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A 77-year-old Philadelphia man who served as a guard at Nazi concentration camps has won the right to stay in the United States now that a federal judge has ruled that he was an American citizen by birth and that his service with the Nazis was “involuntary” and therefore was not an “expatriating” act. In his 38-page opinion in Breyer v. Meissner, U.S. District Judge William H. Yohn Jr. found that even if Johann Breyer had voluntarily joined the Waffen SS, it could not be considered an expatriating act since he was 17 years old at the time. Government lawyers argued that after Breyer turned 18, he again swore allegiance to Adolf Hitler and continued to serve voluntarily in the Waffen SS’ “Death’s Head Battalion” as a guard at the Auschwitz concentration camps. Yohn, of the Eastern District of Pennsylvania, disagreed and found instead that the evidence showed Breyer had never wanted to serve the Nazis, but that he had no choice. “Once an individual had been inducted into the Waffen SS, he was resigned to remain in the Waffen SS for the duration of the war. There was no way out,” Yohn wrote. Yohn found that all of the experts agreed that after Breyer’s 18th birthday, he “had no conceivable chance to validly cease his service in the Waffen SS.” As a result, Yohn concluded that Breyer “was faced with the choice of either remaining in the Waffen SS or deserting (which he temporarily did) and facing what he legitimately believed to be the most dire physical consequences for both himself and his family.” The ruling is a victory for attorney Martin Lentz of Philadelphia’s Pelino & Lentz who filed the suit after Breyer was deported seeking a declaratory judgment that Breyer is a United States citizen. Breyer’s case is unique among the former Nazis targeted for deportation by the Justice Department in recent years because his mother was born in the United States and was still an American citizen when he was born. According to court papers, Breyer was born on May 30, 1925, in Nova Lesna, a small village in the Upper Zips region of what was then Czechoslovakia. His mother, Katarina Breyer, was born in Manayunk, Pa., and thus was a U.S. citizen at birth. At the time of Breyer’s birth, federal law provided for the conveyance of citizenship from a citizen father to his foreign-born child, but did not feature an analogous provision for the conferral of citizenship by an American mother unto a child born overseas. Until 1991, when the Justice Department filed a civil suit against him, Breyer was unaware of his possible American citizenship. Breyer immigrated to the United States in 1952 when the country was recruiting skilled metal workers. In the first round of litigation, Breyer argued that his mother’s birth in Manayunk conferred upon him birthright American citizenship. The Justice Department argued that the law provided citizenship only to the foreign-born children of American men. But Breyer won a major victory when the 3rd U.S. Circuit Court of Appeals found that such a male-only law would violate the Equal Protection Clause of the 14th Amendment. The effect of the 3rd Circuit’s decision in 2000 was that Breyer was deemed to possess birthright American citizenship despite not having known of the possibility that he enjoyed such citizenship until the early 1990s. But the appellate court sent the case back to Yohn to determine if Breyer’s conduct during World War II amounted to expatriation. Now Yohn has ruled that Breyer never expatriated and therefore is a United States citizen who cannot be deported. In his opening paragraphs, Yohn described the suit as “a most unique and very troubling case.” Before setting out to make his findings of fact, Yohn described his chore as a difficult one. The appellate court’s ruling, Yohn said, “mandates that I make factual findings and legal conclusions regarding matters that, by all accounts, have long since been shrouded by the passage of time and obscured by the frailty of human memory.” But in the end, Yohn found that his real task was to answer a “relatively narrow” question. The only issue, Yohn said, was whether “the portion of Breyer’s service in the Waffen SS that transpired following his 18th birthday — or any oath of allegiance to the Third Reich taken by plaintiff during that segment of his service — [was] voluntary.” In detailed findings of fact, Yohn found that when Breyer was first enlisted in the Waffen SS, he tried to avoid serving, but was told by the mayor of his town that he was required to report. Just a few months shy of his 18th birthday, Yohn found that Breyer reported for duty at the Buchenwald concentration camp where he underwent six weeks of training and ultimately swore an oath of allegiance to Adolf Hitler. At the end of the training period, Yohn found that Breyer was asked if he could shoot a person, and that he responded that he could not. As a result, he was assigned to guard a portion of the perimeter of the slave labor camp at Buchenwald that was believed by the SS to be a particularly unlikely point of escape for any of the prisoners there. Yohn also found that while many members of the Waffen SS had their blood type branded on their upper arms, Breyer refused to be branded. While on perimeter duty, Yohn found that Breyer carried a weapon, but did not always load it, and that he kept that fact secret from his superiors. Breyer testified that he never harmed a prisoner at Buchenwald and that he never witnessed or heard of prisoners being beaten, shot or otherwise mistreated. When Breyer asked for a leave due to news that his mother was gravely ill, Yohn found that the request was denied twice, and that Breyer was sent to Auschwitz as a punishment for a letter he wrote that told his family he would come home “one way or another.” But at Auschwitz, too, Yohn found that Breyer informed his superiors that he could not shoot a person, and that he was again assigned to be a perimeter guard. Yohn concluded that “because neither Breyer’s service in the Waffen SS nor any oath he took subsequent to his eighteenth birthday was voluntary, and because these are the sole acts alleged by the government to have been expatriating in character, plaintiff Johann Breyer did not expatriate himself through his actions during World War II.”

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