                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-2000

Breyer v. Meissner
Precedential or Non-Precedential:

Docket 98-1842




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Filed June 6, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1842

JOHANN BREYER,
       Appellant

v.

DORIS MEISSNER, U.S. IMMIGRATION AND
NATURALIZATION SERVICE

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 97-cv-06515)
District Judge: Honorable William H. Yohn, Jr.

Argued: April 27, 1999

Before: SCIRICA, ROTH and MCKAY1, Circuit Judges

(Filed: June 6, 2000)



_________________________________________________________________
1. Honorable Monroe G. McKay, Circuit Judge, United States Court of
Appeals for the Tenth Circuit, sitting by designation.
       Willan F. Joseph, Esquire (Argued)
       1831 Chestnut Street, Suite 1001
       Philadelphia, PA 19103

        Attorney for Appellant

       David W. Ogden Acting
        Assistant Attorney General
       Civil Division
       Karen F. Torstenson
       Assistant Director
       Gretchen M. Wolfinger, Esquire
        (Argued)
       United States Department of Justice
       Office of Immigration Litigation
       P.O. Box 878
       Ben Franklin Station
       Washington, DC 20044

        Attorneys for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge.

This case involves the interpretation of our immigration
laws as they apply to Johann Breyer, a naturalized citizen
who claimed, when faced with denaturalization, that he had
been entitled to American citizenship by birth through his
American-born mother. The statutes governing Breyer's
claim to citizenship are S 1993 of the Revised Statutes of
1874 and a 1994 amendment to the Immigration and
Naturalization Act ("INA"), S 101(c)(2) of the Immigration
and Nationality Technical Corrections Act ("INTCA"). In our
review, we consider whether these provisions discriminated
against Breyer's mother on the basis of gender, in violation
of the equal protection clause of the Fifth Amendment to
the Constitution. Because we find that they did
discriminate against the mother, we must then determine
what effect Breyer's subsequent actions during World War
II had on his claim to American citizenship.

                                 2
I. Factual Background

Johann Breyer was born in Czechoslovakia on May 30,
1925, to an American mother and a foreign father. 2 As a
young man, Breyer joined the Waffen SS, a Nazi
paramilitary group, and ultimately became a member of the
SS Totenkopfsturmbanne (Death's Head Battalion). As a
member of the Death's Head Battalion, Breyer guarded
concentration camps where inmates were enslaved,
tortured, and executed because of race, religion, national
origin, or political beliefs.

Breyer served at the Buchenwald concentration camp, in
the Death's Head Battalion guard unit, from February 1943
to May 1944. At Buchenwald, Breyer accompanied
prisoners to and from work sites and stood guard with a
loaded rifle at the perimeter of the camp with orders to
shoot any prisoner who tried to escape. In May of 1944,
Breyer was transferred to the Auschwitz death camp, where
he performed the same duties as he had at Buchenwald. In
August of 1944, Breyer took a paid leave from his duties at
Auschwitz and never returned to the camp.

While he denies that he personally tortured or murdered
prisoners at Buchenwald and Auschwitz, Breyer does not
now deny that he served in the Death's Head Battalion. In
May of 1951, however, when Breyer applied for a visa to
immigrate to the United States under the Displaced Persons
Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009, as amended
by Pub. L. No. 81-555, 64 Stat. 219 (1950) ("the Act"),3 he
_________________________________________________________________

2. As we explain infra, after a bench trial, the District Court found that
Breyer's mother was, in fact, an American citizen. Although we vacated
the District Court's decision on other grounds, we take judicial notice of
its earlier finding concerning Breyer's mother. Moreover, we note that the
court's finding is consistent with allegations contained in Breyer's
pleadings, which we accept as true on review of a dismissal under Fed.
R. Civ. P. 12(b)(6).

3. In pertinent part, the Displaced Persons Act makes ineligible for
admission to the United States,

       any person . . . who is or has been a member of or participated in
       any movement which is or has been hostile to the United States or
       the form of government of the United States, or to any person who
       advocated or assisted in the persecution of any person because of
       race, religion, or national origin.

                                3
did not disclose that he had served in the Death's Head
Battalion. Breyer did, however, admit to having been a
member of the Waffen SS. His visa application initially was
rejected because of this membership. Subsequently,
however, the criteria changed so that membership in the
Waffen SS was no longer a bar to qualifying as a displaced
person. Thus, on March 28, 1952, the United States
Displaced Persons' Commission certified Breyer eligible for
a visa as a displaced person.

Breyer then applied to immigrate to the United States as
an alien under the Act. He was granted an immigrant visa
and entered the United States in May 1952. Breyerfiled a
petition for naturalization in August 1957. On November 7,
1957, Breyer was naturalized as a United States citizen.

II. Procedural History

On April 21, 1992, the United States filed a five-count
complaint against Johann Breyer in the United States
District Court for the Eastern District of Pennsylvania
under S1451(a) of the INA, as amended, 8 U.S.C.SS 1101 et
seq. The complaint was filed to revoke Breyer's naturalized
United States citizenship on the grounds that it was
illegally procured (Counts I, II, III, IV) or was procured by
concealment or willful misrepresentation (Count V). 4 The
government sought to denaturalize Breyer because of his
service as an armed SS guard at Buchenwald and
Auschwitz.
_________________________________________________________________

4. Section 1451(a) states, in pertinent part:

       S 1451. Revocation of naturalization

       (a) Concealment of material evidence; refusal to testify
       It shall be the duty of the United States attorneys for the
respective
       districts, upon affidavit showing good cause therefor, to institute
       proceedings in any district court of the United States . . . for
the
       purpose of revoking and setting aside the order admitting such
       person to citizenship and canceling the certificate of
naturalization
       on the ground that such order and certificate of naturalization
were
       illegally procured or were procured by concealment of a material
fact
       or by willful misrepresentation. . . .

                                4
Breyer conceded that he was ineligible for displaced
person's status as a result of his war time activities.
Nevertheless, he contended that he could not be
denaturalized because, when he entered this country in
1952, he did so lawfully, as a United States citizen. Breyer
asserted that he derived citizenship at birth through his
mother who, he claimed, was born in Philadelphia,
Pennsylvania.

