Harisiades v. Shaughnessy

• Decision Date: 09 February 1950
• Parties: HARISIADES v. SHAUGHNESSY, Acting District Director of Immigration and Naturalization at Port of New York.
• Court: U.S. District Court — Southern District of New York

90 F. Supp. 397

HARISIADES v. SHAUGHNESSY, Acting District Director of Immigration and Naturalization at Port of New York.

United States District Court S. D. New York.

February 9, 1950.

Carol King, Isidore Englander, New York City (Blanch Freedman, New York City, of counsel), attorneys for petitioner.

Irving H. Saypol, United States Attorney for the Southern District of New York, New York City (Clarke S. Ryan, Assistant United States Attorney, Lester Friedman, New York City, of counsel), attorney for respondent.

LEIBELL, District Judge.

The petitioner, Peter Harisiades, an alien, sued out a writ of habeas corpus on July 1, 1949, claiming that he had been arrested and was then illegally detained at Ellis Island, under a warrant of deportation. The warrant had been issued December 16, 1948 by the Acting Assistant Commissioner of Immigration, pursuant to an order of deportation made on that date by the Assistant Commissioner, under T. 8 U.S.C.A. § 137(g). The warrant recited the grounds for his deportation; among them, that he was a member of an organization (the Communist Party) which advises, advocates and teaches the overthrow of the Government of the United States by force and violence, and which circulates and distributes literature teaching and advocating that doctrine. Harisiades appealed to the Board of Immigration Appeals from the order of the Assistant Commissioner. Argument was had before the Board on April 19, 1949. The Board on May 13, 1949 affirmed the Commissioner's order on the two main grounds stated above. Harisiades was taken into custody on May 20, 1949.

The petitioner is a native of Greece. He was admitted to the United States with his father on March 7, 1916, when he was thirteen years old. In 1920 his father returned to Greece but the petitioner remained here. In 1925 he joined the Workers Party which changed its name to the Communist Party of the U.S.A. in 1929. He was an active organization worker from 1928 to 1930. From 1931 to 1932 he was a Party organizer and was one of the division executives of the Party. He was a secretary of the Greek Bureau of the Communist Party in this country from 1933 to 1937 and was associated with its publication, "Empros", from 1933 to 1939. He was arrested a number of times in Massachusetts for "strike activities" between 1928 and 1930, and for "unemployment demonstrations" in West Virginia in 1930. Petitioner continued as a member of the Communist Party of the United States of America until October 1939, when, he claims, he was formally dropped by that Party, as a non-citizen.¹

The deportation proceedings date back a score of years. On April 12, 1930 a warrant of arrest was issued charging Harisiades with having been found in the United States in violation of the law, on the ground that at that time he was a member of or affiliated with an organization which taught or advocated the overthrow of the Government of the United States by force or violence. The warrant was based on a sworn statement, which Harisiades had made on March 6, 1930, to the effect that he was a Section organizer of the Communist Party at New Bedford, Massachusetts, that he did not believe in the Government of the United States, and that it was the purpose of his party to overthrow our form of government, although he denied that he or his Party believed in the use of force or violence to accomplish that purpose. A search was made for him in several states, but the 1930 warrant was not served. Meanwhile he had assumed various aliases.² In 1937 he married an American citizen. He has two children. In 1943 his alien registration record was checked and later his location was ascertained; but it was not until May 2, 1946 that the warrant of deportation was served and he was taken into custody. During the deportation proceeding that followed his arrest, he was released either on bail or on his own recognizance.

After his arrest in May 1946, the following charges were then lodged against him in the deportation proceeding: —

"(1) Act of October 16, 1918, as amended — Found to have been after entry a member of the following class set forth in Section 1 of said Act: An alien who believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States.

"(2) Act of October 16, 1918 as amended — Found to have been after entry a member of the following class set forth in Section 1 of said Act: An alien who is a member of 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.

"(3) Act of October 16, 1918 as amended — Found to have been after entry a member of the following class set forth in Section 1 of said Act: An alien who is 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."

