Earlier this week, the University of Houston Law Center was fortunate to have as its guest Professor Daniel Kanstroom of Boston College of Law. An expert in immigration law, he is the Director of the International Human Rights Program, and he both founded and directs the Boston College Immigration and Asylum Clinic. Speaking as the guest of the Houston Journal of International Law’s annual Fall Lecture Series, Professor Kanstroom discussed issues raised in his new book, Aftermath: Deportation Law and the New American Diaspora. Professor Michael Olivas introduced Professor Kanstroom to the audience, and mentioned the fascinating tale of Carlos Marcello, which Professor Kanstroom wrote about in his chapter “The Long, Complex, and Futile Deportation Saga of Carlos Marcello,” in Immigration Stories, a collection of narratives about leading immigration law cases. My interest piqued, I read and was amazed by Kanstroom’s description of one of the most interesting figures in American legal history.
Carlos Marcello was born in Sicily and came to the New Orleans as an infant with his parents in 1910. After dropping out of school at age 14, Marcello likely became involved with the Mafia, and led a bank robbery in 1929. Marcello was caught, and was sentenced to nine to twelve years in the state penitentiary, but served only four before receiving a pardon from the governor (thanks to his father’s political influence). After his release, Marcello continued his criminal career, leading to his arrest and sentencing for selling twenty-three pounds of marijuana to an undercover FBI agent in 1938. Undeterred, he was involved in gambling establishments, and continued his criminal enterprises, leading one reporter to call him “the crime czar of New Orleans” in 1950.
After invoking the Fifth Amendment in a hearing before the Senate’s Special Committee to Investigate Organized Crime in Interstate Commerce, he solidified his reputation before the government, and deportation proceedings were initiated against him. But, the government would have to wait more than thirty years before they truly had their man.
Deportation proceedings began in 1952, when Marcello was arrested pursuant to an immigration warrant stemming from his 1938 marijuana conviction. After he was found deportable by INS officers and the Board of Immigration Appeals, Marcello appealed through a habeas corpus petition in the Eastern District of Louisiana. The court found his due process argument lacking, and noted that “no amount of due process would help him” anyway, but did allow Marcello’s release on bail. The Fifth Circuit affirmed the District Court’s decision, and Marcello’s case reached the Supreme Court in 1955.
In Marcello v. Bond, 349 U.S. 302, Marcello’s lawyer, Jack Wasserman, argued that the 1952 Immigration and Nationality Act under which Marcello was to be deported, deviated from the Administrative Procedure Act in its hearing requirements. This deviation was especially significant especially when it came to the separation of functions within an agency and its officers, a key provision of the APA, which would have demanded more separation in the roles of officers in adjudicating Marcello’s deportation hearing. The Supreme Court delivered a 5-3 verdict, affirming the decisions of the lower courts, and finding that Congress, in passing the Immigration and Nationality Act, expressly exempted the Act from the APA’s hearing requirements. A strong dissent followed from Justice Black, who stated “a fair hearing necessarily includes an impartial tribunal.” Outrage from the ABA and other groups followed, and the case helped lead to the reforms Wasserman argued for in new INS regulations promulgated in 1955 and 1956.
Now, the time had come to deport Marcello. The INS only needed to find a country who would take him. Marcello designated France as his choice country, only to be rejected. Italy also rejected his request (possibly after a large bribe to an Italian Court Official). This left the United States with a problem, leading to more delay for Marcello’s deportation, along with Marcello’s continued court actions, further delaying his deportation.
Marcello appeared again before a Senate committee to investigate labor and corruption in 1959, with Robert F. Kennedy as chief counsel. As he had done years before, Marcello again refused to testify on the grounds of self-incrimination. Two years later, Robert F. Kennedy had become Attorney General, and remembered Marcello. Marcello had obtained, for some reason, a fraudulent Guatemalan birth certificate (again courtesy of a large bribe), finally giving the U.S. a destination for his deportation. On April 4, 1961, Marcello was arrested and flown, as the sole passenger, to Guatemala. Marcello managed to re-enter the United States shortly thereafter, through Miami, and continued in his ways.
Once he returned, did Marcello mastermind a Mafia conspiracy to assassinate President Kennedy? Did he have any involvement in the assassination of Martin Luther King, Jr.? And how did he manage to stay in the United States for the remainder of his years, before dying in 1993? Did he ever pay for his crimes? You’ll have to read the rest of this immigration story to find out, but trust it is well worth the read.
Be sure not to miss Professor Michael Olivas’s chapter as well, “Plyer v. Doe, the Education of Undocumented Children, and the Polity,” about the case that tested whether Texas could enact laws denying undocumented children access to public schools. Both these two stories, and the others in the book, bring the “exceptional” character of immigration law to life, and paint a picture of how our nation’s immigration laws have affected the lives of so many who have sought the American Dream.
David A. Martin & Peter H. Schuck, eds., Immigration Stories, KF 4819 .A2 I564 2005.