                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-2003

Breyer v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 02-4226




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                         PRECEDENTIAL

                             Filed November 19, 2003

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                   No. 02-4226


                JOHANN BREYER
                        v.
               *JOHN ASHCROFT,
U.S. IMMIGRATION AND NATURALIZATION SERVICE,
                                      Appellant
           *(Pursuant to F.R.A.P. 43(c))

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

              Argued July 29, 2003
Before: SCIRICA, Chief Judge, RENDELL and AMBRO,
                   Circuit Judges

            (Filed November 19, 2003)
                 JONATHAN C. DRIMMER, ESQUIRE
                  (ARGUED)
                 DAVID W. FOLTS, ESQUIRE
                 Office of Special Investigations
                 United States Department of Justice
                 Criminal Division
                 10th & Constitution Avenue, N.W.
                 Keeney Building, Suite 200
                 Washington, D.C. 20530
                   Attorneys for Appellant
                                   2


                          MARTIN R. LENTZ, ESQUIRE
                           (ARGUED)
                          Pelino & Lentz
                          One Liberty Place, 32nd Floor
                          1650 Market Street
                          Philadelphia, Pennsylvania 19103
                            Attorney for Appellee


                   OPINION OF THE COURT

SCIRICA, Chief Judge.
  The government seeks to strip Johann Breyer of his
United States citizenship for serving in the Waffen SS
during World War II. At issue is whether Breyer, who joined
at age seventeen, was a voluntary member of the Nazi
military unit. The District Court found that he was not, and
consequently issued a declaratory judgment that Breyer
was a United States citizen. We will affirm.1

                                   I.
   The facts of this case have been extensively discussed
elsewhere, especially in the District Court’s bench opinion
in the judgment now appealed. See Breyer v. Meissner, No.
97-6515, 2002 WL 31086985 (E.D. Pa. Sept. 18, 2002).2
With a few exceptions not determinative here, the District
Court’s findings of “historical fact” have not been
challenged. We detail the facts as they relate to the matters
currently being appealed.
  Johann Breyer was born in 1925 to an American-born
mother and a non-citizen father in Nova Lesna, a small
farming village located in what was then Czechoslovakia

1. We have appellate jurisdiction under 28 U.S.C. § 1291. We review the
District Court’s factual findings for clear error. Edwards v. Wyatt, 335
F.3d 261, 271 (3d Cir. 2003). We exercise plenary review over the
District Court’s conclusions of law. Id.
2. See also, Breyer v. Meissner, 214 F.3d 416 (3d Cir. 2000); Breyer v.
Meissner, 41 F.3d 884 (3d Cir. 1994).
                              3


(and later became Slovakia). Although they resided in
Czechoslovakia, the Breyer family was ethnically German
(“Volksdeutschen”). Slovakia became a separate state in
1939 controlled by Germany, and thus allied with Germany
during World War II. During that time, the political and
social interests of the Slovak ethnic German population
were represented by Deutsche Partei (“DP”), or German
Party. The DP was a functional instrument of the Third
Reich, but exerted no legal control over its members.
   As the tides of war began to turn against Germany in
1942, the Schutzstaffel (“SS”), a Nazi political organization,
coordinated with the DP to devise a plan to recruit Slovak
Volksdeutschen for membership in the Waffen SS, a Nazi
paramilitary organization. Breyer received a notification
letter sent in the first wave of this recruiting drive
instructing him to report for military service. Breyer asked
the mayor of his town whether he was obligated to report as
instructed. The mayor confirmed this obligation, and Breyer
subsequently     appeared   for    the   required    physical
examination. Several months later, Breyer received a call-
up notification that he had passed the examination,
instructing him to report for induction into the Waffen SS.
Breyer again approached the mayor who informed him that
he was obligated to comply with the notification. But the
mayor assured Breyer that he would work with local DP
officials to secure Breyer’s release if ultimately he were
assigned to a distant post.
   On February 10, 1943, Breyer was transported to the
concentration camp at Buchenwald, Germany, where he
was assigned to the Totenkopf Sturmbann, or Death’s Head
Battalion, in the Waffen SS. Upon completion of a six-week
training program, seventeen-year-old Breyer swore an oath
of allegiance to Adolf Hitler. Upon induction into the Waffen
SS, Breyer was advised to abandon religion—a policy
financially encouraged by waiver of the Reich’s church tax
—but he refused. Breyer also refused to join the new
inductees in having his blood-type branded on his upper
arm, a mark that would have permanently identified him as
a member of the Waffen SS. When Breyer was asked in
front of a group of new SS inductees whether he could
shoot a person, he responded that he could not.
                              4


