States, 279 F.2d 401, 404 (9th Cir. 1960)
(in prosecution under Section 1001 for submitting falsified documents
to immigration officials, court noted that the test is whether the
false statement had a natural tendency to influence, or was capable of
influencing the decision of the tribunal), cert. denied, 365 U.S. 836
(1961).

   In addition, visa applicants making false statements under oath to
consular officials have been prosecuted under the general perjury
statute, 18 U.S.C. 1621.  See, e.g., United States v.
Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956) (false statement
concerning criminal record).  The materiality test in such cases is
whether "a truthful answer might have induced the vice-consul to
institute an investigation which might have resulted in a proper
refusal of the visa" (id. at 408 (emphasis added;  citing cases)).
/25/

   There is no reason to assume that Congress intended to adopt a more
stringent standard of materiality under 8 U.S.C. 1451(a) than under
these criminal statutes.  Petitioner's position would lead to the
anomalous result that a person who procures his citizenship by a
misrepresentation would be immune from the civil consequence of
denaturalization unless "ultimate facts" could be proved, yet would be
subject to criminal penalties, including imprisonment, for the very
same misrepresentation.  Petitioner has cited no authority -- and we
know of none -- to support the proposition that the loss of
citizenship, as precious as that right may be, is entitled to greater
protection than the loss of liberty accompanying a criminal
conviction.  To the contrary, the courts in denaturalization cases
have consistently treated the criminal standard as the maximum
standard against which to set standards for denaturalization.  See,
e.g., Schneiderman, 320 U.S. at 160 ("A denaturalization suit is not a
criminal proceeding.  But neither is it an ordinary civil action since
it involves an important adjudication of status.").

   5. In Fedorenko, this Court raised but did not resolve the issue
whether the Chaunt standard for materiality governing
misrepresentations at the naturalization stage should also apply to
misrepresentations made at the visa stage, the point at which
petitioner made his first false statements (449 U.S. at 508-509).  We
know of no court that has applied a different standard at the visa
stage than at the naturalization stage, /26/ and we submit that the
reasons for adopting our proposed materiality standard apply a
fortiori at the visa stage.

   The need for a standard that encourages honesty and full disclosure
is greatest at the visa stage.  Under the 1952 Act, as under the 1924
Act, the inquiry undertaken by a consular officer is wide-ranging.
When a vice consul inquires into an alien's eligibility for a visa,
that inquiry covers virtually every phase of the alien's life.  /27/
Additional complications arise out of the locale of the consulate at
which the application is made.  Relations between the United States
and the alien's country may range from cordial to hostile.  A vice
consul may not have access in a foreign country to evidence, such as
official documents or witnesses, that is necessary to verify the facts
offered by an applicant.  Because a vice consul lacks the time and
resources to undertake an exhaustive inquiry into each applicant's
bona fides, he must place considerable reliance on an applicant's
statements and credibility.  Moreover, an applicant's incentive to lie
is greatest at the visa stage, since there is virtually no judicial
review of decisions denying visas.  See, e.g., Ventura-Escamilla v.
INS, 647 F.2d 28, 31 (9th Cir. 1981) (citing authorities).  All of
these factors highlight the importance of requiring a visa applicant
to be completely truthful when applying to enter this country.  It
follows that the government should not be required to show that a
misrepresentation at the visa stage would have uncovered a fact
warranting denial of the visa but only that an investigation might
have uncovered such a fact.

  B. Petitioner's Misrepresentations Were Material Under Any Standard

   1. Discovery of the True Facts Would Have Led to an Investigation

   Former Vice Consul Finger, who processed visa applications in
Stuttgart at the time petitioner submitted his application there,
testified that information relating to an applicant's identity and
wartime activities was reviewed with special care (J.A. 189, 198-199).
 That procedure was required because, in addition to the normal quota
requirements, the American consulate in Stuttgart was issuing visas
only to persons who had immediate relatives living in the United
States and those who could prove they had been victims of Nazi
persecution (J.A. 187, 197, 213-214, 217-218).  Had petitioner been
truthful with the consular officials at the visa stage when he was
questioned under oath, an investigation clearly would have ensued
because the officials would have discovered the discrepancy between
his truthful statements at that time and his previously submitted
falsified documents.  As the court of appeals noted (Pet. App. 31a),
Finger gave "unrebutted testimony" concerning what would happen if
there were discrepancies between the supporting documents and the visa
application.  Finger specifically testified that if an applicant gave
information in his application or during his interview that was
inconsistent with information in his supporting documents, an
investigation "certainly would have" been conducted (J.A. 199-200).
In fact, such an investigation was mandated by regulations that were
in effect at the time (22 C.F.R. 61.329 (1946);  see Pet. App. 31a).

   According to Finger, the vice consul "would first check police
records in any prior places of residence, particularly in Germany
where such records were available" (J.A. 199).  He would also check
lists of rejected visa applicants and might make inquiries of the
sponsoring agencies (ibid.).  In addition, he might interview
individuals in displaced persons camps (J.A. 212) and other
individuals who knew the applicant (J.A. 212-213).

   A field investigation may not even have been necessary, since it
appears that the discovery of discrepancies between petitioner's
statements to the vice consul and his falsified documents would have
resulted in denial of his visa even without an investigation.
Finger's testimony (J.A. 199-204) revealed that if an applicant gave
conflicting information about his date and place of birth, wartime
occupation, or wartime residence, his visa application would simply be
denied outright.  /28/ Based on that evidence, the government
established materiality even under the first prong of Chaunt.

   Similarly, if petitioner had perpetuated his false identity
throughout the visa stage but disclosed the true facts at the
naturalization stage, there would, at a minimum, have been an
investigation.  As the court of appeals noted, the undisputed
testimony of petitioner's naturalization examiner, former Immigration
Judge Goldberg, revealed that if petitioner had told the truth when he
applied for citizenship, "the discrepancies between the truth and his
visa materials would have resulted in either a field investigation or
an outright denial of the petition" (Pet. App. 36a).  See J.A. 169-171
(testimony of Judge Goldberg).  /29/

   Faced with unrebutted testimony that his truthful testimony would
have triggered an investigation -- or outright denial of a visa or
citizenship application -- because of the discrepancies that would
have been revealed, petitioner argues (Pet. Br. 13-14) that in
assessing materiality at any particular point in time, a court must
presume a clean slate and must hypothesize that no prior false
statements were ever made.  According to petitioner, the issue is
whether being born in 1915 rather than in 1913 or in Reistru rather
than Kaunas would have made him ineligible per se, not whether
discrepancies concerning his asserted date or place of birth would
have been important (ibid.).  But the issue cannot be analyzed in a
vacuum;  to do so would be to ignore the realities of the visa and
citizenship procedures, as described by both Finger and Goldberg.  As
those officials explained, a truthful statement about a fact as
fundamental as date or place of birth can take on great importance
when it conflicts with the person's prior statements or with his
previously submitted documents.  /30/ Petitioner should not be allowed
to rewrite the record by asking a court to assume that he made no
previous false statements and that he submitted no falsified
documents.  /31/

