Based upon the Court's findings of fact and upon its reading of Chaunt v. United States, 364 U.S. 350 (1960), it held that even though the defendant had lied about his place of birth in his immigrant visa application, the lie was immaterial, since Ukrainians per se were not excluded under the Displaced Persons Act, and he had given his true nationality and birthplace in filing his Declaration of Intention (to become an American citizen). In regard to Fedorenko's concealment of his whereabouts from 1942-1945 and his service as a prisoner-guard, the Court rejected the Government's contention that "it is sufficient that the conceded [sic: concealed] facts prevented the Government from making an investigation which might have resulted in a denial of citizenship." The Court held, instead, that the suppressed facts must themselves have warranted denial of citizenship, and in the instant case, the Government was required to present clear and convincing proof in this respect. The Court then noted that doubts were often resolved in favor of applicants under the Displaced Persons Act, and that the Supreme Court had also instructed the United States Courts, in Schneiderman v. United States, 320 U.S. 118, 122 (1943), to resolve the law "as far as is reasonably possible' in favor of the naturalized citizen."

Turning to the Government's allegations regarding false answers on the application for citizenship (application to file a petition for naturalization), the Court stated:

It is clear that defendant served only in the Russian Army until his capture in 1941. Defendant has maintained that he was a prisoner of war until his surrender to the British. It is clear that he was transported from place to place and was obliged to obey orders under penalty of death and was not free to do whatever he chose. In view of the evidence the court concludes that there would be strong reason in defendant's mind to view himself as a prisoner of war; it therefore cannot be said that his omission was willful. United States v. Tooma, 187 F.Supp. 928 (E.D.Mich.1960), United States v. Profaci, 274 F.2d 289 (2d Cir. 1960). Even if defendant clearly understood the question and willfully concealed the truth, the court must necessarily hold in accordance with the previous findings that the false answer was not proved to be material. 455 F. Supp. 893, 917.

With regard to the possible testimony of Russian witnesses who had also served as prisoner-guards at Treblinka, the Court noted (in footnote 18, 455 F. Supp. 909, not reproduced in this Digest) that the most preferable means to obtain their evidence would have been "by an evidentiary hearing with the court sitting as a special master," with the approval of the Soviet Government, but that this was apparently "precluded at this point" by a resolution of the Judicial Conference of the United States at its Mar. 1978 meeting, “prohibiting" United States Courts from holding court outside the United States. The Report of the Proceedings of the Judicial Conference of the United States, March 9-10, 1978 (1978), states at pp. 4-5:

Depositions in Foreign Countries

The Conference, upon consideration of the report of the Committee [on Court Administration], disapproved, as a matter of policy, the practice of Federal judges traveling abroad to take testimony or depositions in cases pending before them.

The United States Government appealed the decision to the U.S. Court of Appeals for the Fifth Circuit (No. 78-2879).

84

Refugees; Asylum; Statelessness

Refugees from Indochina

Refugees

The Assistant Secretary of State for Human Rights and Humanitarian Affairs, Patricia M. Derian, testified on January 24, 1978, before the Subcommittee on Immigration, Citizenship and International Law of the Committee on International Relations of the House of Representatives, in support of Department of State recommendations for paroling into the United States an additional 7,000 Indochinese refugees escaping from their homeland by boat. Assistant Secretary Derian explained the reason for the increase over estimates previously made by the Department of State, in terms of growing refugee presence in both Thailand and Malaysia. She also described efforts by the United States to increase international participation in the Indochinese refugee problem, subsequent to appearances by Department of State officials before the Subcommittee in August 1977. Excerpts from her statement follow:

Unfortunately, the rate of escape of refugees-those fleeing by land and by small craft-was rising dramatically in August even as we were consulting on that parole. We cited a rate of escape of 500 per month by sea and 1,200 per month by land. In the AugustDecember period, escapes ranged from 1,000 to 1,500 per month by sea and about 3,000 per month by land.

This sharp increase has had an extremely negative effect on the attitudes of countries in the region, especially that of Thailand. With a present camp population of 95,000 Indochinese refugees, a substantial additional number interspersed in the population and a steady flow across the Mekong from Laos, the attitude of the Thai Government has become increasingly negative.

While the government has not actually returned refugees forcibly, they have instituted a separate camp system for refugees arriving after November 15, 1977. These refugees are not placed under the care of the U.N. High Commissioner for Refugees (UNHCR), and the Thai Government has announced plans for the screening of these refugees to determine whether they are political or economic refugees. While it is not clear that those categorized as economic

refugees would be forcibly repatriated, the new system is indicative of the Thai concern and of the precarious position of the postNovember 15 refugees.

For our part, we believe it would be extremely difficult to separate political and economic refugees from a flow of refugees fleeing a country in political turmoil as the new Communist government reorders the society in its image. Further, regardless of the motive for escape, the forcible return of such refugees would surely subject them to persecution.

The Thai reaction to the increased flow of boat refugees was even sharper . . .

In November the Thai began to hold larger refugee boats off shore and by the end of that month had forced boats carrying a total of 255 refugees back to sea. Other boats with additional refugees were also turned back, but when the boats proved unseaworthy the refugees were let ashore. The Malaysian Government, with a large and growing caseload of about 3,000 boat refugees also began to stiffen its attitude. . .

Although we have also identified additional refugees who have escaped by land who we believe would have been eligible under previous programs, we are limiting this parole proposal to refugees escaping by boat. This is because of the desperate situation in which the boat refugees find themselves and the interim nature of the parole. There are currently about 5,000 boat refugees in Southeast Asia without resettlement offers . . . . In light of the plans of other countries, we expect that a parole of 7,000 boat refugees will give us a period of a few months during which consultations with the Congress can be carried out on a long range program.