Consequently, he was assigned to a section of the
concentration camp where prisoner escape was considered
unlikely. He carried a weapon while on perimeter duty, but
it was not always loaded. On May 30, 1943, shortly after
the completion of his training, Breyer turned eighteen.
  Whether Breyer voluntarily entered the Waffen SS is
unclear. While there is evidence that Slovak Volksdeutschen
were subject to some degree of compulsion to enter the
Waffen SS, there is also evidence that membership was
ultimately a voluntary choice. On balance, however, the
District Court concluded that Breyer’s entry into service
was voluntary as a matter of fact, though involuntary as a
matter of law as Breyer was under the age of eighteen at
the time. Id. at *14. In any event, it is undisputed that once
inducted in the Waffen SS, a solider was obligated to
remain a member for the duration of the war, whether or
not he voluntarily enlisted.
  In or around December 1943, Breyer was granted a
standard two-week home leave. He was told that if he did
not return, his family would be gravely harmed. Breyer took
his leave and returned as scheduled. In the spring of 1944,
Breyer requested an emergency home leave after receiving
word that his mother was ill. This request was denied, but
Breyer wrote to inform his parents that he would come
home “one way or another.” The letter was intercepted by
censors and interpreted as a threat of desertion. As
punishment for that perceived threat, Breyer was
transferred to another unit of the Totenkopf Sturmbann
stationed at Auschwitz I, a slave labor camp in Poland.
While there, Breyer maintained essentially the same
responsibilities he held at Buchenwald. Breyer testified,
and the District Court found, that he never harmed a
prisoner at Buchenwald or Auschwitz. Id. at *9. He was
aware, however, of the large-scale murder being committed
at Auschwitz II, the nearby Nazi death camp.
   During his time at the concentration camp, Breyer never
attempted to transfer to another type of service or to a
different unit. He did, however, request leave every week
during his posting at Auschwitz. In April 1944, Franz
Karmasin, head of the DP and Slovak State Secretary for
Ethnic German Affairs, appealed to the Waffen SS for
                              5


Breyer’s permanent release from service, urging that Breyer
was needed to tend to the family farm on account of his
parents’ illness. That appeal was denied, but Breyer was
eventually granted temporary home leave in August 1944.
  Upon expiration of his scheduled leave, Breyer did not
return to Auschwitz—an act of desertion. Although he never
stayed at home, Breyer remained in the vicinity, hiding in
nearby barns and in the surrounding woods, until at least
December 1944 when Slovak Volksdeutschen in Nova Lesna
began to evacuate ahead of the advancing Soviet army.
   Breyer fled the town and attempted to rejoin his unit at
Auschwitz. The District Court found that Breyer had done
so because he feared being discovered by the Germans and
shot as a deserter. Id. at *11. En route, he was informed
that the Soviets already had reached the camps at
Auschwitz and that his unit was engaged in combat with
the Soviet army on the eastern front. Breyer subsequently
rejoined his unit near Berlin as a forward observer. Breyer
was wounded in March, 1945, but returned to combat
three weeks later. On May 3, 1945, his unit surrendered to
the Soviet army, whereupon he was shipped to a prisoner-
of-war camp in the Czech Republic. Following his release,
Breyer reunited with his family in Bavaria.
   Breyer lived in Germany until 1952, when he applied for
a United States visa 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). In his visa
application, Breyer acknowledged his membership in the
Waffen SS, but did not disclose his participation in the
Totenkopf     Sturmbann.     After  initially rejecting    his
application, the Displaced Persons Commission certified
Breyer eligible for a visa in March, 1952. He immigrated to
the United States the same year. He later filed a petition for
naturalization and was naturalized as a United States
citizen in November, 1957.