   More fundamentally, petitioner's approach, taken to its logical
conclusion, leads to the absurd result that a visa or citizenship
applicant could adopt and maintain throughout the process a totally
false identity, including a fictitious date of birth, place of birth,
residence, occupation, and even a fictitious name.  Under petitioner's
theory, he would face no risk of denaturalization unless the
government could show, decades later, that his true name, date of
birth, residence, and occupation would per se have disqualified him.
/32/ As a practical matter, this would mean that an applicant for a
visa or for citizenship could assume a totally false identity with
impunity and thereby ensure that the authorities would be unable to
investigate his past.  But as this Court has stated (Berenyi v.
District Director, 385 U.S. at 638), "(t)he Government is entitled to
know of any facts that may bear on an applicant's statutory
eligibility for citizenship, so that it may pursue leads and make
further investigation if doubts are raised." Congress could not
possibly have intended the approach urged by petitioner, in which a
person who assumed a completely false identity could not be
denaturalized.

   The district court erroneously adopted petitioner's approach.
According to that court, the issue was whether petitioner's birth in
1915 in Reistru, his residence in Kedainiai during 1940-1942, or his
employment at a small factory were "facts which, if known, would have
warranted denial of citizenship" (Pet. App. 135a).  The court
concluded (id. at 136a) that there was nothing that would "excite
suspicion" in the fact that defendant had those particular
biographical attributes.

   By focusing only on the false statements themselves, the district
court asked the wrong question in assessing whether the true facts
would have provoked an investigation.  The court of appeals, by
contrast, asked the correct question, namely, whether discrepancies
between true information on petitioner's visa application and the
misrepresentations in his falsified documents would have resulted in
an investigation by the consular officials (Pet. App. 29a).  At the
naturalization stage, as the court of appeals likewise recognized (id.
at 36a), the correct question is whether truthful information by
petitioner on these basic matters, in the face of inconsistent
information at the visa stage, would have triggered an investigation
by the naturalization examiner.  Under this analysis, the answer is
clear:  there would, at a minimum, have been an investigation at both
the visa and naturalization stages if petitioner had revealed the
truth and had thereby contradicted his prior false statements.

   Because the district court applied an erroneous legal analysis,
there is no merit to petitioner's contention (Pet. 14-15;  Pet. Br. 5,
8-9, 28-30) that the Third Circuit improperly engaged in de novo
review of the district court's finding that no investigation would
have been conducted if petitioner had told the truth.  The Third
Circuit simply applied the correct legal analysis to the undisputed
facts, as it is permitted to do.  See, e.g., Pullman-Standard v.
Swint, 456 U.S. 273, 292 (1982).

 2. The Investigation Would Likely Have Led To the Discovery of
Disqualifying Facts

   Because the district court erroneously concluded that no
investigation would have ensued as a result of petitioner's
misrepresentations, it did not consider whether it was likely that an
investigation would have led to the discovery of disqualifying facts
(Pet. App. 134a-137a).  The record demonstrates, however, that the
government met its burden of proof under the "might" standard that we
propose, under the "probable" standard applied by the court of
appeals, and even under the "would" standard urged by petitioner.

 a. The Investigation Would Have Resulted in the Denial of
Petitioner's Visa Application Because of Falsified Information
Concerning His Identity

   Ambassador Finger's unrebutted testimony established that if an
investigation had ensued, petitioner's visa would have been denied
because of his misrepresentations concerning his identity (J.A.
200-202).  Specifically, Finger testified that if a vice consul became
aware that an applicant lied about his date and place of birth but
prior to submitting his application had told the German authorities
the truth about those matters, his visa would have been denied (J.A.
202).  Similarly, if an applicant submitted falsified documents and
withheld documents containing the true information, the visa would be
denied (J.A. 200).  Since the vice consul would have checked the
German police records (J.A. 199) and made other pertinent inquiries
(J.A. 199, 212), he clearly would have discovered, as the government
did decades later, that petitioner had repeatedly given his correct
biographical information (and documentation reflecting that
information (J.A. 61-63)) to the German authorities.  Based on his
false statements and documents to American consular officials,
petitioner's visa therefore would have been denied.

 b. The Investigation Probably Would Have Led to the Discovery of
Facts Resulting in the Denial of Petitioner's Visa or Petition for
Naturalization on the Ground that Petitioner was not a Victim of
Persecution

   As the court of appeals noted (Pet. App. 30a), Ambassador Finger
gave unequivocal testimony (see J.A. 187, 197, 205, 213-214, 217, 233)
that the policy of the Stuttgart consulate was that visas were to be
given only to those with close relatives in the United States and
those who had been victims of Nazi persecution.  /33/ Finger, who
served at Stuttgart at the time petitioner obtained his visa, had
previously received training in processing visas at the State
Department's Visa Division (J.A. 182-184).  Since his testimony was
based on his own firsthand knowledge of the policies and practices at
Stuttgart concerning visa eligibility, his testimony is entitled to
great weight.  See generally Fedorenko, 449 U.S. at 510-511.

   Petitioner asserts (Pet. Br. 31-46) that Finger's recollection
concerning the policies for issuing visas was erroneous.  In fact,
however, his testimony is confirmed by the legislative history of the
DP Act, which took effect in June 1948, after petitioner applied for
and obtained his visa.  The DP Act was passed because emigres from
areas such as the Baltic states, including Lithuania, had been unable
to enter the United States under the stringent quota standards of the
1924 Immigration Act.  See S. Rep. 950, 80th Cong., 2d Sess. 20-21, 24
(1948).  Prior to the enactment of the DP Act, the quota immigrant
visas for eastern European countries were going almost exclusively to
Jews, persons who by definition were victims of Nazi persecution.  See
id. at 26;  Hearings on H.R. 2910 Before the Subcomm. on Immigration
and Naturalization of the House Comm. on the Judiciary, 80th Cong.,
1st Sess. 407 (1947);  94 Cong. Rec. 7861 (1948) (remarks of Rep.
Lesinski).

