Marks v. Esperdy

LOCATION: Alabama State Capitol

DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 377 US 214 (1964)
ARGUED: Apr 02, 1964
DECIDED: May 18, 1964

Facts of the case


Media for Marks v. Esperdy

Audio Transcription for Oral Argument - April 02, 1964 in Marks v. Esperdy

Earl Warren:

Number 253, Herman Frederick Marks, Petitioner, versus P. A. Esperdy, District Director, Immigration and Naturalization Service.

Murray A. Gordon:

Mr. Chief Justice and members of the Court.

This case is here on --

Earl Warren:

Mr. Gordon.

Murray A. Gordon:

-- certiorari from the Second Circuit which had sustained a final order of deportation of the immigration service.

The case is here in connection with the habeas corpus proceeding challenging that final order of deportation.

And more particularly, the determination by the Second Circuit involved two components.

First, there was a finding that the petitioner who is a native born American had been expatriated and lost his sole American citizenship rendered stateless.

As a result of his alleged military service in the Cuban Rebel Army after January of 1959 and until May of 1960.

This expatriation was set to follow from the application of Section 349 (a) (3) of the Immigration and Nationality Act of 1952.

The Court of Appeals further found that the petitioner, having first lost his American citizenship and rendered an alien, and have been passed in this condition before he reentered the United States in July of 1960, that he was an alien at that time and therefore was required to have the requisite entry documents.

And since he did not have such documents at the time that he returned to his native country, he was an excludable alien and for this reason, the court below held that the petitioner was not only an alien but a deportable alien.

I shall be confining my discussion here today to two principal questions.

The first is the constitutionality of Section 349 (a) (3) as it was applied to the petitioner and secondly, the question of his deportability even assuming him to have been an alien.

I may say to the Court that there are many other questions which are argued in the brief, but I think this to be the key questions and I would prefer to use my time in the discussion of these two and leave the other questions so the treatment to be found in the briefs.

Since I've confined the questions which I shall discuss to these two principal matters, I shall confine my discussion of the facts to those of record which are relevant to these questions and those facts are largely not in controversy.

Marks was born in the United States.

He went to Cuba sometime in 1958.

While there, he joined the Castro forces in the hills and fought with the revolutionary forces against Batista.

In the course of this military activity, he rose to the rank of captain.

Now, I should make clear that no part of the disability which he now suffers, derives from his service in the revolutionary army because Section 349 (a) (3) provides that there shall be law -- a loss of American nationality as a result of service in the armed forces of a foreign state, provided that there shall not first have been specific authorization by the Secretaries of Defense and State to engage in such military service.

Apparently under the statute, engaging in military activity on behalf of a revolutionary force doesn't constitute military service on behalf of a foreign state and therefore, it does not result in expatriation.

Consequently, the critical portion of his service is a period after January 1959.

This was after Batista had fallen and the Castro forces became the provisional and subsequently, I take it, the accepted Government of Cuba.

The petitioner remained in the rebel army during this period of time.

There is a great deal of dispute in the record whether the rebel army at that time was an armed force as it is defined under the statute.

A great deal of argument in the record as to whether Marks himself, engaged in any military service during that period of time.

I shall bypass that except to mention one phase of that service because I'm just sure as I'm standing here that the -- my adversary will make reference to the fact that for a period of four or five months, after January of 1959, Marks supervised execution activities on behalf of the rebel army after there had been convictions by military tribunals.

The other fact which is not serious --

Earl Warren:

When did -- when did Castro takeover the -- the -- the Government?