Carlson v. Landon Butterfield v. Zydok

• Court: United States Supreme Court
• Citation: 72 S.Ct. 525,342 U.S. 524,96 L.Ed. 547
• Docket Number: Nos. 35,136,s. 35
• Parties: CARLSON et al. v. LANDON, District Director of Immigration & Naturalization, United States Department of Justice. BUTTERFIELD, Director of Immigration & Naturalization Service, Detroit, Mich. v. ZYDOK
• Decision Date: 10 March 1952

342 U.S. 524 72 S.Ct. 525 96 L.Ed. 547 CARLSON et al.

v.

LANDON, District Director of Immigration & Naturalization, United States Department of Justice. BUTTERFIELD, Director of Immigration & Naturalization Service, Detroit, Mich. v. ZYDOK.

Nos. 35, 136. Argued Nov. 26, 1951. Decided March 10, 1952. Rehearing Denied June 9, 1952.

See 343 U.S. 988, 72 S.Ct. 1069.

[Syllabus from pages 524-525 intentionally omitted]

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No. 35:

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Mr. John T. McTernan, Los Angeles, Cal., for petitioners.

Mr. John F. Davis, Washington, D.C., for respondent.

No. 136:

Mr. John F. Davis, Washington, D.C., for petitioner.

Mrs. Carol King, New York City, for respondent.

Mr. Justice REED delivered the opinion of the Court.

These cases present a narrow question with several related issues. May the Attorney General, as the executive head of the Immigration and Naturalization Service,¹ after taking into custody active alien communists on warrants, ² charging either membership in a group that ad-

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vocates the overthrow by force of this Government³ or inclusion in any prohibited classes of aliens, ⁴ continue them in custody without bail, at his discretion pending determination as to their deportability, under § 23 of the

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Internal Security Act?⁵ Differing views of the Courts of Appeals led us to grant certiorari. 342 U.S. 807, 72 S.Ct. 26; 342 U.S. 810, 72 S.Ct. 42.

I. Facts.—The four petitioners in case No. 35 were arrested under warrants, issued after the enactment of the Internal Security Act of 1950, charging each with being an alien who was a member of the Communist Party of the United States.⁶ The warrants directed that they be held in custody,⁷ pending determination

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of deportability.⁸ Petitions for habeas corpus were promptly filed alleging that the detention without bond was in violation of the Due Process Clause of the Fifth Amendment⁹ and the Eighth Amendment to the Constitution of the United States, and that § 20 of the Immigration Act, as amended, was also unconstitutional. See note 5, supra. The allegation appears below.¹⁰

Respondent filed returns defending his orders of detention on the ground that there was reasonable cause to believe that petitioners' release would be prejudicial to the public interest and would endanger the welfare and safety of the United States. These returns were countered by petitioners with allegations of their many years' residence spent in this country without giving basis for fear of action by them inimical to the public welfare during the pendency of their deportation proceedings,

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their integration into community life through marriage and family connections, and their meticulous adherence to the terms of previous bail, allowed under a former warrant charging deportability. See note 8, supra. On consideration of these undenied allegations, the trial court determined that the Director had not been shown to have abused his discretion.¹¹ This order was reversed on the ground that the Director 'must state some fact upon which a reasonable person could logically conclude that the denial of bail is required to protect the country or to secure the alleged alien's presence for deportation should an order to that effect be the result of the hearing.'¹²

On rehearing, the Director made allegation, supported by affidavits, that the Service's dossier of each petitioner contained evidence indicating to him that each was at the time of arrest a member of the Communist Party of the United States and had since 1930 participated or was then actively participating in the Party's indoctrination of others to the prejudice of the public interest. There was no denial of these allegations by any of the petitioners, except Hyun, or any assertion that any of them had completely severed all Communist affiliations or connections.¹³ As to Hyun the denial was formal and did not include any affidavit denying the facts stated in the Director's affidavit. As the allegations are set out by the Court of Appeals in the carefully detailed opinion of Circuit Judge Stephens, we refrain from any further re-

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statement here.¹⁴ The Court of Appeals affirmed the District Court's determination that there was substantial evidence to support the discretion exercised in denying bail.