                             II.
  In 1992, the government filed an action to denaturalize
Breyer because of his service as an armed SS guard at
Buchenwald and Auschwitz. The government claimed that
                                    6


Breyer’s citizenship was illegally procured, or procured by
concealment or wilful misrepresentation. Breyer responded
that he derived United States citizenship at birth through
his mother who was born in Philadelphia, Pennsylvania.
Even if the 1957 naturalization could be set aside, Breyer
argued, he was still a citizen by birth.
   At the time of Breyer’s birth, derivative citizenship was
governed by Section 1993 of the Revised Statutes of 1874.
Act of Dec. 1, 1873, tit. 25, § 1993 (superseded by
Immigration and Nationality Act of 1952 § 301(a), 8 U.S.C.
§ 1401(1994)). Under that statute, foreign-born children
whose fathers were United States citizens at the time of
their birth derived United States citizenship.3 The statute
did not extend the same right of derivative citizenship to
foreign-born children whose mothers were United States
citizens.   Breyer   argued     that   the     statute   was
unconstitutional as a violation of the Equal Protection
Clause of the Fifth Amendment. He contended, therefore,
that he should be granted citizenship retroactively under
the statute.
  The District Court granted partial summary judgment for
the government with respect to Breyer’s denaturalization.
United States v. Breyer, 829 F. Supp. 773, 779 (E.D. Pa.
1993). But the District Court also determined that Section
1993 was unconstitutional on equal protection grounds. Id.
at 781. At trial, the District Court found that Breyer’s
mother was born in the United States, and held that the

3. Section 1993 of the Revised Statutes of 1874 provides:
    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.
Act of Dec. 1, 1873, tit. 25, § 1993 (superseded by Immigration and
Nationality Act of 1952 § 301(a), 8 U.S.C. § 1401(1994)). In 1934,
Congress amended Section 1993 to make it gender-neutral. Thereafter,
the statute extended United States citizenship to children born outside
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.” Act of May 24,
1934, ch. 344, § 1, 48 Stat. 797 (1934).
                             7


appropriate remedy for the unconstitutionality of the
statute was to retroactively grant Breyer United States
citizenship. United States v. Breyer, 841 F. Supp. 679, 685-
86 (E.D. Pa. 1993). Nevertheless, the District Court
refrained from granting citizenship after concluding that
Breyer had failed to exhaust the required administrative
remedies. Id. at 686.
  We affirmed the holding that Breyer had illegally obtained
his naturalization, finding that Breyer’s wartime activities
disqualified him from being a “displaced person” under the
Displaced Persons Act. United States v. Breyer, 41 F.3d
884, 891 (3d Cir. 1994). But we vacated the portion of the
decision addressing Breyer’s derivative citizenship based
upon the statute’s unconstitutionality after concluding the
District Court had exceeded its jurisdiction in deciding a
constitutional issue it was unnecessary to reach. Id. at 893.
  In 1994, Congress amended Section 1993 of the
Immigration and Nationality Technical Corrections Act of
1994 (“INTCA”), granting citizenship retroactively to all
foreign-born children of United States citizens who had
previously resided in the United States. Pub. L. No. 103-
416, 108 Stat. 4305, 4306 (codified as amended at 8
U.S.C.A. § 1401 (1994)). But Congress did not extend
retroactive application to anyone 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.
Because Breyer was found ineligible for admission under
the Displaced Persons Act, he was not entitled to
retroactive application of § 1401.
  The Immigration and Naturalization Service denied
Breyer’s application for citizenship in 1996. Shortly
thereafter,   the    government       initiated deportation
proceedings. On October 21, 1997, Breyer filed a petition
for declaratory judgment in the District Court, seeking a
declaration of derivative citizenship based on his mother’s
American citizenship at the time of his birth. The District
Court ruled that the citizenship rules applicable to Breyer,
as modified by INTCA, did not violate the equal protection
component of the Due Process Clause of the Fifth
Amendment. Breyer v. Meissner, 23 F. Supp. 2d 521, 537
(E.D. Pa. 1998).
                                    8


  We reversed on appeal, concluding that section 101(c)(2)
of the INTCA preserved the unconstitutional gender bias of
Section 1993.4 Breyer v. Meissner, 214 F.3d 416, 429 (3d
Cir. 2000). Because fathers were entitled to pass citizenship
to children who would be ineligible under the Displaced
Person’s Act, it was unconstitutionally discriminatory to
deny mothers the ability to pass citizenship to their
children, even when the children would not be entitled to
naturalization. Id. at 428. Consequently, we held that
Breyer was entitled to American citizenship from the date of
his birth.5 Id. at 429.