   In light of the fact that non-Jewish eastern European emigres were
generally unable to obtain visas in 1947, petitioner cannot sustain
his claim (Pet. Br. 31-38) that Finger simply fabricated the policy of
the consulate in Stuttgart that nonpreference visa applicants had to
establish that they had been victims of Nazi persecution.  Finger was
speaking accurately based on personal experience, and the Third
Circuit properly relied on his testimony.

   Indeed, petitioner's own conduct at the time he applied for a visa
provides support for Finger's testimony.  When applying for his visa,
petitioner submitted a certificate issued by the central committee of
the "Lithuanian Ex-Political Prisoners Nazi Victims" stating that he
had been "persecuted by the gestapo" (J.A. 29).  /34/ If, as
petitioner claims, there had been no requirement of proving
persecution by the Nazis, such a certificate would have been
unnecessary.  Petitioner submitted several other fraudulent documents
establishing his false date and place of birth (J.A. 27, 37, 38), so
that the certificate certainly was not necessary as evidence of his
identity.  The only substantive fact addressed by the certificate was
petitioner's purported underground activities and persecution by the
Gestapo.  Obviously, petitioner himself believed that establishing
persecution by the Nazis was important to obtaining a visa.  As the
court of appeals noted (Pet. App. 31a), "by submitting this document
(petitioner) attempted to prove that he was a victim of Nazi
persecution."

   Petitioner offers several grounds for challenging the court of
appeals' reliance on Finger's testimony, but each lacks merit.  First,
petitioner relies (Pet. 21 n.12, 23;  Pet. Br. 43) on remarks by Frank
Schilling, the vice consul who actually processed petitioner's visa
application, which purportedly conflict with Finger's statements.  To
begin with, petitioner fails to note that the remarks by Schilling
were not testimony but were statements to petitioner's counsel over
the telephone in a conversation to which neither the government nor
the court was a party.  More importantly, petitioner has quoted
Schilling out of context and has distorted what Schilling actually
said.  Schilling repeatedly made clear that he had no recollection of
any of the requirements for a visa.  /35/ His statements therefore do
not in any way rebut Finger's testimony about the existence of
specific visa requirements.

   Second, petitioner relies on a variety of documentary materials
(Pet. Br. 33-36) /36/ to support his attack on Finger's testimony.
But those materials establish no more than that petitioner could have
been characterized as a "displaced person" in the post-war period,
according to several definitions of the term.  The materials do not
undermine Finger's testimony that the policy of the American consulate
was to give visa priority to victims of Nazi persecution.  /37/

   Third, petitioner claims (Pet. 23-24;  Pet. Br. 44-45) that he was
not put on notice concerning this issue and therefore did not realize
the need to put on evidence regarding the requirements for obtaining a
visa in 1947.  The lack of notice, he claims, deprived him of due
process.  Petitioner's argument is patently without merit.  The
complaint put petitioner on notice that he had obtained his
citizenship through misrepresentations concerning his date of birth,
place of birth, wartime residence and wartime occupation (J.A. 13-14,
16-18).  The government attorney, in his opening statement at trial,
specifically identified the government's theory that petitioner
misrepresented himself to be a victim of persecution (C.A. App.
210-211, 212);  Finger's testimony focused at length on the
requirement that a person had to be a victim of persecution to obtain
a nonpreference visa (J.A. 187, 197, 205, 213-214, 217, 218, 233);
the government's evidence on the issue was relied upon by the
government attorney at the close of his case in response to
petitioner's motion to dismiss under Fed. R. Civ. P. 41(b)(C.A. App.
1071), and petitioner responded to the argument without claiming lack
of notice (id. at 1074).  /38/ Petitioner introduced evidence on that
issue, /39/ and the issue was the subject of discussion in the
government's post-trial brief (at 24, 31) and petitioner's post-trial
brief (at 40-41) submitted to the district court.  Moreover, both
briefs to the courts of appeals addressed the issue (Gov't C.A. Br.
25-26;  Pet. C.A. Br. 52-53), and the issue was discussed at oral
argument (see Pet. App. 33a n.10).  In short, there is no basis for
petitioner's claim that the court of appeals somehow invented a new
issue.

   The court of appeals correctly held (Pet. App. 32a) that an
investigation probably would have shown that petitioner was not a
victim of persecution.  Specifically, if the vice consul had learned
of petitioner's true date and place of birth and had thereby
discovered the discrepancy between his visa application and his
previously submitted documents, the investigation would likely have
taken several directions.  First, as Finger testified (J.A. 199), a
check would have been made with the authorities in the German cities
in which petitioner had previously resided.  Records from the
Tuebingen district would have revealed that petitioner and his wife
had lived under their own names in Nazi Germany since late 1944 (see
J.A. 56, 59).  Rather than being a forced laborer or being forced to
live in a Nazi refugee camp, he had been granted the right to live
without restrictions in the areas of Wuerttemberg and Hohenzollern
(J.A. 59).  Moreover, petitioner's wife had applied to the
Wuerttemberg Minister of the Interior under her own name to practice
dentistry (J.A. 57).  These facts would have placed in doubt
petitioner's claim that he had been a victim of Nazi persecution,
since a victim of persecution would neither have applied for nor
received the special considerations extended to petitioner and his
wife by the Nazis (see Pet. App. 32a).  Finally, the vice consul would
immediately have realized that the sole piece of evidence submitted to
the immigration authorities that supported petitioner's claim to be a
victim of persecution was fraudulent in that it contained a false date
and place of birth.

   A second likely course of investigation would have been at
Tuebingen University.  A review of records there would have disclosed
that petitioner had submitted to the University, but not to the
consulate, a Lithuanian document from the Telsiai Seminary that stated
his correct date and place of birth (J.A. 61-63).  This fact would
have shown that he was withholding from immigration officials identity
documents from the country to which he owed allegiance.  The Tuebingen
records would additionally have revealed that petitioner told the
German authorities that he had been a manager of an industrial concern
during the Nazi occupation of Lithuania (J.A. 65;  C.A. Exh. 547),
while concealing that employment on his alien registration form (J.A.
34-35).  At trial, petitioner explained that this discrepancy was the
result of a mere "exaggeration" (Lodging Tr. 863-864).  /40/ This
explanation, however, came over 35 years too late.  It is not the
courts today, but the vice consul in 1947, who should have been given
the opportunity to decide whether petitioner's concealment of his true
employment position under Nazi rule was inconsistent with a claim of
having been persecuted by the Gestapo.  /41/

