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United States v. Esperdy

April 9, 1963

UNITED STATES OF AMERICA EX REL. HERMAN FREDERICK MARKS, RELATOR-APPELLANT-APPELLEE,
v.
P. A. ESPERDY, AS DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, NEW YORK DISTRICT, UNITED STATES DEPARTMENT OF JUSTICE, RESPONDENT-APPELLEE-APPELLANT.



Author: Waterman

Before WATERMAN, SMITH and HAYS, Circuit Judges.

WATERMAN, Circuit Judge.

Herman Frederick Marks was born in Milwaukee, Wisconsin, on August 1, 1921. In 1958 he went to Cuba and there joined Fidel Castro's revolutionary forces fighting in the Sierra Maestra Mountains to overthrow the government of Fulgencio Batista. After the revolution was brought to a successful conclusion in January 1959, Marks continued to serve as a captain in the Cuban Rebel Army. He was placed in command of some 7,000 to 8,000 men charged with the security of La Cabana, a military prison and fortress in Havana. There he presided over the execution of numerous prisoners condemned to death by military tribunals. Later he was assigned to give instructions on the use of weapons at a military police school and at Principe Prison, where he again commanded a unit of security guards.

In May 1960, Marks, having lost favor with the Castro regime, left Cuba and in July of that year re-entered the United States

In January 1961, Marks was arrested by officers of the Immigration and Naturalization Service. The Attorney General commenced deportation proceedings against him charging that, pursuant to 8 U.S.C. § 1481(a) (3),*fn1 he had lost his American citizenship by serving in the armed forces of a foreign country without authorization of the Secretary of State and the Secretary of Defense; and, that being an alien, he was a deportable one, 8 U.S.C. § 1251(a) (1), as he had been convicted in 1951 of a crime involving moral turpitude, 8 U.S.C. § 1182(a) (9), and as he had entered the United States, upon his return from Cuba, without appropriate alien documents. 8 U.S.C. § 1182(a) (20).

After a hearing before a Special Inquiry Officer of the Immigration and Naturalization Service, Marks was ordered deported on the grounds set forth above. The Board of Immigration Appeals sustained the order of deportation.

Marks thereupon petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus, challenging (1) his alleged loss of citizenship, and thus the jurisdiction of the Attorney General in the prior administrative deportation proceedings; (2) his deportability under 8 U.S.C. §§ 1251(a) (1), 1182(a) (9) and 1182(a) (20), even should he be determined to be an alien; and (3) the lawfulness of his detention, should he be declared to be legally deportable, as he would then be stateless and thus not actually deportable to Cuba or to any other country.

After a hearing upon the issues so raised, the district judge ruled that Marks had lost his American citizenship by virtue of serving in the armed forces of Cuba after the successful conclusion of the Castro revolution. Marks appeals from that determination, claiming, as he did below, that the Rebel Army did not constitute the "armed forces of a foreign state", within the meaning of 8 U.S.C. § 1481(a) (3), that his service in the Rebel Army during 1959 and 1960 was involuntary, and that § 1481(a) (3) as here applied is unconstitutional in that it imposes a cruel and inhuman punishment in violation of the Eighth Amendment. Although we find great force in the constitutional arguments presented by relator's counsel, we are constrained by the superior authority of Perez v. Brownell, 356 U.S. 44, 78 S. Ct. 568, 2 L. Ed. 2d 603 (1948), to affirm the determination of alienage on the opinion of Judge Cashin, the district judge below, 203 F.Supp. 389 (1962).

Despite his determination adverse to the relator on the issue of alienage, Judge Cashin granted the writ of habeas corpus relator sought, for he held that Marks was not deportable under either 8 U.S.C. § 1182(a) (9) or 8 U.S.C. § 1182(a) (20), the provisions relied upon by the Attorney General in the prior deportation proceedings.*fn2 We hold that the determination of the district court was erroneous in this respect and that the order of deportation was valid.

Section 241 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1251, provides, in material part, that

"(a) Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who -

"(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry;"

Section 212(a) (20) of the same Act, 8 U.S.C. § 1182(a) (20), provides for the exclusion from the United States of any alien immigrant

"* * * who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid ...


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