*3 Irelan, Atty., Messrs. Charles M. S.U. preliminary injunction. His counsel Washington, C., argument, D. at time filed an appellee affidavit that unless en- Glendon, Atty., William R. U. Asst. S. joined appellant deprived will be liberty C., Washington, argument, D. at time of over; until suit appellant was Scott, Atty., M. Asst. U. S. Robert allowed bail the entire administra- C., Washington, brief, D. were on the proceeding; tive that the interests of the appellee. Rover, Atty., Mr. Leo A. U. S. will not be adversely af- C., Washington, appear- also entered D. fected his continued liberty; and that appellee. ance suggested no one has appellant EDGERTON, government hostile to the or likely Before PROCTOR and to en- gage subversive, reprehensi- criminal or BAZELON, Judges. Circuit Appellee activities. ble has not denied EDGERTON, Judge. allegations.3 Circuit these On December the then District Court declined to issue appellant Ru- restraining General issued an order for appealed. Rubinstein deportation. January 5, day On On we binstein’s the same remanded the case 155(a). Rubinstein, Cir.1948, parallel provision C.A. 1. United States v. 241(a), 1952 Act certiorari denied 333 Stat. (a) (4). U.S.C.A. § 68 S.Ct. say Deportation sought Appellee’s counsel in their brief Immigration yet appollee has Act determined 'whether appellant custody. amended, hold deportability valid un- shall decision of consideration Court “for to the District reasonable, less is based substan- in accordance of detention tial, probative Unlike evidence.” in habeas applicable principles Act, 242(c) 242(e) of such §§ corpus proceedings, together may expressly recognize that there questions as be before depor- “judicial a final order of 23, 1953-, Dis- review” of January On Court.” provides that “the injunction. tation. Section preliminary trict Court denied period of restraining General shall have temporary This court entered order, six such *4 months from the date of denial. appeal from that pending this order or, had, judicial then revietv the if from I. court, within the date the final of of departure from which to the alien’s effect ruling of adhere to We Jan 6 * * the United States appellant’s uary of legality 5 the that synonymous review” is imminent detention threatened “Judicial corpus.7 Nothing in re- habeas principles that § the in tested suit this corpus. corpus'. to habeas stricts it applicable in habeas would 229, 73 Barber, 345 U.S. Heikkila v. pro- 242(b) of 1952 Act the 16, 1953, 603, March decided vides, practically words as the same § Distinguishing McGrath contrary. Supreme 1917 Act8 which 19(a) of 224, 162, Kristensen, 71 S.Ct. any Heikkila, “In construed that Court decisions 173, overruling deported case in which alien is ordered Appeals,4 the this and two other Courts provi- from under the United States could Supreme Heikkila Court held that Act, any law or sions this only in habeas deportation order attack a Attorney Gen- treaty, decision Immigra- 1917 19 corpus because § Supreme final.” But eral shall as the Act, 890, the or- which tion 39 Stat. under Heikkila, Court “That said “clearly issued, had the effect der was not set- are ‘final’ does General’s decisions deporta- judicial intervention precluding ** * question. alone, tle the Read required except it was insofar as tion cases might refer to the doctrine term] [the pages 345 U.S. at Constitution.” exhaustion reme- quiring of administrative Court 234-235, page 606. The 73 S.Ct. at process judicial can be in- dies before pointed “not consider out that did 233, page 345 at 73 S.Ct. voked.” Act, 163, which took effect 66 Stat. 1952 repeatedly had page at 605. The Court complaint filed.” was Heikkila’s after 1917, immigration legis- held, that in before Act, which 4._ 1952 note The 73 S.Ct. “final” lation the was “intended to word Act, Nationality Immigration and is the nonre- make these decisions seq., 1101 et 66 8 U.S.C.A. Stat. § possible to the fullest extent un- viewable 1952,5 before effect December took In Heikkila der Constitution.” even filed and Rubinstein’s was held, background “against of a deportation was before the order quarter century judicial of a of consistent 1952 Act and agree issued. All interpretation” 19 of § governs 1917 suit. not the “clearly Immigration Act 1917 had the judicial precluding effect of intervention its historical 1952 Act and The except cases insofar as it Act, 242(b) 1917
background.