   A third avenue of inquiry would have been among refugees in the
displaced persons camps in Europe (see J.A. 212).  Even 40 years after
the events, the government was able to locate witnesses to the
killings in Kedainiai who had information implicating petitioner (see
Pet. App. 4a-5a n.1).  It is likely that in 1947 or even in 1954,
other witnesses could have been located in Europe who could have
provided information on that subject.  Such information could well
have revealed that petitioner was in fact a perpetrator, not a victim,
of persecution.  /42/

   In sum, the court of appeals was correct in concluding that the
investigation in 1947 probably would have resulted in the discovery of
information revealing that petitioner was not a victim of Nazi
persecution.

 c. The Investigation Probably Would Have Led to the Denial of the
Petition for Naturalization on the Ground that Petitioner Was Not a
Person of Good Moral Character

   As we discuss more fully on pages 45-48, infra, a fundamental
requirement of naturalization is that a person be "of good moral
character" (8 U.S.C. 1427 (a)).  Moreover, under 8 U.S.C. 1101(f)(6),
a person is not of good moral character if he "has given false
testimony for the purpose of obtaining any benefits under this
chapter." Former Immigration Judge Goldberg specifically testified
that if the evidence revealed that an applicant's testimony was false,
a determination would have to be made "whether the false testimony was
such that (he) was bound to find that (the applicant) was not of good
moral character and recommend adversely on his petition for
naturalization" (J.A. 170;  see also J.A. 171).  Petitioner repeatedly
lied about his date and place of birth, his wartime occupation, and
his residence during 1941.  Based on petitioner's myriad false
statements under oath and his submission of fraudulent documents,
Goldberg in all probability would have concluded that petitioner
lacked the requisite moral character.  /43/

 d. The Investigation Might Have Led to the Discovery of Facts Showing
Petitioner's Role in the Atrocities at Kedainiai

   If a vice consul had discovered petitioner's concealment of his
residence in Kedainiai between July and October 1941, that fact would
undoubtedly have raised suspicion, /44/ since place of residence
during the war was of particular significance to consular officials in
Stuttgart at the time petitioner applied for his visa (see J.A. 189).
Investigators in 1947 certainly knew that Nazi Germany had invaded the
Soviet Union on June 22, 1941, and that in the next several months
tens of thousands of Jews were slaughtered in mass executions
throughout the occupied territories.  Lithuania had one on the
greatest concentrations of Jews who were murdered in that fashion.  It
was also known that many of these executions were carried out with the
assistance of indigenous collaborators.

   Given this background, no diligent investigator could have
overlooked a willful misrepresentation concerning the critical time
period between July and October of 1941 in Lithuania.  Suspicion would
have been raised as to why such a misrepresentation was made in the
visa application;  /45/ that suspicion would only have been heightened
if perpetrated by a Lithuanian immigrant who had been a member of the
Riflemen's Association, who lived without restrictions in Nazi
Germany, and who had represented that he had held a managerial
position during the Nazi occupation of Lithuania.  Considering that
the government was able to come forward over 40 years later with
evidence that petitioner participated in the atrocites in Kedainiai in
July and August of 1941 -- evidence that even the district court found
was "strong support" for the government's charges (Pet. App. 75a) --
it is likely that in 1947, when Europe's displaced persons camps were
filled with thousands of survivors from Lithuania, credible evidence
of petitioner's participation in those atrocities could have been
gathered.  Indeed, even in 1954, at the naturalization stage, it is
quite possible that additional evidence implicating petitioner could
have been uncovered.  At a minimum, it is clear that an investigation
might have shown that petitioner was involved in the atrocities at
Kedainiai in July and August of 1941.

 II. IN LIGHT OF HIS PATTERN OF REPEATED MISREPRESENTATIONS,
PETITIONER'S CITIZENSHIP WAS ILLEGALLY PROCURED, SINCE HE WAS NOT A
PERSON OF GOOD MORAL CHARACTER

   Under 8 U.S.C 1451(a), a person whose naturalization was illegally
procured is subject to denaturalization.  A necessary prerequisite for
naturalization is that a person be of "good moral character" (8 U.S.C
1427(a)).  See also 8 U.S.C. 1427(e) (in assessing good moral
character, a court is not limited to an applicant's conduct during the
preceding five years but "may take into consideration * * * (his)
conduct and acts at any time prior to that period").  And 8 U.S.C.
1101(f)(6) provides that no person shall be deemed a person of good
moral character if he "has given false testimony for the purpose of
obtaining any benefits under this chapter." Read literally, these
provisions suggest that even a single piece of false testimony can
disqualify a person from citizenship because of a lack of good moral
character.  But this Court need not reach the issue of whether one
isolated false statement is sufficient to show lack of good moral
character, since it is clear that petitioner's pattern of lies over
several years -- lies that could have subjected him to criminal
prosecution under 18 U.S.C. 1001, 1015(a), and 1621 -- demonstrates
his lack of good moral character.  See generally In re Yao Quinn Lee,
480 F.2d 673 (2d Cir. 1973) (upholding denial of naturalization on
ground that false statement by applicant that he was living with his
wife demonstrated lack of good moral character);  Tieri v. INS, 457
F.2d 391 (2d Cir. 1972) (upholding denial of naturalization based on
pattern of false testimony);  Ralich v. United States, 185 F.2d 784
(8th Cir. 1950) (holding that commission of perjury demonstrates lack
of good moral character justifying denial of petition for
naturalization);  United States v. Forrest, 69 F. Supp. 389 (D.R.I.
1946) (ordering denaturalization based on false statements made by
naturalized citizen);  Petition of Ledo, 67 F. Supp. 917 (D.R.I. 1946)
(petition for naturalization denied because applicant's false
statements revealed his lack of good moral character).  As one court
noted in a similar context, petitioner's false statements "revealed
his character as that of one willing to defraud others, even including
the parens patriae, for his own ends." United States v. Accardo, 113
F. Supp. 783, 786 (D.N.J.), aff'd on opinion below, 208 F.2d 632 (3d
Cir. 1953), cert. denied, 347 U.S. 952 (1954).  /46/

   Petitioner lied repeatedly about the very facts that Congress
specified must be disclosed (1924 Act, Section 7), including his date
and place of birth.  And those lies were clearly for the purpose of
obtaining benefits under the immigration laws.  To this day,
petitioner has been unable to provide a cogent explanation of why he
lied to the American officials.  /47/ The only conceivable explanation
for his lies about his wartime residence, date of birth, place of
birth, and wartime occupations, was that he was trying to conceal
something about his past that he thought would jeopardize his visa
application or his citizenship petition.