4. We reasoned that Section 101(c)(2) placed an additional burden on
American mothers in transferring citizenship to their foreign-born
children. Because Section 1993 granted citizenship to foreign-born
children of American fathers, these children may have been aware of
their citizenship during World War II. Breyer, 214 F.3d at 428. Therefore,
foreign-born children of American fathers could lose their citizenship
only by intentionally committing expatriating acts. Id.; see also Vance v.
Terrazas, 444 U.S. 252 (1980). By contrast, foreign-born offspring of
American mothers were prevented from obtaining American citizenship if
they, with or without intent, committed similar expatriating acts. To
subject “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.” 214 F.3d at 428.”
5. The government asks us to reconsider this holding in light of Nguyen
v. INS, 533 U.S. 53 (2001). In Nguyen, the Supreme Court upheld a
different gender-based distinction in the Immigration and Nationality Act
governing the citizenship of foreign-born children. Section 1409 provides
that foreign-born children born out of wedlock acquire citizenship from
their mother. For such a child to acquire United States citizenship from
a father, by contrast, the father must meet certain additional
requirements, such as showing paternity by clear and convincing
evidence and agreeing in writing to financially support the child. 8
U.S.C. § 1409(a).
  The Court, in a five to four decision, upheld the provision based on two
“important governmental objectives.” 533 U.S. at 62. The first was proof
of parentage, which the court noted is often much more difficult to
establish with respect to fathers. Id. at 62-64. Second, the provision
helps ensure that there is an “opportunity for a meaningful relationship
between citizen parent and child,” which does not necessarily result as
a matter of “biological inevitability” in the case of unwed fathers. Id. at
65.
                                     9


   The question remained, however, whether Breyer had lost
that citizenship as a result of his wartime activities by, in
effect, voluntarily renouncing his citizenship. We remanded
to the District Court to make additional findings
“concerning the circumstances under which Breyer joined
the Waffen SS and the Death’s Head Battalion to determine
if his actions constitute[d] a voluntary and unequivocal
renunciation of any possible allegiance to the United States
of America.” Id. at 431.
  Following a bench trial, the District Court ruled in
Breyer’s favor. It determined that Breyer did not voluntarily
take any actions that could be expatriating. Because Breyer
committed no voluntary expatriating act, the court
concluded that he retained his United States citizenship.
The government appealed.

                                    III.

                                     A.
   The Fourteenth Amendment provides that “[a]ll persons
born or naturalized in the United States . . . are citizens of
the United States.” U.S. Const. amend. XIV, § 1. “There is
no indication in these words of a fleeting citizenship, good
at the moment it is acquired but subject to destruction by
the Government at any time. Rather the Amendment can
most reasonably be read as defining a citizenship which a
citizen keeps unless he voluntarily relinquishes it.” Afroyim
v. Rusk, 387 U.S. 253, 262 (1967). As such, United States
citizenship obtained either by birth or legitimate
naturalization cannot be lost unless the citizen voluntarily
renounces his citizenship. Vance v. Terrazas, 444 U.S. 252,
261 (1980); see also Afroyim, 387 U.S. at 268. By statute,
certain expatriating acts, if proven, are presumptively

  Neither of these interests is implicated here, in a case in which it is the
mother, not the father, who is saddled with the greater difficulty in
transmitting citizenship. Accordingly, Nguyen does not disturb our
holding with respect to § 1401, and we see no reason to—or basis for—
reconsidering it at this time.
                                    10


voluntary.6 See 8 U.S.C. § 1481(b). This presumption may
be rebutted by showing, by a preponderance of the
evidence, that the expatriating act was involuntary. Id.
However, the party claiming a loss of nationality has
occurred, in this case the United States, bears the burden
of proving by a preponderance of the evidence that the
citizen voluntarily performed the act with the intent to
relinquish his citizenship. 444 U.S. at 268; 8 U.S.C.
§ 1481(b). Evidence that the citizen voluntarily committed
expatriating acts “may be highly persuasive . . . in the
particular case of a purpose to abandon citizenship.” 444
U.S. at 261 (citing Nishikawa v. Dulles, 356 U.S. 129, 139
(1958) (Black, J., concurring)).
   The government contends the District Court committed
legal error by failing to consider Breyer’s state of mind
when evaluating whether his service in the Waffen SS after
his eighteenth birthday was involuntary. Moreover, the
government argues that Breyer failed to establish the
affirmative defense of duress and that his service in the
Waffen SS was voluntary. We will address these arguments
in turn.

