Ex parte Carlson

• Decision Date: 10 November 1950
• Docket Number: 12503,12492,12505.,No. 12491,12491
• Citation: 94 F. Supp. 18
• Parties: Ex parte CARLSON. Ex parte STEVENSON. Ex parte CARLISLE. Ex parte HYUN.
• Court: U.S. District Court — Southern District of California

94 F. Supp. 18

Ex parte CARLSON.

Ex parte STEVENSON.

Ex parte CARLISLE.

Ex parte HYUN.

Nos. 12491, 12492, 12503, 12505.

United States District Court S. D. California, Central Division.

November 10, 1950.

Margolis & McTernan, by John W. Porter, Los Angeles, Cal., for petitioner Frank Carlson.

Rose S. Rosenberg, Los Angeles, Cal., for petitioner Miriam Christine Stevenson.

Stanley Fleishman, Hollywood, Cal., for petitioner Harry Carlisle.

Milton S. Tyre, Los Angeles, Cal., for petitioner David Hyun.

A. L. Wirin, Los Angeles, Cal., amicus curiae.

Ernest A. Tolin, U. S. Atty., Walter S. Binns, Chief Asst. U. S. Atty., Ray H. Kinnison, Asst. U. S. Atty., Howard L. Field, District Adjudication Officer, U. S. Immigration and Naturalization Service, Department of Justice, Los Angeles, Cal., for respondent.

HARRISON, District Judge.

In the above entitled habeas corpus proceedings which were initiated to secure the release on bail of several aliens held without bail by the immigration authorities pending final determination of their cases, an order to show cause was issued and a return thereto filed by the Attorney General. The petitioners, through oral argument and by means of briefs presented to the court, contend that the return to the order to show cause is insufficient and that they are entitled to their discharge on the state of the record as a matter of law. The return contained a copy of the warrant of arrest wherein the petitioners were retained in custody under authority of Section 156, Title 8 U.S.C.A., as amended by the Internal Security Act of 1950 (U.S. Congressional Service pp. 3740-3762). Said section as amended in part reads as follows: "* * * Pending final determination of the deportability of any alien taken into custody under warrant of the Attorney General, such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole. * * *" The government contends that this provision of the law as amended gives the Attorney General absolute discretion in the matter of bail, and that this court has no jurisdiction to review the exercise of this discretion.

The court cannot accept the contention of either of the parties. I am of the opinion that the amendments, insofar as material to this matter, were a legislative adoption of clarifying language read into the original Section 156 by certain rulings of the Second Circuit, and not a change in the law giving the Attorney General absolute discretion. In U. S. ex rel. Zapp v. District Director, etc., 2 Cir., 120 F.2d 762, reading at page 765 the following language is used: "The natural interpretation of the language used, that the alien `may be released under a bond,' would indicate that the release is discretionary with the Attorney General; * * *."

This same view of the discretionary power of the Attorney General was reiterated and more clearly defined in U. S. ex rel. Potash v. District Director, etc., 2 Cir., 169 F.2d 747, 751, wherein the court stated: "The foregoing decisions and also, as it seems to us, the general spirit of our institutions make it improbable that Congress intended to give the Attorney General unlimited power over the admission to bail of aliens against whom deportation proceedings are brought. We think that it requires more than the general grant of power to fix bail in Section 156 to exempt the Attorney General from all control in the exercise of that function even if he should be shown to have acted in an arbitrary manner. This interpretation is particularly indicated in such a situation as the present where personal liberty is involved and there has been no determination that the alien is deportable."

The language of these decisions together with a careful comparison of the language of the respective statutes indicates that no such grant of power as is contended for by the government was given by the amendments to 8 U.S.C.A. § 156 contained in the new Internal Security Act of 1950. It would have been a comparatively simple matter for Congress to indicate an intent to give such power to the Attorney General. There is nothing in the legislative history, however, to show that Congress did intend such exclusive right. The Zapp case established that the admission to bail was discretionary with the Attorney General. The Potash case held that such discretion is not an unbridled one.

It is equally clear since the Potash case, supra, that one who claims an abuse of such discretion has the burden of proving abuse by clear and convincing evidence. This is clearly set forth in 169 F.2d at page 751: "* * * The discretion of the Attorney General which we held to exist in the Zapp case is interpreted as one which is to be reasonably exercised upon a consideration of such factors, among others, as the probability of the alien being found deportable, the seriousness of the charge against him, if proved, the danger to the public safety of his presence within the community, and the alien's availability for subsequent proceedings if enlarged on bail. However, in any consideration of his denial of bail it should always be borne in mind that the court's opinion as to whether the alien should be admitted to bail can only override that of the Attorney General where the alien makes a clear and convincing showing that the decision against him was without a reasonable foundation. In the absence of such proof, the administrative determination is final. If the Eighth Amendment to the Constitution is considered to have any bearing upon the right to bail in deportation proceedings, and this has been denied, it is our opinion that the provisions of that Amendment and any requirement of the due process provisions of the Fifth Amendment will be fully satisfied if the standards of fairness and reasonableness we have set forth regarding the exercise of discretion by the Attorney General are observed." (Emphasis...