Rubinstein v. Brownell

Decision Date11 June 1953
Docket NumberNo. 11683.,11683.
PartiesRUBINSTEIN v. BROWNELL, Attorney General of United States.
CourtU.S. Court of Appeals — District of Columbia Circuit

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Mr. Edward J. Ennis, New York City, with whom Mr. Jack Wasserman, Washington, D. C., was on the brief, for appellant.

Mr. Frank H. Strickler, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Charles M. Irelan, U. S. Atty., Washington, D. C., at time of argument, William R. Glendon, Asst. U. S. Atty., Washington, D. C., at time of argument, and Robert M. Scott, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee. Mr. Leo A. Rover, U. S. Atty., Washington, D. C., also entered an appearance for appellee.

Before EDGERTON, PROCTOR and BAZELON, Circuit Judges.

EDGERTON, Circuit Judge.

On December 29, 1952, the then Attorney General issued an order for appellant Rubinstein's deportation. On the same day the Attorney General's subordinate the District Director of the Immigration and Naturalization Service ordered appellant's arrest. On December 30, 1952, appellant brought this suit against the then Attorney General for declaratory and injunctive relief. The present Attorney General has been substituted as appellee.

We are not now reviewing the deportation order. We are reviewing only the District Court's denial of a temporary injunction to restrain the appellee from arresting the appellant.

Appellant is an alien whose deportation is sought because he was convicted1 of filing and conspiring to file false affidavits in an attempt to evade the draft. He served his sentence of two years and six months for this crime. His complaint contends that the crime did not involve moral turpitude and therefore did not make him deportable,2 and also that the deportation order is invalid for other reasons including lack of due process in the administrative proceedings. It asserts among other things that "defendant is threatening to take plaintiff into custody for the purpose of deporting him and unless restrained will do so, causing plaintiff irreparable injury." With the complaint appellant filed a motion for a temporary restraining order and a preliminary injunction. His counsel filed an affidavit that unless appellee is enjoined appellant will be deprived of liberty until the suit is over; that appellant was allowed bail during the entire administrative proceeding; that the interests of the United States will not be adversely affected by his continued liberty; and that no one has suggested that appellant is hostile to the government or likely to engage in subversive, criminal or reprehensible activities. Appellee has not denied any of these allegations.3

The District Court declined to issue a restraining order and Rubinstein appealed. On January 5, 1953, we remanded the case to the District Court "for consideration of the question of detention in accordance with the principles applicable in habeas corpus proceedings, together with such other questions as may be before the Court." On January 23, 1953, the District Court denied a preliminary injunction. This court entered a temporary restraining order pending this appeal from that denial.

I.

We adhere to our ruling of January 5 that the legality of appellant's threatened and imminent detention may be tested in this suit by the principles that would be applicable in habeas corpus.

Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, decided March 16, 1953, is not to the contrary. Distinguishing McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, and overruling decisions of this and two other Courts of Appeals,4 the Supreme Court held that Heikkila could attack a deportation order only in habeas corpus because § 19 of the 1917 Immigration Act, 39 Stat. 890, under which the order was issued, "clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution." 345 U.S. at pages 234-235, 73 S.Ct. at page 606. The Court pointed out that it did "not consider the 1952 Act, 66 Stat. 163, which took effect after Heikkila's complaint was filed." 73 S.Ct. 604, note 4. The 1952 Act, which is the Immigration and Nationality Act, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq., took effect December 24, 1952,5 before Rubinstein's complaint was filed and even before the order for his deportation was issued. All agree that the 1952 Act and not the 1917 Act governs this suit.

The 1952 Act and its historical background. Unlike the 1917 Act, § 242(b) (4) of the 1952 Act provides that "no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence." Unlike the 1917 Act, §§ 242(c) and 242(e) of the 1952 Act expressly recognize that there may be "judicial review" of a final order of deportation. Section 242(c) provides that "the Attorney General shall have a period of six months from the date of such order, or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien's departure from the United States * * *."6

"Judicial review" is not synonymous with habeas corpus.7 Nothing in § 242(c) restricts it to habeas corpus.

