In re Hanoff

• Decision Date: 28 May 1941
• Docket Number: No. 23495-S.,23495-S.
• Citation: 39 F. Supp. 169
• Parties: In re HANOFF.
• Court: U.S. District Court — Northern District of California

39 F. Supp. 169

In re HANOFF.

No. 23495-S.

District Court, N. D. California, S. D.

May 28, 1941.

Andersen & Resner, of San Francisco, Cal., for petitioner.

Frank J. Hennessy, U. S. Atty., and Wm. E. Licking, Asst. U. S. Atty., both of San Francisco, Cal., and A. Kuckein, Inspector in Charge, Legal Division of United States Immigration and Naturalization Service, for respondent.

ST. SURE, District Judge.

Applicant, an alien, detained for deportation by the District Director of Immigration and Naturalization for the Port of San Francisco, seeks his liberty through a writ of habeas corpus and asks that he be released on bail pending proceedings.

Petitioner was arrested on March 8, 1930, upon a warrant issued by the Secretary of Labor charging that petitioner is in the country in violation of the Act of October 16, 1918, as amended June 5, 1920, 8 U.S. C.A. § 137, in that he is a member of an organization or group that believes in, advises, advocates, and teaches the overthrow by force or violence of the Government of the United States. He was released from custody upon the posting of a $1,000 U. S. Liberty Bond, and, after hearing, was, on December 5, 1930, ordered deported to the Union of Soviet Socialist Republics. He was permitted to remain at large upon the posted bond. On August 25, 1932, demand was made upon the Secretary of Labor either to deport petitioner or return the bond, followed by suit to enforce return. In the suit it was alleged that the Government was unable to deport petitioner to Russia, the country of his birth, which fact was not denied. Thereafter the bond was returned and petitioner was at liberty until May 20, 1941, when he was rearrested upon order of the Department of Justice¹ on the original deportation warrant. Petitioner alleges that his arrest and detention is in violation of the First, Fifth, and Fourteenth Amendments to the Constitution, and that continued detention will visit cruel and inhuman punishment upon him because of the precarious condition of his health.

In his verified return to the order to show cause the District Director states, in part, as follows:

"That affiant has been informed by the Special Assistant to the Attorney General in charge of the Immigration and Naturalization Service that he now has reason to believe that deportation of petitioner can be effected, that it is the policy of the Attorney General to rearrest on the original deportation warrant those aliens heretofore ordered deported under the provisions of the Act of October 16, 1918, as amended, who have since the issuance of such warrant persisted in their membership affiliations and activities with an organization such as is mentioned in said Act and that the Immigration authorities have definite information and evidence showing that petitioner has, subsequent to the 5th day of December, 1930, persisted in a flagrant manner in such membership affiliations and activities and is a high official in such an organization, to wit: the Communist Party of the United States of America.

"That for the foregoing reasons and pursuant to directions of the Special Assistant to the Attorney General in charge of the Immigration and Naturalization Service petitioner was taken into custody by affiant on the 20th day of May, 1941, and held without bail pending completion of arrangements for his deportation."

Petitioner insists that he should be immediately given his liberty, or, if not, the time for the execution of the warrant should be limited, and he should be admitted to bail by this Court pending deportation.

It is too well settled by the decisions of the Supreme Court to require any citation of authority that an alien resident may be deported for any reason which Congress has determined will make his residence here inimical to the best interests of the Government. Skeffington v. Katzeff, 1 Cir., 277 F. 129, 131. And while an alien inhabitant may invoke the protection of the Constitution, if he is found to be here in violation of law he may not be heard to say his rights have been invaded. Turner v. Williams, 194 U.S. 279, 289, 24 S.Ct. 719, 48 L.Ed. 979.

Attention is called to the fact that petitioner has been available for deportation for a period in excess of ten years. It is urged that the old warrant has become functus officio because it was not executed within a reasonable time. Until recently taken into custody petitioner was not restrained of his liberty. "Surely there is nothing in this case showing that the delay in deporting the petitioner worked a disadvantage to him. If anything he profited by it." Restivo v. Clark, 1 Cir., 90 F.2d 847, 851. During a part of the time diplomatic relations did not exist between the United States and the Soviet Republics and deportation of aliens was therefore impossible. The Attorney General now represents that he has "reason to believe that deportation of petitioner can be effected." The return further shows "that petitioner has, subsequent to the 5th day of December, 1930, persisted in a flagrant manner in * * * membership * * * activities and is a high official in * * * the Communist Party of the United States of America." As supporting this last statement, there are in evidence excerpts from the testimony of witnesses given in the deportation case of Harry R. Bridges now being heard in San Francisco.

Under the circumstances I think that petitioner is not entitled to an immediate discharge. A broad discretion is allowed the Attorney General to find ways or means to execute the original deportation warrant. "The utmost the courts can or will do is to discharge the petitioner from further imprisonment if the government fails to execute the order of deportation within a reasonable time." Caranica...