United States Ex Rel. Potash v. District Director of Immigration & Naturalization

alleged rant of It detention. Pressman, Cammer, Witt & оf New York there is which he be de- Pressman, City (Lee King, Carol Nathan- ported Republic because the Soviet does Witt, Cammer, I. Abzug, Harold Bella S. persons permit return of left who- Ralph City, all of Shapiro, New York prior Russia to the revolution of 1917. The counsel), appellant. for petitioner further claims the action McGohey, Atty., X. U. F. S. New John denying bail City, (David York McKibbin and Harold capricious and in contraven- Raby, Attys., U. Asst. S. A. Robert J. petitioner’s rights under the Consti- Vielhaber, Atty., Dept, Justice, U. S. Im- tution and that he will be available for fur- migration Service, & Naturalization all ther if admitted bail. City, counsel), appellee. New York The return to the writ filed on March HAND, CHASE, Before AUGUSTUS N. provided alleged that the CLARK, Judges. in the warrant would accorded be to the re- delay lator without as sоon as the habeas HAND, N. AUGUSTUS Circuit Judge. corpus proceeding disposed It of. petition alleged The relator Potash was arrested on further that the for the placed writ custody March dismissed because under Immigration 18(b) Director of Rule of the District Naturali- Court writs will Island, ‍‌​‌​​​​​‌‌‌​​​‌‌‌​‌‌​​‌​​‌​​​​‌‌‌​​​‌‌‌​​​‌‌‌​​​‍pursuant Ellis zation at to a war- allowed cases unless charging rant he was the United shows the Secretary of immigration States in violation of the laws (now Labor General) is- subject as a deportation. member of sued warrant return n organization with affiliated alleged that also discretion of the Attor- rights. conducted To that the relator refusing bail show ney patriotism dur propriety himself is not pursuant to Title 8 U.S.C.A. § hostilities period active recent proceeding. to review the District there was evidence before dis- hearing After a the District Court from the Court of testimonials received corpus missed the writ habeas of Department, Treasury the Red Cross custody of the manded the the relator to Corps. also the Citizens Defense Counsel ap- Immigration, pending but Director of quotes a District statement made the peal enlarged on this court ordered that court at the before $5,000. bail in the sum of pres that he that relator was did not claim appeals order dis The relator the from activity any ently engaged in unlawful enlarge missing the writ sued out secure point at another said the court that he pro deportation ment on bail the any allegation disclaimed that making ground ceeding on the that the discretion loyalty. would lead one relator’s in granted the 8 U.S. General It is also claimed counsel in the case C.A. 156 was in that it was ex abused § Smith, Cir., United States ex rel. 2 169 F. arbitrarily ercised violation of 753, herewith, to be that 2d decided process due Fifth Amendment clause of the already granted been in the cases of of the Constitution States. United deportation proceedings up others for held provision The under which is the relator any apparent similar without sought deported pertinent to be is far as so reason a for distinction. Relator con quoted provision margin.1 un tends arbitrary that denial of bail der which in granting discretion bail is grave there is doubt whether the lodged in the found charge upon deportation sought which quoted 8 U.S.C.A. 156 also below.2 § proper one in view оf decisions for a writ of habeas Wixon, Bridges Court in 326 specifically does not charge meet the serious 135, 1443, 2103, U.S. 65 S.Ct. 89 L.Ed. of the warrant of arrest that relator is a States, Schneiderman v. United 320 U.S. member of or affiliated organiza- with an 118, 1333, 63 S.Ct. 87 L.Ed. 1796. How tion which advocates the overthrow ever, we not believe that these decisions do force or violence Government of the presеnt question on the controlling United States. On this appeal his counsel premature the denial of bail for it is to hold argues proceeding is now that the will be unable at upon membership in the Communist subsequent deportation proceedings to party and that ground there is no for hold- produce evidence which is sufficient under ing that party proscribed organiza- to be any mаy limitations that those cases be tion and that even proven if such were impose. thought to decision Attor mere membership would be an insufficient ney deport Biddle to deportation. basis for He contends that reversed Court on the grounds there are charge which grounds improper interpretation an a denial that such action arbitrary is therefore ap- violates relator’s word “affiliation” the statute was thorein, irrespective § 1 8 U.S.C.A. “(g) Any of the time of their entry alien who was at into States.” time entering the United 156§ or has U.S.C.A. * any Pending thereafter, disposal at been member of final any one of the classes of aliens alien taken enum- the tody, so into cus- section, shall, erated ‍‌​‌​​​​​‌‌‌​​​‌‌‌​‌‌​​‌​​‌​​​​‌‌‌​​​‌‌‌​​​‌‌‌​​​‍be released under a bond penalty General, warrant be of not less than 8500 custody deported security approved by into taken in provided General, 101, 102, manner sections conditioned such alien shall 105, 10S, 115, 100, 113, produced 132, a, 136, when be 138, 130, regard 158-166, 168, hearings charge 142-156, or 173, 175, 177, custody, he has of this taken into title. The which applic- of this section shall and for shall be ho be unlawfully within able classes of aliens the United mentioned States.” stronger character. “membership” in will date plied and that evidence of pro- cases two proper foun- these not believe that party Communist lacked do govern- incompetent dation evidence vide for the because of a basis un- are so Congress deportation proceedings considered. The ment’s court stated an of bail grounded his denial intеnded that the as make [326 prove ‘affiliation’ tending “acts action. 1448] an quality must indicates be of that States ex decision in United Our pur- adherence a furtherance of the to or Immigration, v. District Director of Zapp poses proscribed objectives or- Cir., held that F.2d ganization distinguished from mere co- deportation case of bail operation We with it in lawful aсtivities.” a during the administrative say government cannot will right. We matter the alien’s prove at acts of affiliation in case bar District Court an order of the affirmed proscribed type a in accordance the denying proceeding for de bail foregoing may test. Likewise there be portation of certain upon the failure proof of a membership in the Communist mаintain status German nationals party by which meets the test indicated upon as were admit tradesmen which majority of the case non-immigrants this as be ted as to show unlawful “affiliation.” foreign propa cause of their activities as However, though argued it is that such a gandists. contention denied alien’s We type necessary, of membership the Su- that under the of 8 U.S.C.A. § preme decided, Court has never so nor do right 156he had an absolute be admitted suggest required. it is In the prior deporta bail to the issuance of a Schneiderman case the Court re- tion order and we with the differed conclu judgment versed a in a denaturalization sion of the Sixth Circuit Man in Prentis v. proceeding which had a cancelled certificate Cir., oogian, 