Ex parte Bridges, 1836.

Citation49 F. Supp. 292
Decision Date08 February 1943
Docket NumberNo. 1836.,1836.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
PartiesEx parte BRIDGES.

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Lee Pressman, of Washington, D. C., Carol King, of New York City, and Gladstein, Grossman, Margolis & Sawyer, of San Francisco, Cal., for petitioner.

Frank J. Hennessy, U. S. Atty., and Louis R. Mercado, Asst. U. S. Atty., both of San Francisco, Cal., for respondent.

WELSH, District Judge.

The petitioner, Harry Bridges, an alien, in his application for the issuance of a writ of habeas corpus, attacks the legality of his detention by the United States Immigration Authorities, for deportation to Australia, on numerous grounds each of which will be considered. In answer to an order issued by this Court to show cause why the writ of habeas corpus should not be granted, the respondent, I. F. Wixon, as District Director, Immigration and Naturalization Service of the Department of Justice, made return that the peitioner is being detained "under and by virtue of a warrant of deportation duly and regularly issued by the Attorney General of the United States after a hearing duly and regularly held before a Presiding Inspector of the Immigration and Naturalization Service". The hearing referred to in the return constituted the second inquiry into the deportability of Harry Bridges. The entire record pertaining to the second deportation proceeding was submitted with the return. The petitioner's traverse thereto does not take issue with the verity of the record thus submitted, but rather with the sufficiency of the return to justify a denial of the writ. I have, therefore, examined the petition of Harry Bridges to determine if the same alleges grounds for the issuance of the writ, considering the sufficiency of the allegations contained in the petition in the light of what is revealed by the records of the Immigration Service pertaining to the proceedings culminating in the order of deportation against petitioner.

Petitioner invokes the protection of the double jeopardy clause of the 5th Amendment to the United States Constitution as a bar to the deportation proceedings resulting in his present detention. He contends that prior deportation proceedings taken against him in 1938 and 1939 involved the same charges, of which he was then cleared, as those involved in the later proceedings for which he is now being held for deportation.

I will not here consider the claimed identity of factual issues involved in the two deportation proceedings since in neither proceeding was petitioner charged with any offense within the meaning of the double jeopardy clause. And consequently there was no double jeopardy. The United States Supreme Court has held that a deportation proceeding is aimed at the revocation of a privilege and not as punishment for crime. Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549. And has stated that the constitutional protection against double jeopardy applies only to proceedings essentially criminal, of which nature proceedings in deportation do not partake. Helvering v. Mitchell, 303 U.S. 391, 398, 399 and footnote, page 399, 58 S.Ct. 630, 82 L.Ed. 917.

In the warrant of arrest which instituted the second deportation proceedings against petitioner on February 14, 1941, it was charged of petitioner that "after entering the United States he has been a member of or affiliated with an organization, association, society, or group that believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States; and that after entering the United States he has been a member of or affiliated with an organization, association, society, or group that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue or display, written or printed matter advising, advocating, or teaching the overthrow by force or violence of the Government of the United States."

His detention for deportation on these grounds, if established, is justified by the provisions of the Alien Registration Act of October 16, 1918, as amended by the Acts of June 5, 1920 and June 28, 1940, 8 U.S. C.A. § 137, as follows: "Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes of aliens enumerated in this section, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in sections * * * of this title. The provisions of this section shall be applicable to the classes of aliens mentioned in this act irrespective of the time of their entry into the United States."

One of the classes of aliens mentioned in the Act and to which the provisions of the above quoted excerpt apply are:

"Aliens who * * *, are members of or affiliated with any organization, association, society, or group, that believes in, advises, advocates, or teaches: (1) The overthrow by force or violence of the Government of the United States * * *."

"Aliens who are members of or affiliated with any organization, association, society, or group, that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display, any written or printed matter of the character described in paragraph (d)."

Paragraph (d) mentioned in the above quotation refers to written or printed matter advising, advocating or teaching the overthrow by force or violence of the Government of the United States.