                                    B.
  During his service with the Waffen SS, Breyer had no
knowledge that he was a United States citizen by virtue of
his mother’s citizenship. And there is no reason that he
should have known that he might be granted citizenship
retroactively more than a half century later. Nevertheless,
the previous panel suggested that it was possible for Breyer
to voluntarily renounce his citizenship despite that lack of
knowledge, if his actions “constitute[d] a voluntary and
unequivocal renunciation of any possible allegiance to the
United States of America.”7 Breyer, 214 F.3d at 431.

6. Entering the armed forces of a foreign state engaged in hostilities
against the United States is considered an expatriating act. See 8 U.S.C.
§ 1481(a)(3).
7. Breyer challenges the prior panel’s conclusion that if his participation
with the Waffen SS and oaths of allegiance to Nazi Germany were
voluntary, he may have voluntarily and unequivocally renounced his
                                    11


  On remand, the District Court addressed only whether
Breyer voluntarily served in the Waffen SS after his

American citizenship despite having no knowledge of that citizenship.
The government responds that we are bound by the previous panel’s
conclusion under the law-of-the-case doctrine. See, e.g., Africa v. City of
Philadelphia (In re City of Philadelphia Litig.), 158 F.3d 711, 717 (3d Cir.
1998) (“[O]ne panel of an appellate court generally will not reconsider
questions that another panel has decided on a prior appeal in the same
case.”). Consequently, the government argues that if Breyer’s service was
voluntary, then he necessarily voluntarily renounced his citizenship.
  As an initial matter, it is not clear that the previous panel’s opinion
should be construed in that way. The panel stated 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.” Breyer, 214 F.3d at 431.
Elsewhere, however, the same panel ruled that only if Breyer’s service
was voluntary, he “may have made . . . a disclaimer of allegiance to the
United States.” Id. (emphasis added). We think it unlikely the previous
panel meant to conclude that every voluntary member of the Death’s
Head Battalion would necessarily have made such an unequivocal
renunciation, regardless of other potentially relevant circumstances.
Furthermore, the panel remanded for a finding not only on
voluntariness, but also on whether Breyer’s “actions constitute a
voluntary and unequivocal renunciation of any possible allegiance to the
United States of America.” Id. The previous panel opinion could be read,
therefore, as merely concluding that it would be possible for Breyer to
voluntarily renounce his citizenship without knowledge of it. The
Supreme Court has held that the ultimate question must always be
whether the citizen voluntarily and purposefully abandoned citizenship.
Terrazas, 444 U.S. at 261. Any interpretation of the previous panel’s
opinion should be consistent with that rule.
  Breyer contends we are not bound by the previous panel and should
hold that a citizen without knowledge of his citizenship is necessarily
incapable of forming the necessary specific intent. It is arguable that,
because it may have simply concluded that such intent was possible, the
previous panel did not actually decide an issue that would be binding on
future panels. In any event, we need not revisit the issue. Voluntary
renunciation of citizenship requires, at a minimum, that any alleged
expatriating act be performed voluntarily. We conclude the District Court
committed no error in concluding that Breyer did not voluntarily perform
the potentially expatriating actions.
                             12


