372 U.S. 144 (1963), 2, Kennedy v. Mendoza-Martinez

Docket Nº:[83 S.Ct. 556] No. 2
Citation:372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644
Party Name:Kennedy v. Mendoza-Martinez
Case Date:February 18, 1963
Court:United States Supreme Court

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372 U.S. 144 (1963)

83 S.Ct. 554, 9 L.Ed.2d 644




[83 S.Ct. 556]

No. 2

United States Supreme Court

Feb. 18, 1963

Argued October 10-11, 1961

Restored to the calendar for reargument April 2, 1962

Reargued December 4, 1962




Both appellees are native-born citizens of the United States. Mendoza-Martinez was ordered deported as an alien and Cort was denied a passport to enable him to return to the United States, both on the ground that they had lost their citizenship by remaining outside of the jurisdiction of the United States in time of war or national emergency for the purpose of evading or avoiding training and service in the Nation's armed forces. Both sued for relief in Federal District Courts, which rendered judgments declaring that the relevant statutes, § 401(j) of the Nationality Act of 1940, as amended, and § 349(a)(10) of the Immigration and Nationality Act of 1952, are unconstitutional. Mendoza-Martinez' case was tried by a single-judge District Court, which granted no injunction. Cort's case was tried by a three-judge District Court, which enjoined the Secretary of State from denying him a passport on the ground that he was not a citizen.

Held: The judgments are affirmed. Pp. 146-186.

1. Although Mendoza-Martinez amended his complaint so as to add a prayer for injunctive relief before the third trial of his case by a single-judge District Court, it is clear from the trial record that the issues were framed and the case handled so as actually not to contemplate any injunctive relief. In these circumstances, it was not necessary for the case to be heard by a three-judge District Court convened pursuant to 28 U.S.C. § 2282. Pp. 152-155.

2. The trial and conviction of Mendoza-Martinez for violating §11 of the Selective Training and Service Act of 1940 by going to Mexico "on or about November 15, 1942 . . . for the purpose

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of evading service" did not involve any determination of his citizenship status, and therefore did not estop the Government from denying his citizenship subsequently. Pp. 155-158.

3. Section 401(j) of the Nationality Act of 1940, as amended, and § 349(a)(10) of the Immigration and Nationality Act of 1952, which purport to deprive an American of his citizenship, automatically and without any prior judicial or administrative proceedings, for

departing from or remaining outside of the jurisdiction of the United States in time of war or . . . national emergency for the purpose of evading or avoiding training and service

in the Nation's armed forces, are unconstitutional, because they are essentially penal in character and would inflict severe punishment without due process of law and without the safeguards which must attend a criminal prosecution under the Fifth and Sixth Amendments. Pp. 159-186.

(a) The great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process. Pp. 164-165.

(b) It is conceded that §§ 401(j) and 349(a)(10) would automatically strip an American of his citizenship, without any administrative or judicial proceedings whatever, whenever he departs from or remains outside the jurisdiction of this country for the purpose of evading his military obligations. Pp. 166-167.

(c) The punitive nature of the sanctions imposed by these sections is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, and it is clear from a consideration of the legislative and judicial history of these sections and their predecessors that in them Congress employed the sanction of forfeiture of citizenship as a punishment for the offense of leaving or remaining outside the country to evade military service. Pp. 163-184.

(d) Such punishment may not constitutionally be inflicted without a prior criminal trial with all the safeguards guaranteed by the Fifth and Sixth Amendments, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses. Pp. 167, 184, 186.

192 F.Supp. 1 and 187 F.Supp. 683, affirmed.

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GOLDBERG, J., lead opinion

MR. JUSTICE GOLDBERG delivered the opinion of the Court.

We are called upon in these two cases to decide the grave and fundamental problem, common to both, of the constitutionality of Acts of Congress which divest an American of his citizenship for "[d]eparting from or remaining outside of the jurisdiction of the United States in time of war or . . . national emergency for the purpose of evading or avoiding training and service" in the Nation's armed forces.1

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A. Mendoza-Martinez -- No. 2.

