United States ex rel. Potash v. District Director of Im. and Nat., 206

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation169 F.2d 747
Docket NumberNo. 206,Docket 20948.,206
Decision Date03 August 1948

Pressman, Witt & Cammer, of New York City (Lee Pressman, Carol King, Nathan Witt, Harold I. Cammer, Bella S. Abzug, and Ralph Shapiro, all of New York City, of counsel), for appellant.

John F. X. McGohey, U. S. Atty., of New York City, (David McKibbin and Harold J. Raby, Asst. U. S. Attys., and Robert A. Vielhaber, Atty., U. S. Dept. of Justice, Immigration & Naturalization Service, all of New York City, of counsel), for appellee.

Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The relator Potash was arrested on March 1, 1948, and placed in the custody of the Director of Immigration and Naturalization at Ellis Island, pursuant to a warrant charging that he was in the United States in violation of the immigration laws and subject to deportation as a member of and affiliated with an organization that advocates the overthrow by force and violence of the Government of the United States. Pursuant to the direction of the Attorney General no bail was fixed. The warrant ordered the Director of Immigration to grant Potash a hearing so as to enable him to show cause why he should not be deported according to law. On March 2, 1948 he applied for a writ of habeas corpus in a petition which the District Court dismissed.

Potash is a native of Russia. He entered this country lawfully about the year 1915 — a date prior to the time of the Russian revolution — and has resided here ever since his entry. He was married in the United States, his wife is an American citizen, and the couple have an infant daughter born in the United States. Prior to his entry into the United States he never resided in any country other than Russia. He became vice-president of the International Fur and Leather Workers Union and of the Greater New York CIO Council, and at the time he was taken into custody was engaged in collective bargaining on behalf of the Furriers Joint Council of New York. The petition not only sets forth the foregoing facts but alleges that no date has been set for the holding of a hearing as directed in the warrant of detention. It is also alleged that there is no country to which he can be deported because the Soviet Republic does not permit the return of persons who left Russia prior to the revolution of 1917. The petitioner further claims that the action of the Attorney General in denying bail was arbitrary and capricious and in contravention of petitioner's rights under the Constitution and that he will be available for further proceedings if admitted to bail.

The return to the writ filed on March 3, 1948, alleged that the hearing provided for in the warrant would be accorded to the relator without delay as soon as the habeas corpus proceeding was disposed of. It further alleged that the petition for the writ should be dismissed because under Rule 18(b) of the District Court writs will not be allowed in deportation cases unless the petition shows that the Secretary of Labor (now the Attorney General) has issued a warrant of deportation. The return also alleged that the discretion of the Attorney General in granting or refusing bail pursuant to Title 8 U.S.C.A. § 156 is not subject to review in the present proceeding.

After a hearing the District Court dismissed the writ of habeas corpus and remanded the relator to the custody of the Director of Immigration, but pending appeal to this court ordered him enlarged on bail in the sum of $5,000.

The relator appeals from the order dismissing the writ sued out to secure enlargement on bail pending the deportation proceeding on the ground that the discretion granted to the Attorney General in 8 U.S. C.A. § 156 was abused in that it was exercised arbitrarily and in violation of the due process clause of the Fifth Amendment of the Constitution of the United States. The provision under which the relator is sought to be deported is so far as pertinent quoted in the margin.1 The provision under which discretion in granting bail is lodged in the Attorney General is found in 8 U.S.C.A. § 156 also quoted below.2

The petition for a writ of habeas corpus does not specifically meet the serious charge of the warrant of arrest that relator is a member of or affiliated with an organization which advocates the overthrow by force or violence of the Government of the United States. On this appeal his counsel argues that the deportation proceeding is based upon membership in the Communist party and that there is no ground for holding that party to be a proscribed organization and that even if such were proven mere membership would be an insufficient basis for deportation. He contends that there are no grounds for the charge which justify a denial of bail and that such action is therefore arbitrary and violates relator's rights. To show that the relator conducted himself with propriety and patriotism during the recent period of Active hostilities there was evidence before the District Court of testimonials received from the Treasury Department, the Red Cross and the Citizens Defense Corps. Counsel also quotes a statement made by the District Attorney at the hearing before that court that he did not claim that relator was presently engaged in any unlawful activity and at another point said to the court that he disclaimed making any allegation that would lead one to question relator's loyalty. It is also claimed by counsel in the case of United States ex rel. Smith, 2 Cir., 169 F. 2d 753, to be decided herewith, that bail has been granted already in the cases of others held for deportation proceedings upon similar charges without any apparent reason for a distinction. Relator also contends that the denial of bail is arbitrary in that there is grave doubt whether the charge upon which deportation is sought is a proper one in view of the decisions of the Supreme Court in Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103, and Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796. However, we do not believe that these decisions are controlling on the present question of the denial of bail for it is premature to hold now that the government will be unable at the subsequent deportation proceedings to produce evidence which is sufficient under any limitations that those cases may be thought to impose. The decision of Attorney General Biddle to deport Bridges was reversed by the Supreme Court on the grounds that an improper interpretation of the word "affiliation" in the statute was applied and that evidence of "membership" in the Communist party lacked a proper foundation because of incompetent evidence considered. The court stated that Congress intended that the 326 U.S. 135, 65 S.Ct. 1448 "acts tending to prove `affiliation' must be of that quality which indicates an adherence to or a furtherance of the purposes or objectives of the proscribed organization as distinguished from mere cooperation with it in lawful activities." We cannot say that the government will not prove acts of affiliation in the case at bar of a proscribed type in accordance with the foregoing test. Likewise there may be proof of a membership in the Communist party which meets the test indicated by the opinion of the majority in the Bridges case as necessary to show unlawful "affiliation." However, though it is argued that such a type of membership is necessary, the Supreme Court has never so decided, nor do we suggest that it is required. In the Schneiderman case the Supreme Court reversed a judgment in a denaturalization proceeding which had cancelled a certificate of citizenship granted in 1927 to defendant on the ground that it had been illegally procured in that at such time he was not a person "attached to the principles of the Constitution" as required by the Naturalization Act, § 4, 34 Stat. 598, as amended. The Supreme Court held that there was insufficient proof that defendant was not attached to the principles of the Constitution or that the Communist party of which he was a member advocated the overthrow of the government by force and violence. The majority opinion expressly refused to apply the customary test of substantial evidence in support of a finding by the trier of facts and held that in a denaturalization proceeding to nullify a prior order awarding citizenship the proof must be 320 U.S. 118, 63 S.Ct. 1350 "clear, unequivocal and convincing" and commented upon the "infirmities of proof by imputation." However, the government in the present case would not be subject to such an unusual burden of proof in a deportation proceeding as was held to be specially applicable to denaturalization proceedings; nor can we assume that its evidence as to relator and the Communist party at the present date will not be of a stronger character. We do not believe that these two cases provide a basis for the charge that the government's deportation proceedings are so ungrounded as to make his denial of bail an arbitrary action.

Our decision in United States ex rel. Zapp v. District Director of Immigration, 2 Cir., 120 F.2d 762, held that the granting of bail to an alien in a deportation case during the administrative hearing is not a matter of the alien's absolute right. We there affirmed an order of the District Court denying such bail in a proceeding for deportation based upon the failure of certain German nationals to maintain the status as tradesmen upon which they were admitted to this country as non-immigrants because of their activities as foreign propagandists. We denied the alien's contention that under the provisions of 8 U.S.C.A. § 156 he had an absolute right to be admitted to bail prior to the issuance of a deportation order and we differed with the conclusion of the Sixth Circuit in Prentis v. Manoogian, 7 Cir., 16 F.2d 422, where...

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