   In requiring good moral character as a prerequisite to citizenship,
Congress surely could not have intended to include, as an eligible
candidate, someone who engaged in this type of extensive and
deliberate pattern of falsehood and deception.  /48/ Petitioner
repeatedly gave false information to United States government
officials and did so "for the purpose of obtaining * * * benefits"
under the immigration laws (8 U.S.C. 1101(f)(6)).  His
denaturalization is therefore required because he lacked the requisite
good moral character at the time he obtained his citizenship.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   ROBERT H. KLONOFF

      Assistant to the Solicitor General

   SAMUEL ROSENTHAL

   MICHAEL WOLF

   JOSEPH F. LYNCH

      Attorneys

   MARCH 1987

   /1/ The government also alleged that petitioner had misrepresented
his true marital status, but it later withdrew that charge (Pet. App.
45a n.1;  see also C.A. App. 172-176) ("C.A. App." refers to the three
volume appendix, including the trial transcript, filed in the court of
appeals;  "C.A. Exh." refers to the four volumes of trial exhibits
filed in the court of appeals).

   /2/ The court later denied petitioner's request for attorney's fees
under the Equal Access to Justice Act, 28 U.S.C. 2412(b) and (d), on
the ground that the government had "conducted extensive and
responsible investigation of the charges it brought against
(petitioner)" and had a reasonable basis for the facts alleged in the
complaint (575 F. Supp. 1208, 1210, 1211 (D.N.J. 1983)).

   /3/ By remanding for denaturalization proceedings, the court of
appeals opened the way to the commencement of deportation proceedings;
 petitioner's denaturalization does not automatically result in his
deportation.  If, in the deportation proceeding, the immigration judge
does not find that petitioner assisted in acts of persecution, then
petitioner could be eligible for various forms of relief from
deportation, such as suspension of deportation (8 U.S.C. 1254(a)(1)).
Petitioner therefore errs in characterizing his case as "tantamount to
(a) capital case()" (Pet. 12).

   /4/ At trial, the government introduced deposition testimony, taken
in Lithuania, of several eyewitnesses to the July and August murders.
Three of the witnesses implicated petitioner in the atrocities.  They
testified that petitioner was one of the leaders of the Lithuanians
who assisted the Germans and that he personally gave orders and
participated in the shootings.  See Pet. App. 4a-5a & n.1.  The
district court was concerned about the reliability of Soviet-source
depositions, supervised by Soviet procurators, even though counsel for
the United States and petitioner actually conducted most of the
questioning, and even though some of the witnesses gave testimony that
did not implicate petitioner.  In addition, although all prior
statements of witnesses taken in this case were turned over to
petitioner, the court was troubled that the United States was unable
to obtain from the Soviet Union statements signed by certain of the
witnesses in the 1940's (id. at 105a, 107a).  The court therefore
admitted the depositions solely for the purpose of showing that the
atrocities actually occurred (id. at 108a).  Despite its evidentiary
ruling, howeveer, the court acknowledged at one point (id. at 75a)
that "(t)he government's charges find strong support in three of the
depositions taken in Lithuania." The court of appeals did not find it
necessary to reach the question whether the district court erred in
refusing to consider the depositions as evidence against petitioner
(id. at 6a).  See note 15, infra.

   /5/ In Tuebingen, petitioner was required to register with local
authorities.  The Tuebingen records all reflect petitioner's true
place of birth and most of them reflect his true date of birth (Pet.
App. 117a;  J.A. 56, 65-68).

   /6/ Under Section 7(b) and (c) of the 1924 Act (43 Stat. 156),
petitioner was required to provide certain specified biographical
information, including his date and place of birth, certified copies
of his birth cretificate, if available, and "all other available
public records concerning him kept by the Government to which he owes
allegiance." The regulations provided that if a birth certificate was
not available, other documentary evidence of identity had to be
produced (22 C.F.R. 61.327(e), (f) and (g) (1946)).  Petitioner
admitted at trial (C.A. App. 1018-1020) that when he applied for a
visa in 1947, he had in his possession a Lithuanian identification
document reflecting his true place of birth (J.A. 51-52).  Similarly,
in applying for matriculation at Tuebingen University in 1945,
petitioner provided a 1938 seminary record listing his true date and
place of birth (J.A. 61-63).

   /7/ The record contains no evidence of any atrocities having been
committed in Telsiai (Pet. App. 34a).

   /8/ The vice consul who actually reviewed petitioner's application
was not available and, in any event, indicated to petitioner's
attorney in a telephone conversation that he had no recollection of
the requirements for obtaining a visa (J.A. 175).  See pages 37-38,
infra.

   /9/ The form made clear at the outset (J.A. 42) that "citizenship
(could) be revoked for concealment of a material fact or for willful
misrepresentation."

   /10/ Petitioner made a variety of corrections on the form (see J.A.
47), but he did not correct the false date and place of birth.

   /11/ Petitioner's preliminary naturalization examiner was deceased
(J.A. 155).

   /12/ The district court (Pet. App. 111a) characterized the
certificate as "somewhat suspect." It pointed out (ibid.) that the
date petitioner was supposed to have commenced work (July 6, 1941) was
a Sunday.  The court also noted (ibid.) that the letterhead on the
form was written in both Lithuanian and German, and that, while not
inconceivable, "(t)his would have represented a rather rapid
transition, since the Soviet Army had been driven from the City less
than two weeks before the July 6 date."

   /13/ The court found, contrary to petitioner's testimony, that
petitioner did not leave Kedainiai until October 1941 (Pet. App.
111a).  It noted (ibid.) that "(i)f there were admissible evidence
tending to show that defendant played a part in the killings in
Kedainiai in July and August 1941, the falseness of defendant's
testimony that he was in Kaunas during those months would tend to
corroborate the evidence of his complicity in the killings." However,
because the deposition testimony was not admitted against petitioner
with respect to his role in the atrocities, the court considered
petitioner's false testimony as to when he left Kedainiai only for
general credibility purposes (ibid.).

   /14/ The court did not consider whether, if petitioner had told the
truth at any point during the visa or naturalization process, the
discrepancies created by his prior false testimony and documents would
have been material.  In addition, since it found that no investigation
would have occurred, the court did not consider whether an
investigation would (or might) have uncovered facts justifying a
denial of a visa application or a citizenship petition (Pet. App.
136a-137a).

   /15/ The court nonetheless indicated that it "reject(ed) the
suggestion that all depositions taken in the Soviet Union should be
automatically excluded from evidence" (Pet. App. 6a n.2).

   /16/ The court did not decide whether materiality would be
established if the government could show only that the investigation
"possibly" would have revealed disqualifying facts (Pet. App. 22a).