Unlike
required by
was
345
the Constitution”
U.
provides
“no
the 1952 Act
(4) of
corpus that
differentiates use
10, infra.
4. Note
judicial
writ
from
review as
1101
8 U.S.C.A.
66 Stat.
§5.
in the
is used
Administrative Pro
term
note.
page 236,
at
73
Act.” 345 U.S.
cedure
page 607.
at
Emphasis added.
amended,
54 Stat.
39 Stat.
Supreme
the Heik
Court said
7. 155(a).
inquiry
scope
“it
case:
kila
no court shall
jurisdiction
have
pages
S.Ct. at
to review
S. such
say,
corpus.
determination.”
except
A 1940 amendment
of the World War Veterans Act of
very
back-
Act has
different
la-2,
provided
U.S.C.A. §
interpretation.
ground
that “the decisions of
the Administrator
Appeals
three Courts of
Veterans’ Affairs
any question
law or
pre-
despite
including this one ruled
concerning
fact
a claim
benefits
legislation
Gen-
making
vious
* * * shall be final and
conclusive
they
“final”,
were
orders
eral’s
no other
official or
the United
10 ol
Admin-
subject to
review
power
jurisdiction
shall have
Congress
Act which
istrative Procedure
review
such
Ex
decisions.” A 1941
time
passed
Throughout
in 1946.11
amendment,
cess
Tax
Profits
adopt-
Congress
considering and
when
provided that certain
lia
determinations of
construing,
ing
1952 Act
we are
bility by
Appeals
the Board of Tax
(now
unanimous
Courts
this was the
view the
the Tax Court of the
*5
States)
United
“shall
Appeals.
not be reviewed or
any
by
redetermined
legislation,
dealing
with other sorts of
or
court
agency except the Board.”
Supreme
held that
repeatedly
had
necessarily ex
“final” does not
word
Section 360(c) of the 1952
it
Act
corpus,
clude,
judicial
or limit to. habeas
self provides,
persons
as to
seeking admis
Estep
of administrative action.
v.
review
sion to
States,
the United
that “A final de
States, 1946,
114, 66
327 U.S.
S.Ct.
by
termination
tile
that
567,
example.
423,
anis
Accord
90 L.Ed.
any
person
such
is not entitled to admission
ingly
common
1952
it had become
to the United
subject
shall
re
preclude
Congress,
when wished to
by any
competent
view
jurisdiction
court of
review,
judicial
by
or restrict
to do so
ex
corpus proceedings
in habeas
and not oth
press language
rely
and not to
on the word
13 The
Congress
erwise."
fact
that
said
601(e)
Revenue
“final”.
clearly what it meant in
re
360(c) with
§
1740,
Act
1936,
provided
gard
strong
to admission
“The determination
Commissioner
evidence
respect
any
Revenue with
re
Internal
it did
what
not say
not mean
it did
in 242§
fund under
section shall
be final and
deportation.14
regard
with
(c)
9. The Court added “the decisions have
;
162,
Legislative history of predecessor Representatives of the American bills were bills. Act and its While the many rejected organi- Bar Association pending, Congress considered re- opposed effect zations restriction of proposals would have had the application of urged deportation proceedings view continued exempting Procedure 10 of the Administrative Ad- review under the Act .from bill, hearings revised Act.15 After these Procedure Act. ministrative by McCarran S. introduced Senator McCarran Congress, In the Senator 81st Congress; in the 1st Session of 82d April a bill to revise introduced by Congressman H.R. introduced (S. nationality laws. immigration Walter in the 82d Session of Con- the.2d provided Cong., Sess.) 2d 81st bill, gress; intro- revised S. provisions “Notwithstanding the 106 that by McCarran in the 2d duced Senator determinations (a) other law— Congress, all Session of the 82d omitted under the officers fact provisions previous of 106 of the bills. regulations is- provisions of this Act Nationality Immigration and Act subject thereunder shall sued adopted them16 omits by any court; (b) determinations view pro- by administrative officersunder April 24, law During the House debate on issued regulations visions of this Congressman proposed to Meader subject to review thereunder shall not providing expressly the bill amend except through the writ subject “the order shall be *6 corpus; of discretion- (c) by competent the exercise juris- and to review court of upon administra- ary authority p. conferred Cong.Rec. diction”. 