United States v. Esperdy

• Citation: 113 F. Supp. 283
• Parties: UNITED STATES ex rel. DANIMAN v. ESPERDY.
• Decision Date: 24 June 1953
• Court: U.S. District Court — Southern District of New York

113 F. Supp. 283

UNITED STATES ex rel. DANIMAN v. ESPERDY.

United States District Court, S. D. New York.

June 24, 1953.

Shapiro, Rabinowitz & Boudin, New York City, for relator, Victor Rabinowitz, New York City, of counsel.

J. Edward Lumbard, Jr., U. S. Atty., New York City, for respondent, William J. Sexton, Asst. U. S. Atty., and Lester Friedman, Atty., Office of the District Counsel, Immigration and Naturalization Service, United States Department of Justice, New York City, of counsel.

WEINFELD, District Judge.

The relator brings this habeas corpus proceeding to review the action of the Attorney General in refusing to enlarge him on bond pending the final determination of deportation charges against him. He was arrested on May 1, 1953, under a warrant charging (1) past membership in the Communist Party of Russia; (2) writing or publishing matter advocating or teaching the national or international doctrines of Communism; (3) writing or publishing written or printed matter advocating or teaching the overthrow of the government of the United States by force and violence or other unconstitutional means;¹ and (4) advocating the overthrow of the United States Government by force and violence, all within the purview of § 241(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1251(a). Relator was denied release on bond by representatives of the Immigration and Naturalization Service acting for the Attorney General. He contends that this denial was arbitrary and an abuse of discretion.

The Attorney General's exercise of discretion in denying bail pending deportation proceedings may not be disturbed if the facts upon which he acted reasonably support the inference that, were the alien enlarged on bail, he would "so conduct himself * * * as to aid in carrying out the objectives of the world communist movement," thus constituting a menace to the public interest.² Proof of membership and present or recent "personal activity in supporting and extending the Party's philosophy concerning violence" furnishes adequate ground for detention.³ The burden rests upon the alien to show that the decision against him was without a reasonable foundation.⁴

The relator here asserts that he comes four square within the rationale of the Carlson case in that he has sustained the burden of proof that he discontinued his Communist activities in 1937 and since then has not been a member of, or active in, the Communist Party or any of its affiliates either in this country or abroad nor engaged in any activity detrimental to the security and welfare of the United States. On the contrary, he alleges that since his break with the Party seventeen years ago he has been an apolitical, law-abiding person. Since 1936 relator has pursued the occupation of electrician and for the past three years has been employed in that capacity at the Montefiore Hospital, Bronx, New York. He has resided in New York City for more than twenty years, and for the past fifteen years at one address. He is married to an American citizen who is dependent upon him for support.

A petition substantially setting forth the foregoing facts was filed in support of the writ of habeas corpus on May 15th. Thereafter, but prior to the argument on the writ, the deportation charges were heard before a Special Inquiry Officer,⁵ on May 18th and again on May 25th, when they were concluded. The transcript of the proceedings, the findings of fact and conclusions of law were then incorporated as part of the record in the instant proceeding.

In addition to the four charges specified in the warrant of arrest, two additional charges were lodged during the course of the hearings. These were that the relator, who last entered the United States in 1936, (1) was not, at the time of entry, in possession of a valid immigration visa; and (2) that after entry he was a member of the Young Communist League of the United States, an affiliate of the Communist Party of the United States.

That the relator, up to and including 1936, had been an active and important member of Communist youth groups here and abroad is beyond question. At the hearings, he readily testified to his past activities and to the active role he had played in the American Communist youth movement between 1930 and 1936. In addition, three former Communists testified as to his services.

The Special Inquiry Officer sustained but two of all the charges. He found that relator was deportable on the lodged charge that at the time of entry he was excludable as an immigrant not in possession of a valid visa as required by law. He also sustained the warrant charge of affiliation in that relator had been a member of the Young Communist League of the Ukraine from 1918 to 1936 and was an executive member of the Young Communist International from 1928 until 1936, both of which were affiliated with the Russian Communist Party. Thus, membership in these organizations was placed no later than 1936. The Special Inquiry Officer found that there is "no evidence in this case" to sustain the remaining charges as to membership in the Young Communist League of the United States and advocating or writing matter advocating or teaching either world Communism or the overthrow of the government by force and violence or any other unconstitutional means. Notwithstanding these findings which, to the extent that specific charges were sustained, limited relator's activities and membership in Communist groups to the end of 1936, the government resists his release on bail. It casts the issue in these terms: "whether the relator, as he claims, discontinued his activities in behalf of the world communist movement in 1936 or, whether on the other hand, there is a reasonable basis for the Attorney General's belief that he did not then discontinue his activities and is still active in behalf of the world communist movement."

I would agree that if there were evidence from which the inference could reasonably be drawn that relator from 1937 was engaged in any activity on behalf of the world Communist movement, supporting and extending its "philosophy concerning violence," the Attorney General's exercise of discretion could not be disturbed. But there is no such evidence. The government alleges in its return that "There is substantial reason to believe that the relator * * * has merely discontinued his open activities in behalf of the Communist Party and has actually continued in his activities in a more guarded and underground capacity in recent years." What the "substantial reason" is is not stated. In fact, not a single "reason" is set forth on the basis of which the Court can determine that the...