16 F.2d where it citizenship grantеd in 1927to defendant 'held that in such cases the administrative on the ground illegally it had been required official grant bail. We in procured in that at such time he a was not that under the above sec stead determined person principles “attached to the placed by tion an release on bail was alien’s Constitution” by the Naturali- Attorney Congress at the discretion of the Aсt, zation 34 Stat. as amended. § question General. The whether further Court held in- that there was exercise of that discretion was proof sufficient that defendant was not at- by review the court claimed to arbi tached principles of the Constitution trary and if so whether an abuse of dis or that the party Communist he cretion existed on the facts of that case awas member advocated the overthrow of argued appeal, was not in the briefs on nor government by force and violence. The necessarily involved nor .alluded to majority opinion expressly ap- refused to opinion. customary ply test of evi- substantial present case District Court support by of a the trier finding dence inquiry by evidently believed that such an of facts held that in denaturalization a proper dis- the court as to the exercise of proceeding prior nullify a award- order Attorney cretion General was not citizenship proof must be [320 permitted and review was given. no such “clear, unequivocal 1350] contrary the On the bail convincing” and the “in- commented Attorney untrammeled General’s left to the imputation.” proof by Hоw- ap- firmities presented on Thus we are discretion. ever, present question whether the peal with the subject to such an Section would not be unusual under General’s denial subject to deportation hearings proof deportation proceed- pending burden of habeas on writ specially review the court applicable was held to be ing as A consider- proceedings; nor for abuse discretion. denaturalization cited discloses no that its evidence as ation of the authorities assume to relator appellate which has party court of an the Communist decision at denying bail many precise passed particular under circumstances pertin- are not decisions the district no abuse. there had been ent. also, Ni ex rel. decisions In United States Janavaris 201, Judge F.Supp. of our spirit colls, us, general (D.C.Mass.), 47 it seems discharged Con improbable to be Wyzanski an alien ordered make institutions Au Immigration Gen gress give the custody of the from the intended to showing admission over power thorities without eral unlimited not be against whom final order to bail of aliens time, unless think that brought. a reasonablе carried out within grant fix bail requires general General should than the more Delany, exempt D. power In 156 to prescribed Moraitis v. bail in Section date. to fix F.Supp. modified control in C.D.Md., from all Cir., us, 4 those before even if grounds than exercise that function other appeared to 129, Judge in an arbi Chesnut have acted should be shown F.2d recognize enlarged par trary interpretation that an manner. This elapsed war has the ticularly after a in a situation as reasonable indicated such out liberty deportation personal of cannot carried is in rant the where elapsed in but held that such time been determination had there no volved has deportable. him. also decided that the case before He that the alien Prior is re justifying by Congress there no circumstances in act passage were the em 1907of of Attorney powering versal of the General’s denial the official fix administrative bail, stated practice bail under Section 156 but various made it courts [Md.P.C. C., F.Supp. prepared to grant during deportation “I am not bail to hear aliens 432]: say where ings. that unusual cases arise Act Feb. 34 Stat. 20.§ deporta Poy, C.C.D.Mont., the in admit to bail In re Lum courts See 128 F. 974; validity D.C.Mass., the Tai, as others where re F. In Ah 795. inquiry opinion the detention under under a writ In place is our that act intended to corpus, great which is the bul general granting the determination of habeas bail personal liberty against possible charged wark of hand's of the the authorities with oppressive Colyer In official action.” v. deportation the enforcement the laws as Skeffington, D.C.Mass., 17, 77, 78, persons qualified perform 265 Fed. ordinarily best function, parties reversed as to other sub Skef nom. such but was not intended to fington Katzeff, Cir., give power, Cir them an F. unreviewable Judge cuit Anderson “I said: assume that in cases abuse. discretion the Attorney pow General which ordinary case the has no exist held Zapp interрreted case is the as one er to interfere the discretion of immigration reasonably authorities as to exercised a con is to be factors, others, refusing among as bail or to the amount of bail. sideration such oí by being the power probability Some the alien found abuse vested in them as deportable, charge seriousness of the statute must be shown to wаr the the order him, proved, against danger rant if the by an interference the court.” He con the public safety presence within cluded been an of his the that abuse of dis had community, ‍‌​‌​​​​​‌‌‌​​​‌‌‌​‌‌​​‌​​‌​​​​‌‌‌​​​‌‌‌​​​‌‌‌​​​‍availability cretion the alien’s hear proceedings ings enlarged subsequent enlarged aliens on bail. a smaller However, any consideration of his de by bond than one fixed the authoritiеs. always He nial of it should borne in had caused opinion delay that court’s as to an untoward mind whether only that no alien should be bail can there was evidence that admitted to aliens endanger would override public released safe makes a clear and ty or where convin be unavailable for further hearings. showing Pappis cing against In ex States rel. the decision v. Tomlin son, D.C.N.D.Ohio, without a foundation. F.Supp. 447, reasonable In Judge proof, Freed reviewed the of such the administra- exercise of the absence discretion Eighth Watkins, Cir., tive final. If the States determination Paetau Amendment the Constitution consid- F.2d any bearing upon right have ered must al We should add that it deportation proceedings, bail in and this ways be remembered that denied, has been it is given authority General has been provisions any of that Amendment and Section 156 determine the quirement process of the due deportation proceedings bail pending fully the Fifth Amendment will be satisfied only his decision if he to review if the standards and reasonable- of fairness arbitrarily. has are re withheld ness we have set forth the exer- regarding manding the case because there cise of discretion by the charge of an no relator’s as to observed. or determination abuse discretion arbitrary While action provision of that issue. Our District Court relator, made the District Court dis- remanding protracted no should involve posed un- ground that an of the case pro trial of the merits of qualifiedpower determining ceedings go and the Gеneral need of bail is vested in the General. any further than to meet evi type There have was no given. dence of action Re outlined to determine whether there had only lator’s contention can succeed discretion, been an abuse nor is there convincing showing clear finding the District Court is- the District Court hold sue for The record is in- us to consider. ing that there has bеen an of dis abuse disposition