The pertinent parts of the statute are quoted below.³

Hearings were held before a presiding inspector of the Bureau of Immigration and Naturalization, on October 15, 1946 and on January 30-31, 1947. On March 11, 1947 the Presiding Inspector made a report, covering 65 pages, and recommended petitioner's deportation to Greece. The report contained proposed Findings of Fact and Conclusions of Law as to deportability. The record was forwarded to the Central Office and on May 14, 1947 the attorney for Harisiades filed exceptions to the report. On August 5, 1947 the Commissioner ordered that the hearing be reopened for the proper authentication of documents already introduced, for the reception of additional evidence, and for the lodging of certain additional charges.⁴

The hearing was reopened February 18-19, 1948. Two additional charges were lodged as follows: —

"(4) The Act of October 16, 1918, as amended, in that he is found to have been after entry, a member of the following class set forth in Section I of said Act: An alien who is a member of and affiliated with an organization, association, society, and group that advises, advocates, and teaches the overthrow by force and violence of the Government of the United States.

"(5) The Act of October 16, 1918, as amended, in that he is found to have been, after entry, a member of the following class set forth in Section I of said Act: An alien who is a member of and affiliated with an organization, association, society, and group, that writes, circulates, distributes, prints, publishes, and displays, and causes to be written, circulated, distributed, printed, published and displayed, and that has in its possession for the purpose of circulation, distribution, publication, issue, and display, written and printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States."

The reopened hearings were continued before the same Presiding Inspector on March 9-10, 1948. He made a report of 300 pages, with proposed findings and conclusions, on June 24, 1948. It is a very complete and thorough report. The case then went to the Commissioner's office where it was considered and reviewed by the Chief Examiner, in a report dated December 16, 1948, covering 46 pages. He concluded that the government had met its burden of proof on all of the lodged charges by ample substantial evidence, and submitted Findings of Fact and Conclusions of Law.⁵

The Chief Examiner recommended that Harisiades be deported to Greece on five charges⁶ and the Assistant Commissioner "So Ordered". On the same day, December 16, 1948, a warrant of deportation was issued which embodied those charges. Harisiades appealed.

On April 19, 1949 the Board of Immigration Appeals heard oral argument on the appeal from the Assistant Commissioner's order of December 16, 1948. The Board of Appeals filed an opinion dated May 13, 1949, from which I quote the following:—

"We have carefully considered the documentary evidence and the oral testimony in this case. We have reviewed the analyses of the evidence by the Presiding Inspector and the Assistant Commissioner. We find, on the basis of the evidence adduced and the foregoing court decisions, that during the period of the respondent's membership in the Communist Party of the United States of America, it advocated the overthrow of the Government of the United States by force and violence, and it distributed printed matter which so advocated.

"The Assistant Commissioner found the respondent deportable on several additional grounds. We do not sustain these other grounds of deportation. We find that the evidence of record does not establish that the respondent personally believed in or advocated the overthrow of the Government of the United States by force or violence. Since the respondent has admitted membership in the Communist Party of the United States, we believe that the grounds of deportation based on affiliation are, at the very best, superfluous.

"The order of deportation will be affirmed on the grounds that after entry into the United States the respondent became a member of an organization which advocated the overthrow by force and violence of the Government of the United States, and which distributed printed matter that so advocated."

The Board of Immigration Appeals ordered "that the appeal from the decision of the Assistant Commissioner be dismissed".

At the hearings and on the appeals, from the time he was taken into custody in May 1946, Harisiades has been represented by counsel of his own choosing.

After the decision of the Board of Immigration Appeals on May 13, 1949, Harisiades was taken into custody on May 20, 1949 pursuant to the warrant of deportation dated December 16, 1948. He filed an application in this Court for review under the Administrative Procedure Act, 5 U.S. C.A. § 1001 et seq.,⁷ which was denied by Judge Bondy on July 1st. The Judge suggested that a petition for a writ of habeas...