Before CLARK, KAUFMAN and HAYS, Circuit Judges.
This is an appeal from an order of the district court (197 F.Supp. 278) denying appellant's petition for naturalization on the ground that petitioner failed to establish that he was "attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States." We affirm the action of the district court.
The statute which governs the present proceeding is Section 1427 of Title 8 of the United States Code which provides, in relevant part:
"(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such petitioner, (1) immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State in which the petitioner filed the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.
"(e) In determining whether the petitioner has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the court shall not be limited to the petitioner's conduct during the five years preceding the filing of the petition, but may take into consideration as a basis for such determination the petitioner's conduct and acts at any time prior to that period."
Under this provision the petitioner has the burden of showing that he meets the statutory qualifications. Taylor v. United States, 231 F.2d 856 (5th Cir., 1956); Tutun v. United States, 270 U.S. 568, 578, 46 S. Ct. 425, 70 L. Ed. 738 (1926).
The record shows that the petitioner here, Edward Sittler, was born in Delaware, Ohio, in 1916. His family was of German descent although German was not spoken in his home and he did not learn to speak German until he went to Germany at the age of 21.
Sittler was graduated from high school in Ohio and attended Ohio State University and Bard College for three years. In 1937 Sittler went to Germany where, after spending some time learning the language, he became a student at one of the German universities. In 1939, while still studying at a German university Sittler applied for naturalization as a citizen of Germany. It may be considered of some significance that Sittler's application for naturalization was filed a few days after Hitler's attack on Poland, which was the beginning of World War II. His application for German citizenship was granted in the spring of 1940. From the spring of 1940 until the final defeat of Germany in 1945 Sittler was employed in the Information Office of the German government.
During the period 1943 to 1945 he was a commentator broadcasting propaganda in English on a radio program directed to the United States.
Late in 1942 or early in 1943 Sittler joined the Nazi party.
In determining whether the petitioner had sustained his burden of establishing the qualifications enumerated in Section 1427, the district court took into consideration the petitioner's conduct and acts during the period 1937-1945 as it was expressly authorized to do by that statute. The district court held that the petitioner "wholly failed to sustain his burden of proof." We must affirm unless we find that the determination of the district court was clearly erroneous, and in our consideration of that question we must accord due weight to the opportunity of the district judge to observe the conduct and demeanor of the witnesses, particularly the petitioner himself.*fn1
On the basis of a careful review of the entire record we cannot find that clear error which we are obliged to find if we are to set aside the district court's order. The district court could properly conclude from the evidence that Sittler had shown himself to be attached at one time (a time during which the United States was at war with Germany) to the principles of Nazism as those principles were exemplified by the government of Adolf Hitler. It is hardly arguable, though petitioner attempted to argue it, that one who is attached to the principles of Nazism can at the same time be attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States. Therefore one who now claims to be attached to the principles of our Constitution but who was formerly a Nazi, can be required to prove that he has completely renounced and repudiated his attachment to Nazism. It was in this respect particularly that the district court found that the petitioner's evidence fell short of that convincing character which the situation demanded.
There is nothing in the statute, nor in the cases decided under it, which would permit a court to deny naturalization to a petitioner solely on the ground that he was at one time a Nazi, however devoted he may have been at that time to Nazi principles. Nor could a court properly deny petitioner's application on the ground that his wartime activity in behalf of Hitler's Germany would have constituted treason but for his timely acquisition of German citizenship. No past conduct of this kind, however deplorable, will bar access to citizenship to one who can establish that his ideas and allegiances have undergone a genuine change and that he is now, at the time of his petition for naturalization, in all good faith attached to the principles of the United States.
In the present case the district court did not purport to hold the petitioner ineligible for naturalization because of his activity during the war or because of his past adherence to principles which were hostile to the principles to which he now claims attachment. On the contrary the judge searched the record for evidence that the petitioner has changed his views since 1945 and is no longer sympathetic to a political system so completely at variance with the principles to which he now claims allegiance. The court sought without success to find in petitioner's testimony any convincing renunciation of the former allegiance, let alone any expression of abhorrence for the Nazi system and its crimes.
Giving due weight to the district court's opportunity to observe the demeanor of the petitioner we cannot say, in reviewing his testimony, that the conclusion of the district court was clearly erroneous. It is difficult to find in that testimony any direct, uncomplicated repudiation of the Nazi system. Partial repudiations are qualified and explained. There are repeated attempts at justification and rationalization. An American may be "mistaken" for sympathizing with Germany "but Americans can be for the underdog." The United States was a republic, "but the Soviet Union was called a republic, too". This took time for him to "understand." Whether he would have fought in the German army against the United States was "a purely hypothetical question", because Germany had the "humane policy" of not assigning former foreign nationals to fight against their former countries. When he was naturalized in Germany he took an oath of allegiance to Germany "but not to Adolf Hitler."
Petitioner's testimony on his reasons for going to Germany and adopting German citizenship is open to the construction that he found (and now finds) no contradiction between attachment to the United States and attachment to Nazi Germany.*fn2
And he finds an "ironic" parallel between the present situation with his son in the American Army in Germany protecting the West against communism, and his own action in taking German citizenship to help protect the West against communism.*fn3 (Although Sittler insists at great length that he was motivated in adopting German citizenship by fear of communism, it may be noted that he became a German citizen shortly after the announcement of the Hitler-Stalin pact.)
Petitioner was extremely prolix about reasons for joining the Nazi party, but, in summary, perhaps it can be said that petitioner thought of the Party as providing the best hope for Germany's future.*fn4 He was under no compulsion whatever to join the Party. He thought that he could make the Party better by joining it. However although petitioner joined the Party partly to reform it, he never attended a meeting or engaged in any other party activity. Petitioner testified at a later point that he joined the Party because he knew by this time that the war was lost and he thought the Party would be able to give the German people some leadership after the debacle consequent upon the unconditional surrender policy which the Allies had formulated.
In petitioner's testimony there are lengthy "explanations" of Nazi tenets, some of which may be read ...