eighteenth birthday. Breyer joined the Waffen SS when he
was seventeen years old and, under the Nationality Act of
1940—the law governing expatriation at the time of Breyer’s
wartime activities—a citizen could not expatriate himself by
military service or oaths of loyalty before his eighteenth
birthday. Nationality Act of 1940 § 403(b), 54 Stat. 1170.
Accordingly, the District Court held—and the government
does not contest—that Breyer could not have expatriated
himself by his actions before he turned eighteen. Breyer,
2002 WL 31086985, at *14. The question then becomes
whether he had done so by voluntarily remaining in the
Waffen SS and swearing an oath of allegiance to the Third
Reich after his eighteenth birthday. The District Court
concluded that Breyer’s service was not voluntary
subsequent to his eighteenth birthday and therefore was
not expatriating as a matter of law. Id. Central to this
conclusion was the District Court’s finding that even those
persons who voluntarily enlisted were obligated to remain
in the Waffen SS for the duration of the war. Id. at *10.
  The government does not dispute that Breyer was
required to remain in the Waffen SS after he enlisted.
Rather, the government argues that Breyer would have
served in the Waffen SS regardless of any obligation or
compulsion to do so. Even though his continuing
membership in the Waffen SS was mandatory, this
obligation allegedly did not cause Breyer to remain in the
organization. Accordingly, the government contends the
District Court committed legal error by failing to explicitly
consider “causation” and assessing the voluntariness of
Breyer’s actions solely in terms of the choices (or lack
thereof) available at the time.
  We believe that voluntariness is most appropriately
evaluated by considering the totality of the circumstances.
By emphasizing causation as a determinative factor, the
government draws inordinate attention to a single
dimension of this broader inquiry. In this respect, the
government overstates the so-called “causation element”
and understates the extent to which the District Court
implicitly addressed this issue. While the District Court’s
opinion cites the absence of choice as the reason for
concluding that Breyer remained in the Waffen SS
                             13


involuntarily, read as a whole, it is clear that this was only
one—albeit perhaps the most important—element in the
District Court’s analysis. Breyer’s voluntary enlistment at
the age of seventeen may provide some evidence that he
served voluntarily several months later. But as the District
Court correctly recognized, “[w]hile indicia that plaintiff
voluntarily enlisted in the Waffen SS may entail some value
as evidence that his continued service following his
eighteenth birthday was similarly voluntary, they are by no
means determinative of this latter issue.” Id., at *1.
  Furthermore, the District Court made extensive findings
with respect to matters relevant to a determination of
voluntariness, none of which would be relevant if the
District Court analyzed the issue in the manner the
government suggests it did. While subject to different
possible interpretations, Breyer’s refusal to renounce his
religion, to accept the distinctive Waffen SS blood-type
brand, or to publicly commit to his ability to shoot a
prisoner could be viewed by a fact-finder to establish a
general reluctance to participate as a member of the SS.
These same factors would not be relevant if Breyer’s lack of
choice was dispositive on the issue of voluntariness.
  Importantly, the District Court extensively cited Breyer’s
attempts to secure leave and his ultimate desertion from
the Waffen SS. It may be, as the government emphasizes,
that Breyer could have done more to secure leave. But
deserting his unit under what he believed to be penalty of
execution suggests that Breyer’s service was not voluntary.
   In short, we are convinced the District Court adequately
considered all of the relevant evidence in assessing whether
Breyer’s service was voluntary or involuntary. The District
Court did not expressly address “causation” as a discrete
factor in its voluntariness analysis. And there may be more
to the voluntariness analysis than evaluating the citizen’s
ability to choose an alternate course of action. But it is
clear that the District Court considered the critical issue of
whether Breyer voluntarily relinquished his citizenship by
analyzing the specific actions and circumstances related to
his service in the Waffen SS for evidence of voluntariness or
intent to abandon his United States citizenship.
                             14


                             C.
   The government also contends that Breyer failed to
establish the affirmative defense of duress in the criminal
context. As an initial matter, even if Breyer’s defense can be
labeled as one of “duress,” we do not think the concept
operates in the same way in expatriation proceedings. The
government’s language framing the issue on appeal—
“[w]hether the district court misapplied the affirmative
defense of duress by omitting the ‘causal relationship’
element”—misconstrues the analysis that applies in cases
like this one. In this context, duress is not an affirmative
defense, and there is no burden on Breyer to prove the
elements of classic criminal duress. The burden rests on
the government to prove voluntariness.
   Furthermore, the Supreme Court has explicitly stated
that “expatriation proceedings are civil in nature.” Terrazas,
444 U.S. at 266 (emphasis added). As a civil proceeding,
the standard for showing duress in an expatriation
proceeding would be lower than in a criminal proceeding.
See United States v. One 107.9 Acre Parcel of Land, 898
F.2d 396, 399 (3d Cir. 1990) (“We . . . assume that a
showing of duress would require less demanding proof in a
civil [as opposed to a criminal] context.”). The issue in
criminal cases is whether the involuntariness of the action
is sufficient to remove culpability for the actions taken. In
the expatriation context, the issue is different. Here we
assess whether the citizen’s actions demonstrate or express
a voluntary intention to abandon citizenship.
   Conceivably, certain voluntary actions that give rise to
criminal liability may not be sufficiently voluntary to be
expatriating. For example, in Stipa v. Dulles, 233 F.2d 551,
554 (3d Cir. 1956), this Court held that an American-born
citizen who accepted a position as an auxiliary in the
Italian Police Force “for the purpose of earning a livelihood”
when no other jobs were available did not join voluntarily
for expatriation purposes. But it does not necessarily follow
that an American citizen would not be held culpable for
criminal activities committed under similar conditions of
economic hardship.
  When a person performs an action, it is a fair inference
that the action was performed voluntarily, because it can
                             15


