United States v. Esperdy, 165

• Citation: 202 F.2d 109
• Decision Date: 11 February 1953
• Docket Number: Docket 22592.,No. 165,165
• Parties: UNITED STATES ex rel. YARIS v. ESPERDY, Acting District Director of the Immigration and Naturalization Service.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

202 F.2d 109 (1953)

UNITED STATES ex rel. YARIS v. ESPERDY, Acting District Director of the Immigration and Naturalization Service.

No. 165, Docket 22592.

United States Court of Appeals Second Circuit.

Argued January 15, 1953.

Decided February 11, 1953.

Myles J. Lane, U. S. Atty. for the Southern District of New York (William J. Sexton, Asst. U. S. Atty. and Lester Friedman, Attorney, Immigration and Naturalization Service, Department of Justice, New York City, of counsel), for respondent.

Milton H. Friedman, New York City (Milton H. Friedman, Blanch Freedman and Robert Silk, New York City, of counsel), for relator.

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

CHASE, Circuit Judge.

The relator-appellant is an alien who is presently detained on an immigration warrant without bail at Ellis Island, N. Y. This is an appeal from the dismissal of a writ of habeas corpus challenging the legality of appellant's detention pending a determination as to his deportability.

He was taken into custody on July 6, 1950 on an immigration warrant, dated July 5, 1950, charging that he was unlawfully in the United States and subject to deportation on the ground, among others, "that prior to, at the time of, and after entry into the United States, he was a member of the Communist Party of the United States." He was immediately released on bond; but on October 23, 1950, after the passage of the Internal Security Act of 1950, his bond was revoked and he was again taken into custody. A writ of habeas corpus was issued, and on November 17, 1950 the District Court for the Southern District of New York upheld the illegality of appellant's detention on the ground that the denial of bail was an abuse of discretion on the part of the Attorney General. United States ex rel. Klig v. Shaughnessy, D.C., 94 F.Supp. 157. He was then enlarged on bail as before. However, no order sustaining the writ was entered; instead, the writ was withdrawn pursuant to a stipulation of the parties which was approved by the court.

The appellant remained at large until, after the decision of the Supreme Court in Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547, the respondent directed him to surrender pending final determination of his deportability. He surrendered on October 24, 1952 and the instant writ of habeas corpus was obtained on November 14, 1952.

The return to the writ alleges that the appellant is a native of Russia who first entered this country in 1914 and remained here for about sixteen years; that he then obtained an American passport by falsely representing that he was an American citizen named Abram Gottlieb and returned to the Soviet Union; that he remained there about two years, during which time he took courses at the Lenin School in Moscow training him to help carry out the purposes of the communist world movement; that he was a member of the Communist Party of the United States before, and while, he attended the Lenin School and had previously been active in the affairs of that party; and that he returned to this country "in or about the year 1932, posing as a citizen of the United States, in possession of the aforesaid passport in the name of Abram Gottlieb, and was readmitted to the United States." It was also alleged that, "Subsequent to his return to the United States, relator continued his membership in the Communist Party of the United States and continued to be active in carrying out the objectives of that Party, in furtherance of the aims and policies of the world communist movement."

The appellant filed a traverse to the return in which he declined to admit or deny the above allegations.

When the order dismissing the writ was entered, the Internal Security Act of 1950 was the controlling statute; but it has since been superseded by the Immigration and Nationality Act, 8 U.S.C.A. § 1101 et seq., effective December 24, 1952. On appeal from orders in habeas corpus proceedings, decision turns upon whether the detainment is lawful under the law as it is at the time the appeal is decided rather than upon what it was when the order was made, United States ex rel. Pizzuto v. Shaughnessy, 2 Cir., 184 F.2d 666; United States ex rel. Wiczynski v. Shaughnessy, 2 Cir., 185 F.2d 347; and the controlling statute, therefore, is § 242(a) of the Immigration and Nationality Act. 8 U.S.C.A. § 1252(a). It provides, as did § 23(a) of the Internal Security Act of 1950, 8 U.S. C. § 156 that, pending final determination of the deportability of an alien taken into custody on a warrant in deportation proceedings, the alien may be released under bond of not less than $500, or continued in custody, as the Attorney General may in his discretion determine. In Carlson v. Landon, 342 U.S. 524, 544, 72 S.Ct. 525, 536, 96 L.Ed. 547, a case controlled by this provision in the Internal Security Act, the Supreme Court held that it was not...