On October 30, 1992, Breyer filed an Application for
Certificate of Citizenship with the Immigration and
Naturalization Service (INS). In his application, Breyer
claimed citizenship through his mother, pursuant to
S 1452(a) of the INA. Soon thereafter, in the District Court
action, the government filed a motion for summary
judgment, seeking Breyer's denaturalization.

On July 7, 1993, the District Court granted partial
summary judgment in the government's favor,
denaturalizing Breyer. At the same time, the District Court
considered Breyer's claim of citizenship through his mother
under the equal protection clause and found thatS 1993
was unconstitutional as applied to Breyer because, at the
time of Breyer's birth, it conferred citizenship to foreign
born offspring of American fathers but not to those of
American mothers. The District Court abstained from
declaring Breyer a United States citizen, however, until
after the trial on the issue of Breyer's citizenship through
his mother. United States v. Breyer, 829 F. Supp. 773 (E.D.
Pa. 1993) (Breyer I ).

The District Court held a four day bench trial to
determine the birth place of Breyer's mother and found that
she had, indeed, been born in the United States. The court
held that the remedy for the unconstitutionality ofS 1993,
as applied to Breyer, was to include mothers under the
statute retroactively. Nevertheless, the District Court
abstained from declaring Breyer a citizen because he had
not exhausted his administrative remedies. His Application
for Certificate of Citizenship was pending before the INS.
The District Court then canceled Breyer's certificate of
naturalization. The court concluded, however, that if Breyer
were ultimately declared a citizen by birth, his certificate of
naturalization would be an extraneous document and its

                               5
revocation would have no effect on his standing as a United
States citizen. United States v. Breyer, 841 F. Supp. 679,
686 (E.D. Pa. 1993) (Breyer II ).

On December 29, 1993, Breyer filed a motion with the
District Court for relief from the judgment and a motion to
alter or amend the judgment, both of which were denied.
Breyer appealed the denial. On appeal, we affirmed, inter
alia, the District Court's cancellation of Breyer's certificate
of naturalization, based on our finding that his war time
activities disqualified him from being considered a
"displaced person." United States v. Breyer, 41 F.3d 884,
890-91 (3d Cir. 1994) (Breyer III). We also concluded that
the District Court had exceeded its jurisdiction by
considering Breyer's derivative citizenship claim. We found
that the court should have limited its review to the question
of whether Breyer's naturalization certificate had been
improperly obtained. Id. at 892.

Subsequently, the INS denied Breyer's Application for
Certificate of Citizenship. He appealed the denial to the
Administrative Appeals Unit ("AAU") of the INS, which
upheld the INS's initial decision. Breyer appealed the AAU's
decision, and on December 30, 1996, the AAU issued a
final denial of Breyer's request for citizenship.

On January 22, 1997, the INS and the Office of Special
Investigations ("OSI") of the United States Department of
Justice instituted deportation proceedings against Breyer.
Breyer was found deportable by an immigration judge on
December 15, 1997.

On October 21, 1997, Breyer filed a Petition for
Declaratory Judgment in the District Court for the Eastern
District of Pennsylvania, requesting review of the AAU's
denial of his application for citizenship. In the petition,
Breyer claimed that he was entitled to citizenship, based on
his mother's status as a citizen of the United States. The
petition was amended on December 15, 1997, to include
claims, inter alia, that the OSI had intentionally misled the
District Court during prior proceedings regarding alleged
material misrepresentations made by Breyer in his
naturalization application and that the decision of Breyer's
former counsel not to contest the OSI's summary judgment

                                6
motion was not authorized by Breyer. In a second motion to
amend, filed on April 14, 1998, Breyer requested leave to
add other defendants and claims pursuant to 42 U.S.C.
SS 1983 and 1985. These claims alleged, inter alia, that
there had been improper lobbying and delay and that
S 101(c)(2) was a bill of attainder. The Commissioner of the
INS moved to dismiss Breyer's petition for failure to state a
claim, pursuant to Fed. R. Civ. P. 12(b)(6). The
Commissioner also opposed Breyer's motion to amend his
petition a second time.

On August 27, 1998, the District Court granted the
Commissioner's motion to dismiss Breyer's petition. Breyer
v. Meissner, 23 F. Supp. 2d 521 (E.D. Pa. 1998) (Breyer IV).
On August 28, the District Court denied Breyer's second
motion to amend his petition. Breyer v. Meissner , 23 F.
Supp. 2d 540 (E.D. Pa. 1998) (Breyer V). We will consider
both orders on this appeal.

III. Jurisdiction and Standard of Review

We have appellate jurisdiction over this action pursuant
to 28 U.S.C. S 1291. The District Court exercised
jurisdiction by virtue of 8 U.S.C. S 1503(a) and 28 U.S.C.
S 2201. Our review of the District Court's dismissal of
Breyer's Petition for Declaratory Judgment and granting of
the government's motion to dismiss Breyer's Petition is
plenary. Lake v. Arnold, 112 F.3d 682, 684-85 (3d Cir.
1997). In reviewing a motion to dismiss, we allow the non-
movant the benefit of all reasonable inferences drawn from
the allegations contained in the complaint, and we accept
these allegations as true. Id. at 684. However, we are not
required to accept legal conclusions alleged or inferred in
the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d
Cir. 1993). We review the District Court's denial of Breyer's
motion to amend his Petition a second time under an abuse
of discretion standard. In Re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).

                               7
IV. Discussion

A. Statutory Framework

1. Section 1993 of the Revised Statutes of 1874

In 1925, when Johann Breyer was born, S 1993 of the
Revised Statutes of 1874 governed the grant of citizenship
to children born to American citizens outside the United
States. The section contained a gender-based distinction. It
granted United States citizenship to the foreign-born
children of American fathers but denied the same to the
children of American mothers:

       All children heretofore born or hereafter born out of the
       limits and jurisdiction of the United States, whose
       fathers were or may be at the time of their birth
       citizens thereof, are declared to be citizens of the
       United States; but the rights of citizenship shall not
       descend to children whose fathers never resided in the
       United States.