Respondent Zydok, in case No. 136, was arrested in August 1949 under a recent warrant charging that he was subject to deportation as an alien with membership in an organization advocating the violent overthrow of the Government. Act of October 16, 1918, as amended, 8 U.S.C. (1946 ed.) § 137, 8 U.S.C.A. § 137. At that time he was released on $2,000 bail. Later a deportation hearing was held by the Immigration and Naturalization Service but this Court's decision in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, necessitated a second deportation hearing.

After the effective date, September 23, 1950, of the Internal Security Act of 1950, 64 Stat. 987, respondent was again taken into custody by petitioner on the 1949 warrant, pursuant to radiogram direction from the Acting Commissioner of Immigration and Naturalization referring to § 20 of the Immigration Act of 1917, as amended by § 23 of the Internal Security Act, 8 U.S.C.A. § 156. The respondent was held without bail by petitioner under an order from the Acting Commissioner of Immigration. The rearrest was based on § 22 of the Internal Security Act of 1950 which provides for the deportation of aliens who are members of or affiliated with the Communist Party. 8 U.S.C. (Supp. IV) § 137, 8 U.S.C.A. § 137.

Thereupon respondent filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Michigan, challenging the validity of his detention without bail. The District Court found that petitioner was an alien and had been and was on arrest a member of the Communist Party. The court determined

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that there had been no abuse of administrative discretion in refusing bail and denied the petition for habeas corpus, 94 F.Supp. 338.¹⁵

The Court of Appeals for the Sixth Circuit, 187 F.2d 802, reversed the District Court, holding that in determining denial of bail the Attorney General could not rest on membership alone in the Communist Party but was under the duty to consider also the likelihood that the alien would appear when ordered to do so under the circumstances as developed in the habeas corpus hearing. The court thought the failure of the Attorney General to allow bail was an abuse of discretion.

That court agreed that the District Court was correct in finding that Zydok was a member of the Communist Party and had been in 1949 the financial secretary of its Hamtramck Division. The respondent's testimony justifies the District Court's finding set out in the margin.¹⁶ The record shows other information in the files of the Attorney General, such as attendance at closed meetings of the Party and the Michigan State Convention. The opinion succinctly sets out the facts concerning respondent's integration into American life. We adopt that statement.¹⁷ It was said: 'Discretion does not mean decision upon one particular fact or set of facts. It means rather a just

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and proper decision in view of all the attending circumstances. The Styria v. Morgan, 186 U.S. 1, 9, 22 S.Ct. 731 (734), 46 L.Ed. 1027. There are many circumstances which involve decision.' 187 F.2d 802, 803.

The Court of Appeals concluded: 'We think that a fair consideration of the factors above set out in their aggregate require that appellant should have been granted bail in some reasonable amount. This view is more nearly in accordance with the spirit of our institutions as it relates even to those who seek protection from the laws which they incongruously seek to destroy. See Carlson v. Landon, Dist. Director, 9 Cir., 186 F.2d 183; United States ex rel. Potash v. Dist. Director, 2 Cir., 169 F.2d 747, 752.' 187 F.2d 804.

II. The Issues.—Petitioners in No. 35, the Carlson case, and respondent in No. 136, the Zydok case, seek respectively reversal or affirmance principally on the same grounds. It is urged that the denial of bail to each was arbitrary and capricious, a violation of the Fifth Amend-

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ment; that where there is no evidence to justify a fear of unavailability for the hearings or for the carrying out of a possible judgment of deportation, denial of bail under the circumstances of these cases is an abuse of discretion and violates a claimed right to reasonable bail secured by the Eighth Amendment to the Constitution. Zydok urges, also, that there was an abuse of discretion in rearresting him, when there was no change of circumstances, after his previous release under bond on the same warrant. There are other minor contentions as to irregularities in the proceedings that appear to us immaterial to our consideration of these cases.

The basis for the deportation of presently undesirable aliens resident in the United States is not questioned and requires no reexamination. When legally admitted, they have come at the Nation's invitation, as visitors or permanent residents, to share with us the opportunities and satisfactions of our land. As such visitors and foreign nationals they are entitled in their persons and effects to the protection of our laws. So long, however, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders.¹⁸

Changes in world politics and in our internal economy bring legislative adjustments affecting the rights of various classes of aliens to admission and deportation.¹⁹ The

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passage of the Internal Security Act of 1950 marked such a change of attitude toward alien members of the Communist Party of the United States. Theretofore...