adequate final this cretion. court, right to show we think relator’s and For reasons the order dis- requires a remand abuse of discretion an corpus missing the writ of habeas any intimation without on our of the case versed case remanded to the Dis- part relator shoidd have whether the as to proceed trict Court with directions been admitted to bail. еxpressed in with the views accordance opinion. this government contends must fail for writ of habeas CLARK, (concurring). Judge 18(b) Southern Rule of the Dis because provides writs will not be trict Court legal prin- and the With the herein result petition shows unless the that a allowed based, I am in ac- ciples upon which it is deportation has issued. warrant of ; think it add cord I should not rule, literally, might pre applied This expres- anything fear that certain but for clude General’s ac review of opin- close sions, particularly at the bail, how denying lacking tion in no matter interpre- ion, susceptible possibly But, merely in foundation. it embodies perfunctory more hear- tation suggesting exhausting admin ordinary practice of than, believe, I or is intended below securing judicial before istrative Though remedies required. the issue is one legally opinion review, affect does not in as to the exercise of discretion here. claim asserted In the kind of At- by or on behalf of the denying of the a final determination that, all, case torney General, legal after is a which has caused confine question of bail issue, 'courts, in the reviewable not made the administrative ment has been mere of the bona or indeed matter fides authority, reviewed it should sincerity of belief of the official in- permis if a is ever opinions now review involving the court volved. Matters an abuse of personal prone because of claim of dis bring sible convictions are Referring sharp, arbitrary, of the cretion. forth more action power оf the District Court to admit relator than are matters about which feel less appeal, and, deeply; experience shows, his to bail hold that the it has authority easy past had to do so for the forget rea been at times to in our grown part set forth strong sons United that our tially here, result permits same issues views of the tolerance because open adversаry judge of an trial before historic danger jury ground upon seem better justify Court phrase by the which to eventual than base at once must be suppression of beliefs so, hearing. that of If an administrative here *Hence “present.”1 “clear” and long-continued confinement administrative of mind state so much the yet ly anomaly. would seem more of an it is whether involved as officiаls good that there is a justifiably feel sustaining of of the ultimate probability public that meanwhile charges relators of these justifies good confinement obviously protracted