This distinction was abandoned in 1934. In that year,
Congress amended S 1993 to make it gender neutral. As
amended, the statute extended citizenship to "[a]ny child
hereafter born out of the limits and jurisdiction of the
United States, whose father or mother or both at the time
of the birth of such child is a citizen of the United States."
R.S. 1993, as amended by Act of May 24, 1934, ch. 344,
S 1, 48 Stat. 797 (1934).5

Because Congress chose not to make the 1934
amendment retroactive, the previous version of S 1993
continued to govern the citizenship status of persons born
before 1934. As a result, all children born abroad in 1934
or later to an American mother or father were entitled to
American citizenship at birth; by contrast, children born
abroad before 1934 were entitled to citizenship only if their
fathers were American. Thus, Breyer did not benefit from
the 1934 amendment to S 1993.
_________________________________________________________________

5. S 1993 was subsequently repealed and replaced. Derivative citizenship
is now governed by provisions found at S 301 of INA, 8 U.S.C. S 1401.

                               8
2. INTCA

In 1994, Congress made the 1934 amendment to S 1993
retroactive for those born before 1934 by passing INTCA.
Pub. L. No. 103-416, 108 Stat. 4305, 4306 (1994).
Specifically, S 101(c)(1) of INTCA conferred citizenship at
birth to all persons born before noon (Eastern Standard
Time), May 24, 1934, to an American mother or father. Id.
at 4306.

The amendment contained an exception, however. This
exception, contained in S 101(c)(2), states that the
retroactive application of the amendment "shall not confer
citizenship on, or affect the validity of any denaturalization,
deportation, or exclusion action against, any person who
. . . was excluded from, or who would not have been eligible
for admission to, the United States under the Displaced
Persons Act of 1948 . . .." Id. at 4306.

B. Application of The Statutes to Breyer

Breyer challenges the constitutionality of S 1993 because
it denied him citizenship at birth by way of his mother,
while it would confer citizenship upon a similarly situated
child if the child's father was American. He challenges the
constitutionality of S 101(c)(2) of INTCA because, like
S 1993, it denies him citizenship through his mother,
although he could not have known when he committed his
war time activities that they would be expatriating. He
argues that S 101(c)(2) should not apply to him and that,
like the children, born before 1934, of American fathers, he
is entitled to citizenship pursuant to S 101(c)(1).

By contrast, the government argues that this case does
not concern gender discrimination within the context of
citizenship rights but rather Congress's powers to regulate
immigration and naturalization. The government argues
that S 1993 does not apply to Breyer because he was
properly disqualified from citizenship under the Displaced
Persons Act and thus, under S 101(c)(2), because of his war
time activities. The government defends the
constitutionality of S 101(c)(2) by arguing that the statute
protects two legitimate and important governmental
objectives: it eliminates the gender distinction formerly
contained in S 1993 by ensuring the equal treatment of all

                               9
foreign-born children who have committed expatriating
acts, and it protects national security by ensuring the
integrity of American citizenship.

The District Court's dismissal of the declaratory
judgment action was based only on S 101(c)(2). First, it
determined that Breyer was ineligible for entry into this
country as a displaced person and that his improper
attainment of a certificate of naturalized citizenship made
S 101(c)(2) of INTCA applicable to this case. Although the
court noted that it was considering Breyer's mother's
rights, Breyer IV, 23 F. Supp. 2d at 531 n.7, it did not
review the statute as to how it affected the mother. Second,
the District Court concluded that Congress's regulation of
immigration and naturalization, including its passage of
S 101(c)(2), was entitled to great deference. Id. at 532. Thus,
in the immigration context, the court analyzed S 101(c)(2)
under the functional equivalent of the rational relation
standard of review applied in equal protection cases that do
not involve suspect classes. This test requires a"facially
legitimate and bona fide" rationale for S 101(c)(2). Id. at 533
(citing Fiallo v. Bell, 430 U.S. 787, 794 (1977)).6 Under this
standard, the District Court found that the statute
advanced the remedial goal of protecting national security
and of ensuring equal treatment to foreign-born children of
American women, including those children who have
committed expatriating acts or who are ineligible for entry
into the United States. Id. at 534-37.

The District Court then dismissed Breyer's claim that
retroactive application of S 101(c)(2) violated due process on
the same basis as its equal protection analysis. Moreover,
the court concluded that Breyer had no protected interest
in citizenship that implicated the right to due process. Id.
at 538. The District Court concluded in a footnote that
Breyer's claim to citizenship from birth was mooted by
_________________________________________________________________

6. The "facially legitimate and bona fide reason" test established in
Fiallo,
430 U.S. at 794, an immigration case, has been found analytically
equivalent to the rational basis test normally applied in equal protection
cases in which no suspect class is involved. See Ablang v. Reno, 52 F.3d
801, 804 (9th Cir. 1995); Azizi v. Thornburgh , 908 F.2d 1130, 1133 n.2
(2d Cir. 1990).

                               10
S 101(c)(2). Id. at 538 n.12. The District Court also
determined that S 101(c)(2) was not a bill of attainder. Id. at
540.

 1. Equal Protection Analysis

We find, however, that the District Court's analysis
inadequately addressed the issues presented in this case.
This case involves a conflict with regard to the transmission
of citizenship both to the parent and to the child. For that
reason, to the extent that a parent's right to equal
protection was violated by S 1993, we cannot ignore that
statutory provision and thereby limit our analysis to
S 101(c)(2). The District Court erred when it found S 1993
inapplicable to the facts of this case and concluded that
Breyer's claim posed a challenge only to S 101(c)(2).
Because Breyer is making his claim by an assertion of his
mother's rights under S 1993, both S 1993 of INA and
S 101(c)(2) of INTCA are applicable. We must begin our
analysis at the time when the mother's right that Breyer is
asserting was implicated -- i.e., in 1925 when Johann
Breyer was born.

       a. Section 1993

Our first consideration under S 1993 is that of standing:
Is Johann Breyer entitled to assert his mother's equal
protection rights pursuant to the doctrine of third party
standing? This doctrine was most recently explicated in
Campbell v. Louisiana, 523 U.S. 392 (1998). In Campbell,
the Supreme Court held that a white criminal defendant
had standing to raise equal protection and due process
objections to discrimination against blacks in the selection
of grand jurors where this bias was alleged to have infected
the state's process of prosecuting and convicting him. Id. at
395-403. In reaching this decision, the Court reiterated
that one who wishes to assert a third party's rights must
demonstrate "injury in fact," a close relationship to the
third party, and a hindrance to the third party asserting its
own rights. Id. at 397 (citing Powers v. Ohio, 499 U.S. 400,
411 (1991)).