98 4415. Con- bill, by regulations Walter, Act or is- gressman this tive co-author of officers subject re- not opposing (p. 4416) thereunder in : sued shall be amendment said “Now, question by any court.” we come view finality Attorney Congress, of the 82d the decision of In the 1st Session by Senator Mc- is language introduced That means that it revised bill General. by 716) a bill introduced final (S. decision far as Carran concerned, (H.R. 2379) contained branch of Congressman-Waiter the Government is by provisions, but bill introduced but is not final in it not it that the last similar (H.R. 2816) remedy Celler did not. that the has. Congressman alien “provides implies 242(a), but sentence an other matters that review of statutory recognition of a basis other are not so limited. added review at times judicial review, not a limitation Hearings the Subcommit 15. Joint ** power United States ex Judiciary on the Committees tees of Esperdy, 202 Yaris v. E.2d reí. 716, H.R. on H.R. 82d S. literally grants, (1) the sentence Read Sess., Cong., pp. 144, 446, 536-7, 1st restrict, or au- not withdraw and does 590-1, 617-18, 699, 735. thority (2) It not does touch to review. corpus subject Judiciary review, habeas Committee’s The Senate Re- orders, otherwise, Cong., Sess., port but or 82d 2d Jan- No. only “detention, uary re- to review on S. 2550 relates said the omis- bond, provisions release” when on or former lease bills sion proceeding corpus restricting not review to habeas 28) dispatch” grant any (p. de- to effect a “not intended to with “reasonable re- period (3) portation. The six-month view officers, determinations made consular judicial expand to, which this sentence nor referred review matters, beyond immigration be- review of these cases authorizes under only existing “Existing gins “a after final order of law.” law” at to run * * * or, if included the Administrative Pro- date had, interpreted then from of the Act as it had been the date cedure view is * ® Trinler, 1948, 1949, and So the court decisions, supra, Prince if all as the Kristensen far sentence may imply did it note not include the Heikkila the matters to which refers, refers, during (1953) which it case overruled those deci- the time corpus, it sions. reviewed ap- Procedure the Administrative Act appellant arrested the him released appeal plicable. lies that decision an From bond. It also authorizes the Gen- * * * In view of the courts. eral “in his discretion” to revoke the bond every de- person parole who is fact ordered take the alien into ported proc- has all of these administrative again. But discretion in this connection court, available, plus appeal esses an ais reasonable discretion, arbitrary not an corpus, plus right of habeas to a capricious writ Landon, one. Carlson v. I a case cannot conceive of where injustice capricious would be some done was a habeas corpus case decided under a arbitrary The Header provision administrator.” Security Internal Act of amendment was defeated. 156(a), U.S.C.A. § which likewise authorized the In the Senate debate Senator McCarran in his keep “discretion” to May 22, p. (98 Cong.Rec. said alien in custody pending final determina- 5778) : “The Administrative Procedure tion oí deportability. his applicable Act made to the bill. The Ad- said: “Respondent filed defending returns prevails his ministrative Procedure now.” orders of detention on the ground that there II. was reasonable cause to pe- believe that appellant, opinion if he were titioners’ release prejudicial would be arrest, would entitled to public interest and endanger would corpus. welfare and safety of the United States. * * * The does urge Government justify proposed To arrest the Attorney General’s discretion is appellee relies on of the 1952 Act. subject any judicial review, but inapplicable. think We six-month merely discretion can overturned 242(c) gives during which the At * * * only on showing of clear abuse. torney General discretion to detain an *7 When in the judgment of Attorney deported alien who has been ordered be General an alien Communist so con- gins had, “if to run review is then duct himself pending deportation hearings from the date of the final order as to carrying aid in objectives out the yet court”. There has not been final the world movement, communist alien purpose court. The order of the the de * * * may be detained. per- This is a by 242(c) authorized tention “to effect delegation missible legislative power be- departure the alien’s from the United cause the judgment executive is limited agree departure States”. All cannot adequate standards.” pages at be effected while the order is 529, 540, 544, 72 page S.Ct. at 528. United under review. States ex rel. Esperdy, Yaris v. supra, note appellee rely 242(a), The does not 14, was corpus a habeas case under the primarily lo the relates be- Immigration