notwithstanding the proceedings before Su

nature passed upon is

preme will have Court sues. UNITED STATES rel. DIS ex DOYLE v. While it is true that the not to he TRICT DIRECTOR OF IMMIGRATION court, finally in the district AND tried either AT PORT OF NATURALIZATION YORK. one, NEW yet this a later we can or on eyes pre all not shut our to the fact that UNITED STATES rel. EISLER v. DIS vious TRICT OF DIRECTOR IMMIGRATION nature have failed Court.2 AND AT PORT NATURALIZATION OF seem that ‍‌​‌​​​​​‌‌‌​​​‌‌‌​‌‌​​‌​​‌​​​​‌‌‌​​​‌‌‌​​​‌‌‌​​​‍to Hence would NEW YORK. confinement here there must better evi UNITED STATES ex WILLIAMSON presented has been past dence than DISTRICT DIRECTOR OF IMMIGRA and that some at least should be disclosed AND AT TION NATURALIZATION PORT to the district court avoid the OF YORK. Upon allegations decision. appear UNITED here these relators to have rather rel. SMITH DIS STATES ex RICT DIRECTOR OF IMMIGRATION deep country; long and in this roots AND AT PORT NATURALIZATION OF they to where even seems (two cases). YORK sent, deportable. they he that, But, passing seem that 207, 208, 20953-20955, Nos. 209-211, Dockets positions he wrested from should not their 20950, 20951 leadership the labor of substantial move Appeals Court like and held in confinement ment Second Circuit. years if their cases are to be for several Aug. 3, 1948. successfully prosecuted than were no more Several of these cited. relators the others upon substantial, large to be at appear

now unusual,

though not criminal adequate there, If such hail is

charges. require anomaly seem

does charges. noncriminal

imprisonment

Moreover, if involve substan Speech States, Chafee, States, 1 United Free ‍‌​‌​​​​​‌‌‌​​​‌‌‌​‌‌​​‌​​‌​​​​‌‌‌​​​‌‌‌​​​‌‌‌​​​‍249 U.S. v. Schenck 5; 1941, 247, 470; 52, The Enforcement of the De

47, c. 39 63 L.Ed. S.Ct. Laws, Rep. California, portation 252, 263, 2 National Commis U.S. v. 314 Enforcement, 190, 192, on Law Observance and sion 86 L.Ed. 159 A.L.R. 62 S.Ct. 1931, repre 5-8, 135-137. “But First Amendment 1346. spread v. United 320 2 Schneiderman belief this nation’s sents 1333, 1796; 118, sup L.Ed. political S.Ct. U.S. ideas must not be 135, Bridges Wixon, Black, J., pressed.” v. Watk in Ludecke 2103; Strecker, 1443, L.Ed. Kessler ins, 335 U.S. S.Ct. L.Ed. Loyalty O’Brian, S.Ct. 307 U.S. Tests and 1439. See by Association, 592; Harv.L.Rev. Guilt

Case Details

Case Name: United States Ex Rel. Potash v. District Director of Immigration & Naturalization

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 3, 1948

Citation: 169 F.2d 747

Docket Number: 206, Docket 20948

Court Abbreviation: 2d Cir.