Breyer meets these prerequisites for asserting his
mother's equal protection rights: his own alleged

                                11
deprivation of citizenship as a result of discrimination
against his mother constitutes injury-in-fact, the closeness
of his relationship to his mother is obvious, and his
mother's death most definitely constitutes a hindrance to
her assertion of her own rights. Accord Wauchope v. United
States Dep't of State, 985 F.2d 1407, 1411 (9th Cir. 1993)
(rejecting government's claim that foreign-born offspring of
deceased American mothers did not have standing to
challenge the constitutionality of R.S. S 1993); Aguayo v.
Christopher, 865 F. Supp. 479, 484 (N.D. Ill. 1994) (same);
Elias v. United States Dep't of State, 721 F. Supp. 243, 246-
47 (N.D. Cal. 1989) (same).

Our next consideration is the standard of scrutiny we will
apply to Breyer's assertion of his mother's rights. The
application of S 1993 to Breyer's mother concerns her right
to equal protection under the laws. Because S 1993 created
a gender classification with respect to Breyer's mother's
ability to pass her citizenship to her foreign-born child at
his birth, the section is subject to heightened scrutiny.
Thus, this action is distinguishable from cases in which
courts have considered the equal protection rights of
naturalized persons themselves and found heightened
scrutiny inapplicable. See Linnas v. INS, 790 F.2d 1024,
1032 (2d Cir.), cert. denied, 479 U.S. 995 (1986).

Likewise, because we consider the rights of Breyer's
mother, this case is distinguishable from Miller v. Albright,
523 U.S. 420 (1998), the recent case in which the Supreme
Court considered S 1409(a) of the INA. Section 1409(a)
requires that by the age of 18 foreign-born illegitimate
children of American fathers present formal proof of
paternity in order to obtain citizenship, while illegitimate
children born abroad to American mothers obtain that
citizenship at birth. See 523 U.S. at 426-28. The Miller
Court did not invalidate S 1409(a), and the lead opinion in
the case, written by Justice Stevens, considered the statute
under a rational relation standard of scrutiny. Id. at 441.
The judgment in Miller was reached by a highly divided
Court, however, with five justices issuing five separate
opinions, and three justices dissenting. Thus, the
precedential value of Miller is unclear, particularly in regard
to the applicable standard of review for INA statutes that

                               12
contain gender classifications. See Rappa v. New Castle
County, 18 F.3d 1043, 1057-61 (3d Cir. 1994) (observing
that when Supreme Court decision is plurality, withfive
separate opinions issued by those agreeing as to judgment,
it is difficult to ascertain what is "law of land" and guiding
principles) (citing Marks v. United States, 430 U.S. 188, 193
(1977)).

Even though we do not find clear guidance from the
Court in Miller, we do find three lines of thought that are
relevant to our decision to apply heightened scrutiny to
Breyer's claims through his mother under S 1993. First,
Justice Stevens in the opinion of the Court, which was
joined by Chief Justice Rehnquist, rejected the petitioner's
grounds for finding S 1409(a) unconstitutional. He rejected
the gender-based rationale because "the conclusion that
petitioner is not a citizen rests on several coinciding factors,
not just the gender of her citizen parent." 523 U.S. at 442.
As he stated further, "[I]t is not merely the sex of the citizen
parent that determines whether the child is a citizen under
the terms of the statute; rather, it is an event creating a
legal relationship between parent and child--the birth itself
for citizen mothers, but post-birth conduct for citizen
fathers and their offspring." Id. at 443.

We can distinguish S 1993 from S 1409(a), however,
because the offspring seeking citizenship underS 1993 are
not illegitimate. For that reason, there is no further
parental acknowledgment required of the male or of the
female parent beyond the fact of the child's birth.

Second, we note that Justice O'Connor in her concurring
opinion, joined by Justice Kennedy, found that the
petitioner did not have third party standing. The petitioner
had not demonstrated that her father, who was still living,
could not assert his rights. Justice O'Connor commented,
"The statute . . . accords differential treatment to fathers
and mothers, not to sons and daughters. Thus, although
petitioner is clearly injured . . ., the discriminatory impact
of the provision falls on petitioner's father . . . who is no
longer a party to this suit. Consequently, I do not believe
that we should consider petitioner's gender discrimination
claim." Id. at 445-46. In the absence of the father, the
daughter's challenge to the constitutionality ofS 1409, if

                               13
indeed assertable, triggered only rational basis scrutiny:
"[Section] 1409 does not draw a distinction based on the
gender of the child, so petitioner cannot claim that she has
been injured by gender discrimination." Id . at 451.

Third, we note in Justice Breyer's dissenting opinion,
joined by Justices Souter and Ginsburg, that Justice
Breyer found that the petitioner did have standing to assert
her father's rights. Id. at 473. He concluded that Miller
involved citizenship rights, id. at 476-77, the "most
precious right," id. at 477 (quoting Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 159 (1963)), rather than alienage.
Based on his determination that the case involved a gender
classification within the context of citizenship, Justice
Breyer applied a heightened level of scrutiny to the gender-
based classification at issue in S 1409(a). 523 U.S. at 477-
78. Applying this standard, Justice Breyer foundS 1409(a)
unconstitutional: "If we apply undiluted equal protection
standards, we must hold the . . . statut[e] at issue
unconstitutional." Id. at 481.

