*1 N. HAND UNITED YOUNG Before STATES rel. AUGUSTUS ex SHAUGHNESSY, Director District BRENNAN, Judges, Circuit Immigration and Naturalization Service. Judge. No. 166. 22259. Docket HAND, Judge. AUGUSTUS N. United Court of States Young Martin was taken 26, 1951, pursuant to war- on October 18, 1952. rant for his October arrest dated deportable which that he was 13, 1952. Decided Feb. he illegally had entered United immigration States without visa a valid party and was a member the Communist time the United States at the entry. The arrest no warrant of made provision pending bail release on portation proceedings, wherefore he filed petition court for district writ corpus, that his alleging habeas illegal. granted was was The writ on Oc- respondent tober filed a re- turn, and the traverse to relator a the re- turn, both of which were dated November 1951. On November the dis- court writ after ordered the dismissed Thereafter, having argument. heard oral reargument the relator for a on the moved petition and asked leave amend was denied.- traverse. motion appeal purpose of this For the deciding assume that the ac tion of General pending release on bail the outcome deportation proceedings reviewable to reversal in case an abuse discretion even after the passage the Internal Act 1950,. seq. et United § reí. Shaughnes States ex De Geronimi v. sy, petition In his for writ, Young indicating if released he would be available for proceedings further pres 'his City, Englander, New York Isidore required. ence would relator-appellant. however, writ, which, contained accepted, established a reasonable foun Lane, Myles Atty., U. S. New York J. for the dation denial of Attor Sexton, Atty., City, Asst. S. William U. J. ney return, in General. Thus the Counsel, addition Steinberg, District containing allegations membership Department Justice, Immigration States Service, party, alleged and Lester and Naturalization escaped Friedman, Attorney, Depart- Young had once before States from cus tody proceedings; Justice, during earlier Immigration and Natural- ment of previously attempted Service, to enter the all had Unit of New York ization furnishing false identity respondent-appellee.
475
“will in-
as
dur-
that the amount shall be such
that
passport; and
with
fraudulent
Other
presence
to an- sure the
the defendant.”
refused
ing his
security to
purposes,
punishment or
prior identifica-
such as
questions relating to
swer
society,
through the
residence, employment and
not to be subserved
tion,
places of
So
medium of
bail.
2248
home life. Section
Jack-
Justice
Judicial
notwithstanding the evil
that,
the son has
2248, requires that
stated
Code, 28 U.S.C. §
defendants, “it is
true character of convicted
be taken as
in
alleged
the '
traditional
in his still difficult to reconcile with
impeached,
and
unless
by the
persons
jailing
those American
not refute
return did
traverse to the
anticipated but as
the courts because of
for re-
statements,
he in his motion
nor did
Imprisonment
to
uncommitted crimes.
prove the con-
to
argument, make
offer
protect
predicted but uncon-
facts,
from
society
trary,
new
nor did he assert
unprecedented in
summated offenses is so
been ac-
2246 could have
under 28 U.S.C. §
danger country
fraught
so
with
Supreme this
complished by
As
affidavit.
injustice
I am loath to
Boyle, excesses and
recently said in Stack v.
Court has
it,
discretionary judi-
resort to
even as
1, 4,
right
3: “The
to
72
342
S.Ct.
U.S.
technique
supplement conviction
upon cial
to
release before trial
is conditioned
those of which defendants
adequate
offenses as
assurance
the accused’s
stand convicted.” Williamson v.
to sen-
that he will stand trial and submit
280, 282,
States, Cir.,
If
held in
guilty.”
While we
tence
found
upon
is the law
courts even
binding
Di- such
United State ex rel. Potash v.
had,
Naturalization, after conviction
I think no harsher
Immigration
rector of
applied by
administrative of-
2d
that the action
proceedings not criminal in nature.
ficials in
under the then
General was
reviewable,
judicially
existing law
we
here
on behalf of
submitted
“However,
carefully
in
nevertheless
said:
District Director of
denial of bail it
consideration of his
Naturalization,
purporting to state
always
in
be borne mind
grounds of decision of the
Gen-
to whether the alien
court’s
as
acting “through his subordinate of-
eral
can
admitted
over-
should be
ficers,”
appear (or
not
at
not
does
least
ride that of
General where
principles. It
clearly) to be based on these
convincing
the alien makes
clear
conclusory
forth in
sets
showing
against
the' decision
him was
serious,
allegations
form several
if not
without reasonable foundation.”
criminal,
acts
associations
the ac-
page 751.
at
potential danger
public
cused and his
In the
of the
re- security and concludes that “the adminis-
true,
turn,
accept
which we must
can-
in
trative decision
continue
say
the relator made such a show-
is based
a reasonable founda-
ing
the orders are af-
Accordingly
here.
presence
large
tion since the relator’s
firmed.
prejudicial
deemed
interests
reasons,
security
his re-
Judge (dissenting).
necessary
being
deemed
straint
public safety
measure
but
because
Boyle, 342 U.S.
