United States v. Shaughnessy

• Decision Date: 02 December 1953
• Citation: 117 F. Supp. 699
• Parties: UNITED STATES ex rel. BLANKENSTEIN v. SHAUGHNESSY.
• Court: U.S. District Court — Southern District of New York

117 F. Supp. 699

UNITED STATES ex rel. BLANKENSTEIN v. SHAUGHNESSY.

United States District Court S. D. New York.

December 2, 1953.

Ira Gollobin, New York City, for relator.

J. Edward Lumbard, U. S. Atty., Southern Dist. of N. Y., New York City, Harold J. Raby, Asst. U. S. Atty., Lester Friedman, Attorney, Immigration and Naturalization, New York City, of counsel, for respondent.

DIMOCK, District Judge.

Section 242(c) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1252(c), provides that when a final order of deportation is made against any alien "the Attorney General shall have a period of six months from the date of such order * * * within which to effect the alien's departure from the United States * * *." Relator, an alien who has been detained under a final order of deportation for less than six months, seeks release upon habeas corpus on the ground that it is now clear that it will be impossible to deport him within the six-month period or, indeed, within the foreseeable future. The Government, citing a further provision of the statute, counters with the statement that it permits court interference with the custody of an alien during the first six months of his detention only in the case where the Attorney General is not proceeding with reasonable dispatch, and that there is no claim that the Attorney General is not doing so here.

My conclusion is that the provision permitting court interference in the case of failure to proceed with reasonable dispatch is not exclusive.

The Government's contention is that under the statute the Attorney General has an arbitrary period of six months to detain the alien against whom an order of deportation has been issued and that, during that period, that detention can be interfered with by a court only upon a showing of failure to proceed with reasonable dispatch to effect the deportation.

The provision fixing the six-month period first appeared in section 23 of the Internal Security Act of September 3, 1950, 64 Stat. 1010, 8 U.S.C. § 156(a). It provided that the Attorney General should have a period of six months from the date of the order within which to effect the alien's departure during which period the alien might be detained or released as might be determined by the Attorney General, and concluded by providing that, if departure of the alien from the United States had not been effected within six months, the alien should "become subject to such further supervision and detention pending eventual deportation as is authorized hereinafter in this section".

The question arose under this section 23 of the Internal Security Act whether the Attorney General was required to release an alien so held at the conclusion of the six-month period. Judge Murphy gave that construction to the statute in United States ex rel. Lee Ah Youw v. Shaughnessy, D.C.S.D.N.Y., 102 F.Supp. 799. In spite of the statement in the statute that, if departure of the alien had not been effected within six months, the alien should "become subject to such further supervision and detention pending eventual deportation as is authorized hereinafter in this section", Judge Murphy pointed out that the section authorized no detention after the six-month period and held that the reference to detention was surplusage. This conclusion by Judge Murphy, with which I agree, means that the function of the prescribing of a six-month period under the terms of the Internal Security Act was to fix the period after which the alien might not be detained. If we are right, there would be no reason for giving it the additional function of preventing court review of detention during that period. I thus conclude that the Internal Security Act did not affect, even during the initial six-month period, the previously existing power of the courts on habeas corpus to release an alien held for deportation on a showing of sufficient ground for its exercise. One such ground might be that there was no risk of his not being available for deportation when the time for it came. See United States ex rel. Dzuro v. District Director of Immigration, etc., D.C.S.D.N.Y., 102 F.Supp. 704. Another might be that under the circumstances his deportation was impossible or so unlikely of effectuation in the foreseeable future that the detention could not in truth be said to be for deportation. See United States ex rel. Ross v. Wallis, 2 Cir., 279 F. 401, 403-04; Saksagansky v. Weedin, 9 Cir., 53 F.2d 13; Ex parte Matthews, D.C.W.D.Wash., 277 F. 857; Petition of Brooks, D.C.D.Mass., 5 F.2d 238; United States ex rel. Janavaris v. Nicolls, D.C.D.Mass., 47 F.Supp. 201; United States ex rel. Chu Leung v. Shaughnessy, D.C.S.D.N.Y., 88 F.Supp. 91, 92; Id., D.C., 83 F.Supp. 925, affirmed 2 Cir., 176 F.2d 249. Although some of these cases speak of the illegality of detention for an unreasonable period of time, it is apparent that the court is considering reasonableness in the light of the prospect of successful deportation rather than reasonableness in the light of mere passage of time.

Since the passage of the Internal Security Act of 1950, however, the Immigration and Nationality Act has introduced new factors in the problem. Section 242 of that Act confers express authority on the courts to review a determination of the Attorney General concerning detention upon a showing in habeas corpus that he "is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case", (1) to determine deportability, where there has been as yet no order of deportation, or (2) to effect the alien's departure from the United States within the six-month period, where there has been an order of deportation. These provisions as to proceedings before and after the order of deportation are set forth respectively in subdivisions (a)¹ and (c)² of section 242, the pertinent parts of which are set forth in the margin.

I must decide whether this express permission to the courts to review the Attorney General's determination as to release during the six-month period upon a showing that the Attorney General is not proceeding with reasonable dispatch eliminates the pre-existing power of the courts to release within the six-month period aliens whose deportation appears to be impossible of effectuation.

My conclusion is that the introduction by the Immigration and Nationality Act of this express judicial power to interfere within the six-month period where the Attorney General is not proceeding with reasonable dispatch did not eliminate the court's pre-existing power to interfere with detention within that period on other grounds. This question with respect to the power of the courts to interfere during the six-month period after the entry of an order of deportation was noticed but kept open by the Court of Appeals for this Circuit in U. S. ex rel. Nukk v. District Director, 2 Cir., 205 F.2d 242. The question whether the introduction of the provision for express judicial power to interfere prior to the order of deportation eliminated the pre-existing judicial power to interfere on other grounds was decided in the negative by the Court of Appeals for this Circuit in United States ex rel. Yaris v. Esperdy, 202 F.2d 109, 112. In holding that failure to proceed with reasonable dispatch was not the exclusive ground upon which courts could interfere, Judge Chase said:

"We find nothing which justifies the appellee's argument that § 242 (a) of the Immigration and Nationality Act, which grants the courts authority to review the determination of the Attorney General where it is conclusively shown that he `is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability', does away with all judicial power to review the exercise of discretion under the statute, absent such delay. In the absence of clear language to the contrary, we cannot construe the statute to give the Attorney General unbridled license to exercise his discretion as to detention in whatever arbitrary or capricious way he might see fit, provided only that he act with reasonable dispatch to obtain a decision as to the alien's deportability. On the contrary, we think his discretion as to keeping an alien in custody is judicially reviewable to the same extent it was before. Section 242 provides but an added statutory recognition of a basis for judicial review, not a limitation upon the power as it had existed."

Since I have concluded that, prior to the passage of the Immigration and Nationality Act, the power of the court to interfere during the six-month period after the issuance of the order of deportation was just as untrammeled by statute as during the period prior to such issuance, there is only one distinction between the case at bar and the Yaris case. In the case at bar, I must determine to what extent this pre-existing power to interfere on general grounds during the six-month period was affected by the declaration in that Act of the power to interfere on the ground of failure to proceed with dispatch during that period. In the Yaris case, the court had to determine to what extent the pre-existing power to...