Because the case before us also involves a third party
claim derived from the rights of the American citizen
mother and because the mother can no longer assert her
rights herself, we conclude that a heightened level of
scrutiny should apply here.

Although this case, like Miller, "is about American
citizenship and its transmission from an American parent
to [her] child," id. at 476, we address these issues within
the disturbing context of a child who grew up to become a
Nazi and who now desires the equal protection of our laws.
While this context may appear in tension with the ideals of
American citizenship, in actuality it demonstrates how
precious the equal application of the laws is to a just
society. Indeed, Nazi persecution of those deemed inferior,
including those believed to be morally undesirable, was
accomplished in part through the manipulation and biased
application of the law.7 Thus, history teaches that we must
_________________________________________________________________

7. See WILLIAM L. SHIRER, THE RISE AND THE FALL OF THE THIRD R
              EICH 196 (4th
ed. 1988) (describing how the passage in 1933 of the"Law for Removing
the Distress of People and Reich" cloaked the rise of Nazi party "in

                               14
apply the laws even-handedly, at all times, to all people,
including those whose actions we find to have been
repugnant. With these considerations in mind, we will
evaluate S 1993, as applied to Breyer's mother, and through
her to Johann Breyer, an admitted SS guard, under the
same heightened standard of scrutiny to which any other
gender-based classification is subject. See e.g. United States
v. Virginia, 518 U.S. 515, 531 (1996); Mississippi Univ. for
Women v. Hogan, 458 U.S. 718, 724 (1982); Frontiero v.
Richardson, 411 U.S. 677, 684 (1973).

This heightened level of scrutiny requires "[p]arties who
seek to defend gender-based government action [to]
demonstrate an `exceedingly persuasive justification' for
that action." Virginia, 518 U.S. at 531 (citing J.E.B. v.
Alabama, 511 U.S. 127, 136-37 & n. 6 (1994) and
Mississippi Univ. for Women, 458 U.S. at 724). An
exceedingly persuasive justification must be proffered even
if the statute at issue is designed to remedy past gender-
based discrimination. Virginia, 518 U.S. at 533; cf. Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 220-22 (1995)
(requiring strict scrutiny of race-based classifications made
by federal government, even if they are designed to remedy
past discrimination). The burden of proving that the
gender-based classification in question "serves important
objectives" and that the discriminatory means employed to
achieve these objectives are "substantially related" to the
achievement of those objectives "rests entirely on the
State." Virginia, 518 U.S. at 533.

We do not find that the government has offered an
"exceedingly persuasive justification" in support of the
gender classification that prevented Breyer's mother from
conveying American citizenship at the birth of her son. In
fact, the government has not at all attempted to justify the
_________________________________________________________________

legality"); id. at 200-01 (describing the promulgation of the "Law for the
Reconstruction of the Third Reich" in 1934 and explaining how it
"lawfully" allowed the development of a "one-party totalitarian [Nazi]
State [to be] achieved with scarcely a ripple of opposition or defiance");
id. at 263 (describing how the "Law Regulating National Labor" of 1934
made German workers "industrial serfs," and captains of industry
"absolute masters").

                               15
classification contained in S 1993. Instead, the government
maintains that this case is not at all about gender
discrimination in the transmission of citizenship rights but
about the government's right to deny entry and citizenship
to Nazis and like individuals. Thus, the government argues
that Breyer's claim should only be considered under INTCA,
and in particular under S 101(c)(2). We find, however, that
this case indisputably concerns gender discrimination
within the context of the transmission of citizenship rights.
Because Breyer is asserting his mother's rights, which
arose in 1925, we must deal with S 1993 before we turn to
S 101(c)(2), and in doing so we must analyze the impact of
the discriminatory language of S 1993.

The government has chosen not to present a justification
for this preliminary step of analyzing the purpose behind
S 1993. They must for this reason concede thisfirst step.
There is no support in the case law for surmising a defense
for the government in gender discrimination cases, where it
has not offered one. We will not do so here.

In finding that S 1993 unconstitutionally perpetuated
gender discrimination, we are joined by the Ninth Circuit
and two district courts, all of which reviewed the statute
under the much more deferential rational relation standard
of review. See Wauchope, 985 F.2d at 1416 ("The United
States has not set forth a facially legitimate and bona fide
reason to justify [S 1993's] unequal treatment of citizen men
and women."); Aguayo, 865 F. Supp. at 490 (finding that
S 1993 is unconstitutional under rational relation standard
because it unlawfully discriminates against those"whose
only misfortune . . . was to be born of citizen mothers
instead of citizen fathers); Elias, 721 F. Supp. at 249 ("[W]e
are obliged to find [S 1993's] differential treatment of men
and women unconstitutional if the review power explicitly
articulated by the Fiallo Court is to have any meaning.").

We conclude, therefore, that S 1993 does not survive
equal protection analysis. It unconstitutionally
discriminated against Breyer's mother on the basis of
gender, with the effect of depriving her son, Johann Breyer,
of citizenship at birth.

                               16
        b. Section 101(c)(2)

Having determined that Breyer's mother was denied
equal protection of the laws by S 1993 and that she should
have been entitled to pass on her U.S. citizenship to her
son at the time of his birth, we now turn to the effect of the
1994 amendment to the INA, which added S 101(c)(2).
Breyer claims that S 101(c)(2) perpetuates the
discriminatory impact of S 1993 in that it deprives his
mother of the right to pass on her citizenship to him due to
wrongdoing on his part in a situation where he could not
know of the expatriating effect of his wrongdoing.

The government defends the constitutionality of
S 101(c)(2) by citing two rationales for the statute's
enactment. It eliminates the gender distinction formerly
contained in S 1993 by ensuring the equal treatment of all
foreign-born children who have committed expatriating
acts, and it protects the national security by ensuring the
integrity of American citizenship. The remedying of gender
discrimination is the primary justification offered for
S 101(c)(2).