The facts of both cases are not in dispute. Mendoza-Martinez, the appellee in No. 2, was born in this country in 1922, and therefore acquired American citizenship by birth. By reason of his parentage, he also, under Mexican law, gained Mexican citizenship, thereby possessing dual nationality. In 1942, he departed from this country and went to Mexico, solely, as he admits, for the purpose of evading military service in our armed forces. He concedes that he remained there for that sole purpose until November, 1946, when he voluntarily returned to this country. In 1947, in the United States District Court for the Southern District of California, he pleaded guilty to and was convicted of evasion of his service obligations in violation of § 11 of the Selective Training and Service Act of 1940.2 He served the imposed sentence of a year and a day. For all that appears in the record, he was, upon his release, allowed to reside undisturbed in this country until

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1953, when, after a lapse of five years, he was served with a warrant of arrest in deportation proceedings. This was premised on the assertion [83 S.Ct. 557] that, by remaining outside the United States to avoid military service after September 27, 1944, when § 401(j) took effect, he had lost his American citizenship. Following hearing, the Attorney General's special inquiry officer sustained the warrant and ordered that Mendoza-Martinez be deported as an alien. He appealed to the Board of Immigration Appeals of the Department of Justice, which dismissed his appeal.

Thereafter, Mendoza-Martinez brought a declaratory judgment action in the Federal District Court for the Southern District of California, seeking a declaration of his status as a citizen, of the unconstitutionality of § 401(j), and of the voidness of all orders of deportation directed against him. A single-judge District Court, in an unreported decision, entered judgment against Mendoza-Martinez in 1955, holding that, by virtue of § 401(j), which the court held to be constitutional, he had lost his nationality by remaining outside the jurisdiction of the United States after September 27, 1944. The Court of Appeals for the Ninth Circuit affirmed the judgment, 238 F.2d 239. This Court, in 1958, Mendoza-Martinez v. Mackey, 356 U.S. 258, granted certiorari, vacated the judgment, and remanded the cause to the District Court for reconsideration in light of its decision a week earlier in Trop v. Dulles, 356 U.S. 86.

On September 24, 1958, the District Court announced its new decision, also unreported, that, in light of Trop, § 401(j) is unconstitutional because not based on any "rational nexus . . . between the content of a specific power in Congress and the action of Congress in carrying that power into execution." On direct appeal under 28 U.S.C. § 1252, this Court noted probable jurisdiction, Mackey v. Mendoza-Martinez, 359 U.S. 933, and then, of its own motion, remanded the cause, this time with permission to the parties to amend

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the pleadings to put in issue the question of whether the facts as determined on the draft evasion conviction in 1947 collaterally estopped the Attorney General from now claiming that Mendoza-Martinez had lost his American citizenship while in Mexico. Mackey v. Mendoza-Martinez, 362 U.S. 384.

The District Court on remand held that the Government was not collaterally estopped because the 1947 criminal proceedings entailed no determination of Mendoza-Martinez' citizenship. The court, however, reaffirmed its previous holding that § 401(j) is unconstitutional, adding as a further basis of invalidity that § 401(j) is

essentially penal in character, and deprives the plaintiff of procedural due process. . . . [T]he requirements of procedural due process are not satisfied by the administrative hearing of the Immigration Service nor in this present proceedings.3

The Attorney General's current appeal is from this decision. Probable jurisdiction was noted on February 20, 1961, Rogers v. Mendoza-Martinez, 365 U.S. 809. The case was argued last Term, and restored to the calendar for reargument this Term, 369 U.S. 832.

B. Cort -- No. 3.

Cort, the appellee in No. 3, is also a native-born American, born in Boston in 1927. Unlike Mendoza-Martinez, he has no dual nationality. His wife and two young children are likewise American citizens by birth. Following receipt of his M.D. degree from the Yale University School of Medicine in 1951, he went to England for the purpose of undertaking a position as a Research Fellow at Cambridge University. He had earlier registered in timely and proper fashion [83 S.Ct. 558] for the draft, and, shortly before

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his departure, supplemented his regular Selective Service registration by registering under the newly enacted Doctors Draft Act.4 In late 1951, he received a series of letters from the American Embassy in London instructing him to deliver his passport to it to be made "valid only for return to the United States." He did not respond to these demands because, he now says in an affidavit filed in the trial court in this proceeding,

I believed that...

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