be assumed, in the absence of evidence to the contrary,
that he chose to do it. But when a person performs an
action required by law and subject to coercive sanctions,
there is ordinarily no longer a clear basis for the inference
of voluntariness, because the actor may not have exercised
his own free will. Establishing that one was conscripted,
therefore, ordinarily defeats the basis for assuming that
enlistment was voluntary. Consequently, a citizen might be
able to satisfy the burden of establishing that an action was
taken involuntarily—should other evidence not establish
the contrary—by showing that it was compulsory.
  Historically, mandatory military service has been treated
as presumptively involuntary. “Conscription into the Army
of a foreign government of one holding dual citizenship is
sufficient to establish prima facie that his entry and service
were involuntary.” Lehmann v. Acheson, 206 F.2d 592, 594
(3d Cir. 1953) (citing Perri v. Dulles, 206 F.2d 586 (3d Cir.
1953)); see also Nishikawa, 356 U.S. at 136-37
(conscription into the Japanese army “adequately injected
the issue of voluntariness and required the Government to
sustain its burden of proving voluntary conduct”). For the
most part, however, courts have made clear that this
presumption of duress can be overcome. See Nishikawa,
356 U.S. at 136 (discussing the government’s burden of
responding once a showing of conscription had been made);
Lehmann, 206 F.2d at 597-98 (considering government’s
attempt to rebut presumption). The Court of Appeals for the
Second Circuit stated the issue clearly:
    The inference of duress which flows from conscription
    was doubtless subject to rebuttal by the defendant as,
    for instance, through evidence that, once conscripted,
    the soldier volunteered for service more onerous than
    that mandatorily imposed upon a conscript, or through
    evidence that Italian law in force at the time permitted
    the plaintiff to invoke his American citizenship as a
    ground for immunity from service to the Italian army,
    coupled with evidence that the plaintiff failed to invoke
    the immunity thus available to him.
Augello v. Dulles, 220 F.2d 344, 347 (2d Cir. 1955); see also
Acheson v. Maenza, 202 F.2d 453, 458 (D.C. Cir. 1953)
(“The additional factors of actual, in fact, duress and
                             16


coercion at the time of the conscription, on the one hand
and of a free exercise of the will and of the mind, on the
other, must bear heavily on the eventual answer.”).
   At the same time, evidence that the claimant would have
enlisted without being required to do so can tip the balance
in the government’s favor. See id. (“Duress cannot be
inferred from the mere fact of conscription. . . . [T]here
must be consideration of the circumstances attending the
service in the foreign country, and the reasonable
inferences to be drawn therefrom.”). The ultimate question
remains whether, on balance, the expatriating action was
voluntary, and the party claiming loss of nationality bears
the burden of proving this by a preponderance of the
evidence. 8 U.S.C. § 1481(b). Any number of factors may
play a role in such an inquiry. As discussed, a fact finder
need not specifically address a separate “causation”
element in making this inquiry, but the determination must
take into account the totality of the circumstances.
Evidence of enlistment or conscription will often be the
most important parts of this determination, but they are
not the only relevant considerations.
   Breyer was not involuntarily conscripted into the Waffen
SS. The District Court found that Breyer’s enlistment was
voluntary, although he was not free to leave once he joined.
Breyer, 2002 WL 31086985, at *10. Therefore, the critical
question is whether Breyer voluntarily remained in the
Waffen SS after his eighteenth birthday. In this regard, this
case closely resembles Perri v. Dulles, 206 F.2d 586 (3d Cir.
1953). In Perri, a naturalized United States citizen was
conscripted into the Italian army before the effective date of
the Nationality Act of 1940, under which the government
sought his expatriation. We declined to consider the district
court’s finding that the citizen voluntarily enlisted in the
Italian army before the effective date of the statute. Id. at
589. As here, the sole question was whether the citizen
voluntarily served in the armed forces of a foreign state
after the effective date of the statute. We found that the
citizen’s military service under the terms of the original
draft, without evidence that Italian law or military practice
would have permitted the citizen to secure release, was
“sufficient to establish prima facie that his service on and
                                   17


