Johann Breyer

Johann Breyer (May 30, 1925 – July 22, 2014) was a retired tool and die maker who the Office of Special Investigations (OSI) unsuccessfully attempted to denaturalize and deport for his teenage service in the SS. His was considered the "most arcane and convoluted litigation in OSI history." In 2013 Germany issued an arrest warrant accusing him of aiding in killing 216,000 Jews as a guard at Auschwitz. He was arrested at his home in Philadelphia on June 17, 2014, age 89, and held without bail pending an extradition hearing. His health rapidly deteriorated while in custody and he died on July 22 prior to his hearing.

Background
Johann Breyer was born in 1925 in the ethnic German farming village of Neuwalldorf, Czechoslovakia (now Nová Lesná, Slovakia), to farmer Johann Breyer and his wife Katrina. Katrina Breyer was born in 1895 in Manayunk, Pennsylvania (a fact that would prove pivotal in later efforts to deport him from the United States) and moved with her family to Neuwalldorf while a teenager. Breyer attended German school and worked on his parent's farm. In 1942, at age 17, he enlisted in the Waffen SS and was assigned as a guard at Buchenwald and Auschwitz. He acknowledged serving as an armed guard and escorting prisoners to their work sites and denied any personal role in or witnessing of any atrocities. Soviet troops began to approach Auschwitz in January 1945; Breyer was on home leave at the time and was re-routed to a forward fighting unit until taken prisoner by the Soviet Army in May 1945. He emigrated to the United States in 1952 under the Displaced Persons Act (DPA) and settled in Philadelphia where he raised three children with his wife and worked as a tool and die maker for an engineering company. He became a naturalized U.S. citizen in 1957.

OSI prosecution
The OSI became aware of Breyer when a routine cross-check of Auschwitz guard records with Immigration and Naturalization Service records showed that he had emigrated to the United States. In 1992 the OSI filed a denaturalization action with the United States District Court for the Eastern District of Pennsylvania alleging that Breyer was ineligible to enter the U.S. through the DPA because he had assisted in wartime persecution and been part of a movement hostile to the U.S.

Breyer asserted that he should be deemed to have entered the country lawfully as his mother had been born in the U.S. and that the laws in place at the time that granted derivative citizenship only patrilineally were in violation of the Equal Protection Clause of the 14th Amendment. He therefore had to file an application for derivative citizenship with the INS. The cases then proceeded on parallel tracks (the OSI's efforts at denaturalization and Breyer's claim of derivative citizenship) for many years.

In the OSI litigation, the district court held that Breyer was ineligible to enter under the DPA but that the statute denying Breyer citizenship at birth was unconstitutional. At that time, the INS had yet to rule on Breyer's application for derivative citizenship so the court deferred to the INS, thus abstaining from deciding whether Breyer was indeed a U.S. citizen at birth. Meanwhile, the Immigration and Nationality Technical Corrections Act had been introduced in Congress to provide for the acquisition of United States citizenship from either parent for persons born abroad to parents, only one of whom is a United States citizen. The OSI pressured Congress to place a "singular exception into the statute" to "deny application of the law to anyone who would not have been eligible to enter the United States under the DPA." This was, in effect, a bill of attainder against Johann Breyer as he was "the only pending case affected by the bill." The United States Constitution forbids legislative bills of attainder under Article I, Section 9.

The INS denied Breyer's application based on the new statute and OSI therefore filed a deportation case. Breyer appealed the INS decision in district court on the grounds that the new statute was a bill of attainder and also unconstitutional under the equality clause as those inadmissible under the DPA were denied citizenship only if it was derived maternally. The district court ruled against Breyer. He also lost his deportation case in immigration court. He appealed both losses to the United States Court of Appeals for the Third Circuit. The third circuit held that the new statute was "arbitrary and irrational" and that he was entitled to derivative citizenship at birth.

The OSI then brought suit in district court alleging that Breyer's service in the SS was in itself an expatiating act (i.e. an act that would cause him to lose his citizenship). Under U.S. law in 1942 loyalty oaths and military service with foreign powers were not expatriating if the individual was a minor, as held by the district court. However, the question remained as to whether had had committed any acts after his 18th birthday that were expatriating. "Breyer testified that he had done everything possible to be excused from service," he refused the SS blood group tattoo, he deserted in August 1944 and returned "only because he feared he might be killed if he failed to do so." The district court held that Breyer's service after his 18th birthday was involuntary and not expatriating. The OSI appealed but the third circuit affirmed the district court's ruling noting "deserting his unit under what he believed to be penalty of execution suggests that Breyer's service was not voluntary."

Extradition request from Germany
On June 17, 2013 the District Court of Weiden, Germany issued an arrest warrant for Johan Breyer for complicity in the commission of murder while a guard at Auschwitz. He was arrested at his home in Philadelphia one year later and although he was in frail health at age 89 he was held without bail pending an extradition hearing. Considering advanced age and that he was a teenager when World War II ended in Europe he is likely to be the last person pursued by the U.S. government for his service in the SS. He died in a hospital before his extradition hearing was held.