and Nationality Act of 1952. deportation or- fore a final administrative The Second Circuit said: “When there literally, may der is issued. .Read relate has been a revocation and a rearrest on period. Congress to that But can warrant, the test on corpus hardly give Attorney have meant to lawfulness of the authority alien, resulting no to arrest General detention is whether under any circumstances, during present the prevailing circumstances Attorney interval between the General exercised a sound and the final order order ruled, discretion”. The court rightly we gap statute, To avoid such in the think, court. that “an allegation in the return that provisions arrest 242(a) we read the appellant engaged in communist applicable during as this interval. up activities to the time of his rearrest suf- ficiently reñttes the claim that there was authorizes the At abuse of discretion keep to torney custody, an alien General Gen- revoking bond, him on eral his bail release him on and taking him parole. custody.” The conditional F.2d the- until issue this we shall not consider governs case The Carlson is ac- case The been heard. affida others have his counsel’s one. The assertions District cordingly remanded the Gov not hostile appellant is vit that proceedings, with directions subversive, for further likely engage ernment restraining preliminary injunction are issue reprehensible activities criminal, or appellant’s bail and appellee revoking from we noted undenied. As warrant custody on a him into taking in from 1953, appellee’s counsel January final de- deportation, pending in of arrest for public injury to the formed us that no suit, appellee unless termination of anticipated postponing from terest to be adequate are court that there shows suggestion There is no appellant’s arrest. making the arrest. reasons for suggest Counsel or hide. he will flee not show question him but do a desire to and remanded. Reversed be questioned without cannot that he PROCTOR, (dissenting)’. Judge no reason The shows Circuit record ing arrested. arrest, apart un from for the order upon the majority opinion holds that in the statements contradicted has present record the defendant, At the former original that the ju- authority while no to arrest Rubinstein letters, tel General, many torney “received an arrest pending and that dicial review urging other communications egrams and They would be a of discretion. clear abuse “attention deportation” and his plaintiff’s “question detention conclude that urging newspaper columns was directed with must decided accordance appellant’s deportation.” Neither plaintiff’s corpus pro- principles applicable in habeas justi unpopularity record nor his criminal They fur- ceedings.” remand the case for far the rec As imprisoning fies him. proceedings, ther with directions to issue shows, 242(a) would ord his arrest injunction preliminary against arrest We have abuse discretion. clear adequate unless reasons are of Rubinstein 242(c) does not authorize his shown that § shown. deporta judicial review the arrest while confusing, to me if not mis- seems pending. tion order pre- leading, to involve the appeal, held the former As we liminary injunction principles must be decided in question of detention corpus. au- Court’s principles applicable accordance thority injunction grant rests corpus proceedings. In accord- in habeas *8 preserve general powers pendente its to principles, question of the ance with those jurisdiction pre- lite its over the case or entirely independent of the detention is irreparable injury. If I the thought vent finally prevail likely to question who required present preliminary situation in- deportation validity of the regard upon put I would junction its issuance upheld, that will not If the order be order. However, grounds. am those I convinced previous retroactively legalize arrest. present no need ac- that there is for such equities. balance occasion to There is no Therefore, my opinion, in- tion. the n were, the record contains if Even there by junction majority the an un- directed outweigh irrepara- that could the nothing encroachment and inter- warranted liberty personal which would of ble loss authority responsibili- the and ference with arrest. from an follow Attorney ty practical General. the injunction preliminary injunction strip is to At- denying a the effect the .In General, torney period during judi- the declared that the crime District Court review, statutory authority cial served term to appellant had involved which supervise an alien1 control and who turpitude. But this one of has moral deported, although, issues, complaint, on been ordered obvious- raised supervision validity deportation ly, are control and more essen- order which piecemeal appeals, after the order than before. To tial As depend. Judge avoid will 242(a) (c), Nationality Act, 1252(a) and Immigration 208 8 U.S.O.A. and (c). and