   /17/ Although the statute speaks in terms of "willful
misrepresentation" or "concealment of a material fact," the Court has
indicated that concealments must also be willful and
misrepresentations must also be material (Fedorenko, 449 U.S. at
507-508 n.28).

   /18/ In his brief, petitioner repeatedly focuses only on the
falsehoods regarding the date and place of his birth;  he gives only
the briefest mention to the falsehoods regarding his wartime
residences and occupations.

   /19/ Section 4 of the Naturalization Act of 1906, ch. 3592, 34
Stat. 596-598, as amended by Act of Mar. 2, 1929, ch. 536, Section 6,
45 Stat. 1513-1514 (now 8 U.S.C. 1427(a)).

   /20/ Indeed, petitioner apparently concedes (Pet. 8) that the
literal language of the second Chaunt test supports the interpretation
we propose.  The leading immigration law treatise also concurs in our
reading of Chaunt.  See 3 C. Gordon & H. Rosenfield, Immigration Law
and Procedure Section 20.4b, at 20-14 (1986).

   /21/ Three members of the Court wrote separately in Fedorenko to
express their understanding of Chaunt.  Justice Blackmun, in a
concurring opinion, concluded that even under the second test in
Chaunt, the government must establish some ultimate disqualifying fact
in order for the misrepresentation at issue to be material.  449 U.S.
at 518-526.  Justice Stevens, in dissent, concluded that the Chaunt
test requires proof that a truthful answer would have led to an
investigation and that a disqualifying circumstance actually existed.
If the government could establish the existence of a disqualifying
fact, according to Justice Stevens, it would be entitled to a
presumption that an investigation begun at the time would have
disclosed that fact.  449 U.S. at 530-538.  Justice White, also in
dissent, rejected the view that the second Chaunt test requires proof
of ultimate disqualifying facts.  His view was that it is enough if
the government can show that a visa "might" have been denied as a
result of an investigation.  449 U.S. at 526-530.

   /22/ The Attorney General, who is charged with the administration
of the immigration laws and whose rulings on questions of law are
controlling within the Executive Branch under 8 U.S.C. 1103(a), has
also read Chaunt to sanction denaturalization even in the absence of
proof of ultimate disqualifying facts.  He issued a ruling in that
regard (in the deportation context) shortly after Chaunt was decided.
See In re S- and B-C-, 9 I. & N. Dec. 444, 447 (1961) (the government
may satisfy the materiality requirement either by proving ultimate
disqualifying facts or by showing that the misrepresentation "tend(ed)
to shut off a line of inquiry which is relevant to the alien's
eligibility and which might well have resulted in a proper
determination that he be excluded").

   /23/ E.g., 18 U.S.C. 1621 (false statement under oath as to a
"material matter");  18 U.S.C. 1623 (false "material declaration"
before a court or grand jury);  and 18 U.S.C. 1001 (concealment of a
"material fact" in a matter within the jurisdiction of a department or
agency of the United States).

   /24/ This provision applies to misstatements to any officer of the
United States government.  See United States v. Bramblett, 348 U.S.
503, 505 (1955).

   /25/ Another criminal statute, 18 U.S.C. 1546, provides that it is
a crime to possess or receive an immigrant visa knowing it "to have
been procured by means of any false claim or statement." Section 1546
likewise does not require proof of disqualifying facts, but only proof
that the false statement was capable of influencing the agency.  See
United States v. Al-Kurna, No. 86-3402 (5th Cir. Jan. 15, 1987).  In
United States v. Wiggan, 673 F.2d 145 (6th Cir.), cert. denied, 456
U.S. 1011 (1982), the court noted (id. at 147) that "the Congressional
policy promoted by section 1546 is a full and honest disclosure about
facts deemed relevant to immigration proceedings." Applying that
standard, the court found that a lie under oath in a visa application
about whether the alien had ever been deported as an illegal alien was
material, even though after the application was completed, the
deportation in question was declared unconstitutional.  See also 18
U.S.C. 1015(a) (prohibiting false statement under oath "in any case,
proceeding, or matter relating to, or under, or by virtue of any law
of the United States relating to naturalization (or) citizenship").

   /26/ See Maikovskis v. INS, 773 F.2d 435, 441 (2d Cir. 1985)
(citing numerous authorities applying Chaunt test in context of visa
misrepresentations), cert. denied, No. 85-1483 (June 16, 1986).

   /27/ The 33 separate categories of ineligibility for aliens seeking
a visa require a vice consul to inquire, inter alia, into the alien's
mental and physical health (8 U.S.C. (& Supp. III) 1182(a)(1)-(7));
financial stability (8 U.S.C. 1182(a)(8) and (15));  marital status (8
U.S.C. 1182(a)(11));  political views (8 U.S.C. 1182(a)(27)-(29));
and service on behalf of the regime of Nazi Germany (8 U.S.C.
1182(a)(33)).

   /28/ Finger's testimony is supported by several court decisions
rendered prior to 1947 holding that misrepresentations as to identity
were material per se to visa and naturalization decisions.  See, e.g.,
McCandless v. United States ex rel. Murphy, 47 F.2d 1072 (3d Cir.
1931);  In re Zycholc, 43 F.2d 438 (E.D. Mich. 1930);  United States
v. Shapiro, 43 F. Supp. 927, 930 (S.D. Cal. 1942);  United States v.
Goldstein, 30 F. Supp. 771, 773 (E.D.N.Y. 1939);  see also United
States ex rel. Karpay v. Uhl, 70 F.2d 792 (2d Cir.), cert. denied, 293
U.S. 573 (1934) (making false statements concerning marital status
under oath in a naturalization proceeding constitutes crime of moral
turpitude warranting deportation).  Since that time,
misrepresentations regarding identity have continued to be considered
highly material to visa or citizenship determinations. See United
States v. DeLucia, 256 F.2d 487, 490 (7th Cir.), cert. denied, 358
U.S. 836 (1958);  Landon v. Clarke, 239 F.2d 631, 634 (1st Cir. 1956);
 see also United States v. D'Agostino, 338 F.2d 490, 491 (2d Cir.
1964);  1A C. Gordon & H. Rosenfield, Immigration Law and Procedure
Section 4.7c, at 4-62 (1986) (concealment of identity "usually has
been deemed material since identity is crucial to the application for
entry and deception frustrates inquiry").  Congress has clearly
indicated the importance it places on facts going to identity;  both
Section 7 of the 1924 Act and Section 1202 of the current statute
specifically require applicants for visas to provide accurate
biographical data, including date and place of birth.

   /29/ Despite extensive testimony by Judge Goldberg in this regard,
the district court failed to consider whether, if petitioner had told
the truth at the naturalization stage, after having lied at the visa
stage, an investigation would have occurred.