Section 242(b)(4) of the 1952 Act provides, in practically the same words as § 19(a) of the 1917 Act8 which the Supreme Court construed in Heikkila, that "In any case in which an alien is ordered deported from the United States under the provisions of this Act, or of any other law or treaty, the decision of the Attorney General shall be final." But as the Supreme Court said in Heikkila, "That the Attorney General's decisions are `final' does not settle the question. * * * Read alone, the term might refer to the doctrine requiring exhaustion of administrative remedies before judicial process can be invoked." 345 U.S. at page 233, 73 S.Ct. at page 605. The Court had repeatedly held, before 1917, that in immigration legislation the word "final" was "intended to make these administrative decisions nonreviewable to the fullest extent possible under the Constitution." In Heikkila the Court held, "against this background of a quarter of a century of consistent judicial interpretation" before 1917, that § 19 of the 1917 Immigration Act "clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution" 345 U. S. at pages 234, 235, 73 S.Ct. at page 606;9 that is to say, except in habeas corpus.

The 1952 Act has a very different background of judicial interpretation. In 1948, 1949, and 1950, three Courts of Appeals including this one ruled10 that despite previous legislation making the Attorney General's deportation orders "final", they were subject to review under § 10 of the Administrative Procedure Act which Congress passed in 1946.11 Throughout the time when Congress was considering and adopting the 1952 Act which we are construing, this was the unanimous view of the Courts of Appeals.

In dealing with other sorts of legislation, the Supreme Court had repeatedly held that the word "final" does not necessarily exclude, or limit to habeas corpus, judicial review of administrative action. Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567, is an example. Accordingly it had become common before 1952 for Congress, when it wished to preclude or restrict judicial review, to do so by express language and not to rely on the word "final". Section 601(e) of the Revenue Act of 1936, 49 Stat. 1740, provided that "The determination of the Commissioner of Internal Revenue with respect to any refund under this section shall be final and no court shall have jurisdiction to review such determination." A 1940 amendment of the World War Veterans Act of 1924, 54 Stat. 1197, 38 U.S.C.A. § 11a-2, provided that "the decisions of the Administrator of Veterans' Affairs on any question of law or fact concerning a claim for benefits * * * shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decisions."12 A 1941 Excess Profits Tax amendment, 55 Stat. 26, provided that certain determinations of liability by the Board of Tax Appeals (now the Tax Court of the United States) "shall not be reviewed or redetermined by any court or agency except the Board."

Section 360(c) of the 1952 Act itself provides, as to persons seeking admission to the United States, that "A final determination by the Attorney General that any such person is not entitled to admission to the United States shall be subject to review by any court of competent jurisdiction in habeas corpus proceedings and not otherwise."13 The fact that Congress said clearly what it meant in § 360(c) with regard to admission is strong evidence that it did not mean what it did not say in § 242 (c) with regard to deportation.14

Legislative history of the 1952 Act. While the Act and its predecessor bills were pending, Congress considered and rejected proposals that would have had the effect of exempting deportation proceedings under the Act from review under § 10 of the Administrative Procedure Act.

In the 81st Congress, Senator McCarran introduced on April 20, 1950, a bill to revise the immigration and nationality laws. (S. 3455, 81st Cong., 2d Sess.) It provided in § 106 that "Notwithstanding the provisions of any other law — (a) determinations of fact by administrative officers under the provisions of this Act or regulations issued thereunder shall not be subject to review by any court; (b) determinations of law by administrative officers under the provisions of this Act or regulations issued thereunder shall not be subject to review by any court except through the writ of habeas corpus; and (c) the exercise of discretionary authority conferred upon administrative officers by this Act or regulations issued thereunder shall not be subject to review by...

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