457 warrant, Rubinstein to take from dissenting Fahy points out deporta 26, deport Admittedly the January and him. restraining temporary Rubinstein’s, grounded upon 242(c) the tion order is section 57), (J.A. 1953 counts conviction, 23, 1947, on five April authorized, pro- when Attorney making knowingly an indictment order of of progressed to a ceedings have do, statements, conspiring so to and alien, him false deportation, detain draft, Selective containing such avoid violation and bond in an amount Training Act of may Service and conditions as the Appendix, 54 Start 50 other con- him such prescribe or release sentences concurrent may pre- for which he served Attorney General as the ditions years imprisonment. six months’ of two and scribe; which also the warrant under Cir., 2 166 Rubinstein, to See United States v. seeks allegedly General now S., denied, F.2d v. U. certiorari Foster apprehend does not and detain Rubinstein 868, 68 under the discretion exhaust that official’s I do not doubt that crimes significant these although statute.2 It is too they turpitude. moral involve essence recog- sections seem perjury do differ from crime nize that an order clearly perjury, subornation reviewed, nothing to judicially there is do involve Slates ex any that element. United suggest power in the court to interfere Cir., Schlotfeldt, rel. Boraca authority v. General’s 106; Karpay F.2d supervise United States ex rel. and control Uhl, Cir., denied, v. This, think, clearly cert. I im- F.2d review. plies power L.Ed. remains with the At- 671; Cir., Carr, torney Doubtless, Masaichi Ono arbitrary General. ar- Regardless else, rest or detention him be chal- all could lenged by corpus, speedy supported order is in simple disputable remedy quite facts criminal conviction contrast the time- imprisonment, consuming procedure here, established the de but so far there portation proceedings, necessary is no Nor do detention. I many think legal allegations conclusion, believe, in the as I unsworn attorney’s crimes affidavit, turpitude. in the did involve moral I supporting therefore abounding hearsay, any ques do not think substantial inference and con- jecture, presented tion is justify apprehen- raise a reasonable reasonable be lief arbitrary plaintiff sion of prevail upon will abusive action. filial hearing. Accordingly preliminary I matter, As view the critical injunction stay kind should be now is pending whether a final determina Signal denied. Hall Ry. Co. v. General tion of the case a showing sufficient has Co., Cir., Signal 153 F. Zug been made injunction to warrant an against Davis, smith D.C.S.D.N.Y.1952, *9 108 F. being Rubinstein taken or de Supp. 913; Libby, United States v. McNeill tained I General. think Libby, & D.C.D.Alaska F.Supp. Although not. it is charged that the de 601; Atlantic & Coast v. Unit Gulf/West portation proceedings lacking arc in due States, D.C.S.D.N.Y.1950, ed 90 F.Supp. process and the order is in 554. See Public also Serv. Comm. v. Wis. valid, there is no support substantial Co., 1933, Tel. position, unless it be that the crime 1036, 1038; 77 L.Ed. Mass. Rubinstein State was convicted did not Benton, Grange involve turpitude. moral v. did, If it then applicable under the 387; statute Perry Perry, became the duty of the Attorney General, upon U.S.App.D.C. 337, 190 F.2d This, think, I is true section whether Act of Feb. controlling 153(a). is read as review. Arnall, Em.App.1952, Wing sup- cannot
Finally, suggest that it I forward gowill
posed the determina- pending filial is fair as- judicial review.
tion of officer present action of that that the sume adjust reconsider designed in view Rubinstein’s terms assumption This deportation order. by the to the court
comports with assurance “that he has not counsel
Attorney General’s proceed- point in the administrative alien shall
ings determined whether the
detained, released on bond or released
otherwise.” WAT CO. v. HARBOR
WESTGATE-SUN Patents. SON, Commissioner
No. 11309. Appeal Court of
s Circuit. of Columbia
Argued Dec. 1952. 18, 1953. June
Decided