   /30/ Indeed, under Section 7(c) of the 1924 Act and the applicable
regulations (22 C.F.R. 61.327(e), (f), and (g) (1946)), petitioner
should have supplied to consular officials all the documents in his
possession or available to him going to his identity.  Had he provided
all such documents there would have been obvious discrepancies even
among the documents themselves.

   /31/ Petitioner suggests (Pet. Br. 14) that his approach is correct
because someone who is going to tell the truth "obviously" would do so
consistently throughout the proceedings.  But this point is anything
but obvious;  a witness may well decide to tell the truth,
notwithstanding his previous submission of false documents, when he is
forced to testify under oath.  Alternatively, he may be careless in
looking over his falsified documents, or he may simply have forgotten
the exact content of his prior lies.  In this regard, we note that
during his interview under oath with government attorneys in 1981,
petitioner gave two completely different accounts about whether he had
previously lied about his date and place of birth.  See pages 9-10,
supra;  United States v. D'Agostino, 338 F.2d 490 (2d Cir. 1964)
(inconsistent statements to naturalization officials concerning
marital status).

   /32/ As petitioner suggests (Pet. Br. 7), disqualification would
ordinarily be possible only if a person lied about his country of
birth and thereby became eligible under a different country's quota
when he would not have been eligible under the quota applicable to his
own country.

   /33/ Finger testified that such a policy was set forth in
regulations (J.A. 218, 227-228).  Although the district court noted
that Finger was "in error on this point," the court recognized that
"perhaps there was an informal policy at the Stuttgart consulate to
prefer Nazi victims" (Pet. App. 119a-120a n.7).  Petitioner misstates
the record in suggesting (Pet. Br. 7, 16-17) that the district court
rejected Finger's testimony concerning the policies for issuing visas
in Stuttgart.

   /34/ Although the version reprinted in the Joint Appendix does not
so reflect, the actual document submitted by petitioner was entitled
"Nazi victims" and contained a stamp to that effect (C.A. Exh. 9).
Petitioner's witness, Vydaudas Vidiekunas, the person who signed that
document, conceded (C.A. App. 1106-1107) that the language of the
document was misleading and should have indicated only that the
subject faced a risk of persecution.  Moreover, Vidiekunas had no
personal knowledge that petitioner faced even that risk, let alone
actual persecution.  He signed the form based on comments by two
individuals;  one of the two was deceased, and Vidiekunas could not
recall the identity of the other (id. at 1118-1119).

   /35/ According to petitioner, the pertinent colloquy was as follows
(Pet. Br. 43 (quoting J.A. 175)):

      Former Vice Consul Frank Schilling was asked by petitioner's
      counsel:  "Let me ask you rather pointedly, whether or not in
      order to gain an immigration quota visa you had to have been in
      fact a victim of Nazi persecution?" and he answered:  "No.  That
      I don't remember."

   When Schilling's remarks are read in context, however, they take on
a totally different meaning (J.A. 175 (emphasis added)):

         DJW (petitioner's attorney) -- Well I have the regulations,
      and the regulations, of course, indicate that at the time that
      the priorities were given to displaced persons but were there
      any other criteria as to which --

         FS (Schilling) -- Not that I remember.  I don't remember any
      of the qualifications at all that were necessary.  That's a long
      while ago.

         DJW -- Let me ask you rather pointedly, whether or not in
      order to gain an immigration quota visa you had to have been in
      fact a victim of Nazi persecution?

         FS -- No.  That I don't remember either.

         DJW -- You have no recollection that there was any such
      policy?

         FS -- That's right.

         DJW -- Do you have any recollection as to what the nature
      would have to have been of a person's occupation in one of the
      occupied countries in order to make him ineligible?

         FS -- No.  I have no recollection at all on that.

         DJW -- Were you ever interviewed by any of the attorneys for
      the Dept. of Justice in connection with this case?

         FS -- No I had a couple of telephone calls, that's all.  I
      offered no information just like I'm not offering any
      information now because I have no recollection of what happened
      at that time.

   /36/ Most of the cited materials were submitted by the Ukrainian
Bar Association in an amicus brief in support of the petition for a
writ of certiorari and are not part of the record.

   /37/ Although petitioner refers (Pet. Br. 36) to the 28,789
European displaced persons who were granted visas by November 1947,
even petitioner's source reveals that only 555 of those visas had gone
to persons of Lithuanian nationality.  Ukrainian Amicus Br. App. 38a.

   /38/ Indeed, the court suggested to petitioner that he might wish
to submit evidence on the issue as part of his affirmative case (C.A.
App. 1074).

   /39/ That evidence included testimony from Stephen Zobarskas, a
Lithuanian emigre who obtained a visa from Finger.  Zobarskas
testified that he was not a victim of persecution but that he
nontheless obtained a visa.  C.A. App. 1160-1164, 1168-1169.  Yet
Zobarskas's alien foreign registration form, which was submitted as
part of his visa application, reflected that he represented himself to
be a "forced laborer" (GX V1;  C.A. Exh. 1275).  See J.A. 227
(testimony of Finger that a forced laborer qualified as a victim of
persecution).  Moreover, Zobarskas acknowleged that Finger had asked
him whether he was a victim of persecution (C.A. App. 1168).  Thus,
Zobarskas's case turned out to corroborate Finger's testimony.

   /40/ We note the irony that petitioner can now explain this
damaging document (J.A. 65) only by stating that he committed yet
another lie.

   /41/ Finger indicated (J.A. 211) that even managing 15 employees
"would have raised some questions in (his) mind, and (he) might have
made further oral inquiry about (petitioner's) activities," although
he would not have denied the visa on that basis alone (ibid.).  That
inquiry may have led to the discovery of evidence that petitioner's
job was in fact more important than he represented at trial and was
instead more consistent with what he told the Germans.  Because of
petitioner's concealment, the government was denied the chance to
conduct such an investigation.

   /42/ Notwithstanding all of the evidence indicating that he was not
a victim of persecution, petitioner suggests (Pet. 18-19;  Pet. Br.
38-39) that an investigation by consular officials would have shown
that he was in fact such a victim.  He cites in particular his
evidence that he was active in the Lithuanian resistance movement.
But the district court (Pet. App. 115a) found that the evidence on the
issue was "conflicting" and noted that it was "impossible to state
with any degree of certainty whether (petitioner) did or did not
participate in the resistance movement." Moreover, petitioner fails to
explain why, if he was indeed a member of the anti-Nazi resistance
movement, he moved to Germany when the German troops retreated from
Lithuania.  And even if petitioner did participate in the resistance
movement, which we dispute, it is unclear how such participation makes
him per se a victim of Nazi persecution.  In any event, as one court
noted in a similar context, whether petitioner would have successfully
passed an investigation was "for government authorities to determine
to their satisfaction based on complete and truthful information in
(1947), not for (petitioner) to decide for himself then, or for (the
court) to decide now." Palciauskas, 734 F.2d at 628.