The District Court found these reasons bona fide and
legitimate under the Fiallo standard. Breyer IV, 23 F. Supp.
2d at 533-37. The court's decision was premised on its
assumption that Breyer was asserting an equal protection
claim not as a putative citizen but as an alien who clearly
is deportable under S 101(c)(2). Id. at 535. The court found
that "[t]he people affected by INTCA are not citizens who are
expatriated by 101(c)(2); they are instead aliens who are
denied naturalization by S 101(c)(2), and the denial of
naturalization burdens no fundamental right of
citizenship." Id. Reviewing S 101(c)(2) under the deferential
Fiallo standard, the court accepted the government's
justifications for the statute's constitutionality. The District
Court found S 101(c)(2) a legitimate means of ensuring the
equal treatment of all foreign-born children of American
citizens, who have committed expatriating acts, and of
protecting the national security. Breyer IV, 23 F. Supp. 2d
at 533--37.

We disagree with the analysis of the District Court. Its
decision appears to be predicated upon the incorrect

                               17
assumption that Breyer's challenge to S 101(c)(2) was
asserted only on his own claim to citizenship, rather than
on his assertion of his mother's claim to equal protection.
However, as we stated supra, Breyer asserts his mother's
equal protection rights as to S 1993. As we explain below,
we conclude that S 101(c)(2) incorporates the gender
discrimination of S 1993, as applied to Breyer's mother. For
that reason, the rights of Breyer's mother, an American
citizen, underpin Breyer's challenge to S 101(c)(2).

The fundamental problem with S 101(c)(2) as applied to
Breyer and his mother is that it preserves an anomaly:
Whereas a child born to an American father is and always
has been entitled to United States citizenship at birth, a
particular subset of children born to an American mother
continue to be excluded from citizenship. Thus, while
S 101(c)(1) cured the discriminatory effects of S 1993, as
written in 1925 and amended in 1934, S 101(c)(2) took
away that cure for a subset of American mothers whose
foreign-born off-spring have committed certain acts.
However, it is the conduct of the offspring, not the conduct
of the American citizen mothers, that determines the
differentiation. The 1994 amendment does not then
"completely and irrevocably eradicat[e] the effects" of the
discrimination against mothers contained in S 1993. See
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)
(holding that claim is moot only if violation has ceased and
interim relief or events have "completely and irrevocably
eradicated the effects" of the violation).

Moreover, it is clear from the legislative history that
Congress was focused on the offspring, and not on the
remedy for S 1993's discrimination to the mothers, when it
enacted S 101(c)(2). Representative [now Senator] Schumer
explained that the bill that would become S 101(c)(2)
remedied the gender discrimination inherent in S 1993 as it
applied to some American citizen mothers, but intentionally
did not extend that cure to mothers of certain offspring who
had committed "expatriating" acts.

       Currently, only a child of an American father born
       overseas can be naturalized. This provision would
       extend naturalization to children born of American
       mothers--ironing out a wrinkle in our immigration law.

                               18
       However, there are several Nazi expatriation cases
       pending in the United States that would be jeopardized
       if Nazi children of American mothers were to be
       naturalized. Nazis born to American fathers do not
       have this problem because a recent court case ruled
       that if an individual was aware of their U.S. citizenship
       at the time the crimes were committed they can be
       found guilty of an expatriating crime. Obviously Nazis
       naturalized retroactively could not have known of their
       U.S. citizenship during the time their crimes were
       committed. Proper persecution of these individuals
       depends on the ability to denaturalize and deport them
       to stand trial overseas for war crimes. Although this is
       a strange twist in the law it must be reconciled. H.R.
       783 would do just that.

Vol. 140, No. 132 Cong. Rec. H9280 (daily ed. Sept. 20,
1994) (statement of Rep. Schumer); see also id . at H9277
(recognizing that relevant section of INTCA corrected sex
discrimination in S 1993, as amended, "while expressly
prohibit[ing] the conferral of citizenship to anyone who
assisted in any form of Nazi persecution") (statement of
Rep. Mazzoli).

These statements demonstrate that Congress
contemplated that the exception contained in S 101(c)(2)
would exclude persons like Breyer.8 Congress's decision to
employ S 101(c)(2) to deny citizenship to Breyer and to
similarly situated children of American citizen mothers was
premised on case law that holds that the government must
prove that a citizen has intended to relinquish citizenship
in order to demonstrate that that citizen has expatriated
himself. See Vance v. Terrazas, 444 U.S. 252, 270 (1980).
Since S 1993 granted citizenship to the foreign-born
children of male American citizens during all relevant
periods, these children may have been aware of their
American citizenship during the World War II period. See
United States v. Shiffer, 831 F. Supp. 1166, 1190-91 (E.D.
_________________________________________________________________

8. The Department of Justice,   which prosecuted Breyer's
denaturalization claim in the   trial courts, lobbied for the exception
contained in S 101(c)(2). See   Vol. 139, No. 164 Cong. Rec. S16863 (daily
ed. Nov. 23, 1993) (statement   of Sen. Kennedy).

                                 19
Pa. 1993), aff'd, 31 F.3d 1175 (3d Cir. 1994). The voluntary
participation in Nazi persecution by those who were aware
of the expatriating nature of their actions has been found
inconsistent with an intent to retain United States
citizenship. See Shiffer, 831 F. Supp. at 1191 (citing
Richards v. Secretary of State, 752 F.2d 1413, 1420 (9th
Cir. 1985)). Thus, the government can expatriate the
children of American citizen fathers who knowingly
committed expatriating acts.

By contrast, since S 1993 discriminated against the
foreign-born children of American females during all
relevant periods, these children presumptively would not
have known that their participation in Nazi persecution
constituted an act of expatriation. Thus, they may not have
realized that these actions would forfeit their American
citizenship, of which they were also unaware at the time.
Section 101(c)(2) attempts to skirt the requirement that a
citizen intend, by his actions, to expatriate himself. It does
so by referring to certain conduct by offspring that can in
turn lead to denaturalization, deportation, or exclusionary
proceedings against the offspring, rather than to the
offspring's act of expatriation itself. This shift in the
prohibitory language eliminates the intent requirement,
which the Supreme Court established in Terrazas for
citizens, and substitutes for it the test applied to aliens,
which does not require a showing of intent.

