United States v. Colding, 1528.

• Decision Date: 26 June 1951
• Docket Number: No. 1528.,1528.
• Citation: 98 F. Supp. 717
• Parties: UNITED STATES ex rel. KWONG HAI CHEW v. COLDING et al. THE SIR JOHN FRANKLIN.
• Court: U.S. District Court — Eastern District of New York

98 F. Supp. 717

UNITED STATES ex rel. KWONG HAI CHEW v. COLDING et al. THE SIR JOHN FRANKLIN.

No. 1528.

United States District Court E. D. New York.

June 26, 1951.

Ira Gollobin, New York City, for relator. Carol King, New York City, of counsel.

Frank J. Parker, U. S. Atty., Brooklyn, N. Y., for respondent, Edward J. Shaughnessy. Morris K. Siegel, Asst. U. S. Atty., Brooklyn, N. Y., Louis Steinberg, District Counsel, United States Department of Justice, Immigration and Naturalization Service, Oswald I. Kramer, Atty., United States Department of Justice, Immigration and Naturalization Service, New York City, of counsel.

GALSTON, District Judge.

This is a motion by the relator for an order authorizing his release on bail pending the hearing and determination of the appeal from the dismissal by this court of the relator's petition for a writ of habeas corpus, D.C., 97 F.Supp. 592.

The relator, an alien, seeking re-admission to the United States upon his return from a foreign port, was excluded by the immigration authorities as an alien whose entry was deemed prejudicial to the public interest. The Attorney General, upon reviewing his case, denied a hearing before a board of special inquiry because in his judgment the disclosure of the information upon which he based his affirmation of the exclusion order would be prejudicial to the public interest. This court, in an order filed May 21, 1951, dismissed the writ of habeas corpus on the ground that there was no jurisdiction to review the order of the Attorney General. The facts are fully set forth in my opinion, filed May 11, 1951.

The Court of Appeals for this Circuit has ruled that the District Court has the power, in deportation proceedings, to admit a petitioner to bail pending his appeal from an order dismissing a writ of habeas corpus, United States ex rel. Paetau v. Watkins, 2 Cir., 1947, 164 F.2d 457, 460. The authority cited by the court was Supreme Court Rule 45, par. 2 (repeated in Rule 8(b) of the Court of Appeals), which states: "2. Pending review of a decision discharging a writ of habeas corpus after it has been issued, the prisoner may be remanded to the custody from which he was taken by the writ, or detained in other appropriate custody, or enlarged upon recognizance with surety, as to the court or judge rendering the decision may appear fitting in the circumstances of the particular case." 28 U.S.C.A.

The cases in which the Court of Appeals has recognized the authority to admit to bail have been cases dealing with the deportation of persons who have gained entry into the United States. United States ex rel. Paetau v. Watkins, supra; United States ex rel. Potash v. District Director of Immigration and Naturalization at Port of New York, 2 Cir., 1948, 169 F.2d 747. Moreover, in these cases it was held that the administrative action under attack was subject to judicial review. The case at bar, however, is one dealing with the exclusion of an alien; and, as declared by the Supreme Court in United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 at page 543, 70 S.Ct. 309, at page 312, 94 L.Ed. 317: "Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien."

In United States ex rel. Doyle v. District Director of Immigration and Naturalization at Port of New York, 2 Cir., 1948, 169 F.2d 753, in considering the five cases presented for determination therein, the recital of the facts by the court discloses that the District Court concluded that there was no power in the court to review the action of the Attorney General in denying bail pending deportation proceedings. Thus, in effect, the District Court ruled that it had no jurisdiction to review the administrative action. However, in four of the cases, the District Court admitted the relators to bail pending appeal, and the Court of Appeals approved the action taken by the District Court in admitting to bail pending appeal. But cf. United States ex rel. De Cicco v....