Carlson v. Landon

• Decision Date: 16 December 1950
• Docket Number: No. 12742.,12742.
• Citation: 186 F.2d 183
• Parties: CARLSON v. LANDON.
• Court: U.S. Court of Appeals — Ninth Circuit

186 F.2d 183 (1950)

CARLSON v. LANDON.

No. 12742.

United States Court of Appeals Ninth Circuit.

December 16, 1950.

Margolis & McTernan and John W. Porter, all of Los Angeles, Cal., for appellant.

Ernest A. Tolin, U. S. Atty., Walter S. Binns, Asst. U. S. Atty., Los Angeles, Cal. (Howard L. Field, Dist. Adjudications Officers, Imm. & Nat. Service, Los Angeles, Cal., on the brief), for appellee.

Before STEPHENS, HEALY and BONE, Circuit Judges.

STEPHENS, Circuit Judge.

Frank Carlson is being held in custody without bail, as a deportable alien, by Herman R. Landon, District Director of the Immigration and Naturalization Service, United States Department of Justice (called herein Director). He seeks his liberty on reasonable bail through the petition for the writ of habeas corpus by his attorney. Since Carlson is referred to in the record as the petitioner we shall follow that practice.

Petitioner was arrested and is being held under a warrant issued by Landon upon instruction of the Attorney General of the United States, dated in October, 1950 (called herein the 1950 warrant), in which it is stated: "The Act of Oct. 16, 1918, as amended by Internal Security Act of 1950 (ch. 1024, Pub.Law 831) in that he has been, after entry, a member of the following class set forth in Section 1(2) (c) of said Act 8 U.S.C.A. § 137(2) (C): An alien who was a member of the Communist Party of the United States," and in which it is provided: "Pending determination of deportability, the alien named is to be continued in custody. This warrant supersedes that issued on the 20th day of October, 1947." called herein the 1947 warrant

At the time of service of the 1950 warrant, petitioner was at liberty under bail which he had posted after his arrest under the 1947 warrant wherein he was charged with being a member of an organization which believes in and advocates violence to overthrow the Government of the United States (Im. Act of Oct. 16, 1918), and deportable. The bond mentioned was "revoked" soon after or before service of the 1950 warrant. Apparently the charge under the 1947 warrant has been abandoned, or, rather, it has been merged in the proceeding under the 1950 warrant.

The district court issued its order to show cause in the habeas corpus proceedings and the Director returned that he held petitioner upon the terms of the 1950 warrant and upon the allegation that there was "reasonable cause to believe" that petitioner's release would be prejudicial to the public interest and would endanger the welfare and safety of the United States. Petitioner answered, alleging that the return was no sufficient justification and that the restraint without bail is without authority of law and that he has never been informed of any act which it is feared he may commit and that there is no cause for believing that he would commit any act of prejudice against the welfare of the United States and that he has repeatedly requested the Director to inform him as to what he has done or what it is feared he would do upon his release but that no answer has been forthcoming.

Petitioner further alleges that he was born in Poland in 1913 and entered this country at the age of 6 years, has lived in California for the last 15 years and prior to deportation proceedings had filed his application for citizenship; he is married and is the father of two California-born minor children; there is no basis for fearing that he will commit any act detrimental to the United States should he be freed on bail; the deportation proceedings are liable to continue for many months; he will hold himself in readiness to appear at any and all sessions of hearings on the warrant and he has responded at all hearing sessions on the warrant of 1947 while at liberty under bail; the Internal Security Act of 1950 is unconstitutional as violative of the Fifth Amendment. Although the petitioner does not do so, Miriam Christine Stevenson in a companion case to which we allude in Note 4 contends that the United States' adherence to the United Nations has something to do with the issues of this case.