This differentiation, however, leaves the underlying
discrimination intact. Rather than eradicating all
discrimination occasioned by S 1993, S 101(c)(2)
perpetuates it by imposing a different test on the foreign-
born offspring of American mothers than it does on the
foreign-born offspring of American fathers. The foreign-born
children of American fathers will acquire citizenship at
birth and lose it only by intentionally committed
expatriating acts. The foreign-born children of American
citizen mothers will be prevented from obtaining American
citizenship if they, with or without intent, have committed
similar expatriating acts. The subjection of American
women to this additional burden for the transmission of
citizenship to their foreign-born offspring is in fundamental
tension with the principle of equal protection. Wefind no

                               20
legitimate reason for such disparate treatment of American
citizen mothers that is sufficient to override their guarantee
to equal protection of the laws. We reach this conclusion
even though the foreign-born children have committed acts
that we find morally repugnant. Our focus in this section of
our analysis is on the mother, not on the offspring.
Moreover, the fact that S 101(c)(1) of INTCA remedies
discrimination against some American citizen mothers does
not cure the defects inherent in S 101(c)(2).

Nor is the dissimilar treatment of American citizen
mothers, perpetuated by S 101(c)(2), justified as a means of
protecting national security. The government provides no
evidence in support of this proposition. The government
position is directed to the offspring, not to the American
citizen mothers. Indeed, the cases that the District Court
cites to support its conclusion that the government's
national security justification for S 101(c)(2) is rational refer
only to alienage. For that reason, these cases do not control
the interests of American citizen mothers or their foreign-
born children, but only the interests of resident aliens with
no birth claim to citizenship. See, e.g., Harisiades v.
Shaughnessey, 342 U.S. 580, 588-89 (1950) (upholding
expulsion of resident aliens for membership in the
Communist party); Schellong v. INS, 805 F.2d 655 (7th Cir.
1986); Linnas, 790 F.2d at 1030. Consequently, because
these cases offer us no guidance on how S 101(c)(2) impacts
the equal protection right of Breyer's American citizen
mother relative to S 1993, they are inapposite to this action.

For these reasons, we conclude that the disparate
treatment of mothers that S 101(c)(2) perpetuates is
arbitrary and irrational, see Vance v. Bradley , 440 U.S. 93,
97 (1993). We hold that S 101(c)(2), as applied to Breyer's
mother and through her to Johann Breyer, violates equal
protection by perpetuating the gender discrimination
contained in S 1993, which prevented his mother from
transmitting citizenship to him at birth. Johann Breyer
should be entitled to American citizenship relating back to
the time of his birth.

2. Intent Requirement for Expatriating Acts

This conclusion does not, however, terminate our
consideration of this difficult case. We have determined that

                               21
Johann Breyer should have been entitled to American
citizenship from the date of his birth, but is he still so
entitled? Even though we conclude that S 101(c)(2) is
constitutionally invalid, must we ignore Johann Breyer's
activities during World War II and the impact that the
decisions he made during that period may have had on his
present claim to citizenship?

Let us begin our further consideration by reviewing the
reason for which Congress amended the statute in 1994 in
the way in which it did. Congress based the exclusionary
provisions of S 101(c)(2) on denaturalization, deportation or
exclusion grounds, rather than on the grounds for
expatriation. The reason for this is that a denaturalization,
deportation, or exclusion action against an alien can be
taken without any proof that the alien intended to commit
the acts that qualify him for the sanction; there is no intent
requirement. On the other hand, the Supreme Court has
held that a citizen cannot be expatriated without an intent
to surrender United States citizenship. See Terrazas, 444
U.S. at 270. The decision in Terrazas grew from the holding
in Afroyim v. Rusk, 387 U.S. 253 (1967), in which the
Supreme Court ruled that Congress could not take away
citizenship simply on the basis of certain actions a citizen
may have taken, without a citizen voluntarily renouncing it
or giving it up. Arguably, Breyer could not have intended to
surrender his American citizenship if he did not realize that
he was entitled to it. Nevertheless, we see an important
distinction between the facts of cases like Terrazas and
Afroyim and the situation before us.

Beys Afroyim was born in Poland and naturalized as an
American citizen when he was a young man. After 34 years
he went to Israel where he voted in an election for the
Israeli Knesset. When he went to the American Embassy to
renew his passport, the Department of State refused to do
so on the ground that he had lost his American citizenship
by virtue of S 401(e) of the Nationality Act of 1940, which
provided that a citizen would "lose" his citizenship if he
voted in a political election in a foreign state. Afroyim
challenged this decision, and ultimately the Supreme Court
held that Congress could not deprive him of his citizenship
unless he voluntarily relinquished it.

                                22
Laurence Terrazas held American and Mexican
citizenship from the time of his birth in the United States
as the son of a Mexican citizen. When he was a student in
Mexico at the age of 22, he executed an application for a
certificate of Mexican nationality "expressly renounc[ing]
United States citizenship, as well as any submission,
obedience, and loyalty to any foreign government, especially
to that of the United States of America . . .." 444 U.S. at
255. He obtained a certificate of Mexican citizenship that
provided that he had "expressly renounced all rights
inherent to any other nationality, as well as all submission,
obedience, and loyalty to any foreign government, especially
to those which have recognized him as that national." Id.
Terrazas later brought suit against the Secretary of State
for a declaration of his U.S. nationality. The government
argued that Terrazas had knowingly sworn allegiance to
Mexico and renounced his allegiance to the United States.
The Supreme Court held that when a statutory expatriating
action is proved by a preponderance of the evidence, it is
constitutional to presume the action to have been voluntary
"until and unless proved otherwise by the actor." Id. at 270.
If the actor succeeds in proving the act was not voluntary,
he will not be expatriated. If he fails, the court must
determine whether the expatriating act was performed with
an intent to relinquish citizenship. Id. Terrazas's case was
remanded for the District Court to make furtherfindings on
voluntariness.