72 S.Ct.
is believed
he would abscond if his
opinion, establishes that
quoted in the
in
presence in
United States
an un-
accused is to
function
capacity
were ordered
derground
presence
adequate
assurance
furnish
Party.”
(Italics added.) Nat-
of sentence if found
for service
trial and
(as
matters
urally the return
figure
than
higher
“Bail set at a
guilty.
opinion)
are material
summarized
to fulfill
reasonably
this
calculated
amount
disappearing,
likelihood of relator’s
the Eighth
under
‘excessive’
purpose is
Id.,
they
more evidential than ultimate
page
342 U.S. at
Amendment.”
place
their
import
and must take
nature
3. This is the
page
S.Ct.
immediate,
other,
U.S.C.,
possibly more
F.R.Cr.P.,
providing
46(c),
Rule
permanent
theory;
and known location
erroneous
but a
bearing beyond the
relator. Their direct
seems
to ascertain the back-
ground
conclusions asserted would
bare and broad
of facts. It becomes the more nec-
require
development;
essary, too,
seem to
some
in relator’s
*3
on
escape
brief,
point
of
to a
seems to
made with some basis of factual
custody, support,
jail-breaking
deportees
recent
from close
a handful of
respondent’s
incident
while
brief
have been so
and that
carries
confined
relator is
failure
an
present
up.
back to
and makes it a
one at
locked
If there
(be
special
order that he
requiring
“detained” on board
circumstances
unique
seems,
treatment,
vessel on which he had arrived.
these,
On
it
relator,
relying
purpose
other hand
brought
out.
appearance, alleges,
assure his
required
The above seems to me the
pertinent thereto,
at all times
that he has
beyond
course.
add that
this there
his
beginning
shown his
availability
profound questions
more
involving
appearance
when
Office
judi
American
play
traditions
fair
requested by
early as March
letter as
example
give
hearing
cial
and the
January,
that in
he notified the to other
dealing
nations while
with their
Immigration Service
his address in ac-
accepting
nationals.
am
what
of course
recently
with the
cordance
enacted Internal
arguendo
is
assumed
Act,
.learning
and that on
claims for the
General of new
agents
looking for him he made
were
ar-
powers
specifically
grant
absolute
rangements through
attorney
his
legislation
recent
are not well
voluntary appearance
their office for
may
founded
that court
had'
review
service of the warrant
arrest. He also for errors
of discretion
abuse
or
asserts that he has been married to an by the administrative officials in denial of
twenty-five years,
American citizen for
bail. United States ex rel. Potash v. Dis
they have two American-born mi-
Director,
747;
Cir.,
children, that he
nor
resided in New
has
Pirinsky
Shaughnessy, 2
v.
States ex rel.
years
past
ten
and at
Cir.,
That and of refusal of the accused submit clearly already factual issue has been “when a to examination. first have with; petition and the return it me framed or dealt seems to the issues were it true that Here is the ultimate framed as I have answer.” indicated question properly hearing is whether or not the could ask for a even pursuing though under judge- subordinates were the statutes General’s cited kind of control the largely could judge de- But here he would receive. call for hence did
nied second testimony As to all. charge of is, course, that a now settled implications has such criminal Communism may refuse person
that the well be himself. It criminate
eventually person against whom face ground must sought on this *4 in- he talks and
the dilemma that either refuses and
criminates himself or else he making his goes toward
thus far just to certain. But do not believe dilemma vol-
require him to rush into this
untarily preliminarily to endeavor
persuade him judge grant and as un- overcome
proved Rather his accuser. compulsion wait until the
he is entitled to op-
is so clear that he can be assured judicial re-
portunity secure ultimate extremity legality
view
placed before him.
Under all these circumstances think the justice require judicial
interests of
quiry into the circumstances of denial of
bail to the relator. would remand for this
purpose. CO.
OLSEN AMERICAN OIL ARABIAN
No. Docket 22144. States Court Feb.
Decided Ronkonkoma, Miller, Lake & Sorensen Cohalan, Jr., New York (John P.
N. Y. Miller, Lake Ronkon- R. and William plaintiff-appellant. koma, counsel), for Huttenlocher, York New F. F. Thomas F. Huttenlocher (Louis counsel), City, of Barry, New appellee. fendant