The order of deportation in the second proceeding is based upon the finding of the Attorney-General that after entering the United States in 1920, petitioner has been a member of the Communist Party of the United States, and affiliated therewith and with the Marine Worker's Industrial Union, and that these organizations are within the class proscribed by statute.

In the earlier deportation proceeding instituted against the petitioner in 1938 and terminating in his favor in 1939, the issue was confined to the alien's membership in or affiliation with the Communist Party of the United States at the time of the institution and prosecution of that proceeding. The issue was thus limited because of the decision of Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082, interpreting the Act of October 16, 1918, as it read prior to its amendment in 1940, to render an alien deportable upon proof of existing membership in or affiliation with proscribed organizations, but not because of any such past and discontinued membership or affiliation. The trial examiner in the first hearing found that the evidence did not establish existing membership or affiliation on the part of petitioner with the Communist Party of the United States and the Secretary of Labor, accordingly, dismissed the proceedings. By the amendment of June 28, 1940, Congress clarified its intent to include within the deportable class those aliens who, at any time since entry into the United States, have been members of or affiliated with organizations within the proscribed class, regardless of whether or not their membership or affiliation may have terminated before deportation proceedings against them were commenced. It was pursuant to this amendment that the second proceeding against petitioner was instituted to inquire into his deportability for past membership in or affiliation with organizations proscribed by law.

I do not consider tenable the argument of petitioner's counsel that the Act as amended in 1940, reasonably construed, should be held to refer to alien membership in or affiliation with proscribed organizations found to exist either at the time of the alien's entry into the United States or at any time after passage of the 1940 amendment, but not to membership or affiliation having its inception after the alien's entry into this country but terminating before passage of the 1940 amendment. The Act as amended in 1940 provides for the deportation of any alien "who was at the time of entering the United States, or has been at any time thereafter" a member of or affiliated with the described organizations. This language is sufficiently plain in its application to all cases of such membership or affiliation shown to exist at the time of an alien's entry into the United States or at any time thereafter.

Petitioner claims that since the only evidence in the second proceeding which can support a finding of former membership in or affiliation with a proscribed organization on his part relates to a period of time antedating the passage of the 1940 amendment, that consequently, as applied to him, the 1940 amendment is an ex post facto law. Const. art. 1, § 9, cl. 3. It is not an ex post facto law because it is not a criminal law.

"It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment. * * * The right to expel aliens is a sovereign power, necessary to the safety of the country, and only limited by treaty obligations in respect thereto entered into with other governments. * * * The inhibition against the passage of an ex post facto law by Congress in section 9 of article 1 of the Constitution applies only to criminal laws * * * and not to a deportation act like this * * *." Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549.

It appears from the findings and conclusions of the trial examiner at the first deportation hearing in 1939, that much of the evidence there relied on by the Government to substantiate its charge of the alien's deportability on the ground of existing membership in or affiliation with the Communist Party of the United States, related...

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7 cases
  • Bridges v. Wixon
    • United States
    • United States Supreme Court
    • June 18, 1945
    ...Court for the Northern District of California. That court denied the petition and remanded petitioner to the custody of respondent. 49 F.Supp. 292. The Circuit Court of Appeals affirmed by a divided vote. 9 Cir., 144 F.2d 927, 944. The case is here on a petition for a writ of certiorari whi......
  • Harisiades v. Shaughnessy
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 9, 1950
    ...that were not before the high court in the Schneiderman case. The period involved in the Schneiderman case was 1922 to 1927; in the Bridges case, 1933 to 1937. The period in the Harisiades case covers 1925 to 1939. The Schneiderman opinion was written in June 1943; the Bridges v. Wixon opin......
  • Bridges v. United States, 12597.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 29, 1952
    ...* * *." See also Helvering v. Mitchell, 1938, 303 U.S. 391, 398, and footnote at page 399, 58 S.Ct. 630, 82 L.Ed. 917; Ex parte Bridges, D.C.1943, 49 F.Supp. 292, reversed in Bridges v. Wixon, supra, on other grounds; United States v. Bridges, D.C.1949, 86 F. Supp. 922, Of course, habeas co......
  • Carroll v. Harrison, Civil Action No. 67.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • March 24, 1943
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