   /43/ At a minimum, if Goldberg had discovered that the applicant
had given false information about his date and place of birth to the
vice consul, he would have denied the petition and referred the case
to the INS for possible deportation proceedings (J.A. 170, 172-173).

   Petitioner errs in suggesting (Pet. Br. 27-28) that a
naturalization examiner in 1953 would necessarily have forgiven an
applicant's willful misrepresentations as to date and place of birth.
Goldberg's reference to Section 241(f) of the 1952 Act (8 U.S.C.
1251(f)) made clear that a naturalization examiner would have referred
cases of misrepresentations in a visa application to immigration
officials to consider the propriety of a deportation action;  Section
241 of the Act applies only to deportation and not to naturalization
or denaturalization.  Goldberg's testimony was that, even if
immigration officials determined that petitioner had misrepresented
his date and place of birth on his visa application, Section 241(f)
could operate to allow the alien to remain a resident of the United
States.  However, that proceeding would necessarily entail at least a
temporary denial of the naturalization petition.  Goldberg also made
clear that another naturalization petition could be considered only if
an alien obtained discretionary relief under Section 241(f) and
otherwise met the requirements for citizenship, including the
necessary period of residence and physical presence.  J.A. 171-174.

   /44/ Participation in the atrocities, of course, would have
disqualified petitioner from obtaining a visa (see Pet. App.
122a-123a).

   /45/ Even today, while petitioner admits that he lied in
representing to United States officials that he had not lived in
Kedainiai at all between 1939 and 1941, he still maintains that he was
not living there at the time of the atrocities.  The fact that
petitioner continues to insist that he left Kedainiai prior to the
atrocities, in the face of overwhelming evidence to the contrary,
suggests that he has something of grave importance to hide concerning
his activities in Kedainiai during July and August 1941.

   /46/ The Accardo court also posed the following question (113 F.
Supp. at 786):  "How can a person claim to be of 'good moral
character' * * * at the very time he is seeking to defraud the United
States, in a matter of moment both to him and to the country?"

   /47/ At various times, petitioner has given two different reasons
for his misstatements.  First, in his March 1981 sworn interview, he
indicated that he had false documents because he was a member of the
Lithuanian underground and was trying to evade the Germans in April
1944 after the arrest of Lithuanian underground members (J.A.
131-136).  But petitioner's false identification is dated April 26,
1944 (J.A. 28), and the government offered evidence at trial that the
arrests of the underground members occurred on April 29, 1944 (GX T4;
C.A. App. 1120-1121;  C.A. Exh. 1250).  Moreover, the government
offered evidence that the identification card was actually forged by
petitioner in Germany (see Pet. App. 113a).  Second, during discovery
petitioner claimed that he had false documents because he was trying
to avoid German conscription.  But petitioner's own witness, Yuozas
Koncius, testified that in early spring of 1944, German conscription
efforts were directed toward men born in or before 1924 (C.A. App.
1409).  Obviously, petitioner would not have been protected against
conscription by changing his date of birth from 1915 to 1913.  In any
event, these explanations do not explain why, years later, petitioner
lied to the American officials even though he had given truthful
information to the Germans.  Nor does it explain his repeated lies
that he did not live in Kedainiai during July and August 1941.

   /48/ Petitioner argues (Pet. Br. 24-25) that because "illegal
procurement" was not a ground for denaturalization at the time he
obtained his citizenship, it would be unfair to apply that provision
to him.  Although "illegal procurement" existed as ground for
denaturalization prior to 1952, and was restored in 1961, it was
omitted when the 1952 Act was passed.  See Pub. L. No. 87-301, Section
18, 75 Stat. 656 (amending 8 U.S.C. 1451(a));  United States v.
Kairys, 782 F.2d 1374, 1382 n.12 (7th Cir. 1986), cert. denied, No.
85-1752 (May 27, 1986).  But retroactive application of that statute
is perfectly proper.  First, as the court held in Kairys, 782 F.2d at
1380-1382, Congress intended that the 1961 statute be applied
retroactively.  As the court noted (id. at 1382), the 1961 amendment
was added to a section that already contained a retroactivity
provision (8 U.S.C. 1451(i)).  In addition, other provisions of the
1961 amendment were explicitly made prospective only (Sections 17, 19,
75 Stat. 656).  We know of no court that has held the 1961 illegal
procurement provision to be prospective only.  Moreover, such
retroactive application does not offend the Ex Post Facto Clause.  As
this Court recognized in Johannessen v. United States, 225 U.S. 227,
242-243 (1912), in a very similar context, a denaturalization
proceeding does not impose new penalties or make illegal or fraudulent
that which was previously honest or lawful.  See Kairys, 782 F.2d at
1382-1383 (retroactive application of 1961 legislation not a violation
of Ex Post Facto law);  United States v. Koziy, 728 F.2d 1314, 1320
(11th Cir.), cert. denied, 469 U.S. 835 (1984) (same).  The one case
cited by petitioner, United States v. Riela, 337 F.2d 986, 989 (3d
Cir. 1964), is not to the contrary.  Riela involved no issue of
retroactive application of denaturalization legislation.  The court in
that case simply stated that the legality of naturalization must be
determined under the statute in effect at the time of admission to
citizenship (ibid.).  Riela does not help petitioner, since good moral
character was a statutory prerequisite to naturalization in 1954 (8
U.S.C. 1427(a)), when petitioner received his citizenship.  In any
event, petitioner was plainly on notice that misrepresentations to
immigration authorities could result in his loss of citizenship.
Indeed, in 1948, when petitioner declared his intention to become a
United States citizen (J.A. 38-41), illegal procurement was still a
basis for denaturalization.  Nationality Act of 1940, ch. 876, Section
340, 54 Stat. 1160.  Furthermore, petitioner's application for
citizenship warned him about the importance of telling the truth (J.A.
42).  Petitioner could not possibly have believed when he obtained his
citizenship that concealing facts and lying under oath about such
basic data as his date of birth, place of birth, wartime residence and
wartime occupation had somehow been sanctioned by Congress when in
1952 it deleted illegal procurement as a basis for denaturalization.

   APPENDIX