It is provided by the Internal Security Act of 1950, under which the 1950 warrant was issued, in Section 23 that: "Pending final determination * * *, such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond * * *." Correctly, as we hold, the court decided that this provision does not give the Attorney General or the Director absolute and final power to deny bail. Instead, the court held that the language quoted was but a clarification of language in Section 156, Title 8 U.S.C.A., of which it was amendatory, and left bail to the discretion of the Attorney General rather than to his unlimited power to deny it, and cited United States ex rel. Zapp v. District Director of Immigration and Naturalization, 2 Cir., 1941, 120 F.2d 762, and United States ex rel. Potash v. District Director of Immigration and Naturalization, 2 Cir., 1948, 169 F.2d 747.¹ These cases were decided under the section before the 1950 amendment and held that the Attorney General's discretion was not absolute but could be reviewed as to its reasonableness.

We agree. And we add, the very fact that the Attorney General (or his assistants) has the power to grant bail before a deportation hearing or refuse it, carries with it the necessity of exercising discretion and certainly discretion must be based upon some phase of fact. It will be noticed that the Director's return contains a statement that there is "reasonable cause to believe" that petitioner's release would be prejudicial to the United States, a statement which connotes the exercise of discretion.

At the hearing the court invited petitioner to proceed to show facts relative to the issue of abuse of discretion but he declined to do so stating that he had alleged facts on the relevant issues which had not been denied. Thereupon the court dismissed the petition, holding that there had been no showing as to abuse of discretion. We think the court erred at this point.

It is well settled that there is no absolute right of an alien to be accorded bail after the service of a warrant for deportation and it is equally well settled that there is no absolute right of an alien to remain in this country. At the same time it is not claimed in this case, as the law now stands, that a legally admitted alien can be deprived of his liberty without good cause therefor as measured by the applicable law or that he can be deported without due process of law. Under statute and warrant of authorization, designated United States immigration officers may intercept individual aliens and subject them to hearings for the purpose of determining whether they are deportable and restrain them of their liberties for enforced deportation after hearing, but detention for long and unreasonable periods before hearing is illegal. There is an admirable collection of authorities upon most if not all of these fundamental points in Skeffington, Immigration Com'r v. Katzeff, 1 Cir., 1922, 277 F. 129. With these generalizations in mind, we turn to the specific law under which petitioner is being held. But first as to the inducing causes for the enactment of the Security Act of 1950.

From the beginning of their civilized history, the American continents have been viewed by oppressed peoples as the lands of freedom and opportunity. Notwithstanding occasional acts of oppression and the now happily abolished practice of human ownership, the governments established in the New World have provided freedom and opportunity to the individual. It is fixed in the Constitution of the United States that individual right to liberty under due process of law is the prime end and concern of established governments. But charters are not self-executing and the old spiritually awakening cry of "Eternal Vigilance is the Price of Liberty" is never an outworn cliche.

The vision of freedom and opportunity has beckoned to our shores many law-abiding level-headed people eager to understand and practice our way of living while others have come full-charged with misconceived notions of their own unsuited to the American scheme of government, often centered upon license with little restraint. Others have come with treacherous plans to replace our form of government with age-old tyrannical rule or with anarchistic disruption of law and order.

Only in the last few years, however, a powerful foreign government, one for whose liberation from a world-dictator-plan we only recently sacrificed our sons and our treasure, has sought by stealth and abandon of morals and gratitude, to obstruct, disrupt, and over-throw our government and erect upon its ruins a branch of its own dictator absolutism. The eternal war of dictator dominance over the rightful liberties of the individual has flared into a consuming flame imposing upon this generation the duty of smothering it to impotence by sacrifices we little realize. And this appalling duty must not be served by fighting to a victory which in itself will be a defeat for the principles we fought for.

With these unpleasant truths showing plainly above the sea of unrealistic altruism, Congress put up the bars to immigration and provided rules for expulsion of the destructionists from our country. In the early part of 1950 Congress gave especial attention to the growing, dangerous fact that aliens in our midst were conspiring with naturalized and native-born citizens in prostituting the American political party system by affecting to act within it through a so-called Communist Party of the United States. It enacted the Internal Security Act of 1950 (Ch. 1024, Pub.Law 831 H.R. 9490) in which it is stated:

"Sec. 2. As a result of evidence adduced before various committees of the Senate and House of representatives, the Congress hereby finds that —

"(1) There exists a world Communist movement which, in its origins, its development, and...