[S]ince we testified before this committee in August, Department officials visited Ottawa and Paris to discuss this problem with officials there. Our embassies have made bilateral approaches to a number of other countries of traditional resettlement.

The French program continues as a major factor in meeting this problem, accounting for about 1,000 refugees per month-most from the inland camps holding refugees from Laos and Cambodia but also increasing numbers of boat refugees.

The Canadian Government has renewed its commitment to the Indochinese refugees with plans to accept 50 families a month in addition to their existing program for up to 2,000 Indochinese refugees.

• The Australians have taken about 2,600 boat refugees in the past 5 months and plan to continue taking substantial numbers. • We have also made efforts in international forums.

The UNHCR in late September issued a formal appeal through the Intergovernmental Maritime Consultative Organization to international merchant ships to pick up refugees in distress at sea. In October the UNHCR executive committee adopted unaniinously, at our initiative, a recommendation calling on the High Cornmissioner to renew and continue to strengthen his efforts to obtain resettlement offers for the Indochinese refugees.

A similar U.S. initiative at the November meeting of the 33-member council of the Intergovernmental Committee for European Mi

gration (ICEM) in Geneva resulted in a unanimous resolution by the delegates of ICEM's governing body to promote the cause of assistance to Indochinese refugees. We have also taken this matter up with NATO members during the recent council meeting, urging our allies to increase their contribution to the solution of this problem.

On January 31, a regional meeting in Kuala Lumpur has been called by UNHCR representative Sampatkumar, inviting representatives of 13 nations involved in this problem. We are hoping that this meeting will not only prove useful for coordination purposes but also in stimulating new resettlement opportunities.

[A] new High Commissioner for Refugees, Mr. Poul Hartling, has just been elected. . . . We will continue to discuss with the High Commissioner ways of increasing international participation in meeting this problem both with financial assistance and resettlement opportunities. We remain open to the possibility of an international conference on Indochinese refugees but we continue to believe that the initiative for such a conference should come from the High Commissioner.

Finally, we have been very active both bilaterally and through international organizations to urge countries of first asylum to allow these unfortunates to have temporary asylum. This has always been difficult, but we have had, for the most part, at least a tenuous and fragile success in this respect. We must remember always, however, that these countries will only accept boat refugees for so long as they are certain that their stay is temporary and this, in turn, hinges on the adequacy of permanent resettlement offers.

In this connection, Deputy Secretary [Warren] Christopher discussed with Prime Minister Lee [Kuan Yew of Singapore] the possibility of a temporary asylum center for Indochinese refugees in Singapore. He agreed to such a center under UNHCR auspices, but, as I found in my discussions in Singapore, he requires that the UNHCR have in hand adequate advance guarantees from countries of permanent resettlement to assure that the refugees' stay is temporary. It has not yet been possible to work this out, but we are hopeful that it will be since such a center could have a major effect on the decisions of shipmasters to assist refugees in distress at sea. We continue to get reports of ships passing by such refugees, no doubt to a considerable degree because their next port-of-call is Singapore where such refugees cannot presently be landed.

While the present hearing concerns the proposal to parole 7,000 Indochinese boat refugees on an interim emergency basis, it is difficult to discuss this problem without alluding to its longer range aspects

[W]e have identified two classes of refugees which we and the Congress have agreed in the past should receive assistance from the United States.

The first of these consists of refugees who have escaped by boat and for whom no other valid resettlement offer exists. We believe that other countries operating resettlement programs will continue to make their contribution in cooperation with us. Indeed, we believe continued resettlement by the United States will encourage a high rate of third-country offers. The UNHCR will have to be called

upon to help assure that full coordination of national programs is achieved in order that third-country offers receive maximum utilization. Already, we have enforced the rule that refugees offered resettlement elsewhere are automatically ineligible to come to the United States unless they have close relatives here.

The second group of refugees whom we have helped in every program to date are those selected refugees, escaping by land, who have close relatives in the United States or who have a demonstrated past association with the United States for which they were disadvantaged in their homelands under the new governments. This group would be drawn almost entirely from the camps of Thailand.... Dept. of State Bulletin, Vol. 78, No. 2012, Mar. 1978, pp. 33-34.

Assistant Secretary Derian's testimony concluded with a brief report upon implementation of the parole for 15,000 Indochinese refugees which had been authorized on Aug. 11, 1977.

Leonel Castillo, Commissioner of the United States Immigration and Naturalization Service, also testified before the Subcommittee on January 24. He stated in part:

As you are aware, section 212 (d) (5) of the Immigration and Nationality Act states that the Attorney General "may in his discretion parole into the United States. . . for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States."

The law expressly requires that the exercise of discretion be based on facts showing the emergent or public interest reasons for parole. Though not statutorily required, the Attorney General concurs in the established practice that the views of members of the Congress be fully considered in connection with the parole of groups of refugees.

The issue of admitting large numbers of Indochinese refugees is not an easy one for this country. As long as people continue to flee Indochina and their lives are endangered, there will be continued pressure on the United States to permit their entry in some fashion. The only short term alternative to the additional parole of Indochinese boat cases would be the use of conditional entry numbers under section 203 (a) (7) of the Immigration and Nationality Act. However, since the availability of these numbers is quite limited, I do not believe that this is a realistic or acceptable means of solving the short term problem.

For humanitarian reasons and our nation's own special responsibility to Indochinese "boat case" refugees, it is the Attorney General's present judgment that the situation of "boat case" refugees is an emergent one and our favorable response under the circumstances is in the public interest and warranted. We request that you