The acts committed by Johann Breyer are very different
from those of Afroyim and Terrazas. During World War II,
when Germany was at war with the United States, Breyer
joined first the Waffen SS and then the Death's Head
Battalion. The Waffen SS was a voluntary organization.9
The Death's Head units were composed of volunteers from
other SS units.10 Apparently, Breyer may have made a
knowing and voluntary decision to join each of these
groups. Some historians assert that such a commitment
_________________________________________________________________

9. Apparently until approximately mid-1942, no one was compelled to
join any part of the SS organization. Enlistment was genuinely
voluntary. See HELMUT KRAUSNICK ET AL., ANATOMY OF THE SS STATE 387
(1965).

10. Id. at 570.

                               23
was knowing and voluntary. One commentator has
described the situation as follows:

       So anyone who joined the SS later than 1934 must
       have known what he was doing. Naturally the extent to
       which a man realized the significance of his action
       depended in some degree upon his educational level
       and political background; a yokel joining a Totenkopf
       Sturmbann in 1937 is not to be equated with a barrister
       entering the SD at the same period. Nobody joining the
       SS could of course know that he would later be ordered
       to take part in organized mass murder; nevertheless
       anyone must have been aware that he was joining an
       organization where he would have to carry out illegal
       orders. By the mere fact of joining he was accepting
       certain principles and practices which could not but
       lead on occasions to culpable action. No one of course
       who lives under a totalitarian system can be sure that
       he will not one day be forced into a tragic situation for
       which he may be held guilty. Entry into the SS,
       however, implied that a man accepted this risk with his
       eyes open. The nearest to an exception was the man
       who joined the SS-Verfugungstruppe; it was, of course,
       part of the praetorian guard but nevertheless its
       training was clearly exclusively military and it had
       nothing to do with the political duties of the Allgemeine
       SS, with political police matters or with concentration
       camps. Everybody, however, who joined the SS was
       forsaking the sphere in which obligations were simply
       those of the normal loyal citizen and entering that in
       which the ideological order was paramount. By the
       mere fact of joining the SS every man was giving his
       ideological assent and declaring himself ready to do
       more than his duty.11

The above description of the knowing commitment made
by a member of the Death's Head Battalion, during a period
when Germany was at war with the United States,
demonstrates a loyalty to the policies of Nazi Germany that
is wholly inconsistent with American citizenship. Although
when he took his oath of allegiance first to the Waffen SS
_________________________________________________________________

11. Id. at 390.

                               24
and then to the Death's Head Battalion, Johann Breyer was
not aware of his right to American citizenship, one could
conclude that he voluntarily made a commitment that, had
he known of this right, clearly would have repudiated it.
Afroyim and Terrazas do not deal with such a situation
where a knowing commitment to a foreign nation at war
with the United States is accompanied by voluntary acts
that plainly disclaim any allegiance to the United States
and the political principles for which it stands. We conclude
that Johann Breyer may have made such a disclaimer of
allegiance to the United States by a voluntary enlistment in
the Waffen SS and then again in the Death's Head
Battalion.

Under Terrazas, Breyer has the burden of proving that
his expatriating acts were not voluntary.12 If these acts were
voluntary, however, the court must determine whether they
were performed with an intent to relinquish citizenship. We
conclude that a voluntary oath of allegiance to a nation at
war with the United States and to an organization of that
warring nation that is committed to policies incompatible
with the principles of American democracy and the rights of
citizens protected by the American constitution-- an
organization such as the Death's Head Battalion-- is an
unequivocal renunciation of American citizenship whether
or not the putative citizen is then aware that he has a right
to American citizenship.

We will, therefore, remand this case to the District Court
to make further findings concerning the circumstances
under which Breyer joined the Waffen SS and the Death's
Head Battalion to determine if his actions constitute a
voluntary and unequivocal renunciation of any possible
allegiance to the United States of America, a renunciation
made in a time of war against the United States that
demonstrated an allegiance to Nazi Germany and a
repudiation of any loyalty -- citizen or not -- to the United
States. Cf. Perez v. Brownell, 356 U.S. 44, 68 (1958)
(Warren, C.J., dissenting and stating that some actions
"may be so inconsistent with the retention of citizenship as
_________________________________________________________________

12. Entering the armed forces of a foreign state or serving in its
government is an expatriating act. See 8 U.S.C. S 1481(a)(4) and (5).

                               25
to result in loss of that status."). On remand, the District
Court must determine whether Breyer's acts constitute
such a renunciation.

Because of our conclusion on the unconstitutionality of
S 101(c)(2), we do not need to consider Breyer's due process
and bill or attainder arguments. Concerning Breyer's
contention that he should have had the right to amend his
complaint for a second time, Fed. R. Civ. P. 15(a) allows a
party to amend his complaint once as a matter of right.
Subsequent amendments are at the discretion of the court;
courts may deny leave to amend on grounds such as undue
delay, dilatory motive, bad faith, prejudice, and futility. In
Re Burlington Coat Factory Sec. Litig., 114 F.3d at 1434.
Courts are advised to grant leave to amend if "justice so
requires." Id.

Breyer appeals the District Court's failure to grant him
leave to amend his Petition a second time, after he
amended it once as a matter of right. The District Court's
refusal to grant Breyer leave to amend a second time was
based on its determinations that the amendments were
predicated upon a dilatory motive, and in any event, would
be futile. The District Court's reasoning regarding Breyer's
request to amend is set forth in a lengthy and thoughtful
memorandum.

After reviewing the record in this case and the court's
Memorandum and Order denying the motion to amend, we
find no cause to disturb the District Court's conclusions.
Therefore, we find that the District Court did not abuse its
discretion in failing to allow Breyer to amend his Petition a
second time.

V. Conclusion

For the foregoing reasons, we conclude that Johann
Breyer was improperly denied citizenship at birth and
reverse the District Court's Order of August 27, 1998. We
affirm the Order of August 28, 1998, denying Breyer leave
to amend his complaint. We remand this case to the
District Court for further proceedings consistent with this
opinion.

                               26
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               27
