Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A 77-year-old Philadelphia man who served as a guard at two Nazi concentration camps has won the right to stay in the United States now that the 3rd U.S. Circuit Court of Appeals has upheld a decision that said he was an American citizen by birth and that his service with the Nazis was “involuntary” and therefore was not an “expatriating” act. In September 2002, 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. On appeal, government lawyers argued that after Breyer turned 18, he again swore allegiance to Adolph Hitler and continued to serve voluntarily in the Waffen SS’s “Death’s Head Battalion” as a guard at the Auschwitz concentration camps. Now the 3rd Circuit has ruled that Yohn was correct in holding that Breyer’s service after age 18 cannot be considered voluntary because he feared he would be executed if he deserted. Yohn also noted that Breyer did desert his unit temporarily and showed other signs of reluctance to participate as a member of the SS, such as refusing to renounce his religion. In a 19-page opinion in Breyer v. Ashcroft, Chief Judge Anthony J. Scirica wrote: “Deserting his unit under what he believed to be penalty of execution suggests that Breyer’s service was not voluntary.” The ruling is a victory for attorney Martin Lentz of Pelino & Lentz who filed the suit after Breyer was deported. The suit asked for a declaratory judgment that Breyer is a U.S. 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. 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 to strip him of his naturalized citizenship, Breyer was unaware of his possible American citizenship. In the first round of litigation, Breyer argued that his mother’s birth in the Manayunk section of Philadelphia 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. However, the appellate court sent the case back to Yohn to determine if Breyer’s conduct during World War II amounted to expatriation. Wednesday’s decision from the 3rd Circuit upheld Yohn’s ruling that canceled the deportation. Scirica was joined by Judges Marjorie O. Rendell and Thomas L. Ambro.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.