United States v. Holton, 10803.
Decision Date | 23 June 1953 |
Docket Number | No. 10803.,10803. |
Citation | 205 F.2d 228 |
Parties | UNITED STATES ex rel. HYNDMAN v. HOLTON. |
Court | U.S. Court of Appeals — Seventh Circuit |
Pearl M. Hart and Edmund Hatfield, Chicago, Ill., Maurice M. Tulchinsky, South Bend, Ind., for appellant.
Joseph H. Lesh, U. S. Atty., Ft. Wayne, Ind., James E. Keating, Asst. U. S. Atty., South Bend, Ind., Joseph Sureck, U. S. Immigration & Naturalization Service, Detroit, Mich., for appellee.
Before DUFFY and LINDLEY, Circuit Judges, and BRIGGLE, District Judge.
Petitioner-Appellant, alleging that she is being unlawfully deprived of her liberty, filed her petition in the District Court for a writ of habeas corpus. From an adverse decision in the District Court she appeals.
On January 5, 1949, appellant was served with a warrant for arrest and deportation under the immigration laws, charging her with membership in an organization that teaches the overthrow by force and violence of the government of the United States, thus rendering her deportable. She was subsequently released on bail and remained on bail until October 7, 1952. On May 9, 1951, a partial hearing was had and it was additionally charged that she was a member of the Communist Party.
On October 7, 1952, before completion of the deportation hearing, appellant was re-arrested on a warrant from the Immigration Service, and she was denied bail and has since been held in custody. On October 16, 1952, the petition for Writ of Habeas Corpus was filed. Answering the petition, respondent, among other things, alleged: "Evidence introduced at petitioner's deportation hearing, and confidential Government reports available to the Immigration and Naturalization service disclose that said petitioner has been an active functionary of the Communist Party and participant in Communist activities and the respondent has reasonable cause to believe that she will continue in said activity."
The answer further alleged that witnesses had testified to the following facts:
Appellant did not traverse these allegations of the respondent but admitted that a letter, dated June 30, 1939, addressed to the Police Commissioner, Chicago, Illinois, requesting permission to hold an open meeting of the Communist Party of the 11th Ward at a certain place, was prepared and signed by appellant in the name of Katherine Erlich, appellant's maiden name. Appellant also conceded that the testimony in the previous hearings was as indicated in the answer, but denied the right of the government to rely upon undisclosed, confidential government reports made to the Immigration Service. She further admitted that she was arrested on July 1, 1950, at East Chicago, Indiana, while passing out literature issued by the Communist Party of Indiana. The statute provides that in a habeas corpus proceeding the answer, if not traversed, shall be accepted as true, except to the extent that the judge finds from the evidence that it is not true, 28 U.S.C.A. § 2248.
The decision in this case turns on the authority of the Attorney General, acting through the Immigration Service to deny bail under the circumstances disclosed. Appellant concedes that discretion resides in the Attorney General in such matters, but avers that in this instance he has acted arbitrarily and without sufficient evidence. She relies largely on the fact that she had been released on bail at the time of her arrest on January 5, 1949, and had at all times been available and present at any time when called for hearing. She asserts that most of the relevant facts upon which the respondent now relies were all within the knowledge of respondent when she was previously released on bail and that no new activities of the appellant have arisen since those facts were known, to warrant a denial of bail.
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