after [the effective date of the statute] was involuntary,”
despite the District Court’s finding that his initial
enlistment had been voluntary. Id.
  We think that Breyer’s demonstrated inability to secure
release from the Waffen SS and his subsequent desertion
can be, for the reasons discussed, sufficient to defeat the
presumption that his continued military service was
voluntary.8

                                   D.
   Finally, the government contends that when all of the
relevant facts are considered, the District Court erred in
concluding that Breyer’s service was involuntary. In this
respect, we see no clear error in the District Court’s factual
findings, nor do we disagree with its conclusion that
Breyer’s service in the Waffen SS was involuntary.
   As noted, the District Court made several findings
relevant to the voluntariness inquiry. These findings do not
paint a picture of a person committed to serve. Breyer’s
refusal to forsake his religion, his refusal to be branded
with the distinctive mark of the Waffen SS, and his pledge
before one hundred new SS recruits that he was incapable
of shooting a prisoner suggest his general reluctance.
Furthermore, his repeated attempts to secure both
temporary and permanent release, followed by desertion
from his unit, demonstrate Breyer’s lack of commitment to
service in the Waffen SS.
  The government has suggested alternative inferences that
could be drawn from these actions which support a finding
of voluntariness. While these and other inferences may be
reasonable ones, the District Court’s findings, which we
review for clear error, support the conclusion that Breyer’s

8. Of course, evidence that the citizen initially entered military service
voluntarily may support a finding of voluntariness later. The extent to
which the enlistment was voluntary and the space of time between that
enlistment and the time for determining expatriation will be relevant
factors to be considered together with whatever other evidence the
plaintiff and government produce tending to support a finding of
voluntariness or involuntariness.
                             18


membership in the Waffen SS after his eighteenth birthday
was involuntary.
  There are, of course, some factual findings which support
the government’s position. The District Court’s finding that
Breyer voluntarily enlisted is perhaps the most significant.
Breyer joined the Waffen SS only a matter of months before
his eighteenth birthday, and one could ordinarily infer that
such voluntariness would not change over a short period of
time. But the District Court’s determination that Breyer
enlisted voluntarily is somewhat mitigated by contrary
evidence. There is evidence that Volksdeutschen recruits
faced significant pressure to join the Waffen SS, even if that
pressure did not rise to the level of actual compulsion. And
there are findings that could be viewed as indicia of
Breyer’s unwillingness to serve. When he received his
enlistment notice, Breyer asked the mayor of his town
whether he was obligated to go, and the mayor told him he
was. The mayor subsequently told Breyer that he would try
to get him released from service, if Breyer were assigned to
a distant post. So even if Breyer enlisted voluntarily, there
is evidence that supports the District Court’s conclusion
that Breyer remained in the Waffen SS only because he had
no other choice.
   Perhaps the fact which most supports the conclusion
that Breyer’s service was voluntary is Breyer’s decision to
return to his unit after he deserted. But the District Court
found that Breyer sought to return to his unit because he
feared he would be shot as a deserter by the Germans if he
was discovered. Breyer, 2002 WL 31086985, at *10. This
finding is sufficient to rebut a contrary inference. At the
time Breyer returned to his unit, Allied armies were
approaching Germany from all sides. There is no evidence
of any other place Breyer safely could have gone. It is
consistent with the evidence that Breyer thought the safest
place for him was with his unit. If so, then his return was
not voluntary in the sense that it might represent an
intentional relinquishment of United States citizenship. Nor
would his return represent substantial evidence of earlier
voluntary service.
  After reviewing the record, we see no clear errors of fact
and no erroneous conclusions of law.
                             19


                             IV.
  For the foregoing reasons, we will affirm the judgment of
the District Court.

A True Copy:
        Teste:

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